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Morgan Lewis

Wayne E. George
Associate
+1.617.341.7596
wayne.george@morganlewls.com

June 24, 2019

VIA EMAIL AND FEDERAL EXPRESS

Glenn F. Russell, Jr., Esq.


38 Rock Street, Suite #12
Fall River, MA 02720

Re: H. Christopher Starkey, et al. v. Deutsche Bank National Trust Co., et al.
Barnstable Superior Court. Civil Action No. 0972-CV-00829

Dear Attorney Russell

Pursuant to Superior Court Rule 9A, enclosed please find a copy of Defendants Deutsche Bank
National Trust Company, as Trustee, and JPMorgan Chase Bank, N.A.'s Motion for Judgment on
the Pleadings and Memorandum in Support, in the above matter.

If you have any questions, please feel free to contact me.

Sincerely,

Enclosures

0B1/ 104883175.1

Morgan, Lewis & Bockius LLP

One Federal Street


Boston, MA 02110-1726 0 +1.617.341.7700
United States 0 +1.617.341.7701
COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS Superior Court

H. CHRISTOPHER STARKEY, ET AL.,

Plaintiffs,

V. Civil Action No. 0972-CV-00829

DEUTSCHE BANK NATIONAL TRUST


COMPANY, ET AL.,

Defendants.

MOTION FOR JUDGMENT ON THE PLEADINGS


OF DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE, AND JPMORGAN CHASE BANK, N.A.

Pursuant to Superior Court Rule 9A and Mass. R. Civ. P. 12(c), Defendants, Deutsche

Bank National Trust Company, as Trustee and JPMorgan Chase Bank, N.A., hereby move for

judgment on the pleadings in favor of Counts I, II, III, IV, V, VI and VII of plaintiffs'

Complaint.

In support of this motion, Defendants rely on the arguments set out more fully in the

accompanying Memorandum of Law


Respectfully submitted,

JP MORGAN CHASE BANK, N.A.,


DEUTSCHE BANK NATIONAL TRUST
COMPANY as TRUSTEE FOR W AMU
MORTGAGE PASS THROUGH
CERTIFICATES SERIES 2006-ARl TRUST

By Their Attorneys,

"----8tarn;:tsL. Solomont, Bar No. 557190


carl.s lomont@morganlewis.com
ssa M. Brown, Bar No. 697097
vanessa.m. brown@morganlewis.com
Elizabeth M. Bresnahan, Bar No. 672577
elizabeth.bresnahan@morganlewis.com
Wayne E, George, Bar No. 656856
wayne.george@morganlewis.com

MORGAN, LEWIS & BOCKIUS LLP


One Federal Street
Boston, MA 02110-1726
Telephone: + 1.617.341.7700
Facsimile: +1.617.341.7701

Dated: June 24, 2019


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document was served upon counsel

ofrecord via email and Federal Express on June ~.

DBl/ 104882382.1
COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS Superior Court

H. CHRISTOPHER STARKEY, ET AL.,

Plaintiffs,

V. Civil Action No. 0972-CV-00829

DEUTSCHE BANK NATIONAL TRUST


COMPANY, ET AL.,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS


OF DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE,
AND JPMORGAN CHASE BANK, N.A. 1

With the Appeals Court having remanded this action to the Superior Court for further

proceedings (see Starkey v. Deutsche Bank National Trust Company, 94 Mass.App.Ct. 1 (2018)

(the "Appeals Court OpiJlion '), defendants Deutsche Bank National Trust Company as Trustee

1
The moving defendants are the only operating defendants that have not been previously
dismissed from this action. Chase Home Finance LLC was merged into JPMorgan Case Bank,
N.A. on May 1, 2011. See State of Delaware Certificate of Merger, attached hereto as Exhibit A,
of which the court can take judicial notice. Schaer v. Brandeis Univ., 432 Mass. 474,477
(2000)("[W]hile the allegations of the complaint generally control in evaluating a motion under
rule 12(b)(6), 'matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint, also may be taken into account."'); (the plaintiffs voluntarily
dismissed Washington Mutual, Inc. on December 4, 2009, pursuant to Rule 41(a)(l)(i) (see
Docket at entry no. 4 (hereinafter "Dkt No. xx")); as reflected in the Court's Order entered on
March 10, 2010 (Dkt 8), and a judgment of dismissal entered on April 30, 2010 (Dkt 11), the
Court dismissed Washington Mutual Bank, FA and Washington Mutual Mortgage Securities
Corp. for plaintiffs' failure to effectuate timely service; Washington Mutual Mortgage Service
Corporation appears to be a non-existent entity. Finally, although an entity referred to as ATM
Corporation is named as a defendant in the caption of the complaint, there is not a single
allegation in the Complaint that refers to A TM Corporation and nothing filed by plaintiffs to
demonstrate that they ever served the complaint on any such entity.

DBl/ 104880114.1
for WaMu Mortgage Pass Through Certificates Series 2006-ARl Trust ("Deutsche Ban.It') and

JPMorgan Chase Bank, N.A. ("Chase" and, together with Deutsche Bank, the "Moving

Defendants" or "Movants"), pursuant to Mass. R. Civ. P. 12(c), hereby move for judgment on

the pleadings as to all of the unresolved Counts of the Complaint, Counts I through IV and VI

and VII. 2

The case arises from a $1,000,000 residential mortgage loan that Washington Mutual,

Bank, FA ("WaMu") made to the plaintiffs in 2005. See Complaint 19 and Exhibit 2 thereto.

On September 25, 2008, WaMu was declared insolvent and placed into receivership of the

Federal Deposit Insurance Corporation (FDIC). See Appeals Court Opinion, Appeals Court

Opinion, 94 Mass.App.Ct. at 1, citing Thompson v. Washington Mut., 806 F. Supp. 2d 197, 199

(D.D.C. 2011). The FDIC immediately transferred substantially all ofWaMu's mortgage loan

assets to Chase, which then, according to the Complaint, transferred the Starkey's loan to

Deutsche Bank. Appeals Court Opinion at 4; Complaint 175. The plaintiffs defaulted on their

payment obligations under the pertinent promissory note in 2008. Complaint 116. Deutsche

Bank, as Trustee of the Trust, took steps to foreclose on the mortgaged property securing the

loan that WaMu had originated. Appeals Court Opinion, 94 Mass.App.Ct. at 2; Complaint 117.

In response, the plaintiffs filed this action in 2009 asserting seven causes of action challenging

the validity of the note and mortgage, and seeking damages, rescission of the loan agreement,

and other remedies.

2
Count V of the Plaintiffs' complaint was settled as to Chase and the Court subsequently entered
a judgment of dismissal as to Count V against Chase on April 26, 2016. See Docket at entry no.
46 . Count V as to Deutsche Bank was dismissed by order dated September 4, 2014 (Dkt 30)
and judgment entered on July 27, 2016 (Dkt 48), as corrected by judgment entered February 3,
2017 (Dkt 58). The Plaintiffs did not appeal the grounds for dismissal of Count V.

