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| cook wuwseR CLERK'S NOTICE 1785CV01677 Trial Court of Massachusetts ‘The Superior Court e CASE NANE Stephen D Nims et al vs. The Bank of New York Mellon, as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5372 et al Dennis P. McManus, Clerk of Courts “Glenn F Russoll, Je, Esa Law Office of Glenn F. Russell, J 38 Rock St Suite 12 Fall River, MA 02720 ‘COURT NAHE & ADDRESS Worcester County Superior Court 225 Main Street Worcester, MA 01608 referenced docket ‘See Memorandum of Decision dated 9/4/18, Notices mailed 9/12/18 Judge: Sullivan, Hon. Susan E DATEISSUED | ASSOCIATE JUSTICE ASSISTANT CLERK osni22018 Hon, Susan E Sullivan You are hereby notified that on 09/12/2018 the following entry was made on the above Endorsement on Motion to Dismiss the Complaint (Bank of New York Mellon) (#14.0): ALLOWED [sessoN 40NEH (508)831-2364 eT CLERK'S NOTICE 1785CV01677 Trial Court of Massachusetts The Superior Court e ‘CASE NAME, ‘Stephen D Nims et al vs. The Bank of New York Mellon, as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5312 et al Dennis P. McManus, Clerk of Courts Glenn F Russell, Jr., Esa. Law Office of Glenn F. Russell, Jr. 38 Rock St Suite 12 Fall River, MA.02720 ‘COURT NAME & ADDRESS Worcester County Superior Court 225 Main Street Worcester, MA 01608 You are hereby notified that on 09/12/2018 the following entry was made on the above referenced docket: Endorsement on Motion to Dismiss the Complaint (Bank of America) (#48.0): ALLOWED ‘See Memorandum of Decision dated 9/4/18. Notices mailed 9/12/18 Judge: Sullivan, Hon, Susan & DATE ISSUED | ASSOCIATE JUSTICE] ASSISTANT CLERK 09/12/2018 Hon. Susan E Sullivan [Session PHoNE# (500)831-2364 aaa COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CIVIL ACTION NO. 1785CV1677B STEPHEN D, NIMS and VICKIE L. NIMS, Plaintiffs Vs. ‘THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-5312, and BANK OF AMERICA, N.A., Defendants ¥ MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE, CERTICIATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-5312’S MOTION TO DISMISS ‘This action arises from a mortgage from the Plaintiffs Stephen D. Nims and Vickie L. Nims (“the Nims”) to Omega Mortgage Corp. (“Omega”) on July 6, 2005. After defaulting on their mortgage and a foreclosure sale of their property, the Nims now claim Defendant Bank of New York Mellon, As Trustee For the Certificate Holders of CWALT Ine,, Alternative Loan Trust 2005-5312 (“BONY”), failed to comply with G.L. c. 244, §14 (Count I) and G.L. c. 260, §33 (Count III) in foreclosing on their mortgage. After hearing, and for the reasons set forth in BONY’s Motion to Dismiss, the Motion to Dismiss is ALLOWED. Entered and Copies wou dale FACTUAL BACKGROUND On July 6, 2005 the Nims executed a promissory note in favor of Omega in the amount of $375,000.00, To secure payment of the debt the Nims gave to Omega a mortgage on their property located at 402 Ashby Road, Ashburnham, MA (“the premises”). The mortgage identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as the nominee for Omege, and also as a mortgagee under the security instrument. In October, 2011 MERS assigned the Nims’ mortgage to BONY. BONY also became the holder of the promissory note. In 2011 the Nims defaulted on their mortgage, and in July, 2012 they filed for bankruptcy. In October, 2012 they were discharged from personal liability on their debts, including the promissory note, and the bankruptcy case was closed. In June, 2014 the Nims received a “150 Day Right to Cure Your Mortgage Default” and they did not cure the default. In May, 2015 a notice of acceleration of the defaulted loan was sent to the Nims, In June, 2017 the mortgage servicer Shelipoint Mortgage Servicing, (’Shellpoint”) executed the affidavit required pursuant to G.L. e. 244, §35B, certifying compliance. In September, 2017 BONY certified, through its mortgage servicer, that it was the holder of both the note and the mortgage, and there had been only one assignment of the mortgage from MERS to BONY. In September, 2017 the Nims were given notice of a foreclosure sale by public auction on October 23, 2017. In response, on October 18, 2017 they filed this action and requested preliminary injunction staying the foreclosure sale, By agreement the sale was postponed to November 20, 2017. On November 13, 2017, after hearing, the court