U.S. BANK NATIONAL ASSOCIATION, trustee,
Heard Date June 9, 2016. 
process. Complaint filed in the Western Division of the
Housing Court Department on April 17, 2012.
case was heard by Robert G. Fields, J., on motions for
summary judgment; a motion to vacate judgment, filed on April
1, 2014, was heard by him; a motion for reconsideration,
filed on May 22, 2014, was heard by him; and the entry of
judgment was ordered by him.
Bruce Allensworth (Robert W. Sparkes, III, with him) for the
F. Russell, Jr., for the defendant. Daniel Bahls & Uri
Strauss, for Luz Diaz, amicus curiae, submitted a brief.
Present: Grainger, Meade, & Wolohojian, JJ.
issue is whether the defendant, Wendy Boiling, has standing
to challenge the assignment of a mortgage that was not made
in accordance with the terms of a pooling and servicing
agreement (PSA) to which she was not a party. Because the
defect rendered the assignment merely voidable rather than
void, we conclude that she does not.
moved for summary judgment in the summary process eviction
action below, arguing (among other things) that the
foreclosure sale through which the plaintiff, U.S. Bank
National Association, trustee for RASC 2006KS9 c/o GMAC
Mortgage, LLC (trust), took title to a property at 114 Lamont
Street, Springfield, was void because the assignment of the
mortgage to the trust did not comply with the terms of a PSA
between Residential Asset Securities Corporation, Residential
Funding Company, LLC, and U.S. Bank National
Association. Specifically, Boiling alleged that the
assignment did not take place within the time period required
under the PSA. She further argued that this deficiency
rendered the assignment void under New York law, which she
contended governed because of the PSA's choice-of-law
provision. The judge agreed, ruled that Boiling had
standing to challenge the assignment because it was void
under New York law (and not merely voidable), and allowed her
motion for summary judgment. Judgment entered accordingly.
The trust appeals.
begin with the proposition, of long standing, that
Massachusetts applies its own law to claims and defenses
involving real property located within its borders. See
Ross v. Ross, 129 Mass. 243, 246
(1880); Glannon & Teninbaum, Conflict of Laws in
Massachusetts Part I: Current Choice-of-Law Theory, 92 Mass.
L. Rev. 12, 23 (2009) ("Massachusetts has long
held that the law of the place where real property is located
governs"). Boiling's challenge to the assignment,
regardless of how she has phrased it, is just such a claim.
As we have previously explained, "the legally cognizable
interest [Boiling] seek[s] to protect [is her] ownership
interest in the property, based on [her] claim that [the
trust's] purported foreclosure was void by reason of its
lack of legal authority to conduct it."
Sullivan v. Kondaur Capital Corp.,
85 Mass.App.Ct. 202, 206 (2014). Understanding Boiling's
challenge to the assignment's validity in this way, it is
clear that her claims (as well as her standing to assert
them) are governed by Massachusetts law. See Restatement
(Second) Conflicts of Laws § 223(1) (1971)
("Whether a conveyance transfers an interest in land and
the nature of the interest transferred are determined by the
law that would be applied by the courts of the situs").
would reach the same result using a functional approach to
resolving which law applies. See Resolute Mgmt. Inc.
v. Transatlantic Reins. Co., 87
Mass.App.Ct. 296, 302 (2015), quoting from Lou
v. Otis Elevator Co., 77 Mass.App.Ct. 571,
583 (2010) (in tort cases, "Massachusetts generally
follows a functional approach to resolving choice of law
questions on substantive matters, eschewing reliance on any
particular choice-of-law doctrine"). As the State where
the real property is located, Massachusetts has the strongest
interest in ensuring that the foreclosure took place in
accordance with its laws and in determining who has the
superior right of possession. See Newburyport Five Cents
Sav. Bank v. MacDonald, 4 8
Mass.App.Ct. 904, 906 (1999) .
PSA's choice-of-law provision, see note 4,
supra, does not bear on what law governs
Boiling's standing to challenge the trust's claim of
superior possession to the property. Boiling's
counterclaims and defenses do not arise from either the
assignment or from the PSA, Sullivan, 85
Mass.App.Ct. at 205, and Boiling has not otherwise shown any
interest New York might have in the property, or in who has
title or the superior right of possession. For these same
reasons, New York law does not govern whether the assignment
was "void" or "voidable" for purposes of
establishing Boiling's standing.
Massachusetts law, although Boiling has standing to challenge
deficiencies that render the assignment void, she does not
have standing to challenge those that make it merely
voidable. See J_d. at 206; Bank of N.Y. Mellon Corp.
v. Wain, 85 Mass.App.Ct. 498, 502-504
(2014). See also Culhane v. Aurora Loan
Servs. of Neb., 708 F.3d 282, 290-291 (1st Cir. 2013);
Woods v. Wells Fargo Bank, N.A.,
733 F.3d 349, 354 (1st Cir. 2013). Boiling does not argue,
nor has she shown, that the assignment on its face failed to
satisfy the applicable statutory requirements for
assignments. See G. L. c. 183, § 54B. She therefore has
"no basis for arguing that the assignment is void."
Wain, 85 Mass.App.Ct. at 504. Her contention that
the assignment was not made in accordance with the terms of
the PSA, a contract to which she had no connection, either as
a party or an intended third-party beneficiary, is instead
the type of latent defect that renders an assignment merely
voidable. Ibid. See Woods, 733 F.3d at 354
("claims 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
judgment is vacated and the matter is remanded for further
proceedings consistent with this opinion.