U.S. Bank v. Ibanez II Update November 10, 2019

In the Second Act of U.S. Bank v. Ibanez, and over a decade since this matter began, the Land Court Issued It's Opinion on May 17, 2019 in LaRace v. Wells Fargo Bank, N.A., Ca. No. 18MISC00327, Granting Wells Fargo Bank N.A., as Trustee, et. al Motion For Summary Judgment. Within its Order the Court [with no pending Objection or Motion from Defendants regarding the pleadings], under its own finding also Issued an Order to Show Cause against me personally as to why I should not be required to pay the Opposing Law Firm's fees for 2 counts that were dismissed for the lack of the Court's subject matter jurisdiction in August of 2018.

See our May 30, 2020 update on this case that includes the filed appellate briefs of the parties here

The case docket sheet (as of 11/10/2019) can be found here

We had to hire Morrison Mahoney to defend the Judge's Order to Show Cause, in which after hearing the Land Court Judge found that fees were warranted as the Judge made finding that, despite two claims being dismissed for lack of jurisdiction of the Court in August 2018, these two same claims at issue under the Order to Show Cause were "previously litigated", and were identical to the previous litigation between the parties. It is to be remembered that we have never been compensated for the defense of the LaRace family in any litigation going all the way back to June 2009

We appealed both of these 2019 rulings and our Appeal was entered upon the Appeals Court docket last week; see Tammy L. LaRace v. Wells Fargo Bank, N.A., et. al, 2019-P-1507

As this is an active appeal, therefore, we will not comment as to our position, but will merely provide the documents and transcripts from this matter below, which is public information as there is no Order Impounding any of these documents. Therefore, the reader can form their own opinions as to our position before the Land Court, and the position of the Land Court Judge. However, we can share a thought expressed long ago on Sesame Street by Kermit the Frog,"it ain't easy being green..."

Regarding try title actions

However, we do note that the SJC has unequivocally held that where no validly completed foreclosure auction sale has taken place, a mortgagor "petitioner" under the Try Title Statute [G.L. c. 240, Sections 1-5] fails to satisfy a jurisdictional element to file a Petition to try-title, as there would be no "adverse clamant". It is undisputed that in 2012 there was no completed valid foreclosure auction sale at the time the LaRaces filed their "petition" under G.L. c. 240, Section 1-5.see Abate v Fremont Inv. & Loan, 470 Mass. 821, 834-835 (SJC 2015)

"The issue arises because the try title statute, in keeping with its purpose to allow a person holding record title to compel an adverse claimant to prove the merits of the adverse claimant's interest in the property, contemplates a two-step procedure in which the substantive merits of the parties' claims are determined at a trial. Under our interpretation of the statute, the "first step" requires that the petitioner must satisfy the jurisdictional elements [Note 2] of the statute and, if satisfied, the "second step" requires the adverse claimant either to bring an action to assert the claim to title, or to disclaim an interest in the property. Bevilacqua v. Rodriguez, 460 Mass. 762, 766 (2011), citing G. L. c. 240, § 1." Abate v Fremont Inv. & Loan, 470 Mass. 821, 822 (SJC 2015)

"The adverse claim element of jurisdiction. Where we have characterized the judge's decision as being premised on Abate's lack of standing based on the lack of record title, the remaining jurisdictional fact, adverse claim, has no bearing on the outcome of this appeal. It is undisputed that Abate filed his try title petition after the foreclosure occurred, which conclusively establishes the existence of an adverse claim. Nonetheless, because the issue may arise in future try title actions between a mortgagor and a mortgagee, we take this opportunity to resolve the conflict in the Land Court try title decisions on the adverse claim element of subject matter jurisdiction. [Note 24] We conclude that where a mortgagor challenges the right of the mortgagee to foreclose, the "adverse claim" element of a try title action is sufficiently alleged only if the foreclosure already has occurred." Abate at 834.