Nims Corrected Brief005!23!2019

Massachusetts Appeals Court Case: 2019-P-0179 Filed: 5/23/2019 11:15 AM
COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS
NO. 2019-P-0179
STEPHEN D. NIMS & another
Plaintiffs-Appellants
V.
THE BANK OF NEW YORK MELLON, & another
Defendants - Appellees
ON APPEAL FROM A JUDGMENT FROM THE

WORCESTER COUNTY SUPERIOR COURT
APPELLANTS’ OPENING BRIEF
Glenn F. Russell, Jr. (BBO# 656914)

Glenn F. Russell, Jr & Associates, P.C..
38 Rock Street, Suite #12
Fall River, MA 02720 phone.
(508) 324-4545 fax.
(508) 938-0244 russ45esq@gmail.com
Dated: May 17, 2019

TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED..................4
II. STATEMENT OF THE CASE..............................4
III. STATEMENT OF FACTS.................................6
IV. SUMMARY OF THE ARGUMENT...........................16
V. STANDARD OF REVIEW................................18
VI. ARGUMENT..........................................18
A. The Superior Court Judge Abused Her

Discretion By Failing To Specifically
Examine The Individual Plausibility of
Plaintiffs’ Specific Claim and Theory of
Their Entitlement To Relief Under
G.L. c. 260, §33................................18
B. The SJC Has Clearly Interpreted The Term

“Maturity Date” In G.L. c. 260, §33 To Mean
The Date Upon Which The Debt Falls Due That
Triggers The Five Year Repose Period............24
C. The Original “Maturity Date” of August 01, 2035

of Plaintiffs’ Note Was Accelerated, And Thus
Advanced To Become Immediately Payable In Full
On July 10, 2010................................27
1. The Superior Court Judge Erred In Finding

That Plaintiffs’ Note Was “Accelerated”
in 2015......................................32
2. The Fourth Circuit Has Examined Acceleration

Of An Underlying Debt In The Context of A
Statute of Limitations Involving A Mortgage..34
3. The SJC In Fitchberg Was Clear In That A

Mortgage Does Not Mature Distinctly From
The Underlying Debt That It Secures..........37
D. Plaintiffs Are Entitled To Relief Under

Count I, Where BNYM Possessed No Right
To Enforce An Obsolete Mortgage Under
G.L. c. 244, §14..............................47
VI. CONCLUSION..........................................49
RULE 16(k)..............................................50
STATEMENT CERTIFICATE OF SERVICE........................51
ADDENDUM................................................52
TABLE OF AUTHORITIES
Deutsche Bank N.T. Co. v. Fitchberg Capital, LLC

471 Mass. 248 (2015)............................passim
Deutsche Bank N.T. Co. v. Fitchberg Capital, LLC
21 LCR 559, 563 (Mass. Land Ct. 2013)............39,40
Duplessis v. Wells Fargo Bank, N.A.

73 Mass.App.Ct. 1001 [1:28]......................22,23
Eaton v. Fed. Nat’l Mortg. Ass’n

462 Mass. 569 (2012)..........................21,23,26
Ferreira v. Yared
32 Mass.App.Ct. (1992)..................23,34,35,36,38
Harrington v. Cenlar,
26 LCR 162 (LC Reporter April 06, 2018).............28
Harvard 45 Assoc., LLC v. Allied Props. & Mortg. Inc.

80 Mass.App.Ct. 203 (2011)..........................39
Housman v. LBM Financial, Inc.

80 Mass.App.Ct. 213 (2011)..........................39
Iannachino v. Ford Motor Co.,

367 Mass. 385 (1975)................................41
Norfolk & Dedham Mutual Fire Insurance Co. v.

Morrison, --N.E.2d--, 2010 WL 1345156
(Mass. Apr. 8, 2010).....................................18
Overlook Props. LLC v. Braintree Co-op Bank

87 N.E. 3d 1201 (Table) (2017)......................40
Ry-Co Int’l, LTD v. Voniderstein,

89 Mass.App.Ct. 1120 (Table 1:28, 2016).............44
Sullivan v. Kondaur Capital Corp,

85 Mass. App. Ct. 202....................................41
Wells Fargo Bank, N.A. v. Khurseed

Mass.. App. Div. 2019 WL 1989189 (April 19, 2019)...22
FEDERAL CASES
Delebreau v. Bayview Loan Servicing, LLC

680 F.3d. 412 (4th Cir. 2012)..............35,37,38,39
Fortin v. Fannie Mae

2017 WL 1199768, Ca. No, 17-40877-EDK;
Adv. Pro. No. 184092 (Bankr. Mass 2017)............28
Harry v. Countrywide Home Loans, Inc.

