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COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS. —— SUPERIOR COURT DEPARTMENT cV ACT NO. :1785¢v01677-B STEPHEN D. NIMS VICKIE L. NIMS PLAINTIFFS’ OPPOSITION TO DEFENDANT ‘THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR ‘THE CERTIFICATEHOLDERS OF CWALT INC., ALTERNATIVE LOAN TRUST 2005-5372 MOTION TO DISMISS FELED bet 20 20 wm Mtl /7 af Plaintiffs Stephen D. Nims and Vickie L. Nims Plaintiffs vs. THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT INC., ALTERNATIVE LOAN TRUST 2005-5372, and BANK OF AMERICA, N.A. Defendants INTRODUCTION (“Plaintiffs”) herein through counsel, respectfully submit their Opposition to the Defendant, Bank of N.Y, Mellon as Trustee or The Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-5372, Motion to Dismiss under Mass. R. Civ. P., R. 12 (b) (6). Standard of Review Indeed, in Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), the Massachusetts Supreme Judicial Court (“SIC”) is as follows: “The standard for reviewing adequacy of complaints. While we have concluded that the plaintiffs' complaint is insufficient on the basis of the standard described in Nader v. Citron, 372 Mass. 96 , 98 (1977), see note 7, supra, we take the opportunity to adopt the refinement of that standard that was recently articulated by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007). See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 286 n.7 (2007) (noting that this court may consider adopting Bell Atl. Corp. standard for evaluating adequacy of complaint challenged by motion to dismiss for failure to state claim pursuant to rule 12 [b] [6]). The Supreme Court ruled that the often-quoted language in Conley v. Gibson, 355 U.S. 41, 45-46 (3957) ~~ "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" -- had “earned its retirement.” Bell Atl. Corp. v. Twombly, 127 S. Ct. at 1969. The Court pointed out that under Conley's "no set of facts" standard, "a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts' to support recovery." Id. at 1968. As the Court stated, "While a complaint attacked by a... motion to dismiss does not need detailed factual allegations . . . a plaintiff's gbligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions .. . . Eactual allegations must be enough to raise a zight to zelief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)... ." Id. at 1964-1965. What_is required at the pleading stage are factual “allegations plausibly suggesting (not merely consistent with)" an entitlement to relief, in order to “reflect[] the threshold requirement of (Fed. R. Civ. P.] 8(a) (2) that the ‘plain statement’ possess enough heft to ‘sholw] ‘that the pleader is entitled to relief.' " Id. at 1966. Therefore, in order to subject the Plaintifs’ complaint to dismissal under 12(b)(6), this Court would be required to examine whether Plaintiffs allegations provided a ground for their entitlement to relief that amount to more than “labels and conclusions. Further the Plaintiffs’ factual allegations would merely be required to raise their entitlement to relief above the “speculative level”, based upon the assumption that all of Plaintiffs allegations are required to be accepted as true, {Even if Doubtful In Fact). Plaintiffs set forth a well-reasoned legal argument, which clearly sets forth a plausible claim for their entitlement to their relief under G.L. c. 260, §33. Indeed, as Iannacchino instruct even if this Court believed such theory was “doubtful in fact”, taken as true the inquiry would be; does such theory provide an entitlement for relief? The answer to the preceding is clearly in the affirmative, as such claim is clearly advanced by Plaintiffs in such a manner to place it well beyond the speculative level. Additionally, Defendant's have completely failed to meet their burden to point this Court to the specific implausibility of Plaintiffs’ allegations as specifically alleged by them, only providing two non-precedential decisions in which the fact patterns are easily distinguished from the instant matter. ARGUMENT I. DEFENDANTS FATL 70 IDENTIFY ANY SPECIFIC IMPLAUSIBILITY OF PLAINTIFFS’ ALLEGATION FOR THEIR ENTITLMENT FOR RELIEF AS SPECIFICALLY ALLEGED BY Indeed, the brevity of Defendants’ “Motion” under Mass. R. Civ. P., R. 12(b) (6), by itself, is cause for the Defendants: Motion to be Denied. While Defendants attempt to cite to Mass R. Civ. P., 1 for “speedy determination”, Rule 1 does not stand for the [unconstitutional] request by Defendants to circumvent an examination of the sufficiency of Plaintiffs’ allegations as alleged, or to deny the Plaintiffs’ an opportunity for a fair hearing Defendants cite heavily to this Court’s findings related to Plaintiffs’ request for a preliminary injunction, under Mass. R Civ. B., R. 65, and its associated burden upon Plaintiffs to show “a likelihood of success on the merits” [in order that such injunctive relief be issued. Further, at the time this Court issued its ruling, it was not yet in possession of Plaintiffs: response to the case law submitted by Defendants, where Plaintiffs clearly distinguished their particular fact pattern, from these two (2) non-precedential rulings. Plaintiffs have also respectfully requested that this Court reconsider its ruling on this basis, which to the Plaintiffs’ knowledge is still pending at the time of the drafting of the instant Opposition. Further, unlike the Rule 65 examination made by this Court the standard of review here requires a much lower pleading standard and review (plausible claim for their entitlement to relief). A. Defendants Merely Set Forth Conclusory Statements With No Legal Foundational Basis With Respect To Any Specific Implausibility of Plaintiffs’ Claims For Their Entitlement For Relief, As Alleged Defendants have woefully come up short on shouldering their burden to identify specifically where Plaintiffs’ claims represent “speculation”, “labels and conclusions”, or [where taken as true] would not provide them a plausible theory for their entitlement for relief. Defendants can only cite to two (2) non-precedential rulings, which a) made no examination of theories specifically advanced by Plaintiffs, and/or b) which involve a completely different set of facts regarding the wording contained within the mortgage of those matters, than what is presently in the mortgage before this Court. Defendants seek a “rush to judgment”, and request that this Court trample upon the Plaintiffs’ constitutional rights to have a fair hearing regarding their claims, solely on the basis of reliance upon other borrower fact patterns and different claims advanced by those borrowers, and not to have this Court review allegations as specifically advanced by Plaintiffs.1 1 Indeed, the genesis of the hearsay rule comes to mind; where Sir Walter Raleigh was vilified, imprisoned, and almost executed 1603, but was later executed in 1616 after Queen Elizabeth I died, solely on the basis of statements that he never alleged The issue before this Court involves a citizen of this Commonwealth’s family abode, the center of their family nucleus, and the structure containing over thirty years of family history, memories, in short, the Plaintiffs’ very identity. Further, one of the Plaintiffs suffers from a physical disability, creating further urgency to remain within the premises. As discussed at oral argument on Plaintiffs’ Motion for Preliminary Injunction, Plaintiffs have repeatedly stated that they would be more than happy to pay their mortgage payments, but have been repeatedly stonewalled in their attempts to do so. Again, the instant premises does not represent a short-term investment to be “flipped” for profit, but a family home of well over thirty (30) years 1. The SUC Definitively Stated In Fitchburg, That The Maturity Date of a Mortgage [Where A Date Is Stated] Is Determined Upon The Date In Which The Debt Falls Due On November 10, 2017, Defendants submitted supplemental argument to support its position under G.L. c. 260, §33 that solely relied upon two court decisions, [both non-precedential]; namely Hayden v. HSBC Bank USA, N.A., 867 F.3d 22 (1st Cir. 2017) (“Hayden”), and Stone v. Stone, 2017 WL 3319269 (Mass. Land Court (2017). Both matters can clearly be distinguished from the Plaintiffs’ specific allegation, and claim for their entitlement to relief, as advanced by Plaintiffs before this Court. Indeed, unlike Defendants cited case law, the fact pattern and specific claims before this Court provide Plaintiffs with plausible claim and theory for their entitlement for relief Respectfully submitted, at p. 5-6, the portion of the Court’s Order on Plaintiffs’ Motion for Preliminary Judgment ( This is so, any acceleration theory, c. #6), the Court quotes the First Circuit in Hayden. “their [Plaintiffs] citation in Deutsche Bank National Trust Co...is inapposite because the decision makes no mention of the impact of an accelerated note on the obsolete mortgage statute limitations period..” 