The Supreme Judicial Court (SJC) apparently is concerned about the potential consequences of ruling in Eaton v. Fannie Mae (see our prior post here) that a foreclosing mortgagee must hold both the mortgage and the underlying promissory note (see our discussion of this issue, and Land Court Judge Gordon H. Piper’s recent message to the SJC, here). On January 6, the SJC entered the following order in Eaton:
Having heard oral argument and considered the written submissions of the parties and the various amici curiae, the court hereby invites supplemental briefing on the points described below. Supplemental briefs shall not exceed fifteen pages and shall be filed on or before January 23, 2012. 1. It has been claimed that requiring a unity of the mortgage and the underlying promissory note, in order for there to be a valid foreclosure, would cloud any title that has a foreclosure in the chain of title, regardless of how long ago the foreclosure occurred. The parties are invited to address whether they believe that such a requirement would have such an effect, and if so, what legal or practical measures exist that might limit the consequences of such a requirement. 2. It also has been suggested that, if the court were to hold that unity of the mortgage and note is required under existing law, the court’s holding should be applied prospectively only. The parties are invited to indicate on what authority they believe (or do not believe) the court could make such a holding prospective only.
This order may indicate that the SJC was leaning toward requiring unity, but is now concerned about the disruption such a ruling might cause. This order is yet another twist in the winding road of cases addressing the “unity” issue.