Supreme Judicial Court for the Commonwealth FAR: FAR-27390 Filed: 5/13/2020 11:59 AM

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT DOCKET
NO. FAR-27062

STEPHEN D. NIMS, & another

Petitioners/Appellants

vs.

THE BANK OF NEW YORK MELLON as Trustee &

another
Defendants/Appellees

On Appeal from a Judgment of the Worcester County

Superior Court

APPLICATION FOR FURTHER APPELLATE REVIEW

PURSUANT TO Rule 27.1 M.R.A.P.

Memorandum and Order by the Massachusetts Appeals Court in

Case# 19-P-0179 dated March 03, 2020

For the Petitioner/Plaintiffs

Glenn F. Russell, Jr., Esq.
BBO # 656914

Glenn F. Russell, Jr., &

Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
508-324-4545
russ45esq@gmail.com

May 13, 2020

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 TABLE OF CONTENTS

1) REQUEST FOR LEAVE TO OBTAIN

FURTHER APPELLATE REVIEW 6

2) SUMMARY STATEMENT 12

3) STATEMENT OF THE UNDISPUTED FACTS

RELEVANT TO THIS PETITION 21

4) STATEMENT OF THE PRIOR PROCEEDINGS 29

5) POINTS UPON WHICH FURTHER APPELLATE REVIEW

IS SOUGHT 31

A. The Panel Erred In The Application of Law

By Failing To Undertake Statutory
Construction Expressed By This Court In
Fitchberg Regarding The Definition of The
Term “Maturity Date 32

1. Deutsche Bank, N.T. Co. v Fitchberg

Capital, LLC, 471 Mass. 248, 253-258 33

2. The Appeals Court Has Previously Held

That The Intentional Act of Acceleration
Advances The [original] “Maturity Date”
Stated on The Face of The Mortgage To
Become Immediately Due and Payable 34

B. The Panel Erred In The Application of The

Law By Its Failure To Examine The
Historical Definition of The Term Maturity
Date 36

1. The Panel Incorrectly Found That

Petitioners’ Theory For Their Entitlement
To Relief Was Premised Upon G.L. c. 260,
§33 “Shortening The Maturity Date” 36

2. The Panel Erred In Not Considering That

Defendant’s Election To Foreclose Is An
In Rem Action That Is Governed By The

2
 Repose Periods Under G.L. c. 260, §33 38

3. The Panel’s Finding That Petitioners’

“Maturity Date” Remained August 01, 2035
After Its Acceleration Is At Odds With
The Bargained For Terms of The Mortgage
Contract, Previous Case Law, and This
Court’s Examination in Fitchberg 39

4. The Panel’s Ruling Represents A

Departure From Settled Law Regarding
Acceleration Advancing The Maturity
Date of The Note 42

5. Statutory Construction Must Go Beyond

The Literal Text When There Results An
Absurd or Antithetical Application 43

6) CONCLUSION 43

7) Appeal Court Ruling 44

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 TABLE OF AUTHORITIES
STATE CASES

Clean Harbors, Inc. v. John Hancock Life

Ins. Co.,,
64 Mass. App. Ct. 347 (2005)...................35

Deutsche Bank, N.T. Co. v Fitchberg Capital, LLC,

471 Mass. 248 (2015).......................passim

Ferreira v. Yared, 32 Mass. 328,

32 Mass. 328 (1992).........................35,40

Forty Pine, LLC v. Country Bank for Savings

95 Mass.App.Ct. 1108 (2019) (2012).............35
Harvard 45 Associates, LLC v. Allied Properties
and Mortgages, Inc
80 Mass.App. Ct. 203 (2011)....................38

Houseman, Tstee v. LBM Financial, LLC,,

80 Mass.App.Ct. 213 (2011).....................38

Ry-Co Int'l, Ltd. v. Voniderstein,

89 Mass.App.Ct. 1130(1:28 2016).............43,44

FEDERAL CASES

Delebreau v. Bayview Loan Servicing, LLC.,

680 F.3d. 412 (4th Cir. 2012) .........38,40,41

Harry v. Countrywide Home Loans, Inc.,,

902 F.3d 16, 19 (1st Cir. 2018).............37

Hayden v. HSBC Bank USA,

Ca. No. 16-2274 (1st Cir. 2020)..............37

In re LLC,,
642 F.3d 263 (1st Cir. 2011)................43

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 MASSACHUSETTS STATE STATUTES

Massachusetts General Law

Chapter 260, §33........................passim

Massachusetts General Law

Chapter 260, §34............................42

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1) Request for Leave to Obtain Further Appellate
Review

The Petitioners/Plaintiffs Stephen D. Nims and

Vickie L. Nims (“Petitioners”) herein though

undersigned, respectfully seek further appellate review

of the published Opinion issued by the Appeals Court on

March 03, 2020, in which the Panel below affirmed the

trial court’s ruling.

On appeal the Petitioners sought review of the

Superior Court Order solely with regard to Count III of

their complaint under the Obsolete Mortgage Statute,

G.L. c. 260, §33. Petitioner’s sought, and requested,

statutory construction and interpretation of the

operation of the statute with specific regard to the

“acceleration” of the “maturity date” of their

underlying Note. The Petitioners based their plausible

claim for relief under the interpretive guidance

provided by this Court in Deutsche Bank, N.T. Co. v.

Fitchberg Capital, LLC, 471 Mass. 248 (SJC 2015).

While Fitchberg did not specifically present this

Court with any opportunity to examine the “acceleration”

issue, this Court did undertake statutory construction

to discern the legislative intent regarding the meaning

of the term “maturity date” under the 2006 amendment of

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this statute’s text. This Court clearly found ambiguity

within the legislative text regarding the term “maturity

date”, and thereafter conducted statutory construction

through an exhaustive examination the historical case

law of this Commonwealth and common sense meaning of

that term. This Court clearly stated that the historical

case law has found that the paramount interest in a

mortgage loan rests with the underlying debt obligation.

This Court also cited with approval many decisions from

the Commonwealth, including this Court’s Opinion in

Eaton v. Fed. Nat’l Mortgage Ass’n, 462 Mass. 569 (2012).

This Court specifically stated that a mortgage cannot

mature independently from the underlying obligation that

it secures.

The Panel referred to the above wording of this Court

as “dicta”, and the Panel further opined [in their

opinion] that the preceding only applied to determining

the 5-year repose period under G.L. c. 260, §33. However,

respectfully submitted, the Panel erred in applying the

law in so finding, as the ultimate determination as to

the application of statute would be predicated upon the

determination as to precisely what the “maturity date”

was to further examine when the underlying debt became

“overdue” by five years, see Fitchberg at 257. The act

7
of acceleration, indisputably advances the maturity date

to become immediately payable in full, see Ferreira v.

Yared,32 Mass. App. Ct. 328, 330 (1992), compare June

10, 2010 acceleration letter received by Petitioners and

¶22 of the Petitioners’ mortgage contract.

The Panel erred in applying the law where it

determined that the Petitioners’ sought to claim that

G.L. c. 260, §33 would “shorten the maturity date”. Thus,

Petitioners alleged plausible claim for relief, given

the finding in Fitchburg, as to the determination of

“maturity date”. Petitioners’ claim was based upon the

intentional act of the lender’s acceleration of the

original “August 01, 2035 maturity date of the note

“shortening the maturity date” of the mortgage for

purposes of the statute, not G.L. c. 260, §33 itself.

This was so because the June 10, 2010 letter sent to

Petitioners indisputably and clearly stated that all

sums owed on the Note were immediately due and payable

in full by July 10, 2010. Thus, this July 10, 2010 date

clearly became the new “maturity date”, to which any

time thereafter the note would be “overdue” to begin the

five-year repose period under statute.

Paradoxically, the Panel’s ruling stands for the

proposition of extending the maturity date of the

8
mortgage beyond five years of it being “overdue”, under

the legislative intent of G.L c. 20, §33.

For instance, the Panel’s ruling completely ignores

the acceleration of the Petitioner’s note at all, where

the Panel errs finding that the original maturity date

of August 01, 2035 remains. The preceding is clearly

belied by the July 10, 2010 letter, and it also being

discharged in 2012. So, where the Defendant accelerated

the Petitioner’s note under paragraph 22 of the mortgage

contract, Defendant made the intentional election to

call in breach all of the terms of the mortgage,

including the original maturity date of August 01, 2035

for the loan to be paid off in full. Thereafter,

Defendant was solely left with an in-rem action to

enforce the mortgage itself, which again which statute

of limitations to do so is controlled under G.L. c. 260,

§33.

