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Volume I
Pages: 1-30
Exhibits: 0

COMMONWEALTH OF MASSACHUSETTS

WORCESTER, SS. SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT
*******************************
STEPHEN D. NIMS, ET AL *
Plaintiff *
*
v. * DOCKET NUMBER 1785CV01677
*
THE BANK OF NEW YORK MELLON, *
AS TRUSTEE FOR THE *
CERTIFICATE OF CWALT, INC., *
ALTERNATIVE LOAN TRUST *
2005-53T2, ET AL *
Defendant *
*******************************
HEARING
BEFORE THE HONORABLE SUSAN J. SULLIVAN

APPEARANCES:
For the Plaintiff:
Law Office of Glenn F. Russell, Jr.
38 Rock Street
Fall River, Massachusetts 02720
By: Glenn F. Russell, Esq.

For the Defendant, Bank of America:

Shechtman Halperin Savage, LLP
1080 Main Street
Pawtucket, Rhode Island 02860
By: John H. McCann, Esq.
(Appearances Continued)

Worcester, Massachusetts
June 19, 2018
Recording produced by digital audio recording system. Transcript
produced by Approved Court Transcriber, Donna Holmes Dominguez
 Page | 2

Appearances Continued:

For the Defendant, Bank of New York Mellon:

15 Wildwood Road
Stoughton, Massachusetts 02072
By: Robert M. Mendillo, Esq.
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I N D E X

WITNESS DIRECT CROSS REDIRECT RECROSS

None - Hearing
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1 P R O C E E D I N G S

2 (Court called to order.)

3 THE CLERK: Your Honor, the next matter is Stephen D.

4 Nims et al v. Bank of New York Mellon et al, Docket 2017-1677.

5 Counsel, if you could identify yourself for the Court,

6 please.

7 MR. RUSSELL: Good afternoon, Your Honor, Glen F, Russell

8 Jr. on behalf of the plaintiffs, the Nims, Stephen and Vickie

9 Nims.

10 THE COURT: Good afternoon, Attorney Russell.

11 MR. MCCANN: Good afternoon, Your Honor John McCann on

12 behalf of Bank of America N.A.

13 THE COURT: All right. And we have motions to dismiss on

14 behalf of Bank of America and also on behalf of Bank of New

15 York?

16 MR. MCCANN: May -- may I interject, Your Honor?

17 THE COURT: Sure.

18 MR. MCCANN: Counsel for Bank of New York Mellon just

19 used the restroom, so he’s -- he is here.

20 THE COURT: Oh.

21 MR. MCCANN: Sorry.

22 THE COURT: I’m on a roll, huh?

23 Have a seat and we’ll -- and we’ll wait for him because

24 yeah, we’re missing -- you guys are the closest to being

25 everybody here right now, so --

 Page | 5

1 MR. MENDILLO: Excuse me, Your Honor, I’m sorry.

2 THE COURT: That’s all right, sorry. I jumped the gun a

3 little bit, we’re jumping around.

4 Mr. MENDILLO: I was engaged.

5 THE COURT: That’s quite all right. Good afternoon.

6 MR. MENDILLO: Good afternoon, Robert Mendillo for

7 defendant BONY Mellon Bank.

8 THE COURT: Thank you.

9 All right so we have the motions to dismiss from Bank of

10 America and Bank of New York Mellon. I will leave it to you

11 as to who wants to begin but I’ll hear you’re -- I read

12 through the papers and I will hear your argument.

13 MR. MENDILLO: Okay. Your Honor, I’ll -- I’ll proceed --

14 THE COURT: Thank you.

15 MR. MENDILLO: -- if I may by agreement here.

16 Mellon was the foreclosing mortgagee in this case, and

17 our motion to dismiss is in this alleged wrongful foreclosure

18 case which was filed in October of last year in an effort to

19 prevent a foreclosure sale. It was then scheduled for

20 November, for October rather.

21 THE COURT: And it’s taken place; correct?

22 MR. MENDILLO: The foreclosure has taken place.

23 THE COURT: It did go forward in November.

24 MR. MENDILLO: Yes, Your Honor, the foreclosure took

25 place, as a matter of fact the deed into the bank was recorded
 Page | 6

1 last month in May.

2 So, the -- the complaint alleged two claims, number one

3 that Mellon did not have standing to foreclose. Number two

4 that the foreclosure was barred by the so-called obsolete

5 mortgage statute. Judge Campo held a hearing, issued a

6 decision holding two points. Number one, that my brother Mr.

7 Russell had essentially decided to step back from his standing

8 argument and wasn’t pursuing that and that -- and otherwise

9 ruled that Mellon had standing to foreclose.

10 And two, the Judge ruled that the obsolete mortgage

11 statute did not bar the foreclosure. There was a petition for

12 rehearing, which was denied, and as I mentioned, the sale went

13 ahead in November, we -- we fore -- we recorded our deed in

14 May and we’re here today to dismiss -- on a motion to dismiss

15 the case and I would submit to the Court that this is a

16 relatively easy case for the Court to decide for -- for three

17 reasons.

18 Number one, the facts are not in dispute and the

19 plausible facts, even interpreted in the light most favorable

20 to the Nims family doesn’t state a claim under existing law,

21 on the sole issue now which is whether the -- whether the

22 foreclosure was barred by the absolute -- by the obsolete

23 mortgage statute.

24 And number two, Judge Campo issued a six page decision

25 which I think just blueprints why there was no -- there is no

 Page | 7

1 claim here, which is essentially he determined that there was

2 no likelihood of success on the obsolete mortgage claim and --

3 and I think that decision in and of itself, in addition to

4 some other cases that I might provide to the Court, establish

5 why it was correct.

6 Your Honor may not be familiar with the obsolete mortgage

7 statute, it’s -- it’s a little bit obscure I think for anyone

8 who is recently on the bench or is -- or is practicing law for

9 that matter.

10 THE COURT: That is fair. I’ve done -- I’ve read your

11 papers and I -- that was -- I’m getting there, --

12 MR. MENDILLO: Okay.

13 THE COURT: -- but feel free to -- don’t worry about

14 making it too simple.

15 MR. MENDILLO: Very well, Your Honor.

16 So, let me just briefly recite the facts. The mortgage

17 was taken out in 2005. It was a thirty-year mortgage which

18 means it would mature in 2035.

19 The obsolete mortgage statute says that if a mortgage --

20 a mortgage cannot essentially be foreclosed upon more than

21 five years after the maturity date, which would push us out to

22 2040. So that’s -- and the background of the statute is that

23 if -- if banks, as they are -- sometimes want to do, neglect

24 to record a discharge and it’s a cloud on title, if it’s an

25 old mortgage, just by operation of law, they -- the -- people

 Page | 8

1 can say all right well the mortgage had to be discharged, it’s

2 -- it’s become obsolete. So that’s the framework and that’s

3 the sole issue before Your Honor now is whether this

4 foreclosure was barred by the obsolete mortgage statute. The

5 short answer is no, because we foreclosed in 2017 and we have

6 until 2040 to foreclose.

7 But in any event, mortgage in 2005 --

8 THE COURT: If I understand the argument that’s being

9 made is that a foreclosure, that date upon a foreclosure

10 becomes the maturity date or -- or a date of default becomes

11 the maturity date when you call it in for default purposes.

12 MR. MENDILLO: All right. So I think -- I think my

13 brother, Your Honor, is making two arguments.

14 One, that the date of the 4th, and the -- and the loan

15 went into default in 2010, that’s -- and then in 2012 they

16 filed for bankruptcy, they were discharged from and remain

17 discharged from any personal liability on the note, on the

18 promissory note for the mortgage, but as a result of

19 bankruptcy, the foreclosure proceedings can still proceed,

20 they remain in effect. So yes, I think Mr. Russell will argue

21 that the default back in 2010 is the -- triggered the statute

22 of limitations running.