DBl/ 104880114.1 2
The claims remaining in the case should all be dismissed for the numerous reasons set

forth below (none of which plaintiffs challenged on appeal). Among other things, as this

Court already ruled in its Memorandum of Decision on Defendants' Motions to Dismiss (see

Dkt 30), with the possible exception of Count I, the Complaint's causes of action each fail to

state a claim on which relief can be granted because each alleges no acts or omissions of Chase

or Deutsche Bank. Rather, they all arise from acts or omissions that occurred incident to

WaMu's origination of the loan, before the Moving Defendants held any interest in, or had any

involvement whatsoever in, the note and mortgage. As to Count I of the complaint, it alleges

that defendants do not have a valid or enforceable interest in the note and mortgage at issue, and

thus cannot enforce them or foreclose, because, when WaMu "securitized" the loan by selling it

into a "securitized mortgage pool" held by the Trust, the "Defendants failed to follow the

requirements and protocol for securitization set forth in the [T]rust's prospectus." Complaint,,

10, 15, and 195-200. As detailed below, that claim cannot stand because it is well established

that borrowers like the plaintiff lack standing to claim that a note or mortgage is not enforceable

merdy because of non-compliance with an assignment agreement to which they are not a party.

PROCEDURAL HISTORY/STATUS IN LIGHT OF APPEAL

Chase and Deutsche Bank originally moved to dismiss the complaint in its entirety in

2014. Dkts 9 & 10. In its Memorandum of Decision on Defendants' Motions to Dismiss, this

Court granted those motions as to, and entered a judgment dismissing, each of the seven causes

of action in the Complaint other than Count V as to Chase. Dkts 30, 48 & 58. (The parties

settled plaintiffs' claim as to Count V against Chase and the claim was subsequently dismissed

by the Court. See Dkt 46)

As to each of the dismissed causes of action other than Count I (which is plaintiffs' claim

that Chase lacks standing to foreclose), this Court's rationale for dismissal was two-fold. First,

DBl/ 104880114.1 3
the Court dismissed Counts II, III, IV, V, VI, and VII against the remaining defendants because

(i) the Complaint alleges no conduct or omission by any party other than the loan originator,

WaMu, and therefore fails to state a claim for relief against them/the Moving Defendants; 3 and

(ii) since all of the claims arise from alleged actions or omissions of WaMu, the claims are

precluded by the 'jurisdictional bar" of the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989, 12 U.S.C.A. § 1821(d) ("FIRREA") The sole ground on which this

Court dismissed Count I in its Memorandum of Decision on Defendants' Motions to Dismiss

was that it was barred by FIRREA.

Plaintiffs appealed the judgment as to Counts I through IV and VI and VII. The sole

issue that plaintiffs challenged on appeal was the second of the two grounds on which this Court

dismissed the plaintiffs' claims: that FIRREA bars them. See Notice of Appeal filed on August

23, 2016 (Dkt. 49) appealing the order of dismissal entered on April 26, 2016 (which ultimately

resulted in the judgment entered on July 27, 2016 (Dkt. 48) which dismissed all counts except

Count V). See also, Appellants' Opening Brief (attached hereto as E xhibit B) at p. 1-2, setting

forth the Statement oflssues, all of which center on whether the subject Mortgage was an asset

of WaMu at the time of its failure and the applicability of FIRREA thereto. The Appeals Court

confirmed this, noting that "[o]n appeal the only issue before us is whether FIRREA requires

dismissal of these counts." Appeals Court Opinion, 94 Mass.App.Ct. at 1110. 4 As explained

3
As to Count VII (alleging violation the borrower's interest statute, G. L. c. 183, § 28C (a)), this
Court did not expressly dismiss it based upon the absence of any allegations of acts or omissions
by the Moving Defendants. At the same time, like the allegations underlying Counts II - IV and
VI, Count VII arises solely from acts of WaMu and alleges no acts or omissions by the Movants.
4
The Appeals Court was under the mistaken belief that "[t]he motion judge ordered the dismissal
of all but one claim in the complaint ---- count 5 against JPMorgan Chase ---- solely on the basis
of FIRREA." Id. . As explained supra, , as to all Counts other than the since-dismissed Count V,
the Court also found that those Counts failed to state a claim upon which relief could be granted

D81/ 104880114.1 4
supra, and as this Court's September 4, 2014 Memorandum of Decision and Order on

Defendants' Motion to Dismiss (see Dkt 30) (the "Order on MTD") states clearly, this Court

dismissed most of the Complaint's causes of action as to the non-WaMu defendants (the

Movants) on the additional/alternative ground that the allegations failed to state a claim for relief

against them, a ground for dismissal that the plaintiffs did not challenge on appeal.

As to the sole issue before it -- whether FIRREA bars the plaintiffs causes of action --

the Appeals Court reversed, holding that "[ e]xcept to the extent, if any, that the plaintiffs seek

money damages from Washington Mutual, or arguably JPMorgan Chase as the bank that

assumed its rights and/or liabilities from the FDIC, then, we conclude their claims are not barred

by FIRREA." Appeals Court Opinion, 94 Mass.App.Ct. at 1115. Significantly for purposes of

this motion for judgment on the pleadings, plaintiffs did not challenge on appeal this Court's

dismissal of the Complaint to the extent that it fails to state a claim against the Movants because

i1 alleges no acts or omissions Qf any defendant other than WaMu. 5 Not only did the Plaintiff

on the alternative ground that it alleged no acts or omissions of Chase or Deutsche Bank, the
moving parties.
5
In its Memorandum of Decision and Order on Defendants' Motion to Dismiss ("Order')
granting the Moving Parties Motions to Dismiss, the Court noted the following: Count II: "The
Starkeys do not allege any conduct or omissions by any party other than WaMu that forms the
grounds for rescission under c. 140D ... " Order at 4; Count III: "However, the plaintiff,s do not
plead any facts relating to conduct by Deutsche Bank, JPMC, Chase Home, or WaMu Service at
any time thereafter; this aspect of the fraud claim finds no support against any defendant except
WaMu. " Order at 5; Count IV: Finding that "a breach can only be found where the plaintiff,s
prevail on the merits of the underlying claim for violation of c. 140D" and "{t]hus, the breach of
contract claim arises out of the acts or omissions of WaMu ... " Order at 6; Count V: As to all
defendants except Chase, the Court held that "[t]he defendants also argue that only [Chase], as
the loan servicer of the plaintiff,s' mortgage, is bound by RESPA, and thus the plaintiff,s fail to
state a claim against the other defendants. The Court agrees. " Order at 8; Count VI: "As
discussed above with respect to Count III, the plaintiff's common law fraud claim, this court can
only identify pleaded facts relating to the conduct of WaMu at the time of the loan origination
that could support a claim offraud - the plaintiff,s fail to allege any facts relating to fraud by the
other defendants, let alone any sufficient to meet the heightened pleading standard. Accordingly,
the 93A claim is also limited solely to the acts and omissions of WaMu ... " Complaint at 7;

DBl/ 104880114.1 5
not challenge on appeal this Court's prior ruling to that effect (in this Court's Memorandum of

Decision and Order on Defendants' Motions to Dismiss), but, as explained below, this Court's

prior rulings to that effect are correct. Those correct rulings are The Law Of The Case.

