Wells Fargo Appellee Brief 05-11-2020

Massachusetts Appeals Court Case: 2019-P-1507 Filed: 5/11/2020 4:06 PM
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
No. 2019-P-1507
TAMMY L. LARACE & another,

Plaintiffs-Appellants,
v.
WELLS FARGO BANK, N.A. & others,
Defendants-Appellees.
ON APPEAL FROM ORDER AND
JUDGMENT OF THE LAND COURT
18 MISC 000327
BRIEF OF DEFENDANTS-APPELLEES
Marissa I. Delinks, BBO #662934

Maura K. McKelvey, BBO #600760
Hinshaw & Culbertson LLP
53 State Street, 27th Floor
Boston, MA 02109
617-213-7000
Attorneys for Defendants-Appellees,

Wells Fargo Bank, N.A., as Trustee for ABFC 2005-OPT1 Trust,
ABFC Asset-Backed Certificates, Series 2005-OPT1 and PHH
Mortgage Corp., successor by merger to Ocwen Loan Servicing,
LLC
Dated: May 11, 2020
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................. 3
STATEMENT OF THE CASE AND FACTS ................................... 7
SUMMARY OF ARGUMENT ........................................................ 26
ARGUMENT .................................................................................... 30
I. JUDGMENT FOR DEFENDANTS WAS PROPER

AND SHOULD STAND ........................................................ 30
A. Standard of Review ...................................................... 30
B. Summary Judgment Correctly Entered

On Count I .................................................................... 32
1. Res judicata precludes this

claim.................................................................... 32
2. Count I also fails on its merits ............................ 37
C. Count VI Is Unsustainable ........................................... 44
D. 209 C.M.R. 18.21A(2)(c) Cannot Be Read

to Require A Chain of Title to the
Note ................................................................................... 46
E. The Obsolete Mortgage Statute Is

Inapplicable ....................................................................... 49
F. Count VII to Quiet Title Is Derivative ............................. 51
G. Counts IV and V Were Just Dismissed ........................... 51
CONCLUSION................................................................................. 53
2
TABLE OF AUTHORITIES
Page(s)
Cases
Abate v. Fremont Investment & Loan,

470 Mass. 821 (2014) ........................................................ 34, 35, 36
Anderson v. Phoenix Inv. Counsel of Boston, Inc.,

387 Mass. 444 (1982) .................................................................... 32
Attorney Gen. v. Bailey,
386 Mass. 367 (1982) .................................................................... 45
Bagley v. Moxley,
407 Mass. 633 (1990) .................................................. 32, 33, 36, 37
Bank of N.Y. Mellon Corp. v. Wain,

85 Mass. App. Ct. 498 (2014) ....................................................... 43
Bardige v. Performance Specialists, Inc.,

74 Mass. App. Ct. 99 (2009) ......................................................... 31
Boxford v. Massachusetts Hy. Dept.,
458 Mass. 596 (2010) .................................................................... 53
Brown v. Savings Bank Life Ins. Co. of Massachusetts,
93 Mass. App. Ct. 572 (2018) ....................................................... 31
Colley v. Benson, Young & Downs Ins. Agency,
42 Mass. App. Ct. 527 (1997) ....................................................... 31
Commonwealth v. McHugh,
41 Mass. App. Ct. 906 (1996) ....................................................... 53
Community Natl. Bank v. Dawes,

369 Mass. 550 (1976) .............................................................. 31, 45
Deutsche Bank Nat’l Trust Co. v. Fitchburg Capital,

LLC,
471 Mass. 248 (2015) .................................................................... 50
3
Eaton v. Fannie Mae,

462 Mass. 569 (2012) .................................................................... 38
Federal Home Loan Mortgage Corporation v. Bartleman,
94 Mass. App. Ct. 800 (2019) ....................................................... 44
Federal Natl. Mort. Assn. v. Hendricks,

463 Mass. 635 (2012) .................................................................... 30
Flesner v. Technical Communications Corp.,

410 Mass. 805 (1991) .................................................................... 42
Heacock v. Heacock,
402 Mass. 21 (1988) ...................................................................... 32
Kobrin v. Bd. of Registration in Med.,

444 Mass. 837 (2005) .................................................................... 33
LaRace v. Ablitt & Scofield, P.C.,

479 Mass. 1107, 2018 Mass. LEXIS 294 (May 4,
2018) .............................................................................................. 12
LaRace v. Wells Fargo Bank, N.A.,

92 Mass. App. Ct. 1126, 2018 Mass. App. Unpub.
LEXIS 115 (February 5, 2018)...................................................... 11
Massachusetts Fed. of Teachers, AFT, AFL-CIO v. Bd.
Of Education,
436 Mass. 763 (2002) .................................................................... 48
Massachusetts Fine Wines & Spirits, LLC v. Alcoholic
Beverages Control Commission,
482 Mass. 683 (2019) .................................................................... 46
Morin v. Autozone Northeast, Inc.,

79 Mass. App. Ct. 39 (2011) ......................................................... 31
Ng. Bros. Constr, Inc. v. Cranney,

436 Mass. 638 (2002) .................................................................... 41
Niles v. Huntington Controls, Inc.,
92 Mass. App. Ct. 15 (2017) ................................................... 30, 31
4
Nims v. Bank of New York Mellon,

97 Mass. App. Ct. 123 (2020) ........................................... 29, 49, 50
Parker v. Roberts,
243 Mass. 174 (1922) .................................................................... 47
Patry v. Liberty Mobilhome Sales, Inc.,

15 Mass. App. Ct. 701 (1983) ....................................................... 52
Strawbridge v. Bank of N.Y. Mellon,

91 Mass. App. Ct. 827 (2017) ....................................................... 42
U.S. Bank National Association v. Ibanez,

458 Mass. 637 (2011) ............................................................. passim
Zora v. State Ethics Comm’n,

415 Mass. 640 (1993) .................................................................... 53
Statutes
M.G.L. c. 93A .............................................................................. passim

M.G.L. c. 106, § 3-104 ....................................................................... 47
M.G.L. c. 106, § 3-109(c) ................................................................... 47
M.G.L. c. 106, § 3-205(b)............................................................. 47, 48
M.G.L. c. 183, § 3............................................................................... 47

M.G.L. c. 183, § 21............................................................................. 18
M.G.L. c. 183, § 54B .................................................................... 27, 43

M.G.L. c. 211B, § 9 ...................................................................... 29, 51
M.G.L. c. 231A ................................................................................... 15

M.G.L. c. 240, §§ 1-6 ........................................................................... 9
M.G.L. c. 240, §§ 6-10 ....................................................................... 17

M.G.L. c. 244, § 14....................................................................... 13, 18
M.G.L. c. 244, §§ 35B and 35C .................................................. passim
5
M.G.L. c. 244, § 35C(b) ..................................................................... 48
M.G.L. c. 244, § 35C(g) ..................................................................... 48

M.G.L. c. 260, § 33................................................................. 16, 29, 50
Other Authorities
209 C.M.R. 18.21A(2)(c) ............................................................ passim

Fed. R. Civ. P. 12(b)(6) ...................................................................... 10
Mass. R. Civ. P. 11 ....................................................................... 24, 25