260, $33. However, G.L. a because the First Circuit did not consider or opine outside of only directly reviewing G.L. 260, $33 clearly references the “maturity date” of the mortgage being the operative determinative element. “section 33. 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 mortgage in which the term or maturity date of the mortgage is stated, 5 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. In case an extension of the mortgage or the acknowledgment or affidavit is so recorded, the period shall continue until 5 years shall have elapsed during which there is not recorded any further extension of the mortgage or acknowledgment or affidavit that the mortgage is not satisfied. The period shall not be extended by reason of non-residence or disability of any person interested in the mortgage or the real estate, or by any partial payment, agreement, extension, acknowledgment, affidavit or other action not meeting the requirements of this section and sections 34 and 35. Upon the expiration of the period provided herein, the mortgage shall be considered discharged for all purposes without the necessity of further action by the owner of the equity of redemption or any other persons having an interest in the mortgaged property and, in the case of registered land, upon the payment of the fee for the recording of a discharge, the mortgage shall be marked as discharged on the relevant memorandum of encumbrances in the same manner as for any other mortgage duly discharged.” Plaintiff’s Mortgage [attached to their complaint at Exhibit B, and with specific reference at p. 1 9(E) “Note” states: “Borrower has promised to pay the debt in full no later than August 01, 2035” In Hayden, the extent of The First Circuit’s analysis of G.L. c. 260, §33 was limited to the following: “The district court also properly dismissed the Haydens' obsolete mortgage claim, which has no basis in the plain text of the statute or in precedent. Under Massachusetts's obsolete mortgage statute, Mass. Gen. Laws ch. 260, § 33, a mortgage becomes obsolete and is automatically discharged five years after the expiration of the stated term or maturity date of the mortgage. Nothing in the text of the statute supports the Haydens' 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 SJC's decision in Deutsche Bank National Trust Co. v. Fitchburg Capital, LLC, 28 N.B.3d 416 (Mass. 2015), is inapposite because the decision makes no mention of the impact of an accelerated note on the obsolete mortgage statute's limitations period.” What the First Circuit [respectfully submitted] clearly failed to undertake; was any construction of the statute. In Deutsche Bank v, Fitchburg Capital, LIC, 471 Mas. 248 (2015), the Massachusetts Supreme Court ("SJC”) specifically examined the construction of G.L. c. 260, §33. In Fitchburg, [like the Plaintiffs’ mortgage] that issue also involved a fact pattern in which the “maturity date” of the mortgage specifically stated and referenced the “maturity date” of the note. The SJC described the statutory background [and the 2006 revision] of G.L. c. 260, §33 as follows: “Statutory background. The obsolete mortgage statute was enacted in 1957 to create a statute of limitations on foreclosures against mortgages that had been recorded for fifty years or more, unless either an extension or a document asserting nonsatisfaction of the mortgage was recorded in the ten years preceding the end of the fifty- year period. G. L. c. 260, § 33, inserted by St. 1957, c. 370. In 2006, the statute was amended to create two different limitations periods, one for any “mortgage in which the term or maturity date of the mortgage is stated" and one for any “mortgage in which no term of the mortgage is stated." G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The