902 F.3d 16 (1sr Cir. 2018)........................28
Hayden v. HSBC Bank USA, N.A.,

867 F.3d. 222 (1st Cir. 2017)
[vacated Jul. 2018] cur.
Pending...................................20,24,27,28
In re LLC,
642 F.3d. 263; Bankr. Ct.
Dec. 221 (1st Cir. 2011)......................30,31,44
Junior v. Wells Fargo Bank, N.A.,

Ca. No. 17-10460-RGS, 2017 WL 199768 (D.Mass)......28
STATE STATUTES AND REGULATIONS
G.L. c. 106, §3-118(a)..................................passim
G.L. c. 244, §14........................................passim
G.L. c. 260, §33........................................passim

STATEMENT OF ISSUES
A. Whether The Superior Court Judge abused her discretion in
failing to undertake statutory construction of the
language in G.L. c. 260, §33 relating to the definition of
the term "maturity date", as expressed by the SJC in
Deutsche Bank N.T. Co. v. Fitchburg Capital, 471 Mass.
248(2015).
B. Whether The Superior Court Judge Abused Her Discretion In

Finding For BNYM Under Count I, Where BNYM Was An Improper
Statutory Party To Utilize G.L. c. 244, §14, As
Plaintiffs’ Mortgage Was Obsolete As A Matter of Law Under
G.L. c. 260, §33.
II. STATEMENT OF THE CASE:
On October 18, 2017, Plaintiffs’ filed An Emergency
Motion for Preliminary Injunction, Memorandum of Law In
Support[RA-013], and an underlying verified complaint with
attached Exhibits thereto [RA-031]. On October 18, 2017, the
Hon. Campo, J., made endorsement that Short Order of Notice
should issue and that it shall be returnable at the October
23, 2017 hearing on Plaintiffs’ Motion for Preliminary
Injunction [RA-009]. On October 23, 2017, the hearing was
rescheduled at the joint request of the parties. On November
11, 2017, the Bank of New York Mellon, as Trustee filed its
Opposition to Plaintiffs’ Motion for Preliminary Injunction
[RA-430]. On November 11, 2017, hearing was held as scheduled
on Plaintiffs’ Motion for Preliminary Injunction. On November
12, 2017, counsel for Bank of New York Mellon as Trustee
caused correspondence to be sent directly to the Hon. Campo,

J., CITING TO 2 CASE LAW DECISIONS; Hayden v. HSBC Bank, USA,
N.A., 867 F.3d. 22 (1st Cir. 2017) and Stone v. Stone, 2017
WL 3319269 (Mass. Land Court 2017) [RA-475]. On November 13,
2017, Plaintiffs filed a Response TO THE CASE CITATIONS
SUPPLIED BY COUNSEL FOR Bank of New York Mellon as Trustee
(“BNYM”) [RA-484].
On November 13, 2017, the Hon. Campo, J. Denied
Plaintiffs’ Motion for Preliminary Injunction, and issued a
written Order memorializing the basis for such Denial [RA-
492] On November 17, 2017, Plaintiffs’ filed a Motion for
Reconsideration of the Order Denying Plaintiffs’ Motion for
Preliminary Injunction [RA-499] On November 24, 2017, counsel
for BNYM filed Opposition to Plaintiffs’ Motion for
Reconsideration [RA-516]. On December 13, 2017, the Hon.
Campo, J. Denied the Plaintiffs’ Motion for Reconsideration
[RA-519]. On December 20, 2017, Defendant BNYM filed its Two-
Page Motion to Dismiss under Superior Court Rule 9A [RA-
521],, which also included Plaintiffs Opposition thereto [RA-
526]. Thereafter the BYNM Defendant filed an emergency Motion
to Continue its hearing on its Motion to Dismiss to allow its
co-Defendant Bank of America to file its own Motion to
Dismiss. On February 20, 2018, Defendant Bank of America
filed its Motion to Dismiss under Superior Court Rule 9A [RA-
547], and Plaintiffs’ Opposition thereto [RA-555]. On May 22,