Like the issues related to Mortgage Electronic

Registration Systems, Inc., an undecided state law issue

continues to be guided by federal rulings, state trial

court rulings, and intermediate state appellate opinions

relying upon the same. Thus, examinations of the

Obsolete Mortgage Statute and “acceleration” and have

only attempted to guess as to how this Court would

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ultimately opine. The instant opinion also referenced

with approval the rulings by the First Circuit in Harry

v. Countrywide, Home Loans, Inc., 902 F.3d 16, 19 (1st

Cir. 2018).

The issue with all of these (non-precedential)

rulings is that they completely failed to ever undertake

any statutory construction or interpretation of G.L. c.

260, §33 with regard to the term maturity date and its

intersection with acceleration”. Instead these courts

opted to solely concentrate upon the literal “text of

the statute”. If this Court had limited its review in

Fitchberg solely to the “text” of G.L. c. 260, §33, it

never could have enunciated its ruling because the

literal text makes no mention of the underlying note. 1

Unlike previous federal court findings (and other

state court ruling relying thereon), in Fitchberg, this

Court clearly signaled that there was ambiguity present

in the legislative text with specific regard to the term

“maturity date”. 2 This was why this Court engaged in

1 The possible cause for this lies in the fact that the
legislative amendment to G.L c 260, §33 took place in
2006, six years prior to this Court’s ruling in Eaton v.
Fed Nat’l Assn. 462 Mass. 569 (2012).
2
Indeed, many rulings have held that this statute is
unambiguous as to its operation, i.e. that the five and
thirty-five year repose periods are clear. However, in
Fitchburg this Court clearly examined the specific

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statutory construction to discern the meaning of the

same. The issue of acceleration in the context of G.L.

c. 260, §33 was never raised in Fitchberg at the trial

level or on appeal, and as such it remains an open issue

under state law to which this Court has never

definitively opined.

As the instant ruling is the sole state appellate

ruling addressing the Obsolete Mortgage Statute and

“acceleration”, Petitioners respectfully state that this

is a matter of such importance that this Court should

opine as the final authority as to the state of

Massachusetts law with regard to this issue. The failure

to have the highest Court of the Commonwealth speak with

finality on this issue will result in that door remaining

continually open for the federal court and other trial

courts to merely guess as to how this Court would rule.

Such open-door policy would also leave open

arguments for creative counsel to continually advance

new theories under the existing paradigm. Finality of

ruling on these issues is critically important to both;

the title and mortgage lending industry, and the

citizens of this Commonwealth seeking to preserve title

ambiguity present with regard to the term “maturity

date”.

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to their real property. It is with the above in mind

that Petitioners respectfully request the extraordinary

relief requested under the instant Petition, which is

for this Court to take this matter up for further review.

2) Summary Statement

This petition for further appellate review arises

out of the dispute brought by Petitioners in which under

his First Amended Complaint, they alleged Count One for

declaratory judgment under G.L. c. 244, §14, Count Two

under 209 C.M.R. 18.21(A)(2)(c), and Count Three under

G.L. c. 260, §33. In the two (2) page Motion to Dismiss

filed by Defendant it solely relied upon findings made

by the Motion Judge in the order denying Petitioners’

injunctive relief. The entirety of Defendants’

Opposition with regard to Count three of Plaintiff’s

complaint was as follows:

“Count III fails as a matter of law because BONY

Mellon's foreclosure of the plaintiffs' mortgage
was not barred by the Obsolete Mortgage Statute.
The mortgage was alive and well and enforceable
when the property at issue was sold to a third
party at the public foreclosure sale held on
November 20, 2017. Based on the two clearly
defined claims and the correctness of the Court's
decision rejecting those claims in denying
injunctive relief, re-briefing or additional
briefing for this motion is not needed based on
Mass.R.Civ.P 1, which encourages the just, speedy
and inexpensive determination of every action.”

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 The Superior Court Judge entered ruling in favor of

the Defendant Bank of New York Mellon on its two page

Motion [with no supporting memorandum] under the finding

that the Petitioners’ Note was accelerated in 2015, and

therefore the 5 year repose period would not expire until

2020:

“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.”

Thus, the Superior Court made no examination of

the five-year repose period related to the June 10, 2010

acceleration letter due to its finding above. The

Superior Court Judge also failed to consider the fact

that the Petitioners subsequently filed for relief under

Chapter 7 of the U.S. Bankruptcy Code and was discharged

on October 18, 2012. The Superior Court Judge

additionally failed to consider the fact that there was

no Note to accelerate in 2015, as the same had been

discharged through the bankruptcy in 2012. Thus, the

Superior Court Judge made numerous errors in law in her

findings.

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 On appeal the Petitioners solely limited their

appellate argument related to Count III under G.L. c.

260, §33, and that they had advanced plausible claim for

the entitlement to relief thereunder. 3 In its March 03,

2020 ruling, the Panel referenced the 2015 “acceleration

letter” and the Petitioners’ discharge, and stated:

This is because the bankruptcy discharge voids

only actions in personam (such as on the
promissory note),and not in rem actions (such as
on the mortgage).”

The Panel erred in applying the law above, because the

Panel failed to consider the specific context of G.L. c.

260, §33 presented, with its five-year statute of

limitations to bring that “in rem” action to enforce the

security interest. That window clearly began on July 10,

2010. Further, the Discharge of Petitioners Note took

place on October 18, 2012 [RA-NIMS-092]. The instant

complaint was filed on October 18, 2017.

The Panel, respectfully submitted, erred in

applying the law by finding that Petitioners’ argument

was premised upon G.L. c. 260, §33 “shortening” the

maturity date of the Petitioners mortgage. Petitioners

advanced no such theory under their plausible claim for

3
This was due in large part from veiled threats from
opposing trial court counsel

14
relief. Petitioners plausibly argued that it was the

Defendant’s intentional election to utilize the

acceleration remedy under ¶22 of the mortgage contract,

not the statute itself, that advanced the original

maturity date of the mortgage to July 10, 2010. 4

The Panel acknowledged this Court’s findings in

Deutsche Bank Nat Trust Co. as Trustee, et. al. v.

Fitchberg Capital, LLC, 471 Mass. 248, 254, that “a

mortgage does not mature distinctly from the debts or

obligations that it secures” but the Panel opined that

Fitchberg did not involve acceleration.

Indeed, this was the precise reason for the

Petitioners’ litigation and appeal therefrom, which was

to examine the acceleration issue left open by this Court

in Fitchberg. The Panel further found that the above

pronouncement by this Court regarding the symbiotic

relationship of a mortgage maturity date to that of the

underlying debt was mere “dicta” [Opinion, at p. 11].

The Panel further erred in applying the law as stated by

this Court in Fitchberg by stating that this Court

“relied on those principles only as part of its analysis

4 Indeed, the five-year repose period under statute

begins when the note becomes “overdue”, [see Fitchberg
at p. 257]

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leading to the conclusion that where a mortgage does not

state its maturity date, but refers to the terms of the

note it secures, then the maturity date of the note is

to be considered the maturity date of the mortgage.”

[Opinion, at p. 12]. The Panel failed to appreciate the

fact that this pronouncement was not “dicta” but the

statement of the legislative intent of the definition of

the term “maturity date” itself for purposes of G.L c.

260, §33, see Fitchberg at p. 257.

In Fitchberg this Court clearly did not merely

limits its examination to solely rely upon the literal

“text” of G.L c. 260, §33 to make the above

determination. Indeed, nowhere within the legislative

text of G.L c. 260, §33 is there any mention of the word

“note” or “underlying indebtedness”. Thus, this Court

clearly found that the statue had inherent ambiguity

related to the term “maturity date”, as it thereafter

conducted statutory construction with regard to the

interpretation of this term, [see Fitchberg at p. 253].

The Panel also erred in applying the law, where it

operated as though the text of G.L. c. 260, §33 had no

ambiguity whatsoever and therefore the text solely

controlled the analysis.

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 Thus, with the above statutory construction

undertaken by this Court in Fitchberg in mind,

Petitioners’ plausibly alleged a claim for entitlement

to their relief under G.L, c. 260, §33, where the

Defendant intentionally advanced the original maturity

date of August 01, 2035 to become immediately due and

payable in full on July 10, 2010.

