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Strawbridge v. Bank of New York Mellon

Appeals Court of Massachusetts, Norfolk

July 20, 2017


          Heard: May 1, 2017.

         Civil action commenced in the Superior Court Department on August 11, 2015.

         A motion to dismiss was heard by Jeffrey A. Locke, J., and a motion for reconsideration was considered by him.

          Glenn F. Russell, Jr., for the plaintiff.

          Anthony J. Coletti for the defendant.

          Present: Agnes, Massing, & Lemire, JJ.

          AGNES, J.

         The 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.


         The 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)[2] 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.[3]

         In 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), "[4] 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 August.

         Strawbridge 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.


         Our 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 ...

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