2018, Plaintiffs’ submitted a Notice of Supplemental
Authority re the First Circuit vacating the decision in
Hayden v. HSBC Bank, USA, N.A., 867 F.3d. 22 (1st Cir. 2017)
[RA-606]. On June 19, 2018, hearing was held on both
Defendants Motion to Dismiss, (transcript of hearing [RA-
568]). On September 12, 2018, the Hon. Sullivan, J., Issued
her Memorandum Order and entered Judgment, in her Allowance
of Defendant BNYM Motion to Dismiss [RA-610]. On September
12, 2018, the Hon. Sullivan, J., Issued her Memorandum Order
and entered Judgment, in her Allowance of Defendant Bank of
America’s Motion to Dismiss [RA-615]. On October 05, 2018,
Plaintiffs filed their Notice of Appeal[RA-622].
III. STATEMENT OF FACTS
On July 6, 2005 the Plaintiffs executed a promissory
note specifically payable to Omega Mortgage Corp. in the
amount of $375,000.00. To secure payment of the debt the
Plaintiffs executed a separate bi-lateral Security Instrument
Mortgage contract regarding their property located at 402
Ashby Road, Ashburnham, MA ("the premises"). This Security
Instrument also represented the Plaintiffs’ transfer of a
defeasible fee title interest in the premises to the Lender,
Omega Mortgage Corp. The Security Instrument Mortgage, at p.
1, ¶D [RA-058] clearly and specifically identified Omega

Mortgage Corp. as the “Lender”, and further identified that
the Lender is the “mortgagee” under the Security Instrument.
However, at the same time the language of the Security
Instrument Mortgage contract, at p. 1, ¶ C, [RA-057], also
states that “MERS is a separate corporation that is acting
solely as a nominee for Lender and Lender's successors and
assigns. MERS is the mortgagee under this Security
instrument.” [RA-058]
In 2008, Plaintiffs began to fall behind on their
payments. In January of 2009, Plaintiffs wrote Countrywide
Mortgage Servicing, stating that they would no longer be able
to sustain the then monthly mortgage payment amount, due to a
medical condition [Plaintiffs chronology of events was part
of the record under MRCP, R. 10(c), as it was attached to
Plaintiffs’ verified complaint; [see Exhibit H to complaint,
at RA-NIMS-083 to NIMS-091]. On July 24, 2009, the Plaintiffs
began a “Modification process” with BAC Home Loans, Inc.,
whereby Plaintiffs submitted all requested paperwork. In
September 2009, Plaintiffs started making trial modification
payments of $2,046.62. The schedule for these payments was
supposed to be for three months only, which Plaintiffs
complied with.
On October 21, 2009, Plaintiffs were assigned a
“negotiator” Tammy Betts. On November 10, 2009, Plaintiffs

remitted $2,046.60. Again, these trial payments were
scheduled to end in November 2009. However, December 10,
2009, Plaintiffs paid another $2,046.62 that was accepted by
BAC. January 10, 2010, Plaintiffs further remitted $2,046,62,
however BAC made a “mistake” by not drawing on this check.
Plaintiffs thereafter made further monthly payments of
$2,046,62 in January and February 2010, that were readily
accepted by BAC. At this time Plaintiffs then directly
queried BAC about status of “modification process”, where
they were informed that “underwriting was completed on
January 14, 2010, and that the [final modification] package
was sent to a different department to be shipped out to
them”. Plaintiffs were also specifically informed to “look
for this ‘package’ to arrive by the end of March 2010 or
early April 2010. This ‘package’ never arrived.
Thereafter, on March 03, 2010, Plaintiffs’ further
remitted $4,093.24 for February and March of 2010, which
again were readily accepted by BAC. Plaintiffs made
such double payment because they were previously informed
that there had been an ‘error’ with the February 2010
payment, where the mortgage servicer stated that ‘it wasn’t
received’. However, Plaintiffs’ have a confirmation number
for the receipt of this February payment. Thereafter,
Plaintiffs made further payments of $2,046.62 on April 05,

