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Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM

Glenn F. Russell, Jr.,


& Associates, P.C. Attorneys-at-Law
Licensed in Massachusetts 38 Rock Street, Suite #12
and Connecticut Fall River, MA 02720
December 04, 2019

Clerk
Massachusetts Appeals Court
John Adams Courthouse
Boston, Massachusetts 02108-1705

Re: 2019-P-0179 – Stephen D. Nims & another v.


The Bank of New York Mellon, & another

Dear Sir /Madam Clerk,

Pursuant to Mass. App. R. P., R. 16(l), the Plaintiffs

Appellants herein, respectfully respond to the Panel’s inquiry

during oral argument on December 03, 2019, with regard to a June

10, 2010 Acceleration Letter. Plaintiffs further respectfully

submit this Letter to ensure that Plaintiffs provide the Court

with the accurate contents of the Plaintiffs’ currently filed

Record Appendix, and reference thereto in their Opening Brief.

Due to the inclement weather on December 03, 2019, and the

rush to leave Rhode Island to get to the Court on time,

undersigned unfortunately did not take the Record Appendix along

with him to oral argument. During Oral Argument in the above

captioned matter, the Panel specifically queried undersigned as

to the precise location within the Record Appendix as to a

specific June 10, 2010 Acceleration Letter sent to Plaintiffs.

Due to the unfortunate issue of not having the Record

Appendix available, undersigned endeavored to locate the


Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM

document as expeditiously as possible (at great embarrassment),

by reference within the Opening Brief to the Plaintiffs’

complaint at p. 31.

Knowing that time was quickly winding down for oral

argument, undersigned made reference to the Plaintiff’s

complaint at RA-044, Paragraph 125. Turning to RA-044 at

paragraph 125 references “Exhibit L”. When reviewing Exhibit L

at RA-406, for some reason there was no Exhibit appended to said

Exhibit Cover page. Undersigned apologizes for this omission and

any inconvenience caused thereby.

However, in the Plaintiffs Opening Brief at p. 30, they did

make specific reference to this same June 10, 2010 Acceleration

Letter [Exhibit A attached hereto]. Plaintiffs also provided

citation at p. 30 of their Opening Brief to the specific

location within the Record Appendix [at RA-106] where the said

June 10, 2010 Letter could be found [Exhibit B attached hereto].

Therefore, Plaintiffs respectfully submit the preceding to

clarify the currently filed record on appeal before the Court

Respectfully submitted,

Glenn F. Russell, Jr.


BBO# 656914
Glenn F. Russell, Jr.
& Associates, P.C.
38 Rock Street, Suite 12
Fall River, Massachusetts 02720
(508) 324.4545 (telephone)
(508) 938-0244 (fax)
russ45esq@gmail.com
Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM

CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of December, 2019, I


served one copy of the preceding document, by e mail, on the
following Appellees’ 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.


Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM

EXHIBIT
A
Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM
Massachusetts Appeals Court Case: 2019-P-0179 Filed: 5/23/2019 11 :15 AM

30

for terms between the "Lender" and Plaintiffs that

contemplated the possibility of Plaintiffs' default and

breach of the original terms of mortgage contract. Paragraph

22 recites the actions by the Lender [some only optional]

that would transpire upon default and breach by Plaintiffs:

"Acce1eration; Remedies. Lender shall give notice to Borrower


prior to acce1eration fo11owing Borrower's breach of any
covenant or agreement in this Security Instrument (but not
prior to acceleration under Section 18 unless Applicable Law
provides otherwise). 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 acceleration and sale.
If the defau1t is not cured on or before the date specified in
the notice, Lender at its option may require immediate payment
in fu11 of a11 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. [RA-071, 072]

On June 10, 2010, the Plaintiffs received correspondence

that clearly mirrored the above language in paragraph 22 of

their mortgage contract, [RA-106]. This same correspondence

informed the Plaintiffs' that if they did not cure their

default by July 10, 2010 [30 days from the letter], that

their "mortgage payments" would be "accelerated" and would

require immediate payment on full of all sums secured by the

Security Instrument. The common understanding of "mortgage

payments" refers to the underlying debt obligation, as one

does not make payments on the security instrument.