For this reason, other than Count I (which this Court dismissed based solely on the

FIRREA jurisdictional bar), all of the causes of action dismissed by operation of this Court's

Order on MTD fail for, among other reasons, the very reason that this Court stated in its Order

on MTD (see Dkt 30) and that plaintiffs did not challenge on appeal: alleging no acts or

omissions of any defendant other than WaMu, all of the causes of action other than Count I fail

to state a claim against the Moving Defendants, Chase and Deutsche Bank. See Section C(l), at

pp. 11-13, infra. As to Count I, it fails to state a claim for relief because the plaintiffs lack

standing to argue, as they try to do in Count I, that the defendants' alleged failure to comply with

the terms of a pooling and service agreement by which WaMu transferred the loan to Deutsche

Bank invalidates the transfer and thus renders the note and mortgage unenforceable.

ARGUMENT

A. Legal Standard

"[A]ny party may move for judgment on the pleadings," "[a]fter the pleadings are

closed ... " 6 Mass. R. Civ. P. 12(c). A motion for judgment on the pleadings under Mass. R. Civ.

P. 12(c) is a motion to dismiss for failure to state a claim upon which relief can be granted, and is

analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526, 529-530

Count VII: The Court describes the plaintiffs' claim relating to the Borrower's Interest Act, G.L.
c. 183, § 28C(a) as a "type ofstate consumer protection claim arising solely from the acts or
omissions of an originating bank", which in this instance is WaMu. Id.
6
The pleadings have been closed in this case since March 18, 2019 when the Court
allowed Defendants leave to file the operative answer in this case. See Dkt. 67.

0B1/ 104880114.1 6
(2002). The court accepts as true well-pleaded factual allegations and reasonable inferences

drawn therefrom, Marram v. Kabrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004), but does not

accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor

Co., 451 Mass. 623, 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000);

see Jarosz, 436 Mass. at 529-530. The court may take into account matters of public record and

documents integral to, referred to, or explicitly relied on in the complaint, whether or not

attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass.

at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550,

555 (2008); Shue! v. Deleso, 2008 WL 2068211 at *1, n. 2 (Mass. Land Court 2008).

B. Since the plaintiffs' were not a party to the pooling and service agreement by which
Deutsche Bank, as Trustee, was sold the plaintiffs' loan, plaintiffs cannot sustain their
claim in Count I that non-compliance with that agreement leaves Deutsche Bank with
no valid or enforceable right to enforce the mortgage.

Allegations pertaining to Count I. According to the Complaint, when WaMu "undertook

the Starkey's mortgage" in 2005, "it had no intention to be the 'true lender' and had presold the [

] loan to a securitized mortgage pool" held by the WaMu Mortgage Pass Through Certificates

Series 2006-ARl Trust (the "Trustee"), of which defendant Deutsche Bank National Trust

Company is trustee ("Deutsche Bank, as Trustee"). Complaint ,r,r 2, 10, 15. At other points in

the Complaint, plaintiff alleges that the transfer to Deutsche Bank, as Trustee, of the plaintiffs'

mortgage loan with WaMu occurred in September 2008, after Chase acquired all ofWaMu's

assets from the FDIC when WaMu was declared insolvent and placed into receivership with the

FDIC. Complaint ,r 75. Irrespective of whether the mortgage loan and note were transferred to

Deutsche Bank, as Trustee, in 2006 or in 2008, the Complaint alleges that, when WaMu

transferred the loan to Deutsche Bank, as Trustee, "the Defendants failed to follow the

requirements and protocol for securitization set forth in the Trust's Prospectus and Pooling and

DB!/ 104880114.1 7
Service Agreement" (the "PSA") and thereby "failed to properly convey the [ ] mortgage note

into the trust." Complaint ,i,i 15, 74, 195. "As such," according to Count I of the Complaint,

"Defendants have no valid or enforceable interests and rights in and to the note and mortgage"

and thus no standing to foreclose on the mortgage. Complaint ,i 200. 7

Argument for dismissal of Count I. Plaintiffs' Count I fails because it is well established

that borrowers like the plaintiffs are not entitled to evade enforcement of a mortgage loan

agreement based upon a claim of non-compliance by the mortgage holder with a pooling and

service agreement by which the holder of the mortgage received it. For example, the Appeals

Court recently affirmed- in a similar case argued by Plaintiffs' counsel here - that where a

"borrower has not plausibly alleged that assignment of her mortgage (or her note) to Deutsche

Bank was void, under the [Pooling & Servicing Agreement] or otherwise, [] she has no basis to

challenge Deutsche Bank's status as a 'mortgagee' ... with the power to foreclose." Ressler v.

Deutsche Bank Trust Co. Americas, 92 Mass. App. Ct. 502, 509 (2017). In Ressler, as in the

present case, the borrower complained that Deutsche Bank's failure to comply with the operative

pooling & servicing agreement rendered the assignment of her mortgage and note invalid. Id. at

504-05. Accordingly, she argued, the Bank had no power to foreclose on her property. Id.

Citing to authority from the Massachusetts Appeals Court in which plaintiffs were, again,

7
The reality is that the timing of when Deutsche Bank acquired the mortgage has no bearing on
Deutsch Bank being its rightful holder now. Deutsche Bank either received the mortgage in
connection with the closing of the PSA by January 30, 2006, the time by which "[t]he PSA states
that those assets ... would be conveyed to the trust," (see Appeals Court Opinion, 94
Mass.App.Ct. at 5 ); or, if WaMu still held the mortgage in 2008, Deutsche Bank acquired the
note by assignment from Chase after the FDIC had transferred all of WaMu's assets to Chase in
2008. See Appeals Court Opinion, 94 Mass.App.Ct. at 4. Either way, by 2009 Deutsche Bank,
holding the note, has "attempted to foreclose the plaintiffs' mortgage as the purported holder of
the plaintiffs' mortgage." Complaint ,i 17. Section 3-301 of the Massachusetts Uniform
Commercial Code entitles "the holder of the instrument" to enforce it.

DB1/ 104880114.1 8
represented by plaintiffs' counsel here, the court in Ressler dismissed plaintiffs' claim, holding

that, under principles of both trust and contract law, the borrower had no standing to invalidate

the foreclosure based on her allegation of non-compliance with the pooling & servicing

agreement, in large part because she was not a party to that agreement, nor an intended

beneficiary. Id. at 505-508; See Strawbridge v. Bank ofNew York Mellon, 91 Mass. App. Ct.

