COMMONWEALTH OF MASSACHUSETTS

WORCESTER, SS.
SUPERIOR COURT DEPARTMENT
CV ACT NO.:1785CV01677-B

STEPHEN D. NIMS
VICKIE L. NIMS
PLAINTIFFS'
Plaintiffs OPPOSITION TO DEFENDANT
vs. THE BANK OF AMERICA, N.A.
MOTION TO DISMISS
THE BANK OF NEW YORK MELLON, AS
TRUSTEE FOR THE CERTIFICATEHOLDERS
OF CWALT INC., ALTERNATIVE LOAN
TRUST 2005-53T2, and
BANK OF AMERICA, N.A.

Defendants

INTRODUCTION

Plaintiffs Stephen D. Nims and Vickie L. Nims

("Plaintiffs") herein through counsel, respectfully submit their

Opposition to the Defendant, Bank of America, N. A., ( "Master

Servicer") Motion to Dismiss under Mass. R. Civ. P., R.

12 (b) (6).

Standard of Review

Indeed, in Iannacchino v. Ford Motor Co., 451 Mass. 623,

635-636 (2008), the Massachusetts Supreme Judicial Court ("SJC")

stated as follows:

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 "The standard for reviewing adequacy of complaints. While
we have concluded that the plaintiffs' complaint is
insufficient on the basis of the standard described in
Nader v. Citron, 372 Mass. 96 98 (1977), see note 7,
supra, we take the opportunity to adopt the refinement of
that standard that was recently articulated by the United
States Supreme Court in Bell Atl. Corp. v. Twombly, 127 S.
Ct. 1955 (2007). See Eigerman v. Putnam Invs., Inc., 450
Mass. 281 , 286 n. 7 (2007) (noting that this court may
consider adopting Bell Atl. Corp. standard for evaluating
adequacy of complaint challenged by motion to dismiss for
failure to state claim pursuant to rule 12 [bl [6]).

The Supreme Court ruled that the often-quoted language in

Conley v. Gibson, 355 U.S. 41, 45-46 (1957) "a
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which
would entitle him to relief" had "earned its
retirement." Bell Atl. Corp. v. Twombly, 127 S. Ct. at
1969. The Court pointed out that under Conley's ''no set of
facts" standard, "a wholly conclusory statement of claim
would survive a motion to dismiss whenever the pleadings
left open the possibility that a plaintiff might later
establish some 'set of [undisclosed] facts' to support
recovery." Id. at 1968. As the Court stated, "While a
complaint attacked by a . motion to dismiss does not
need detailed factual allegations a plaintiff's
obligation to provide the 'grounds' of his 'entitle [ment]
to relief' requires more than labels and conclusions .
Factual allegations must be enough to raise a right to
relief above the speculative level [based] on the
assumption that all the allegations in the complaint are
true (even if doubtful in fact) ." Id. at 1964-1965.
What is required at the pleading stage are factual
"allegations plausibly suggesting (not merely consistent
with)" an entitlement to relief, in order to "reflect[]
the threshold requirement of [Fed. R. Civ. P.] 8 (a) (2)
that the 'plain statement' possess enough heft to 'sho[w]
that the pleader is entitled to relief.' " Id. at 1966.

Therefore, in order to subject the Plaintiffs' complaint to

dismissal under 12(b) (6), this Court would be required to

examine whether Plaintiffs' allegations provided a ground for

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their entitlement to relief that amount to more than "labels and

conclusions. Further, the Plaintiffs' factual allegations would

merely be required to raise their entitlement to relief above

the "speculative level", based upon the assumption that all of

Plaintiffs allegations are required to be accepted as true,

(Even if Doubtful In Fact).

Plaintiffs' set forth a well-reasoned legal argument, which

clearly sets forth a plausible claim for their entitlement to

their relief under 209 C.M. R. 18. 21A. Indeed, as Iannacchino

instructs, even if this Court believed such theory was "doubtful

in fact", taken as true the inquiry would be; does such theory

provide the Plaintiffs' with a plausible entitlement for relief?

