Supplemental and Friend-Of-The-Court Briefs Filed In Eaton v. Federal National Mortgage Ass’n (Fannie Mae)

by Rich Vetstein on January 31, 2012 · 14 comments

in Fannie Mae, Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Title Defects, Title Insurance

Update (6/22/12): SJC Issues Final Opinion (click to read)

For interested legal observers of the foreclosure crisis, it really doesn’t get any better than this.

Supplemental and amicus curie legal briefs have been filed in much awaited case of Eaton v. Federal National Mortgage Ass’n, and they make for great reading. The briefs were filed in response to the SJC’s concern, mid-appeal, over whether an adverse ruling against foreclosing lenders will have a disastrous impact on foreclosure titles and, if so, whether its ruling should be applied prospectively rather than retroactively. Click here for our past posts on the case.

Notably, the Federal Housing Finance Association, the congressional conservator of the bailed out Fannie Mae and Freddie Mac, filed a rare amicus brief and laid a shot across the SJC’s bow. It suggested that the congressional bailout law would trump an adverse decision by the SJC to the extent that it interfered with Fannie and Freddie’s mission to secure the health of U.S. secondary mortgage market. This is the first time that I’m aware of the federal agency intervening in a particular foreclosure case.

Not surprisingly, Fannie Mae, FHFA, and REBA (Real Estate Bar Ass’n) and the other industry groups argue against a retroactive application of an adverse ruling, claiming that it would have a disastrous effect on homeowners with foreclosures in their titles.

Eaton (which cited this Blog), the legal services groups and foreclosure defense groups say that the sky will not fall down if the unity rule is applied retroactively; indeed, foreclosures in Mass. have increased post-Ibanez. They also argue that the law is the law, and it’s the lenders fault for creating a securitization scheme in violation of the law, so they should have to deal with the repercussions.

I have also attached REBA’s and Attorney Glenn Russell’s (lead counsel in U.S. Bank v. Ibanez) submissions on the recent Land Court ruling in Wells Fargo v. McKenna where the Land Court Judge Gordon Piper held that Massachusetts does not require the unity rule.

A final decision is expected in February or March.

Click here for the particular brief:

Real Estate Bar Ass’n (REBA) Brief      REBA Letter re. McKenna case

Land Title Ass’n Brief

WilmerHale Legal Services Brief

Appellee Henrietta Eaton Brief (citing this Blog)

Fannie Mae Brief

Federal Housing Finance Ass’n Brief

Ablitt Schofield PC Foreclosure Law Firm Brief

McDonnell Property Analytics Brief

Professor Adam Levitin Brief

National Foreclosure Defense Group Brief

Attorney Glenn Russell Foreclosure Defense Brief (Part 1 and Part 2)


Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigator and attorney. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.


  • Michael Swank


      I have been researching a Carrington Mortgage Loan Trust Series 2006 NC-5 for a friend for months I find challenging, Stanwich,Wells fargo, and JP Morgan very educational also how these MBS’s are so private with current mortgage pool composition information.  I am in beleif that something is not right,  I just have no proof….

  • Uri

    Fannie and Freddie filed an amicus in U.S. Bank N.A. v. Duvall, an Ohio Supreme Court case focusing on whether ownership of the promissory note is necessary to foreclose. The amicus contains an illuminating summary of Fannie and Freddie’s practices respecting the note, and identifies forms and documents that advocates for homeowners should be demanding in discovery, as well as highlighting relevant sections of the Fannie and Freddie servicing guides.

    Amicus brief here:

    It’s interesting that Fannie and Freddie decided to intervene as amici in a non-Fannie, non-Freddie case. The plaintiff appears to have been a CitiMortgage trust, trusteed by U.S. Bank and serviced by Wells Fargo.  Evidently, the case was never decided, and was instead dismissed as moot after the banks decided to pay off the mortgage.