23 That may be so on the note. The note went into default

24 in 2010, but as the cases have held the note and the mortgage

25 travel -- can travel separately, and they’re two separate

 Page | 9

1 remedies, which is why despite the fact that the Nims family

2 cannot be pursued on personal liability because they were

3 discharged in bankruptcy, bankruptcy nonetheless allows the

4 mortgage to pass through as the sole remedy left. So, there

5 is no case law that says that the obsolete mortgage statute

6 starts at the date of the default of the note, and Judge Campo

7 so ruled and there’s case law to that effect.

8 The other thing that he, I believe will argue, is that

9 well the note and the mortgage were accelerated in 2015.

10 Well, if you -- if you say that the acceleration of the

11 mortgage, which means everything becomes due, we’re declaring

12 everything is coming due, if -- if that triggers the obsolete

13 mortgage statute to run, which I think it doesn’t and there’s

14 no case law that has held that, then if the trigger event is

15 2015, the sale was in 2017, so as a matter of math we would

16 have had until 2020 and Judge Campo so ruled. He -- he said

17 that the obsolute -- I have trouble pronouncing that, the

18 obsolete mortgage statute does not -- whatever happened to the

19 note has no effect on the -- on the statute, number one.

20 And number two he specifically ruled in page six of his

21 decision, one of the last paragraphs, in any event the note

22 was accelerated, the mortgage was accelerated in 2015 so if

23 that starts a five year statute of limitations running under

24 the statute, well, it’s -- it’s plenty timely and so that --

25 so that is the issue.

 P a g e | 10

1 As I said, Mr. Russell can correct me if I’m wrong when

2 -- when he’s talking but I believe he’s waived the -- the

3 other issue about standing because of the Strawbridge decision

4 which is cited in Judge Campo’s decision, so the only issue is

5 under the statute.

6 Now, what Mr. Russell is going to argue that one of the

7 cases that Judge Campo relied upon, the Hayden case, from the

8 First Circuit which was issued in August of 2007, excuse me,

9 2017, he’s going to argue look what happened recently. The

10 First Circuit has vacated the Hayden decision in another case

11 because one of the Judges on the panel determined that he had

12 a conflict of interest at the time and therefore the -- the

13 First Circuit has decided to vacate his decision and to assign

14 it to a panel, presumably for re-argument and a new decision.

15 That decision will be, I predict and I’ll buy Mr.

16 Russell, who I’ve dealt with on a number of occasion, a beer

17 if he wins that, but I think I think they’re just going to

18 come out with a different panel reaching the same decision.

19 So I -- I think that as a matter of practicality it just has

20 no bearing on the matter.

21 Nonetheless in rec -- in -- in response to his recent

22 filings, I would like to tender to the Court, and I’ve

23 provided them to Mr. Russell, four decisions that even if you

24 put aside the First Circuit’s decision on Hayden which Judge

25 Campo relied upon there’s ample authority out there in

 P a g e | 11

1 Massachusetts, the District Court decision in Hayden, a

2 District Court decision in Junior, which followed Hayden, and

3 a Land Court decision in Stone v. Stone all decided before the

4 First Circuit decided Hayden and then a first -- excuse me, a

5 Land Court decision in Harrington v. Cenlar April of this

6 year, all of which come to the conclusion, I would submit,

7 that no matter what’s going on with the note, it doesn’t speed

8 up the kicking in of the obsolete mortgage statute. So if I

9 could tender these decision to the Court.

10 THE COURT: Thank you.

11 MR. MENDILLO: So here we are, let’s see seven or eight

12 -- eight years past the default, the foreclosure sale has

13 occurred, at this point I guess the claim would be that the

14 foreclosure sale is void. I respectfully submit that that

15 conclusion is -- is incorrect and the Court should dismiss the

16 case based upon Judge Campo’s reasoning in his decision, and

17 by the other cases that I have tendered to the Court, all of

18 which say that the obsolete mortgage statute simply does not

19 affect this matter because under the plain terms of the

20 statute we have until 2040 to foreclose. Thank you, Your

21 Honor.

22 THE COURT: Thank you.

23 MR. MCCANN: Good afternoon, Your Honor. Bank of

24 America’s motion to dismiss goes to count two which alleges a

25 statutory violation of Chap -- Chapter 93A and two violations

 P a g e | 12

1 and regulations. To begin with the claims are time barred

2 because Bank of America’s involvement with this matter ended

3 on June 1, 2013, and the statute of limitation is four years

4 so that -- the case wasn’t filed until after June 1st of 2017.

5 Second, they skipped the jurisdictional prerequisite of a

6 demand letter. While they claim that a demand letter was sent

7 to one of the other defendants, I don’t think that you can

8 just count on that as -- as the demand letter to Bank of

9 America in addition to which paragraph -- paragraph 123 of the

10 complaint they claim that paragraph 122 suffices as a demand

11 letter and I -- I don’t think that that is so.

12 There are no real allegation of fact with regard to

13 unfair or deceptive conduct regarding the -- the plaintiff’s

14 loan that -- that caused them damages. And as to the

15 regulatory claims, they would fail in any event because the

16 209 CMR 18.21A 2C relates to acts in the context of

17 foreclosure and Bank of America hasn’t foreclosed.

18 To the extent that the plaintiffs claim that Bank of

19 America failed to certify the chain of title of ownership,

20 such claim is basis as -- baseless as the regulation

21 contemplates that a third-party loan servicer will provide

22 this and not that every and all third-party loan servicers in

23 -- in -- that are involved will do this. It doesn’t seem

24 reasonable to assume that the regulation requires redundant

25 potentially confusing certifications.

 P a g e | 13

1 Also plaintiffs’ theory that Bank of America as the

2 master servicer under the PSA has any relevance to the -- the

3 plaintiffs’ claims as they’re neither parties to nor third-

4 party beneficiaries of the PSA and by its terms, the PSA says

5 that the -- that Bank of America’s obligations as master

6 servicer run to the depositor trustee and the certificate

7 holders not to the plaintiffs. And generally speaking as

8 third parties that are not third-party beneficiaries they lack

9 standing to assert rights under the agreement.

10 For all of these reasons, I would ask that the matter be

11 dismissed with prejudice.

12 THE COURT: Thank you, counsel.

13 MR. MCCANN: Thank you, Your Honor.

14 THE COURT: Mr. Russell.

15 MR. RUSSELL: Thank you, Your Honor. Thankfully my

16 memory hasn’t failed me yet because it’s quite a bit to -- to

17 remember.

18 If Your Honor would indulge me I’d like to start with the

19 preliminary injunction that was heard before the Honorable

20 Judge Campo. His ruling respectfully submitted totally relied

21 on Hayden, the Hayden matter. The -- the ruling in Hayden --

22 and one of the -- one of the -- I argued to -- I had to argue

23 to get those case -- there’s another case as well, I had to

24 argue to have the decision vacated and part of that argument

25 involved showing the First Circuit, and I believe I may have

 P a g e | 14

1 submitted that argument to Your Honor in a submission that I

2 sent to the Court on Friday.

3 THE COURT: Yes.

4 MR. RUSSELL: The argument is in there. Where I had to

5 make -- I had to present to the First Circuit, even if they

6 agreed with me, how the underlining merits would not foreclose

7 me, no pun intended, from advancing a different argument

8 before a new panel. They agreed with me because I noted that

9 the Hayden case devoted an entire paragraph to a very complex

10 situational examination of statute. The First Circuit stated

11 nothing, “In the text,” of the statute speaks to acceleration

12 of the mortgage. However the first -- however the -- the SJC

13 in looking at the same statute undertook statutory

14 construction in Deutsche Bank V. Fitchburg, and I have -- if

15 Your Honor would indulge me I have a few hand ups I’d like to

16 present as well if --

17 THE COURT: Sure.

18 MR. RUSSELL: May I --

19 And I’ve given one copy to one of my brothers, but I

20 didn’t know the other one was here, so I rectify that.