The answer to the preceding, is clearly in the affirmative, as

such claim is clearly advanced by Plaintiffs in such a manner to

place it well beyond the speculative level. Additionally,

Defendants have completely failed to meet their burden to point

this Court to the specific implausibility of Plaintiffs'

allegations as specifically alleged by them, only providing two

non-precedential decisions, in which the fact patterns are

easily distinguished from the instant matter. Plaintiffs'

concede that there is obviously a scrivener's error, with

respect to the complaint at '![118, '![119, and '![121, where the

caption of the claim is specifically directed toward the Master

Servicer. Indeed, '![116, clearly identifies that Plaintiffs'

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theory of liability, is premised upon actions of Shellpoint

Mortgage Services ("Sub-Servicer") with specific reference to

Exhibit H attached to the complaint at Bates NIMS-071-073, and

Exhibit M, at p. 2, #6. Plaintiffs rely upon Exhibits attached

to their complaint which are incorporated into their pleadings

under authority of MRCP, R. lO(c)

ARGUMENT

I. DEFENDANTS FAIL TO IDENTIFY ANY SPECIFIC IMPLAUSIBILITY OF

PLAINTIFFS' ALLEGATION FOR THEIR ENTITLMENT FOR RELIEF AS
SPECIFICALLY ALLEGED BY THEM

The Defendant Master Servicer seeks to carve out

distinctions between the terms ( in which term is capitalized);

"Loan 11 , "Mortgage", and "Note". The Master Servicer also

utilizes refences to undefined terminology "servicing released",

leaving the court to speculate as to precisely what the precise

theory Defendant is relying upon to support its burden to show

any implausibility of the Plaintiffs' allegations, as

specifically alleged by them.

In the Introduction to its Memorandum, the Master Servicer

states,

"BANA [Master Servicer] transferred the servicing of the

Plaintiffs mortgage loan ("Loan") to Resurgent Mortgage
Servicing (now Shellpoint Mortgage Servicing ...... )
effective June 1, 2013. The Bank of New York Mellon as
Trustee for the Certificateholders of CWALT, Inc.
Alternative Loan Trust 2006-53T2 Mortgage Pass-Through
Certificates, Series 2005-53T2 ["Defendant Trustee"] is

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 the holder of the subject "Note" and "Mortgage" (Master
Servicer Mem., at p. 1, and at p. 4, §C).

Further, the Master servicer goes on to state

"Despite the fact that BANA [Master Servicer] "service

released the Loan" to Shellpoint in June 2013, and despite
the fact that BONY [Defendant Trustee] "holds the Note and
Mortgage [capitalized terms], Plaintiffs assert meritless
claims against BANA [Master Servicer] ...... " Def. Mem, at
p. 2

First, the allegations, as specifically alleged by

Plaintiffs plausibly state their theory of relief generally at

'11'1168-87, and under Count II at '11116. Indeed, Plaintiffs supplied

support for their allegation that the Defendant Master Servicer

was the principal, [for actions of agents [Resurgent and] Shell

Point], see complaint at '1184, '11116, and attached Exhibit H, at

Bates NIMS-071-072, AND ATTACHED Exhibit M, at p. 2, #6.

Indeed, referencing Exhibit H [under authority of MRCP, R.

lO(c) ], at Bates NIMS-072, §3.02,

"All actions of each Subservicer performed pursuant to the

related subservicing agreement shall be performed as an
agent of the ,Master Servicer with the same force and
effect as if performed directly by the Master Servicer."

The entity named as "Shellpoint" does not have any place of

business, or assets located within this Commonweal th. G. L. c.

93A, contains an exception to the Demand letter requirement

where an entity/Defendant has no assets or business located

within the Commonweal th, see Na tionstar Mortgage v. Moron ta, 88

Mass. App. Ct. 621, at n. 11 (2015)

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 "We reject Nationstar' s argument that the borrower cannot
proceed on his G. L. c. 93A claim because he failed to
serve a demand letter pursuant to c. 93A, § 9, on
Nationstar. A written demand is required pursuant to G. L.
c. 93A, § 9 (3), as appearing in St. 1979, c. 406, § 2,
unless ''the prospective respondent does not maintain a
place of business or does not keep assets within the
commonwealth."

Here, the actionable conduct was undertaken by Shellpoint,

who maintains no physical presence or assets within the

Commonwealth, negating the demand letter requirement under G.L.

c. 93A, [ref Moronta, at n. 11]. Exhibit H, AT Bates NIMS-071,

specifically states that all actions undertaken by Subservicer

[Shellpoint that has no physical presence in the

Commonwealth] .... have the same force and effect as if performed

by Master Servicer. Further, the particular activity that the

Master Servicer is engaged in is not part of traditional

banking, which would be located in a local branch of Bank of

America, N .A located within this Commonwealth, and is in fact a

separate division of the "Holding Company". Therefore,

Plaintiffs state that the demand letter requirement is obviated

here, under the exception found under G.L. c. 93A, §9(3).

