SANDRA M. STRAWBRIDGE
THE BANK OF NEW YORK MELLON.
Heard: May 1, 2017.
action commenced in the Superior Court Department on August
motion to dismiss was heard by Jeffrey A. Locke, J., and a
motion for reconsideration was considered by him.
F. Russell, Jr., for the plaintiff.
Anthony J. Coletti for the defendant.
Present: Agnes, Massing, & Lemire, JJ.
plaintiff, Sandra M. Strawbridge, appeals from a judgment of
the Superior Court dismissing her verified complaint for
declaratory and injunctive relief, which challenges the
action of the defendant, Bank of New York Mellon (Bank), as
trustee for the Certificateholders CWABS, Inc., Asset Backed
Certificates Series 2007-10 (CWABS trust), to foreclose on
her property. She maintains that the judge erred in applying
G. L. c. 244, § 14, and some of our recent case law. As
Strawbridge has failed to state a plausible claim that the
Bank, at the time of foreclosure, did not hold both the
mortgage and the note, see Eaton v.
Federal Natl. Mort. Assn., 462 Mass. 569, 583-589
(2012), and based on the sound reasoning in the judge's
thorough memorandum of decision, we affirm.
verified complaint, viewed in a light most favorable to
Strawbridge, contains the following facts. In 2007,
Strawbridge received a $370, 000 loan as part of a home
refinancing arrangement with Countrywide Home Loans, Inc.
(Countrywide). In exchange for the loan, Strawbridge executed
a promissory note payable to Countrywide, and granted a
mortgage on the subject property to secure payment for the
note. The mortgage identified Countrywide as the
"Lender" and Strawbridge as the
"Borrower." The mortgage also designated Mortgage
Electronic Registration Systems, Inc. (MERS) as the mortgagee,
"acting solely as a nominee for Lender and Lender's
successors and assigns." Although MERS held the mortgage
solely as a nominee for Countrywide, the mortgage contained a
provision authorizing MERS to act on behalf of Countrywide in
the event of a default.
2009, Strawbridge defaulted on her note by failing to keep up
with her mortgage payments. In February, 2010, MERS assigned
Strawbridge's mortgage to the Bank. A MERS
"Assistant Secretary and Vice President" executed
the assignment, which was notarized and recorded at the
appropriate registry of deeds. Later, in March, 2015, a
"Second Assistant Vice President" at the Bank's
loan servicer executed an "Affidavit Regarding Note
Secured by Mortgage Being Foreclosed." That affidavit
states that the Bank is the holder of the note. In addition,
in April, 2015, the Bank's loan servicer executed a
"Certificate Relative to Foreclosing Mortgagee's
Right to Foreclose Pursuant to 209 C.M.R. l8.2lA(2)(c),
" which certified that the Bank is the
"holder of the Mortgage" and "the holder of
the Note or is authorized agent of the Note holder with the
specific authority to enforce payment and pursue foreclosure
of the Mortgage on behalf of such Note holder." Finally,
in July, 2015, the Bank sent Strawbridge a notice of
foreclosure sale pursuant to G. L. c. 244, § 14,
informing her that a foreclosure sale would take place in
responded by filing a complaint in the Superior Court,
claiming slander of title and seeking a declaration that the
Bank could not utilize the statutory power of sale remedy
under G. L. c. 244, § 14, because it had failed to
comply with the strict statutory requirements. Strawbridge
also sought, and was granted, an ex parte restraining order
enjoining the Bank from foreclosing. After a hearing, a judge
vacated the restraining order and denied Strawbridge's
request for a preliminary injunction. The Bank then filed a
motion to dismiss all counts of Strawbridge's complaint
pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974),
which a different judge granted.
review of the allowance of a motion to dismiss a complaint
for failing to state a claim upon which relief may be granted
under Mass.R.Civ.P. 12(b)(6) is de novo. Galiastrov.Mortgage Electronic Registration Sys.,
Inc., 467 Mass. 160, 164 (2014). The allegations of the
complaint are taken to be true along with any reasonable
inferences that may be drawn in the plaintiff's favor.
Golchinv.Liberty Mut. Ins. Co.,
460 Mass. 222, 223 (2011), S.C., 466 Mass. 156 (2013),
quoting from Marramv.Kobrick Offshore
Fund, Ltd., 442 Mass. 43, 45 (2004). See Curtisv.Herb Chambers 1-95, Inc., 458 Mass. 674,
676 (2011). "What is required at the pleading stage are
factual 'allegations plausibly suggesting ...