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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. f REPLY OF DEFENDANTS’, DEUTSCHE BANK NATIONAL TRUST. COMPANY, AS TRUSTEE, AND JPMORGAN CHASE BANK, N.A., IN SUPPORT OF THEIR MOTION FOR JUDGMENT ON THE PLEADINGS Defendants, Deutsche Bank National Trust Company, as Trustee for WaMu Mortgage Pass Through Certificates Series 2006-AR1 Trust (“Deutsche Bank”) and JPMorgan Chase Bank, N.A. (“Chase” and, together with Deutsche Bank, the “Moving Defendants”), hereby reply to the Plaintiffs’ Opposition (the “Opposition”) to their Motion for Judgment on the Pleadings (“Motion for Judgment”).' Plaintiff's Opposition does not refute in any respect the basis of the Motion for Judgment on the Pleadings, which is that, as this Court previously determined, the allegations of the Complaint, even if accepted as true, fail to state a claim against the Moving Defendants? + Counsel for the Moving Defendants understand that H. Christopher Starkey recently died and, accordingly, this Reply refers to the remaining plaintiff, Louisa H. Starkey, in the singular, 2 In plaintiff's one merits-focused argument, in note 7 of the Opposition, she argues that the Moving Defendants improperly rely on Ressler v. Deutsche Bank Trust Co. Americas, 92 Mass. App. Ct. 502 (2017). Opposition at 10-11 n. 7. The Defendants’ Opening Brief cites Ressler for the point that plaintiff cannot sustain her Count I “Standing” claim that “the Defendants failed to follow the requirements and protocol for securitization set forth in the Trust’s Prospectus and Pooling and Service Agreement” and thereby “failed to properly convey the [] mortgage note into the trust.” Complaint $¥ 15, 74, 195. The Opening Brief cites Ressler for its holding that borrowers are not entitled to evade enforcement of a mortgage loan agreement based upon a claim, like that of plaintiff, of non-compliance by the mortgage holder with a pooling and service agreement by which the holder of the mortgage received it. See Opening Brief at 7-10. In her Instead plaintiff, without citing any authority, logically argues that, her appeal of the trial court’s original 12(b)(6) dismissal of her Complaint, and/or the Appeals Court's decision to treat the Defendant’s motion to dismiss as a summary judgment motion, somehow stripped Defendants of their right under Rule 12(c) to move for a judgment on the pleadings. As detailed below, Rule 12(c) says the opposite. Plaintiff also contends that, because the Defendants asserted FIRREA as one basis for dismissal of plaintiff's claims, and because the Appeals Court determined that an sue of fact must be resolved in order to determine whether FIRREA bars plaintiff's claims, the trial court cannot dismiss those claims on grounds other than FIRREA without first allowing full discovery of the factual issue related solely to whether FIRREA bars her claims. That, of course, makes no sense, promotes judicial inefficiency, and will waste the parties’ resources. 1. Neither plaintiff's appeal of the judgment of dismissal of her Complaint, nor the Appeals Court's treatment of the motion to dismiss as a summary judgment motion, deprives the Moving Defendants of their right to file a motion under Rule 12(c). Without citing any authority for the contention, plaintiff’s Opposition argues that the procedural posture of the case, after the reversal by the Appeals Court of this trial court’s dismissal of the Complaint under Rule 12(b)(6), somehow deprives the Moving Defendants of the right to move for judgment on the pleadings pursuant to Rule 12(c). Rule 12(c), however, is clear: “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Pleadings close when an answer is filed. Pupecki v. James Madison Opposition, plaintiff falsely claims that Sullivan v. Kondaur Capital, 85 Mass. App. Ct. 202, 205 (2014) allows plaintiff to challenge a mortgagee’s enforcement of a mortgage based upon non- compliance with the terms of a pooling and service agreement to which the borrower was not a party. Plaintiff makes this argument despite that, in Ressler (a case in which plaintiff's counsel represented the appellant) the Appeals Court expressly rejected the application of Sullivan v. Kondaur in these exact circumstances. Ressler found that “although a borrower may in some situations ‘have standing to challenge the validity of the assignments by which [the foreclosing entity] claims to have acquired the mortgage,” ([quoting as an example Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 206 (2014) ), to date these situations have involved an assignor’s asserted lack of authority under State law to make an assignment, not an assignee’s Jack of authority under a PSA to accept it” Ressler, 92 Mass. App. Ct at 508 n. 15. (Emphasis added.) So, Ressler expressly rejected the argument that plaintif?’s counsel nonetheless makes again in the Opposition, Corp., 376 Mass. 212, 215 n. 2 (1978) (“the defendants’ motion, since it was filed after they had answered, was a motion for judgment on the pleadings”). Accord Rezende v. Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 n. 3 (Ist Cir. 2017), citing McGuigan v. Conte, 629 F Supp.2d 76, 80 (D.Mass. 2009) (Rejecting plaintif?’s contention that defendant’s motion for judgment on the pleadings was premature because it was filed before the deadline to amend the complaint had run and noting that the pleadings are closed for 12(c) purposes once the complaint and answer have been filed.) Here, the rules required Defendants to file an answer after the remand of the case ‘on the Appeals Court’s reversal of this court’s allowance of their motion to dismiss. Mass.R.Civ. 12(a(2). Defendants filed their answer on March 18, 2019. That closed the pleadings and triggered the parties’ right, under Rule 12(c), to file a motion for judgment on the pleadings. Plaintiff nonetheless contends that the defendants “ignore[d]” or “failed to examine the wording of the Appeals Court Order regarding the procedural posture of the this matter” and “ignored”, in particular, that, because, according to the Appeals Court, the Superior Court considered an agreement that was not attached to the Complaint (the Pooling and Service Agreement referenced in the Complaint at §¥ 2, 15, 73, and 195), the Appeals Court, citing Rule 12(b)(6), treated the motion to dismiss as one for summary judgment, Opposition at 6-7 and Appeals Court Opinion at 8-9. Nothing in the Appeals Court Opinion, however, even remotely suggests that plaintiff's appeal or the Appeals Court Opinion operated to deprive Defendants of their right under Rule 12(¢) to file a motion for judgment on the pleadings once Defendants answered the complaint so as to close the pleadings. Nor does plaintiff cite any case that supports the notion that defendants lose their right to file Rule 12(c) motions after they file an answer under any circumstances, let alone merely because an earlier Rule 12(6)(6) motion was denied after being treated as a motion for summary judgment? > As to the suggestion in the Opposition that, at the initial scheduling conference in this matter, Mr. Nickerson “agreed with [plaintif?’s] position” (see Opposition p. 5), Mr. Nickerson’s ‘memory about that obviously controls. At the same time, the recollection of defendants’ counsel ‘was that Mr. Nickerson expressed no view about the Defendants’ plan to file a Rule 12(c) motion 3 The case law instead comports with what Rule 12(c) literally says ~ that any party may move for judgment on the pleadings at any time “[a}fter the pleadings are closed but within such time as not to delay the trial” and cites judicial efficiency as one rationale for the Rule, For example, in Barraford v. T&N Ltd., 17 F.Supp.3d 96, 101-102 (D.Mass. 2014), the defendants moved for summary judgment and the motion was denied. Defendants subsequently moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), after the applicable scheduling order’s deadline for filing dispositive motions. The court considered the motion notwithstanding passage of the deadline on the ground that denying the motion would be inefficient as it would not resolve the issue but would simply preserve the issue for trial. See also Weber v. Sanborn, 502 F.Supp.2d 197 (D.Mass. 2007) (the court granted the defendants’ motion for judgment on the pleadings over plaintiff's objection that it was untimely because forcing the defendants to file a motion for summary judgment where plaintifi’s legal argument had already been foreclosed would be inefficient). Judicial efficiency (and avoiding needless expenditure of resources by the parties) here too compels consideration of the Moving Defendants’ motion in accordance with Rule 12(c). As evidenced by the Opposition’s failure to address the merits of the Motion in virtually any respect, as to the Moving Defendants, the Complaint’s allegations substantively fail to meet the elements of any of its causes of action. The Court ought not waste judicial resources, or require Defendants to incur the expense of