Contemporaneous Evidence of Off-Record Assignments Satisfies Ibanez

Photo of Ryan M. Cunningham

The Massachusetts Land Court division of the Trial Court has affirmed that contemporaneous evidence of off-record assignments are adequate to satisfy the requirements of U.S. Bank N.A. v. Ibanez, 458 Mass. 637 (2011).

In May, 2006, Lisardo Murillo acquired a property in Somerville, Massachusetts and granted a mortgage encumbering the property to American Mortgage Network. In 2007, U.S. Bank National Association (“U.S. Bank”) foreclosed on Mr. Murillo, and sold the property to Matthew Kidd, who granted a mortgage encumbering the property to M&T Bank. In 2012, M&T Bank filed an action in the Land Court seeking a declaration that U.S. Bank’s 2007 foreclosure was valid and that, by extension, Mr. Kidd’s title and M&T Bank’s mortgage remain valid.

The crux of the argument involved U.S. Bank’s 2007 foreclosure and whether it properly held the mortgage at the time of the foreclosure, as required by Ibanez. While U.S. Bank foreclosed in 2007, no evidence of the assignments that eventually led to U.S. Bank holding the mortgage appeared in the registry of deeds until 2008. Purportedly, American Mortgage Network had assigned Mr. Murillo’s mortgage to Wachovia Mortgage Loan Trust, LLC (“Wachovia”), which in turn had assigned it to U.S. Bank as Trustee prior to the 2007 foreclosure.

U.S. Bank and Wachovia pointed to a Mortgage Loan Purchase Agreement between American Mortgage Network and Wachovia assigning certain loans identified in the attached schedules. The Court noted that under Ibanez, those documents as they existed at the time of the foreclosure notice and sale are evidence of a valid, off-record assignment. The Court was careful to note that schedules containing information such as zip code, payment history and loan amount are insufficient to show an assignment, as they could apply to a number of different mortgages. The schedules produced by U.S. Bank, however, containing unique identifying information such as a loan number, are sufficient to show an assignment.

As U.S. Bank had acquired the mortgage prior to foreclosure, and produced contemporaneous evidence of the later recorded assignments, its foreclosure, and the subsequent title and mortgage acquired by Mr. Kidd and M&T Bank remain valid. While pre-foreclosure recording of assignments satisfies the Ibanez requirements, the requirements can be met for off-record assignments through contemporaneous records of assignment with unique identifying information.

For more information about our banking law practice, please visit our banking law page.


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.