limitations period for stated term mortgages is five years after expiration of the term or maturity date, and the limitations period for nonstated term mortgages is thirty-five years from the recording of the mortgage. [Note 8] Id. The amended statute allows enforcement of the mortgage if an extension or a document asserting nonsatisfaction of the mortgage had been recorded, but xeduced the ten-year period in the prior statute to five years. Id. The amended statute also became self-executing so ‘that any mortgage rendered obsolete by the terms of the statute is discharged without further legal action. Id.” Eitchburg at pp. 251-52 Thus, the SUC [as this Commonwealth's final arbiter of Massachusetts state law] did not merely literally quote G.L. c. 260, §33 verbatim, but rather [obviously] undertook further statutory construction of said statute, and opined “When interpreting the phrase, "mortgage in which the term ox_maturity date of the mortgage is stated," that triggers the five-year statute of limitations, "[wlords and phrases Shall be construed according to the common and approved usage of the language." G. L. c. 4, § 6, Third. According to Black's Law Dictionary 478, 1163 (10th ed. 2014), "maturity date" means "[t]he date when a debt falls due [emph. added], such as a debt on a promissory note or bond," and "mortgage" means "{a] conveyance of title to property that is given as security for the payment of a debt or performance of a duty and that will become void upon payment or performance according to the stipulated terms." Thus, the common meaning of the "maturity date of the mortgage" is the date on which the underlying debt is due because a mortgage derives its vitality from the debt that it secures. [emoh added] This definition comports with the treatment of mortgages under our common-law principles. Although a mortgage and a note are separate entities in Massachusetts that can be split, it has long been recognized that "a mortgage ultimately depends on the underlying debt for its enforceability." Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569 , 576, 578 n.11 (2012), citing Crowley v. Adams, 226 Mass. 582 _, 585 (1917) Wolcott v. Winchester, 15 Gray 461 (1860), and Howe v. Wilder, 11 Gray 267 , 269-270 (1858). By its nature, a mortgage does not mature distinctly from the debts or obligations that it secures. See Eaton, supra at 577-578 ("the basic nature of a mortgage [is] security for an underlying mortgage note"); Barnes v. Lee Sav. Bank, 340 Mass. 87 , 90 (1959) ("The debt having been extinguished, a bond or mortgage given as security for the debt is necessarily discharged"). Accordingly, a mortgage is a device for providing security for a loan, but it does not generally have a binding effect that survives its underlying obligation. See Piea Realty Co. v. Papuzynski, 342 Mass 240 , 246 (1961), quoting Pineo v. White, 320 Mass. 487 , 489 (1946) (unless other equitable considerations apply, "payment of the mortgage note . . . terminates the interests of the mortgagee without any formal . - discharge and revests the legal title in the mortgagor"). Therefore, the judge's interpretation of the statute corresponds to the plain meaning of the language chosen by the Legislature.” Fitchburg, at 253-254. Clearly, the legislative intent in enacting G.L. c¢. 260, §33, was to remove stagnant and obsolete encumbrances upon title to real property, caused by the many foreclosures that have 10 taken place during the “Great Recession”. Such statute was a warning to those with stagnant claims to title who continued to sit on their rights [while at the same time preventing alienation of real property]. Such revised enactment of the 5 year period was known law to Defendant, yet they chose to continue to sit on their rights. The SJC unequivocally determined that where a mortgage states the maturity date of the note on the face of the mortgage, then the maturity date of the mortgage is deemed to be the “maturity date” of the Note. The First Circuit made no such similar inquiry. Thus, where a mortgage solely relies upon the underlying debt for its “vitality” [as opined by the SJC in Fitchburg], an examination as to the “maturity date” of a note, and G.L. c. 106, §118(a) would be