827, 832-34 (2017) (citing Woods v. Wells Fargo Bank, NA., 733 F.3d 349, 354 (1st Cir. 2013)

(affirming dismissal of action on grounds that borrower-plaintiff lacked standing to challenge

Bank's power to foreclose where there was no evidence to suggest that the assignment was

void); US. Bank v. Natl. Assn. v. Bolling, 90 Mass. App. Ct. 154, 157 (2016) (finding that

mortgagor-plaintiff lacked standing to challenge assignment of mortgage; plaintiffs "contention

that the assignment was not made in accordance with the terms of the PSA ... is [] the type of

latent defect that renders an assignment merely voidable"); see also Rajamin v. Deutsche Bank

Nat. Trust Co., 757 F.3d 79, (2d Cir. 2014) (affirming district court ruling that "plaintiffs

[mortgagors] lacked standing to enforce [pooling and servicing] agreements to which they were

not parties and of which they were not intended beneficiaries"); Woods v. Wells Fargo Bank,

NA., 733 F.3d 349,354 (1st Cir. 2013) ("[C]laims that merely assert procedural infirmities in the

assignment of a mortgage, such as failure to abide by the terms of a governing trust agreement,

are barred for lack of standing."); Wells Fargo Bank NA. v. Erobobo, 127 A.D.3d 1176, 1178 9

N.Y.S.3d 312 (N.Y. App. Div. 2015) (finding that "mortgagor whose loan is owned by a trust,

does not have standing to challenge the plaintiff's possession or status as assignee of the note and

mortgage based on purported noncompliance with certain provisions of the [Pooling and

Servicing Agreement]").

DBl/ 104880114.1 9
The facts are no different here. Like in Ressler, plaintiffs here allege that Deutsche

Bank's non-compliance with the Pooling and Servicing Agreement by which Deutsche Bank

came to hold the mortgage loan invalidates Deutsche Bank's power to foreclose on their loan.

See Complaint ,r,r 15 (emphasis added) ("Defendants failed to follow the requirements and

protocol for securitization set forth in the trust's Prospectus and Pooling and Servicing

Agreement."); ,r,r 73-74 (emphasis added) ("In the securitization process, the note and the

mortgage were supposed to follow a path as described in the Pooling and Service Agreement.

That did not happen."). Because plaintiffs' allegations merely claim that the Pooling and

Servicing Agreement is voidable, and not void under statute or otherwise, plaintiffs lack standing

to argue that Deutsche Bank lacks power to foreclose and judgment should enter for the Moving

Defendants on this claim.

C. This Court's original, pre-appeal dismissal of Counts IL IIL IV.£ VL and VII of the
Complaint on the ground that those causes of action allege no wrongdoing by the
Movants and thus fail to state a claim for relief against them (i) was not challenged by
the plaintiffs on appeal and is thus is The Law Of The Case and, (ii) in all events was
correctly decided.

1. This Court's holding that plaintiffs cannot sustain Counts IL IIL IV. .!:i VL
and VII as to the Moving Defendants because they allege no wrongdoing
against the Movants that would give rise to liability on those claims is The Law
Of The Case.

This Court granted the Moving Defendants' motions to dismiss (see Dkt 30) on two

grounds. One was that FIRREA barred the plaintiffs' claims. The Appeals Court reversed that

decision. The second ground for dismissal, which plaintiffs did not challenge on appeal, was

that, with the exception of Count V as to Chase only and which, as to Chase, was subsequently

resolved by agreement, the Complaint alleged wrongdoing only on the part of the loan originator,

WaMu, and alleged no acts or omissions of the Moving Defendants that satisfied any of the

elements of the plaintiffs' causes of action. Specifically, this Court found that "the Starkeys

DBl/ 104880114.1 10
bring seven causes of action against the defendants, six of which clearly 'arise out of and relate

exclusively to pre-receivership acts and omissions' of WaMu, the failed institution, or the

FDIC." Memorandum of Decision pp. 3-4. See also id. at 4, as to Count II ("The Starkeys do

not allege any conduct or omissions by any party other than WaMu that forms the grounds for

rescission under c. 140D"), at 5, as to Count III for fraud ("The plaintiffs plead a multitude of

facts regarding the acts and omissions ofWaMu that support the contention that the failed

institution engaged in extensive fraud during the origination of the loan. However, the plaintiffs

do not plead any facts relating to conduct by Deutsche Bank, JPMC, Chase Home, or WaMu

Service at any time thereafter; this aspect of the fraud claim finds no support against any

defendant except WaMu."), at 6 as to Count IV for breach of contract ("a breach can only be

found where the plaintiffs prevail on the merits of the underlying claim for violation of c. 140D,

set out in Count II [which failed in part because] the breach of contract claim arises out of the

acts or omissions of [only] WaMu"); at 7 as to Count VI for violation of c. 93A ("As discussed

above with respect to Count III, the plaintiffs' common law fraud claim, this court can only

identify pleaded facts relating to the conduct of WaMu at the time of the loan origination that

could support a claim of fraud - the plaintiffs fail to allege any facts relating to fraud by the other

defendants, let alone any sufficient to meet the heightened pleading standard"); at 7 as to Count

VII for violation of c. 183, s. 28C (summarizing the count as a "violation of the Borrower's

Interest Act, G.L. c. 183, s. 28C(a) by the originating bank" and as "arising solely from the acts

or omissions of an originating bank.").

After reviewing and digesting the plaintiffs 249-paragraph, seven-count complaint,

Judge Muse wrote a thoughtful, well-reasoned decision dismissing the Complaint on two

separate bases. Plaintiffs only appealed one of them. Having not challenged this Court's

D81/ 104880114.1 11
dismissal of the Complaint insofar as it fails to state a claim as to the Moving Defendants on

which relief can be granted (because it alleges no acts or omissions by them), the Court's ruling

to that effect is the Jaw of the case and plaintiffs have waived their right to c/1a/lenge it

Gillis v. Gillis, 8 Mass.App.Ct. 48, 50 (1979) (finding that where grounds for granting a motion

"had not been pressed on appeal [,they] are deemed waived" on a remand of the case based upon

reversal as to properly appealed issues). See also Blake v. Springfield St. Ry. Co., 9

Mass.App.Ct. 912, 913 (1980), (holding that plaintiff was foreclosed from raising an issue on

appeal as "that question could have been raised in the first appeal"), citing Levenson v. Brockton

Taunton Gas Co., 5 Mass.App.Ct. 883 (1977). Accord, Labor Relations Div. of Const. Industries

of Mass., Inc. v. Teamsters Local 379, 156 F.3d 13, 17 (1st Cir. 1998) ("When a party could have

raised an argument in his initial appeal, and failed to do so, he has generally waived his right to

raise that argument on remand or on appeal from remand."). Compare, Aronson v.

Commonwealth, 401 Mass. 244, 253-54 (1987) ("The plaintiff has not challenged the grant of

summary judgment in favor of the Commonwealth on the due process and privileges and

immunities claims, and she has therefore waived any right to seek appellate review of those

issues."); Thompson v. Massachusetts Teachers Ass 'n, No. 10-P-1645, 2011 WL 4357360, at *2

n.5 (Mass.App.Ct. Sept. 20, 2011 )(1 :28) (failure to brief an issue on appeal constitutes waiver of

that issue).

2. Beyond being the law of the case, this Court's dismissal of Counts lb, IIL IV.
£ VI and VIL because they allege no acts or omissions of the Moving
Defendants, was the legally correct analysis and decision.

