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 FOR
SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR ADDITIONAL
TIME TO TAKE DISCOVERY
Dennis Saylor IV United States District Judge.
action arises out of a home mortgage foreclosure. Plaintiffs
John Lewis and Susan 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-part declaration that BNYM
is not the holder of the promissory note that plaintiffs
granted to their original lender, Peoples Mortgage
Corporation (“PMC”), and that MERS, the
mortgagee, did not have authority to assign the mortgage to
the purported note holder BNYM.
have moved for summary judgment pursuant to Fed.R.Civ.P.
In opposing defendants' motion, plaintiffs have moved for
additional time to conduct discovery under Rule 56(d). For
the reasons set forth below, defendants' motion for
summary judgment will be granted and plaintiffs' motion
for additional time to conduct discovery will be denied.
facts are presented in the light most favorable to
plaintiffs, except where otherwise noted.
December 22, 2004, plaintiffs John and Susan Lewis purchased
a home at 22 Cutler Road, in Needham, Massachusetts. (Compl.
¶ 5; Penno Aff. Ex. A Adjustable Rate Note at 1). To
finance their purchase, plaintiffs executed a $1.2 million
promissory note in favor of PMC, their lender. (Penno Aff.
Ex. A at 1). The note was secured by a mortgage on the
property. (Compl. Ex. 2, Mortgage on the 22 Cutler
mortgage designates plaintiffs as the borrowers, PMC as the
lender, and MERS as the mortgagee. (Id. 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 “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. (Id. at 11).
to the execution of the note, PMC executed a limited power of
attorney appointing Mortgage Network, Inc. “as its
agent and attorney in fact for the . . . purpose of endorsing
and assigning mortgage loan documents, including promissory
notes and mortgage assignments” in transactions where
the intent was to sell loans from PMC to Mortgage Network.
(Penno Aff. Ex. A at 10). The power of attorney empowers
certain Mortgage Network employees, including Chad Goodwin,
to endorse or assign documents on behalf of PMC.
to the power of attorney, the note was specially endorsed
from PMC to Mortgage Network without recourse and signed by
Goodwin. (Id. at 4; Def. SMF ¶ 6).
Subsequently, Goodwin endorsed the note in blank without
recourse. (Penno Aff. Ex. A at 4; Def. SMF ¶
On January 25, 2005, BNYM took possession of the original
note endorsed in blank, and has maintained possession of it
since that time. (Penno Aff. ¶ 7-8).
November 2008, PMC was voluntarily dissolved. (Compl. Ex. 3,
PMC Articles of Voluntary Dissolution). In October 2014,
plaintiffs stopped paying their mortgage. (Compl. ¶ 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 mortgage in trust for the
successors and assigns of PMC.
after the default, in December 2014, MERS assigned the
mortgage to BNYM. (Compl. Ex. 4, Corporate Assignment of
Mortgage, 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.”
(Id. 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. ¶ 21; Compl.
Ex. 6, Oct. 27, 2015 Letter to Lewises from ASC; Docket No.
20, WFB Aff.).
2015, BNYM initiated foreclosure proceedings by filing a
Servicemembers Civil Relief Act case in the Massachusetts
Land Court. (Compl. ¶ 14).