10
2010, that was accepted and cashed. Thereafter, Plaintiffs
proactively made a follow-up call to BAC to inquire about the
status of the ‘package’ that was supposedly being
sent out to them. Plaintiffs were informed by BAC that
everything “was Okay” and the paperwork was on its way. April
28, 2010, Plaintiffs received a letter from BAC Servicing
stating Plaintiffs did not ‘qualify’ because they did not
make all required payments by the end of the trial period.
Thereafter on April 28, 2010, Plaintiffs immediately called
BAC Servicing, and were informed that this letter was sent in
error, and to disregard it. BAC further informed Plaintiffs
that this matter would be ‘escalated’. Becoming apprehensive,
on April 30, 2010 Plaintiffs again called BAC at 11:48am, and
were informed by a representative not to worry, and that
everything was okay. In fact, everything was not Okay as
Plaintiffs were being directed into foreclosure.
On May 05, 2010, Plaintiffs’ again made payment of
$2,046.62. At this time Plaintiffs also spoke to ‘Anthony’
about status of their “modification process” and were
informed that the modification would be finalized within
thirty days.
On May 26, 2010, Plaintiffs’ maintained their due
diligence, by calling BAC to inquire why the money for their
recent payment had not been withdrawn from their bank

11
account. During this same phone call Plaintiffs were required
to update their financial information. June 07, 2010,
Plaintiffs again called BAC TO INQUIRE WHY THE May 2010
payment had still not cleared. The BAC Representative stated
that BAC had tried to draw money on May 14, 2010, but it
bounced. Plaintiffs informed representative that this was
impossible, as they had not been informed of such event by
their bank and were never assessed any charge for any
purported insufficient fund charge. Therefore, Plaintiffs
again made the May 2010 payment of $2,046.62, and received
confirmation that it cleared through BAC.
Plaintiffs were further told that they would need to now
send in two recent pay stubs and a hardship letter, which
they complied with. Thereafter on June 09, 2010, Plaintiffs
were then informed that they “did not qualify” for the
modification, but that their case “was still open”, where BAC
would look for [more profitable for BAC] programs for
Plaintiffs. However, on the very next day (June 10, 2010),
Plaintiffs received a Notice of Intention to Foreclose from
BAC Home Loans Servicing, LP (“BAC”) [RA-105]. The language
of this June 10, 2010 letter clearly attempts to follow
paragraph 22 of the Plaintiffs’ Security Instrument contract
language [RA-071, 072] stating that “if the default is not
cured on or before July 10, 2010, the ‘mortgage payments’

12
will be accelerated with the full amount remaining
accelerated and becoming due and payable in full, and
foreclosure proceedings will be initiated at that time”.
Paragraph 22 of Plaintiffs’ Mortgage is entitled
“Acceleration: Remedies”, stating “that Lender shall give
Notice to Borrower prior to acceleration that specifies a
date not less than 30 days in which the default may be cured
and that the failure to cure on or before the date specified
[July 10, 2010], the Lender at its option, may require
immediate payment in full of all sums secured by this
Security Instrument and may invoke the Statutory Power of
Sale.
Plaintiffs failed to cure the default by July 10, 2010.
Bank of New York Mellon as Trustee, and to date have made no
further payments. Thereafter, BNYM intentionally elected to
exercise its option to declare that all sums due on the note
were “accelerated”, thus advancing the maturity date of the
Note from August 1, 2035, to then become immediately due and
payable in full on July 10, 2010.
Thereafter Plaintiffs hired other counsel to request
information from BAC as to why Plaintiffs were denied the
modification, and also thereafter stopped making payments.
August 2010, Plaintiffs put premises up for sale, by way of
“short sale”. December 17. 2010, Plaintiffs received Notice