While many allegations of the Complaint specify that they pertain to conduct of WaMu

(by referring to WaMu by name), other allegations misleadingly refer to acts of the "defendants"

generally even though the context makes clear that the allegations pertain to events that occurred

before or in connection with the origination of the loan and thus, ipso fact, involved conduct of

DBl/ 104880114.1 12
only W aMu. Among other things, plaintiffs assert a laundry list of claims against all defendants

together without alleging any wrongful conduct on the part of the Movants. See Complaint at ,r,r

194-249. "To the extent that a count fails to mention a defendant, that defendant must be

dismissed from that particular cause of action. . .. A plaintiff cannot state a valid claim against a

party without even naming the party in the allegations." Billbrough v. Reslow, CA930999, 1994

WL 879843, at* 1 (Mass. Super. Jan 5, 1994) (dismissing claims against certain defendants

where no allegations were made in the complaint concerning them); see Sires v. Hefferman, 2011

WL 2516093, at *5 (D. Mass. 2011) (recognizing that plaintiffs "cannot 'lump' defendants

together when it cannot be reasonably inferred that all of the defendants were involved in the

alleged misconduct, or it is otherwise not clear to which defendant or defendants the plaintiff is

referring"). Because plaintiffs have failed to allege any wrongful conduct by the Moving

Defendants in relation to Counts II-VII, Order on MTD at 5, each of these theories ofliability

should be dismissed. In particular:

First, with respect to Count II (the Massachusetts Consumer Credit Cost Disclosure Act,

"MCCCDA", codified as M.G.L. c. 140D), as this Court found, "[t]he Starkeys do not allege any

conduct or omissions by any party other than WaMu that forms the grounds for rescission under

c. 140D ... " Indeed, plaintiffs' claim that "Defendants failed to provide the Starkeys with

required disclosure documents at settlement, and understated the cost of financing [sic] ... ,"

Complaint ,r 202, rests entirely on allegations relating to events allegedly occurring "[ d]uring the

origination of the Starkeys mortgage," Complaint ,r 12; see also, e.g., id. at ,r,r 32-33, 36, 38, 39,

53 (alleging failures by Washington Mutual to comply with TILA and Massachusetts' Version of

TILA, G.L. c. 140D).

DBl/ 104880114.1 13
Second, with respect to Count III (Fraud), this Court has already acknowledged the

"absence of any pleaded facts identify[ing] misrepresentations or false documentation produced

by any defendant, with the exception of WaMu." Order on MTD at 5. As this Court already

reasoned, plaintiffs' fraud claim rests on three types of misrepresentations - 1) failure to disclose

material facts regarding the loan transaction, as to which this Court concluded that "the plaintiffs

do not plead any facts relating to conduct by Deutsche Bank, JPMC, Chase Home, or WaMu

Service at any time [after the origination of the loan]" and that "this aspect of the fraud claim

finds no support against any defendant except WaMu" (Order on MTD at 5) misrepresentation of

facts in the origination of the loan, regarding which this Court concluded that "[c]learly, as

WaMu was the only defendant that was a party to the origination of the loan, this aspect of the

plaintiffs' fraud claim is also limited to the acts and omissions of WaMu" id at 3) a contention

that defendants created false records, regarding which this Court concluded that, as against

Deutsche Bank, Chase, Chase Home, or WaMu Service, "such a contention is without any

support in the pleadings." Order on MTD at 6 (citing Guo v. Datavantage Corp., 2008 WL

660338, at *5 (D. Mass. 2008); see also Complaint at ,r 10 ("At the time [WaMu] undertook the

Starkeys' mortgage, it had no intention to be the 'true lender' ... "); ,r14 ("As part of Defendants'

inducement of the Star keys to refinance their mortgage, Defendants engaged in fraudulent

conduct. .. ") (emphasis added); ,r ,r 86-89 (alleging "at least three major areas of evidence that

indicate that there was appraisal fraud by Washington Mutual"); ,r,r 100-112.

Third, plaintiffs' Breach of Contract claim (Count IV) fails against Moving Defendants

for the same reasons that its Count II MCCCDA claim cannot proceed. As this Court found, "a

breach can only be found where the plaintiffs prevail on the merits of the underlying claim for

violation of c. 140D, set out in Count II." (Order on MTD at 6) Therefore, because "the breach

D81/ 104880114.1 14
of contract claim arises out of the acts or omissions of WaMu," id. , plaintiffs cannot proceed

against Moving Defendants on Count IV.

Fourth, plaintiffs' RESP A claim (Count V) alleging failure to respond to qualified

written requests as required by 12 U.S.C. § 2605(e), cannot stand as to Deutsche Bank. As the

Court indicated in its Order on MTD, "Section 2605(e) is titled 'duty of loan servicer to respond

to borrower inquiries.' Only JPMC was a servicer of plaintiffs' loan at the time the letters

[qualified written requests] were sent; none of the other named defendants has a duty to respond

to the plaintiffs['] letters under RESP A. Accordingly, the defendants' Motions to Dismiss must

be ALLOWED with respect to COUNT V for all defendants with the exception of JPMC." As

noted above, Count Vas to Chase has been resolved by agreement. Plaintiffs', therefore, cannot

proceed against Moving Defendants on Count V.

Fifth, with respect to plaintiffs' c. 93A claim (Count VI), this Court has held that it "can

only identify pleaded facts relating to the conduct of WaMu at the time of the loan origination

that could support a claim of fraud - the plaintiffs fail to allege any facts relating to fraud by the

other defendants, let alone any sufficient to meet the heightened pleading standard." See Order

on MTD at 7. Accordingly, the 93A claim is also limited solely to the acts and omissions of

WaMu ... before it was placed into the receivership of the FDIC." (Order on MTD at 7).

Indeed, plaintiffs' 93A claim rests solely on allegations that "Defendants" (again, lumped

together self-servingly by plaintiff rather than specified by name) "failed to disclose material

facts regarding the Starkeys mortgage transaction," (i.e., in origination) and "misrepresented

material facts to the Starkeys in the origination of their mortgage contract." Complaint ,r,r 234-

35 (emphasis added). Plaintiffs' allegation regarding "false records" also relates to WaMu's

DB1/ 104880114.1 15
actions in originating the loan, i.e., in allegedly generating "false earnings" and "false financial

statements." Compliant ,r,r 106- 107.

Finally, as this Court likewise already ruled, plaintiffs' claim under the Borrowers'

Interest Act (Count VII) also "arise[s] solely from the acts or omission of an originating bank,"

i.e., WaMu. Order on MTD at 7. Plaintiffs' claim rests entirely on the allegation that "[d]uring

the origination of the Starkeys' mortgage, Defendants induced the Starkeys to refinance their

mortgage transaction within 60 months of their previous loan," which, allegedly, was not in

plaintiffs' best interest. Complaint ,r 13 (emphasis added); see, 128 (emphasis added) (alleging

that "Washington Mutual did not act in borrowers' best interest."); ,r 244.

Because plaintiffs fail to allege any misconduct by Chase or Deutsche Bank, judgment

should enter in their favor on Counts II through VII, consistent with the reasoning of this Court

in its original Memorandum of Decision and Order on the [201 O] motions to dismiss of the

Moving Defendants. See Dkt 30.

