Plaintiff, the Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders CWABS, Inc., Asset-Backed Certificates, Series 2005-14 ("Plaintiff") seeks entry of default judgment as to Defendants Gary J. Gurinian a/k/a Gary Gurinian and Maureen Mero ("Defendants"), on its Complaint seeking a declaration that an affidavit recorded by Defendants on March 9, 2018, at the Worcester County South Registry of Deeds ("Registry"), is null and void. [Note 1] In that affidavit, among other things, Defendants state that their first mortgage was discharged by operation of law pursuant to the obsolete mortgage statute, M. G. L. c. 260, §33, and that they hold title to the Property without encumbrance.
Defendants were defaulted on August 23, 2019, pursuant to Mass. R. Civ. P. 55(a). They seek to vacate that default and have also filed a motion to dismiss the Plaintiff's Complaint for lack of jurisdiction. On January 31, 2020, the court held a hearing on the parties' pending motions. After hearing and for the reasons discussed below, I deny Defendants' Motion to Vacate Default and their Motion to Dismiss and allow Plaintiff's Motion for Default Judgment.
I. PROCEDURAL BACKGROUND
Plaintiff filed its Complaint on March 7, 2019. A return of service was filed on March 28, 2019, indicating that the Defendants were served on March 19, 2019. On April 9, 2019, Defendants, proceeding pro se, filed a request for an additional 45 days to engage counsel and to respond to the Complaint by letter to the court. An initial case management conference was convened on June 7, 2019. At that conference, Defendants appeared pro se, but did not file an answer. The court advised Defendants about their rights as pro se parties and provided information about the court's limited assistance representation program. The court set a discovery deadline of December 6, 2019, with a status conference to be held on December 12, 2019. The court allowed Defendants' April 9, 2019 request for an additional 45 days to engage counsel and to respond to the Complaint and set July 12, 2019 as the new deadline for filing an answer. July 12th came and went without an answer or other communication from Defendants. On August 23, 2019, Plaintiff filed its Request for Default pursuant to Mass. R. Civ. P. 55 (a), which the court allowed, issuing a default on that same date.
On December 2, 2019, with no answer having been filed and without any other communication to the court by Defendants, Plaintiff filed its Motion for Entry of Default Judgment as to both Defendants, along with a Memorandum of Law in Support of Plaintiff's Motion for Entry of Default Judgment (Mass. R. Civ. P. 55 (b)(2)) and two supporting affidavits, the Affidavit of John S. McNicholas, in Support of Plaintiff's Motion for Default Judgment ("McNicholas Aff.") and the Affidavit of Elizabeth A. Ostermann in Support of Plaintiff's Motion for Default Judgment ("Ostermann Aff."). A hearing on Plaintiff's Motion for Default Judgment was added to the docket for the upcoming and long-scheduled Status Conference on December 12, 2019. Plaintiff served notice of the default judgment hearing on Defendants.
On December 12, 2019, Defendants appeared pro se and asked to be heard, even though they had yet to file an answer. Instead, Defendants presented in hand a so-called Verified Motion for Late Answer and Opposition to Default. In light of their appearance, the court did not proceed with the hearing on Plaintiff's Motion for Entry of Default Judgment and allowed the Defendants until January 13, 2020, an opportunity to file a motion to remove the default which had issued on August 23, 2019, and to file a late answer. The court set January 31, 2020, as the date for a hearing on all pending motions.
Defendants failed to file a motion to vacate the default or an answer, as required, by January 13, 2020. Instead, on January 14, 2020, on a pro se basis, they filed Defendants' Motion to Late File Two Motions By Less Than One Day, which the court allowed that same date. Also on January 14, 2020, Defendants (pro se) filed a Motion to Remove 55(a) Default and a Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (MRCP Rule 12). On January 22, 2020, Plaintiff filed its Opposition to Defendants' Motion to Vacate Default, Opposition to Motion to Defendants' Motion to Dismiss and Memorandum in Support of its Opposition to Defendants' Motion to Vacate Default and Motion to Dismiss. A hearing on all pending motions was held on January 31, 2020, where Defendants appeared, this time with counsel, who that day filed in court an appearance on their behalf and argued the pending motions.
