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COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CIVIL ACTION NO. 1785CV1677B STEPHEN D. NIMS and VICKIE L. NIMS, Plaintiffs Vs. ‘THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-5372, and BANK OF AMERICA, N.A., Defendants % MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTICIATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-53T2’S. MOTION TO DISMISS This action arises from a mortgage from the Plaintiffs Stephen D. Nims and Vickie L. Nims (‘the Nims”) to Omega Mortgage Corp. (“Omega”) on July 6, 2005. After defaulting on their mortgage and a foreclosure sale of their property, the Nims now claim Defendant Bank of New ‘York Mellon, As Trustee For the Certificate Holders of CWALT Ine., Alternative Loan Trust 2005-5372 (“BONY”), failed to comply with G.L. c. 244, §14 (Count I) and G.L. c, 260, §33 (Count Ill) in foreclosing on their mortgage. After hearing, and for the reasons set forth in BONY’s Motion to Dismiss, the Motion to Dismiss is ALLOWED. Entered and Copies wie dale FACTUAL BACKGROUND On July 6, 2005 the Nims executed a promissory note in favor of Omega in the amount of $375,000.00. To secure payment of the debt the Nims gave to Omega a mortgage on their property located at 402 Ashby Road, Ashburnham, MA (‘the premises”). ‘The mortgage identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as the nominee for Omega, and also as a mortgagee under the security instrument. In October, 2011 MERS assigned the Nims? mortgage to BONY. BONY also became the holder of the promissory note. In 2011 the Nims defaulted on their mortgage, and in July, 2012 they filed for bankruptcy. In October, 2012 they were discharged from personal liability on their debts, including the promissory note, and the bankruptcy case was closed. In June, 2014 the Nims received a “150 Day Right to Cure Your Mortgage Default” and they did not cure the default. In May, 2015 a notice of acceleration of the defaulted loan was sent to the Nims. In June, 2017 the mortgage servicer Shellpoint Mortgage Servicing (’Shellpoint”) executed the affidavit required pursuant to G.L. c. 244, §35B, certifying compliance, In September, 2017 BONY certified, through its mortgage servicer, that it was the holder of both the note and the mortgage, and there had been only one assignment of the mortgage ftom MERS to BONY. In September, 2017 the Nims were given notice of a foreclosure sale by public auction on October 23, 2017. In response, on October 18, 2017 they filed this action and requested a preliminary injunction staying the foreclosure sale, By agreement the sale was postponed to November 20,2017. On November 13, 2017, after hearing, the court denied the Nims’ request for a preliminary injunction and the foreclosure sale took place thereafter. STANDARD OF REVIEW ‘When evaluating the legal sufficiency of a complaint pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations of the complaint and draw all reasonable inferences from the complaint in favor of the plaintiff. Coghlin Elee. Contractors, Inc. v. Gilbane Building Co., 472 Mass. 549, 553 (2015); Iannacchino v, Ford Motor Co., 451 Mass. 623, 636 (2008). However, the court need not accept as true legal conclusions cast in the form of factual allegations. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). To survive a motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level. Golchin v. Liberty Mut, Ins. Co., 460 Mass. 222, 223 (2011); Iannacehino v. Ford Motor Co,, 451 Mass. at 636. The plaintiff's allegations must be more than mere labels and conclusions and must plausibly suggest, not merely be consistent with, an entitlement to relief. Coghlin Elec. Contractors, Inc. v. Gilbane Building Co., 472 Mass. at 553. DECISION “A foreclosure sale conducted pursuant to a power of sale in a mortgage must comply with all applicable statutory provisions, including in particular G.L. c, 183, §21, and G.L. , 244, §14. These statutes authorize a ‘mortgagee’ to foreclose by sale pursuant to a power of sale in the mortgage, and require the ‘mortgagee’ to provide notice and take other steps in connection with the sale, The meaning of the term ‘mortgagee’ as used in the statutes is not free from ambiguity, but we now construe the term to refer to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder.” Eaton v. Federal national Mortgage Association, et al, 462 Mass. 569, 571 (2012) BONY was holder of both the note and the mortgage at the time of the foreclosure, as certified at Exhibit A of the Verified Complaint, MERS endorsed the note to BONY and an assignment of the 3 mortgage to BONY was recorded. The very documents confirming these facts are attached as exhibits to the Verified Complaint, establishing compliance with applicable statutes, The Nims also present arguments in support of their claims based upon alleged violations of the Pooling and Servicing Agreement (“PSA”) attached to the Verified Complaint as Exhibit F. “(A) mortgagor does not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title.” Culhane v. Aurora Loan Servs. OfN 08 F.3d 282, 291 (2013) “(A) deficiency in an assignment that makes it merely voidable at the election of one party or the other would not automatically invalidate the title of a foreclosing mortgagee, and accordingly would not render void a foreclosure sale conducted by the assignee or its successors in interest. . .. Thus, where the foreclosing entity has established that it validly holds the mortgage, a mortgagor in default has no legally cognizable stake in whether there otherwise might be latent defects in the assignment process.” ‘The Bank of New York Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 502 (2014) “(C)laims that merely assert procedural infirmities in the assignment of a mortgage, such as a failure to abide by the terms of a governing trust agreement, are barred for lack of standing.” Woods v. Wells Fargo Bank, N.A., 733 F. 3d 349, 354 (2013); See also Sheedy v. Deutsche Bank National Trust Co., 801 F. 34 12 (1* Cir. 2015); Hully v. Deutsche Bank Nat. Trust Co., 89 ‘Mass.App.Ct. 1112 (2016); U.S. Bank Nat, Ass'n, v. Bolling, 90 Mass.App.Ct, 154 (2016); Dyer vy, Wells Fargo Bank, N.A., 841 F.3d 550 (1* Cir. 2016); O’Neil v. Bank of New York Mellon, 90 Mass.App.Ct. 1121 (2016); Deutsche Bank Nat. Trust Co., v. Diaz, 2017 Mass.App. Unpub. LEXIS 4; Strawbridge v, Bank of New York Mellon, 91 Mass.App.Ct. 827 (2017); Hayden v. HSBC Bank USA, National Association, 867 F.3d 222 (1* Cir. 2017) ‘The Nims have no standing to challenge the sufficiency of any assignments that resulted in BONY as the holder of the note and the mortgage at the time of the foreclosure. Their claim that the mortgage was obsolete at the time of foreclosure equally lacks merit. The mortgage has a maturity date of August 1, 2035, noted on the front page of the mortgage. Pursuant to G.L. c. 260, §33, the mortgage would become obsolete in 2040 if not extended. ‘The Nims argue that acceleration of the mortgage due to default results in a new maturity date, the date of the acceleration, Were that to be the case, the mortgage would become obsolete 5 years after the date of acceleration. This court need not address the validity of this argument, as the Notice of Default and Intent to Accelerate was received by the Nims on December 18, 2015, as reflected in their own chronology annexed to the Verified Complaint as Exhibit H. Even if the notice of intent to accelerate changed the maturity date to the date of notice in 2015, the obsolete date would be in 2020. As the foreclosure has already taken place, it occurred well before the mortgage became obsolete pursuant to G.L. c. 260, §33. RDER After hearing, based upon the foregoing and the arguments of the defendant BONY, The Bank of New York Mellon, As Trustee for the Certificate Holders of CWALT Ine., Altemative Loan Trust 2005 — 5372's Motion to Dismiss is ALLOWED. Date: September 4, 2018 Susarf E. Sullivan, J. Associate Justice of the Superior Court