D. Count III (for fraud) fails for the separate and independent reason that the Complaint
fails to allege fraud with particularity, a finding that the plaintiffs did not challenge on
appeal.

To sustain a claim for fraud, Mass. R. Civ. P. 9(b) "requires that allegations of fraud and

deceit must be pleaded with particularity." Equip. & Sys. For Indus., Inc. v. Northmeadows

Const. Co., 59 Mass. App. Ct. 931, 931 (2003). Thus, "[a]t a minimum, a plaintiff alleging

fraud must particularize the identity of the person(s) making the representation, the contents of

the misrepresentation, and where and when it took place." Id. at 931-32; see Lambert v. Leary,

No. 053422, 2006 WL 541040, at *4 (Mass. Super. Feb. 15, 2006) ("This Court may dismiss a

claim, which rests on "'subjective characterizations' or conclusory descriptions of a 'general

scenario which could be dominated by unpleaded facts."'). As this Court has already found,

plaintiffs fail to allege - let alone with particularity - any misrepresentations by the Moving

DBi/ 104880114.1 16
Defendants that would support their claim for fraud. Order on MTD at 6 (noting an "absence of

any pleaded facts identify[ing] misrepresentations or false documentation produced [by] any

defendant, with the exception of WaMu ... ")

E. Count II (for Rescission under G.L. c. 140D and C.M.R. 2408) and Count IV (for
breach of contract) fail for the additional and independent reasons that the National
Bank Act preempts them (and, even if plaintiffs had asserted a claim for rescission
under the federal Truth in Lending Act, it would he time barred)

1. Plaintiffs' Rescission Claim Under the MCCCDA, Mass. Gen. L. c. 140D, is


Preempted by the National Bank Act.

The National Bank Act, 12 U.S.C. § 24, (the "NBA") provides "that a federally chartered

bank shall have the power 'to exercise ... all such incidental powers as shall be necessary to

carry on the business of banking.'" The NBA preempts plaintiffs' claims for violation of G. L. c.

140D and the related disclosure-imposing regulations that plaintiffs allege were violated.

Downey v. Wells Fargo Bank, NA., 12-11340-DJC, 2014 WL 3510510, at *4, 6 (D. Mass. July

11, 2014) (citing 12 U.S.C. § 24) (holding that, because the MCCCDA "regulates, inter alia,

'disclosure[s] regarding mortgages by federally chartered institutions," it was preempted by the

NBA). Relying on precedent from D. Mass. (Sovereign Bank v. Sturgis, 863 F.Supp.2d 75, 92

(D.Mass.2012)) finding that the Home Owners' Loan Act-which the court deemed "nearly

identical" to the NBA - preempted the MCCCDA, as well as precedent from other circuits

finding that the NBA preempted other similar state laws, the federal court in Downey held that

plaintiffs' "inadequate disclosure" claims under the MCCCDA went "to the heart of the NBA's

preemptive reach" and, for that reason, were preempted by the NBA. Id. at *6. "[A] state law

may be preempted by the National Bank Act when it frustrates or limits the ability of a national

8
Title 240 of the Code of Massachusetts Regulations relates to the licensure and regulation of
cosmetologists, manicurists, and aestheticians and, in light of its clear inapplicability, the
Moving Defendants do not address it further.

0B1/ 104880114.1 17
bank to exercise its statutorily granted powers." SPGGC, LLC v. Ayotte, 488 F.3d 525, 531 (1st

Cir. 2007) (citing Barnett Bank of Marion Cnty., NA. v. Nelson, 517 U.S. 25, 33-34) (1996)).

Chase and Deutsche Bank are both national institutions regulated by the National Bank Act. 9

Accordingly, even if the complaint alleged an act or omission of either Chase or Deutsche Bank

that could give rise to a claim under the MCCCDA, which this Court has already ruled that the

complaint does not do, the claims would be preempted by the National Bank Act. Likewise, to

the extent the Plaintiffs seek equitable relief under the MCCCDA on the basis of an act or

omission by WaMu, a federal savings bank, such relief is preempted. See Sturgis, at 91-92

(Explicitly holding that claims alleging a failure to provide disclosures required by the

MCCCDA are preempted by HOLA which, as implemented by the Office of Thrift Supervision,

regulates and governs the powers and operations of federal savings and loan associations.)

2. Plaintiffs' Rescission Claims are Also Barred UndeJ· the Truth-in-Lending-


Act
To the extent plaintiffs intend to assert a claim under the federal Truth in Lending Act

("TILA"), 15 U.S.C. §§ 1601 et seq., plaintiffs' rescission claims are also barred. 10 Under TILA,

the right to rescind "expire[s] three years after the date of consummation of the transaction or

upon the sale of the property, whichever occurs first." 15 U.S.C. § 1635(±). Plaintiffs allege that

they closed on the at-issue mortgage on November 22, 2005. Complaint,, 9. Plaintiffs also

9
Chase - a national bank - "is subject to regulation by the Office of the Comptroller of the
Currency ("OCC") as authorized by the National Bank Act." Sloane v. JPMorgan Chase Bank,
NA., No. 12-11355, 2012 WL 7806163, at *1 (D. Mass. March 27, 2012). Deutsche Bank is
also subject to OCC regulation and the National Bank Act. Orellana v. Deutsche Bank Nat. Trust
Co., No. 12-11982-NMG, 2013 WL 5348596, at *8 (D. Mass. Aug. 30, 2013).
10
See, e.g., Complaint, 12 (emphasis added) ("During the origination of the Starkeys'
mortgage, Defendants failed to make required disclosures ... , thus violating the Truth in Lending
Act, and its Massachusetts counterpart, the Massachusetts Consumer Credit Cost Disclosure Act
(MCCCDA), G.L. c 140D."); see also id.,, 21, 24, 25 (reciting purpose of TILA, applicable
limitation period);, 68 (alleging overlap in their breach of contract, MCCCDA and TILA
claims).

DBl/ 104880114.1 18
allege that they rescinded the mortgage loan contract on June 10, 2009 and again on June 15,

2009 (over three-years after closing) and filed the instant action on November 20, 2009

(approximately four-years after closing). Plaintiffs "cannot rescind or sue for damages pursuant

to TILA" more than three years after the closing of the loan transaction. See Sovereign Bank v.

Sturgis, 863 F. Supp. 2d 75, 94 (D. Mass. 2012). To the extent plaintiffs' seek to rescind their

loan pursuant to TILA, therefore, they are time-barred from doing so.

3. Plaintiffs' Breach of Contract Claims (.Count l1:) Cannot Stand Absent a


Viable Claim for Rescission
The plaintiffs' breach of contract claim is based upon their allegation that WaMu or its

successors breached the Notice of Right to Cancel by failing to acknowledge or respond to their

rescission notices. Complaint, 68 ("[t]ailure to perform the [alleged contractual] acts noted

above is also a MCCCDA and TILA violation"). Assuming arguendo that the Notice of Right to

Cancel forms part of the plaintiffs' mortgage contract under which the Moving Defendants are

obligated to perform, the breach of contract claim must none-the-less fail. As this Court has

ruled, a "breach [of contract] can only be found where the plaintiffs prevail on the merits of the

underlying claim for violation of c. 140D, set out in Count II." Order on MTD at 6.;

Accordingly, because plaintiffs' claims for rescission are preempted by the NBA, see supra at p.