II. FACTUAL BACKGROUND
The following facts are taken from Plaintiff's Motion for Default Judgment, Plaintiff's Memorandum of Law In Support of Plaintiff's Motion for Entry of Default Judgment (Mass. R. Civ. P. 55 (b)), the McNicholas Affidavit and the Ostermann Affidavit. Plaintiff has provided attested and uncontroverted support for the following factual allegations:
1. Defendants acquired title to real property located at 7 Windle Avenue, North Grafton, Massachusetts (the "Property"), by deed from William E. Palmer, Jr., Walter A. Palmer, Dana A. Palmer and Lance L. Palmer, recorded with the Worcester County Registry of Deeds (the "Registry") on September 23, 2005 in Book 37387, Page 158. Ostermann Aff; ¶ 6, Complaint, Ex. A.
2. On September 23, 2005, Defendant Gary J. Gurinian a/k/a Gary Gurinian ("Gurinian") obtained a loan and executed an Adjustable Rate Note to America's Wholesale Lender ("AWL") in the original principal amount of $240,000.00, dated September 23, 2005 (the "Note"). Ostermann Aff., ¶¶ 7, Ex. 1. The maturity date of the Note was set at October 1, 2035, for full repayment of the loan and that date was defined as the "Maturity Date." Complaint, Ex. B. The Note provides: "In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the "Security Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note." Id.
3. The Note bears a single endorsement in blank, signed by "Countrywide Home Loans, Inc., a New York Corporation Doing Business as America's Wholesale Lender." Ostermann Aff, Ex. 1.
4. Also on September 23, 2005, in connection with the loan and to secure his obligations under the Note, Gurinian executed a mortgage encumbering the property in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for AWL, in the original principal amount of $240,000.00, which was recorded with the Registry on that same date in Book 37387, Page 163 (the "First Mortgage"). The First Mortgage identifies AWL as the "Lender," the First Mortgage is identified as the "Security Instrument" and "Loan" is defined as the debt evidenced by the Note, plus interest and late charges. Ostermann Aff., ¶ 8, Ex. 2.
5. The face page of the First Mortgage states: "Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than October 01, 2035." Id.
6. On September 23, 2005, Gurinian executed a junior mortgage encumbering the Property in favor of AWL in the original principal amount of $60,000.00, recorded with the Registry in Book 37387, Page 178 (the "Second Mortgage"). Osterman Aff., ¶ 13, Ex. 5.
7. On October 12, 2010, the Land Court (Piper, J.) entered a Judgment in favor of AWL reforming the First Mortgage to include Maureen Mero ("Mero") as a mortgagor, nunc pro tunc to the date and time of the recording of First Mortgage (the "Land Court Judgment"). [Note 2] The Land Court Judgment was recorded at the Registry on October 19, 2010 in Book 46499, Page 97. Ostermann Aff., ¶ 11, Ex. 3. The Land Court Judgment also reformed the Second Mortgage to include Mero as a mortgagor, nunc pro tunc to the date and time of the recording of the Second Mortgage. Ostermann Aff., Ex. 3.
8. Plaintiff acquired the First Mortgage from MERS, as nominee for AWL, by Assignment of Mortgage dated April 13, 2011, recorded with the Registry in Book 47377, Page 157. Ostermann Aff., ¶ 12, Ex. 4.
9. On December 14, 2016, Plaintiff, through its servicing agent Ditech Financial LLC, sent each of Defendants a notice entitled "90-Day Right to Cure Your Mortgage Default" and a notice entitled "Right to Request a Modified Mortgage Loan" via U.S. Postal Service. Ostermann Aff., ¶ 16, Ex. 7.