Mass. R. Civ. P. 56 ............................................................................. 30
Servicemembers Civil Relief Act ....................................................... 12
6
STATEMENT OF THE CASE AND FACTS
Plaintiff-Appellant, Mark A. LaRace acquired 6 Brookburn
Street, Springfield, Massachusetts (“the Property”) pursuant to a
quitclaim deed dated May 16, 2005, recorded at the Hampden County
Registry of Deeds (“Registry”) on May 19, 2005, in Book 15029, Page
504. See Appellants’ Record Appendix Volume II (“RAII __”) at 168.
To purchase the Property, Mr. LaRace borrowed $103,200.00 from
Option One Mortgage Corporation (“Option One”) as evidenced by an
Adjustable Rate Note (“Note”) dated May 19, 2005. RAII 96. To secure
his repayment of the Note, Mr. LaRace and his wife, Plaintiff-
Appellant, Tammy L. LaRace (together the “LaRaces”) executed a
mortgage on May 19, 2005, to Option One encumbering the Property
(“Mortgage”). RAII 47. The Mortgage was recorded on May 19, 2005
at Book 15029, Page 507 (Note and Mortgage together, the “Loan.”).
Id.
The LaRaces defaulted on their Loan obligations and the
Defendant-Appellee, Wells Fargo Bank, N.A., as Trustee for ABFC
2005-OPT1 Trust, ABFC Asset-Backed Certificates, Series 2005-
OPT1 (“Wells Fargo as Trustee”) attempted a nonjudicial foreclosure
sale of the Property on July 5, 2007 (“2007 Foreclosure”). See
7
Appellants’ Record Appendix Volume I (“RAI __”) at 75. Wells Fargo
as Trustee executed a foreclosure deed and affidavit of sale on May 7,
2008. Id. Also on May 7, 2008, Option One executed an assignment of
the Mortgage to Wells Fargo as Trustee (“2008 Assignment”). RAI 79;
RAII 59. The 2008 Assignment was executed by an Assistant Secretary
of Option One before a notary public and was recorded with the
Registry on May 12, 2008, in Book 17291, Page 84. Id. The 2008
Assignment declared an effective date of April 18, 2007. Id.
In October 2008, Wells Fargo as Trustee brought an action in the
Land Court to quiet title to the Property. U.S. Bank National
Association v. Ibanez, 458 Mass. 637, 638 (2011). The Land Court
entered judgment against Wells Fargo as Trustee on March 26, 2009,
declaring the 2007 Foreclosure invalid because the notice of
foreclosure sale named Wells Fargo as Trustee as the holder of the
Mortgage without first providing proof of a written assignment of the
Mortgage to Wells Fargo as Trustee. Id. at 639. The Land Court found,
based on the evidence before the court at that time, that Wells Fargo as
Trustee had acquired the Mortgage by assignment only after the 2007
Foreclosure and found the foreclosure invalid. Id. The Supreme Judicial
Court affirmed the judgment holding that, based on the evidence in the
8
record, Wells Fargo as Trustee failed to establish it held the Mortgage
at the time of the notice of sale or the 2007 Foreclosure. Id. at 654.
On March 7, 2012, Sand Canyon Corporation f/k/a Option One
Mortgage Corporation executed a Confirmatory Assignment of the
Mortgage to Wells Fargo as Trustee (“Confirmatory Assignment”).
RAII 61. The Confirmatory Assignment expressly states it was
“intended to clarify the assignor in the [2008] Assignment recorded
with said Registry of Deeds in Book 17291, Page 84.” Id. See also RAII
59. The Confirmatory Assignment was executed by a Vice President of
Sand Canyon Corporation f/k/a Option One before a notary public and
was recorded on March 24, 2012, in Book 19162, Page 129. RAII 61.
On June 6, 2012, in response to a new default notice, the LaRaces
filed a try title action in the Land Court pursuant to G.L. c. 240, §§ 1-
6, against Wells Fargo as Trustee, Option One, and the prior servicer of
the Loan, American Home Mortgage Servicing, Inc. RAI 16, ¶ 77; RAI
277. In support of their petition, the LaRaces alleged that Wells Fargo
as Trustee continued to claim legal title to their Property solely upon
the recorded 2008 Assignment, which the Supreme Judicial Court
found “invalid, void and/or legally inoperative” in Ibanez. RAI 278-
279, ¶¶ 14, 15, 17 & 20. The LaRaces denied that title to their Property
9
was ever conveyed to Wells Fargo as Trustee such that the possibility
of an adverse claim to title existed warranting the defendants to timely
bring an action to try title or be forever barred from enforcing any such
title claim. RAI 279-280.
The action was removed to the U.S. District Court for the District
of Massachusetts, which granted the defendants’ Rule 12(b)(6) motion
to dismiss on September 24, 2013. RAI 258. Specifically, the district
court found that the LaRaces’ claim that Ibanez “found all assignments
of the [M]ortgage by Option One to be invalid because of the original
assignment on May 26, 2005 made out to a blank grantee” misconstrued
the Supreme Judicial Court’s holding. RAI 270, 272. “[Wells Fargo as
Trustee], the SJC said, simply could not establish that [it was] the
[holder] of Plaintiffs’ mortgage at the time [it] foreclosed on the
property. [Ibanez] at 655. The SJC did not rule on the question of
whether the assignment after the foreclosure was invalid.” RAI 272
(emphasis in original). The district court found that because the
LaRaces did not hold legal title to the Property and sought only to
challenge Wells Fargo as Trustee’s claim to be the mortgagee in
possession of legal title, they could not allege an adverse claim to
sustain their try title action. RAI 274-275. The LaRaces appealed the
10
judgment, which was affirmed after full briefing on July 21, 2015. RAI
276.
On January 6, 2014, while the appeal on their try title action was
pending, the LaRaces filed an action in the Hampden County Superior
Court (“2014 Action”) against Wells Fargo as Trustee, Defendant-
Appellee, Ocwen Loan Servicing, LLC (“Ocwen”),1 and other entities,
for wrongful foreclosure, violation of Chapter 93A and slander of title
seeking $7,700,000 in damages stemming from the invalid 2007
Foreclosure. RAI 317. On July 12, 2016, the Land Court (Carey, J.)
issued a Memorandum and Decision of Order allowing Wells Fargo as
Trustee’s and Ocwen’s motion to dismiss finding the claims barred by
the applicable statute of limitations. RAI 307-311. The LaRaces
appealed the judgment, which this Court affirmed on February 5, 2018.
See LaRace v. Wells Fargo Bank, N.A., 92 Mass. App. Ct. 1126, 2018
Mass. App. Unpub. LEXIS 115 (February 5, 2018). The LaRaces
petitioned the Supreme Judicial Court for further appellate review,
1
PHH Mortgage Corp. is the successor by merger to Ocwen Loan
Servicing, LLC. For purposes of this appeal, however, the defendant-
appellee will be called “Ocwen.”
11
which was denied on May 4, 2018. LaRace v. Ablitt & Scofield, P.C.,
479 Mass. 1107, 2018 Mass. LEXIS 294 (May 4, 2018).
On February 17, 2017, Ocwen mailed the LaRaces a 90-Day
Right to Cure Your Mortgage Default letter (“Notice of Default”) and
a Right to Request a Modified Mortgage Loan letter. RAII 92, ¶¶ 11,
12; RAII 102 & 115. When the default was not timely cured, Wells
Fargo as Trustee commenced a proceeding under the Servicemembers
Civil Relief Act on August 25, 2017 (“SCRA Proceeding”), where the
Land Court issued an Order of Notice on October 26, 2017, and entered
judgment in Wells Fargo as Trustee’s favor on February 7, 2018. RAII
92, ¶ 14; RAII 64-67.
In furtherance of the foreclosure, on August 23, 2017, an
Affidavit Regarding Compliance with M.G.L. c. 244 sec. 35B, (“35B
Affidavit”) and an Affidavit Regarding Note Secured by Mortgage to
be Foreclosed M.G.L. c. 244 sec. 35C (“35C Affidavit”) were executed
and recorded, certifying that Wells Fargo as Trustee complied with each
statute and was the holder of the Note secured by the Mortgage. RAII
92, ¶ 15; RAII 69-73. Both Affidavits were recorded at the Registry on
September 1, 2017, in Book 21843, Pages 475-478. Id.
12
On June 5, 2018, in accordance with G.L. c. 244, § 14, Wells
Fargo as Trustee through its counsel sent the LaRaces notice of its
intent to foreclose on or after July 3, 2018. RAII 172. Enclosed was a
copy of the foreclosure advertisement, which set forth, among other
things, Wells Fargo as Trustee’s authority to foreclose as mortgagee,
based on the 2008 Assignment and the Confirmatory Assignment
recorded with the Registry (“Notice of Sale”). RAII 173. A copy of the
Note endorsed in blank was also enclosed (RAII 175-179), along with
a Certificate Relative to Foreclosing Party’s Right to Foreclosure
Pursuant to 209 C.M.R. 18.21A(2)(c) dated August 23, 2017
(“Certificate”), signed by Ocwen, as the mortgage loan servicer. RAII
180. The Certificate stated that Wells Fargo as Trustee is the mortgagee
as a result of the 2008 Assignment and the Confirmatory Assignment.
Id. It further certified that Wells Fargo as Trustee is the holder and
owner of the Note secured by the Mortgage. Id. The Notice of Sale was
published in The Springfield Union News-Republican on June 12, 2018,
June 19, 2018, and June 26, 2018. RAII 93, ¶17; RAII 173.
A foreclosure by power of sale and also by entry was conducted
on July 3, 2018 (“2018 Foreclosure”). RAII 93, ¶ 18. The Property was
sold to Wells Fargo as Trustee for $128,000.00 as evidenced by a
13
Foreclosure Deed dated August 28, 2018 (“Foreclosure Deed”),
recorded with the Registry with an Affidavit of Sale (“Affidavit of
Sale”) attesting to Wells Fargo as Trustee’s compliance with all
statutory foreclosure requirements and including a copy of the Notice
of Sale. RAII 93, ¶ 19; RAII 75-80. A Certificate of Entry was also
recorded on August 28, 2018, in Book 22333, Page 258. RAII 82.
After the sale, an Affidavit Regarding Note Secured by Mortgage
Being Foreclosed dated August 14, 2018 (“Post-Foreclosure
Affidavit”), was executed and recorded, again certifying that Wells
Fargo as Trustee was the holder of the Note and Mortgage. RAII 84;
RAII 93, ¶ 20. An Affidavit of Compliance with Mortgage Notice
Provisions and Conditions Precedent to Acceleration and Sale “Pinti
Affidavit” (“Pinti Affidavit”) also dated August 14, 2018, was executed
and recorded, certifying that the contents of the Notice of Default to the
LaRaces was in strict compliance with the notice provisions in the
Mortgage. RAII 87; RAII 93, ¶ 21.
14
On June 29, 2018, the LaRaces filed a verified complaint in the
Land Court against Wells Fargo as Trustee, Ocwen and others,2
consisting of 289 paragraphs 3 and 26 exhibits comprised of 273 pages,
asserting seven causes of action:
• Count I sought a declaratory judgment under G.L. c. 231A
finding Wells Fargo as Trustee has not established it could utilize
the statutory remedy to foreclose in either the 2007 Foreclosure4
or in the 2018 Foreclosure (RAI 23-25);
• Count II sought a declaratory judgment that Wells Fargo as
Trustee and Ocwen violated G.L. c. 244, § 35C by failing to
include in the Certificate sent pursuant to 209 C.M.R.
18.21A(2)(c) the chain of title of the Note from the date the
Mortgage was recorded as purportedly required (RAI 25-27);
2
The LaRaces’ claims against these defendants were dismissed without
prejudice for lack of service. See Addendum to Appellants’ Br. (“Add.
__”) at 22.
3
The “facts” supporting the LaRaces’ claims are set forth in 119
paragraphs, 97 of which were identically alleged in their 2014
complaint against Wells Fargo as Trustee and Ocwen. Compare RAI
11-22, ¶¶ 33-151, with RAI 319-107, ¶¶ 14-107.
4
The LaRaces mistakenly refer to the 2007 Foreclosure as the 2008
Foreclosure. See RAI 24, ¶¶ 165, 169, 171.
15
• Count III sought a declaratory judgment finding the Mortgage
obsolete and discharged under G.L. c. 260, § 33 due to Wells
Fargo as Trustee’s acceleration of the Note in 2007 (RAI 27-29);
• Count IV sought $7,700,000 in damages for violation of G.L. c.
93A based on the 2007 Foreclosure and the 2018 Foreclosure
(RAI 29-33); 5
• Count V sought damages against Wells Fargo as Trustee for
slander of title by, inter alia, causing a false publication by way
of a legally invalid assignment of mortgage, foreclosure deed and
certificate of entry to remain publicly recorded where the
defendants are subject to the law of the case in Ibanez and for
recording two legally inoperative documents upon the title which
wrongly claim legal title (RAI 33-34, ¶ 249);6
5
As the Land Court found, the LaRaces’ 93A claim is nearly verbatim
to the 93A claim alleged and dismissed in the 2014 Action and sought
the same $7,700,000. Add. 12 n. 4; Compare RAI 30-33, ¶¶216-221,
¶¶227-233, ¶¶234-244, with RAI ¶¶329-332, ¶¶111-123, ¶¶125-128,
¶¶133-139; Compare RAI 33, ¶245, with RAI 334.
6
Apart from added language to paragraph 249, the LaRaces’ claim for
slander of title is precisely the same claim alleged in the 2014 Action,
which was also dismissed as time-barred. Add. 12 n.4; Compare RAI
33-34, ¶¶247-254, with RAI 332-333, ¶¶141-151.
16
• Count VI sought a declaratory judgment that Wells Fargo as
Trustee does not legally possess the right to enforce the Note and
therefore, lacks the right to enforce the Mortgage (RAI 36-37,
¶279); and
• Count VII sought to quiet title under G.L. c. 240, §§ 6-10 on the
grounds, inter alia, that the 2008 Assignment is void for
confirming the earlier assignment made “in blank” as decided in
Ibanez.
RAI 37, ¶ 289.
The LaRaces also filed an emergency motion for a temporary
restraining order to enjoin the July 3, 2018 foreclosure sale. RAI 369-
382. No action was taken on the application, however, as service was
not made on Wells Fargo as Trustee. RAI 4. The foreclosure sale went
forward on July 3, 2018. RAII 93, ¶ 18.
At the August 21, 2018 case management conference, the Land
Court declined to take jurisdiction over Counts IV and V for violation
of Chapter 93A and slander of title and dismissed these counts without
prejudice. See Appellants’ Record Appendix Volume V (“RAV __”) at
143:23-144:10.
17
Wells Fargo as Trustee and Ocwen (together “Defendants”)
moved for summary judgment on all remaining counts of the LaRaces’
complaint on January 14, 2019. RAII 3-42. In support, the Defendants
submitted as evidence all of the documents recorded with the Registry
establishing Wells Fargo as Trustee’s right to foreclose and its strict
compliance with the provisions of G.L. c. 183, § 21, the Mortgage, and
G.L. c. 244, § 14, in exercising the power of sale, and their compliance
with G.L. c. 244, § 35B and §35C. RAII 47-88. This included the
Mortgage, the 2008 Assignment, the Confirmatory Assignment, the
35B Affidavit, the 35C Affidavit, the Foreclosure Deed with the
Affidavit of Sale, the Certificate of Entry, the Post-Foreclosure
Affidavit and the Pinti Affidavit. RAII 47-88.
The Defendants also submitted as evidence the affidavit of
Howard R. Handville, a Senior Loan Analyst at Ocwen, who testified
based on his review of Ocwen’s business records for the Loan that at
the time of the 2018 Foreclosure, Wells Fargo as Trustee was the holder
in possession of the original Note endorsed in blank, attaching a true
and accurate copy of the Note with all endorsements. RAII 91, ¶¶ 1-10;
RAII 96 100. Mr. Handville further testified that on February 17, 2017,
a 90-Day Right to Cure default letter (“Notice of Default”) and a Right
18
to Request a Modified Mortgage Loan were mailed to the LaRaces and
attached true and accurate copies of those letters to his affidavit. RAII
92, ¶¶ 11-12; RAII 102-160. Mr. Handville testified that after the
LaRaces failed to cure their default, Wells Fargo as Trustee commenced
a SCRA proceeding on August 17, 2017, in which the Land Court
issued an Order of Notice on October 26,2017, and entered judgment
in Wells Fargo as Trustee’s favor on February 7, 2018. RAII 92, ¶ 14.
The Defendants likewise submitted these documents in support of their
motion. RAII 92, ¶ 14; RAII 64-67.
Mr. Handville testified that in furtherance of the foreclosure,
Ocwen, on Wells Fargo as Trustee’s behalf, executed and recorded the
35B Affidavit and the 35C Affidavit, certifying that Wells Fargo as
Trustee complied with G.L. c. 244, §§ 35B and 35C and was the holder
of the Note secured by the Mortgage. RAII 92, ¶ 15. He also testified
that on June 5, 2018, Wells Fargo as Trustee’s counsel mailed the
LaRaces a notice of the foreclosure sale, which included the Notice of
Sale (RAII 173), a copy of the Note with all endorsements (RAII 175-
179), and the Certificate pursuant to 209 C.M.R. 18.21A(2)(c) (RAII
180), and attached true and accurate copies to his affidavit. RAII 92, ¶
16; RAII 172-181. Mr. Handville attested that notice of the July 3, 2018
19
foreclosure sale was published in The Springfield Union News-
Republican on June 12, 2018, June 19, 2018, and June 26, 2018, that
Wells Fargo as Trustee foreclosed by power of sale and by entry of the
Property on July 3, 2018, and that Wells Fargo as Trustee’s counsel, as
its attorney-in-fact, executed and recorded the Certificate of Entry and
Foreclosure Deed with Affidavit of Sale on August 28, 2018, certifying
Wells Fargo’s compliance with all statutory foreclosure requirements.
RAII 93, ¶¶ 17-19.
Mr. Handville lastly testified that on August 14, 2018, Ocwen
executed and recorded the Post-Foreclosure Affidavit certifying again
that Wells Fargo as Trustee was the holder of the Note and Mortgage,
and executed and recorded the Pinti Affidavit, certifying the Notice of
Default sent to the LaRaces was in strict compliance with the Mortgage.
RAII 93, ¶¶ 20, 21.
The LaRaces opposed the Defendants’ summary judgment
motion on February 15, 2019, continuing to contend, as they did in their
2012 Try Title Action, that Ibanez was not solely about Wells Fargo as
Trustee’s receipt of an assignment of their Mortgage after the 2007
Foreclosure, “but rather the SJC’s examination of the fact that Wells
Fargo as Trustee provided no indicia that the [2008 Assignment] ... was
20
valid.” RAII 272. The LaRaces also argued that summary judgment
should enter in their favor, because, among other things, the Defendants
failed to submit any writing to establish that their Mortgage was
assigned to Wells Fargo as Trustee, since the Defendants purportedly
contended the assignment took place on March 26, 2005, when their
Loan was securitized under the governing Pooling and Servicing
Agreement (“PSA”). RAII 279-282.
On April 14, 2019, the Defendants moved for leave to file a
concise statement of material facts and to supplement the summary
judgment record to include unpublished cases cited in the motion and
the Mortgage Loan Schedule (“MLS”) produced to the LaRaces on
March 14, 2019, to supplement prior discovery responses indicating the
document would be produced once obtained. See Appellants’ Record
Appendix Volume IV (“RAIV __”) at 16-65. The LaRaces opposed and
moved to strike the motion for leave, which the Defendants opposed.
See Appellants’ Record Appendix Volume V (“RAV __”) at 1-6; 7-10.
The Defendants filed a reply memorandum in support of summary
judgment on April 19, 2019, along with a supplemental affidavit
submitting as evidence a complete copy of the PSA and the Defendants’
March 14, 2019, supplemental responses to the LaRaces’ discovery
21
demands reflecting the production of the redacted MLS showing their
Loan was placed into the trust. RAIV 549-561; RAIV 89-515; RAIV
527-548.
The parties appeared for oral argument on April 30, 2019. RAV
153. After some discussion, the judge advised that he was prepared to
allow the MLS into the record, but would also allow the LaRaces
additional time to respond to this inclusion and reschedule the summary
judgment hearing to a later date. RAV 155-161. The LaRaces’ counsel
advised that he needed two weeks to file an additional reply, which the
judge said would be May 7th (RAV 162:6-9).7 The Defendants’ motion
for leave was allowed provided, “Mr. Russell will have until May 7th
to file any additional reply that he needs to file.” RAV 162:14-16. The
summary judgment hearing was continued. RAV 163:13-14. The
LaRaces filed their supplemental memorandum on May 6, 2019. RAV
11-20.
The parties appeared for oral argument on the summary
judgment motion on May 10, 2019. RAV 170. The Defendants made
clear their position that Wells Fargo as Trustee’s right to foreclose on
7
This was only one week, not two, but the LaRaces’ counsel did not
mention that to the judge. See id.
22
July 3, 2018, was proven by the 2008 Assignment and the Confirmatory
Assignment recorded with the Registry, which established an unbroken
chain of assignments from the record holder of the Mortgage, Option
One, to Wells Fargo as Trustee, and its undisputed possession of the
Note endorsed in blank. RAV 176:7-16; RAV 188:2. The Defendants
argued that these documents, along with the 35B and 35C Affidavits
recorded with the Registry before the foreclosure, confirming that
Wells Fargo as Trustee was the record holder of the Mortgage and the
holder of the Note, sufficiently established Wells Fargo as Trustee’s
right to foreclose. RAV 188:16-20. When the LaRaces’ counsel argued
that the Defendants were relying on the 2005 blank assignment, the
judge tried to correct him: “That’s not one of the assignments that
[Defendants are] relying on here today,” but their counsel refused to
accept that fact, repeatedly insisting the Defendants were relying on the
2005 blank assignment that had been deemed invalid in Ibanez. RAV
198:21-199:19; RAV 203:13-205:10; RAV 212:23-213:9. The
Defendants’ counsel later reiterated that was incorrect pointing out that
the Notice of Sale only referenced the 2008 Assignment and the
Confirmatory Assignment to show the transfer of the Mortgage. RAV
218:24-219:23. The judge confirmed:
23
THE COURT: So you don’t – you don’t rely on the 2005