necessitated. A. The Statute of limitations to collect upon a Note Is Governed By G.L. c. 118(a) First, respectfully stated, unlike the finding by this Court at p. 6 (#6), that Plaintiffs’ note was accelerated in 2015, Defendants “accelerated” Plaintiffs Note in July 2010, [as they never cured their default] reference Exhibit M [at p. 2] attached to Plaintiffs’ complaint. Under G.L. c. 106, $§118(a) the statute of limitations begins to run from the time of the “maturity date” of the Note, or its “accelerated due date” Fte Section 3-118. (a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay @ note payable at a definite time must be commenced within six years after the due date or dates stated in the note ox, if a due date is accelerated, within six years after the accelerated due date. Indeed, the Courts of this Commonwealth have definitively held that the act of “acceleration” advances the maturity date of the debt and makes the debt immediately due and payable, [see Ferreira v. Yared, 32 Mass.App. Ct. 328, 330 (1992)]: “That question need not be resolved because, by accelerating the note, the Yareds, as payees, lost the right to collect a prepayment penalty....because the act of acceleration advances the maturity of the debt; the debt becomes immediately due and payable. Matter of LHD Realty Corp., 726 F.2d 327, 330 (7th Cir. 1984). Tan v. California Fed. Sav. & Loan Assn., 140 Cal.App. 3d 600, 809 (1983). Slevin Container Corp. v. Provident Fed. Sav. & Loan Assn., 98 Ill. App. 3d 646, 648 (1981), Kilpatrick v. Germania Life Ins. Co., 183 N.Y. 163, 168 (1905}. George H. Nutman, Inc. v. Aetna Bus. Credit, Inc., 115 Misc. 2d 168, 169 (N.Y. Sup. Ct. 1982). Compare Pacific Trust Co. v. Fidelity Fed. Sav. & Loan Assn., 184 Cal. App. 3d 817, 824 (1986).” Therefore, the Defendants “acceleration” of the date upon which the Plaintiffs’ Note would fall due was “accelerated” [as that term is understood under G.L. c. 106, $118(a)] to July 2010 Therefore, it represents a plausible claim for the Plaintiffs to allege reliance upon G.L. c. 260, $33, where the SIC has opined that the ultimate determination of the “maturity date” of the Plaintiffs’ mortgage depends upon the “date when their debt [Note] falls due has been accelerated, and controls the analysis before this Court regarding Count I1I of their 12 verified complaint. Clearly, the First Circuit in Hayden made no examination of the clear statements made by the SJC, or undertook any construction of this statute. The preceding therefore renders Hayden inapposite to the allegations advanced by Plaintiffs here, for their entitlement to relief. Hayden is also not controlling precedent B. Defendants Fare No Better Under Their Unreported Trial Court Citation of Stone v. Stone 2017 WL 3319269 (Mass. Land Court (2017) Plaintiff's Mortgage specifically references the specific “maturity date” upon which the debt was originally to fall “due”, placing Plaintiffs within the § year statute of limitations as envisioned by revised G.L. c. 260, §33. In Stone v. Stone WL 3319269, involved allegations before a trial court, concerning an action filed by that litigant regarding Registered Land, in which the petitioner Stone sought a “Subsequent Action” to expunge the mortgage under G.L. c. 185, §§112-114. In fact, unlike the mortgage presently under review before this Court, the fact pattern in Stone involved a mortgage with no stated date of maturity, “In the present case, the mortgage incorporated “by reference” the due date of the note, but does not state the due date anywhere on the face of the mortgage document..”, [see case attached to Defendants supplemental filing to their Opposition to Plaintiff’s Motion for Preliminary Injunction, at p. 4, second para, left hand side] 13 Clearly Stone’s mortgage did not specifically recite anywhere on the face of the mortgage any maturity date, which unlike Plaintiffs, subjected Stone to the thirty-five (35) year statute of limitations period.? Clearly the findings made by the Land Court in this cited matter by Defendants was focused upon the specific Fact pattern before that court. Clearly, and rather obviously, unlike Stone, the Plaintiffs’ mortgage before this Court does reference the maturity date of the underlying note, making Stone