10. On June 7, 2017, Plaintiff filed a Complaint To Determine Military Status against Defendants in the Land Court to determine if either defendant was entitled to the protections of the Servicemembers Civil Relief Act ("SCRA"). That Complaint was docketed as Servicemembers Civil Relief Act No. 17 SM 005153 (JCC). On January 22, 2018, the Land Court entered Judgment in the SCRA action. Ostermann Aff., ¶ 17, Ex. 8.
11. On March 9, 2018, Defendants recorded, or caused to be recorded, a document entitled "Affidavit of Clarification of Title, and Discharge by Operation of Law Under Chap. 183 Sect 5B" (the "5B Affidavit"), with that same date. The 5B Affidavit was recorded at the Registry in Book 58523, Page 320. Ostermann Aff.,
¶ 18, Ex. 9.
12. Appended to the 5B Affidavit as Exhibit A is a Notice of Intention to Foreclose, dated February 8, 2011, which the 5B Affidavit describes as the "Default letter" (the "Default Letter"). Ostermann Aff., Ex. 9.
13. Defendants are delinquent on the loan, as evidenced by the Note and secured by Mortgage, by more than thirteen years. Ostermann Aff., ¶ 19, Ex. 10.
III. MOTION TO VACATE DEFAULT
I treat Defendant's [sic] Verified Motion for Late Answer and Opposition to Default as a motion to vacate the default that issued on August 23, 2019. A defendant may obtain relief from default upon a showing of "good cause." Mass. R. Civ. P. 55(c); Institution for Sav. in Newburyport and Its Vicinity v. Langis, 92 Mass. App. Ct. 815 , 822 (2017); Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469 , 470, (1992). "Good cause requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses." Institute for Sav., 92 Mass. App. Ct. at 822, citing Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705 , 708 (2012); New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135 , 140 (1989). Other factors for consideration are whether the default was willful, whether setting it aside would prejudice the adversary, and the defaulted party's promptness in seeking relief. Id.
A. Defendants' Motion
As reason for their failure to timely respond to Plaintiff's Complaint (or to meet any of the court's extended deadlines), Defendants referred to four communications with an attorney about potential representation (on July 9, July 11, August 27 and November 14, 2019). Defendants explained that they declined representation with that counsel because they could not afford the proposed fee (whom they say proposed an hourly rate of $750/hour). I conclude that speaking with a single attorney on an intermittent basis is not sufficient diligence to constitute good cause for Defendants' own failure to timely file an answer or other responsive pleading. I further conclude that Defendants' conduct was willful, reflecting a pattern indicative of intentional delay. This pattern included their several requests for an extension of the time to file an answer, followed in each instance by their failure to do so and without providing a good reason for failing to do so, as well as their next to last minute appearance in court in person on December 12, 2019, for the default judgment hearing. This pattern of delay, coupled with Defendants' eventual engagement of counsel at the last possible moment, belies any claim of good faith. See Kelley v. Scretchen, 8 LCR 389 , 389 (2000) (Misc. Case No. 264810) (Green, J.) (court declining to vacate default and allowing plaintiff's motion for default judgment where defendants explained their delay in answering the complaint solely by stating that they did not retain counsel until faced with plaintiff's motion for entry of final judgment and where their counsel failed to articulate the elements of a defense which, if proved, would defeat plaintiff's complaint on the merits.).
Nor does the Defendants' status as pro se litigants provide good cause for their failure to timely respond to the Complaint. "While courts, including this one, often give pro se litigants leeway in how they choose to prosecute or defend a case, it is also well established that 'the right of self-representation is not "a license not to comply with relevant rules of procedural and substantive law."'" City of Boston v. Johnson, 12 LCR 251 , 254-55 (2004) (Tax Lien Case No. 95306) (Piper, J.), quoting Faretta v. California, 422 U.S. 806, 834-835 n.46 (1975). "A pro se litigant is bound by the same rules of procedure as litigants with counsel." Mains v. Commonwealth, 433 Mass. 30 , 36 (2000), citing International Fid. Ins. Co. v. Wilson, 387 Mass. 841 , 847 (1983).