The Defendant indisputably chose to exercise the

contractual acceleration remedy under ¶22 of the

Petitioners’ under the bargained for terms of the

mortgage contract. In so doing, the Defendant declared

that the original contractual terms were in breach and

no longer applied (including the original “maturity

date” of August 01, 2035). Thereafter, Defendant

intentionally elected to accelerate the original August

01, 2035 maturity date to July 10, 2010. As proof of

said intention by Defendant, Petitioners received a June

10, 2010 notice that if they did not pay the entire

outstanding balance owed on the Note, the Defendant

would then “accelerate” the [maturity date’] on July 10,

2010, see also Ferreira v. Yared 32 Mass. 328, 330

(1992). As further proof of Defendant’s acceleration of

the maturity date under ¶22 of the mortgage, Defendant

thereafter caused to be scheduled an auction sale of the

17
Petitioners’ property. The preceding forced Petitioners

[through different counsel] to seek protection under

Chapter 7 of the U.S. Bankruptcy Code. Petitioner did

not elect to surrender their property. 5

At the time Petitioners filed the instant complaint

under review, [taking into consideration the tolling

period under the four-month pendency of the bankruptcy]

more than five years had passed since Defendant

accelerated the maturity date of the mortgage. Defendant

concedes that it never utilized the savings clause under

G.L. c. 260, §34, as it did not file any extension as

required under said section. This Court listened to

constitutional concerns in Fitchberg related to the

strict operation of G.L. c. 260, §34 and found those

claims unavailing where there was a safeguard under G.L.

c. 260, §34. [Fitchberg at p. 259].

This Court very clearly stated that under the 5-

year repose period envisaged under G.L c. 260, §33 that

a court should focus on the time period beginning when

the debt is “overdue” by five years, [see Fitchberg at

5 Thus, this appeal can be distinguished from the matter

that was recently before this Court on FAR-27062, and
which was remanded by this Court to the Appeals Court,
which is currently pending in Giannasca v. Deutsche
Bank, N.T. Co., et al. 2019-P-0349

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257]. G.L. c. 260, §34 also states that when seeking an

extension, there must be an affidavit filed on title

stating “that the mortgage remains unsatisfied, and if

the mortgage secures a promissory note or sum of money,

the amount believed to remain unpaid.” Here,

Petitioners’ Note was discharged on October 18, 2012.

Thus, the Defendant was only left with an in-rem

procedure to foreclose upon the security interest. That

in rem proceeding itself is clearly subject to G.L. c.

260, §33. The Petitioners mortgage clearly referenced

the maturity date of the note on the face of the

mortgage, indisputably placing this fact pattern firmly

within the five-year repose period.

The Panel erred in finding that the Petitioners’

mortgage maintained its original August 01, 2035

maturity date, where no further payments were scheduled

under the original contractual terms of the mortgage

contract (nor could they be after bankruptcy). Thus,

under this specific fact pattern, it would be impossible

for the maturity date of the note to continue to be 2035.

Further, the Panel’s finding completely ignores the

Defendants’ intentional election to call in breach all

of the mortgage terms, including the original maturity

19
date of August 01, 2035 as stated within the June 10,

2010 letter sent to Petitioners.

If let to stand, the Panel’s findings would set up

an absurd set of circumstances where Petitioners’ note

could be accelerated in 2010, then have Defendant never

request any more payments, and the mortgage would be

allowed to stagnate on title to not be obsolete until

2040. This would leave open an avenue for mortgage

holders to leave vacant properties stagnating to prevent

free alienation of real property. 6 In fact the Panel’s

ruling is antithetical of the legislative intent of G.L

c 260, §33, which is to allow free alienation of real

property. In support of their argument, Petitioners

cited to Delebreau v. Bayview Servicing, 680 F.3d 412

(4th Cir. 2012). The Panel found “that case does not

involve our obsolete mortgage statute”., but see Housman

v. LBM Fin., LLC, 80 Mass. App. Ct. 213 (2011); Harvard

45 Assocs., LLC v. Allied Props. & Mtges., Inc., 80 Mass.

6 Indeed, there are many examples of urban blight caused

by the failure to conduct timely foreclosure sales with
the associated properties subsequently becoming vacant
and stagnating. The preceding creates very real threat
and danger to the associated neighborhoods as frequently
drug transactions and other unscrupulous individuals
begin to use these vacated structures as “safe houses”
Such finding by the Panel would further encourage this
practice to continue unabated

20
App. Ct. 203 (2011), where both of these cases relied

upon out of state decisions to help construe G.L. c.

260, §33.

The instant Petition raises critically important

issues related to real property that is in dire need of

a finality of ruling from the highest judicial tribunal

in the Commonwealth. The failure of this Court to speak

to this issue will continue to leave the door open for

further argument, where relying upon predominately

federal court decisions such as Hayden v. HSBC Bank USA,

N.A., et al, Ca. No. 16-2274 and this intermediate

appellate ruling. Again, none of these rulings ever

undertook any statutory construction regarding the

discernment of “maturity date” and its intersection with

the acceleration of the underlying indebtedness.

3 Statement of the Undisputed Facts Relevant to

this Petition

On July 6, 2005, the Plaintiffs executed a

promissory note specifically payable to Omega Mortgage

Corp. in the amount of $375,000.00. To secure payment of

the debt the Plaintiffs executed a separate bi-lateral

Security Instrument Mortgage contract regarding their

property located at 402 Ashby Road, Ashburnham, MA ("the

premises"). This Security Instrument also represented

21
the Plaintiffs’ transfer of a defeasible fee title

interest in the premises to the Lender, Omega Mortgage

Corp. The Security Instrument Mortgage, at p. 1, ¶D [RA-

058] clearly and specifically identified Omega Mortgage

Corp. as the “Lender”, and further identified that the

Lender is the “mortgagee” under the Security Instrument.

However, at the same time the language of the Security

Instrument Mortgage contract, at p. 1, ¶ C, [RA-057],

also states that “MERS is a separate corporation that is

acting solely as a nominee for Lender and Lender's

successors and assigns. MERS is the mortgagee under this

Security instrument.” [RA-058]

In 2008, Plaintiffs began to fall behind on their

payments. In January of 2009, Plaintiffs wrote

Countrywide Mortgage Servicing, stating that they would

no longer be able to sustain the then monthly mortgage

payment amount, due to a medical condition [Plaintiffs

chronology of events was part of the record under MRCP,

R. 10(c), as it was attached to Plaintiffs’ verified

complaint; [see Exhibit H to complaint, at RA-NIMS-083

to NIMS-091]. On July 24, 2009, the Plaintiffs began a

“Modification process” with BAC Home Loans, Inc.,

whereby Plaintiffs submitted all requested paperwork. In

September 2009, Plaintiffs started making trial

22
modification payments of $2,046.62. The schedule for

these payments was supposed to be for three months only,

which Plaintiffs complied with.

Plaintiffs were informed by BAC that everything

“was Okay” and the paperwork was on its way. April 28,

2010, Plaintiffs received a letter from BAC Servicing

stating Plaintiffs did not ‘qualify’ because they did

not make all required payments by the end of the trial

period. Thereafter on April 28, 2010, Plaintiffs

immediately called BAC Servicing, and were informed that

this letter was sent in error, and to disregard it. BAC

further informed Plaintiffs that this matter would be

‘escalated’. Becoming apprehensive, on April 30, 2010

Plaintiffs again called BAC at 11:48am, and were

informed by a representative not to worry, and that

everything was okay. In fact, everything was not Okay as

Plaintiffs were being directed into foreclosure.

Plaintiffs were then informed that they “did not

qualify” for the modification, but that their case “was

still open”, where BAC would look for [more profitable

for BAC] programs for Plaintiffs. However, on the very

next day (June 10, 2010), Plaintiffs received a Notice

of Intention to Accelerate from BAC Home Loans

Servicing, LP (“BAC”) [RA-105]. The language of this

23
June 10, 2010 letter clearly attempts to follow

paragraph 22 of the Plaintiffs’ Security Instrument

contract language [RA-071, 072] stating that “if the

default is not cured on or before July 10, 2010, the

‘mortgage payments’ will be accelerated with the full

amount remaining accelerated and becoming due and

payable in full, and foreclosure proceedings will be

initiated at that time”.

Paragraph 22 of Plaintiffs’ Mortgage is entitled

“Acceleration: Remedies”, stating “that Lender shall

give Notice to Borrower prior to acceleration that

specifies a date not less than 30 days in which the

default may be cured and that the failure to cure on or

before the date specified [July 10, 2010], the Lender at

its option, may require immediate payment in full of all

sums secured by this Security Instrument and may invoke

the Statutory Power of Sale.

Plaintiffs failed to cure the default by July 10,

2010. Bank of New York Mellon as Trustee, and to date

have made no further payments thereon. Thereafter, BNYM

intentionally elected to exercise its option to declare

that all sums due on the note were “accelerated”, thus

advancing the maturity date of the Note from August 1,

24
2035, to then become immediately due and payable in full

on July 10, 2010.