blank assignment.
MS. LAKE: Correct.
RAV 219:25-220:2.
The Land Court (Speicher, J.) issued a Decision on Motion for
Summary Judgment and Order to Show Cause on May 17, 2019,
allowing summary judgment in the Defendants’ favor on Counts I, II,
III, VI and VII finding each claim failed on their merits as a matter of
law. Add. 12-17. The Land Court further found that Count I seeking a
judgment that Wells Fargo as Trustee could not establish it holds legal
title to the Property in order to foreclose in 2007 or 2018, and their
claims for violation of Chapter 93A (Count IV) and slander of title
(Count V) were barred by res judicata. Add. 7-12. The Land Court
dismissed Counts IV and V with prejudice and ordered the LaRaces’
counsel to show cause why he should not be sanctioned under Rule 11
for filing nearly identical claims in this action, which he knew were
already adversely adjudicated against his clients. Add. 17-20. Judgment
entered on May 17, 2019, in the Defendants’ favor (Add. 21-22), which
the LaRaces timely appealed on June 11, 2019. RAV 70.
The LaRaces’ counsel responded to the Order to Show Cause on
June 10, 2019 (RAV 45), and appeared before the Land Court for
24
hearing on June 14, 2019. RAV 232. The Land Court (Speicher, J.)
issued a decision on June 28, 2019, finding the LaRaces’ counsel
violated Rule 11 by attempting in the present action to recover damages
for his clients on the basis of claims he knew were dismissed and
affirmed on appeal and knowingly asserting these identical claims
against the same defendants that had already been fully and finally
adjudicated (“Show Cause Order”). Add. 23-31. The Land Court
ordered counsel to pay the Defendants’ attorneys’ fees for having to
defend Counts IV and V and ordered the Defendants to submit
affidavits and supporting papers to make the fee determination. Add.
31. The LaRaces filed an amended notice of appeal to include the Show
Cause Order on July 25, 2019. RAV 103.
The Defendants filed their papers in response to the Show Cause
Order on July 24, 2019, reflecting attorneys’ fees of $3,768.45. RAV
84-102. The Land Court (Speicher, J.) issued an order on August 5,
2019, directing the LaRaces’ counsel to pay $3,768.45 within 30 days.
RAV 127-130. This appeal followed.
SUMMARY OF ARGUMENT
Judgment correctly entered in the Defendants’ favor on all counts
of the LaRaces’ complaint and should stand. The LaRaces’ request for
25
a declaratory judgment that Wells Fargo as Trustee cannot show it holds
legal title to the Property to foreclose is equitably barred. In their 2012
Try Title Action, the LaRaces claimed, just as they do in Count I, that
Wells Fargo as Trustee holds no interest in their Mortgage because the
2008 Assignment was intended to confirm the 2005 blank assignment,
which was deemed void in Ibanez. The district court rejected this claim
finding Ibanez solely held the 2007 foreclosure invalid, not the 2008
Assignment executed and recorded thereafter. In so doing, the district
court considered the merits of the LaRaces’ claim as a necessary step
in determining the absence of record title, an essential element of their
try title action. As such, the judgment dismissing the try title action for
failure to state a claim was on the merits. As the parties to this action
are the same or in privity with the parties to the 2012 Try Title Action,
the issue is the same and was essential to the judgment, which was on
the merits, Res judicata bars Count I.
Count I is not salvaged by the LaRaces’ new contentions that the
Confirmatory Assignment conveys no legal title to Wells Fargo as
Trustee because this too was intended to confirm the 2005 blank
assignment, or that Option One owned no loans as of March 18, 2009,
as declared by Dale Sugimoto on January 26, 2011. The gravamen of
26
Count I and the 2012 Try Title Action are the same—Wells Fargo as
Trustee’s purported lack of legal title. Both the Confirmatory
Assignment and Sugimoto’s affidavit were matters of public record as
of June 6, 2012, when the LaRaces’ filed the try title action. The
LaRaces could have but failed to bring their present claim that Wells
Fargo as Trustee cannot utilize the statutory scheme to foreclose when
they filed the 2012 Action. Because they did not, the valid, final
judgment entered in 2012 is conclusive and bars Count I. See infra at
32-37.
Even if Count I were not equitably barred, which it is, the claim
fails on its merits. Wells Fargo as Trustee’s claim to legal title is based
on the 2008 Assignment and the Confirmatory Assignment, each of
which is compliant with G.L. c. 183, § 54B and is presumptively valid.
The LaRaces’ belief that the 2008 Assignment and Confirmatory
Assignment were intended to confirm the 2005 blank assignment found
void in Ibanez is not evidence and is belied by the record. As Wells
Fargo as Trustee was the record holder of the Mortgage before the
Notice of Sale and 2018 Foreclosure, Count I fails as a matter of law.
See infra at pp. 37-44.
27
Judgment on Count VI was likewise proper. The LaRaces’
contention that the Land Court wrongly considered the 35C Affidavit
as evidence because this was inadmissible hearsay offered for the truth
of the matter asserted—that Wells Fargo as Trustee is the holder and
owner of the Note, disregards Massachusetts law. Registry copies of
documents affecting interests in land fall are an exception to the hearsay
rule. But moreover, the Defendants submitted a copy of the Note with
all endorsements along with Mr. Handville’s affidavit, who testified
that Wells Fargo as Trustee was the holder and owner of their original
Note endorsed in blank before the 2018 Foreclosure. As the LaRaces
offered no countervailing evidence that some other entity holds their
Note, there was no need to produce the original. See infra at pp. 44-46.
Ocwen’s Certificate pursuant to 209 C.M.R. 18.21A(2)(c)
included in the Notice of Sale fully complied with the G.L. c. 244, §
35C as it identified Wells Fargo as Trustee as the mortgagee as a result
of the 2008 Assignment and the Confirmatory Assignment and certified
that Wells Fargo as Trustee is the holder and owner of the Note secured
by the Mortgage. Massachusetts law allows a note endorsed in blank to
be transferred and enforced by possession alone. Therefore, construing
209 C.M.R. 18.21A(2)(c)’s provision that the certification include “the
28
chain of title and ownership of the note and mortgage” to mean the
certificate include a “chain of title to the Note,” as the LaRaces proffer,
violates the law and leads to an absurd result. The Defendants were
entitled to judgment on Count II. See infra at pp. 46-49.
Summary judgment on Count III was also correct. The exact
claim the LaRaces raise here, that their Mortgage is obsolete and
discharged under G.L. c. 260, § 33 due to Wells Fargo as Trustee’s
acceleration of the Note in 2007, was rejected by this Court in Nims v.
Bank of New York Mellon, 97 Mass. App. Ct. 123 (2020). Nims
disposes of Count III. See infra at pp. 49-50.
The LaRaces’ claim to quiet title in Count VII is derivative of
Count I. As judgment on Count I was proper, judgment correctly
entered on this Count as well. See infra at pp. 51.
The Land Court justly dismissed Counts IV and V with prejudice
as the LaRaces brought these identical claims in the 2014 Action, which
were adjudicated on the merits against them. The LaRaces asked the
Land Court to take jurisdiction over these claims. While it may have
been better for Land Court judge to obtain a G.L. c. 211B, § 9
interdepartmental order before entering judgment on these counts, it is
a waste of judicial resources to do so now and contrary to the “speedy
29
dispatch of judicial business,” contemplated by the statute. Since
neither party objected to the Land Court judge sitting as a Superior
Court judge to decide Counts IV and V, the assignment may be
confirmed nunc pro tunc.
Further, the LaRaces fail to present any developed argument in
their brief as to why the Land Court erred in applying res judicata to
bar these claims. Their bald assertion of error relegated to an argument
in a footnote, need not be considered. Judgment on Counts IV and V
may be affirmed. See infra at pp. 51-53.
ARGUMENT
I. JUDGMENT FOR DEFENDANTS WAS PROPER AND SHOULD STAND
A. Standard of Review.
A grant of summary judgment is reviewed de novo. Federal Natl.
Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012). The court views
the evidence in the light most favorable to the nonmoving party to
determine if “all material facts have been established and the moving
party is entitled to a judgment as a matter of law.” Niles v. Huntington
Controls, Inc., 92 Mass. App. Ct. 15, 19 (2017). Summary judgment is
upheld “when there are no genuine issues of material fact and the
30
nonmoving party has no reasonable expectation of proving an essential
element of its case.” Id.
In deciding a summary judgment motion the court may consider
the pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits. Community Natl. Bank v. Dawes, 369 Mass. 550,
553 (1976). Once the moving party meets their burden, the burden shifts
to the non-movant “to show with admissible evidence the existence of
a dispute as to material facts.” Bardige v. Performance Specialists, Inc.,
74 Mass. App. Ct. 99, 102-103 (2009). The nonmoving party cannot
defeat a properly supported summary judgment motion by merely
asserting that disputed issues of fact exist. Morin v. Autozone
Northeast, Inc., 79 Mass. App. Ct. 39, 41 (2011). He must instead set
forth specific facts supported evidence as provided in Rule 56 showing
that a genuine issue of material fact is disputed that warrants a trial.
Bardige at 103. “Material facts are those that might affect the outcome
of the suit under governing law.” Brown v. Savings Bank Life Ins. Co.
of Massachusetts, 93 Mass. App. Ct. 572, 578 (2018).
The reviewing court “may consider any ground supporting the
judgment.” Colley v. Benson, Young & Downs Ins. Agency, 42 Mass.
App. Ct. 527, 528 (1997).
31
B. Summary Judgment Correctly Entered on Count I.
1. Res judicata precludes this claim.
The LaRaces contend res judicata does not bar Count I because
they never proffered that Ibanez found the 2008 Assignment invalid in
their 2012 Try Title Action, but rather, that Ibanez found the 2005 blank
assignment invalid, and no judgment entered on the merits in any event
since the matter was dismissed for lack of subject matter jurisdiction.
The LaRaces are mistaken.
“Res judicata is the generic term for various doctrines by which
a judgment in one action has a binding effect in another.” Bagley v.
Moxley, 407 Mass. 633, 636 (1990), quoting Heacock v. Heacock, 402
Mass. 21, 23 n.2 (1988). Res judicata is most important to assure “that
judgments are conclusive, thus avoiding relitigation of issues that were
or could have been raised in the original action.” Id., quoting Anderson
v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 449 (1982).
Res judicata encompasses both claim preclusion and issue preclusion.
Id. “[C]laim preclusion makes a valid, final judgment conclusive on the
parties and their privies, and bars further litigation of all matters that
were or should have been adjudicated in the action.” Id. “Issue
preclusion ... prevents relitigation of an issue determined in an earlier
32
action where the same issue arises in a later action, based on a different
claim, between the same parties or their privies.” Id. at 637.
Issue preclusion applies when “(1) there was a final judgment on
the merits in the prior adjudication; (2) the party against whom
preclusion is asserted was a party (or in privity with a party) to the prior
adjudication; (3) the issue in the prior adjudication was identical to the
issue in the current adjudication;” and (4) “the issue decided in the prior
adjudication must have been essential to the earlier judgment.” Kobrin
v. Bd. of Registration in Med., 444 Mass. 837, 843-844 (2005). These
determinations are made by looking to the record “to see what was
actually litigated.” Id. While the LaRaces do not dispute that this action
and the 2012 Try Title Action involved the same parties or their privies,
the record their resolves remaining disputes and reveals that both
doctrines apply.
The LaRaces filed their 2012 Try Title Action on June 6, 2012,
in response to a new default notice. There, they contended that Wells
Fargo as Trustee continued to claim legal title to their Property solely
upon the recorded 2008 Assignment, which Wells Fargo as Trustee
claimed to be confirmatory of the 2005 blank assignment that the
33
Supreme Judicial Court found “invalid, void and/or legally inoperative”
in Ibanez. RAI 270, 278-279.
Here, in Count I, the LaRaces contend that Wells Fargo as
Trustee cannot utilize the statutory remedy to foreclose (either in 2007
or now) because it does not hold legal title to the Property since the
2008 Assignment and Confirmatory Assignment of their Mortgage it
relies on to show legal title, cannot confirm the 2005 blank assignment
declared void in Ibanez. RAI 23-25. Thus, the issue in the 2012 Try
Title Action and Count I is precisely the same—that Wells Fargo as
Trustee does not hold legal title because the 2008 Assignment is invalid
because it purportedly relies on the 2005 blank assignment, which
Ibanez declared void. This issue was considered and rejected by the
district court.
This issue was also essential to the Try Title Action and the final
judgment that entered was on the merits. To bring their Try Title
Action, the LaRaces had to allege and prove that that they held record
title to the Property, that they were in possession, and that a possible
adverse claim clouded their title. See Abate v. Fremont Investment &
Loan, 470 Mass. 821, 827 & 830 (2014). Their standing to bring the
34
action was based on their claim of possession and record title, which
were also essential elements of the claim. Id. at 830.
The Defendants moved to dismiss the Try Title Action
specifically challenging the LaRaces’ claim that they held record title
because the 2008 Assignment was invalid as it confirmed the 2005
blank assignment deemed void in Ibanez (RAI 270), a fact the LaRaces
were then required to prove by a preponderance of the evidence. See id.
The district court considered and rejected this claim finding Ibanez
invalidated the 2007 foreclosure sale only and did not declare the 2008
Assignment executed and recorded after the foreclosure invalid. RAI
272, 275. The district court found that because the LaRaces did not hold
legal title to the Property and instead sought only to challenge Wells
Fargo as Trustee’s claim to be the mortgagee in possession of legal title,
they could not sustain their try title claim. RAI 274-275.
By so doing, the district court properly considered the merits of
the LaRaces’ claim as a necessary step in determining the absence of
record title, an essential element of their try title claim. See Abate at
836. As such, the district court’s finding that the 2008 Assignment was
not invalid was essential to the 2012 Try Title Action and the judgment
35
that entered was an adjudication on the merits. Id. All elements of issue
preclusion are met.
But moreover, claim preclusion applies. This is because the
gravamen of the LaRaces’ complaint in the 2012 Try Title Action and
Count I is the same, that is, Wells Fargo as Trustee’s claim to be the
mortgagee in possession of legal title and the LaRaces’ contention that
it is not. “Claim preclusion applies even though the claimant is prepared
in a second action to present different evidence or legal theories to
support his claim.” Bagley at 637.
Significantly, at the time the LaRaces filed the try title action on
June 6, 2012, both the 2008 Assignment and the Confirmatory
Assignment (recorded March 14, 2012) that the LaRaces contend in
Count I are invalid were on record with the Registry. As well, the March
18, 2009 affidavit of Dale Sugimoto, which the LaRaces rely on in
Count I was available as this was filed in the bankruptcy court on
January 26, 2011. RAI 366. The LaRaces could have asserted their
request for a declaratory judgment that Wells Fargo as Trustee does not
hold legal title as mortgagee to enable it to foreclose when they filed
the 2012 Try Title Action. In fact, because the gravamen of their
complaint in the try title action and Count I is the same, the LaRaces
36
were required to present to the court in 2012, all of the legal theories on
which they base their claim. They could not, as they have done here,
pursue their claim through piecemeal litigation, offering one legal
theory to the court at a time, “while holding others in reserve for future
litigation should the first theory prove unsuccessful.” Bagley at 638.
Because the LaRaces could have but failed to bring their
declaratory judgment claim that Wells Fargo as Trustee cannot utilize
the statutory scheme to foreclose when they filed the 2012 Try Title
Action, the valid, final judgment entered in 2012 is conclusive and bars
Count I. Judgment on this count was proper.
2. Count I also fails on its merits.
Even if res judicata does not apply, which is does, summary
judgment properly entered on Count I on the merits. The LaRaces
contend the Land Court erred in entering judgment because Ibanez
instructed that a confirmatory assignment can only confirm a prior valid
assignment. And here, the Defendants solely rely on the fact that the
Mortgage effectually transferred to Wells Fargo as Trustee on May 26,
2005, under the PSA. According to the LaRaces, the Defendants were
therefore required to prove that their Mortgage was validly assigned to
Wells Fargo as Trustee as of May 26, 2005. Because no such evidence
37
was produced say the LaRaces, the Defendants failed to establish that
Wells Fargo as Trustee was the mortgagee of record at the time of the
2018 Notice of Sale. The LaRaces misconstrue the Defendants’
arguments below and disregard the record.
A party seeking to foreclose by power of sale that is not the
original mortgagee must demonstrate it is the assignee of the mortgage
and the holder of the note or is authorized to act on behalf of the note
holder at the time of the notice of sale and the subsequent foreclosure.
Eaton v. Fannie Mae, 462 Mass. 569, 571 (2012); Ibanez at 650-651.
As for the mortgage, “[a] foreclosing entity may provide a complete
chain of assignments linking it to the record holder of the mortgage, or
a single assignment from the record holder of the mortgage.” Ibanez at
651. Either way, the key is that the foreclosing entity hold mortgage at
the time of the notice of sale so it can accurately identify itself in the
notice as the mortgagee with the authority to foreclose. Id. The record
shows precisely this.
In support of summary judgment, the Defendants submitted Mr.
Handville’s affidavit, a Senior Loan Analyst at Ocwen, who testified
based on his review of Ocwen’s business records for the Loan that on
August 23, 2017, Ocwen, on Wells Fargo as Trustee’s behalf, executed
38
and recorded the 35B Affidavit and the 35C Affidavit, certifying that
Wells Fargo as Trustee complied with G.L. c. 244, §§ 35B and 35C and
was the holder of the Note secured by the Mortgage. RAII 92, ¶ 15. The
35B and 35C Affidavits, which were likewise submitted in support of
the motion, expressly identify Wells Fargo as Trustee as the foreclosing
mortgagee based on the 2008 Assignment and the Confirmatory
Assignment recorded with the Registry. RAII 69 & 72.
Mr. Handville also testified that on June 5, 2018, Wells Fargo as
Trustee’s counsel mailed the LaRaces a notice of the foreclosure sale,
which included the Notice of Sale (RAII 173), a copy of the Note with
all endorsements (RAII 175-179), and the Certificate pursuant to 209
C.M.R. 18.21A(2)(c) (RAII 180), all of which were attached to his
affidavit. RAII 92, ¶ 16; RAII 172-181. The Notice of Sale, like the
35B and 35C Affidavits, expressly states that Wells Fargo as Trustee is
authorized to foreclose as mortgagee, based on the 2008 Assignment
and the Confirmatory Assignment recorded with the Registry. RAII
173. Likewise, the Certificate attests that Wells Fargo as Trustee is the
holder and owner of the Note, and the record holder of the Mortgage
based on the 2008 Assignment and the Confirmatory Assignment. RAII
180. The Notice of Sale was published in The Springfield Union News-
39
Republican on June 12, 2018, June 19, 2018, and June 26, 2018. RAII
93, ¶17; RAII 173. The Defendants also submitted as evidence the 2008
Assignment and the Confirmatory Assignment, the documents they
relied on to show Wells Fargo as Trustee was the assignee of the
Mortgage at the time of the Notice of Sale and 2018 Foreclosure. RAII
59, 61. In addition, they submitted the 35B Affidavit, the 35C Affidavit,
the Post-Foreclosure Affidavit and the Pinti Affidavit, each recorded
with the Registry and each of which identifies Wells Fargo as Trustee
as the mortgagee based on the 2008 Assignment and the Confirmatory
Assignment. RAII 69, 72, 84, 87.
This evidence shows beyond dispute that the record holder of the
Mortgage, Option One, assigned the Mortgage to Wells Fargo as
Trustee on May 7, 2008, which was confirmed by assignment on March
7, 2012, and that this was the basis for Wells Fargo as Trustee’s claim
to be the mortgagee. Thus, at the time of the Notice of Sale, Wells Fargo
as Trustee held the Mortgage and as such, properly identified itself as
the mortgagee with the authority to foreclose on the public record and
to the LaRaces in the Notice of Sale in compliance with Ibanez and the
foreclosure statutes. Nothing more was required.
40
Nothing recorded with the Registry or provided in the Notice of
Sale, or even on this record, indicates that Wells Fargo as Trustee
claimed to be the mortgagee with the authority to foreclose in 2018
based on the 2005 blank assignment, or that the 2008 Assignment or
the Confirmatory Assignment was intended to confirm the 2005 blank
assignment. The LaRaces alleged these facts in their complaint and they
were denied. Compare RAI 18, ¶111, with RAI 392, ¶111 and RAI 23,
¶156, with RAI 394, ¶156. And the documents attached to their
complaint expressly contradicted these allegations. RAI 79; RAI 365.
See Ng. Bros. Constr, Inc. v. Cranney, 436 Mass. 638, 647-48 (2002)
(allegations in a complaint cannot contradict documents they purport to
characterize). The Defendants also denied these contentions in their
responses to the LaRaces’ request for admissions (RAIII 176, No. 3;
RIII 178, No. 8; RAIII 184, No. 22), and by the evidence they submitted
in support of summary judgment, and repeatedly at oral argument:
MS. LAKE: [T]here are two assignments of record, the