completely inapposite to the fact pattern before this Court. C. Defendants Wrongly Imply In Their November 10, 2017 Letter To The Court That The Creditor Is Entitled To Foreclose Upon The Mortgage If The Note Is Discharged or Beyond The Statute of Limitations Indeed, unlike the instant 12(b) (6) Motion under review, in the Rule 65 Opposition, the Defendants state further reliance upon Stone, flatly stating as follows: “Moreover, Judge Speicher explained that even if a contract action to collect _on a mortgage note is barred by the Statute of limitations or because of the borrowers’ discharge in bankruptcy, the mortgage "is still ‘in full force,' and the creditor is entitled to recover the land, i.e. to foreclose on the mortgage." Id.” Again, Defendants seek to utilize a statement made in a trial court decision regarding the specific facts before that 2 Although, a sufficiently arguable basis for an appeal by Stone would lie where the terms “incorporated” where used with regard to the maturity date of the note. 14 court[contract action], to apply generally to every fact pattern [even one such as before this Court involving a completely different set of facts]; see Stone, at p. 3-4 “The petitioner's [Stone] reliance on Deutsche Bank is misplaced; the facts in Deutsche Bank are distinguishable, and the petitioner seeks a broader interpretation of its holding than it can support. The Supreme Judicial Court held in Deutsche Bank that the term or maturity date of an underlying obligation can become the term or maturity date of the mortgage only when "stated on the face of the mortgage." Deutsche Bank v. Fitchburg Capital, LLC, supra, 471 Mass. At 257. In fact, the petitioner's interpretation contradicts the holding that was affirmed in Deutsche Bank, to the effect that imposing the stricter 5-year limitations period only when the term or maturity date is clearly set forth on the face of the mortgage itself, instead of forcing the mortgage holder to search for this information outside the record title, creates "a greater level of certainty and consistency for members of the public." Deutsche Bank Nat'! Trust Co. v. Fitchburg Capital, LLC, 21 LCR 559, 563 (2013) (Foster, J.), affd Deutsche Bank v. Fitchburg Capital, LLC, supra, 471 Mass. 248. .... The mortgage held to be subject to the S-year limitations period in Deutsche Bank contained clear language indicating the maturity date of the debt: "it is to secure payment of a promissory note that is to be paid no later than December 31, 2003." Id. In the present case, however, the [Stone] mortgage merely provides for "said principal and interest being payable as provided in said [note]. To review, see Exhibit B attached to Plaintiffs’ verified complaint at Exhibit B [incorporated within their pleadings under authority of Mass. R. Civ. P., R. 10(c)], with specific reference at p. 1 (BE) “Note” state: : “Borrower has promised to pay the debt in full no later than August 01, 2035” D. Unlike Stone, Where Plaintiffs’ Note Was Discharged In Bankruptcy And Where The “Maturity Date” [of The Note] Was Stated Upon The Face of The Mortgage, Plaintiffs 45 Mortgage Was Subject To The Five (5) Year Limitation [Not 35 Years] Plaintiffs’ Note was discharged in bankruptcy on October 18, 2012, see Exhibit I to Plaintiffs’ complaint at p. 1. Thus, where the Plaintiffs’ indebtedness was extinguished bankruptcy, the only remaining statute of limitations was related to the mortgage singly [under G.L. c. 260, §33]. The fact pattern in Stone involved a litigant who was subject to the Thirty Five year statute of limitations [no maturity date stated on face of mortgage], therefore with regard to Stone his statute of limitations remained 35 years, from the maturity date or accelerated maturity date of the note, [sce G.L. c. 106, $118 (a)]. However, unlike Stone, where Defendants were subject to the five (5) year limitation of G.L. 260, §33, Plaintiffs’ mortgage was discharged in October 2012, Defendants sat on their rights in excess of the clear directive as set forth by the Legislature under said statute. It is unquestioned that the maturity date of Plaintiffs’ note is stated on the face of the mortgage [like Fitchburg, and unlike Stone] and thus, unlike Stone Plaintiffs’ fact pattern is in agreement with the SJC findings in Fitchburg thereunder regarding G.L. c. 260, §33 five (5) year statute of limitation. 