In addition, although Defendants have labeled their pleading as a "Verified Motion," it does not contain a sworn attestation as to the truth of the matters asserted therein. [Note 3] As such, Defendants' misnamed filing is the equivalent of no affidavit at all. For Defendants, that failure alone is a fatal omission. See Johnny's Oil Co., 82 Mass. App. Ct. at 708 (court denying motion to vacate default where defaulted defendant had failed to accompany his motion, as required, with an affidavit setting forth the facts and circumstances, including the nature of his defenses, offering, instead, a motion with mere conclusory statements that he had a meritorious defense.). See also Bissanti Design/Build Group, 32 Mass. App. Ct. at 470; New England Allbank for Sav., 28 Mass. App. Ct. at 140; Scretchen, 8 LCR at 389 (2000). Notably in contrast, the 5B Affidavit was verified by Defendants, indicating that Defendants knew how to file an attested pleading, but chose not to do so. [Note 4]
B. Lack of Meritorious Defense
As discussed below, I conclude Defendants have not and cannot present a meritorious defense to the Complaint. Plaintiff seeks a declaration pursuant to M. G. L. c. 231A, §1, declaring that the 5B Affidavit is null and void does not create a cloud on title barring enforcement of the First Mortgage as long as the underlying debt remains unpaid. Aside from a number of introductory paragraphs, the 5B Affidavit does not include statements of fact, but rather advances several legal arguments. The bulk of the 5B Affidavit asserts that Defendants' mortgage obligations were discharged by virtue of the obsolete mortgage statute.
1. The Obsolete Mortgage Statute
The 5B Affidavit asserts that the First Mortgage was discharged by operation of law pursuant to the obsolete mortgage statute, M. G. L. c. 260, §33 (the "Statute") and that Defendants hold title to the Property without encumbrance. Specifically, Paragraphs 9 and 10 of the 5B Affidavit state:
On August 8, 2016, the 5-year statute of limitations applicable to obsolete mortgages expired rendering the mortgage recorded in Worcester County Registry of Deeds discharged by operation of law at the time, ab initio . . . . Due to the discharge of mortgage by operation of law, the legal title to our property rejoined the equitable title to this property which we now own without an encumbrance of the title.
In support of these assertions, the 5B Affidavit refers to an appended Default Letter, dated February 8, 2011 and further asserts that "[a]t the end of the period proscribed in the letter, the purported mortgagee accelerated the mortgage advancing the maturity date to August 8, 2011." [Note 5]
Defendants' attempted reliance on the Statute to provide them with clear title is misplaced. The Appeals Court recently addressed this defense to a homeowner's repayment obligation in Nims v. Bank of New York Mellon, 97 Mass. App. Ct. 123 (2020) and concluded that acceleration of a promissory note, which is secured by a mortgage, does not accelerate the maturity date of the mortgage for purposes of the obsolete mortgage statute. In Nims, the homeowners sought a preliminary injunction to stop the foreclosure sale of their home and a declaration that the lenders were not entitled to foreclose on the property. Among other things, the homeowners claimed that, for purposes of the Statute, the maturity date of their mortgage was accelerated simultaneously with acceleration of the maturity date of the note, when they did not cure their default.
After considering the language of the Statute, as well as its purpose and legislative history, the Appeals Court rejected the Nims' argument that the maturity date of their mortgage for purposes of the Statute was the date by which full payment of the loan secured by the mortgage was due. As the Appeals Court explained, "nothing suggests that the statute is designed to shorten the period during which a mortgage is enforceable. In this way, it serves to quiet title with respect to old mortgages, without shortening the period of enforceability of mortgages before their term or maturity date has been reached." Nims, 97 Mass. App. Ct. at 127 (emphasis in original). The Statute provides only that a mortgage becomes unenforceable five years after the expiration of the stated term or maturity date on the face of the mortgage or 35 years from the date of recording of the mortgage if no maturity date is stated.