denied the Nims’ request for a preliminary injunction and the foreclosure sale took place thereafter. STANDARD OF REVIEW ‘When evaluating the legal sufficiency of a complaint pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations of the complaint and draw all reasonable inferences from the complaint in favor of the plaintiff. Coghlin Elec, Contractors, Inc. v, Gilbane Building Co., 472 Mass. $49, 553 (2015); lannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), However, the court need not accept as true legal conclusions cast in the form of factual allegations. Schaer v. Brandeis Univ., 432 Mass, 474, 477 (2000). To survive a motion to dismiss, a complaint must contain factual allegations which, if tree, raise a right to relief above the speculative level. Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011); Iannacchino v. Ford Motor Co., 451 Mass. at 636. The plaintiff's allegations must be more than mere labels and conclusions and must plausibly suggest, not merely be consistent with, an entitlement to relief, Coghlin Blee, Contractors, Ine, v. Gilbane Building Co., 472 Mass, at 553. DECISION “A foreclosure sale conducted pursuant to a power of sale in a mortgage must comply with all applicable statutory provisions, including in particular G.L. c. 183, §21, and G.L. 244, §14. These statutes authorize a ‘mortgagee’ to foreclose by sale pursuant toa power of sale in the mortgage, and require the ‘mortgagee’ to provide notice and take other steps in connection with the sale. ‘The meaning of the term ‘mortgagee’ as used in the statutes is not free from ambiguity, but we now construe the term to refer to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder.” Eaton v, Federal nations] Mortgage Association, etal, 462 Mass. 569, $71 (2012) BONY was holder of both the note and the mortgage atthe time of the foreclosure, as certified at Exhibit A of the Verified Complaint, MERS endorsed the note to BONY and an assignment of the 3 mortgage to BONY was recorded, The very documents confitming these facts are attached as exhibits to the Verified Complaint, establishing compliance with applicable statutes. The Nims also present arguments in support of their claims based upon alleged violations of the Pooling and Servicing Agreement (“PSA”) attached to the Verified Complaint as Exhibit F, “(A) mortgagor does not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title.” Cuthane v. Aurora Loan Servs, Of Neb., 708 F.3d 282, 291 (2013) “(A) deficiency in an assignment that makes it merely voidable at the election of one party or the other would not automatically invalidate the title of a foreclosing mortgagee, and accordingly would not render void a foreclosure sale conducted by the assignee or its successors in interest... Thus, where the foreclosing entity has established that it validly holds the mortgage, a mortgagor in default has no legally cognizable stake in whether there otherwise might be latent defects in the assignment process.” The Bank of New York Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 502 (2014) “(©)laims that merely assert procedural infirmities in the assignment of a mortgage, such as a failure to abide by the terms of @ governing trust agreement, are barred for lack of standing,” Woods v. Wells Fargo Bank, N.A., 733 F. 3d 349, 354 (2013); See also Sheedy v. Deutsche Bank National Trust Co,, 801 F. 3d 12 (1* Cir, 2015); Hully v. Deutsche Bank Nat. Trust Co., 89 Mass. App.Ct. 1112 (2016); U.S. Bank Nat. Ass'n. v. Bolling, 90 Mass.App.Ct. 154 (2016); Dyer NA, 841 F.3d 550 (1 Cir, 2016); O’Neil v. Bank of New York Mellon, vy. Wells Fargo Bank, 90 Mass. App.Ct. 1121 (2016); Deutsche Bank Nat. Trust Co., v. Diaz, 2017 Mass.App. Unpub. LEXIS 4; Strawbridge v. Bank of New York Mellon, 91 Mass.App.Ct. 827 (2017); Hayden HSBC Bank USA, National Association, 867 F.3d 222 (1* Cir. 2017) ‘The Nims have no standing to challenge the sufficiency of any assignments that resulted in BONY as the holder of the note and the mortgage at the time of the foreclosure. Their claim that the mortgage was obsolete at the time of foreclosure equally lacks merit, The morigage has a maturity date of August 1, 2035, noted on the front page of the mortgage. Pursuant to G.L. c. 260, §33, the mortgage would become obsolete in 2040 if not extended. The Nims argue that acceleration of the mortgage due to default results in a