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HARMON LAW OFFICES, P.C. 150 CALIFORNIA. STREET NEWTON, MASSACHUSETTS 02458 TEL (617) 558-8400, FAX (617/244-7304 ‘Business Hous: Monday-Friday 8:00 AM0 530 PM. SERVING MASSACHUSETTS, NEW HAMPSHIRE AND RHODE ISLAND * Admitted in MA Robert M. Mendillo” Phone: (617) 558-8457 Facsimile: (617) 243-4038 November 28, 2017 Glenn F. Russell, Jr., Esq. Glenn F. Russell, Jr. & Asso 38 Rock Street, Suite 12 Fall River, MA 02720 (es, P.C, Re: Stephen Nims, et al v. The Bank of New York Mellon, as Trustee, et al. Worcester Superior Court Docket No.: 1785CV01677-B Dear Attorney Russell: Pursuant to Superior Court Rule 9A, enclosed please find a copy of Defendant Bank of New York Mellon’s Motion to Dismiss Pursuant to Mass.R.Civ.P. 12(b)(6) and 1. Under Rule 9A, you are required to serve your original opposition papers, if any, and a copy of same within the timeframe set forth under the Rule. Very truly yours, TAUWPAO Tiffany Giorgio, Paralegal to Robert M. Mendillo, Esq (Ce w/enclosure to Dean Wagner. Esa COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT WORCESTER, SS. WORCESTER SUPERIOR COURT CIVIL ACTION NO.: 1785CV01677-B STEPHEN D. NIMS AND VICKIE L. NIMS, Plaintiffs, ve THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE (CERTIFICATEHOLDERS OF CWALT INC., ALTERNATIVE LOAN TRUST 2005-5312, and BANK OF AMERICA, N.A., Defendants. DEFENDANT BANK OF NEW YORK MELLON’S MOTION TO DISMISS THE COMPLAINT Defendant, Bank of New York Mellon as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5312 (“BONY Mellon”), respectfully moves, pursuant to Mass.R.Civ.P. 12(b)(6) and 1, to dismiss the complaint against it for failure to state a claim upon which relief can be granted. As shown by a) BONY Mellon’s Opposition to Plaintiffs Request for a Preliminary Injunction (“Opposition”), which has been previously filed and is fully incorporated by reference herein; and, b) more importantly the November 13, 2017 Decision of the Court (Campo, J.) denying the plaintiffs’ requested injunctive relief, the two counts that plaintiffs assert against BONY Mellon fail to state a claim upon which relief can be granted. First, Count | fails as matter of law because the plaintiffs lack standing to claim that the foreclosing entity, BONY Mellon, was assigned their mortgage in violation of the terms of a pooling and servicing agreement to which the plaintiffs were not parties. Second, 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. WHEREFORE, BONY Mellon respectfully requests that this motion be granted, and that it be granted such additional relief as is deemed just and appropriate. Respectfully submitted, BANK OF NEW YORK MELLON, Robert M.Mendillo BBO No.: 342780 HARMON LAW OFFICES, P.C. 150 California Street Newton, MA 02458 (617) 558-8457 (617) 243-4038 (Fax) Dated: November 28, 2017 CERTIFICATE OF SERVICE I, Robert M, Mendillo, hereby certify that on November 28, 2017 a true and accurate copy of this motion was served via first class mail, postage pre-paid, and by email upon: Glenn F. Russell, Jr, Esq Glenn F. Russell, Jr. & Associates, P.C. 38 Rock Street, Suite 12 Fall River, MA 02720 Dean Wagner, Esq., Shechtman Halperin Savage LLP 1080 Main St Pawtucket, RI 02860 a . Cd. J. MoS 2 Robert M. Mendillo, Esq.