2008 assignment and then the later 2012 confirmatory
assignment, both of which establish an unbroken chain of
assignments from the originating lender, Option One, to
Wells Fargo who was the foreclosing entity ....
RAV 176:12-16.
THE COURT: So you don’t – you don’t rely on the 2005

blank assignment.
41
MS. LAKE: Correct.
RAV 219:25-220:2. The LaRaces’ assumptions do not make their
contentions true. Nor does their unsupported belief amount to evidence
to dispute the Defendants’ summary judgment motion. See Flesner v.
Technical Communications Corp., 410 Mass. 805, 818 (1991)
(statement of belief is insufficient to survive summary judgment). The
evidence on this record plainly shows that Wells Fargo as Trustee was
the holder of the Mortgage by virtue of the 2008 Assignment and the
Confirmatory Assignment and these assignments, in and of themselves,
formed the basis for Wells Fargo as Trustee’s ability to foreclose as the
mortgagee in 2018.
The LaRaces’ contention that G.L. c. 183, § 54B has no
application also lacks merit. The 2008 Assignment and Confirmatory
Assignment were each signed by an officer of Option One and Sand
Canyon f/k/a Option One before a notary public, in compliance with
G.L. c. 183, § 54B. RAII 59 & 61. They are, therefore, presumptively
valid and effectively passed legal title to Wells Fargo as Trustee long
before the 2018 Foreclosure. See, e.g., Strawbridge v. Bank of N.Y.
Mellon, 91 Mass. App. Ct. 827, 832 (2017) (assignment that complies
with §54B passes legal title to bank). The LaRaces’ unsupported belief
42
that the 2008 Assignment and Confirmatory Assignments must have
been intended to confirm the 2005 blank assignment, which is entirely
belied by the record, does not render these assignments void. On the
contrary, as each assignment complies with §54B, the LaRaces lack
standing to challenge either. See Bank of N.Y. Mellon Corp. v. Wain,
85 Mass. App. Ct. 498, 502 (2014) (a defaulted mortgagor has no basis
to challenge an otherwise valid assignment).
Nor did the Defendants have to provide a writing reflecting the
effectual transfer of the Mortgage to Wells Fargo as Trustee on May
26, 2005, under the PSA, as the LaRaces erroneously maintain. While
this is one way the Defendants could have shown Wells Fargo as
Trustee’s authority to foreclose, it is not the only way. See Ibanez at
651 (“We do not suggest that an assignment must be in recordable form
at the time of the notice of sale or the subsequent foreclosure sale....”).
The Defendants could have provided a complete chain of assignments
reflecting the transfer of the Mortgage to Wells Fargo as Trustee when
the Loan was securitized and placed in the trust in 2005, or it could
provide a single assignment from the record holder of the Mortgage,
Option One, to Wells Fargo as Trustee. Id. The 2008 Assignment from
43
Option One to Wells Fargo as Trustee established the latter and is
sufficient. Summary judgment justly entered on Count I.
C. Count VI Is Unsustainable.
The LaRaces argue that summary judgment wrongly entered on
Count VI seeking a declaratory judgment that Wells Fargo as Trustee
does not hold their Note or lacks the authority to enforce it because the
35C Affidavit was inadmissible hearsay offered for the truth of the
matter asserted and the Defendants failed to produce the original Note.
Neither argument advances their cause.
The 35C Affidavit is not inadmissible hearsay. “[U]nder our
common law, registry copies of documents affecting interests in land
fall within an exception to the hearsay rule.” Federal Home Loan
Mortgage Corporation v. Bartleman, 94 Mass. App. Ct. 800, 807
(2019). The 35C Affidavit Ocwen executed on August 23, 2017, based
on the affiant’s personal knowledge following review of Ocwen’s
business records pertaining to the Loan, indicated that Wells Fargo as
Trustee is the holder of the Note. RAII 72. The 35C Affidavit was
recorded on September 1, 2017, in Book 21843, Page 475. Id. As the
35C Affidavit pertains to an interest in land, it is an exception to the
hearsay rule. The Land Court properly considered the 35C Affidavit to
44
find Wells Fargo as Trustee held the Note before the Notice of Sale and
2018 Foreclosure.
Moreover, to support their motion, the Defendants submitted Mr.
Handville’s affidavit, who testified that at the time of the 2018
Foreclosure, “Wells Fargo as Trustee was the holder in possession of
the original Note” and attached a copy of the Note endorsed in blank.
RAII 91, ¶10; RAII 96. The LaRaces failed to challenge this evidence
with any counter evidence showing some other entity is actually in
possession of their Note. The Land Court was entitled to rely on Wells
Fargo as Trustee’s undisputed evidence when deciding summary
judgment. See Dawes, 369 Mass. at 553 (court considers affidavits
when deciding summary judgment). The Land Court was not allowed
to assess credibility. Attorney Gen. v. Bailey, 386 Mass. 367, 370
(1982) (court does “not pass upon the credibility of witnesses” when
deciding summary judgment). On this record, with no countervailing
evidence produced by the LaRaces to show some other entity held their
45
Note, the Defendants were not required to produce the original.8
Judgment on Count VI may stand.
D. 209 C.M.R. 18.21A(2)(c) Cannot Be Read to Require A

Chain of Title to the Note.
The LaRaces challenge the entry of summary judgment on Count
II contending Ocwen failed to comply with G.L. c. 244, § 35C because
the Certificate it sent purportedly failed to comply with 209 C.M.R.
18.21A(2)(c). This is so, say the LaRaces, because the regulation
expressly states that the certification include “the chain of title and
ownership of the note and mortgage” and Ocwen’s Certificate failed to
include the chain of title to the Note, thereby precluding the foreclosure.
Massachusetts law defies this interpretation.
A regulation is interpreted “in the same manner as a statute, and
according to traditional rules of construction.” Massachusetts Fine
Wines & Spirits, LLC v. Alcoholic Beverages Control Commission,
482 Mass. 683, 687 (2019). The clear meaning of the plain words in the
regulation will be applied “unless doing so would lead to an absurd
result.” Id.
8
The LaRaces were notified during discovery that the original Note and
allonge could be inspected at the offices of Defendants’ counsel. RAIII
164, No. 4.
46
A mortgage and a note are different instruments and the manner
in which they are transferred so they may be enforced are also different.
A mortgage is in an interest in land. So, to enforce it, the transfer must
be in writing signed by the grantor. See G.L. c. 183, § 3. Otherwise, the
mortgage holder remains the same. See Ibanez at 653 (“In the absence
of a valid written assignment of a mortgage ... the mortgage holder
remains unchanged”). This is why with respect to a mortgage, a
foreclosing entity must show “a complete chain of assignments linking
it to the record holder of the mortgage, or a single assignment from the
record holder of the mortgage.” Id. at 637. Not so with a note.
“A promissory note is a negotiable instrument.” G.L. c. 106, § 3-
104. “A note is payable to “bearer” if it is indorsed in blank.” G.L. c.
106, § 3-109(c). “The [holder] of a note indorsed in blank is presumed
to be the holder in due course.” Parker v. Roberts, 243 Mass. 174, 177
(1922). Because a note indorsed in blank is payable to the holder, it
“may be negotiated by transfer of possession alone until specially
indorsed.” G.L. c. 106, § 3-205(b). So, unlike a mortgage, no writing is
required to transfer or enforce a note, as the holder of the note indorsed
in blank may enforce it. As such, unlike a mortgage, there is and can be
47
no requirement for a foreclosing mortgagee to provide a chain of title
to the note as this violates G.L. c. 106, § 3-205(b).
G.L. c. 244, § 35C(b) obligates a foreclosing mortgagee to refrain
from publishing a notice of sale when it is not the holder of the note and
to certify compliance with the statute in an affidavit based upon a
review of the business records, that the foreclosing entity holds the note.
G.L. c. 244, § 35C(b). While G.L. c. 244, § 35C(g) authorized the
banking division to adopt regulations to enforce the statute, nothing in
the statute requires a foreclosing entity to provide anything more than
to certify that it holds the note. Interpreting 209 C.M.R. 18.21A(2)(c)
to require a loan servicer to provide a complete chain of title to the note
from the date the mortgage is signed is contrary to Massachusetts law
and beyond what G.L. c. 244, § 35C requires. The banking division
could not exceed the authority expressed in the statute when enacting
209 C.M.R. 18.21A(2)(c). Massachusetts Fed. of Teachers, AFT, AFL-
CIO v. Bd. Of Education, 436 Mass. 763, 773 (2002). But moreover,
interpreting the regulation in this way leads to an absurd result. As such,
“the chain of title and ownership of the note and mortgage” as used in
209 C.M.R. 18.21A(2)(c) can only mean that the servicer certify the
“chain of title to the mortgage” and “ownership of the note.”
48
Ocwen’s Certificate attested that Wells Fargo as Trustee is the
mortgagee as a result of the 2008 Assignment and Confirmatory
Assignment, that it is the holder and owner of the Note secured by the
Mortgage, and provided a copy of the Note with all endorsements. RAII
175-180. The Certificate complied with 209 C.M.R. 18.21A(2)(c).
Summary judgment on Count II was proper.
E. The Obsolete Mortgage Statute Is Inapplicable.
The LaRaces maintain that summary judgment was improper on
Count III as G.L. c. 260, § 33 rendered their Mortgage unenforceable
because their Note was accelerated in 2007, and the power of sale was
not exercised until 2018, rather than in five years. Nims v. Bank of New
York Mellon, 97 Mass. App. Ct. 123 (2020), disposes of Count III.
As the LaRaces argue here, the sole issue before this Court in
Nims was whether the acceleration of a note secured by a mortgage
accelerates the maturity date of the mortgage for purposes of the
obsolete mortgage statute. Nims at 124 & 124 n.4. This Court found
that it does not, as neither the language of the statute, nor its purpose
and design supports this contention:
[O]ur reading of the obsolete mortgage statute is

consistent with the long-standing rule that, under
Massachusetts law, a mortgage has separate enforceability
from its underlying note. A mortgage continues to be
49
enforceable in a proceeding in rem against the security,