18-19, plaintiffs' breach of contract claim fails as well.

F. Count VI(allegi,zg violation ofG.L. c. 93A)failsfor the same additional and


independent reasons that bar plaintiffs MCCCDA,fraud, and breach of contract
claims.

The plaintiffs contend in their Complaint that "any violation of G .L. c. 140D is an

automatic violation of G.L. c. 93A." Insofar as plaintiffs' Chapter 93A claim depends upon a

violation of the MCCCDA, the claim must fail because the NBA preempts the MCCCDA claim.

In Downey, as is also the case here, plaintiffs' 93A claim- like their MCCCDA claim -- alleged

DBl/ 104880114.1 19
that the lender "failed to provide the required notices to the plaintiffs." Downey, 2014 WL

3510510 at* 5. Without distinguishing between plaintiffs' MCCCDA claim and their 93A

claim, the court in Downey found that all of plaintiffs' disclosure claims, including their 93A

claim, were preempted and failed as a matter of law. Id. at 5-6; see also Sovereign Bank v.

Sturgis, 863 F. Supp. 2d 75, 98 (D. Mass. 2012) (reasoning that "any attempt to shoehorn a

MCCCDA claim into G.L. c. 93A, when MCCCDA itself is preempted ... is certainly an attempt

to impose a requirement that more than incidentally affects lending" which would support

preemption of plaintiffs' 93A claim).

Insofar as plaintiffs base their 93A claim on the allegations underlying their other causes

of action, the claim fails for all the reasons already determined by this Court in its Memorandum

of Decision and Order and for all of the reasons otherwise explained above.

CONCLUSION

For the foregoing reasons, Chase and Deutsche Bank respectfully request that the Court

grant judgment in their favor on Counts I, II, III, IV, VI and VII of plaintiffs' Complaint and

grant judgment in Deutsche Bank's favor as to Count V.

D81/ 104880114.1 20
Respectfully submitted,

JP MORGAN CHASE BANK, N.A.,


DEUTSCHE BANK NATIONAL TRUST
COMPANY as TRUSTEE FOR WAMU
MORTGAGE PASS THROUGH
CERTIFICATES SERIES 2006-ARl TRUST

Their Attorneys,

. Solomont, Bar No. 557190


c .s omont@morganlewis.com
V essa M. Brown, Bar No. 697097
vanessa.m.brown@morganlewis.com
Elizabeth M. Bresnahan, Bar No. 672577
elizabeth.bresnahan@morganlewis.com
Wayne E, George, Bar No. 656856
wayne.george@morganlewis.com

MORGAN, LEWIS & BOCKIUS LLP


One Federal Street
Boston, MA 02110-1 726
Telephone: + 1.617.341.7700
Facsimile: +1.617.341.7701

Dated: June 24, 2019

DB1/ 104880114.1 21
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above document was served upon counsel

of record via email and Federal Express on June 24

DBl/ 104880114.1 22
EXHIBIT A
..
~
Bk: 48600 Pg: 1

-•111
Bk: Pg: 0 Cert#:

'lJefaware
Doo: MEAGER 03/16/2012 09:59 AM

PAGE l

%e, ~irst State

I, JEFFREY H. BULLOCK, SECRETARY OF STATE OF THE STATE OF

DELA'NARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT

COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:

"CRASE HOME FINANCE LLC", A DELAPIAltE LIHI'l'ED LIABILITY

COMPANY,

WI'l'H AND INTO ".JPMORGAN CHASE BANK, NATIONAL ASSOCIATION"

UNDER 'l'BE NAME OF "JPMORGAN CHASE BANK, _N ATIONAL ASSOCIATION", A

CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF 'l'BE COUNTRY

OF UNITED S'l'A'l'ES, AS RECEIVED AND FILED IN THIS OFFICE THE

TWENTY-SEVENTH DAY OF APRIL, A.D. 2011, AT 6:04 O'CLOCK P.H.

AND I DO HEREBY FURTHER CERTIFY 'l'RA'l' THE EFFECTIVE DATE OF

THE AFORESAID CER'l'IFICAXE OF MERGER IS THE FIRST DAY OF HAY,

A.D. 2011, AT 12:02 O'CLOCK A.H.

Bk; 48500 Pg: 1 Ooo: CTF


Page: 1 ol 3 10/12/2011 06:46 AM

Attested hereto

d~..---- ~ ~!:h..
Francis M. Roach,-
Register or Deeds

4914615 8100M

110463889 ~~~ DATE: 04-28-ll


You 11,1y veri~y Chi• carti~icate cnline
at corp. dalaw•.r•. gov/auth"".r. a/lcml
Bk: 48500 Pg: 2

State of Delaware
Secretaz-v of St.at:$
Divi.s:t011 of Corporat.1on.s
ll9l.ivered 06 :03 PH 04/27/2011
.F'ILJlD 06:04 PM 04/27/2011
SRV 110463889 - 3881786 nu

STATE OF OF.I.AWARE CERTIFICATE OF MERGER OF


CHASE HOME FINANCE LLC
(a Deluwnre Limlh:d Liability Cump11ny)
WITH AND INTO
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(a national banking association urganizcd under the laws of the United States of America)

Pursuant to Tille 6, Section 18-209 of the Delaware Limited Liability Acl and pursuant 10
the laws of the United States of America. the undersigned national assodation executes the
following Certificate of Merger:

FIRST: The name of the surviving entity is JPMorgan Chase Bank, Notional
AssociHtion, a national banking association organized and existing un<lcr the lows of the United
States of America, and the name of the limited liability company being merged into the surviving
entity is Chase Home Finance LLC, a Delaware limited liability company .

SECOND: The Plan and Agreement of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent entities.

THIRD: The nume of the surviving entity is JPMorgan Chase Bank, National
Association, a national banking association organized and existing. under the laws of the United
States of America.

FOURTH: The Charter of JPMorgan Chase Bank, National Association shall continue
lo be the Charter of the surviving cntit)'.

FIFTH: The merger is to become effective at 12 :02 A.M. on May I, 2011.

SIXTH: The Plan and Agreement of Merger is on file at 194 Wood Avenue South,
lsclin, New Jersey 08830, a place of business of the surviving entity.

SEVENTH: A copy of the l'lan and Agreement of Merger wil I be furnished by the
surviving entity, upon request and without cost, to any member of any domestic limited liability
company or any person holding an interest in any other business entity which is to merge or
consolidate.