13
that their ‘mortgage loan’ was purportedly ‘sold or
transferred to Bank of New York Mellon’ [individually, not in
any Trustee capacity] [RA-081]. Defendants fail to reference
Bank of New York Mellon [individually] in any chain of
ownership of Plaintiffs’ mortgage loan from the time of its
origination with Omega Mortgage Corp. [RA-050].
Plaintiffs received an offer to their short sale listing
of $209,000.00 in July 2011, which BOA accepted. However, BOA
took three months to respond to this offer, and due to BAC
failure to timely respond the buyer backed out of deal due to
the delay. Thus, Plaintiffs’ lost the opportunity to sell
the premises to limit their losses as a proximate result of
BAC failure to timely respond. In August 2011, Plaintiffs
renewed their short sale attempt, but were now informed by
BAC that their “file had closed”. On September 06, 2011, a
document is executed purporting that the “beneficial
interest” under ‘that certain mortgage and note(s) described
therein, were ‘assigned’ by Omega Mortgage Corp to Bank of
New York Mellon, as Trustee for the Certificateholders of
CWALT, Inc Alternative Loan Trust 2005-53T2 Mortgage Pass-
Through Certificates Series 2005-53T2 [RA-077]. On October
12, 2011, a further document is executed further purporting
that the “beneficial interest” under ‘that certain mortgage
and note(s) described therein, were [purportedly] NOW

14
‘assigned’ by Mortgage Electronic Registration Systems Inc.
(“MERS”) to Bank of New York Mellon as Trustee for the
Certificateholders of CWALT, Inc Alternative Loan Trust 2005-
53T2 Mortgage Pass-Through Certificates Series 2005-53T2 [RA-
079]. It is an unquestioned fact that MERS maintains no
interest, or beneficial in notes. Loans, or instruments of
indebtedness and therefore MERS could not convey a non-
existent “beneficial interest” as stated upon the face of the
last purported “assignment”, [ref Eaton v. Fed. Nat’l
Mortgage Ass’n, 462 Mass 569, at n. 27 (SJC 2012), and
Culhane v. Aurora Loan Services. Of Neb. 708 F.3d 282, 287
(1st Cir. 2013); “it [MERS] does not have any ‘beneficial
interest in the loan”. 1
Plaintiffs were informed that their “File” was
‘reopened” on November 15, 2011 by BOA ‘Loan Resolution
Group”. December 27, 2011 Harmon Law Office PC sent A Notice
of an Intention to Foreclosure to Plaintiffs. Harmon Law
Offices (purportedly on behalf of Bank of New York Mellon).
In response to the threatened and purported statutory
foreclosure auction sale, on July 07, 2012, Plaintiffs’ filed
1
Additionally, at the time that the Culhane ruling was
decided, a “mortgagee” for statutory purposes of G.L. c. 244,
§14 was defined as only being required to be in “possession”
of the mortgage as a “holder”, with no examination as to the
Note
15
for relief under Chapter 7 of the U.S. Bankruptcy Code [RA-
448]. On July 24, 2012, Plaintiffs’ received ‘approval’ for
Trial Modification Plan, requiring payments of $2,431.97 for
the months of September-November of 2012, however Plaintiffs’
made no further payments. On October 18, 2012, an Order was
entered by the Bankruptcy Court discharging Plaintiffs’ from
personal liability on the Note [RA-448] In July of 2013,
Plaintiffs began receiving notices and dunning calls from
Resurgent Mortgage Services, identified as a “sub-servicer”.
June 27, 2014, Plaintiffs were thereafter informed that the
servicing of their mortgage was now transferred to Shellpoint
Mortgage Servicing. May 29, 2015, Harmon Law Offices PC sends
a purported Notice of Intention to Foreclose unless
$508,000.00 is paid in Full [RA-461]. However, Plaintiffs
Note was already “accelerated” on July 10, 2010, and further
Plaintiffs were officially discharged from any personal
liability on the Note on October 18, 2012. The preceding
would therefore preclude BNYM from “accelerating” the
Plaintiffs’ Note in 2015. Undersigned contacted Shellpoint at
Plaintiffs’ request, where representatives could not seem to
locate Plaintiffs’ file. December 18, 2015 Plaintiffs’
received a Shellpoint letter entitled; Notice of Default and
Intent to Accelerate. April 16, 2016, Shellpoint 90 day right
to cure letter sent. August 10, 2016, Plaintiffs receive