  • Marley0685
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  • Marley0685

    Mike, what do you need?  Give me the name of the Trust and I will get
    you everything you need on the Trust including the distribution reports that demonstrate
    your purported loan has been paid off,  and the fact that you never owed a dime to
    begin with.

    This is it in a nutshell, in your purported mortgage
    contract, the true lender and the true deal was not disclosed to you as required
    by law. There is no debt. You owe nothing. There is no default because the
    undisclosed third party co-obligators are required to pay the loan payments,
    not you.

    Do not let them screw you with smoke and mirrors, because the
    law is the law and if you know the law and can apply it, you will survive this
    battle. Make no mistake about it, this is war, us against them, no surrender no

    In Patrick Henry’s impassioned speech to the last
    Continental Congress, just before the first shots rang out in the Revolutionary
    War he coined the immortal words, “Give Me Liberty or Give Me Death”. What most
    people do not know is that he also said, “what shall we do, wait until they
    take our last Gun” and so began the bloody battle.

    My mantra, what shall we do, wait until they take our last

    The battlefield are the Courts across the Nation, and it is
    my intent to leave the enemy where I find them, dead on the battlefield, we are
    taking no prisoners.  However, if by
    their own hand they wind up in prison for their corruption and pervasive fraud
    then so be it.

  • Marley0685

    Mike, the law is what they say is it. Who’s they, you know
    them, the scum that controls us through the control of our money.

    “Let me control a nation currency and I care not who creates
    their laws”. Rothschild.

  • Marley0685

    Richard, why didn’t you post the citizens Amicus Marley Brief?

    • I didn’t post it because it’s incomprehensible. You are free to share the link.

      • Marley0685

        Richard, what is incomprehensible about the Ponzi scheme
        that is the Securitization of Mortgage Backed Securities or the fraud that has
        been perpetrated to achieve that end?

        You are a lawyer and know basic 101 contract law. All material
        Facts must be disclosed, if not it violates the Statutes of fraud.  Fraud voids all agreements, even the most solemn

        When we get down to the bare bones of what really took place,
        it is really that simple, Fraud in the Factum and Fraud in the Inducement in
        every loan written since 2000. No body want’s to look this square in the
        face.  It is what it is, and they did
        what they did, period.

        This game is over.  The homeowner was just a means to an end for
        the originators of the pools, nothing more.

        You show me one valid connection to the debt and I will keep

        I’ll tell you what Richard, take a look at the docket in my
        case, read the Supplemental Complaint and my Reply to Defendant’s Opposition,
        to my Motion for Leave, and the exhibits I attached which is prima fascia
        evidence of the fraud as they are attempting to establish standing in the debt.

        I may not be a lawyer, and might not be able to articulate
        like one, but you do not have to be a rocket scientist to see the fraud or the

      • Marley0685

        Richard, one more thing; Ed Bloom told me that I raised
        serious issues the deserve serious consideration.  Ed is a very intelligent man and I respect him
        even though his position differs from mine.

        He did not suggest my arguments where incomprehensible nor
        has anyone else that are privy to them.

        • I meant no disrespect. I just couldn’t understand it from a legal perspective.

          • Marley0685

            I did not take your statement as being disrespectful. It is difficult
            for the mere layman to be concise. We have no training and I know better than anyone
            does, pro-se pleading are not easily followed.  However, that does not mean I do not have a
            full understanding of what has transpired.

            I do my best and hope the Courts read what I cite.

            Did you look at the exhibits in my case? If you did, you
            understand my position and need not remark here because those exhibits speak

            I was disappointed that you would include Ablitt’s Brief and
            not mine in light of Nosek.

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  • Michael Szwanke

    The Law is the Law!

    On a quest for information I am inquiring on the latest up to date Prospectus on a Pooling and Servicing Agreement after a 15D filing.  I been denied on simple information that is available for investors and potential investors.  Furthermore this public information is practically banned from the sucker that potentially is the backbone of the security by just paying his mortgage.

    Michael Szwanke

    Dorchester Ma

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