EIGHTH: JPMorgan Chase Bank, National Association. the surviving entity, agrees
that it may be ~erved with process in the Stale of Delaware in any action, suit or proceeding for
the enforcement of any obligation of any domestic limited liability company whic:h is to merge
or consolidate, irrc::vocably appointing the Delaware Secretary or Stale as its agen1 to accept
service of process in any such action, suit or proceeding, and specifies that a copy of such
process shall be mailed by the Secretary of State to the surviving entity at I 94 Wootl Avenue
South, 2nJ Floor, lselin, New Jersey 08830.
Bk: 48500 Pg: 3

...

IN WITNESS WHEREOF, said surviving entity has caused this ccrtit1cate to be signed
by an authorized officer this 27 1h day of April, 2011.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

Lauren V. Harris. Vice President


\J,\yh
'-

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Doc 01.5946-46 ~-
Southern niddlesex LAHO COURT
Registry District
RECEIVED FOR REGISTRATION I hi~~
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on: Mar 16,2012 at 09:59A c:,
Docu111ent Fee 75.01)
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NOTED OH: CERT BK
$575.00
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, . . Doc: 1,168,953 06-30-2011 1 =43

LANDP:~UR: REGISTRY

. NOT
AN M M AN
OFFICIAL OFF-rvi!t,L!Jf;Jf1S&ffe OFFICIAL
COPY COPY COPY COPY

NOT NOT NOT NOT


I, JEF~W. BULLolJti', SECRET.AMY OF STAill!J OF THE STATE OF
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
DELAWARE, DOclJnEBY C~'fY TBE M~CHED I~oJ.yTRUE AND CORRECT

COPY OF THE CERTIFICATE OF MERGER WHICH MERGES:


NOT NOT 6
NT NOT
"CHASE HOMS FINANCEAMLC", A DQAWARE LIQ'l'ED LIABILITY
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COMPANY, COPY COPY COPY COPY
WI'l'H AND IN'l'O "JPMORGAN CHASE BANK, NA'l'IONAL ASSOCIATION"
NOT NOT NOT NOT
UNDER THE NM«NOF "JPMOIINAN CBASEAttANK, NAT~NAL ASSOCIATION", A

coRPORATIM™zH"Illlr}i,t,I~bM:>ER0 H1:Cliws OF THE COUNTRY


COPY COPY COPY COPY
OF UNITED STATES, AS RECEIVED AND FILED IN THIS OFFICE THE
NOT NOT NOt · N<P."
TWENTY-SEVENT.Al-1DAY OF A.KRIL, A.D.~011, Ar--KiJ04 O'CLOCK P.M.

AND I ~l#EhYlJy ~WIW,c~i(tIMfA2<)fi}'l'C»i'.EcTIVE DATE OF


COPY COPY COPY COPY
THE AFORESAID CERTIFICATE OF MERGER IS THE FIRST DAY OF MAY,

A.D. 2011, JM0':52:02 O~t)CK A.M.NOT NOT


AN AN AN AN
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COPY COPY COPY COPY

Jeffrey W. Bullock, Secretary of State


3881786 8100M C TION: 8836324

110680871 DATE: 06-15-11


You ,nay veriry thi• cartit".icate online
at corp. delaware. gov/authver. •html
State of .Delaware
Searet.arv o~ St.ata
Divi.s ion or Cozporation.s
Delivered 06:03 PM 04/27/2011
FILED 06:04 PM 04/27/2011
NOT NOT NOT NOT SRV 110463889 - 3881786 FILE
AN AN AN AN
~'f~I~9.t DF~61WLCE8'.fffll€:M'& 0SH¥8~ OF
COPY CHMfiflOME F ~ E LLC COPY
(a Delaware Limited Liability Company)
NOT NotvITH AN~~·o NOT
JP~RGAN CHAlifj: BANK, NArufPNAL ASS~IATION
(a national bao.ltllgGIMtiatiQJF~O:tl(W u~t~l!S o~:UDMl!.States of America)
COPY COPY COPY COPY

Pursuant toN6tl_e 6, Section1'!~'t09 of the ~ ~·are Limite~bility Act and pursuant to


the laws of the Unite~tates of AmWffl, the unders~d national afflqCiation executes the
following Certi~::M,IHgeroFFICIAL OFFICIAL OFFICIAL
FIRST: IBt:°JnXie of
the str~g entity i9~organ ChiisPBXnk, National
Association, a natiRmlbanking asl~tion organi2cd and existing under the laws of the United
States of America, a the name o limited liab~company ~imerged into the surviving
entity is Chase ~i mce ldttf A~aredJ!Wi~t~ilityo'r'ff&lh
SECOND:CfWei.plan and A0&¥1ento.fM~~as been afij9i¥ed. adopted, certified,
executed and acknowledged by each of the constituent entities.
NOT NOT NOT NOT
THIRD: T~n,ame of the siAMving entity i!NfMorgan Cha~ank, National
Associalion, a ~fillt bldk.ini:PBB>I:i!liM.orgEDltlC!bDA:tXistoml'ID~JU!.P laws of the United
States c,f America.COPY COPY COPY COPY

FOURTHN<J!e Charter o~organ Ch~k. Natio~sociation shall continue


to be the Charter of>hq surviving en>J»·· AN AN
FIFTH?~! ~ie~g~r is
'copy
<?s'llc~Jti~~ffec~f
COPY
LC,¥.tf1 A.Rf.1brt
COPY COPY
~ , 2011 .
SIXTH: The Plan and Abrr~ment of Merger is on file at 194 Wood Avenue South,
Iselin, New Jersey 08830, a place of business of the surviving entity.

SEVENTH: A copy of the Plan and Agreement of Merger will be furnished by the
surviving entity, upon request and without cost, to any member of any domestic limited liability
company or any person holding an interest in any other business entity which is to merge or
consolidate.

EIGHTH: JPMorgan Chase Bank, National Association, the surviving entity, agrees
that it may be served with process in the State of Delaware in any action, suit or proceeding for
the enforcement of any obligation of any domestic limited liability company which is to merge
or consolidate, irrevocably appointing the Delaware Secretary of State as its agent to accept
service of process in any such action, suit or proceeding, and specifies that a copy of such
process shall be mailed by the Secretary of State to the surviving entity at 194 Wood Avenue
South, 200 floor, Iselin, New Jersey 08830.
. ' ...

NOT NOT NOT NOT


AN AN AN AN
IN WIT~USMtm~rod:MIVivig~gtiJJk~ c~1tri!A~ificate to be signed
by an authori1.ed of(lc,~,-itlis 27'h da;?«>:fS*pril: 201 IG::OPY COPY

NOT NOT NOT NOT


AN
JPMO~AN CHASE f)~NK, NATloN)l.L ASSOCIATION
OFFICIA~!ity O F ~ OFFICIAL
COPY _ ~ l)' COPY
NOT Lau~ Harris, Vi<NO'l'esident NOT
AN AN AN AN
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COPY COPY COPY COPY

NOT NOT NOT NOT


AN AN AN AN
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COPY COPY COPY COPY

NOT NOT NOT NOT


AN AN AN AN
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COPY COPY COPY COPY

NOT NOT NOT NOT


AN AN AN AN
OFFICIAL OFFICIAL OFFICIAL OFFICIAL
COPY COPY COPY COPY

BARNSTABLE REGISTRY OF DEEDS