16
“Order of Notice” that Servicemember case filed in Land
Court. On June 22, 2017, a document is executed, then
recorded upon the title to the Premises, purporting that it
is in compliance with G.L. c. 244, §35B as well as G.L. c.
244, §35C [RA-466]. This purported Affidavit relies upon
documents and other electronic indicia that is outside the
record. The Affiant does not state that she reviewed
Plaintiffs’ Note, but rather only reviewed the “business
records” of New Penn Financial LLC D/B/A Shellpoint Mortgage
Servicing. Further, as of October 18, 2012, the Note has no
relevance to Plaintiffs. The term “business records” is
defined by the Affiant as including; electronic data
compilations and electronically imaged documents, and that to
the extent that records related to the ‘loan’ come from
another entity, those records are now part of New Penn
Financial LLC D/B/A Shellpoint Mortgage Servicing “business
records”. And only based upon a review of these [specifically
defined] “business records [not the Note itself], does the
Affiant claim that the Defendant is the “holder” of
Plaintiffs’ Promissory Note [which purports to be a bearer
instrument]. But again, the Note has no relevance to
Plaintiff after October 18, 2012.
September 18, 2017, Plaintiffs receive Notice of
Mortgage Foreclosure Sale would take place by public auction

17
on October 23, 2017 from Harmon Law Offices, PC [RA-049]. On
October 18, 2017, in order to prevent the scheduled statutory
auction sale, Plaintiffs filed a Motion for Preliminary
Injunction, with Memorandum of Law In Support, along with an
underlying verified complaint including attached Exhibits
thereto. By agreement the sale was postponed to November 20,
2017. On November 13, 2017, after hearing, the court denied
the Nims' request for a preliminary injunction and the
foreclosure sale took place thereafter.
IV. SUMMARY OF ARGUMENT:
This appeal primarily involves the 2006 legislatively
revised language of G.L. c. 260, §33, and its application to
the instant fact pattern. The SJC provided interpretive
guidance as to the fact that where the mortgage refers to
the “maturity date” of the note upon the face of the
mortgage, such mortgage would be a “stated mortgage” for
purposes of the 5 year repose period as set out under G.L. c.
260, §33. It is undisputed that Plaintiffs’ mortgage is a
“stated” mortgage placing it within the five (5)-year repose
period to make Plaintiffs’’ Mortgage Obsolete for purposes of
G.L. c. 260, §33.
However, the issues as specifically presented upon
apeal, involve the examination as to the term “maturity date”
left open by the SJC in Fitchberg, which is that the

18
“maturity date” of an underlying Note may be “accelerated” to
become immediately due and payable under the bargained for
language under Paragraph 22 of the Plaintiffs’ mortgage
contract. The SJC clearly stated that where a “stated”
mortgage is in issue, the “maturity date” of the underlying
debt forms the basis of establishing the 5-year repose
period. The Superior Court Judge abused her discretion by
failing to examine the Plaintiffs’ specific claims for relief
under G.L. c. 260, §33, (19-24). The SJC Has Clearly
Interpreted The Term “Maturity Date” In G.L. c. 260, §33 To
Mean “The Date Upon Which The Underlying Debt Falls Due” That
Triggers The 5 Year Statute of Repose (24-27) The SJC Has
Definitively That The Term Maturity Date Is Defined As The
Date When The Debt Falls Due (27-31)The Fourth Circuit Has
Examined Acceleration In The Context of A Statute of
Limitations Involving A Mortgage (31-34) The SJC In Fitchberg
Was Clear In That A Mortgage Does Not Mature Distinctly From
The Underlying Debt (35-40).
V. STANDARD OF REVIEW
In Granting both of the Defendants’ Motion to Dismiss
Under Mass. R. Civ. P., R. 12(b)(6), the Superior Court Judge
dismissed the Plaintiffs’ pleadings and theory of relief, as
a matter of law. This Court reviews rulings of law and legal
conclusions de novo. See Norfolk & Dedham Mut.Fire Ins.