separate from an action in personam against the debtor on
the note. Thus, foreclosure on the mortgage is an alternate
remedy to collection on the note ... For this reason, for
example, the mortgage remains enforceable in rem even
when personal liability on the note has been discharged
fully in bankruptcy.
Nims at 128-129 (citations omitted).
This Court further dispelled of the LaRaces’ reliance on
Deutsche Bank Nat’l Trust Co. v. Fitchburg Capital, LLC, 471 Mass.
248 (2015), because Fitchburg stated that “a mortgage does not
generally have a binding effect that survives its underlying obligation.”
Id. at 254. Indeed, while Fitchburg stated this is dicta, Fitchburg “did
not involve the acceleration of a note; nor did it involve shortening the
maturity date of the mortgage as the plaintiffs seek here.” Nims at 129.
Rather, Fitchburg relied on those principles to conclude that “where a
mortgage does not state its maturity date, but refers to the terms of the
note it secures, then the maturity date of the note is to be considered the
maturity date of the mortgage.” Id.
Here, as in Nims, the Mortgage referred to the maturity date of
the Note—June 1, 2035. RAII 47. Thus, as in Nims, the Mortgage’s
maturity date is June 1, 2035. The obsolete mortgage statute has no
application.
50
F. Count VII to Quiet Title Is Derivative.
The LaRaces’ claim to quiet title is derivative of Count I, as they
wrongly contend the Defendants failed to provide any evidence that
Wells Fargo has Trustee has any title interest to their Property. The
record plainly shows that Wells Fargo as Trustee was the record holder
of their Mortgage and the holder and owner of their Note endorsed in
blank before the Notice of Sale and the 2018 Foreclosure. Judgment on
Count VII may stand.
G. Counts IV and V Were Justly Dismissed.
The LaRaces summarily contend the Land Court erred in
dismissing their claims for violation of Chapter 93A and slander of title
with prejudice because the judge refused to sit as a superior court judge
but then exceeded his jurisdiction by finding res judicata barred these
claims.
The LaRaces provide no legal authority to support their position
that where, as here, a plaintiff asks the court to take jurisdiction over
certain claims and the court does so without an express assignment from
the chief administrative justice, that the judge lacks the power to decide
those claims. While the better course may have been for the Land Court
judge to obtain the interdepartmental order under G.L. c. 211B, § 9
51
before entering judgment on Counts IV and V, remanding these counts
to obtain that order now, so the Land Court may then consider and
dismiss these claims is a waste of judicial resources. This is contrary to
the “speedy dispatch of judicial business,” contemplated by G.L. c.
211B, § 9, and unnecessary. Rather, as neither party objected to the
Land Court judge sitting as a Superior Court judge to decide Counts IV
and V, the assignment may be confirmed nunc pro tunc. See Patry v.
Liberty Mobilhome Sales, Inc., 15 Mass. App. Ct. 701, 703 (1983)
(Superior Court judge who heard proceedings in Housing Court without
express assignment from chief administrative justice had the power to
act.).
Further, although the LaRaces state that the Land Court
improperly found res judicata barred Counts IV and V based on the
dismissal of their identical claims brought in 2014 on statute of
limitations grounds, they fail to present any developed argument in their
brief as to why this is so. In fact, their entire argument on the merits of
this dismissal is relegated to a footnote. See Appellants’ Br. at 15 n.12
(“The issues presented in 2018 are clearly different in kind, and do not
rely upon the December 23, 2009 Demand Letter at issue under the
2014 complaint.”). This is insufficient to warrant review. See
52
Commonwealth v. McHugh, 41 Mass. App. Ct. 906, (1996) (argument
in footnote is not proper appellate argument). The LaRaces’ ‘bald
assertion of error, lacking legal argument and authority’ does not rise
to the level of appellate argument. Zora v. State Ethics Comm’n, 415
Mass. 640, 642 n.3 (1993). Moreover, the LaRaces may not resurrect
their claim of error in a reply brief. See Boxford v. Massachusetts Hy.
Dept., 458 Mass. 596, 605 n.21 (2010) (arguments raised for the first
time in a reply brief are waived).
As the LaRaces have failed to provide any reasoned argument or
authority as to why Counts IV and V were incorrectly dismissed with
prejudice, the judgment may be affirmed without further discussion.
CONCLUSION
For the foregoing reasons and authorities, the Defendants-
Appellees, Wells Fargo Bank, N.A., as Trustee for ABFC 2005-OPT1
Trust, ABFC Asset-Backed Certificates, Series 2005-OPT1 and PHH
Mortgage Corp., successor by merger to Ocwen Loan Servicing, LLC,
ask this Court to affirm the judgment in their favor.
53
Respectfully submitted,
Attorneys for Defendants-Appellees,

Wells Fargo Bank, N.A., as Trustee
for ABFC 2005-OPT1 Trust, ABFC
Asset-Backed Certificates, Series
2005-OPT1 and PHH Mortgage
Corp., successor by merger to
Ocwen Loan Servicing, LLC
By: Their Attorneys

/S/ Marissa I. Delinks
Marissa I. Delinks,#662934
Maura K. McKelvey, #600760
HINSHAW & CULBERTSON LLP
53 State Street, 27th Floor
Boston, MA 02109
Tel: 617-213-7000
Fax: 617-213-7001
CERTIFICATE OF COMPLIANCE
I, Marissa I. Delinks, pursuant to Mass. R. app. P. 16(k) hereby

certify that the foregoing brief complies with the rules of the court that
pertain to the filing of briefs, including but not limited to, Mass. R. App.
P. 16(a)(6) (pertinent findings or memorandum of decision); Mass. R.
App. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R.
App. P. 16(h) (length of briefs); and Mass. R. App. P. 20 (form of briefs,
appendices, and other papers).
/s/ Marissa I. Delinks

Marissa I. Delinks, #662934
Dated: May 11, 2020
54
CERTIFICATE OF SERVICE
I, Marissa I. Delinks, hereby certify that a true and accurate copy
of the foregoing brief was served upon counsel for the Appellants by
electronic mail on this 11th day of May, 2020, as follows:
Glenn F. Russell, Jr., Esq.

Glenn F. Russell, JR., P.C.
38 Rock Street, Suite 12
Fall River, MA 02720
I further certify that I have this day electronically filed the

foregoing Defendants Appellees’ Brief, with the Office of the Clerk,
Commonwealth of Massachusetts Appeals Court, by using the
appellate CM/ECF system.
/s/ Marissa I. Delinks

Marissa I. Delinks, #662934
55
1021978\305691118.v1
ADDENDUM
1021978\305690689.v1
TABLE OF CONTENTS
G.L. c. 93A, § 9 .............................................................................. 001
G.L. c. 106, § 3-104 ........................................................................ 004

G.L. c. 106, § 3-109 ........................................................................ 006
G.L. c. 106, § 3-205 ........................................................................ 007
G.L. c. 183, § 3 ............................................................................... 008

G.L. c. 183, § 21 ............................................................................. 009
G.L. c. 211B, § 9............................................................................. 010

G.L. c. 260, § 33 ............................................................................ 013
G.L. c. 244, § 14 ............................................................................ 014
G.L. c. 244, § 35B.......................................................................... 017

G.L. c. 244, § 35C.......................................................................... 022
209 C.M.R. 18.21A......................................................................... 024
2
1021978\305690689.v1
ALM GL ch. 93A, § 9

Current through Chapter 153 of the 2019 Legislative Session and Chapters 1-73 of the 2020 Legislative Session of
the 191st General Court.
Annotated Laws of Massachusetts > PART I ADMINISTRATION OF THE GOVERNMENT (Chs. 1 -

182) > TITLE XV REGULATION OF TRADE (Chs. 93 - 110H) > TITLE XV REGULATION OF TRADE
(Chs. 93 — 110H) > Chapter 93A Regulation of Business Practices for Consumers Protection (§§
1 — 11)
§ 9. Civil Remedies of Consumers; Class Actions; Demand for Relief; Award
of Costs and Attorney’s Fees; Suspension of Proceedings Pending
Administrative Action.
(1)Any person, other than a person entitled to bring action under section eleven of this chapter, who has been
injured by another person’s use or employment of any method, act or practice declared to be unlawful by
section two or any rule or regulation issued thereunder or any person whose rights are affected by another
person violating the provisions of clause (9) of section three of chapter one hundred and seventy–six D may
bring an action in the superior court, or in the housing court as provided in section three of chapter one hundred
and eighty–five C whether by way of original complaint, counterclaim, cross–claim or third party action, for
damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.
(2)Any persons entitled to bring such action may, if the use or employment of the unfair or deceptive act or
practice has caused similar injury to numerous other persons similarly situated and if the court finds in a
preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of
himself and such other similarly injured and situated persons; the court shall require that notice of such action
be given to unnamed petitioners in the most effective practicable manner. Such action shall not be dismissed,
settled or compromised without the approval of the court, and notice of any proposed dismissal, settlement or
compromise shall be given to all members of the class of petitioners in such manner as the court directs.
(3)At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant
and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be
mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within
thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is
rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its
rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was
reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the
petitioner, recovery shall be in the amount of actual damages or twenty–five dollars, whichever is greater; or up
to three but not less than two times such amount if the court finds that the use or employment of the act or
practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was
made in bad faith with knowledge or reason to know that the act or practice complained of violated said section
two. For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the
amount of the judgment on all claims arising out of the same and underlying transaction or occurrence,
regardless of the existence or nonexistence of insurance coverage available in payment of the claim. In
addition, the court shall award such other equitable relief, including an injunction, as it deems to be necessary
and proper. The demand requirements of this paragraph shall not apply if the claim is asserted by way of
counterclaim or cross–claim, or if the prospective respondent does not maintain a place of business or does not
keep assets within the commonwealth, but such respondent may otherwise employ the provisions of this
section by making a written offer of relief and paying the rejected tender into court as soon as practicable after
receiving notice of an action commenced under this section. Notwithstanding any other provision to the
Marissa Delinks
001
Page 2 of 3
contrary, if the court finds any method, act or practice unlawful with regard to any security or any contract of
sale of a commodity for future delivery as defined in section two, and if the court finds for the petitioner,
recovery shall be in the amount of actual damages.
(3A)A person may assert a claim under this section in a district court, whether by way of original complaint,
counterclaim, cross–claim or third–party action, for money damages only. Said damages may include double or
treble damages, attorneys’ fees and costs, as herein provided. The demand requirements and provision for
tender of offer of settlement provided in paragraph (3) shall also be applicable under this paragraph, except that
no rights to equitable relief shall be created under this paragraph, nor shall a person asserting a claim
hereunder be able to assert any claim on behalf of other similarly injured and situated persons as provided in
paragraph (2).
(4)If the court finds in any action commenced hereunder that there has been a violation of section two, the
petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in
controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action; provided,
however, the court shall deny recovery of attorney’s fees and costs which are incurred after the rejection of a
reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for
relief required by this section.
(5)[Stricken.]
(6)Any person entitled to bring an action under this section shall not be required to initiate, pursue or exhaust
any remedy established by any regulation, administrative procedure, local, state or federal law or statute or the
common law in order to bring an action under this section or to obtain injunctive relief or recover damages or
attorney’s fees or costs or other relief as provided in this section. Failure to exhaust administrative remedies
shall not be a defense to any proceeding under this section, except as provided in paragraph seven.
(7)The court may upon motion by the respondent before the time for answering and after a hearing suspend
proceedings brought under this section to permit the respondent to initiate action in which the petitioner shall be
named a party before any appropriate regulatory board or officer providing adjudicatory hearings to
complainants if the respondent’s evidence indicates that:
(a)there is a substantial likelihood that final action by the court favorable to the petitioner would require
of the respondent conduct or practices that would disrupt or be inconsistent with a regulatory scheme
that regulates or covers the actions or transactions complained of by the petitioner established and
administered under law by any state or federal regulatory board or officer acting under statutory
authority of the commonwealth or of the United States; or
(b)that said regulatory board or officer has a substantial interest in reviewing said transactions or
actions prior to judicial action under this chapter and that the said regulatory board or officer has the
power to provide substantially the relief sought by the petitioner and the class, if any, which the
petitioner represents, under this section.
Upon suspending proceedings under this section the court may enter any interlocutory or temporary
orders it deems necessary and proper pending final action by the regulatory board or officer and trial, if
any, in the court, including issuance of injunctions, certification of a class, and orders concerning the
presentation of the matter to the regulatory board or officer. The court shall issue appropriate
interlocutory orders, decrees and injunctions to preserve the status quo between the parties pending
final action by the regulatory board or officer and trial and shall stay all proceedings in any court or
before any regulatory board or officer in which petitioner and respondent are necessarily involved. The
court may issue further orders, injunctions or other relief while the matter is before the regulatory board
or officer and shall terminate the suspension and bring the matter forward for trial if it finds (a) that
proceedings before the regulatory board or officer are unreasonably delayed or otherwise unreasonably
prejudicial to the interests of a party before the court, or (b) that the regulatory board or officer has not
taken final action within six months of the beginning of the order suspending proceedings under this
chapter.
Marissa Delinks
002
Page 3 of 3
(8)Except as provided in section ten, recovering or failing to recover an award of damages or other relief in any
administrative or judicial proceeding, except proceedings authorized by this section, by any person entitled to
bring an action under this section, shall not constitute a bar to, or limitation upon relief authorized by this
section.
History
1969, 690; 1970, 736, §§ 1, 2; 1971, 241; 1973, 939; 1978, 478, §§ 45, 46; 1979, 72, § 1; 1979, 406, §§ 1, 2; 1986,
557, § 90; 1987, 664 § 3; 1989, 580, § 1; 2004, 252, § 1.
Annotated Laws of Massachusetts

Copyright © 2020 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group All rights reserved.
End of Document
Marissa Delinks
003
ALM GL ch. 106, § 3-104


(Chs. 93 — 110H) > Chapter 106 Uniform Commercial Code (Arts. 1 — 9) > Article 3 Negotiable
Instruments (Pts. 1 — 8) > Part 1. General Provisions and Definitions (§§ 3-101 — 3-122)
§ 3-104. Negotiable Instrument.
(a)Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or
order to pay a fixed amount of money, with or without interest or other charges described in the promise or
order, if it:
(1)is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2)is payable on demand or at a definite time; and
(3)does not state any other undertaking or instruction by the person promising or ordering payment to
do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking
or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the
holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any
law intended for the advantage or protection of an obligor.
(b)“Instrument” means a negotiable instrument.
(c)An order that meets all of the requirements of subsection (a), except paragraph (1), and otherwise falls within
the definition of “check” in subsection (f) is a negotiable instrument and a check.
(d)A promise or order other than a check is not an instrument if, at the time it is issued or first comes into
possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise
or order is not negotiable or is not an instrument governed by this Article.
(e)An instrument is a “note” if it is a promise and is a “draft” if it is an order. If an instrument falls within the
definition of both “note” and “draft”, a person entitled to enforce the instrument may treat it as either.
(f)“Check” means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank or (ii) a
cashier’s check or teller’s check. An instrument may be a check even though it is described on its face by
another term, such as “money order”.
(g)“Cashier’s check” means a draft with respect to which the drawer and drawee are the same bank or
branches of the same bank.
(h)“Teller’s check” means a draft drawn by a bank (i) on another bank, or (ii) payable at or through a bank.
(i)“Traveler’s check” means an instrument that (i) is payable on demand, (ii) is drawn on or payable at or
through a bank, (iii) is designated by the term “traveler’s check” or by a substantially similar term, and (iv)
requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the
instrument.
(j)“Certificate of deposit” means an instrument containing an acknowledgment by a bank that a sum of money
has been received by the bank and a promise by the bank to repay the sum of money. A certificate of deposit is
a note of the bank.
Marissa Delinks
004
Page 2 of 2
ALM GL ch. 106, § 3-104
History
1998, 24, § 8.