Thereafter Plaintiffs hired different counsel to

request information from BAC as to why Plaintiffs were

denied the modification, and also thereafter stopped

making payments. August 2010, Plaintiffs put the

premises up for sale, by way of “short sale”. December

17. 2010, Plaintiffs received Notice that their

‘mortgage loan’ was purportedly ‘sold or transferred to

Bank of New York Mellon’ [individually, not in any

Trustee capacity] [RA-081]. Defendants fail to reference

Bank of New York Mellon [individually] in any chain of

ownership of Plaintiffs’ mortgage loan from the time of

its origination with Omega Mortgage Corp. [RA-050].

Plaintiffs received an offer to their short sale

listing of $209,000.00 in July 2011, which BOA accepted.

However, BOA took three months to respond to this offer,

and due to BAC failure to timely respond the buyer backed

out of deal due to the delay. Thus, Plaintiffs’ lost

the opportunity to sell the premises to limit their

losses as a proximate result of BAC failure to timely

respond. In August 2011, Plaintiffs renewed their short

sale attempt, but were now informed by BAC that their

“file had closed”. On September 06, 2011, a document is

25
executed purporting that the “beneficial interest” under

‘that certain mortgage and note(s) described therein,

were ‘assigned’ by Omega Mortgage Corp to Bank of New

York Mellon, as Trustee for the Certificateholders of

CWALT, Inc Alternative Loan Trust 2005-53T2 Mortgage

Pass-Through Certificates Series 2005-53T2 [RA-077]. On

October 12, 2011, a further document is executed further

purporting that the “beneficial interest” under ‘that

certain mortgage and note(s) described therein, were

[purportedly] NOW ‘assigned’ by Mortgage Electronic

Registration Systems Inc. (“MERS”) to Bank of New York

Mellon as Trustee for the Certificateholders of CWALT,

Inc Alternative Loan Trust 2005-53T2 Mortgage Pass-

Through Certificates Series 2005-53T2 [RA-079]. It is an

unquestioned fact that MERS maintains no interest, or

beneficial in notes. Loans, or instruments of

indebtedness and therefore MERS could not convey a non-

existent “beneficial interest” as stated upon the face

of the last purported “assignment”, [ref Eaton v. Fed.

Nat’l Mortgage Ass’n, 462 Mass 569, at n. 27 (SJC 2012),

and Culhane v. Aurora Loan Services. Of Neb. 708 F.3d

282, 287 (1st Cir. 2013); “it [MERS] does not have any

26
‘beneficial interest in the loan”. 7

Plaintiffs were informed that their “File” was

‘reopened” on November 15, 2011 by BOA ‘Loan Resolution

Group”. December 27, 2011 Harmon Law Office PC sent A

Notice of an Intention to Foreclosure to Plaintiffs.

Harmon Law Offices (purportedly on behalf of Bank of New

York Mellon). In response to the threatened and

purported statutory foreclosure auction sale, on July

07, 2012, Plaintiffs’ filed for relief under Chapter 7

of the U.S. Bankruptcy Code [RA-448]. On July 24, 2012,

Plaintiffs’ received ‘approval’ for Trial Modification

Plan, requiring payments of $2,431.97 for the months of

September-November of 2012, however Plaintiffs’ made no

further payments. On October 18, 2012, an Order was

entered by the Bankruptcy Court discharging Plaintiffs’

from personal liability on the Note [RA-448]. In July of

2013, Plaintiffs began receiving notices and dunning

calls from Resurgent Mortgage Services, identified as a

“sub-servicer”. June 27, 2014, Plaintiffs were

thereafter informed that the servicing of their mortgage

7
Additionally, at the time that the Culhane ruling was
decided, a “mortgagee” for statutory purposes of G.L.
c. 244, §14 was defined as only being required to be
in “possession” of the mortgage as a “holder”, with no
examination as to the Note

27
was now transferred to Shellpoint Mortgage Servicing.

May 29, 2015, Harmon Law Offices PC sent a purported

Notice of Intention to Foreclose unless $508,000.00 is

paid in Full [RA-461]. However, Plaintiffs Note was

already “accelerated” on July 10, 2010, and further

Plaintiffs were officially discharged from any personal

liability on the Note on October 18, 2012. The preceding

would therefore preclude BNYM from “accelerating” the

Plaintiffs’ Note in 2015. Undersigned contacted

Shellpoint at Plaintiffs’ request, where representatives

could not seem to locate Plaintiffs’ file. December 18,

2015 Plaintiffs’ received a Shellpoint letter entitled;

Notice of Default and Intent to Accelerate. April 16,

2016, Shellpoint 90 day right to cure letter sent. August

10, 2016, Plaintiffs receive “Order of Notice” that

Servicemember case filed in Land Court. On June 22, 2017,

a document is executed, then recorded upon the title to

the Premises, purporting that it is in compliance with

G.L. c. 244, §35B as well as G.L. c. 244, §35C [RA-466

September 18, 2017, Plaintiffs receive Notice of

Mortgage Foreclosure Sale would take place by public

auction on October 23, 2017 from Harmon Law Offices, PC

[RA-049]. On October 18, 2017, in order to prevent the

scheduled statutory auction sale, Plaintiffs filed a

28
Motion for Preliminary Injunction, with Memorandum of

Law in Support, along with an underlying verified

complaint including attached Exhibits thereto. 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.

4) Statement of the Prior Proceedings

On October 18, 2017, Plaintiffs’ filed An Emergency

Motion for Preliminary Injunction, Memorandum of Law in

Support [RA-013], and an underlying verified complaint

with attached Exhibits thereto [RA-031]. On October 18,

2017, the Hon. Campo, J., made endorsement that Short

Order of Notice should issue and that it shall be

returnable at the October 23, 2017 hearing on

Plaintiffs’ Motion for Preliminary Injunction [RA-009].

On October 23, 2017, the hearing was rescheduled at the

joint request of the parties. On November 11, 2017, the

Bank of New York Mellon, as Trustee filed its Opposition

to Plaintiffs’ Motion for Preliminary Injunction [RA-

430]. On November 11, 2017, hearing was held as scheduled

on Plaintiffs’ Motion for Preliminary Injunction. On

November 12, 2017, counsel for Bank of New York Mellon

as Trustee caused correspondence to be sent directly to

29
the Hon. Campo, J., CITING TO 2 CASE LAW DECISIONS;

Hayden v. HSBC Bank, USA, N.A., 867 F.3d. 22 (1st Cir.

2017) and Stone v. Stone, 2017 WL 3319269 (Mass. Land

Court 2017) [RA-475]. On November 13, 2017, Plaintiffs

filed a Response TO THE CASE CITATIONS SUPPLIED BY

COUNSEL FOR Bank of New York Mellon as Trustee (“BNYM”)

[RA-484].

On November 13, 2017, the Hon. Campo, J. Denied

Plaintiffs’ Motion for Preliminary Injunction, and

issued a written Order memorializing the basis for such

Denial [RA-492] On November 17, 2017, Plaintiffs’ filed

a Motion for Reconsideration of the Order Denying

Plaintiffs’ Motion for Preliminary Injunction [RA-499]

On November 24, 2017, counsel for BNYM filed Opposition

to Plaintiffs’ Motion for Reconsideration [RA-516]. On

December 13, 2017, the Hon. Campo, J. Denied the

Plaintiffs’ Motion for Reconsideration [RA-519]. On

December 20, 2017, Defendant BNYM filed its Two-Page

Motion to Dismiss under Superior Court Rule 9A [RA-

521],, which also included Plaintiffs Opposition thereto

[RA-526]. Thereafter the BYNM Defendant filed an

emergency Motion to Continue its hearing on its Motion

to Dismiss to allow its co-Defendant Bank of America to

file its own Motion to Dismiss. On February 20, 2018,

30
Defendant Bank of America filed its Motion to Dismiss

under Superior Court Rule 9A [RA-547], and Plaintiffs’

Opposition thereto [RA-555]. On May 22, 2018,

Plaintiffs’ submitted a Notice of Supplemental Authority

re the First Circuit vacating the decision in Hayden v.

HSBC Bank, USA, N.A., 867 F.3d. 22 (1st Cir. 2017) [RA-

606]. On June 19, 2018, hearing was held on both

Defendants Motion to Dismiss, (transcript of hearing

[RA-568]). On September 12, 2018, the Hon. Sullivan, J.,

issued her Memorandum Order and entered Judgment, in her

Allowance of Defendant BNYM Motion to Dismiss [RA-610].

On September 12, 2018, the Hon. Sullivan, J., Issued her

Memorandum Order and entered Judgment, in her Allowance

of Defendant Bank of America’s Motion to Dismiss [RA-

615]. On October 05, 2018, Plaintiffs filed their Notice

of Appeal [RA-622].