21 So in the package that’s got the statute 260, 33, so on

22 the face of that there’s two separate statute of limitations.

23 The legislature, due to the fact that there’s a lot of

24 properties that are affected with the, “Ibanez problem,”

25 sought to shorten the statute of limitations for a, “Obsolete

 P a g e | 15

1 mortgage,” and the reason why they wanted to do that is to

2 remove stagnant encumbrances upon title so that alienation

3 could occur. So the -- the legislature set out two separate

4 statutes of limitation and the SJC in Fitchburg, which is

5 right behind the statute in that paperclip, made that

6 examination and they undertook statutory construction and the

7 reason why that’s important, Your Honor, is my clients alleged

8 a declaratory judgment to examine the statute. The First

9 Circuit didn’t undertake statutory construction, they just

10 looked at the text.

11 Contrast that with the SJC case and they -- they talk

12 about -- they talk about in 2006 the statute was amended; the

13 statute sets forth both of those statues of limitations. In

14 order for it to fit in the five-year statute of limitations

15 there has to be no reference to a maturity date on the face of

16 the mortgage itself, and if that’s the case there has to be a

17 reference to the maturity date of the note in the mortgage and

18 if that’s the case, the maturity date of the note controls.

19 And at page 253 of the Fitchburg case it says, “We answer the

20 question presented by applying well settled rules and

21 statutory construction,” something the First Circuit did not

22 undertake.

23 “When the meaning of a statute is issued, we begin with

24 the canon of statutory construction, that the primary source

25 of insight into the intent of the legislature is a language of

 P a g e | 16

1 the statute. The language is an interpret -- is interpreted

2 in accordance with its plain meaning and if the language is

3 clear and ambiguous it is conclusive.”

4 The -- so skipping forward to page 255, as noted above in

5 a -- this long discussion before this -- this sentence, “As

6 noted above -- as note above because the scope of a mortgage

7 is necessarily tied to the reach of the underlining

8 obligation, considering the term maturity date of the

9 underlining obligation to be the term or maturity date of the

10 mortgage comports with the common law understanding of the

11 words mortgage and note.”

12 The SJC went on to state that they understood the term

13 maturity date as written within the statutory language of 260

14 Section 33 to mean the date when the debt falls due.

15 So the plaintiffs’ argument is based upon the fact that a

16 maturity date of a note may be accelerated, and -- and I

17 respectfully disagree with Judge Campo’s finding in his

18 preliminary injunction ruling where he stated that the

19 plaintiffs were relying on GLC 106-3-118A which talks about

20 the acceleration of a negotiable instrument. Plaintiffs made

21 no such claim. They are specifically relying on 260, 33. The

22 reason why the plaintiffs put forth Section 3, 118A was to

23 show that the maturity date could be accelerated because the

24 plain language of that statute says when looking at a note it

25 -- it -- the maturity date, or its accelerated maturity date,

 P a g e | 17

1 controls. There’s also a case in the packet I handed up to

2 Your Honor, Edward Ferreira v. Fernandes Yared. It’s a 1992

3 case. The Court looked at that and they determined, they

4 stated, that the active acceleration advances the date when

5 the debt falls due.

6 So the plaintiffs are making a cogent legal argument,

7 something that none of the cases that my brother handed up,

8 and as a matter of fact all of the case my brother handed up,

9 are reliant upon the Hayden matter, again, who never undertook

10 statutory construction, they just looked at the text of the

11 statute, they made no examination of what the SJC stayed and

12 respectfully submitted the SJC is the last word on a

13 pronouncement of Massachusetts State Law. The Federal Court

14 is only allowed to postulate if it is an undecided issue. So

15 the issue regarding acceleration is definitely an undecided

16 issue, it definitely has not been opined on.

17 So the fact remains that while my brother predicts that

18 it’s going to be a cake walk at the First Circuit, I promise

19 you that it’s not going to be a cake walk and if -- and I’m

20 seeking to actually submit new briefing to bring some of this

21 discussion into the First Circuit.

22 My brother also states that I stepped back from the

23 standing argument. That was specifically with guard -- with

24 regard to the trust argument. I will tell you that I still

25 maintain that that is a plausible argument, but I must yield

 P a g e | 18

1 until some decision comes along to prove otherwise because my

2 brother states that I’m seeking to enforce a contract that is

3 not mine. The only contract at issue here, Your Honor, is my

4 plaintiffs’ mortgage contract. They have a -- they definitely

5 have standing to challenge an entity that seeks to step into

6 the shoes of the original lender.

7 The financial bar twists this argument to say that you’re

8 trying to enforce a contract. I’m not seeking any financial

9 remedy, I’m not seeking any benefit from that, all I’m asking

10 is, in order for them to state that they have a right to

11 enforce the note and mortgage they have to show they have

12 contractual privity with my client. So that -- so but I --

13 THE COURT: But we are in agreement for today that the --

14 these -- for our purposes the standing argument is --

15 MR. RUSSELL: Yes.

16 THE COURT: Okay.

17 MR. RUSSELL: -- with regard to the --

18 THE Court: All right. So you don’t need to spend more

19 time on it then.

20 MR. RUSSELL: And I apologize, Your Honor.

21 Just with regard to the trust, but there was another

22 argument with regard to Mortgage Electronic Registration

23 Systems. That is also an undecided matter before this -- the

24 SJC. There’s been two cases that have gone to the SJC, one of

25 them mine, Galiastro v. MERS, the other case was Eaton v.

 P a g e | 19

1 Federal National Mortgage Association and both of those cases

2 -- in the Eaton case at note twenty-nine the Court stated, the

3 SJC, “We aren’t certain with the term nominee means within the

4 mortgage context however it may have some bearing on the

5 agency question far from a pronouncement.” The Galiastro case

6 along three years later, they reiterated that and in fact in

7 the Galiastro case MERS admitted or -- or did -- failed to

8 challenge the fact that they were not an agent. Only on

9 appeal did they say that they were an agent and the SJC again

10 reiterated we’re not sure what -- what a nominee means.

11 That’s an open question in Massachusetts law and the

12 reason why I tell you that, Your Honor, is one of the cases I

13 handed up to you, another First Circuit matter, the Baldinelli

14 case. I’ve put the order from Judge Young, it’s right on the

15 -- the second paper clip, and he continues to believe that

16 MERS cannot validly assign mortgages within the Commonwealth.

17 That issue was never raised in either Galiastro or Eaton

18 because in those matters MERS was trying to foreclose. And I

19 understand this is a quite convoluted, complex argument and --

20 but note ten of Eaton talks about the fact that a mortgage

21 holder by itself cannot take any affirmative autonomous act

22 and now post-Eaton MERS could not be a mortgagee, at least the

23 way the law stands now, because MERS admits it does not own

24 notes, that’s at note twenty-seven of Eaton. It can also be

25 found in Cullhane v. Aurora Loan Services of Nebraska 708 F3D

 P a g e | 20

1 282 at page two eighty-seven. They talk about the same thing,

2 they’re like MERS does not own notes. The SJC in Eaton said

3 in order to be a mortgagee you need to be a note owner or an

4 authorized agent of the note owner and have the right to

5 enforce the security instrument.

6 So the plaintiffs have an argument, and it’s in the

7 pleadings, in their complaint that states that MERS is not a

8 note owner and it is currently unknown whether they are an

9 agent let alone an authorized agent, and the reason --

10 THE COURT: And these -- again, counsel, these are

11 arguments that would go to standing but -- but that arg --

12 that position has been abandoned, I think we agree on that.