A. Defendants Incorrectly Allege That Plaintiffs' Carry The

Burden To Establish Unfair and Deceptive Conduct Under G.L.
c. 93A, Where Their Specific Claims Are Plausibly Based
Upon Per Se Violations of Statute

In fact, Plaintiffs' were remarkably clear under their

plausible claim for their entitlement to relief, that their G.L.

c. 93A claims were plausibly predicated upon the language

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contained within 209 C.M.R. 18.22 (1), creating per se liability

for any viol.ation of 209 C.M.R. 18.00, et. seq .. Such per se

liability was plausibly articulated by Plaintiffs' to have it

genesis under 209 C.M.R. 18.21A(2) (c), which required Shellpoint

(Subservicer) to articulate to Plaintiff in writing the entire

chain of the ownership of Plainti9ff note and mortgage from the

date of the recordation of the original mortgage to the present.

The above referenced section of 209 CMR 18. 21a (2) (c), clearly

states "chain of title". The common sense meaning of such term

would be the identification of every member of that chain, not

selective inclusion of the originating entity and the

foreclosing claimant. "Notably" said regulation makes no carve

out for instruments purportedly indorsed in blank. Thus, where

any entity claimed possession of an indorsed in blank

instrument, that entity would be required to be identified

within "the chain of title".

Mortgage Electronic Registration Systems, Inc. ( "MERS") has

never been examined under claims associated with revised 209

C.M.R. 18.21A(2) (c), which now requires identification of all

intermediary "holders" of the borrower promissory note within

the "chain of title". 1

1 As an effect of the SJC ruling in Eaton v. Fed. Nat 1 l Mortgage Ass'n, 462
Mass 569 (2012), which now requires a statutory foreclosing claimant to
establish a nexus to a note holder.

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 Defendants purport that MERS acted as a "nominee" for Omega

AND All successors I assign note owners. There is no

identification of any other such purported Note holder. Yet

under Defendants' theories there were only 2 note owners; Omega,

and The Trustee. However, the Defendants own documents state

otherwise, in that MERS also assigned Plaintiffs note under the

September 06, 2011 purported assignment (see Exhibit D to

complaint) Defendant Master servicer makes no reference to this

purported claimed ownership of Plaintiffs' Note. Further,

Defendants rely upon a purported second [unrecorded] assignment,

purportedly executed on October 12, 2011, stating that MERS

[autonomously] also assigned Plaintiffs' Note to the Trustee,

this purported transaction is also nowhere described within

Defendants certification to Plaintiffs' under 209 C.M.R.

18.21A(2) (c)

B. 209 C.M.R. 18.21A(2) (c) Is A Supplement to G.L. c. 244,

§14, Which Therefore Required Defendants To Certify The
Entire Chain of Title To Plaintiffs' Note and Mortgage From
Date of The Original Recordation of The Mortgage, In Order
To Utilize Massachusetts Statutory Foreclosure Process.

Indeed, G.L. c. 93A, contemplates equitable relief, see G.L.

c. 93A, §9 (3):

"For the purposes of this :::hapter, the amount of actual

damages to be multiplied by the court shall be the amount
of the judgment on all claims arising out of the same and
underlying transaction or occurrence, regardless of the
existence or nonexistence of insurance coverage available
in payment of the claim. In addition, the court shall

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 award such other equitable relief, including an
injunction, as it deems to be necessary and proper."

The Master Servicer is very clearly an agent and instrumentality

of the Defendant Trustee, which clearly acts for the benefit of

such other Defendant. At p. 5 of the Defendant Master Servicer's

Memorandum, it attempts to explicate [rather confusingly] its

position regarding is statement of the "chain of title" to

Plaintiffs' mortgage under requirements set out under 209 C.M.R.

18 . 2 lA ( 2) ( c)

"BANA transferred servicing of the loan to Shellpoint in

June 2013, Moreover BANA is not the foreclosing the
Mortgage BONY is-and Plaintiffs' do not allege
otherwise. " (Master Servicer Memo, at p. 5, §D)

The above paragraph, again utilizes terms identified by the

Master Servicer, i.e. "BONY is foreclosing the Mortgage", [as

Opposed to ''Loan 11
, and/or "Note"]. Contrast Master Servicer

Memo, at p. 6:

"Plaintiffs do not provide any factual support or offer

any evidence showing how BANA alleged violations-even if
true-caused them actual, specific economic injuries. As
explained any harm Plaintiffs suffered (i.e. the lawful
foreclosure of the Mortgage by BONY) is the result of
their own failure to repay the "Loan" ... •

First, the above statement completely ignores the equitable

relief portion of G. L. c. 93A, §9 ( 3) ; 2. Wrongfully implies that

the foreclosure was lawful; and 3) the harm Plaintiffs face

clearly is represented by the loss of title to their real

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property. Indeed, unlike the attempt to confuse the issue by

Defendants, the issue is not whether money is owed at all, but

rather, whether the Defendants [in total] have strictly complied

with all state statutory and regulatory requirements to have

utilized the extra-judicial statutory foreclosure process.