End of Document
Marissa Delinks
005
ALM GL ch. 106, § 3-109


Instruments (Pts. 1 — 8) > Part 1. General Provisions and Definitions (§§ 3-101 — 3-122)
§ 3-109. Payable to Bearer or to Order.
(a)A promise or order is payable to bearer if it:

(1)states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in
possession of the promise or order is entitled to payment;
(2)does not state a payee; or
(3)states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an
identified person.
(b)A promise or order that is not payable to bearer is payable to order if it is payable (i) to the order of an
identified person or (ii) to an identified person or order. A promise or order that is payable to order is payable to
the identified person.
(c)An instrument payable to bearer may become payable to an identified person if it is specially indorsed
pursuant to subsection (a) of section 3-205. An instrument payable to an identified person may become payable
to bearer if it is indorsed in blank pursuant to subsection (b) of section 3-205.
History
1998, 24, § 8.

End of Document
Marissa Delinks
006
ALM GL ch. 106, § 3-205


Instruments (Pts. 1 — 8) > Part 2. Negotiation, Transfer, and Indorsement (§§ 3-201 — 3-208)
§ 3-205. Special Indorsement; Blank Indorsement; Anomalous Indorsement.
(a)If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable
to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a “special
indorsement”. When specially indorsed, an instrument becomes payable to the identified person and may be
negotiated only by the indorsement of that person. The principles stated in section 3-110 apply to special
indorsements.
(b)If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a “blank
indorsement”. When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by
transfer of possession alone until specially indorsed.
(c)The holder may convert a blank indorsement that consists only of a signature into a special indorsement by
writing, above the signature of the indorser, words identifying the person to whom the instrument is made
payable.
(d)“Anomalous indorsement” means an indorsement made by a person who is not the holder of the instrument.
An anomalous indorsement does not affect the manner in which the instrument may be negotiated.
History
1998, 24, § 8.

End of Document
Marissa Delinks
007
ALM GL ch. 183, § 3

Annotated Laws of Massachusetts > PART II REAL AND PERSONAL PROPERTY AND
DOMESTIC RELATIONS (Chs. 183 - 210) > TITLE I TITLE TO REAL PROPERTY (Chs. 183 - 189) >
TITLE I TITLE TO REAL PROPERTY (Chs. 183 — 189) > Chapter 183 Alienation of Land (§§ 1 —
69)
§ 3. Conveyance by Deed — Estate Created Without Writing.
An estate or interest in land created without an instrument in writing signed by the grantor or by his attorney
shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned,
granted or surrendered unless by such writing or by operation of law.
History
CL 32, § 1; 1692-3, 15, § 1; 1783, 37, § 1; RS 1836, 59, § 29; GS 1860, 89, § 2; PS 1882, 120, § 3; RL 1902, 127,
§ 3.

End of Document
Marissa Delinks
008
ALM GL ch. 183, § 21

Annotated Laws of Massachusetts > PART II REAL AND PERSONAL PROPERTY AND
DOMESTIC RELATIONS (Chs. 183 - 210) > TITLE I TITLE TO REAL PROPERTY (Chs. 183 - 189) >
TITLE I TITLE TO REAL PROPERTY (Chs. 183 — 189) > Chapter 183 Alienation of Land (§§ 1 —
69)
§ 21. Statutory Forms — Statutory Power of Sale in Mortgage.
The following “power” shall be known as the “Statutory Power of Sale”, and may be incorporated in any
mortgage by reference:
(POWER.). —
But upon any default in the performance or observance of the foregoing or other condition, the
mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or
such portion thereof as may remain subject to the mortgage in case of any partial release thereof,
either as a whole or in parcels, together with all improvements that may be thereon, by public auction
on or near the premises then subject to the mortgage, or, if more than one parcel is then subject
thereto, on or near one of said parcels, or at such place as may be designated for that purpose in the
mortgage, first complying with the terms of the mortgage and with the statutes relating to the
foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed
or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar
the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises,
whether at law or in equity.
History
1912, 502, § 6; 1913, 369; 1927, 104, § 1.

End of Document
Marissa Delinks
009
ALM GL ch. 211B, § 9

Annotated Laws of Massachusetts > PART III COURTS, JUDICIAL OFFICERS AND
PROCEEDINGS IN CIVIL CASES (Chs. 211 - 262) > TITLE I COURTS AND JUDICIAL OFFICERS
(Chs. 211 - 222) > TITLE I COURTS AND JUDICIAL OFFICERS (Chs. 211 — 222) > Chapter 211B
Trial Court of the Commonwealth (§§ 1 — 22)
§ 9. Chief Justice of the Trial Court — Powers and Duties.
The chief justice of the trial court, in addition to his judicial duties and subject to the superintendence power
of the supreme judicial court as provided in section 3 of chapter 211, shall have general superintendence of
the judicial policy of the trial court, including, without limitation, the improvement of the administration of
such courts and the securing of their proper and efficient administration.
The chief justice shall be the policy and judicial head of the trial court of the commonwealth.
In order to achieve the ends stated in this section, the chief justice of the trial court shall be responsible for
planning, development, promulgation, and evaluation of trial court policies, standards, and practices and
shall have the authority necessary to carry out these responsibilities including, but not limited to, the
following: —
(i)the responsibility to provide planning and policy-making functions, including the implementation of
such planning and policy-making decisions;
(ii)the responsibility to monitor and to assist in the case processing and case flow management
capabilities of the trial court departments;
(iii)the power, upon request by the supreme judicial court, to review the record and make
recommendations in any appeals by justices against whom disciplinary actions have been taken by any
chief justice;
(iv)the responsibility to hear, for final determination, appeals by justices claiming to be aggrieved by an
order of a chief justice assigning or transferring said justice to a particular court other than that to which
he was appointed;
(v)the responsibility to hear, for final determination, appeals by first justices who have been removed by
chief justices;
(vi)the responsibility to establish, manage and implement a mandatory emergency judicial response
system for all judges, except when the chief justice of the trial court determines that the participation by
a particular judge would create a hardship for such judge;
(vii)the responsibility to provide recommendations regarding management of the judicial recall process;
(viii)the responsibility to supervise the implementation of the continuing education programs for judicial
personnel;
(ix)the power to appoint such personnel as the chief justice of the trial court may deem necessary for
the office of the chief justice of the trial court; the power to discipline, supervise and define the duties of
such personnel, and the power to dismiss such personnel;
(x)the power, where in different departments of the trial court there are pending cases involving the
same party or the same issue, and where a request for consolidation is made to the chief administrative
Marissa Delinks
010
Page 2 of 3
justice to consolidate such cases for hearing by 1 justice, and to assign said justice to sit as a justice of
other departments and exercise the powers of justices of other departments, in order to dispose of such
cases with efficient use of judicial resources;
(xi)the power to assign a justice appointed to any department of the trial court to sit in any other
department of the court, for such period or periods of time as he deems will best promote the speedy
dispatch of judicial business; provided, however, that:—
(a)prior to making such assignments, said chief justice of the trial court shall ascertain the
respective preferences of the justices of the trial court as to the department or departments, if any,
including the department to which he is appointed, to which each such justice desires to be
assigned and, in making such assignments to any department of said court shall, to the extent
consistent with the effective administration of justice, including the maintenance of the respective
specialized functions of the land, housing, probate and family, and juvenile court departments, the
administrative responsibilities of any justice, and the speedy dispatch of judicial business in each of
the several departments of the trial court, assign to any department on a basis of first priority
justices who have expressed as aforesaid their preferences for assignment thereto;
(b)a justice, if aggrieved for cause by an order of the chief justice of the trial court assigning him to
sit in a particular location or department of the court other than that to which he was appointed may
appeal the order of said chief justice of the trial court to the supreme judicial court, which shall
forthwith hear and determine the matter;
(c)a chief justice shall notify the chief justice of the trial court of, and may report to the supreme
judicial court, any order made by said chief justice of the trial court pursuant to this paragraph
which, in the opinion of such chief justice, impairs the orderly operation of his department;
(xii)[None.]
(xiii)upon the joint request of the chief justices of 2 or more departments of the trial court, authorize the
transfer of cases from one department to another;
(xiv)establish procedures, subject to the rule-making power of the justices of the supreme judicial court,
for the assignment of matters coming before the trial court which do not warrant the use of a judge to
other appropriate personnel, including clerk-magistrates, mediators, and arbitrators, and authorize such
personnel to review, hear, and dispose of such matters, subject to appropriate judicial review;
(xv)the chief justice of the trial court shall be provided with offices that are proximate to the supreme
judicial court at the expense of the commonwealth but only after said chief justice of the trial court has
not found sufficient office space in any facility owned by the commonwealth and proximate to the
supreme judicial court;
(xvi)the chief justice of the trial court shall be authorized to visit any department or any division or any
place for holding court within such a department the chief justice may from time to time call conferences
of any or all of the chief justices of the departments;
(xvii)notwithstanding the provisions of this section, the chief justice of the trial court, in order to provide
for the speedy administration of justice in the counties of Dukes and Nantucket, shall designate, from
time to time, justices sitting in the division of the district court department for either of said counties as
justices of the superior court department sitting in either of said counties, with power to grant injunctive
relief to the same extent as a justice appointed to the superior court department;
(xviii)the chief justice of the trial court may delegate his responsibilities and powers hereunder and as
otherwise provided by law to a chief justice, justice, regional justice, first justice, presiding justice, court
officer, clerk, or any employee of his department, for such period of time and with such limitations as he
may impose, whenever in his opinion such delegation of authority will expedite the judicial business of
the trial court;
Marissa Delinks
011
Page 3 of 3
(xix)the authority to hear and resolve interdepartmental disputes or disagreements regarding (1)
transferring cases in order to facilitate the efficient administration of justice and (2) making adjustments
in the scheduling and location of court sessions in order to facilitate the efficient administration of
justice;
(xx)the responsibility to review and make recommendations regarding the expeditious clearing of
outstanding warrants throughout the courts of the commonwealth;
(xxi)in consultation with the court administrator, the authority to resolve any dispute arising between a
first justice of a division and a clerk of court concerning the management and administration of the
clerk’s office, the duties, powers and obligations of the clerk’s staff, or the interpretation of the
personnel standards provided for under section 8, provided, however, that any such dispute shall be
submitted to the chief justice of the trial court in writing by the clerk, clerk-magistrate or first justice and
the chief justice shall, within 30 days of receipt of the written notification of such dispute and conduct a
hearing in order to determine the matter. The decision of the chief justice shall be binding on the
parties;
(xxii)notwithstanding any general or special law to the contrary, the authority to suspend any particular
session of the trial court; move sessions so that the availability of court personnel is consistent with the
needs of individual courts; transfer cases and matters from a court to any other court, consolidate
cases, and make such periodic adjustments in the scheduling and locations of court sessions as are
deemed necessary for the proper administration of justice; and
(xxiii)the authority to exercise any inherently judicial power not otherwise specified in this section;
provided, however, that nothing in this section shall authorize the chief justice to exercise any power
reserved to the full court; and
(xxiv)the authority to approve, upon the request of the court administrator, the court administrator’s
application for and acceptance on behalf of the commonwealth of any funds, including grants,
bequests, gifts or contributions, from any person which shall be deposited in a separate account and
may be expended by the court administrator, without further appropriation, in accordance with chapter
29 and any rules or regulations promulgated thereunder.
History
2011, 93, § 52; 2014, 52, § 9.

End of Document
Marissa Delinks
012
ALM GL ch. 260, § 33

PROCEEDINGS IN CIVIL CASES (Chs. 211 - 262) > TITLE V STATUTES OF FRAUDS AND
LIMITATIONS (Chs. 259 - 260) > TITLE V STATUTES OF FRAUDS AND LIMITATIONS (Chs. 259 —
260) > Chapter 260 Limitation of Actions (§§ 1 — 36)
§ 33. Mortgage Foreclosures — Certain Mortgages.
A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor
possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of, in the
case of a mortgage in which no term of the mortgage is stated, 35 years from the recording of the mortgage
or, in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the
expiration of the term or from the maturity date, unless an extension of the mortgage, or an
acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such
period. In case an extension of the mortgage or the acknowledgment or affidavit is so recorded, the period
shall continue until 5 years shall have elapsed during which there is not recorded any further extension of
the mortgage or acknowledgment or affidavit that the mortgage is not satisfied. The period shall not be
extended by reason of non-residence or disability of any person interested in the mortgage or the real
estate, or by any partial payment, agreement, extension, acknowledgment, affidavit or other action not
meeting the requirements of this section and sections 34 and 35. Upon the expiration of the period provided
herein, the mortgage shall be considered discharged for all purposes without the necessity of further action
by the owner of the equity of redemption or any other persons having an interest in the mortgaged property
and, in the case of registered land, upon the payment of the fee for the recording of a discharge, the
mortgage shall be marked as discharged on the relevant memorandum of encumbrances in the same
manner as for any other mortgage duly discharged.
History
1957, 370; 1975, 377, § 159; 2006, 63, § 6.

End of Document
Marissa Delinks
013
ALM GL ch. 244, § 14

PROCEEDINGS IN CIVIL CASES (Chs. 211 - 262) > TITLE III REMEDIES RELATING TO REAL
PROPERTY (Chs. 237 - 245) > TITLE III REMEDIES RELATING TO REAL PROPERTY (Chs. 237 —
245) > Chapter 244 Foreclosure and Redemption of Mortgages (§§ 1 — 41)
§ 14. Procedure in Foreclosure Under Power of Sale; Form and Publication

of Notice.
The mortgagee or person having estate in the land mortgaged, or a person authorized by the power of sale,
or the attorney duly authorized by a writing under seal or the legal guardian or conservator of such
mortgagee or person acting in the name of such mortgagee or person, may, upon breach of condition and
without action, perform all acts authorized or required by the power of sale; provided, however, that no sale
under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice of the
sale has been published once in each of 3 successive weeks, the first publication of which shall be not less
than 21 days before the day of sale, in a newspaper published in the city or town where the land lies or in a
newspaper with general circulation in the city or town where the land lies and notice of the sale has been
sent by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to
the date of sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale to said
owner or owners to the address set forth in section 61 of chapter 185, if the land is then registered or, in the
case of unregistered land, to the last address of the owner or owners of the equity of redemption appearing
on the records of the holder of the mortgage, if any, or if none, to the address of the owner or owners as
given on the deed or on the petition for probate by which the owner or owners acquired title, if any, or if in
either case no owner appears, then mailed by registered mail to the address to which the tax collector last
sent the tax bill for the mortgaged premises to be sold, or if no tax bill has been sent for the last preceding 3
years, then mailed by registered mail to the address of any of the parcels of property in the name of said
owner of record which are to be sold under the power of sale and unless a copy of said notice of sale has
been sent by registered mail to all persons of record as of 30 days prior to the date of sale holding an
interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least 14 days
prior to the date of sale to each such person at the address of such person set forth in any document
evidencing the interest or to the last address of such person known to the mortgagee. Any person of record
as of 30 days prior to the date of sale holding an interest in the property junior to the mortgage being
foreclosed may waive at any time, whether prior or subsequent to the date of sale, the right to receive
notice by mail to such person under this section and such waiver shall constitute compliance with such
notice requirement for all purposes. If no newspaper is published in such city or town, or if there is no
newspaper with general circulation in the city or town where the land lies, notice may be published in a
newspaper published in the county where the land lies, and this provision shall be implied in every power of
sale mortgage in which it is not expressly set forth. A newspaper which by its title page purports to be
printed or published in such city, town or county, and having a circulation in that city, town or county, shall
be sufficient for the purposes of this section.
The following form of foreclosure notice may be used and may be altered as circumstances require; but
nothing in this section shall be construed to prevent the use of other forms.
(Form)
Marissa Delinks
014
Page 2 of 3
ALM GL ch. 244, § 14
MORTGAGEE’S SALE OF REAL ESTATE.

