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Nims FAR As Acepted 05-13-2020
Nims FAR As Acepted 05-13-2020
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT DOCKET
NO. FAR-27062
vs.
1
TABLE OF CONTENTS
2) SUMMARY STATEMENT 12
2
Repose Periods Under G.L. c. 260, §33 38
6) CONCLUSION 43
3
TABLE OF AUTHORITIES
STATE CASES
FEDERAL CASES
In re LLC,,
642 F.3d 263 (1st Cir. 2011)................43
4
MASSACHUSETTS STATE STATUTES
5
1) Request for Leave to Obtain Further Appellate
Review
6
this statute’s text. This Court clearly found ambiguity
it secures.
7
of acceleration, indisputably advances the maturity date
in full by July 10, 2010. Thus, this July 10, 2010 date
8
mortgage beyond five years of it being “overdue”, under
§33.
9
ultimately opine. The instant opinion also referenced
Cir. 2018).
260, §33 with regard to the term maturity date and its
1 The possible cause for this lies in the fact that the
legislative amendment to G.L c 260, §33 took place in
2006, six years prior to this Court’s ruling in Eaton v.
Fed Nat’l Assn. 462 Mass. 569 (2012).
2
Indeed, many rulings have held that this statute is
unambiguous as to its operation, i.e. that the five and
thirty-five year repose periods are clear. However, in
Fitchburg this Court clearly examined the specific
10
statutory construction to discern the meaning of the
definitively opined.
11
to their real property. It is with the above in mind
2) Summary Statement
12
The Superior Court Judge entered ruling in favor of
2020:
findings.
13
On appeal the Petitioners solely limited their
260, §33, and that they had advanced plausible claim for
3
This was due in large part from veiled threats from
opposing trial court counsel
14
relief. Petitioners plausibly argued that it was the
15
leading to the conclusion that where a mortgage does not
16
Thus, with the above statutory construction
10, 2010 notice that if they did not pay the entire
17
Petitioners’ property. The preceding forced Petitioners
18
257]. G.L. c. 260, §34 also states that when seeking an
19
date of August 01, 2035 as stated within the June 10,
(4th Cir. 2012). The Panel found “that case does not
20
App. Ct. 203 (2011), where both of these cases relied
260, §33.
21
the Plaintiffs’ transfer of a defeasible fee title
22
modification payments of $2,046.62. The schedule for
“was Okay” and the paperwork was on its way. April 28,
23
June 10, 2010 letter clearly attempts to follow
24
2035, to then become immediately due and payable in full
25
executed purporting that the “beneficial interest” under
282, 287 (1st Cir. 2013); “it [MERS] does not have any
26
‘beneficial interest in the loan”. 7
7
Additionally, at the time that the Culhane ruling was
decided, a “mortgagee” for statutory purposes of G.L.
c. 244, §14 was defined as only being required to be
in “possession” of the mortgage as a “holder”, with no
examination as to the Note
27
was now transferred to Shellpoint Mortgage Servicing.
28
Motion for Preliminary Injunction, with Memorandum of
29
the Hon. Campo, J., CITING TO 2 CASE LAW DECISIONS;
[RA-484].
30
Defendant Bank of America filed its Motion to Dismiss
HSBC Bank, USA, N.A., 867 F.3d. 22 (1st Cir. 2017) [RA-
of Appeal [RA-622].
31
Mass. 248, 253-258 (2015).
32
This Court then affirmatively stated that the above
date]:
33
holder of a mortgage to foreclose on the mortgage,
record a document asserting nonsatisfaction, or
record an extension before the mortgage has been
on record for thirty-five years or before the
secured debt is overdue by five years (and the due
date is stated on the face of the mortgage). See
St. 2006, c. 63, § 6. The statute has never been
interpreted to require satisfaction of a
mortgage's underlying obligations before the
mortgage becomes unenforceable.” Fitchberg at pp.