16 Indeed, the specific finding by the trial court in Stone was as follows: “Therefore, even assuming the validity of the loan modification document showing the correct due date, and the applicability of the 20-year statute of limitations to the obligations under the underlying note, the petitioner is not entitled to have the mortgage expunged on the ground that collection of the underlying debt in a contract action is time-barred, Therefore, with regard to the bankruptcy issue, Stone tried to expunge the mortgage on a “contract claim” related to the extinguishment of the Note, not G.L. c. 260, §33. It therefore remains a plausible basis for the Plaintiffs to have alleged a further plausible basis for their claim for their entitlement for relief under G.L. c. 260, $33, where after the extinguishment of the Plaintiffs’ Note in bankruptcy, the Defendants were left solely subject to the five (5) year limitation under G.L. c. 260, §33. Plaintiffs here face no such 35 year impediment [as did Stone], Defendants completely fail to identify any implausibility related to any of the preceding, or have identified to this Court, any other specific implausible basis for the Plaintiffs’ claims for their entitlement for relief. Thus, Defendants failed to meet their burden by identifying or making any supporting argument to their reliance upon their cited case law, outside of seeking to apply completely off point findings made by two non- 7 precedential courts. In fact, as discussed above, when actually examining these non-precedential findings, they are completely inapposite of the precise fact pattern before this Court under Plaintiffs’ particularized claim for their entitlement to relief. Plaintiffs’ fact pattern and particular claims under G.L. c. 260, $33, also provide a foundational basis for the fact that they have a high likelihood of success under Count I, which seeks declaratory judgment that the Defendants fail to currently possess requisite statutory authority to foreclose upon the Plaintiffs’ statutory right of redemption under G.L. c. 244, $14, and G.L. c. 244, §18 CONCLUSION For all of the preceding discussion, argumentation, citation to the law of Massachusetts, and cited ratio decidendi examination thereof, Plaintiffs respectfully request that Defendants Motion under review be denied, as Plaintiffs allegations have more than met the Iannacchino bar, to have withstood the instant attack Respectfully submitted Plaintiff, Stephen and Vickie Nims By their Attorney, Esq Sen? Russell, Jr (BRO No. 656914) 18 Glenn F, Russell, Jr.& Associates, P.C. 38 Rock Street, Suite #12 Fall River, MA 02720 p. (508) 324-4545 f£. (508) 938-0244 Date: December 14, 2017 russ45esq@gmail.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served under Superior Court Rule 9A, upon the following via email, and USPS postage prepaid, on December 14, 201 Robert M. Mendillo Harmon Law Offices, P.C. 150 California Street Newton, MA 02458 Ssell, Jr., Esq 19 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 2005-5372, and BANK OF AMERICA, N.A., Defendants. DEFENDANT BONY MELLON’S REQUEST FOR A HEARING ON ITS MOTION TO DISMISS THE COMPLAINT. Pursuant to Superior Court Rule 9A(c), defendant, Bank of New York Mellon as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2005-5372 (“BONY Mellon”), respectfully requests a hearing on its Motion to Dismiss the complaint, and notes that under Rule 9A(e)(3) it has a presumptive right to a hearing on its Rule 12(b)(6) motion to dismiss, Further, BONY Mellon believes that a hearing will facilitate the “just, speedy and inexpensive determination” of this action. Mass.R.Civ.P.1. Respectfully submitted, BANK OF NEW YORK MELLON, By its attomey, dod. Mond 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: December 18, 2017 rmendillo@harmonlaw.com CERTIFICATE OF SERVICE I, Robert M. Mendillo, hereby certify that on December 18, 2017 a true and accurate copy of this request 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 russ4Sesq@gmail.com Dean Wagner, Esq., Shechtman Halperin Savage LLP 1080 Main St Pawtucket, RI 02860 dwagner@shslawfirm.com [bth Robert M. Mendillo, Es