By virtue and in execution of the Power of Sale contained in a certain mortgage given by......................
to...................... dated...................... and recorded with ......................
Deeds, Book......................, page............, of which mortgage the undersigned is the present
holder,......................
(If by assignment, or in any fiduciary capacity, give reference to the assignment or assignments recorded
with ......................Deeds, Book......................, page............, of which mortgage the undersigned is the
present holder,......................)
for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be sold at
Public Auction at............ o’clock,...................... M. on the ............ day of ................ A.D. (insert
year),............ (place)............................................ all and singular the premises described in said mortgage,
(In case of partial releases, state exceptions.)
To wit: “(Description as in the mortgage, including all references to title, restrictions, encumbrances, etc., as
made in the mortgage.)”
Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time and place of
the sale, and the time or times for payment of the balance or the whole as the case may be.)
Other terms to be announced at the sale.
(Signed) ____________________________________________
Present holder of said mortgage. ____________________________________________
A notice of sale in the above form, published in accordance with the power in the mortgage and with this
chapter, together with such other or further notice, if any, as is required by the mortgage, shall be a
sufficient notice of the sale; and the premises shall be deemed to have been sold and the deed thereunder
shall convey the premises, subject to and with the benefit of all restrictions, easements, improvements,
outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens,
and existing encumbrances of record created prior to the mortgage, whether or not reference to such
restrictions, easements, improvements, liens or encumbrances is made in the deed; provided, however,
that no purchaser at the sale shall be bound to complete the purchase if there are encumbrances, other
than those named in the mortgage and included in the notice of sale, which are not stated at the sale and
included in the auctioneer’s contract with the purchaser.
For purposes of this section and section 21 of chapter 183, in the event a mortgagee holds a mortgage
pursuant to an assignment, no notice under this section shall be valid unless (i) at the time such notice is
mailed, an assignment, or a chain of assignments, evidencing the assignment of the mortgage to the
foreclosing mortgagee has been duly recorded in the registry of deeds for the county or district where the
land lies and (ii) the recording information for all recorded assignments is referenced in the notice of sale
required in this section. The notice shall not be defective if any holder within the chain of assignments either
changed its name or merged into another entity during the time it was the mortgage holder; provided, that
recited within the body of the notice is the fact of any merger, consolidation, amendment, conversion or
acquisition of assets causing the change in name or identity, the recital of which shall be conclusive in favor
of any bona fide purchaser, mortgagee, lienholder or encumbrancer of value relying in good faith on such
recital.
History
1857, 229, § 1; GS 1860, 140, § 42; 1877, 215; PS 1882, 181, § 17; 1882, 75; RL 1902, 187, § 14; 1906, 219, § 1;
1912, 360, § 1; 1918, 257, § 439; 1919, 5; 1920, 2; 1975, 342; 1977, 629; 1980, 318, § 2; 1981, 242; 1981, 795, §
11; 1991, 157, §§ 4, 5; 1992, 285; 1992, 287; 1998, 463, § 181; 2012, 194, § 1.
Marissa Delinks
015
Page 3 of 3
ALM GL ch. 244, § 14

End of Document
Marissa Delinks
016
ALM GL ch. 244, § 35B

§ 35B. Creditor to Take Reasonable Steps to Avoid Foreclosure; Notice of

Rights to Modify Mortgage Loan.
(a)As used in this section, the following words shall, unless the context clearly requires otherwise, have the
following meanings:—
“Affordable monthly payment”, monthly payments on a mortgage loan, which, taking into account the
borrower’s current circumstances, including verifiable income, debts, assets and obligations enable a
borrower to make the payments.
“Borrower”, a mortgagor of a mortgage loan.
“Certain mortgage loan”, a loan to a natural person made primarily for personal, family or household
purposes secured wholly or partially by a mortgage on an owner-occupied residential property with 1 or
more of the following loan features: (i) an introductory interest rate granted for a period of 3 years or
less and such introductory rate is at least 2 per cent lower than the fully indexed rate; (ii) interest-only
payments for any period of time, except in the case where the mortgage loan is an open-end home
equity line of credit or is a construction loan; (iii) a payment option feature, where any 1 of the payment
options is less than principal and interest fully amortized over the life of the loan; (iv) the loan did not
require full documentation of income or assets; (v) prepayment penalties that exceed section 56 of
chapter 183 or applicable federal law; (vi) the loan was underwritten with a loan-to-value ratio at or
above 90 per cent and the ratio of the borrower’s debt, including all housing-related and recurring
monthly debt, to the borrower’s income exceeded 38 per cent; or (vii) the loan was underwritten as a
component of a loan transaction, in which the combined loan-to-value ratio exceeded 95 per cent;
provided, however, that a loan shall be a certain mortgage loan if, after the performance of reasonable
due diligence, a creditor is unable to determine whether the loan has 1 or more of the loan features in
clauses (i) to (vii), inclusive; and provided, further, that loans financed by the Massachusetts Housing
Finance Agency, established in chapter 708 of the acts of 1966 and loans originated through programs
administered by the Massachusetts Housing Partnership Fund board established in section 35 of
chapter 405 of the acts of 1985 shall not be certain mortgage loans.
“Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly or in a nominee
capacity, a mortgage loan securing an owner-occupied residential property, including, but not limited to,
an originator, holder, investor, assignee, successor, trust, trustee, nominee holder, Mortgage Electronic
Registration System or mortgage servicer, including the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation; provided, that “creditor” shall also include any servant,
employee or agent of a creditor; and provided, further, that the bodies politic and corporate and public
instrumentalities of the commonwealth established in chapter 708 of the acts of 1966 and in section 35
of chapter 405 of the acts of 1985 shall not be a creditor.
Marissa Delinks
017
Page 2 of 5
ALM GL ch. 244, § 35B
“Creditor’s representative”, a person who has the authority to negotiate and approve the terms of and
modify a mortgage loan, or a person who, under a servicing agreement, has the authority to negotiate
and approve the terms of and modify a mortgage loan.
“Modified mortgage loan”, a mortgage loan modified from its original terms including, but not limited to,
a loan modified under 1 of the following: (i) the Home Affordable Modification Program; (ii) the Federal
Deposit Insurance Corporation’s Loan Modification Program; (iii) any modification program that a lender
uses which is based on accepted principles and the safety and soundness of the institution and
authorized by the National Credit Union Administration, the division of banks or any other
instrumentality of the commonwealth; (iv) the Federal Housing Administration; or (v) a similar federal
loan modification plan.
“Mortgage loan”, a loan to a natural person made primarily for personal, family or household purposes
secured wholly or partially by a mortgage on residential property.
“Net present value”, the present net value of a residential property based on a calculation using 1 of the
following: (i) the federal Home Affordable Modification Program base net present value model; (ii) the
Federal Deposit Insurance Corporation’s Loan Modification Program; (iii) the Massachusetts Housing
Finance Agency’s loan program used solely by the agency to compare the expected economic
outcome of a loan with or without a modified mortgage loan; or (iv) any model approved by the division
of banks to consider the total present value of a series of future cash flows relative to a mortgage loan.
“Residential property”, real property located in the commonwealth, on which there is a dwelling house
with accommodations for 4 or fewer separate households and occupied, or to be occupied, in whole or
in part by the obligor on the mortgage debt; provided, however, that residential property shall be limited
to the principal residence of a person; provided, further, that residential property shall not include an
investment property or residence other than a primary residence; provided, further, that residential
property shall not include residential property taken in whole or in part as collateral for a commercial
loan; and provided, further, that residential property shall not include a property subject to
condemnation or receivership.
(b)A creditor shall not cause publication of notice of a foreclosure sale, as required by section 14, upon certain
mortgage loans unless it has first taken reasonable steps and made a good faith effort to avoid foreclosure. A
creditor shall have taken reasonable steps and made a good faith effort to avoid foreclosure if the creditor has
considered: (i) an assessment of the borrower’s ability to make an affordable monthly payment; (ii) the net
present value of receiving payments under a modified mortgage loan as compared to the anticipated net
recovery following foreclosure; and (iii) the interests of the creditor, including, but not limited to, investors.
(1)Except as otherwise specified in a contract, a servicer of pooled residential mortgages may
determine whether the net present value of the payments on the modified mortgage loan is likely to be
greater than the anticipated net recovery that would result from foreclosure to all investors and holders
of beneficial interests in such investment, but not to any individual or groups of investors or beneficial
interest holders. The servicer shall act in the best interests of all such investors or holders of beneficial
interests if the servicer agrees to or implements a modified mortgage loan or takes reasonable loss
mitigation actions that comply with this section. Any modified mortgage loan offered to the borrower
shall comply with current federal and state law, including, but not limited to, all rules and regulations
pertaining to mortgage loans and the borrower shall be able to reasonably afford to repay the modified
mortgage loan according to its scheduled payments. Notwithstanding section 63A of chapter 183, any
modified mortgage loan may be made without the consent of the holders of junior encumbrances and
without loss of priority for the full amount of the loan thereby modified and shall not be construed so as
to grant to any such holder of a junior encumbrance rights which, except for said revision, the holder
would not otherwise have.
(2)A creditor shall be presumed to have acted in good faith and to have complied with this subsection,
if, prior to causing publication of notice of a foreclosure sale, as required by section 14, the creditor:
(i)determines a borrower’s current ability to make an affordable monthly payment;
Marissa Delinks
018
Page 3 of 5
ALM GL ch. 244, § 35B
(ii)identifies a modified mortgage loan that achieves the borrower’s affordable monthly payment,
which may include 1 or more of the following: reduction in principal, reduction in interest rate or an
increase in amortization period; provided, however, that the amortization period shall not be more
than a 15-year increase; provided, further, that no modified mortgage loan shall have an
amortization period that exceeds 45 years;
(iii)conducts a compliant analysis comparing the net present value of the modified mortgage loan
and the creditor’s anticipated net recovery that would result from foreclosure; provided, that the
analysis shall be compliant if the analysis is in accordance with the formula presented in at least 1
of the following: (A) the Home Affordable Modification Program; (B) the Federal Deposit Insurance
Corporation’s Loan Modification Program; (C) any modification program that a lender uses which is
based on accepted principles and the safety and soundness of the institution and authorized by the
National Credit Union Administration, the division of banks or any other instrumentality of the
commonwealth; (D) the Federal Housing Administration; or (E) a similar federal loan modification
plan; and
(iv)either (A) in all circumstances where the net present value of the modified mortgage loan
exceeds the anticipated net recovery at foreclosure, agrees to modify the loan in a manner that
provides for the affordable monthly payment; or (B) in circumstances where the net present value
of the modified mortgage loan is less than the anticipated net recovery of the foreclosure, or does
not meet the borrower’s affordable monthly payment, notifies the borrower that no modified
mortgage loan will be offered and provides a written summary of the creditor’s net present value
analysis and the borrower’s current ability to make monthly payments, after which the creditor may
proceed with the foreclosure process in conformity with this chapter.
(c)Under this section, for certain mortgage loans, the creditor shall send notice, concurrently with the notice
required by subsection (g) of section 35A, of the borrower’s rights to pursue a modified mortgage loan. Said
notice shall be considered delivered to the borrower when sent by first class mail and certified mail or similar
service by a private carrier to the borrower at the borrower’s address last known to the mortgagee or anyone
holding thereunder. A copy of said notice shall be filed with the attorney general. The process for determining
whether a modified mortgage loan is offered shall take no longer than 150 days. Not more than 30 days
following delivery of the notice as provided for in this subsection, a borrower who holds a certain mortgage loan
shall notify a creditor of: (i) the borrower’s intent to pursue a modified mortgage loan which shall include a
statement of the borrower’s income and a complete list of total debts and obligations, as requested by the
creditor, at the time of receipt of the notice; (ii) the borrower’s intent to pursue an alternative to foreclosure,
including a short sale or deed-in-lieu of foreclosure; (iii) the borrower’s intent not to pursue a modified mortgage
loan and pursue the right to cure period described in section 35A; or (iv) the borrower’s intent to waive the right
to cure period and proceed to foreclosure. A borrower who holds a certain mortgage loan and fails to respond
to the creditor within 30 days of delivery of the notice provided for in this subsection shall be considered to have
forfeited the right to cure period and shall be subject to a right to cure period of 90 days. A borrower shall be
presumed to have notified the creditor if the borrower provides proof of delivery through the United States
Postal Service or similar carrier. Not more than 30 days following receipt of the borrower’s notification that the
borrower intends to pursue a modified mortgage loan, a creditor shall provide the borrower with its assessment,
in writing, under subsection (b). The assessment shall include, but not be limited to: (i) a written statement of
the borrower’s income, debts and obligations as determined by the creditor; (ii) the creditor’s net present value
analysis of the mortgage loan; (iii) the creditor’s anticipated net recovery at foreclosure; (iv) a statement of the
interests of the creditor; and (v) a modified mortgage loan offer under the requirements of this section or notice
that no modified mortgage loan will be offered. If a creditor offers a modified mortgage loan, the offer shall
include the first and last names and contact phone numbers of the creditor’s representative; provided, that the
creditor shall not assign more than 2 creditor’s representatives responsible for negotiating and approving the
terms of and modifying the mortgage loan. The assessment shall be provided by first class and certified mail. A
creditor shall be presumed to have provided the assessment to the borrower if the creditor provides proof of
delivery through the United States Postal Service or similar carrier. A borrower who receives a modified
mortgage loan offer from a creditor shall respond within 30 days of receipt of the assessment and offer of a
Marissa Delinks
019
Page 4 of 5
ALM GL ch. 244, § 35B
modified mortgage loan. The borrower may: (i) accept the offer of a loan modification as provided by the
creditor; (ii) make a reasonable counteroffer; or (iii) state that the borrower wishes to waive the borrower’s rights
as provided by this section and proceed to foreclosure. The borrower’s response shall be in writing and, if a
counteroffer is proposed, shall include substantiating documentation in support of the counteroffer. The
response shall be provided by first class and certified mail. A borrower shall be presumed to have responded if
the borrower provides proof of delivery through the United States Postal Service or similar carrier. A borrower
who fails to respond to the creditor within 30 days of receipt of a modified mortgage loan offer shall be
considered to have forfeited the 150 day right to cure period and shall be subject to a right to cure period of 90
days. Where a counteroffer is proposed, the creditor shall accept, reject or propose a counteroffer to the
borrower within 30 days of receipt. Under this section, additional offers by both parties shall be considered
during the right to cure period; provided, however, that a borrower may at any time state, in writing, that the
borrower wishes to waive the borrower’s rights as provided by this section and proceed to foreclosure. Nothing
in this section shall be construed as preventing a creditor and a borrower from negotiating the terms of a
modified mortgage loan by telephone or in person following the initial offer of a modified mortgage loan by a
creditor; provided, however, that all offers, whether by a creditor or a borrower, shall be in writing and signed by
the offeror. The right to a modified mortgage loan, as described in this section, shall be granted once during any
3-year period, regardless of the mortgage holder.
(d)The notice required in subsection (c) shall, at a minimum, include the appropriate contact information for
modification assistance within the office of the attorney general; provided, that, the notice shall be similar in
substance and form to the notice promulgated by the division of banks under section 35A.
(e)Nothing in this section shall prevent a creditor from offering or accepting an alternative to foreclosure, such
as a short sale or deed-in-lieu of foreclosure, if the borrower requests such alternative, rejects a modified
mortgage loan offer or does not qualify for a modified mortgage loan under this section.
(f)Prior to publishing a notice of a foreclosure sale, as required by section 14, the creditor, or if the creditor is
not a natural person, an officer or duly authorized agent of the creditor, shall certify compliance with this section
in an affidavit based upon a review of the creditor’s business records. The creditor, or an officer or duly
authorized agent of the creditor, shall record this affidavit with the registry of deeds for the county or district
where the land lies.
The affidavit certifying compliance with this section shall be conclusive evidence in favor of an arm’s-length
third party purchaser for value, at or subsequent to the resulting foreclosure sale, that the creditor has fully
complied with this section and the mortgagee is entitled to proceed with foreclosure of the subject mortgage
under the power of sale contained in the mortgage and any 1 or more of the foreclosure procedures
authorized in this chapter; provided, that the arm’s-length third party purchaser for value relying on such
affidavit shall not be liable for any failure of the foreclosing party to comply and title to the real property
thereby acquired shall not be set aside on account of such failure. The filing of such affidavit shall not
relieve the affiant, or other person on whose behalf the affidavit is executed, from liability for failure to
comply with this section, including by reason of any statement in the affidavit. For purposes of this
subsection, the term “arm’s-length, third party purchaser for value” shall include such purchaser’s heirs,
successors and assigns.
(g)On a bi-annual basis, a creditor shall report the final outcome of each loan modification on all mortgage
loans for which the creditor sent to a borrower a notice of the right to pursue a modified mortgage loan to the
division of banks.
(h)The division of banks shall adopt, amend or repeal regulations to aid in the administration and enforcement
of this section, including the minimum requirements which constitute a good faith effort by the borrower to
respond to the notice required under subsection (c); provided, that, such regulations may include requirements
for reasonable steps and good faith efforts of the creditor to avoid foreclosure and safe harbors for compliance
in addition to those under this section. The division of banks shall make any available net present value models
accessible to all creditors.
History
Marissa Delinks
020
Page 5 of 5
ALM GL ch. 244, § 35B
2012, 194, § 2.