Plaintiffs' never "cured" their default and have made no

further payments after June 10, 2010. Therefore, Plaintiffs


Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM

EXHIBIT
B
Massachusetts Appeals Court Case: 2019-P-0179 Filed: 12/4/2019 1:47 PM
Massachusetts Appeals Court Case: 2019-P-0179 Filed: 5/23/201911:18 AM

BankofAmerloa
♦ Send Corr,,spondenoe to: 8usfness Addrest:
HameJ.oans P,0, Ba, 860694 480 Nllll'riaBn Sfledl
P, 0, Box 660694 oaua,, TX 76268-0694 srmi va1te11 CA 93065-6285
Daito• TX 7528t.-0694
&md Payments to:
P.O. BOK 15222
~lngton, OEi 19886.Sm
June 10, 2010
Stephen D & Vickie L Nims
402ASHBYRD
ASHBURNHAM, MA 01430-1124
Ill, 1111111, l11lnll,I I11111111111 ll11l,l,l11lllmnl,l11l,II AcCOtJnt No.: 94482436
RE: Premises:
402 Ashby Road
Ashburnham, MA 01430
NOTICE OF INTENTION TO FORECLOSE
Dear Stephen D & Vickie L Nims:

BAC Home Loans Servicing, LP {hereinafter 'BAC Home Loans Servicing. LP") services the loan described above on behalf of the
holder of the promissory note (tha "Noteholder"). The loan Is In serious default because the required payments hove not been mode.
The total amount now required to reinstate the loan as of the date of lhls notice Is as wllows:

Monthly Charges; 11101/2009 $23,449.68

Lata Charges· 11/01/2009 $70.19


01/01/2010 $140.38
05/01/2010 $70.19
Plher Charges· Total Late Charges: $0.00
Uncollected Costs: $150.00
Partial Payment Balance: ~
TOTAL DUE: $23,493.82
You have the right to cure the default, To cure the default, on or before July 10, 2010, BAC Home Loans Servicing, LP must receive
the amount of $23,493.82 plus any additional regular monthly payment or payments and late charges which become due on or before
July 10, 2010,

The default wlll w


be considered cured unless BAC Home Loans Servicing, LP receives "good funds" In the amount of $23,493.82
on or before July 10, 2010, If any check (or other payment) 18 returned to us for Insufficient funds or for any other reason, 'good
funds' will not have been received and the default will not have been cured. No extension of time to cure wlll be granted due to a
returned payment. BAC Homa Loans Servicing, LP reserves the right to acoept or reject a partial payment of the total amount due
without waiving any of Its rights herein or otherwise. For example, If less than the full amount that Is due lssenl to us, we can keep the
payment and apply it to the debt but still proceed to foreclosure since the default would not have been cured.

If the default is not QUred on or before July 10, 2010, the mortgage payments will be,acceleraled wllh the full amount remaining
accelerated .and becoming due and payable in full, and foreclosure proceedings will be Initiated !lt lhat time. As suah, the failure to
cure the default may result In the foreclosure and sale of yaur property, If .vaur property Is forecloaed upon, the Ni>teholder may
pursue ~ deficiency Judgment against yilu kl collect the balance of your loan, If permitted by taw.

You may, W required by law or your loan documents, have the right to cure lhe default alter the aoceleratlon of the mortgage
payments and prior to the foreclosure sele of your property If all amounts past due are paid wllhin Iha time pennitled by law,
However, BAC Home Loans Servicing, LP and the Noteholder shall be entitled to collect all faes and costs Incurred by BAC Homa
Loans Servicing, LP and the Noteholder In pursuing any of their remedies, Including but not fimlted to reasonal,le attorney's tees, 10
the full extent permitted by law. Further, you may have the right to bring a court action lo assert the non-existence of a default or any
other defense you may have to acceleration end foreclosure.

Your loan is In defaull. Pursuantto your loan documents, BAC Home Loans Servicing, LP may, enter upon and conduct an Inspection
of your property. The purposes of such an Inspection are to (I) observe the physical condition of your property, (II) verify that the
property is occupied and/or (iii) determine the Identity of the occupant. If you do not cure the default prior to the Inspection, other
actions to protect the mortgagee's Interest in the property (Including, but net llmlled to, wlnterlzatlon, securing the property, and

BAC Home Loans Servicing, LP Is asubsldle,y of Bank olAmerlr.a, NA

SLOHLMA 1G3D7!&320 05123/2008