5. Points Upon Which Further Appellate Review

Is Sought

A. The Panel Erred In The Application of Law By

Failing To Undertake Statutory Construction
Expressed By This Court In Fitchberg Regarding The
Definition of The Term “Maturity Date”

Respectfully submitted, the Panel erred in the

application of the law as it failed to consider this

Court’s construction of G.L. c. 260, §33 as stated in

Deutsche Bank, N.T. Co. v Fitchberg Capital, LLC, 471

31
Mass. 248, 253-258 (2015).

1. Deutsche Bank, N.T. Co. v Fitchberg Capital, LLC,

471 Mass. 248, 253-258 (2015)

While this Court did not specifically examine the

“acceleration” issue in Fitchberg [as it was not raised

at either the trial or appellate level], it is not

subject to dispute by Defendant that this Court did

specifically construe the legislative intent as to the

definition of the term “maturity date” as used within

G.L. c. 260, §33. This Court found ambiguity related to

this term, which caused this Court to undertake statutory

construction to glean the legislative intent for its

usage, see Fitchberg at p. 253.

This Court consulted Black’s Law Dictionary for

the following definition

“When interpreting the phrase, "mortgage in which

the term or maturity date of the mortgage is stated,"
that triggers the five-year statute of limitations,
"[w]ords and phrases shall be construed according to
the common and approved usage of the language." G.
L. c. 4, § 6,Third. According to Black's Law
Dictionary 478, 1163 (10th ed. 2014), "maturity
date" means "[t]he date when a debt falls due, such
as a debt on a promissory note or bond," and
"mortgage" means "[a] conveyance of title to
property that is given as security for the payment
of a debt or performance of a duty and that will
become void upon payment or performance according to
the stipulated terms." Thus, the common meaning of
the "maturity date of the mortgage" is the date on
which the underlying debt is due because a mortgage
derives its vitality from the debt that it secures.”
Fitchberg at pp. 253-254

32
This Court then affirmatively stated that the above

definition comports with the treatment of mortgages

under our Massachusetts common-law principles:

“This definition comports with the treatment of

mortgages under our common-law principles. Although
a mortgage and a note are separate entities in
Massachusetts that can be split, it has long been
recognized that "a mortgage ultimately depends on
the underlying debt for its enforceability." Eaton
v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 576,
578 n.11 (2012), citing Crowley v. Adams, 226 Mass.
582, 585 (1917), Wolcott v. Winchester, 15 Gray 461
(1860), and Howe v. Wilder, 11 Gray 267, 269-270
(1858). By its nature, a mortgage does not mature
distinctly from the debts or obligations that it
secures. See Eaton, supra at 577-578 ("the basic
nature of a mortgage [is] security for an underlying
mortgage note"); Barnes v. Lee Sav. Bank, 340 Mass.
87, 90 (1959) ("The debt having been extinguished,
a bond or mortgage given as security for the debt is
necessarily discharged"). Accordingly, a mortgage is
a device for providing security for a loan, but it
does not generally have a binding effect that
survives its underlying obligation. [Note 10] See
Piea Realty Co. v. Papuzynski, 342 Mass. 240, 246
(1961), quoting Pineo v. White, 320 Mass. 487, 489
(1946) (unless other equitable considerations apply,
"payment of the mortgage note . . . terminates the
interests of the mortgagee without any formal . . .
discharge and revests the legal title in the
mortgagor"). Therefore, the judge's interpretation
of the statute corresponds to the plain meaning of
the language chosen by the Legislature. Fitchberg at
pp. 254

In Fitchberg, this Court interpreted the statute,

and determined that said repose period begins when the

debt is “overdue” [not paid off at the original maturity

date]:

“Under the amendment, the statute requires the

33
 holder of a mortgage to foreclose on the mortgage,
record a document asserting nonsatisfaction, or
record an extension before the mortgage has been
on record for thirty-five years or before the
secured debt is overdue by five years (and the due
date is stated on the face of the mortgage). See
St. 2006, c. 63, § 6. The statute has never been
interpreted to require satisfaction of a
mortgage's underlying obligations before the
mortgage becomes unenforceable.” Fitchberg at pp.
257

However, this Court did not consider the

intentional act of the mortgagee “accelerating” the

original “maturity date” stated upon the face of the

mortgage as this issue was never raised at the trial

or appellate court level in Fitchberg. Thus, under the

interpretive guidance of this Court, the remaining

open question under state law for the Panel to have

considered was whether the intentional election of the

mortgagee to “accelerate” the maturity date under the

bargained for terms under ¶22 of the Petitioners’

mortgage contract advanced the original “maturity

date” of August 01, 2035 to the date of the

acceleration [July 10, 2010]. The Panel failed to make

this examination of the amended statute.

2. The Appeals Court Has Previously Held That The

Intentional Act of Acceleration Advances The
[original] “Maturity Date” Stated on The Face of
The Mortgage To Become Immediately Due and
Payable In Full

34
 In Ferreira v. Yared, 32 Mass. 328, 330 (1992),

the Appeals Court opined as follows:

“...the act of acceleration advances the maturity of

the debt; the debt becomes immediately due and
payable...”

In making the above pronouncement, the Appeals

Court in Ferreira clearly also turned to case law outside

the Commonwealth to support its position. In addition,

the same Appeals Court recently affirmed its analysis in

Ferreira in, Forty Pine, LLC v. Country Bank for Savings,

95 Mass.App.Ct. 1108 (1:28) (2019), citing to Ferreira

v. Yared, 32 Mass. 328, 330 (1992); Clean Harbors, Inc.

v. John Hancock Life Ins. Co., 64 Mass.App.Ct. 347, 356

(2005); and Pacific Trust Co. v. Fidelity Fed. Sav. &

Loan Ass’n, 184 Cal.App.3d 817 (1986). While these cases

examined “acceleration” within the context of a

“prepayment penalty”, the analysis remains the same with

regard to the advancement of the original “maturity

date” after a note is “accelerated”. Thus, there is

clearly historical precedent from Appeals Court

decisions that indisputably have determined that

acceleration advances the maturity date stated upon the

face of the mortgage. These same decisions also clearly

turned to rulings from other jurisdictions and federal

courts to support their analysis.

35
 B. The Panel Erred In The Application of The Law By
Its Failure To Examine The Historical Definition
of The Term Maturity Date

Respectfully submitted, the Panel erred in

applying the law in many different ways and manner.

Additionally, the Defendant never even discussed the

Obsolete Mortgage issue in its Appellee Brief.

1. The Panel Incorrectly Found That Petitioners’

Theory For Their Entitlement To Relief Was
Premised Upon G.L. c. 260, §33 “Shortening The
Maturity Date”

Indeed, at p. 10 of the Panel’s Opinion it states

as follows:

“What remains is the plaintiffs' contention that

acceleration of the note in 2010 also "accelerated"
the "maturity date" of the mortgage for purposes of
the obsolete mortgage statute. The language of the
statute does not support or suggest this contention.
Equally important, the argument is at odds with the
purpose and design of the statute which, as we set
out above, establishes dates at which old mortgages
will be deemed discharged so as to quiet title. It
does not shorten the period of enforceability of
mortgages before their maturity date or term has
been reached.”

First, the Petitioners’ never stated that the

statute itself “shortened the maturity date”, but

rather clearly stated that it was Defendant’s act of

“acceleration” shortened the maturity date. Second, the

Panel errs by solely finding that “the language of the

statute” does not support Petitioners’ claim. Again, the

36
Panel failed to undertake any statutory construction of

the term “maturity date” as defined by this Court in

Fitchberg. 8 In fact, the Petitioners’ argument is

supported by the precise purpose, design and intent of

the amended statute

The Panel cited a 1st Circuit case Harry v.

Countrywide Home Loans, Inc., 902 F.3d 16, 19 (1st Cir.

2018), see Harry at 19.

“there is no suggestion in either that statute, or,

as the Harrys suggest, in the Massachusetts Supreme
Judicial Court’s decision in Deutsche Bank Nat. Tr.
Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 28
N.E.3d 416 (2015), that the acceleration of a note
has any impact on the limitations period for a
mortgagee’s right to foreclose.”

Indeed, G.L. c. 260, §33 is silent to

“acceleration”, but it was also silent to any reference

at all to the underlying note. The preceding was why

this Court in Fitchberg found ambiguity (referencing

Eaton and other case law) and undertook statutory

construction regarding the term “maturity date”.

