hsbc bank v. jodi matt

8/3/2019 HSBC Bank v. Jodi Matt

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(SEAL)COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURTLAND COURT DEPARTMENT

NORFOLK, ss .

)HSBC BANK USA, N.A., as trustee of Ace )Securities Corp., Home Equity Loan Trust, Series )2005-HE4, )Plaintiff, )

v. ))

JODI MATT, )Defendant. ))

10 MISe. 421195

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISSIntroduction

This action was filed by plaintiff HSBC Bank USA, N.A., as trustee of Ace SecuritiesCorp., Home Equity Loan Trust, Series 2005-HE4 ("HSBC"), against defendant Jodi Mattpursuant to the Servicemembers Civil Relief Act, 50U.S.C. App. 501, et seq. ("the Act"). Such

an action, as a matter of law, is confined to determination of a single question; is the defendant(alleged to be in breach of her mortgage obligations) entitled to the benefits of the Act?l Beatonv. Land Court, 367 Mass. 385, 390-91 (1975). The answer to that question is "yes" only if(1)the defendant is currently in active military service, and (2) the obligation at issue was incurredbefore that service began.2 There is also, however, a threshold issue, present in all judicialproceedings, which must be satisfied before the inquiry into the defendant's military status can

The Act "contains special rules regarding debts secured by a mortgage, trust deed, or similar securityinterest in real or personal property owned by a servicemember. Generally, the act prohibits the sale, foreclosure, orseizure ofproperty, based on a breach of such a secured obligation, dUring the period of military service or within 90days thereafter. The prohibition applies only to obligations that originated prior to the servicemember's militaryservice, and for which the servicemember is still obligated." Office ofthe Comptroller of the Currency,Administrator of National Banks, Advisory Letter No. AL 2004-8 Re: Servicemembers Civil Relief Act at 2 (2004).2 See n. 1.

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even be reached. Does the plaintiff have standing to bring the lawsuit?3 Ms. Matt contends thatHSBC does not have standing, and moves to dismiss this action on that basis.

For the reasons set forth below, I find that HSBC has sufficient standing to obtain adetermination of Ms. Matt's status under the Act. The motion to dismiss is thus DENIED.Since Ms. Matt does not claim to be a servicemember, judgment that she is not entitled to thebenefits of the Act shall also enter.

DiscussionThis is a Servicemember's action. It does not seek, and by law cannot give, a

determination that Ms. Matt is in breach of her loan or mortgage obligations, or that HSBC mayvalidly foreclose on Ms. Matt's property. Indeed, it is not clear from the record that HSBC isthe current holder of either the note or the mortgage - questions I need not and do not decide inthis proceeding but which certainly will arise in the context offoreclosure.4 See G.L. c. 244, 14; Us. Bank N A. v. Ibanez, 17 LCR 202 (2009), 17 LCR 679 (2009). But a pla intiff need no tbe the current holder of the note or the mortgage to have standing in a Servicemember's case. Itis sufficient if the plaintiff satisfies the general requirements of standing.

"Whether a party has a sufficient stake in an otherwise justiciable controversy to obtainjudicial resolution of that controversy is what has traditionally been referred to as the question ofstanding to sue." Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972). "To have standing in any

3 Standing is a matter of subject matter jurisdiction. If the plaintiff does not have standing, the court has nojurisdiction to hear the dispute. Sullivan v. ChiefJusticeforAdmin. and Mgmt. of he Trial Court, 448 Mass. 15,21(2006).4 The record contains a document entitled "assignment of mortgage," recorded at the Norfolk CountyRegistry of Deeds at Book 25302, Page 102 (Nov. 16,2007) , which purports to be an assignment of Ms. Matt's"mortgage and the note and claim secured thereby" from New Century Mortgage Corportat ion to HSBC. This"assignment," however, is dated November 6,2007, at a time when New Century was in bankruptcy (it filed onApril 2, 2007), and there is nothing in the record to indicate what authority, if any, the bankruptcy court grantedeither New Century or its purported agent, Kimberly Dawson, to make such an assignment. There is also nothing inthe record to indicate that Ms. Dawson either (a) held the office at New Century she purported to hold, or (b) even ifshe held such an office, that she had New Century's authority to assign its assets to third parties.

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capacity, a litigant must show that the challenged action has caused the litigant injury." Sullivan,448 Mass. at 21 (internal citations and quotations omitted). "Injuries that are speculative, remoteand indirect are insufficient to confer standing. Not every person whose interests mightconceivably be adversely affected is entitled to judicial review. The complained-of injury mustbe a direct and ascertainable consequence of the challenged action." Id. "In addition, for theplaintiff to have standing, the injury alleged must fall within the area of concern of the statute orregulatory scheme under which the injurious action has occurred."s Id. at 21-22 (internalcitations and quotations omitted). Where, as here, a declaration is sought, the controversymust

be "real, not hypothetical" since "the declaration issued is intended to have an inunediate impacton the rights of the parties." Mass. Assoc. of nd. Ins. Agents and Brokers, Inc. v. Commr. OfIns., 373 Mass. 290,292 (1977).

While HSBC mayor may not be the current holder ofMs. Matt's note and mortgage (arequirement - at leastwith respect to the mortgage - to commence G.L. c. 244, 14foreclosure proceedings, see Ibanez, supra), the record clearly shows that HSBC has acontractual right to become that holder, conferred by the ACE Securities Corp. Home EquityLoan Trust, Series 2005-HE4 Asset Backed Pass-Through Certificates Pooling andServiclngAgreement (Jun. 1,2005). See Section 2.01 (Conveyance ofthe Mortgage Loans to AceSecurities Corp. Home Equity Loan Trust, Series 2005-HE4) and the associated loan schedules(which include theMatt loan and mortgage). In the absence of a showing that HSBC no longerhas that right (e.g. that the right has been abandoned or lost in the bankruptcy proceedings, orassigned to another entity), this is sufficient to give it standing to bring a Servicemember's casesince whether or not Ms. Matt is entitled to the benefits of the Act affects the present

This is sometimes phrased as the requirement for "a legally cognizable injury." Mass. Assoc. ofInd. Ins.Agents and Brokers, Inc. v. Commr. of ns., 373 Mass. 290,293 (1977).

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collectibility of that loan (or, more precisely, the ability to conduct a foreclosure sale of thecollateral securing it) and thus the present value of the loan. Any lessening of that value directlyaffects HSBC's rights. This is both a "legally cognizable injury" to HSBC and one with"immediate impact" on HSBC's rights, sufficient to grant it standing.

Conclusion

For the foregoing reasons, the defendant's motion to dismiss the plaintiffsServicemember's complaint for lack of standing is DENIED. Since Ms. Matt concedes that sheis not entitled to the benefits of the Act, such a judgment shall enter.SO ORDERED.

Dated: 8 July 2010

'.

Deborah J. Patterson, Recorder

ATRUE copyATTEST:

ot"ULk : )17a:tf.tn.5Ct'RECORDER

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hsbc bank v. jodi matt

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