13 MR. RUSSELL: With standing with regards to -- to MERS, I

14 didn’t back off the argument on MERS, I backed off the

15 argument related to the trust argument, and the MERS argument

16 is a live argument because the decision by Judge Young, he

17 stated to the plaintiff in that matter that he wanted to or he

18 asked the defendants in that matter to certify questions of

19 law to the SJC, which they declined, but in his ruling he

20 suggested that I do so and I filed an appeal to that matter

21 and it’s behind the order from Judge Young. I submitted a

22 motion to certify questions of law to the SJC regarding MERS,

23 twelve questions, it’s been pending since New Year’s Eve.

24 THE COURT: Okay.

25 MR. RUSSELL: So on that basis I’ll --

 P a g e | 21

1 THE COURT: As to the matters before this Court today --

2 MR. RUSSELL: I apologize, Your Honor?

3 THE COURT: I’m -- I’m just -- the -- the arguments that

4 you’re making about MERS, in -- we have two motions to dismiss

5 before us today, it’s my understanding that argument

6 pertaining to standing aren’t relevant to the motions to

7 dismiss today.

8 MR. RUSSELL: And that’s -- and that’s -- that’s what I’m

9 trying reit -- reiterate, Your Honor. The standing argument

10 was related only to the trust argument, it had nothing to do

11 with MERS. I backed off the trust argument.

12 THE COURT: Okay.

13 MR. RUSSELL: So MERS is a different argument, that goes

14 to the assignment of mortgage, that is completely outside the

15 -- the trust argument. And that particular fact goes to -- to

16 209 CMR 18.21A2C, that’s Exhibit J to the complaint, and my

17 brother from Bank of America said that I believe, and he can

18 correct me if I’m wrong, that it -- it wouldn’t seem

19 reasonable to have someone discuss the chain of title to the

20 note, and if I -- if I am miss-quoting him I apologize and he

21 can correct, Your Honor, but the plain language of that

22 regulation states -- it -- it states that the mortgage

23 servicer acting on behalf as agent, right, of the -- of Bank

24 of New York Mellon in foreclosing, is to provide a chain of

25 title to certify, it says certify a chain of title to the note

 P a g e | 22

1 and mortgage. The certification supplied to the plaintiffs

2 very clearly makes no certification at all regarding the note,

3 it just says that the Bank of New York Mellon is the holder of

4 the note. A copy -- it says basically, is the owner of the

5 mortgage and note.

6 Now again, Exhibit J talking about 18.21A2C it

7 specifically states you need to provide a chain of title

8 certified under oath and a copy of the note. That’s a clear

9 failure to follow that regulation, but more importantly that

10 regulation talks about the fact that that has to be sent to

11 the borrower along with the statutory notice of foreclosure

12 under GLC 244, 14 and the plaintiffs would argue that’s

13 actually part of the mandatory notice to the borrower, which

14 is required under statute.

15 So the failure to provide that chain of title to the note

16 in particular would impact the validity of this -- the notice

17 and when using the statute the notice is of primary importance

18 and it’s cited to in U.S. Bank v. Ibanez 458 Mass 637, a case

19 that I also argued before the SJC.

20 So, while my brother states that -- that certification is

21 of no moment, that 209 CMR 18.21A2C is authorized by GLC 244,

22 Section 35G and under that subsection it states that the

23 legislature allowed the Division of Banks to undertake setting

24 regulations to more fully flush out the meaning of that

25 particular statute. So one of those regulations is this one

 P a g e | 23

1 and I find it curious that the Division of Banks would

2 specifically reference that this should be sent along with the

3 statutory notice, that’s a clear indication that they want the

4 borrowers to be informed as to who is the owner of the loan.

5 And the thing I want to talk about, Your Honor, is all these

6 cases talk about are, like, cases that are saying, oh, we’re

7 trying to void the note, we’re trying to void the mortgage.

8 The complaint here merely states a declaratory judgement that

9 they can’t use the statute. If Your Honor ruled for my

10 client, that doesn’t mean they get a free house, they could do

11 it all over again, but if they haven’t met the statutory

12 requirements they can’t use the statute, that’s the difference

13 in the argument. And all of these cases get grouped together

14 as if everyone makes the same argument by citation to other

15 cases, especially on a 12(b)(6) ruling.

16 My brother also talked about that Judge Campo made a

17 ruling under Rule 65. Now obviously Your Honor knows well

18 more than I do, it’s a completely different argument here

19 Iannacchino v. Ford Motor Company, we just have to make a

20 plausible argument. The arguments under 260, 33 are clearly a

21 legally cogent. I’m not just making stuff up, I’m not just

22 saying oh, this is the way it should be, I’m citing case law,

23 I’m citing, you know, cogent legal argument as to why this is

24 plausible.

25 I -- so in Iannacchino it states that even if a Judge

 P a g e | 24

1 subjectively believes that the outcome, the plaintiff’s chance

2 of winning unlikely, or doubtful in fact is the exact

3 language, that does not come into the analysis. Is it

4 plausible, does it make sense, is it just speculation? No

5 this a legal -- legally cogent argument and I’m making these

6 arguments on behalf of someone. My client’s wife is

7 physically compromised, and these people couldn’t even wait

8 until the complaint was dismissed to move forward on the

9 auction. So now these people sit at home every single day

10 waiting for someone to come in and throw them out of the house

11 while they have active litigation challenging their title and

12 that is why I do these cases, and a lot of times I never get

13 paid, is because no one speaks up for the homeowner. They

14 come in here and it’s just everybody makes the same argument,

15 it’s all the same, it’s not the same. How could my client’s

16 assignment of mortgage be like anyone else’s, how could all

17 the facts and circumstances be the same in every single case?

18 They can’t be, and all I ask is to look at the pleadings and

19 the arguments that I made specifically on behalf of my client

20 and not merely replicate findings from someone else because

21 those were other people’s pleading. So we would have to take

22 those pleadings and line them up next to mine and say geez,

23 amazing, they’re exactly the same, and I promise you that’s

24 not the case.

25 So I -- I appreciate Your Honor’s indulgence and I

 P a g e | 25

1 apologize for getting animated, but one of the things -- last

2 thing too is after Judge Campo’s ruling I sent a motion for

3 reconsideration in and I specifically identified issues that

4 he, respectfully submitted, made a mistake on. He states, and

5 my brother quoted it, that the note was -- or the loan was

6 accelerated in 2015, that’s incorrect. The complaint, I

7 believe it’s paragraph seventy-two, seventy-for, talks about

8 -- the argument was it was accelerated in 2011 and I wrote

9 that to him in his -- in the reconsideration and his response

10 was, denied, see Hayden, that was basically the ruling on the

11 reconsideration even though I told him some of the things we

12 talked about with regard to the obsolete mortgage statute.

13 So again, this is a -- this is a 12(b)(6) ruling. This

14 is -- the -- the Bank of New York Mellon plaintiff put in a

15 two page, “memorandum” feeling that that’s sufficient to -- to

16 divest someone of their home, and a handicapped or --

17 individual. Didn’t even discuss the specific implausibility

18 of the plaintiff’s arguments nowhere, it just says look at

19 these other cases and those other cases are all reliant on

20 Hayden.

21 The other case that my brother talked about, the Stone v.

22 Stone case, I also talked about in the reconsideration sent to

23 Judge Campo. That case is inapposite, that case there is no

24 maturity date listed in the mortgage whatsoever, so that

25 placed that particular mortgage in the thirty-five year

 P a g e | 26

1 category unlike the mortgage here, which is Exhibit B to the

2 complaint, and I believe it’s paragraph D, it specifically

3 references the -- the note and it talks about the maturity

4 date of the note being -- it’s -- it’s paragraph E, and it

5 says August 1, 2005. What’s also funny is paragraph twenty-

6 two of the mortgage it’s entitled, remedies, or it says

7 acceleration. The remedy for acceleration is foreclosure.

8 The plaintiffs received numerous notices of foreclosure. They

9 have one from 2011. I have one with me, Your Honor, from 2012

10 that indisputably shows that they were trying to foreclose on

11 this people in 2012 at a minimum. That’s an acceleration.