In Nims, the Appeals Court also reviewed Massachusetts mortgage jurisprudence and affirmed its conclusion as:
[C]onsistent with the long-standing rule that, under Massachusetts law, a mortgage has separate enforceability from its underlying note. A mortgage continues to be enforceable in an in rem proceeding 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."
Id. at 128-29, citing Pearson v. Mulloney, 289 Mass. 508 , 515 (1935) and Jeffrey v. Rosenfeld, 179 Mass. 506 , 509-10 (1901). See also Merritt v. Pensco Trust Company Custodian FBO James P. Tiernan IRA, et al, 27 LCR 205 (2019) (Misc. Case No. 18 MISC 000521) (Long, J.) ("Put simply, the mortgage provides an independent remedy for collection of the debt, separate and apart from the remedy of collection on the notes."); Thornton v. Thornton, 27 LCR 295 (2019) (Misc. Case No. 17 MISC 000655) (Roberts, J.).
A number of recent federal court decisions are in accord with Nims. See Junior v. Wells Fargo Bank, N.A., U.S. Dist. Ct., No. 17-10460 (D. Mass. Mar. 30, 2017); Perreira v. Bank of N.Y. Mellon, U.S. Dist. Ct., No. 16-11467 (D. Mass. Nov. 28, 2016); Hayden v. HSBC Bank USA, N.A., U.S. Dist. Ct., No. 16-111492 (D. Mass. Sept. 30, 2016); Fortin v. Federal Nat'l Mortgage Ass'n, Nationstar Mortgage, LLC, 598 B.R. 689, 692 (Bankr. D. Mass. 2019) (holding that the remedy of foreclosure on a mortgage remains even after the statute of limitations has run on personal liability for the underlying debt). [Note 6]
Likewise here, Defendants' attempt to avoid their repayment obligations fails because they conflate acceleration of the repayment obligations of the Note with the security obligations of the First Mortgage. [Note 7] Defendants argue, and the 5B Affidavit asserts, that the Default Letter accelerated the statute of limitations for the First Mortgage so that it became obsolete on August 8, 2016, instead of October 1, 2040 (by adding five years to the August 8, 2011 due date in the Default Notice). Even more plainly than in Nims where the maturity dates did not appear on the mortgages, here, the First Mortgage states a maturity date of October 1, 2035, on its face page (which is the same date as the maturity date for the Note). As such, the First Mortgage does not become obsolete by virtue of the Statute until October 1, 2040. I conclude that the assertions in the 5B Affidavit about the Statute are incorrect as a matter of law, create the effect of clouding title to the Property and are of no force and effect.
2. Balance of the 5B Affidavit
The second half of the 5B Affidavit includes a miscellaneous assortment of assertions and arguments to the effect that Defendants are not in breach of their payment obligations. [Note 8] I need not address each of these assertions in detail in order to declare the 5B Affidavit null and void. To the extent Plaintiff requests this court to address defenses that Defendants may advance in a foreclosure action other than those grounded in the Statute, I decline to do so. As discussed below, the 5B Affidavit is of no force or effect because it fails to serve its underlying purpose.