257
34
In Ferreira v. Yared, 32 Mass. 328, 330 (1992),
35
B. The Panel Erred In The Application of The Law By
Its Failure To Examine The Historical Definition
of The Term Maturity Date
as follows:
36
Panel failed to undertake any statutory construction of
8
Indeed, the seminal cases for this line of thinking
has its genesis from the 1st Circuit ruling in Hayden
v. HSBC Bank USA, C.A. 16-2274, [orig decided Aug. 08,
2017, undersigned had this decision vacated Aug. 2018,
renewed decision by new panel April 17, 2020
37
the line of cases from the intermediate appellate court
412 (4th Cir. 2012), but stated “that case does not
208]. 10
these cases.
38
Action That Is Governed By The Repose Periods
Under G.L. c. 260, §33
39
Terms of The Mortgage Contract, Previous Case Law,
and This Court’s Examination in Fitchberg
statute”,
12
Paragraph 22 of Plaintiffs’ Mortgage is entitled
“Acceleration: Remedies”, stating ...the failure to cure
on or before the date specified [July 10, 2010], the
Lender at its option, may require immediate payment in
full of all sums secured by this Security Instrument and
may invoke the Statutory Power of Sale. Defendant did
both of these things in 2012.
40
“As stated above, the deed of trust [mortgage]
provided that,[680 F.3d 416] upon acceleration, “
all sums secured by this Security Instrument and
accrued interest thereon shall at once become due
and payable.” (Emphases added.) Because no
additional payments were scheduled thereafter, the
acceleration date became “the due date of the last
scheduled payment of the agreement, within the
intendment of the statute of limitations.”
Therefore, the original schedule of payments, which
would have ended on June 1, 2030, no longer had any
effect under the terms of the deed of trust.”
Delebreau at 415.
follows:
¶22. 13
13
Plaintiffs did not file their bankruptcy petition
41
Further, the Petitioners received their discharge
42
254. 15 16 17
43
judicial economy and it is not within our power to
rewrite such legislation...See Prudential Ins. Co.
of America v. Boston, 369 Mass. 542, 547 (1976)
(“function of the court” is to construe statute as
it is written “and an event or contingency for which
no provision is made does not justify” court to
rewrite statute's terms or conditions to meet such
event or contingency, as may arise).” Ry-Co Int'l,
Ltd. v. Voniderstein, 89 Mass.App.Ct. 1130, 54
N.E.3d 606(Table) (1:28 Mass. App., 2016)
01, 2035 (August 01, 2040), more than three decades after
6. Conclusion
P-1507 sua sponte’ on this same issue [as well as the many
Respectfully Submitted,
Petitioner,
by their Attorney
__________________
44
Glenn F. Russell, Jr.
BBO# 656914
CERTIFICATE OF SERVICE
John McCann
1080 Main Street
Pawtucket, RI 02806
__________________
Glenn F. Russell, Jr.
45
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
STEPHEN D. NIMS & another1 vs. THE BANK OF NEW YORK MELLON,
trustee,2 & another.3
No. 19-P-179.
1 Vickie L. Nims.
however, refer on its face to the July 6, 2005 note, and made
8 The June 10, 2010 notice was not the first step in
terminating the mortgagors' rights under the mortgage; instead,
it was "designed to give [the] mortgagor[s] a fair opportunity
to cure a default before the debt is accelerated and before the
foreclosure process is commenced through invocation of the power
of sale." U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421,
431 (2014).
5
Cure" letter, stating that they had failed to make their monthly
payments from November 2009 through June 2014, and that if they
On May 29, 2015, the Harmon Law Offices, P.C. sent a letter
that "the note is hereby accelerated," but also stated that the
Consistent with the legal principle we set out above, the letter
cured."
6
was accelerated from August 1, 2035, to July 10, 2010, the date
within five years of the July 10, 2010 acceleration date and,
Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213 (2011); Harvard
See Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471
Mass. 248, 257 (2015). In other words, the statute respects and
and more since the system was designed and adopted, and will
its power of sale within five years of August 1, 2035. See id.
in 2017.
So ordered.