12 That means that the date when the debt fall due -- fell due,

13 it was immediately due and payable in 2012.

14 So based on the SJC ruling in Fitchburg it is more than a

15 cogent legal argument to state that where a note maturity date

16 can be accelerated, and the SJC was clear that the statute

17 language talking about “maturity date” refers to the

18 underlying debt. It’s a statutory and case law fact that a

19 maturity date can be accelerated, and therefore it’s a

20 plausible argument to state that that’s when the date -- the

21 -- the obsolete mortgage statute began to tick.

22 There’s a savings clause also in 260, 33. All they had

23 to do was file for an extension and the SJC talked about that

24 in Fitchburg because the argument was that it was

25 unconstitutional and the SJC responded by saying no, you have

 P a g e | 27

1 an alternative, you could easily just file a -- an extension

2 and you get another five years. That wasn’t done in this

3 case.

4 Again, Your Honor, I have -- I’ve got documents here that

5 can show you that in fact not only in 2011 but in 2012 the --

6 they definitely moved to foreclosure because they got a

7 foreclosure notice and that -- by the mortgage document itself

8 that’s appended to the complaint under authority of Mass Rule

9 Civil Procedure Rule 10C became part of the plaintiff’s

10 pleadings for all purposes including the motion to dismiss.

11 So on -- and again, I -- I -- I’m -- I apologize for

12 taking up Your Honor’s -- this much time and thank you very

13 much for the indulgence.

14 THE COURT: Thank you. Thanks for the additional case

15 law that you brought in.

16 Any response did you --

17 MR. MENDILLO: If I could have sixty seconds, Your Honor.

18 THE COURT: I can always give you sixty seconds.

19 MR. MENDILLO: Thank you.

20 I think I have five points, number one, Mr. Russell

21 argues that Judge Campo relied completely on Hayden, not true,

22 Your Honor has probably read his decision, will read it again,

23 it’s simply not true. He distinguished the SJC’s decision in

24 Deutsche Bank.

25 Two, he said that the four cases I handed up all rely

 P a g e | 28

1 upon Hayden, not true. Hayden in the District Court, Junior

2 in the District Court, Stone in the Land Court were all

3 decided before the First Circuit decided Hayden on August 7,

4 2017. After that decision by -- in -- in the First Circuit I

5 handed up, the fourth case is Harrington v. Cenlar from the

6 Land Court, decided in 2018, it did cite Hayden.

7 Three, MERS, I just looked at his -- Mr. Russell’s

8 opposition to our motion to dismiss, eighteen pages, no

9 mention of MERS whatsoever, no mention of the Division of

10 Banks whatsoever. Any issues of standing have been waived,

11 waived before Judge Campo and waived by not briefing them.

12 Four, the loan was accelerated in 2005, that’s what Judge

13 Campo determined. Exhibit 4 to our opposition to the

14 preliminary injunction, which we incorporate into our motion

15 to dismiss, has the acceleration letter. That is when the

16 acceleration of the note and the mortgage occurred in 2015

17 even though there were defaults previously.

18 My last point is that I heard Mr. Russell say that Judge

19 Campo in denying the motion for reconsideration said see

20 Hayden, he didn’t, it just said just motion for

21 reconsideration denied.

22 So, for those reasons, and the reasons previously stated

23 I think this is a simple question under the obsolete mortgage

24 statute and I -- the case should be dismissed. Thank you,

25 Your Honor.
 P a g e | 29

1 MR. RUSSELL: Your Honor, if I may have thirty-seven

2 seconds. I just want to clarify that I didn’t say that the

3 certification required by 209 CMR 18.21A2C was of no moment, I

4 said it was of no moment to Bank of America because it wasn’t

5 the servicer at the time of the foreclosure, and they can’t be

6 roped in because they were the master servicer under the PSA

7 because they have no standing to raise that claim. Thank you,

8 Your Honor.

9 THE COURT: Thank you.

10 Okay. Thank you all for your time this afternoon.

11 MR. MCCANN: Thank you, Your Honor.

12 MR. MENDILLO: Thank you.

13 MR. RUSSELL: Thank you, Your Honor.

14 THE COURT: I will be taking it under advisement;

15 surprise.

16

17

18

19

20

21

22

23

24

25 (Adjourned)
 The Commonwealth of Massachusetts
OFFICE OF COURT MANAGEMENT, Transcription Services

AUDIO ASSESSMENT FORM

For court transcribers: Complete this assessment form for each volume of transcript
produced, and include it at the back of every original and copy transcript with the certificate
page, word index, and CD PDF transcript.

TODAY’S DATE:_January 17, 2019 TRANSCRIBER NAME:_Donna H Dominguez

CASE NAME: Nims et al v BONY et al CASE NUMBER: 1785CV01677

RECORDING DATE June 19 2018 TRANSCRIPT VOLUME:_ 1_ OF__1 __

(circle one) TYPE: CD TAPE QUALITY: EXCELLENT GOOD FAIR POOR

(circle all that apply) ISSUES (include time stamp):

background noise time stamp:___________________________

low audio

low audio at sidebar

simultaneous speech __________

speaking away of microphone __________________

other:_______________ time stamp:____________________________

____________________ _____________________________________

____________________ _____________________________________

____________________ _____________________________________

COMMENTS:_
 P a g e | 30

Certificate of Accuracy

I, Donna Holmes Dominguez, an Approved Court

Transcriber, do hereby certify that the foregoing is a true

and accurate transcript of the audio recording provided to me

by the Worcester County Superior Court regarding proceedings

in the above-entitled matter.

I, Donna Holmes Dominguez, further certify that the

foregoing is in compliance with the Administrative Office of

the Trial Court Directive on Transcript Format.

I, Donna Holmes Dominguez, further certify that I

neither am counsel for, related to, nor employed by any of the

parties to the action in which this hearing was taken, and

further that I am not financially nor otherwise interested in

the outcome of the action.

