United States District Court, D. Massachusetts
THOMAS E. SHEEDY, TRUSTEE OF THE RED BIRD TRUST, Plaintiff,
BANK OF NEW YORK MELLON, Defendants.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS 1ST AMENDED COMPLAINT (DOCKET NO.
TIMOTHY S. HILLMAN, DISTRICT JUDGE.
Sheedy (“Plaintiff”) is trustee of RedBird Trust
(“Trust”), the owner of a property located in
Northborough, Massachusetts (the “Property”).
Bank of New York Mellon (“Defendant”), as trustee
for the Certificateholders of CWABS, Inc., Asset-Backed
Certificates, Series 2005-17 (“CWABS”), conducted
a foreclosure sale on the Property on February 6, 2017
(“2017 Foreclosure”) after Defendant was assigned
the rights and interests in the mortgage on the Property (the
“Mortgage”) by MERS. The nonjudicial foreclosure
was conducted pursuant to the statutory power of sale
provided in the Mortgage. See Mass. Gen. Laws ch. 183 §
21. Plaintiff alleges that the Defendant did not have the
authority to conduct the 2017 Foreclosure and has brought the
instant action. I find that the pleadings fail to state a
claim upon which relief can be granted and must be dismissed.
November 22, 2005, Daniel and Tammy Lyons
(“Borrowers”) gave the Mortgage and promissory
note (the “Promissory Note”) on the Property to
Countrywide Home Loans, Inc. (“Countrywide”). The
Mortgage provides inter alia:
MERS is a separate corporation that is acting solely as
nominee for [Countrywide] and [Countrywide's] successors
and assigns. MERS is the mortgagee under this Security
*** Borrower does hereby mortgage, grant and convey to MERS,
(solely as nominee for [Countrywide] and [Countrywide's]
successors and assigns) and to the successors and assigns of
MERS, with the power of sale, the following described
property . . .
Borrower understands and agrees that MERS holds only legal
title to the interest granted by Borrower in this Security
Instrument but, if necessary to comply with law or custom,
MERS (as nominee for [Countrywide] and [Countrywide's]
successors and assigns) has the right: to exercise any or all
of those interests, including but not limited to, the right
to foreclose and sell the Property…
The Note or a partial interest in the Note (together with
this Security Instrument) can be sold one or more times
without prior notice to Borrower.
…Lender at its option may require immediate payment in
full…and may invoke the STATUTORY POWER OF SALE and
any other remedies permitted by Applicable Law. (Docket No.
December 9, 2006, Plaintiff became the second mortgagee on
the Property, behind the CWABS mortgage.
the Depositor, and Countrywide, the seller, executed a
pooling and servicing agreement and prospectus supplement
(“PSA”). As a result of the PSA, the Mortgage was
securitized into the CWABS trust with Defendant named as
trustee on or about May 30, 2014. The PSA provided a cut-off
date for assignments for December 1, 2005. The PSA provided
inter alia …
the Depositor may its discretion provide evidence that the
related Mortgage is held through the MERS(R) System. In
addition, the Mortgages for some or all of the Mortgage Loans
in the Trust Fund that are not already held through the
MERS(R) System may, at the discretion of the Master Servicer,
in the future be held through the MERS(R) System. For any
Mortgage held through the MERS(R) System, the Mortgage is
recorded in the name of Mortgage Electronic Registration
Systems, Inc., or MERS(R), as nominee for the owner of the
Mortgage Loan, and subsequent assignments of the ...