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mortgage, the owner of the note under Massachusetts law holds beneficial ownership of the mortgage and has the. right to compel an assignment of the mortgage by the mortgagee, who holds the mortgage in trust for the holder of. the note, in what has been described as a resulting trust implied by law.
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Jun 22, 2017 · Ct. 2001) (assignee of lost instrument was required to have had possession of the note under 3-309); State Street Bank and Trust Co. v. Lord, 851 So. 2d 790, 791-792 (Fla. 4th DCA 2003) (assignee of note and mortgage may not foreclose mortgage where note was lost before it was assigned, and the assignor also never had possession of the note).
(2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course.
Oct 14, 2016 · IV. Whether U.S. Bank was the lawful holder of the Note at the time of foreclosure. Because the Property was advertised for foreclosure in August 2012, Eaton applies and requires that U.S. Bank the foreclosing entity have held both the Mortgage and the Note at the time of foreclosure. Eaton, 462 Mass. at 571.
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Federal Nat’l Mtge. Ass’n, 462 Mass. 569 (2012) (Eaton), in which this court held that a foreclosure by power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless a foreclosing party holds the mortgage and also either holds the underlying mortgage note or acts on behalf of the note holder, to cases that preserved the issue presented in Eaton and were pending on appeal in the …
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