Donna H. Digitally signed by
Donna H. Dominguez

Dominguez Date: 2019.01.17

________________________________________
09:47:54 -05'00'

Donna Holmes Dominguez, ACT, CET

Notary Public, Commission Expires 5-17-24

January 17, 2019 _______________

Date

(781) 575-8000___________________

donna@dhreporting.com
DH Reporting Services, Inc. (781) 575-8000
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1 458 [1] 22:18 afternoon [7] 4:7,10,11 5: 18,20,23 24:5,14 25:8 26:
1 [3] 12:3,4 26:5 5,6 11:23 29:10 15,20,24
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10c [1] 27:9 637 [1] 22:18 agent [6] 19:8,9 20:4,9,9 21:3 23:20 24:6,19 25:18
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2007 [1] 10:8
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Sheet 1 1 - begin
DH Reporting Services, Inc. (781) 575-8000
behalf [7] 4:8,12,14,14 21: category [1] 26:1 comes [1] 18:1
23 24:6,19 caused [1] 12:14 coming [1] 9:12
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benefit [1] 18:9 certified [1] 22:8 26:2 27:8 day 24:9
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DH Reporting Services, Inc. (781) 575-8000
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eighty-seven [1] 20:1 family [2] 6:20 9:1 fully [1] 22:24 honorable [1] 13:19
either [1] 19:17 far [1] 19:5 funny [1] 26:5 house [2] 23:10 24:10
electronic [1] 18:22 favorable [1] 6:19 however [3] 14:12,12 19:4
else’s [1] 24:16 federal [2] 17:13 19:1 G
encumbrances [1] 15:2 feel [1] 7:13 galiastro [4] 18:25 19:5,7,
I
ended 12:2
[1] feeling 25:15
[1] 17 i’d [2] 13:18 14:15
enforce [4] 18:2,8,11 20:5 fell [1] 26:12 geez [1] 24:22 i’ll [5] 5:11,13,13 10:15 20:
engaged [1] 5:4 fernandes [1] 17:2 generally [1] 13:7 25
entire [1] 14:9 ferreira [1] 17:2 getting [2] 7:11 25:1 i’m [19] 4:22 5:1 7:11 10:1
entitled 26:6
[1] few 14:15
[1] give [1] 27:18 17:19 18:2,8,9,9 21:3,3,8,
entity [1] 18:5 file [2] 26:23 27:1 given [1] 14:19 18 23:21,21,22,23 24:5 27:
especially [1] 23:15 filed [4] 5:18 8:16 12:4 20: glc [3] 16:19 22:12,21 11
essentially [3] 6:7 7:1,20 20 glen [1] 4:7 i’ve [7] 7:10,10 10:16,22 14:
Sheet 3 discharged - i’ve
DH Reporting Services, Inc. (781) 575-8000
19 19:14 27:4
iannacchino [2] 23:19,25
ibanez [1] 22:18
identified [1] 25:3
identify 4:5[1]
immediately [1] 26:13
impact 22:16
[1]
implausibility [1] 25:17 judges [1] 10:11
importance [1] 22:17
important 15:7 [1]
importantly [1] 22:9
inapposite 25:23 [1]
including [1] 27:10
incorporate 28:14 [1]
incorrect [2] 11:15 25:6
indication [1] 23:3
indisputably [1] 26:10
individual [1] 25:17
indulge 13:18 14:15
[2]
indulgence [2] 24:25 27:
13
informed [1] 23:4
injunction [3] 13:19 16:18
28:14
insight [1] 15:25
instrument 16:20 20:5
[2]
intended [1] 14:7
intent [1] 15:25
interest [1] 10:12
interject [1] 4:16
interpret 16:1 [1]
interpreted [2] 6:19 16:1
involved 12:23 13:25
[2]
involvement [1] 12:2
issue [10] 6:21 8:3 9:25 10:
3,4 17:14,15,16 18:3 19:17
issued [4] 6:5,24 10:8 15:
23
issues [2] 25:3 28:10
it’s [31] 5:21 7:7,7,24,24 8:
1,2 9:24,24 13:16 17:2,18,
19 19:14 20:6,21,23 21:5
22:18 23:18 24:14,15,15
25:7 26:2,4,4,6,18,19 27:
23
itself [4] 7:3 15:16 19:21
27:7
J line [1] 24:22
john 4:11
[1]
Sheet 4
jr [1] 4:8 litigation [1] 24:11 21:4,11,13 28:7,9
judge [22] 6:5,10,24 9:6,16 little [2] 5:3 7:7 met [1] 23:11
10:4,7,24 11:16 13:20 16: live [1] 20:16 might [1] 7:4
17 19:14 20:16,21 23:16, loan [7] 12:14,21,22 19:25 mine [3] 18:3,25 24:22
25 25:2,23 27:21 28:11,12, 23:4 25:5 28:12 minimum [1] 26:11
18 long [1] 16:5 missing [1] 4:24
judgement 23:8 [1] look 10:9 24:18 25:18
[3] miss-quoting [1] 21:20
looked [4] 15:10 17:3,10 mistake [1] 25:4
judgment [1] 15:8 28:7 moment [3] 22:21 29:3,4
jumped 5:2 [1] looking 14:13 16:24
[2] month [1] 6:1
jumping [1] 5:3 lot [2] 14:23 24:12 mortgage [52] 6:5,10,23 7:
june 12:3,4
[2] 2,6,16,17,19,19,20,25 8:1,4,
junior [2] 11:2 28:1
M 7,18,24 9:4,5,9,11,13,18,22
jurisdictional 12:5 [1] made [7] 8:9 15:5 16:20 17:
11:8,18 14:12 15:16,17 16:
11 23:16 24:19 25:4 6,10,11 18:4,11,22 19:1,4,
K maintain [1] 17:25 20 21:14,22 22:1,5 23:7 24:
kicking [1] 11:8 mandatory [1] 22:13 16 25:12,24,25 26:1,6,21
knows [1] 23:17 mass [2] 22:18 27:8 27:7 28:16,23
massachusetts [3] 11:1
L 17:13 19:11
mortgage,” [1] 15:1
mortgagee [3] 5:16 19:22
lack [1] 13:8 master [3] 13:2,5 29:6
20:3
land [4] 11:3,5 28:2,6 math [1] 9:15
mortgages [1] 19:16
language [8] 15:25 16:1,2,
matter [18] 4:3 5:25 7:9 9:
most [1] 6:19
13,24 21:21 24:3 26:17 15 10:19,20 11:7,19 12:2
motion [10] 5:17 6:14 11:
last [6] 5:18 6:1 9:21 17:12
13:10,21 17:8,9 18:23 19:
24 20:22 25:2 27:10 28:8,
25:1 28:18 13 20:17,18,20
14,19,20
later [1] 19:6 matters [2] 19:18 21:1
motions [4] 4:13 5:9 21:4,
law [15] 6:20 7:8,25 9:5,7, mature [1] 7:18
6
14 16:10 17:13 19:11,23 maturity [17] 7:21 8:10,11 motor [1] 23:19
20:19,22 23:22 26:18 27: 15:15,17,18 16:8,9,13,16,
move [1] 24:8
15 23,25,25 25:24 26:3,15,19
moved [1] 27:6
least [1] 19:22
mccann [8] 4:11,11,16,18,
much [2] 27:12,13
leave [1] 5:10 21 11:23 13:13 29:11
must [1] 17:25
left [1] 9:4
mean [2] 16:14 23:10
legal [4] 17:6 23:23 24:5 meaning [3] 15:23 16:2 N
26:15 22:24 n.a 4:12
[1]
legally [2] 23:21 24:5
means [5] 7:18 9:11 19:3, national [1] 19:1
legislature [4] 14:23 15:3, 10 26:12 nebraska [1] 19:25
25 22:23 mellon [10] 4:4,18 5:7,10, necessarily [1] 16:7
lender [1] 18:6
16 6:3,9 21:24 22:3 25:14 need [3] 18:18 20:3 22:7
let’s [1] 11:11 memory [1] 13:16 neglect [1] 7:23
letter [5] 12:6,6,8,11 28:15 mendillo [15] 5:1,4,6,6,13, negotiable [1] 16:20
liability [2] 8:17 9:2 15,22,24 7:12,15 8:12 11: neither [1] 13:3
light [1] 6:19 11 27:17,19 29:12 never [3] 17:9 19:17 24:12
likelihood [1] 7:2 mention 28:9,9 [2] new [11] 4:4,14,18 5:10 10:
limitation [2] 12:3 15:4
mentioned [1] 6:12 14 14:8 17:20 20:23 21:24
limitations [6] 8:22 9:23 merely [2] 23:8 24:20 22:3 25:14
14:22,25 15:13,14 merits [1] 14:6 next [2] 4:3 24:22
mers [17] 18:25 19:7,16,18, nims [5] 4:4,8,9 6:20 9:1
listed [1] 25:24
22,23 20:2,7,13,14,15,22 nominee [2] 19:3,10
i’ve - nominee
DH Reporting Services, Inc. (781) 575-8000
none [1] 17:7
nonetheless [2] 9:3 10:
21
nor [1] 13:3
note [35] 8:17,18,23,23,24
9:6,9,19,21 11:7 15:17,18
16:6,16,24 18:11 19:2,20,
24 20:3,4,8 21:20,25 22:2,
4,5,8,15 23:7 25:5 26:3,4,
15 28:16
note.” [1] 16:11
noted [3] 14:8 16:4,6
notes [2] 19:24 20:2
nothing [2] 14:11 21:10
notice [6] 22:11,13,16,17
23:3 27:7
notices [1] 26:8
november [3] 5:20,23 6:
13
nowhere [1] 25:18
number [9] 6:2,3,6,18,24
9:19,20 10:16 27:20
numerous [1] 26:8
O pages [1] 28:8
oath [1] 22:8
obligation [2] 16:8,9
obligations [1] 13:5
obscure [1] 7:7
obsolete [16] 6:4,10,22 7:
2,6,19 8:2,4 9:5,12,18 11:8,
18 25:12 26:21 28:23
obsolute [1] 9:17
obviously [1] 23:17
occasion [1] 10:16
occur [1] 15:3
occurred [2] 11:13 28:16
october [2] 5:18,20
okay [6] 5:13 7:12 18:16
20:24 21:12 29:10
old [1] 7:25
one [23] 6:2,6,18 8:14 9:19,
21 10:6,11 12:7 13:22,22
14:19,19,20 18:24 19:12
22:25,25 24:13 25:1 26:9,9
27:20
only [6] 10:4 17:14 18:3 19:
8 21:10 27:5
open [1] 19:11
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Sheet 5
opined [1] 17:16 placed [1] 25:25 pronouncing [1] 9:17
opposition [2] 28:8,13 plain 11:19 16:2,24 21: properties [1] 14:24
[4]
