The Supreme Judicial Court issued its decision in Galiastro v. MERS and allowed homeowners on appeal to use “produce the note” arguments in their foreclosure defense cases. In Eaton v. Federal National Mortgage Association, the Court held that a foreclosing mortgagee must hold the promissory note at the time of a foreclosure sale. This decision, however, was prospective and applied only to foreclosures whose notices of sale were issued after the date of the decision: June 22, 2012. In Galiastro, the Court extended the “Eaton rule” to parties who had appeals pending in the Appeals Court when the Court decided Eaton.
More on this to come, but the Court’s decision makes sense. It would be unjust to allow Eaton to apply for that single case that made it to the Supreme Judicial Court but not for others who were similarly on appeal.