The First Circuit failed to conduct any statutory

construction regarding legislative intent or consider

8
Indeed, the seminal cases for this line of thinking
has its genesis from the 1st Circuit ruling in Hayden
v. HSBC Bank USA, C.A. 16-2274, [orig decided Aug. 08,
2017, undersigned had this decision vacated Aug. 2018,
renewed decision by new panel April 17, 2020

37
the line of cases from the intermediate appellate court

finding that the intentional election of the mortgagee

to “accelerate” the note advances the maturity date of

the mortgage. In the last footnote of the instant

Opinion, the Panel acknowledges that Petitioners’ cited

to Delebreau v. Bayview Loan Servicing, LLC, 680 F.3d

412 (4th Cir. 2012), but stated “that case does not

involve our obsolete mortgage statute.” Yet, the same

Appeals Court had previously considered extra-

jurisdictional cases in discerning the Massachusetts

Obsolete Mortgage statute, see Harvard 45 Associates,

LLC v. Allied Properties and Mortgages, Inc. 80

Mass.App.Ct. 203, 209 (2011) 9, see also Houseman, Tstee

v. LBM Financial, LLC, 80 Mass.App.Ct. 213, 219 (2011).

These cases also held that the statute was “unambiguous”

however made such finding solely with respect to the

repose periods and operation of statute, not the

“maturity date” [see Houseman at 219, and Harvard 45 at

208]. 10

2. The Panel Erred In Not Considering That

Defendant’s Election To Foreclose Is An In Rem

9 Citing Willow Tree Invs., Inc. v. Wilhelm, 465 N.W.2d

849, 850 (Iowa 1991), and Pro-Max Corp. v. Feenstra,
117 Nev. 90, 95 (2001)
10 Again, acceleration was not raised as an issue in

these cases.

38
 Action That Is Governed By The Repose Periods
Under G.L. c. 260, §33

At p. 10 of the Opinion, the Panel references the

Petitioners bankruptcy, and goes into discussion that:

“...a mortgage has separate enforceability from a

note”, and that foreclosure is an alternate remedy
to collection on the note, citing Pearson v.
Mulloney, 289 Mass. 508, 515 (1935); Jeffrey v.
Rosenfeld, 179 Mass. 506, 509-510 (1901).

Both of the cited cases by the Panel above never

considered the 2006 amended Obsolete Mortgage Statute.

The Panel, respectfully submitted, also lost sight

of the fact that the foreclosure of Petitioners’

mortgage was an in rem proceeding subject to the five-

year repose period under G.L. c. 260, §33. 11 The Panel

states that the mortgage maintains “separate

enforceability”, but fails to recognize that the window

of that enforceability was limited. It is undisputed

that no further periodic payments were due under the

original scheduled terms agreed to by the parties. This

fact alone shows that the “maturity date” of the mortgage

was no longer August 01, 2035, but July 10, 2020.

3. The Panel’s Finding That Petitioners’ “Maturity

Date” Remained August 01, 2035 After Its
Acceleration Is At Odds With The Bargained For

11Undersigned discussed this to the Panel at oral

argument, [after fumbling to locate the June 10, 2010
letter].

39
 Terms of The Mortgage Contract, Previous Case Law,
and This Court’s Examination in Fitchberg

At p. 10 of its Opinion, the Panel states

“As noted above, we apply that holding here to

conclude that the mortgage's maturity date is
August 1, 2035, the same as for the note.”

Again, Petitioners directed the Panel to Ferreira

v. Yared, 32 Mass. 328, 330 (1992), the bargained for

language of ¶22 of the mortgage contract 12; and cited to

Delebreau v. Bayview Servicing, 680 F.3d 412 (4th Cir.

2012). Petitioners’ discussed Delebreau in their opening

brief and its relevance to the instant fact pattern.

Indeed, in previous matters examining the Obsolete

Mortgage Statute, the Appeals Court has turned to extra-

jurisdictional rulings for guidance. Yet in the instant

Opinion the Panel only briefly referenced Delebreau in

the final footnote, and thereafter stated that

apparently it did not even consider this ruling solely

because this case “did not involve the obsolete mortgage

statute”,

Delebreau found that:

12
Paragraph 22 of Plaintiffs’ Mortgage is entitled
“Acceleration: Remedies”, stating ...the failure to cure
on or before the date specified [July 10, 2010], the
Lender at its option, may require immediate payment in
full of all sums secured by this Security Instrument and
may invoke the Statutory Power of Sale. Defendant did
both of these things in 2012.

40
 “As stated above, the deed of trust [mortgage]
provided that,[680 F.3d 416] upon acceleration, “
all sums secured by this Security Instrument and
accrued interest thereon shall at once become due
and payable.” (Emphases added.) Because no
additional payments were scheduled thereafter, the
acceleration date became “the due date of the last
scheduled payment of the agreement, within the
intendment of the statute of limitations.”
Therefore, the original schedule of payments, which
would have ended on June 1, 2030, no longer had any
effect under the terms of the deed of trust.”
Delebreau at 415.

In Delebreau, Delebreau took a remarkably similar

position as the Panel. Delebreaus’ position before the

Fourth Circuit was discussed by the Fourth Circuit as

follows:

“By contrast, the Delebreaus' suggested

interpretation implausibly would result in the
claims expiring on June 1, 2031, more than two
decades after the Delebreaus' default...Delebreaus'
claims were barred under the one year period imposed
by the statute of limitations, which began to run
from the acceleration date set by Bayview in
accordance with the terms of the deed of trust“
Delebreau v. Bayview Loan Servicing, LLC, 680 F.3d.
412, 416-417 (4th Cir 2012)

Like Delebreau, the due date of the last scheduled

payment on Petitioners’ mortgage was July 10, 2010, with

no further scheduled payments thereafter. Thus, the

five-year repose period began to run from the

acceleration date set in the mortgage contract terms at

¶22. 13

13
Plaintiffs did not file their bankruptcy petition

41
 Further, the Petitioners received their discharge

on October 18, 2012, thus at the time the Petitioners

filed the instant complaint on October 18, 2017, they

had also established the five-year repose period post

discharge in which Defendant did not exercise its in rem

remedy, nor did it file any extension as stated in G.L.

c. 260, §34. Thus, Defendant is subject to the strict

operation of G.L. c. 260, §33. 14

4. The Panel’s Ruling Represents A Departure From

Settled Law Regarding Acceleration Advancing The
Maturity Date of The Note

This Court has clearly opined that it is the date

that the note becomes “overdue” that initiates the five-

year repose period when referenced on the face of the

mortgage, Fitchberg at 257; and that a mortgage does not

mature distinctly from the debt it secures, Fitchberg at

until July 12, 2012, thus, at the time of Petitioners’

bankruptcy filing, Petitioners had already established
2 years under the five-year G.L. c. 260, §33 statute
of repose [from July 10, 2010 acceleration]. Only
three months after filing, the Petitioners’ bankruptcy
was discharged on October 18, 2012, to which the clock
began to tick anew under G.L. c. 260, §33. Five years
later, Plaintiffs filed the instant complaint on
October 18, 2017.
14 Under the Panel’s ruling, Defendant could wait until

2040 to exercise its “in rem” remedy, or file an

extension under G.L. c. 260, §34, even though the Note
would be “overdue” by thirty years, compare Fitchberg at
257.

42
254. 15 16 17

5. Statutory Construction Must Go Beyond The

Literal Text When There Results An Absurd or
Antithetical Application

When undertaking statutory construction, the case

law decisions have stated:

“...plain meaning is not invariably the be all and

end all of statutory construction. If a plain-
meaning interpretation produces outcomes “that are
either absurd or antithetical to [the legislature's]
discernible intent,” an inquiring court must
continue its search.” Stornawaye Fin. Corp. v. Hill
(In re Hill ), 562 F.3d 29, 32 (1st Cir.2009); accord
Sullivan, 758 N.E.2d at 115.” In re Llc, 642 F.3d
263, 54 Bankr.Ct.Dec. 221, 265 (1st Cir., 2011)

And when confronting a statute of repose:

“A statute of repose is a product of the Legislature.

