H. CHRISTOPHER STARKEY & another 
DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,  & others. 
Heard: December 11, 2017.
action commenced in the Superior Court Department on November
20, 2009. Motions to dismiss were heard by Christopher J.
Muse, J., and entry of judgment was ordered by him.
F. Russell, Jr., for the plaintiffs.
Charles L. Solomont for Deutsche Bank National Trust Company
Present: Rubin, Lemire, & Shin, JJ.
plaintiffs, H. Christopher Starkey and Louisa H. Starkey,
entered into a mortgage loan transaction in which they
executed a promissory note in favor of Washington Mutual
Bank, FA (Washington Mutual), as lender and payee in the
amount of $1, 000, 000, on November 22, 2005, and gave
Washington Mutual a mortgage on their residential real
property in South Yarmouth. The plaintiffs ultimately fell
behind on their mortgage payments. On May 14, 2009, Deutsche
Bank National Trust Company (Deutsche Bank), as trustee for
WaMu Mortgage Pass Through Certificates Series 2006-AR1 Trust
(trust), brought a "Complaint to Foreclose
Mortgage" against the plaintiffs under the
Servicemembers Civil Relief Act, as a final step prior to
initiating the process of foreclosure through publication. On
June 10 and June 15, 2009, the plaintiffs sent
"Notice[s] of Rescission" to Deutsche Bank as
trustee of the trust, in which they claimed the right to
rescind the November 22, 2005, transactions. After receiving
no response, they filed their November, 2009, complaint in
the instant action in Superior Court, naming as defendants
Deutsche Bank, as trustee for the trust; JPMorgan Chase Bank,
N.A. (JPMorgan Chase), successor in interest to Washington
Mutual; and other entities related to JPMorgan Chase or
Washington Mutual. The plaintiffs sought declaratory relief,
damages, and rescission of the mortgage and note, alleging
that the defendants have no enforceable rights with respect
to the mortgage and note due to their failure to properly
convey these assets into the trust (count 1), that the note
and mortgage were obtained without disclosures mandated by G.
L. c. 140D (count 2), that the plaintiffs were fraudulently
induced to sign the mortgage and note (count 3), that the
defendants breached their contract with the plaintiffs by
refusing to allow the plaintiffs to rescind the mortgage loan
(count 4), that the defendants violated the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601-2617
(2006) (count 5), that the defendants violated the consumer
protection statute, G. L. c. 93A (count 6), and that the
defendants violated the borrower's interest statute, G.
L. c. 183, § 28C (a) (count 7).
defendants filed motions to dismiss in January, 2010. In
their memoranda in support of the motions to dismiss, the
defendants did not raise any argument that dismissal was
required by the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat.
183, the relevant portions of which are codified at 12 U.S.C.
§ 1821(c)-(1) (2006). However, at argument on the
motions, without prior notice to the plaintiffs, the
defendants presented the judge with a copy of Demelo v.
U.S. Bank Nat'1 Ass'n, 727 F.3d 117 (1st Cir.
2013), and argued that FIRREA, as construed by
Demelo, required dismissal of the suit.
motion judge ordered the dismissal of all but one claim in
the complaint -- count 5 as against JPMorgan Chase -- solely
on the basis of FIRREA. At the first opportunity to address
that statute, after the decision was rendered, the plaintiffs
filed a motion for reconsideration, arguing the
inapplicability of FIRREA. That motion was denied the same
day it was filed. Eventually the remaining count 5 claim was
resolved by mutual agreement and dismissed by separate
judgment. A second judgment then entered dismissing counts 1
through 4, 6, and 7, on the basis of FIRREA. Before us now is
the plaintiffs' timely appeal from that judgment (as
corrected to remedy a clerical mistake).
appeal the only issue before us is whether FIRREA requires
dismissal of these counts. In light of the procedural history
described, we think the plaintiffs' arguments were
adequately raised below.Additional relevant facts will be
described in the course of our discussion below.
September 25, 2008, Washington Mutual Bank, formerly
Washington Mutual Bank, FA,  was declared insolvent and placed
into receivership of the Federal Deposit Insurance
Corporation (FDIC). See Thompson v. Washington
Mut., 806 F.Supp.2d 197, 199 (D.D.C. 2011). Its assets
were immediately sold to defendant JPMorgan Chase. FIRREA
sets forth a claims procedure that requires creditors of
failed banks to file claims with the FDIC, and divests courts
of jurisdiction to hear these claims against these banks, or
the FDIC as receiver, until administrative remedies with the
FDIC have been exhausted. Specifically, the statute provides,
"Except as provided in this subsection, no court shall
have jurisdiction over-
"(i) any claim or action for payment from, or any action
seeking a determination of rights with respect to, the assets
of any depository institution for which the Corporation
[i.e., the FDIC] has been appointed receiver, including
assets which the ...