discovery and other motion practice, and wait until summary judgment, to make a ruling that Rule 12(c) expressly allows to be made based upon the pleadings now. 2. Since the Moving Defendants seek judgment on the pleadings not on the ground that FIRREA bars plaintiff's claims, but rather solely because the allegations of the Complaint substantively fail to state a claim on which relief can be granted, the fact that the Appeals Court rejected Defendants’ FIRREA argument is immaterial to the instant motion. ‘The Appeals Court reversed this court’s allowance of Defendants’ motion to dismiss because it found that there is at least an issue of fact as to whether FIRREA bars the plaintiff's other than to say that it should be filed before the summary judgment deadline in the tracking order. 4 claims — and that, therefore, the application of FIRREA did not entitle the Defendants to dismissal of those claims, FIRREA, however, was the only issue that the Appeals Court analyzed. See Appeals Court Opinion at 1110 (“on appeal the only issue before us is whether FIRREA requires dismissal of these counts”), In contrast, Defendants’ instant motion for judgment on the pleadings is not based in any respect on FIRREA and does not argue that FIRREA bars any of the claims. ‘The Moving Defendants’ motion for judgment on the pleadings argues that, even ignoring FIRREA entirely, the complaint fails to state a claim on which relief can be granted (as this court already determined — see Opening Brief at 5-6). Plaintiff contends that, because Defendants have argued that the application of FIRREA deprives the Court of jurisdiction, the existence of an issue of fact as to that defense precludes the Court from adjudicating whether the Complaint otherwise states a viable claim for relief. Plaintiff claims, in other words, that, even if the pleadings by themselves establish as a matter of law that plaintiff can sustain no substantive cause of action, the Court cannot dismiss the case until it determines whether it has jurisdiction ~ even if, as plaintiff expects, that requires full scale discovery. See Opposition p. 4 (“whether this Court even has the subject matter jurisdiction to opine at all” requires, according to the plaintiff, “a determination under a fully developed record”). Respectfully, that is an absurd possibility. As noted supra, itis obviously an utter waste of judicial, and the parties’, resources to litigate whether the court has jurisdiction to adjudicate a case that, accepting all allegations in the complaint as true, fails as a matter of law even if there is jurisdiction. 3. Plaintiff’s argument that an issue of fact material to whether FIRREA bars plaintiff's claim entitles plaintiff to discovery is a red herring because the Defendants’ instant motion for judgment on the pleadings does not rely upon FIRREA in any respect. ‘The “issue of fact” identified by the Appeals Court ~pertaining to whether the mortgage loan was assigned to Deutsche Bank, as Trustee before or after WaMu’s failure, is material only to the FIRREA issue. If the mortgage was transferred by Chase after WaMu failed, then FIRREA deprives the Court of jurisdiction and bars plaintiff's claims. Appeals Court Opinion at 1114-15. If the mortgage was transferred before WaMu failed, then, according to the Appeals Court, FIRREA would not bar the claims. Jd. For all the reasons set forth in the Moving Defendants’ Opening Brief, however, the timing of the assignment of the mortgage to Deutsche Bank is not material to the grounds for the Motion for Judgment on the Pleadings. Opening Brief at 8, n. 7. As the Opening Brief makes clear, imespective of when the assignment occurred, and accepting all of the material allegations in the complaint to be true, all of the claims fail as a matter of law. WHEREFORE, for the foregoing reasons, Chase and Deutsche Bank respectfully request that the Court grant judgment in their favor on Counts I, Il, III, IV, VI and VII of the Plaintifis’ Complaint and grant judgment in favor of Deutsche Bank as to Count V. Respectfully submitted, JP MORGAN CHASE BANK, N.A., DEUTSCHE BANK NATIONAL TRUST COMPANY as TRUSTEE FOR WAMU MORTGAGE PASS THROUGH CERTIFICATES SERIES 2006-AR1 TRUST. ir Attorneys, . Solomont, Bar No. 5571 so)mont@morganlewis.com Vanessa 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: August 12, 2019 CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above document was served upon counsel of record via email and Federal Express on August e1/ 105973467.1