3. Defendants' Failure to Comply With the Requirements of Chapter 183, §5B
The 5B Affidavit's content is inconsistent with the language and purpose of Chapter 183, §5B. In Bank of America N.A. v. Casey, 474 Mass. 556 , 564-65 (2016), the Supreme Judicial Court considered what types of errors relating to a defective mortgage acknowledgment may properly be corrected with an attorney's affidavit prepared and recorded under §5B. The SJC concluded that an attorney's affidavit is proper if two statutory requirements were satisfied: (1) the facts contained in the affidavit must be based on the personal knowledge of the affiant; and (2) the affidavit includes a certification by an attorney that the facts stated are both relevant to the title of specifically identified property and "will be of benefit and assistance in clarifying the chain of title." Here, the statements made in the 5B Affidavit are not statements of fact, but rather assertions of law. Nor are the statements of any benefit or assistance in clarifying the chain of title. In fact, the statements in the 5B Affidavit create the opposite effect; they were calculated to (and do) cloud the title and create uncertainty. If Defendants had a legitimate concern that the First Mortgage might be obsolete, they could have chosen to seek a judicial determination. Instead, they unilaterally recorded an improper affidavit.
An affidavit much like the 5B Affidavit here at issue was considered by the United States District Court for the District of Massachusetts, in Deutsche Bank National Trust v. Grandberry, 388 F. Supp. 3d 65, 70 (2019). In that case, the homeowner executed and recorded a so-called Affidavit of Clarification of Title pursuant to M.G.L. c. 183, §5B, in which she asserted that Deutsche Bank was not the holder of the Mortgage or the Note, an assertion that the Court determined was false. Relying on Casey, supra, the Court reasoned that "[t]he Legislature's choice of the word 'clarifying' suggests that the attorney's affidavit must be limited to facts that explain what actually occurred . . .". Id. (footnote omitted)). The Court struck the affidavit because it did not "state facts relevant to the holder of title to certain land or that clarify the chain of title as required by M.G.L. c. 183, §5B." For this independent reason, I conclude that the 5B Affidavit is void and of no force and effect.
After careful consideration of the 5B Affidavit and for all of the reasons discussed above, the conclusory assertions in the 5B Affidavit do not demonstrate that Defendants have a meritorious defense to the Complaint and nothing in the record supports an inference that the Defendants have a meritorious defense. Accordingly, I decline to vacate the default.
IV. DEFENDANTS' MOTION TO DISMISS
Although, having declined to vacate the default, it is unnecessary to reach the Defendants' Motion to Dismiss, I now turn to the jurisdictional challenges presented in Defendants' Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (MRCP Rule 12). Although it is difficult to understand much of Defendants' rambling and late-filed pleading, I address their various arguments to the extent possible because the question of subject matter jurisdiction goes to the authority of the court to hear and decide a matter. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 n.6 (1998). Although variously described, each of these arguments claims that Plaintiff is not the proper party to bring suit to enforce the obligations of the First Mortgage.
A motion to dismiss for lack of jurisdiction based on the factual insufficiency of the complaint should be granted where the plaintiff's allegations, if taken as true, do not establish the court's jurisdiction to hear the claim. Id. at 322. In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, the court accepts as true the factual allegations in the complaint, as well as any favorable inferences which reasonably may be drawn from those allegations. Id. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), the plaintiff's complaint must provide the grounds of his entitlement to relief and factual allegations must be enough to raise a right to relief above the speculative level. Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636, (2008). "What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Id.
A. Lack of Standing.
Defendants contend that Plaintiff lacks standing because it has not provided sufficient evidence of its status as trustee so as to have legal authority to bring suit. In support of this argument, Defendants refer to M. G. L. c. 184, §25, the indefinite reference statute ("Indefinite Reference Statute"). In pertinent part, Chapter 184, §25, provides:
No indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it. An indefinite reference means . . . (3) a description of a person as trustee or an indication that a person is acting as trustee, unless the instrument containing the description or indication either sets forth the terms of the trust or specifies a recorded instrument which sets forth its terms and the place in the public records where such instrument is recorded . . . .
M. G. L. c. 184, §25. Defendants are correct that the 2011 Assignment from MERS, as nominee for AWL to Plaintiff does not set forth the terms of a trust or specify a recorded instrument setting forth the trust's terms. I am not convinced, however, that Chapter 184, §25 and the absence of a recorded trust instrument provide a basis for this court to dismiss the Complaint, or for Defendants to avoid their obligations under the First Mortgage.