order [6] 4:2 15:14 18:10 21 prove [1] 18:1
19:14 20:3,21 plaintiff [2] 20:17 25:14 provide [5] 7:4 12:21 21:
original 18:6
[1] plaintiff’s 12:13 24:1
[4] 24 22:7,15
other [12] 7:4 9:8 10:3 11: 25:18 27:9 provided [1] 10:23
17 12:7 14:20 18:25 23:14 plaintiffs [11] 4:8 12:18 psa [4] 13:2,4,4 29:6
24:21 25:19,19,21 13:7 16:19,20,22 17:6 20:6 pun [1] 14:7
otherwise [2] 6:8 18:1 22:1,12 26:8 purposes [3] 8:11 18:14
out 7:17,21 10:18,25 15: plaintiffs’ 13:1,3 16:15 27:10
[7] [4]
3 22:24 24:10 18:4 pursued [1] 9:2
outcome 24:1 [1] plausible 6:19 17:25
[6] pursuing [1] 6:8
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over 23:11
[1] pleading 24:21
[1] put [4] 10:24 16:22 19:14
own [2] 19:23 20:2 pleadings [4] 20:7 24:18, 25:14
owner [5] 20:3,4,8 22:4 23: 22 27:10
4 please [1] 4:6
Q
ownership [1] 12:19 plenty [1] 9:24 question [4] 15:20 19:5,
point [2] 11:13 28:18 11 28:23
P points [2] 6:6 27:20 questions [3] 20:18,22,23
package 14:21[1]
position [1] 20:12 quite 5:5 13:16 19:19
[3]
packet [1] 17:1 post-eaton 19:22 [1] quoted [1] 25:5
page [6] 6:24 9:20 15:19
16:4 20:1 25:15
postulate [1] 17:14 R
potentially [1] 12:25
practicality [1] 10:19
raise [1] 29:7
paid [1] 24:13 raised [1] 19:17
practicing [1] 7:8
panel [4] 10:11,14,18 14:8 predict [1] 10:15 rather [1] 5:20
paper [1] 19:15 reach [1] 16:7
predicts [1] 17:17
paperclip [1] 15:5 reaching [1] 10:18
prejudice [1] 13:11
papers [2] 5:12 7:11 read [4] 5:11 7:10 27:22,22
preliminary [3] 13:19 16:
paragraph [8] 12:9,9,10 real [1] 12:12
18 28:14
14:9 25:7 26:2,4,5 re-argument [1] 10:14
prerequisite [1] 12:5
paragraphs [1] 9:21 reason [5] 15:1,7 16:22 19:
present [2] 14:5,16
part [3] 13:24 22:13 27:9 12 20:9
presented [1] 15:20
particular [4] 21:15 22:16, presumably [1] 10:14 reasonable [2] 12:24 21:
25 25:25 19
prevent [1] 5:19
parties [2] 13:3,8 reasoning [1] 11:16
previously [2] 28:17,22
party [1] 13:4 reasons 6:17 13:10 28:
[4]
primary [2] 15:24 22:17
pass [1] 9:4 22,22
privity [1] 18:12
past [1] 11:12 rec [1] 10:21
probably [1] 27:22
payable [1] 26:13 received [1] 26:8
problem,” [1] 14:24
pending [1] 20:23 recent [1] 10:21
procedure [1] 27:9
people [4] 7:25 24:7,9 26: proceed [2] 5:13 8:19 recently [2] 7:8 10:9
11 recite [1] 7:16
proceedings [1] 8:19
people’s [1] 24:21 reconsideration [6] 25:3,
promise [2] 17:18 24:23
personal [2] 8:17 9:2 9,11,22 28:19,21
promissory [1] 8:18
pertaining [1] 21:6 record [1] 7:24
pronouncement [1] 17:
petition [1] 6:11 recorded [2] 5:25 6:13
13
physically [1] 24:7 rectify [1] 14:20
pronouncement.” [1] 19:
place [3] 5:21,22,25 redundant [1] 12:24
5
none - redundant
DH Reporting Services, Inc. (781) 575-8000
reference [3] 15:15,17 23: roll [1] 4:22 set [1] 15:3 start [1] 13:18
2 roped [1] 29:6 sets [1] 15:13 starts [2] 9:6,23
references [1] 26:3 rule [3] 23:17 27:8,9 setting [1] 22:23 state [6] 6:20 16:12 17:13
refers [1] 26:17 ruled [6] 6:9,10 9:7,16,20 settled [1] 15:20 18:10 26:15,20
regard 12:12 17:24 18: 23:9
[6] seven [1] 11:11 stated [6] 14:10 16:18 17:
17,21,22 25:12 rules [1] 15:20 seventy-for [1] 25:7 4 19:2 20:17 28:22
regarding 12:13 17:15 ruling [10] 13:20,21 16:18
[4] seventy-two [1] 25:7 states [11] 17:22 18:2 20:7
20:22 22:2 20:19 23:15,17 25:2,10,13 shoes [1] 18:6 21:22,22 22:7,20,22 23:8,
regards [1] 20:13 26:14 short [1] 8:5 25 25:4
registration [1] 18:22 run 9:13 13:6
[2] shorten [1] 14:25 statues [1] 15:13
regulation [5] 12:20,24 running [2] 8:22 9:23 show [3] 16:23 18:11 27:5statute [43] 6:5,11,23 7:7,
21:22 22:9,10 russell [25] 4:7,7,10 6:7 8: showing [1] 13:25 19,22 8:4,21 9:5,13,18,19,
regulations [3] 12:1 22: 20 10:1,6,16,23 13:14,15 shows [1] 26:10 23,24 10:5 11:8,18,20 12:3
24,25 14:4,18 18:15,17,20 20:13, simple [2] 7:14 28:23 14:10,11,13,21,22,25 15:5,
regulatory [1] 12:15 25 21:2,8,13 27:20 28:18 simply [2] 11:18 27:23 8,12,13,14,23 16:1,24 17:
rehearing [1] 6:12 29:1,13 since [1] 20:23 11 22:14,17,25 23:9,12 25:
reit [1] 21:9 russell’s 28:7
[1] single [2] 24:9,17 12 26:16,21 28:24
reiterate [1] 21:9 sit [1] 24:9 statutes [1] 15:4
reiterated [2] 19:6,10
S situational [1] 14:10 statutory [12] 11:25 14:13
related [2] 20:15 21:10 sale [5] 5:19 6:12 9:15 11: six [2] 6:24 9:20 15:6,9,21,24 16:13 17:10
relates [1] 12:16 12,14 sixty [2] 27:17,18 22:11 23:3,11 26:18
relatively [1] 6:16 same [9] 10:18 14:13 20:1 sjc [18] 14:12 15:4,11 16: stayed [1] 17:11
relevance [1] 13:2 23:14 24:14,15,15,17,23 12 17:11,12 18:24,24 19:3, step [2] 6:7 18:5
relevant [1] 21:6 savings [1] 26:22 9 20:2,19,22 22:19 26:14, stephen [2] 4:3,8
reliant [2] 17:9 25:19 saying [3] 23:6,22 26:25 16,23,25 stepped [1] 17:22
says [11] 7:19 9:5 13:4 15:
relied [4] 10:7,25 13:20 27: sjc’s 27:23
[1] still [2] 8:19 17:24
21 19 16:24 21:25 22:3,4 25: skipped [1] 12:5 stone [5] 11:3,3 25:21,22
rely [1] 27:25 18 26:5,6 skipping [1] 16:4 28:2
relying 16:19,21
[2] scheduled [1] 5:19
so-called 6:4 [1] strawbridge [1] 10:3
remain [2] 8:16,20 scope [1] 16:6 sole [3] 6:21 8:3 9:4 street [1] 1:38
remains [1] 17:17 seat [1] 4:23 someone 21:19 24:6, stuff [1] 23:21
[5]
remedies [2] 9:1 26:6 second [2] 12:5 19:15 10,20 25:16 subjectively [1] 24:1
remedy [3] 9:4 18:9 26:7 seconds [3] 27:17,18 29:2 sometimes 7:23 [1] submission [1] 14:1
remember [1] 13:17 section [3] 16:14,22 22:22 sorry [3] 4:21 5:1,2 submit [4] 6:15 11:6,14 17:
remove [1] 15:2 security [1] 20:5 sought [1] 14:25 20
replicate [1] 24:20 see [3] 11:11 25:10 28:19 source 15:24
[1] submitted [5] 13:20 14:1
required [2] 22:14 29:3 seeking [4] 17:20 18:2,8,9 speaking [1] 13:7 17:12 20:21 25:4
requirements [1] 23:12 seeks [1] 18:5 speaks 14:11 24:13
[2] subsection [1] 22:22
requires [1] 12:24 seem [2] 12:23 21:18 specific [1] 25:17 success [1] 7:2
respectfully [5] 11:14 13: sense [1] 24:4 specifically 9:20 16: suffices [1] 12:10
[8]
20 16:17 17:12 25:4 sent [6] 12:6 14:2 22:10 23: 21 17:23 22:7 23:2 24:19 sufficient [1] 25:15
responded [1] 26:25 2 25:2,22 25:3 26:2 suggested [1] 20:20
response [3] 10:21 25:9 sentence [1] 16:5 speculation 24:4 [1] supplied [1] 22:1
27:16 separate [3] 8:25 14:22 speed [1] 11:7 surprise [1] 29:15
restroom [1] 4:19 15:3 spend 18:18
[1] systems [1] 18:23
result [1] 8:18 separately [1] 8:25
stagnant [1] 15:2
rights [1] 13:9 servicer 12:21 13:2,6
[6]
standing [14] 6:3,7,9 10:3
T
21:23 29:5,6 13:9 17:23 18:5,14 20:11, talked 23:16 25:12,21,
[5]
road 2:15
[1]
robert [1] 5:6 servicers [1] 12:22
13 21:6,9 28:10 29:7 22 26:23
rock [1] 1:38 services 19:25[1]
stands [1] 19:23 talks [5] 16:19 19:20 22:10
Sheet 6 reference - talks
DH Reporting Services, Inc. (781) 575-8000
25:7 26:3
ten [1] 19:20
tender [2] 10:22 11:9
tendered [1] 11:17
term [4] 16:8,9,12 19:3
terms [2] 11:19 13:4
text [2] 15:10 17:10
text,” [1] 14:11
thankfully [1] 13:15
thanks [1] 27:14
that’s [28] 5:2,5 7:22 8:2,2,
trying [6] 18:8 19:18 21:9 vickie [1] 4:8 24 22:3 25:14
23:7,7 26:10 violation [1] 11:25 you’re [3] 5:11 18:7 21:4
twelve [1] 20:23 violations [1] 11:25 young [3] 19:14 20:16,21
twenty [1] 26:5 void [3] 11:14 23:7,7 yourself [1] 4:5
twenty-nine [1] 19:2
twenty-seven [1] 19:24
W
twists [1] 18:7 wait [2] 4:23 24:7
two [18] 6:2,3,6,10,24 8:13, waiting [1] 24:10
25 9:20 11:24,25 14:22 15: waived 10:2 28:10,11,
[4]
3 18:24 20:1 21:4 25:15 26: 11
6 27:25 walk [2] 17:18,19