new maturity date, the date of the acceleration, Were that to be the case, the mortgage would become obsolete 5 years after the date of acceleration. This court need not address the validity of this argument, as the Notice of Default and Intent to Accelerate was received by the Nims on December 18, 2015, as reflected in their own chronology annexed to the Verified Complaint as Exhibit H. Even if the notice of intent to accelerate changed the maturity date to the date of notice in 2015, the obsolete date would be in 2020, As the foreclosure has already taken place, it occurred well before the mortgage became obsolete pursuant to G.L. c. 260, §33. ORDER After hearing, based upon the foregoing and the arguments of the defendant BONY, The Bank of New York Mellon, As Trustee for the Certificate Holders of CWALT Inc., Alternative Loan Trust 2005 — 53T2's Motion to Dismiss is ALLOWED. Date: September 4, 2018 Le ( SusaifB. Sullivan, J Associate lustice of the Superior Court COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CIVIL ACTION NO. 1785CV1677B STEPHEN D. NIMS and VICKIE L. NIMS, Plaintiffs Vs. ‘THE BANK OF NEW YORK MELLON, AS TRUSTE) FOR THE CERTIFICATE HOLDERS OF CWALT, IN ALTERNATIVE LOAN TRUST 2005-83T2, and BANK OF AMERICA, N.A., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS This action arises from a mortgage from the Plaintiffs Stephen D. Nims and Vickie L. Nims (“the Nims”) to Omega Mortgage Corp. (“Omega”) on July 6, 2005, After defaulting on their mortgage and a foreclosure sale of their property, the Nims now claim Defendant Bank of ‘America, N.A. (“BANA”) violated 209 C.M.R. 18.21(A)(2), 209 C.MR. 18.22 and G.L. ¢. 93, in servicing their mortgage loan, After hearing, and for the reasons set forth in BANA’ Motion to Dismiss, the Motion to Dismiss is ALLOWED. FACTUAL BACKGROUND On July 6, 2005 the Nims executed a promissory note in favor of Omega in the amount of $375,000.00. To secure payment of the debt the Nims gave to Omega a mortgage on their property located at 402 Ashby Road, Ashbumham, MA (“the premises”). The mortgage En saps wiv hah 1 identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as the nominee for Omega, and also as a mortgagee under the security instrument. In October, 2011 MERS assigned the Nims’ mortgage to Bank of New York Mellon, As Trustee for the Certificate Holders of CWALT INC., Alternative Loan Trust 2005-5312 (“BONY”). BONY also became the holder of the promissory note. In 2011 the Nims defaulted on their mortgage, and in July, 2012 they filed for bankruptcy. In October, 2012 they were discharged from personal liability on their debts, including the promissory note, and the bankruptoy case was closed. In June, 2014 the Nims received a “150 Day Right to Cure Your Mortgage Default” and they did not cure the default. In May, 2015 a notice of acceleration of the defaulted loan was sent to the Nims, In June, 2017 the mortgage servicer Shellpoint Mortgage Servicing (Shellpoint”) executed the affidavit required pursuant to G.L. c. 244, §35B, certifying compliance, In September, 2017 BONY certified, through its mortgage servicer, that it was the holder of both the note and the mortgage, and there had been only one assignment of the mortgage from MERS to BONY. In September, 2017 the Nims were given notice of a foreclosure sale by public auction on October 23, 2017. In response, on October 18, 2017 they filed this action and requested a preliminary injunction staying the foreclosure sale, By agreement the sale was postponed to November 20, 2017, On November 13, 2017, after hearing, the court denied the Nims’ request for a preliminary injunction and the foreclosure sale took place thereafter. BANA became the servicer of the Nims” mortgage pursuant to the Pooling and Servicing Agreement dated September 1, 2005, and transferred the servicing of the mortgage to Shellpoint effective June 1, 2013, STANDARD OF REVIEW ‘When evaluating the legal sufficiency of a complaint pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations of the complaint and draw all reasonable inferences from the complaint in favor of the plaintiff. Coghlin Elec, Contractors, Inc. v. Gilbane Building Co., 472 Mass. $49, 553 (2015); lannacchino v, Ford Motor Co., 451 Mass. 623, 636 (2008), However, the court need not accept as true legal conclusions cast in the form of factual allegations, Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). To