The United States District Court for the District of
Massachusetts recently denied a motion for class certification in a
case asserting that defendants failed to obtain valid assignments
prior to foreclosing. Plaintiffs claimed that, in contravention of
Massachusetts law, defendants' foreclosures were void under the
Massachusetts Supreme Judicial Court's decision in U.S.
Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, (Mass.,
Jan. 7, 2011), because the assignments were recorded after the
foreclosure sales. The Ibanez court held that under
Massachusetts law, an assignment is required before a foreclosure
sale, and that the lack of an assignment renders the foreclosure
sale void and not merely voidable. The District Court here held
that plaintiffs failed to meet the commonality and typicality
requirements of Fed. R. Civ. P. 23(a), holding that, under
Wal-Mart Stores, Inc v. Dukes, 131 S. Ct. 2541 (June 20,
2011), a "determination of whether the [Massachusetts
statutory foreclosure requirements were] in fact violated would
require 8,000 highly individualized and case-specific
inquiries." The key issue was that the determination of
whether an assignment existed prior to the recorded assignment
would require a case-by-case analysis. Goodwin Procter partners
James McGarry and Richard Oetheimer represent U.S. Bank, as Trustee
for certain securitization trusts. Click
here for the order.
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