The Indefinite Reference Statute was enacted in 1958 to protect purchasers from "indefinite references" in recorded instruments. 28 Mass. Prac., Real Estate Law §2.16 (4th ed.). There is no reason to believe that the Indefinite Reference Statute was intended to protect Defendants, as mortgagors, from assignment of their mortgage to a trustee or trustees (or from assignment by trustees) simply because the assignment does not refer to a recorded trust. Mitchell v. U.S. Bank Nat'l Ass'n, 22 LCR 120 , 128 (2014) (Misc. Case No. 12 MISC 473427) (Foster, J.).
In Payne v. U.S. Bank Nat. Ass'n, U.S. Dist. Ct., No. 1110786 (D. Mass. Mar. 28, 2013), the court found that the failure by a securitized mortgage trust to comply with the Indefinite Reference Statute by recording a copy of the trust did not void a mortgage assignment. It reasoned:
Section 25 protects people who are not immediate parities [sic] to a transaction by not making them bound to indefinite references in recorded instruments. See 28 Mass. Prac., Real Estate Law §2.16 (4th ed.). Section 25 does not make an assignment void, only perhaps unenforceable under some circumstances, different from those in the present case.
This reasoning is consistent with a subsequently enacted statute, M. G. L. c. 184, §34 (as enacted by St. 1973, c. 199), which provides that a recordable instrument from a person appearing to be a trustee "shall be binding on the trust in favor of a purchaser or other person relying in good faith on such instrument." When read together, these two statutes, M. G. L. c. 184 §§25(3) and 34, provide protection to buyers and subsequent buyers in the chain of title of the deed or assignment, not to mortgagors. I conclude that Planitiff's failure to comply with Chapter 184, §25 does not provide a basis to dismiss Plaintiff's Complaint.
B. Misnomer of Plaintiff.
According to Defendants, there is a misnomer of Plaintiff, and therefore, they seek dismissal under Mass. R. Civ. P. 12(b)(8) and 17(a)(1). [Note 9] They contend that Plaintiff, The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders CWABS Inc. Asset Backed Certificates Series 2005-14, is not the real party in interest because it does not own the First Mortgage. Instead, Defendants contend the mortgage backed security mortgage trust owns the First Mortgage and point to a certain pooling and servicing agreement, which they append to their motion as the constituting document for that trust. Because the appended document lacks signatures and because it was not recorded at the Registry, Defendants argue that the trust is a non-existent legal entity without standing to bring suit.
In the first instance, the court cannot consider the appended document because it is not in evidence. It is far from clear that the appended document is the actual pooling and servicing agreement for the First Mortgage. In addition, I conclude that Defendants as nonparties to the trust document themselves lack standing to challenge Plaintiff's ability to act as trustee on behalf of the certificate holders. In Mitchell v. U.S. Bank Nat'l Ass'n, 25 LCR 605 (2017) (Misc. Case. No. 12 MISC 473427) (Foster, J.), aff'd on other grounds, 95 Mass. App. Ct. 901 (2019), Judge Foster rejected a similar claim by homeowners that a defendant bank in its capacity as trustee of a trust of a pool of loans never became the lender, or assignee of the lender, or the holder of the Note (and that the certificate holders alone had the legal and contractual right to enforce the Note). More specifically, Judge Foster wrote:
If the Certificateholders are unsatisfied with actions taken by the trustee, it is for the Certificateholders to challenge the actions of the trustee, not a mortgagor. The Certificateholders are a party to both the PSA and Custodial Agreement. These documents are not for the benefit of any borrower, but are agreements between U.S. Bank and other such entities involved with the oversight and functioning of the Trust. Even if U.S. Bank breached its obligation as trustee under the documents, that failure would be for the Certificateholders, not the Mitchells, to prosecute.