Its scope sweeps broader than any interests of

15 LaRace presents a variation of this argument in that

the LaRace family never filed bankruptcy, and
additionally they were the unnamed family in this
Court’s seminal ruling on foreclosure in U.S. Bank Nat’l
Ass’n v. Ibanez, 458 Mass. 637 (2011)
16
If the instant opinion is allowed to stand there will
be an inherent conflict in the application of the law
related to the “acceleration” of a note, and the
resultant effects that flow from said action
17
In a companion appeal brought by undersigned, LaRace
v. Wells Fargo Bank as Tstee, et. al., 2019-P-1507, a
Land Court Judge opined that his position was that one
should not be required to search “off record” to
determine the accelerated maturity date, which would
create hardship and/or confusion. However, there are
required filings to be placed upon title after
acceleration under recent statutory amendments to G.L.
c. 244, §35C and G.L. c. 24, §35B, as well as the
Servicemember’s Notice. These filings would clearly
alert those searching title that the original “maturity
date” of a particular mortgage has been “accelerated’
from its original “maturity date”

43
 judicial economy and it is not within our power to
rewrite such legislation...See Prudential Ins. Co.
of America v. Boston, 369 Mass. 542, 547 (1976)
(“function of the court” is to construe statute as
it is written “and an event or contingency for which
no provision is made does not justify” court to
rewrite statute's terms or conditions to meet such
event or contingency, as may arise).” Ry-Co Int'l,
Ltd. v. Voniderstein, 89 Mass.App.Ct. 1130, 54
N.E.3d 606(Table) (1:28 Mass. App., 2016)

The Panel’s suggested interpretation of “maturity

date” implausibly would result in the Defendant’s claims

expiring under G.L. c. 260, §33 five years after August

01, 2035 (August 01, 2040), more than three decades after

the Petitioners' default. 18

6. Conclusion

For all the foregoing reasons, it is respectfully

requested that this Petition for Further Appellate Review

be Allowed. It is also requested that this Court also

consider taking up LaRace v. Wells Fargo Bank, NA., 2019-

P-1507 sua sponte’ on this same issue [as well as the many

other first impression issues in that matter].

Respectfully Submitted,
Petitioner,
by their Attorney

__________________

Entities in Defendant’s position would be able to tie

18

up real property title for decades. One such motive to

do so would be to leave a status quo in the hope of
property appreciation. All of this of course would be
antithetical to this Court’s discernable intent in
defining “maturity date” in G.L. c. 260, §33.

44
 Glenn F. Russell, Jr.
BBO# 656914

Glenn F. Russell, Jr., &

Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
Phone: (508) 324-4545
Fax: (508) 938-0244
russ45esq@gmail.com

CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on

this 13th day of May 2020, I emailed a copy of the
preceding Application for Further Appellate Review to
the Defendants counsel of record listed below, and have
filed the same on the e-file tyler system, to the
following counsel of record:
Edward P. O’Leary
Harmon Law Offices, P.C.
150 California Street
Newton, MA 02458

John McCann
1080 Main Street
Pawtucket, RI 02806

__________________
Glenn F. Russell, Jr.

45
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

19-P-179 Appeals Court

STEPHEN D. NIMS & another1 vs. THE BANK OF NEW YORK MELLON,
trustee,2 & another.3

No. 19-P-179.

Worcester. December 3, 2019. - March 3, 2020.

Present: Wolohojian, Agnes, & Neyman, JJ.

Mortgage, Real estate, Acceleration clause, Foreclosure. Real

Property, Mortgage, Tax title. Bankruptcy. Notice,
Foreclosure of mortgage. Negotiable Instruments, Note.

Civil action commenced in the Superior Court Department on

October 18, 2017.

Motions to dismiss were heard by Susan E. Sullivan, J., and

entry of judgment was ordered by her.

Glenn F. Russell, Jr., for the plaintiffs.

Connie Flores Jones, of Texas, for Bank of America, N.A.
Edward P. O'Leary for The Bank of New York Mellon.

1 Vickie L. Nims.

2 For the certificateholders of CWALT Inc., Alternative Loan

Trust 2005-53T2.

3 Bank of America, N.A.

 2

WOLOHOJIAN, J. The obsolete mortgage statute, G. L.

c. 260, § 33, provides that

"[a] power of sale in any mortgage of real estate

shall not be exercised and an entry shall not be made
nor possession taken nor proceeding begun for
foreclosure of any such mortgage after the expiration
of, in the case of a mortgage in which no term of the
mortgage is stated, 35 years from the recording of the
mortgage or, in the case of a mortgage in which the
term or maturity date of the mortgage is stated, 5
years from the expiration of the term or from the
maturity date . . . ."

The question presented in this case is whether acceleration of a

note secured by a mortgage accelerates the "maturity date" of

the mortgage for purposes of the obsolete mortgage statute. We

conclude that it does not, and we accordingly affirm the

dismissal of the claims against Bank of New York Mellon (BNYM).4

Background. The plaintiffs executed a promissory note on

July 6, 2005, which was secured by a mortgage on property they

owned in Ashburnham.5,6 The note called for monthly payments

4 The plaintiffs appeal from the judgment dismissing their

complaint. The only claim the plaintiffs press on appeal
against BNYM is the one pertaining to the obsolete mortgage
statute; all other arguments are accordingly waived. The
plaintiffs raise no issue on appeal regarding Bank of America.

5 The pertinent facts are undisputed.

6 The note was in the amount of $375,000, was in favor of

Omega Mortgage Corp. (Omega), and was secured by a mortgage on
the plaintiffs' property at 402 Ashby Road in Ashburnham. The
mortgage identified Mortgage Electronic Registration Systems,
Inc. (MERS), as the nominee for Omega, and also as a mortgagee.
In October 2011, MERS assigned the mortgage to BNYM and BNYM
also became the holder of the note.
 3

over thirty years and defined August 1, 2035, as the "[m]aturity

[d]ate" for the loan. By contrast, the mortgage did not

explicitly state its term or maturity date. The mortgage did,

however, refer on its face to the July 6, 2005 note, and made

reference to the requirement that the debt be paid in full no

later than August 1, 2035.

The plaintiffs fell behind in the payments due on the note,

and on June 10, 2010, they received a "Notice of Intention to

Foreclose," stating that they were in arrears in the amount of

$23,493.82, and that "[i]f the default is not cured on or before

July 10, 2010, the mortgage payments will be accelerated with

the full amount remaining accelerated and becoming due and

payable in full, and foreclosure proceedings will be initiated

 4

at that time" (emphasis added).7,8

In July 2012, the plaintiffs filed for Chapter 7 bankruptcy

protection, and in October 2012, they were discharged from

personal liability on their debts, including the July 6, 2005

promissory note. The plaintiffs acknowledge that the bankruptcy

discharge of their obligations under the note did not extinguish

7 In the event of default, the mortgage permitted (but did

not require) the lender to accelerate the sums due on the note,
provided proper notice to the borrower and an opportunity to
cure. Paragraph 22 of the mortgage provided:

"Acceleration; Remedies. Lender shall give notice to

Borrower prior to acceleration following Borrower's breach
of any covenant or agreement in this Security Instrument
. . . . The notice shall specify: (a) the default; (b)
the action required to cure the default; (c) a date, not
less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified
in the notice may result in acceleration of the sums
secured by this Security Instrument and sale of the
Property. The notice shall further inform Borrower of the
right to reinstate after acceleration and the right to
bring a court action to assert the non-existence of a
default or any other defense of Borrower to acceleration
and sale. If the default is not cured on or before the
date specified in the notice, Lender at its option may
require immediate payment in full of all sums secured by
this Security Instrument without further demand and may
invoke the STATUTORY POWER OF SALE and any other remedies
permitted by Applicable Law."

8 The June 10, 2010 notice was not the first step in
terminating the mortgagors' rights under the mortgage; instead,
it was "designed to give [the] mortgagor[s] a fair opportunity
to cure a default before the debt is accelerated and before the
foreclosure process is commenced through invocation of the power
of sale." U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421,
431 (2014).
 5

the defendants' rights under the mortgage. See Christakis v.

Jeanne D'Arc Credit Union, 471 Mass. 365, 369 (2015)

("Massachusetts case law has long provided that liens perfected

well before the filing of a bankruptcy petition remain valid

after a discharge"). This is because the bankruptcy discharge

voids only actions in personam (such as on the promissory note),

and not in rem actions (such as on the mortgage). Id. at 371.

In June 2014, the plaintiffs received a "150 Day Right to

Cure" letter, stating that they had failed to make their monthly

payments from November 2009 through June 2014, and that if they

did not pay the arrearage of $157,108.80 by November 21, 2014,

they "may be evicted from your home after a foreclosure sale."

On May 29, 2015, the Harmon Law Offices, P.C. sent a letter

to the plaintiffs informing them that it had been retained to

foreclose on the mortgage. The letter notified the plaintiffs

that "the note is hereby accelerated," but also stated that the

plaintiffs "may still have the right to reinstate the loan."