However, 209 C.M.R. 18.21A(2) (c), is directed at Shellpoint

mortgage servicing (Subservicer) and the Defendant Master

Servicer, but also as an instrumentality for "BONY" [Defendant

Trustee] . i.e. the act of foreclosing is for the benefit of

BONY, whereby the Master Servicer, as an instrumentality of the

Defendant Trustee, is required to meet its burden under 209

C.M.R. 18 . 2 lA ( 2) ( c) in order to utilize the statutory

foreclosure process under G.L. c. 244, §14. Further, the

Plaintiffs' have specifically identified the nexus between

Shellpoint and the Defendant Master Servicer, whereby the Master

Servicer is responsible as principal for acts of its agent

Shellpoint (Subservicer), see complaint at '1[84, and &116, and

Exhibit H attached to complaint at Bates NIMS-072, See also

Supra, above. Thus, the acts of Shellpoint shall be imputed to

The Master Servicer, AND the Defendant Trustee. Thus, where the

Defendant Master Servicer has failed to comply with 209 C. M. R.

18. 2 lA ( 2) ( c) [through the acts of Shellpoint], Plaintiffs'

plausibly can recover equitable relief to enjoin any foreclosure

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by the Defendant Trustee, and/ or receive equitable injunctive

relief to maintain the status quo ante'.

C. The Defendant Master Servicer Seeks To Confuse The Issue By

Interjecting Transformational Vocabulary To Change The
Trajectory of The Specific Analysis Before This Court

The Master Servicer attempts to confuse the issue by

utilizing incorrect subliminal references such as "lawful

foreclosure", even though the Plaintiffs' are plausibly

challenging the claimed "lawfulnessn of that purported auction,

and in which said complaint is rather obviously still active and

alive upon this Court's docket sheet. The Master Servicer

additionally seeks to interject issue not relevant to the

instant examination, i.e. "any harm Plaintiffs suffered ....... is

the result of their own failure to repay the 'Loan'n. The Master

Servicer fails to identify which paragraph of Plaintiffs

complaint contains allegation stating reliance upon "not having

to payn monies owed upon the Note [not "Loann]. In fact,

Plaintiffs' claims are rather obviously directed toward the

failure of the Master Servicer and its principal and co-

Defendant Trustee, failure to adhere to all strict statutory and

regulatory requirements, which record plausibly precludes

Defendants from exercising the power of sale under G. L. c. 2 4 4,

§14. In no manner or form does Count I or Count II of

Plaintiffs' complaint seek to void the note, or void the

mortgage. Indeed, a finding for Plaintiffs' under Count I would

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still allow Defendants to attempt a renewed non-judicial

foreclosure or bring a judicial action against Plaintiffs to

foreclose upon their statutory right of redemption, which is

their legislatively enacted protection under G.L. c. 244, §18.

Additionally, at p. 6 of the Master Servicer' s Memo, it

incorrectly implies that under the specific 12 (b) (6) examination

presented before the Court, Plaintiffs' would somehow bear the

burden to "offer evidence" to support factual allegations

regarding the Master Servicer' s actions. The SJC pronouncement

in Iannacchino very clearly states that the pleadings [and

Exhibits attached to the complaint incorporated thereto] are to

be judged upon their "plausibility", [not probability], "even if

doubtful in fact", [see Iannacchino, at 636].

CONCLUSION

For all of the preceding discussion, argumentation,

citation to the law of Massachusetts, and cited ratio decidendi

examination thereof, Plaintiffs respectfully request that

Defendant's Motion under review be denied, as Plaintiffs

allegations have more than met the Iannacchino bar, to have

withstood the instant attack

Respectfully submitted
Plaintiff, Stephen and Vickie Nims

By their Attorney,

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 Jr ., Es q

Glenn F. Russell , Jr . &

Associates, P . C .
38 Rock Street , Suite #12
Fall River, MA 02720
p. (508) 324-4545
f. (508) 938-0244
Date: February 14, 2017 russ45esq@gmail.com

CERTIFICATE OF SERV I CE

I hereby certif y that a copy of the foregoi ng was served

under Superior Court Rule 9A , upon the following via ema il, and
USPS postage prep aid , on February 14 , 2017 :

John H. Mccann
Shectman Ha lperin Savage , LLP
1080 Main Street
Pa wtu c ket, RI 02860

Robert M. Mendillo
Harmon Law Offices , P . C.
150 California Street
Newton, MA 02458

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