End of Document
Marissa Delinks
021
ALM GL ch. 244, § 35C

§ 35C. Notice of Foreclosure Prohibited Where Mortgagee Does Not Hold

Mortgage Note.
(a)As used in this section, the following words shall, unless the context clearly requires otherwise, have the
following meanings:—
“Borrower”, a mortgagor of a mortgage loan.
“Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly or in a nominee
capacity, a mortgage loan securing a residential property, including, but not limited to, an originator,
holder, investor, assignee, successor, trust, trustee, nominee holder, Mortgage Electronic Registration
System or mortgage servicer, including the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation. The term creditor shall also include any servant, employee or agent
of a creditor.
“Mortgage loan”, a loan to a natural person made primarily for personal, family or household purposes
secured wholly or partially by a mortgage on residential property.
“Residential property”, real property located in the commonwealth on which there is a dwelling house
with accommodations for 4 or fewer separate households and occupied, or to be occupied, in whole or
in part, by the obligor on the mortgage debt; provided, however, that residential property shall be limited
to the principal residence of a person; provided, further, that residential property shall not include an
investment property or residence other than a primary residence; and provided, further, that residential
property shall not include residential property taken in whole or in part as collateral for a commercial
loan.
(b)A creditor shall not cause publication of notice of foreclosure, as required under section 14, when the
creditor knows or should know that the mortgagee is neither the holder of the mortgage note nor the authorized
agent of the note holder.
Prior to publishing a notice of a foreclosure sale, as required by section 14, the creditor, or if the creditor is
not a natural person, an officer or duly authorized agent of the creditor, shall certify compliance with this
subsection in an affidavit based upon a review of the creditor’s business records. The creditor, or an officer
or duly authorized agent of the creditor, shall record this affidavit with the registry of deeds for the county or
district where the land lies. The affidavit certifying compliance with this subsection shall be conclusive
evidence in favor of an arm’s-length third party purchaser for value, at or subsequent to the resulting
foreclosure sale, that the creditor has fully complied with this section and the mortgagee is entitled to
proceed with foreclosure of the subject mortgage under the power of sale contained in the mortgage and
any 1 or more of the foreclosure procedures authorized in this chapter; provided that, the arm’s-length third
party purchaser for value relying on such affidavit shall not be liable for any failure of the foreclosing party
to comply and title to the real property thereby acquired shall not be set aside on account of such failure.
The filing of such affidavit shall not relieve the affiant, or other person on whose behalf the affidavit is
Marissa Delinks
022
Page 2 of 2
ALM GL ch. 244, § 35C
executed, from liability for failure to comply with this section, including by reason of any statement in the
affidavit. For purposes of this subsection, the term “arm’s-length, third party purchaser for value” shall
include such purchaser’s heirs, successors and assigns.
(c)A creditor violates this chapter if the creditor imposes upon a third party the cost of correcting, curing or
confirming documentation relating to the sale, transfer or assignment of a mortgage loan, including, but not
limited to, costs related to curative actions taken because a foreclosure was commenced without the creditor’s
possession of a valid, written, signed and dated assignment evidencing the assignment of the mortgage, in
violation of section 14. A third party may recover all of the third party’s costs including reasonable attorneys’
fees for having to correct, cure or confirm documentation.
(d)A creditor violates this chapter if the creditor makes statements to a state or federal court related to
foreclosure or compliance with this chapter, orally or in writing, that it knows or should know are false, including,
but not limited to, statements about the offering of a loan modification, the borrower’s history of payments, the
validity of the assignment of the mortgage loan, that the creditor is the record holder of the mortgage loan or the
creditor’s compliance with any other requirements of this chapter.
(e)A creditor violates this chapter if the creditor imposes a fee upon a borrower for goods not rendered or
services not performed in connection with a foreclosure.
(f)No person shall give and no person shall accept any portion, split or percentage of any charge made or
received for the rendering of a service in connection with a transaction involving a foreclosure upon a mortgage
loan other than for services actually performed.
(g)The division of banks may adopt, amend or repeal rules and regulations for the administration and
enforcement of this section.
(h)In all circumstances in which an offer to purchase either a mortgage loan or residential property is made by
an entity with a tax-exempt filing status under section 501(c)(3) of the Internal Revenue Code, or an entity
controlled by an entity with such tax exempt filing status, no creditor shall require as a condition of sale or
transfer to any such entity any affidavit, statement, agreement or addendum limiting ownership or occupancy of
the residential property by the borrower and, if obtained, such affidavit, statement, agreement or addendum
shall not provide a basis to avoid a sale or transfer nor shall it be enforceable against such acquiring entity or
any real estate broker, borrower or settlement agent named in such affidavit, statement or addendum.
History
2012, 194, § 2.

End of Document
Marissa Delinks
023
209 CMR 18.21A

This document reflects all regulations in effect as of 4/17/2020
MA - Code of Massachusetts Regulations > TITLE 209: DIVISION OF BANKS AND LOAN
AGENCIES > CHAPTER 18.00: CONDUCT OF THE BUSINESS OF DEBT COLLECTORS AND
LOAN SERVICERS
18.21A: 18.21A: Mortgage Loan Servicing Practices
(1)A third party loan servicer may not use unfair or unconscionable means in servicing any mortgage loan.
Without limiting the general application of the foregoing, the following conduct is a violation of 209 CMR 18.21A:
(a)Failing to comply with the provisions of M.G.L. c. 183, § 54D regarding providing loan payoff
information to a consumer.
(b)Collecting private mortgage insurance beyond the date for which private mortgage insurance is no
longer required.
(c)Failing to comply with the provisions of M.G.L. c. 244, §§ 35A, 35B or 35C regarding the right to cure
a mortgage loan default and other requirements.
(d)Knowingly or recklessly facilitating the illegal foreclosure of real property collateral.
(e)Failing to comply with the provisions of 12 CFR 1024.38(b)(2) or other applicable provision of 12
CFR part 1024, regarding the evaluation of borrowers for loss mitigation options.
(f)Failing to comply with the provisions of 12 CFR 1024.41(b)(2) or other applicable provision of 12 CFR
part 1024, regarding providing borrowers with written acknowledgment of receipt of loan modification
and required follow up.
(g)Failing to comply with the provisions of 12 CFR 1024.41(g) or other applicable provision of 12 CFR
part 1024, regarding the process of concluding the modification process prior to initiating a foreclosure.
18.21A:continued
(h)Failing to comply with the provisions of 12 CFR 1024.40 or other applicable provision of 12 CFR part
1024, regarding providing borrowers with contact information for a designated individual.
(i)Nothing in 209 CMR 18.21A shall be construed to prevent a third party loan servicer from offering or
accepting alternative loss mitigation options, including other modification programs offered by the third
party loan servicer, a short sale, a deed-in-lieu of foreclosure or forbearance, if the borrower requests
such an alternative, is not eligible for or does not qualify for a loan modification under a government
sponsored mortgage loan modification program or proprietary modification program, or rejects the third
party loan servicer's loss mitigation proposal.
(j)209 CMR 18.21A(2) contains requirements that are in addition to those contained in M.G.L. c. 244, §
35B and 209 CMR 56.00: Foreclosure Prevention Options regarding "Certain Mortgage Loans" as that
term is defined in 209 CMR 56.02: Definitions.
(2)Information and documentation provided by third party loan servicers in the context of foreclosure
proceedings. To the extent a servicer is authorized to act on behalf of a mortgagee,
(a)A third party loan servicer shall ensure that all foreclosure affidavits or sworn statements are based
on personal knowledge.
Marissa Delinks 024

Page 2 of 2
209 CMR 18.21A
(b)A third party loan servicer shall ensure that foreclosure affidavits or sworn statements shall set forth
a detailed description of the basis of affiant's claimed personal knowledge of information contained in
the affidavit or sworn statement, including sources of all information recited and a statement as to why
the sources are accurate and reliable.
(c)A third party loan servicer shall certify in writing the basis for asserting that the foreclosing party has
the right to foreclose, including but not limited to, certification of the chain of title and ownership of the
note and mortgage from the date of the recording of the mortgage being foreclosed upon. The third
party loan servicer shall provide such certification to the borrower with the notice of foreclosure,
provided pursuant to M.G.L. c. 244, § 14 and shall also include a copy of the note with all required
endorsements.
(d)A third party loan servicer shall comply with all applicable state and federal laws governing the rights
of tenants living in foreclosed residential properties.
Statutory Authority
REGULATORY AUTHORITY
209 CMR 18.00: M.G.L. c. 93, § 24A.
CODE OF MASSACHUSETTS REGULATIONS
End of Document
Marissa Delinks 025

Wells Fargo Appellee Brief 05-11-2020

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Wells Fargo Appellee Brief 05-11-2020

Uploaded by

Copyright:

Available Formats

Massachusetts Appeals Court Case: 2019-P-1507 Filed: 5/11/2020 4:06 PM

TAMMY L. LARACE & another,

Marissa I. Delinks, BBO #662934

Attorneys for Defendants-Appellees,

Dated: May 11, 2020

TABLE OF AUTHORITIES .............................................................. 3

STATEMENT OF THE CASE AND FACTS ................................... 7

SUMMARY OF ARGUMENT ........................................................ 26

I. JUDGMENT FOR DEFENDANTS WAS PROPER

A. Standard of Review ...................................................... 30

B. Summary Judgment Correctly Entered

1. Res judicata precludes this

2. Count I also fails on its merits ............................ 37

C. Count VI Is Unsustainable ........................................... 44

D. 209 C.M.R. 18.21A(2)(c) Cannot Be Read

E. The Obsolete Mortgage Statute Is

F. Count VII to Quiet Title Is Derivative ............................. 51

G. Counts IV and V Were Just Dismissed ........................... 51

Abate v. Fremont Investment & Loan,

Anderson v. Phoenix Inv. Counsel of Boston, Inc.,

Bank of N.Y. Mellon Corp. v. Wain,

Bardige v. Performance Specialists, Inc.,

Community Natl. Bank v. Dawes,

Deutsche Bank Nat’l Trust Co. v. Fitchburg Capital,

Eaton v. Fannie Mae,

Federal Natl. Mort. Assn. v. Hendricks,

Flesner v. Technical Communications Corp.,

Kobrin v. Bd. of Registration in Med.,

LaRace v. Ablitt & Scofield, P.C.,

LaRace v. Wells Fargo Bank, N.A.,

Morin v. Autozone Northeast, Inc.,

Ng. Bros. Constr, Inc. v. Cranney,

Nims v. Bank of New York Mellon,

Patry v. Liberty Mobilhome Sales, Inc.,

Strawbridge v. Bank of N.Y. Mellon,

U.S. Bank National Association v. Ibanez,

Zora v. State Ethics Comm’n,

M.G.L. c. 93A .............................................................................. passim

M.G.L. c. 183, § 3............................................................................... 47

M.G.L. c. 183, § 54B .................................................................... 27, 43

M.G.L. c. 231A ................................................................................... 15

M.G.L. c. 240, §§ 6-10 ....................................................................... 17

M.G.L. c. 244, § 35C(b) ..................................................................... 48

M.G.L. c. 244, § 35C(g) ..................................................................... 48

209 C.M.R. 18.21A(2)(c) ............................................................ passim

Mass. R. Civ. P. 11 ....................................................................... 24, 25

STATEMENT OF THE CASE AND FACTS

Plaintiff-Appellant, Mark A. LaRace acquired 6 Brookburn

Street, Springfield, Massachusetts (“the Property”) pursuant to a

Registry of Deeds (“Registry”) on May 19, 2005, in Book 15029, Page

504. See Appellants’ Record Appendix Volume II (“RAII __”) at 168.

To purchase the Property, Mr. LaRace borrowed $103,200.00 from

Option One Mortgage Corporation (“Option One”) as evidenced by an

Appellant, Tammy L. LaRace (together the “LaRaces”) executed a

mortgage on May 19, 2005, to Option One encumbering the Property

The LaRaces defaulted on their Loan obligations and the

Defendant-Appellee, Wells Fargo Bank, N.A., as Trustee for ABFC

2005-OPT1 Trust, ABFC Asset-Backed Certificates, Series 2005-

OPT1 (“Wells Fargo as Trustee”) attempted a nonjudicial foreclosure

sale of the Property on July 5, 2007 (“2007 Foreclosure”). See

Appellants’ Record Appendix Volume I (“RAI __”) at 75. Wells Fargo

as Trustee executed a foreclosure deed and affidavit of sale on May 7,

2008. Id. Also on May 7, 2008, Option One executed an assignment of

the Mortgage to Wells Fargo as Trustee (“2008 Assignment”). RAI 79;