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Case Study 1 – Void Foreclosures

U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40 (Mass. App., 2011)

Marie McDonnell played a pivotal role in two landmark cases decided on appeal by the Massachusetts Supreme Judicial Court on January 7, 2011, U.S. Bank, National Association v. Ibanez, and Wells Fargo Bank N.A. v. LaRace, collectively referred to as Ibanez.

On April 28, 2009, the Massachusetts Land Court, Division of the Trial Court granted Ms. McDonnell’s motion to intervene as a “friend of the court” after plaintiffs’ attorneys filed post-trial motions to reconsider the Land Court’s decision to vacate two foreclosures based on the fact that neither plaintiff had received an assignment of the mortgage prior to noticing the sale and conducting the foreclosure.

Ms. McDonnell’s seminal contribution was to fortify the Land Court’s ruling, but also, to shift the gravamen beyond the recorded assignments of mortgage to defects in the securitization process that proved plaintiffs were not the present holders of the mortgage at the time plaintiffs noticed and conducted the sale.

The Ibanez decision rendered by the Massachusetts Supreme Judicial Court was the first in the nation to address the complexities of securitization within the context of residential mortgage foreclosures, and it is cited widely by courts in many other jurisdictions nationwide.

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