Consistent with the legal principle we set out above, the letter

recognized that since the plaintiffs' obligations on the note

had been discharged in Chapter 7 bankruptcy, they were "not

personally liable for this obligation, but the Holder may

proceed to foreclose as described herein if the default is not

cured."
 6

On behalf of BNYM, Harmon notified the plaintiffs in

September 2017 that the property would be sold at a foreclosure

auction on October 23, 2017. In response, the plaintiffs sought

a preliminary injunction to stop the foreclosure sale, and they

also filed this suit, seeking a declaration that the defendants

were not entitled to foreclose on the property.9 Among other

things, the plaintiffs claimed that, for purposes of the

obsolete mortgage statute, the "maturity date" of the mortgage

was accelerated from August 1, 2035, to July 10, 2010, the date

of the acceleration of the note, if they did not cure their

default. Essentially, the plaintiffs' argument is that the

"maturity date" of the mortgage for purposes of the obsolete

mortgage statute is the date by which full payment of the loan

secured by the mortgage is due. According to the plaintiffs,

therefore, the statutory power of sale had to be exercised

within five years of the July 10, 2010 acceleration date and,

because it was not exercised until 2017, it was untimely.

Discussion. The obsolete mortgage statute sets time

periods after which a "mortgage shall be considered discharged

for all purposes without the necessity of further action by the

9 By agreement, the sale was postponed to November 20, 2017.

On November 13, 2017, after a hearing, a Superior Court judge
denied the request for a preliminary injunction, and the
foreclosure sale took place thereafter.
 7

owner of the equity of redemption or any other persons having an

interest in the mortgaged property." G. L. c. 260, § 33. In

other words, the statute acts as a self-executing mechanism by

which to quiet title with respect to old mortgages. In its

current form, the statutory period is "[thirty-five] years from

the recording of the mortgage or, in the case of a mortgage in

which the term or maturity date of the mortgage is stated,

[five] years from the expiration of the term or from the

maturity date, unless an extension of the mortgage, or an

acknowledgement or affidavit that the mortgage is not satisfied,

is recorded before the expiration of such period."10,11 Id.

The statute is designed to create a definite point in time

at which an old mortgage will be deemed discharged by operation

of law; nothing suggests that the statute is designed to shorten

the period during which a mortgage is enforceable. In this way,

it serves to quiet title with respect to old mortgages, without

shortening the period of enforceability of mortgages before

their term or maturity date has been reached. See generally

Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213 (2011); Harvard

10As originally enacted in 1957, the statute had limits of

fifty and ten years, as did the 1975 version. The current
version was enacted in 2006. See St. 2006, c. 63, § 6.

11Extensions must satisfy the requirements of G. L. c. 260,

§§ 34 and 35.
 8

45 Assocs., LLC v. Allied Props. & Mtges., Inc., 80 Mass. App.

Ct. 203 (2011). It is important to observe that the statute

does not affect rights and remedies with respect to notes

underlying mortgages; nor does continuing liability on the note

affect application of the statute with respect to the mortgage.

See Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471

Mass. 248, 257 (2015). In other words, the statute respects and

preserves the traditional separate viability and enforceability

of the mortgage and the note.

Our reading of the language of the statute is consistent

with the legislative history leading to its enactment. The

statute was enacted in 1957 as part of a larger legislative

effort12 to enact laws to address "[t]he urgent public need both

for greater reliability of records and for shorter safe periods

for searches" of land records. Thirty-Second Report of the

Judicial Council of Massachusetts, Pub. Doc. No. 144, at 20

(1956), reprinted in 41 Mass. L.Q. (No. 4, 1956). "The problem

is to assure that our land title recording system serves

effectively the public needs notwithstanding the great increases

in volume of records and complexity of titles over the 300 years

12These efforts included earlier legislation pertaining to

"obsolete attachments, . . . formal defects, entries, reverters
and ancient leases." Thirty-Second Report of the Judicial
Council of Massachusetts, Pub. Doc. No. 144, at 20 (1956)
(Report), reprinted in 41 Mass. L.Q. (No. 4, 1956).
 9

and more since the system was designed and adopted, and will

serve effectively public needs now foreseeable due to increase

in frequency of sales, mortgages and other title transactions

resulting from increasing mobility of population and business

and shifts from rural to urban land patterns." Id. "Protection

of titles against obsolete mortgages is an important part of

this modern problem." Id. at 21.13

13 The legislative history spelled out a specific set of

practical problems the statute was designed to address:

"The fact that more and more people cannot afford

extended title searches leads to shorter searches.

"Title attorneys probably cannot be held negligent if

they follow the customs of the community as to length of
search. The resultant risks of prior interests not
disclosed unavoidably fall on owners and investors who
often do not fully appreciate them, and when the interests
later come to light, both the individuals affected and the
reputation of the bar suffer, whether the interests remain
enforceable or not. The more the risks of obsolete
interests, the less is the value of searches to the
purchaser or investor, the less he is justified in paying
for searches, the more the pressure for abbreviated
searches, and the more the risk again resulting, so that we
have in effect a vicious circle. Already, it is reputed,
some banks have been forced to accept on practically a self
insurance basis, much shorter searches than are customary
or now generally considered 'safe.'

"On the other hand title attorneys cannot keep from

being influenced by fears of what the most meticulous of
other title advisors may do if next called on to pass the
same title, however remote the practical risks of
dispossession may be. The cumulative effect of these fears
over the years means that there are always some whose
standards are tighter than those of a generation or two
earlier, and that the chances of challenge by the most
meticulous gradually increase. Again we have a vicious
 10

With this understanding of the statute and its history in

hand, we turn to the facts of this case. As noted above, the

mortgage at issue here did not explicitly state its term or

maturity date. It did, however, refer on its face to the July

6, 2005 note, and made reference to the requirement that the

debt be paid in full no later than August 1, 2035. In these

circumstances, using common-law interpretive principles, the

term or maturity date of the underlying obligation (i.e., the

note) is considered the term or maturity date of the mortgage.

Fitchburg Capital, LLC, 471 Mass. at 253-255. Thus, in this

case, the mortgage is to be read as having a thirty-year term

and a maturity date of August 1, 2035. Accordingly, the lender

was required, under the obsolete mortgage statute, to exercise

its power of sale within five years of August 1, 2035. See id.

at 258 ("we read the quoted language in [the] mortgage to state

the term or maturity date of [the] mortgage, making [it] subject

to the five-year statute of limitations"). BNYM was well within

the allowed period when it exercised the statutory power of sale

in 2017.

circle that impairs the ability of the recording system to

meet the public needs. And the combination of these trends
means an increasing diversity of standards being applied,
and resultant confusion and lack of efficient operation of
the system."

Report, Pub. Doc. No. 144, at 21.

 11

What remains is the plaintiffs' contention that

acceleration of the note in 2010 also "accelerated" the

"maturity date" of the mortgage for purposes of the obsolete

mortgage statute. The language of the statute does not support

or suggest this contention. Equally important, the argument is

at odds with the purpose and design of the statute which, as we

set out above, establishes dates at which old mortgages will be

deemed discharged so as to quiet title. It does not shorten the

period of enforceability of mortgages before their maturity date

or term has been reached.

We note that our reading of the obsolete mortgage statute

is consistent with the long-standing rule that, under

Massachusetts law, a mortgage has separate enforceability from

its underlying note. A mortgage continues to be enforceable in

an in rem proceeding against the security, separate from an in

personam action against the debtor on the note. Thus,

foreclosure on the mortgage is an alternate remedy to collection

on the note. See Pearson v. Mulloney, 289 Mass. 508, 515

(1935); Jeffrey v. Rosenfeld, 179 Mass. 506, 509-510 (1901).

For this reason, for example, the mortgage remains enforceable

in rem even when personal liability on the note has been

discharged fully in bankruptcy. Christakis, 471 Mass. at 371.

Although we recognize that the Supreme Judicial Court, in

Fitchburg Capital, 471 Mass. at 254, stated in dicta that "a

 12

mortgage does not mature distinctly from the debts or

obligations that it secures," and that a mortgage "does not

generally have a binding effect that survives its underlying

obligation," that case did not involve the acceleration of a

note; nor did it involve shortening the maturity date of the

mortgage as the plaintiffs seek here. Moreover, the court

relied on those principles only as part of its analysis leading

to the conclusion that where a mortgage does not state its

maturity date, but refers to the terms of the note it secures,

then the maturity date of the note is to be considered the

maturity date of the mortgage. Id. at 253-255. As noted above,

we apply that holding here to conclude that the mortgage's

maturity date is August 1, 2035, the same as for the note.14

Conclusion. For these reasons, we affirm the judgment.

So ordered.

14The United States Court of Appeals for the First Circuit

has reached the same conclusion we do here. See Harry v.
Countrywide Home Loans, Inc., 902 F.3d 16, 19 (1st Cir. 2018).
The plaintiffs point to Delebreau v. Bayview Loan Servicing,
LLC, 680 F.3d 412 (4th Cir. 2012), but that case does not
involve our obsolete mortgage statute.