19
Co. v. Morrison, -- N.E.2d --, 2010 WL 1345156, at *3
(Mass Apr. 8, 2000)
VI. ARGUMENT:
A. The Superior Court Judge Abused Her Discretion By

Failing to Examine The Individual Plausibility of
Plaintiffs’ Specific Claim And Theory of Their
Entitlement To Relief Under G.L. c. 260, §33
Indeed, a common approach to matters involving the
attempted exercise of G.L. c. 244, §14, the financial bar
posits, and implies, that every borrower fact pattern and
borrower claim for relief must be precisely identical to each
other, and urge the Court to merely apply rulings from other
12(b)(6) opinions involving different fact patterns and other
claims for relief that were nowhere advanced by the
individual litigant before the Court. This matter is yet
again another example of this phenomenon.
In this same vein, Plaintiffs advanced specific plausible
allegation regarding first impression issues relative to the
revised construction of G.L. c. 260, §33, and specifically
whether the date that their debt fell due [for purposes of
G.L. c. 260, §33] was “advanced” where the “lender” BNYM made
the intentional election to exercise its option to “accelerate”
the original maturity date of the underlying debt to become
immediately due and payable. Plaintiffs advanced a cogent and
plausible claim for relief that; given the SJC interpretive

20
guidance in Deutsche Bank NT Co. v. Fitchberg Capital, LLC,
471 Mass. 248 (2015) (“Fitchberg”); that the term “maturity
date” (when stated on the face of the mortgage) as found within
the language of G.L. c. 260, §33, that the same shall refer to
the maturity date of the underlying debt, see Plaintiffs
complaint at Count III; RA-044, 045]. Plaintiffs clearly
identified, [like Fitchberg] that the face of their mortgage
referenced the “maturity date” of the note, [RA-129, ¶129],
and therefore this fact placed Plaintiffs squarely within the
5-year repose period under G.L. c. 260, §33. Further Plaintiffs
alleged that the “maturity date” of the Note controlled the
analysis [RA-129, ¶130]. Plaintiffs further identified that
their Note could be accelerated and provided an example through
citation to G.L. c. 106, §3-118(a), but did not rely upon the
six-year statute of limitations thereunder; [RA-129,¶131].
In the ruling by the Motion Judge on Plaintiffs’
request for Preliminary Injunction, that Motion Judge made
incorrect finding as follows:
“The plaintiffs apparently argue that their mortgage

is obsolete under G.L. c. 260, §33 because the
maturity date of their mortgage is the date that
BNYM accelerated their note. This argument is
unavailing. The Plaintiffs rely on a Uniform
Commercial Code Provision (G.L. c. 106, §3-118(a)
and Deutsche Bank N.T. Co. v. Fitchberg Capital,
LLC, 471 Mass. 248, 254 (2015) to support their
argument. Their reliance is misplaced. G.L. c. 106,
§311(a) [sic] addresses the statute of limitations
for enforcing a note obligation and is therefore not
21
relevant to the issue of a mortgages’ maturity date.”
Nor does the plaintiffs' reliance on Deutsche Bank
Nat’l Trust Co. provide any support. See Hayden v. HSBC
Bank USA, Nat’l Ass'n., 867 F.3d 222,224 (1st Cir.
2017) ("Nothing in the text of[G. L. c. 260, § 33]
support[ed) the [plaintiffs'] assertion that the
acceleration of the maturity date of a note affects
the five-year limitations period for the related
mortgage. Their citation to the SJC's decision in
Deutsche Bank National Trust Co, ... is inapposite
because the decision makes no mention of the impact of
an accelerated note on the obsolete mortgage
statute's limitations period.") (emphasis in
original). Moreover, even if the court agreed with
the plaintiffs' interpretation of a mortgage's
maturity date, their mortgage was accelerated in
2015, less than five years ago, meaning their
mortgage would not be discharged under G. L. c. 260,
§ 33.” [ADD-015, 016]
Plaintiff made no such claim of “reliance” upon the statute of
limitations under G.L. c. 106, §118(a), as Count III is
specifically a request for declaratory judgment under G.L. c.
260, §33. Plaintiffs also sought reconsideration of this Order,
which was Denied by Campo, J. The ruling on the Preliminary
Injunction completely disregards the SJC finding that
“maturity date” as specifically used within G.L. c. 260, §33,
that refers to the maturity date of the underlying Note. The
ruling also improperly elevates a First Circuit opinion over
the SJC pronouncement in Fitchberg. Clearly, where the SJC
determined that the legislative intent of the definition of
“maturity date” in G.L. c. 260, §33 referred to the underlying

