Alert May 15, 2012

Class Certification Challenging Validity of Assignments in Foreclosure Actions Denied

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.