8,15 14:21 15:7,16,18 19: wanted [2] 15:1 20:17

11,24 21:8,8,8,16 22:8,12
23:3,12 24:23 25:6,15 26:
11,20 27:8 28:12
theory [1] 13:1
there’s [9] 9:7,13 10:25 13:
23 14:22,23 17:1 18:24 26:
22
therefore [2] 10:12 26:19
they’re [5] 8:25 10:17 13:3
20:2 24:23
third [2] 13:3,8
third-party [3] 12:21,22
13:8
thirty-five [1] 25:25
thirty-seven [1] 29:1
thirty-year [1] 7:17
though [2] 25:11 28:17
three [3] 6:16 19:6 28:7
throw [1] 24:10
tick [1] 26:21
tied [1] 16:7
timely [1] 9:24
title [9] 7:24 12:19 15:2 21:
19,25,25 22:7,15 24:11
today [5] 6:14 18:13 21:1,5,
7 until [6] 8:6 9:16 11:20 12:
together [1] 23:13
took [1] 5:24
totally [1] 13:20
travel [2] 8:25,25
trigger [1] 9:14
triggered [1] 8:21
triggers [1] 9:12
trouble [1] 9:17
true [3] 27:21,23 28:1
trust [6] 17:24 18:21 20:15
21:10,11,15
trustee [1] 13:6
Sheet 7
U wants [1] 5:11
u.s [1] 22:18
unconstitutional [1] 26:
25
undecided [3] 17:14,15
18:23
under [16] 6:20 9:23 10:5
11:19 13:2,9 22:8,12,14,22
23:17,20 27:8 28:23 29:6,
14
underlining [3] 14:6 16:7,
9 whether [4] 6:21,21 8:3
underlying [1] 26:18
understand [2] 8:8 19:19
understanding [2] 16:10
21:5
understood [1] 16:12
undertake [3] 15:9,22 22:
23
undertook [3] 14:13 15:6
17:9
unfair [1] 12:13
unknown [1] 20:8
unlike [1] 26:1
unlikely [1] 24:2
4 18:1 24:8
up [11] 11:8 17:1,7,8 19:13
23:21 24:13,22 27:12,25
28:5
ups [1] 14:15
using [1] 22:17
V year’s [1] 20:23
vacate [1] 10:13
vacated [2] 10:10 13:24
validity [1] 22:16
validly [1] 19:16
wasn’t [4] 6:8 12:4 27:2
29:4
way [2] 19:23 23:22
we’ll [2] 4:23,23
we’re [7] 4:24 5:3 6:14 9:
11 19:10 23:6,7
what’s [2] 11:7 26:5
whatever [1] 9:18
whatsoever [3] 25:24 28:
9,10
20:8
wife [1] 24:6
wildwood [1] 2:15
will [10] 5:10,12 8:20 9:8
10:15 12:21,23 17:24 27:
22 29:14
winning [1] 24:2
wins [1] 10:17
within [3] 16:13 19:3,16
word [1] 17:12
words [1] 16:11
worry [1] 7:13
wouldn’t [1] 21:18
written [1] 16:13
wrongful [1] 5:17
wrote [1] 25:8
Y
yared [1] 17:2
year [4] 5:18 9:23 11:6 25:
25
years [5] 7:21 11:12 12:3
19:6 27:2
yield [1] 17:25
york [7] 4:4,15,18 5:10 21:
talks - yourself