Id, at 610, citing Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 , 206 (2014); Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 502 (2014); Woods v. Wells Fargo Bank, Nat'l Ass'n, 733 F.3d 349, 354 (1st Cir. 2013); Carroll v. The Bank of N.Y. Mellon, Mass. App. Ct. No. 15-P-1662, (April 12, 2017).
In further support of their request to dismiss the Complaint, Defendants argue that U.S. Nat'l Bank Ass'n, v. Ibanez, 458 Mass. 637 , 649 (2011), requires Plaintiff to produce a fully executed pooling and servicing agreement to show ownership of the First Mortgage. This argument misreads Ibanez. In Ibanez, the Supreme Judicial Court concluded that the plaintiff trusts could not foreclose on certain mortgages because they had failed to show that they held the mortgages at issue at the time they proceeded to foreclose. Here, where Plaintiff holds an assignment of the mortgage at issue, that assignment is of record and it is before the court pursuant to a duly executed affidavit, there is no requirement to produce a securitization trust. [Note 10]
C. Inartful Drafting.
Defendants seek dismissal under Mass. R. Civ. P. 12(b)(6) based on several instances of sloppy drafting in the Complaint. In the first instance, Defendants argue that the caption of the case does not display the name of defendant Mortgage Electronic Registration Systems ("MERS"), nor is MERS identified on the court's docket, even though MERS is identified as a defendant in Paragraph 4 of the Complaint. A careful review of the Complaint reveals that Plaintiff seeks relief only with respect to its own First Mortgage and not the junior MERS mortgage. In the context of the relief sought, the court views Paragraph 4 as a factual allegation providing background information and does not treat MERS as a defendant. MERS was not served as defendant and is not a necessary party to this case. As such, the failure to identify MERS as a defendant in the caption of the Complaint is not a material omission so as to warrant dismissal.
Defendants also take issue with Paragraph 15 of the Complaint which states that "Plaintiff," rather than Defendants, recorded the 5B Affidavit. While Defendants are correct that Paragraph 15 of the Complaint does so state, it is apparent from the context of that paragraph within the Complaint, as well as from the terms of the 5B Affidavit itself, that Defendants - and not Plaintiffs - filed the 5B Affidavit. For instance, the signatures of both Defendants appear on the 5B Affidavit. Plaintiff acknowledges this scrivener's error in Plaintiff's Memorandum of Law in Support of its Opposition to Defendants' Motion to Vacate default Judgment and Motion to Dismiss. This mistake does not constitute sufficient grounds to dismiss the Complaint since the import and context are clear. Accordingly, to the extent necessary to correct the record, the court treats Plaintiff's Memorandum as a motion to amend the Complaint to correct these errors and allows that motion.
Lastly, Defendants take issue with Paragraph 1 of the Complaint, where the Plaintiff is identified as a "duly organized corporate entity existing under the laws of the United States of America." Plaintiff again acknowledges this as a scrivener's error in Plaintiff's Memorandum of Law in Support of its Opposition to Defendants' Motion to Vacate Default and Motion to Dismiss and proposes the following corrected language in its stead: as a "corporation duly organized under the State of New York, in its capacity as Trustee for the Certificate Holders CWABS, Inc." Here again, the court does not find this error to present a meritorious reason to dismiss the Complaint and, to the extent necessary to correct the record, treats Plaintiff's Memorandum as a motion to amend the Complaint to correct these errors and allows that motion.
V. CONCLUSION
For the reasons stated above, Defendants' Motion to Vacate Default is Denied, Defendants' Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim is Denied and Plaintiff's Motion for Entry of Default Judgment is Allowed. Judgment to enter accordingly.
The BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as TRUSTEE FOR THE CERTIFICATE HOLDERS CWABS INC., ASSET-BACKED CERTIFICATES SERIES 2005-14 vs. GARY J. GURINIAN a/k/a GARY GURINIAN and MAUREEN MERO