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DOCKET NUMBER CLERK'S NOTICE 1785CV01677 (CASE NAME Trial Court of Massachusetts The Superior Court Stephen D Nims et al vs. The Bank of New York Mellon, as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5372 et al Dennis P. McManus, Clerk of Courts @lenn F Russell, Jr, Esq. Law Office of Glenn F. Russell, Jr 38 Rock St Suite 12 Fall River, MA 02720 ‘COURT NAME & ADDRESS Worcester County Superior Court 226 Main Street Worcester, MA 01608 Teferenced docket: Endorsement on Motion for Preliminary Injunction (#3.0): DENIED ‘See Memorandum of Decision, Notices mailed 11/13/17 Judge: Campo, Hon. Anthony M. You are hereby notified that on 11/13/2017 the following entry was made on the above DATETSSUED | ASSOGATE JUSTO ASSISTANT CLERK SESSION PHONES 11132017 Hon. Anthony M Campo (608)831-2364 Docker NUMBER Trial Court of Massachusetts CLERK'S NOTICE araecvaiTT The Superior Court Case wae Stephen D Nims et al vs. The Bank of New York Mellon, as Trustee | Dennis P. McManus, Clerk of Courts for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5372 et al ral ‘COURT NAME ACORESS Glenn F Russell, Jr., Esa. Worcester County Superior Court Law Office of Glenn F. Russell, Jr. 225 Main Street 38 Rock St Worcester, MA 01608 Suite 12 Fall River, MA 02720 ‘You are hereby notified that on 11/09/2017 the following entry was made on the above referenced docket: Endorsement on Motion for Extension on Time to Respond to Plaintiffs’ Complaint (#5.0): ALLOWED Notices mailed 11/13/17 Judge: Campo, Hon. Anthony M. DATEISSUED | ASSOCIATE JUSTICE! ASSISTANT CLERK SESSION PHONE 111372017 Hon. Anthony M Campo (608)831-2364 COMMONWEALTH OF MASSACHUSETTS WORCESTER, 8. SUPERIOR COURT CIVIL ACTION NO. 17-0167 STEPHEN D. NIMS & another vs. ‘THE BANK OF NEW YORK MELLON, as trustee” & another? MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION ‘Stephen D. Nims and Vickie L. Nims (collectively, “plaintifis”) brought this action against The Bank of New York Mellon, as trustee for the certificate holders of CWALT, Inc. Alternative Loan Trust 2005-53T2, Mortgage Pass-Through Certificates, Series 2005-53T2 (“BONY Mellon”),‘ challenging BONY Mellon’s authority to foreclose on the plaintiffs’ property. This matter is before the court on the plaintiffs’ motion for a preliminary injunction, in which they seek to enjoin a foreclosure sale scheduled for ‘November 20, 2017. The court heard argument on November 9, 2017. For the reasons that follow, the plaintiffs’ motion is DENIED. BACKGROUND ‘The following facts are drawn from the plaintiffs’ verified complaint, the parties’ motion papers, and numerous exhibits attached to BONY Mellon’s ‘opposition, In July 2005, the plaintiffs executed a promissory note in the amount of $375,000 on behalf of Omega Mortgage Corporation (“Omega”). As security, the plaintiffs also executed a " Vickie L. Nims. 2 For the Certficateholders of CWALT, Inc., Altemative Loan Trust 2005-5312, 2 Bank of America, N.A. “in its opposition, BONY Mellon points out that the plaintiffs incorrectly state its fll name in both their ‘complaint and motion papers. Entered and Copies Mailed \\ 112! CG * mortgage in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), which was acting as nominee for Omega. ‘The plaintiffs defaulted on their promissory note and mortgage sometime in 2010. In ‘October 2011, MERS assigned the plaintiffs” mortgage to BONY Mellon and the assignment ‘was recorded. Subsequently, in July 2012, the plaintiffs filed a Chapter 7 bankruptcy petition in an effort to avoid foreclosure, In October 2012, the plaintifis were discharged from personal liability on their debts, including their promissory note. Tn June 2014, BONY Mellon’s mortgage servicer sent the plaintiffs a “150 Day Right To Cure Your Mortgage Default” notice. The plaintiffs failed to cure. As a result, BONY Mellon’s ‘mortgage servicer notified the plaintiffs that their mortgage and note had been accelerated. In June 2017, the servicer executed a G. L. ¢, 244, § 35B affidavit stating that BONY Mellon was the holder of both the plaintiffs’ mortgage and note. In September 2017, the plaintifis were notified that a foreclosure sale was scheduled for October 23, 2017. The plaintiffs brought this action on October 18, 2017, seeking to enjoin the scheduled foreclosure sale on numerous theories. After the plaintiffs filed their complaint, the parties agreed to continue the foreclosure sale to November 20, 2017. ‘The plaintiffs" verified complaint brings claims for a declaration that BONY Mellon failed to follow G. L. ¢. 244, § 14’s strict foreclosure requirements (Count I); alleged statutory and regulatory violations against Bank of America, N.A. (Count II); and declaration that the plaintiffs’ mortgage is void under G. L. ¢. 260, § 33, the obsolete mortgage statute. DISCUSSION L. Standard of Review To prevail on a motion for a preliminary injunction, a plaintiff must demonstrate that it is likely to succeed on the merits and that in the absence of an injunction it will suffer irreparable harm sufficient to outweigh the harm that an erroneous injunction would impose on the defendants. GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722-723 (1993); Packaging Indus, Grp, Ine. v. Cheney, 380 Mass. 609, 617 (1980). A preliminary injunction is a significant remedy that should not be granted unless the plaintiff clearly demonstrates that it is entitled to such a remedy. Student No. 9 v. Board of Edue., 440 Mass.752, 762 (2004). In balancing these factors, the court considers not so much “the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of suecess on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging Indus. Grp, Inc., 380 Mass. at 617. IL Analysis ‘The plaintiffs argue that they are entitled to a preliminary injunction because they are likely to succeed on the merits of their claims challenging BONY Mellon’s standing to foreclose; and because they will suffer far greater harm if the foreclosure sale is allowed to proceed than BONY Mello would suffer if the sale did not proceed. This court disagrees, and concludes that the plaintiffs failed to meet their burden of demonstrating a likelihood of success on the merits. Despite their long standing default (approximately seven years), the plaintiffs devote the majority of their memorandum to a convoluted (and sometimes circular) argument that BONY Mellon does not qualify as a “mortgagee” for purposes of G. L. ¢. 