United States District Court, D. Massachusetts
JOHN N. LEWIS and SUSAN A. LEWIS, Plaintiffs,
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and WELLS FARGO BANK, N.A., Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
action arises from a home mortgage foreclosure. Jurisdiction
is based on diversity of citizenship. Plaintiffs John N.
Lewis and Susan A. Lewis have brought suit against defendants
Bank of New York Mellon Trust Company, N.A.
(“BNYM”), Mortgage Electronic Registration
Systems, Inc. (“MERS”), and Wells Fargo Bank, N.A
(“WFB”) for alleged violations of law stemming
from proceedings to foreclose on their home. The complaint
asserts claims for declaratory and injunctive relief,
conversion, and violation of Mass. Gen. Laws ch. 93A.
Plaintiffs essentially seek a two-prong declaration that
MERS, the mortgagee, did not have authority to assign the
mortgage to the purported note holder BNYM, and that BNYM is
not the holder of the promissory note that plaintiffs granted
to their original lender, Peoples Mortgage Corporation
have moved to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can
be granted. For the reasons set forth below, defendants'
motion will be denied.
otherwise noted, all facts are stated as alleged in the
complaint and its accompanying exhibits.
December 2004, plaintiffs purchased a home at 22 Cutler Road,
Needham, Massachusetts. (Compl. ¶ 5). To finance their
purchase, plaintiffs executed a $1.2 million promissory note
in favor of PMC, their lender. (Id. ¶ 6; Compl.
Ex. 1). The note was secured by a mortgage on the
property. (Compl. ¶ 6).
mortgage designates plaintiffs as the borrowers, PMC as the
lender, and MERS as the mortgagee. (Compl. Ex. 2 at
1). According to the mortgage, MERS “is a separate
corporation that is acting solely as a nominee for lender and
lender's successors and assigns.” (Id.).
Plaintiffs agreed to “hereby mortgage, grant and convey
to MERS (solely as nominee for lender and lender's
successors and assigns) and to the successors and assigns of
MERS, with power of sale the [Cutler Road property].”
(Id. at 2). MERS promptly recorded the mortgage in
the Norfolk County Registry of Deeds. (Compl. ¶ 7).
November 2008, PMC was voluntarily dissolved. (Id.
¶ 9). In October 2014, plaintiffs stopped paying
their mortgage. (Id. ¶ 10). According to
plaintiffs, they did so “upon a coincidental review of
their title which revealed that PMC had been dissolved and
that there was no record of any assignment of the mortgage in
the Land Court or Norfolk Registry of Deeds or that the note
had been sold, transferred or assigned to a subsequent
holder.” (Id.). At that time, MERS still owned
the legal title to the mortgaged premises in trust for the
note holder (the successors and assigns of PMC).
December 2014, MERS assigned the mortgage to BNYM, who
defendants contend was the note holder at the time of
default. (Id. ¶ 11; Compl. Ex. 4 at 1). The
assignment, which was prepared by WFB, was signed by an
assistant secretary of MERS, “as nominee for [PMC], its
successors and assigns.” (Compl. Ex. 4 at 2). The
assignment was recorded in January 2015. (Id.). At
all times relevant to this action, WFB has been acting as the
servicer for plaintiffs' loan on behalf of BNYM.
(Id.; Compl. Ex. 6).
2015, BNYM initiated foreclosure proceedings by filing a
Servicemembers Civil Relief Act case in the Massachusetts
Land Court. (Compl. ¶ 14). In May 2016, WFB recorded an
affidavit with the Registry of Deeds pursuant to Mass. Gen.
Laws ch. 244, §§ 35B and 35C. (Id. ¶
13). The affidavit identifies both the Cutler Road property
and the original mortgage, which was granted to MERS
“as nominee for [PMC], its successors and
assigns.” (Def. Ex. 1).The affidavit is signed by a vice
president of loan documentation for WFB and states that
“the mortgage was assigned to [BNYM], as
successor-in-interest to all permitted successors and assigns
of JPMorgan Chase Bank, N.A., as Trustee, for certificate
holders of Nomura Asset Acceptance Corporation Mortgage
Pass-Through Certificates, Series 2005-AR2 on December 23,
2014.” (Id.). It further states that BNYM is
“the holder of the promissory note secured by the above
filed suit in the Massachusetts Land Court in May 2016,
seeking to prevent BNYM from exercising the power of sale and
conducting a foreclosure. The complaint asserts claims for
(1) declaratory judgment, (2) injunctive relief, (3)
conversion, and (4) violation of Mass. Gen. Laws ch. 93A. It
alleges that “the assignment from [MERS] to [BNYM] is
fraudulent and void, ” and that “[BNYM] is not
the holder of the . . . promissory note given by [plaintiffs]
to [PMC].” (Compl. ¶ 15). It also alleges
conversion against WFB for wrongfully collecting $784, 500 in
plaintiffs' monthly mortgage payments from 2008 to 2014.
(Id. ¶¶ 20-23). Finally, it alleges that
MERS, WFB, and BNYM violated Chapter 93A by
“conspir[ing] to deceive [plaintiffs] . . . into
believing that [BNYM] was the owner of the mortgage for the
purpose of foreclosing on the Cutler Road property and
exercising the mortgage's power of sale, knowing that
[PMC] did not exist at the time of the assignment and
therefore MERS did not have legal title or authority to make
the assignment and further filing a false affidavit claiming
that BNYM was the holder of the note.” (Id.
¶ 25). The complaint seeks declaratory and injunctive
relief from the foreclosure proceedings and money damages.
removed the case to this Court in June 2016. They have moved
to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6)
for failure to ...