survive a ‘motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level, Golchin v. Liberty Mut, Ins. Co., 460 Mass, 222, 223 (2011); annaechino y, Ford Motor Co,, 451 Mass, at 636. The plaintiff's allegations must be more than mere labels and conclusions and must plausibly suggest, not merely be consistent with, an entitlement to relief, Coghlin Elec. Contractors, Inc. v, Gilbane Building Co., 472 Mass. at $53. DECISION The Plaintiffs’ Verified Complaint consists of 132 numbered paragraphs. ‘The section entitled “FACTS” consists mainly of analysis of case law, statutes and legal arguments, Once located and identified, the facts set forth do not support a cause of action against BANA. As to the claim pursuant to G.L. c. 93A, the Nims have failed to satisfy the pre-suit requirement of a written demand letter at least 30 days prior tothe filing of litigation. “The letter is not merely a procedural nicety, but, rather, a prerequisite to the suit.” Peterson v. GMAC Mortgage, LLC, 2011 U.S. Dist. LEXIS 123216, 17, citing Rodi v. S. New England School of Law, 389 F.3d. 5, 20 (1*% Cir. 2004) Here, as in Peterson, it is undisputed that the Nims did not serve the required demand letter. Plaintiffs argue that BANA’s successor, Shellpoint, does not maintain a place of business and does not keep assets within the commonwealth, thus excusing them from the requirement of a demand letter. Theze being no argument, however, that BANA. does not maintain a place of business or have assets with the commonwealth, this argument fails. Perhaps had the Nims chosen to name Shellpoint as a defendant in a claim pursuant to G.L. c. 93A this argument would be appropriate. But for the circumstances as presented, it is not, The Nims having failed to meet the prerequisites to maintain an action for alleged violation of G.L. c. 93A, Count IT as it alleges a violation of G.L. ¢. 93A is DISMISSED! As to the alleged violations of 209 CM.R. 18.21A@Q)(¢) and 209 CMR. 18.22, the Verified Complaint does not set forth in any coherent fashion allegations of action by BANA whereby it failed to “certify in writing the basis for asserting that the foreclosing party has the right to foreclose, including but not limited to, certification of the chain of ttle and ownership of the note and mortgage from the date of the recording of the mortgage being foreclosed upon.” See 209 CMR. 18.21A(2\¢) In fact, Exhibit A to the Verified Complaint includes the Certificate Pursuant to Massachusetts 209 C.M.R. 18.21A@2) executed by Shelipoint, the mortgage servicer for the Nims’ mortgage, The Certification identifies the entity to whom the mortgage was given, as well as the entity to whom the mortgage was assigned, and includes a copy of the promissory note. As written, with exhibits, the Verified Complaint fails to state a cause of action against BANA for which relief can be granted. ORDER Based upon the arguments of the Defendant Bank of America, N.A., after hearing, and for the foregoing reasons, Bank of America, N.A.’s Motion to Dismiss is ALLOWED. Aste lini campuan a Gi.e Sal uta there to mae wen andor las 30 days prior to the commencement of ltigation, this court does not need to reach the defendant's argument regarding the expiration of the limitations period for that claim. 4 Date: September 4, 2018 an E. Sullivan, J. Associate Justice of the Superior Court Trial Court of Massachusetts JUDGMENT ON MOTION TO DISMISS The Superior Court DOCKET HUMBER Dennis P. McManus, Clerk af Courts 1785CV01677 (ASE NAME ~ | SOUAT WARE E REORESS ‘Stephen D Nims et al Worcester County Superior Court vs. 225 Main Street The Bank of New York Mellon, as Trustee for the Certificateholders | Worcester, MA 01608 of CWALT Inc., Alternative Loan Trust 2005-5372 et al [eoaarre Tae FOL SNS DFENOANTE ‘The Bank of New York Mellon, as Trustee for the Certificateholders of CWALT Inc, Alternative Loan Trust 2005-5372 Bank of America, NA, “WOGNENT AGAINST THE FOLLOMNG FLANTIFHS) Nims, Stephen D Nims, Viekie L This action came on before the Court, Hon. Susan E Sullivan, presiding, and upon review of the motion to dismiss pursuant to Mass. R.CivP. 12(b), Itis ORDERED AND ADJUDGED: ‘That the Plaintifs' claims against both Defendants are dismissed, with prejudice. STE JUDGNENTENTERED | RTS) ASST. CLERK 09/12/2018 | DueTmne Pied 06 122018 12081 Tv Svo8m aRaTTe Entered and Copies Maled_ 4]