244, § 14 because some 3 Given the conclusion thatthe plaintiffs do not have a likelihood of success on the merit, the court does not address the balancing of harms. 3 intermediary assignments, which a mortgage pooling and services agreement allegedly required, did not occur prior to Omega assigning the plaintiffs’ mortgage to BONY Mellon, To the extent this argument is cognizable, it does not approach the burden the plaintiffs must meet to sustain a preliminary injunction. At the hearing, plaintiffs’ counsel acknowledged that he needed to “back off” this argument in light of the Appeals Court's recent decision in Strawbridge v. Bank of New York Mellon, 91 Mass. App. Ct. 827, 832 (2017). In that case, the Appeals Court concluded that a mortgagor does not have standing to assert that its mortgage was assigned in violation of a ‘mortgage pooling and services agreement. See id. The plaintiff asserted no other cognizable argument challenging BONY Mellon’s status as the holder of their note or mortgage. See Eaton v. Federal Nat'l Mortg. Ass'n, 462 Mass. 569, 584 (2012) (a foreclosing entity that validly holds both the note and mortgage at time of foreclosure is a mortgagee for purposes of G. Lc. 244, § 14 and is entitled to foreclose). Accordingly, the plaintiffs have not demonstrated a likelihood of success on their claim challenging BONY Mellon’s right to foreclose under G. L. c. 244, § 14.7 Next, the plaintifis argue that they have a likelihood of success on the merits because their mortgage is void under G. L. c. 260, § 33 (the obsolete mortgage statute), ‘The plaintiffs raised this argument at the hearing, but not in their memorandum, 6 The plaintiffs’ mortgage was apparently part of this mortgage pooling and services agreement, along with thousands of other mortgages. 7 The plaintiffs also appear to argue that BONY Melton isnot the holder oftheir note and mortgage because their mortgage originally identified MERS as a nominee who was acting on behalf of Omega and it is unclear what nominee means inthis context. The plaintiffs focus on a footnote in Eaton, 462 Mass. at $90 n.29, in which the Supreme Judicial Court (“SJC") stated that it was not clear what “nominee” meant when a mortgage document referred to MERS as acting on behalf ofthe lender. The plaintiffs, however, do not explain how this passing reference to the erm nominee being unclear means that BONY Mellon cannot foreclose on s mortgage that has been in default for approximately seven years. Nor do the plaintiffs cite any authority to that effect 4 General Laws c. 260, § 33 provides in relevant part: 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 morigage 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 acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period. Essentially, the statute “provides that any mortgage containing a stated maturity date expires and is discharged five years after that maturity date unless, before the expiration of such period, an extension of the mortgage is recorded, or an acknowledgment or affidavit that the mortgage is not satisfied is recorded . ...” Housman v. LBM Fin, LLC, 80 Mass. App. Ct. 213, 216 (2011). ‘The plaintiffs apparently argue that their mortgage is obsolete under G. L. c. 260, § 33 because the maturity date of their mortgage is the date that BONY Mellon accelerated their note, This argument is unavailing. The plaintiffs rely on a Uniform Commercial Code Provision. (GL. c. 106, § 3-118(a)) and Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 254 (2015) to support their argument, Their reliance is misplaced. General Laws ¢. 106, § 3-111(a) addresses the statute of limitations period for enforcing a note obligation, and is therefore not relevant to the issue of a mortgage’s maturity date, Nor does the plaintiffs’ reliance on Deutsche Bank Nat'l Trust Co. provide any support. See Hayden v. HSBC Bank USA, Nat'l Ass'n., 867 F.3d 222, 224 (1st Cir. 2017) (“Nothing in the text of [G. L. ¢. 260, § 33] supportfed] the [plaintfis’] assertion that the acceleration of the maturity date of a note affects the five-year limitations period for the related mortgage. Their citation to the SIC’s decision in Deutsche Bank National Trust Co, . .. is inapposite because the decision makes no mention of the impact "In Deutsche Bank Nat'l Trust Co., 471 Mass. 248, 254, the SIC concluded that the maturity date of mortgage’s underlying obligation isthe maturity date ofthe mortgage for purposes of G. L. c. 260, § 33 5 of an accelerated note on the obsolete mortgage statute's limitations period.”) (emphasis in original). Moreover, even if the court agreed with the plaintifs’ interpretation of a mortgage’s maturity date, their mortgage was accelerated in 2015, less than five years ago, meaning their mortgage would not be discharged under G. L. c. 260, § 33. Accordingly, the plaintifis have not demonstrated a likelihood of success on their claim asserting that their mortgage is obsolete under G. L. c. 260, § 33. ORDER For the foregoing reasons, itis therefore ORDERED thatthe plaintiffs’ motion for a preliminary injunction is DENIED. ae ZZ see Justice of the Superior Court DATED: November 13, 2017