22
Note, such examination of the Note was indeed “relevant”. 2
Moreover, in Fitchberg, there was nothing in the literal
“text” of G.L. c. 260, §33 that identified that the term
“maturity date” referred to the underlying debt. The SJC did
not merely issue its ruling from the literal “text” of the
statute in Fitchberg, but rather conducted statutory
construction.
Therefore, the Motion Judge’s findings regarding Fitchberg
being “inapposite” was made in error:
“G.L. c. 106, §3-118(a) addresses the statute of

limitations for enforcing a note obligation and is
therefore not relevant to the issue of a mortgages’
maturity date.” (ADD-015)
Clearly where the SJC found that “maturity date” in G.L. c.
260, §33 refers to the maturity date of the underlying Note,
such reference to G.L. c. 106, §3-118(a) would be “relevant”
to such examination as to whether the “maturity date” of a
Note could be “accelerated”.
Compare; Fitchberg at p. 250.
“In this appeal, we interpret the amended statute to

determine whether a mortgage stating only the term
or maturity date of the underlying debt is a
"mortgage in which the term or maturity date of the
mortgage is stated" under G. L. c. 260, § 33, and
whether the retroactive application of § 33 to
2
Such finding by the Motion Judge, Campo, J., also clearly
disregards the finding by the SJC in Eaton v. Fed. Nat’l
Mortgage Ass’n, 462 Mass 569, 577-579 (2012); that a mortgage
unconnected to an underlying debt obligation [that expired]
would represent “nothing of value”.
23
mortgages recorded before the effective date of the
amendment is constitutional.” Fitchberg, at 250
For the specific purpose of examining G.L. c. 260, §33,
it would appear that referencing G.L. c. 106, §3-118(a) was
relevant for support that the “maturity date” of Plaintiffs’
Note could be “accelerated”, under Plaintiffs’ specific claim
for their entitlement to relief under G.L. c. 260, §33.
Plaintiffs were also very clear in that they specifically
stated that they did not ‘rely’ upon the statute of
limitations under G.L. c. 106, §3-118(a) for “relief”, but
rather only referenced such statute for the purpose to show
that a “maturity date” of a note may be “accelerated”, [see
RA-537, 538, 541; and at oral argument at RA-583, 584]. Thus,
Plaintiffs’ specific claim for relief can be distinguished
from case findings such as Wells Fargo Bank, NA. v. Khurseed,
NO. 18-ADSP-91 NO, 2019 WL 1989189 (Mass. App. Div.- April
29, 2019);
“The Borrower urges that a mortgage is extinguished

and discharged when the statute of limitations for
enforcement of the underlying note expires. In this
case, the foreclosure was conducted on September 1,
2017, more than six years after the acceleration of
the note on March 18, 2011. However, a mortgage
continues to be enforceable as a proceeding in rem
against the security, and not the person based upon
the note. Citing Duplessis v. Wells Fargo Bank, N.A.
No. 16-P-1040 (1:28 Opinion-Mass App. Div. May 30
21017).”
Again, Plaintiffs made no such claim in reliance of the

24
six-year limitation under G.L. c. 106, §3-118(a) that the
Note was “extinguished”. 3 Indeed, at oral argument on the
Defendants Motion to Dismiss, Plaintiffs clarified to the
Superior Court Judge their position, which was that they did
not “rely” upon the statute of limitations under G.L. c. 106,
§3-118(a), but rather only made such citation solely to
establish the fact that the maturity date [or date that the
debt falls due] of a note could be “accelerated” or advanced
to become immediately due and payable, and to also establish
that the hearing Judge in Plaintiffs’ preliminary judgment
motion was in error by so stating; [see RA-583, 584]. 4
Plaintiffs further elaborated their reliance upon Ferreira v.
Yared, 32 Mass. App. Ct. 328 (1992); and handed this case up
However, even if they had, given the pronouncement by the

3
SJC in Eaton v. Fed Nat’l Mortgage Ass’n, 462 Mass 569, 577-
579 (2012); stating that a mortgage unconnected to a Note,
represents nothing of value, judicial findings under G.L. c.
260, §33 holding that where the Note was unenforceable, the
creditor could still seek an “in rem action”; have no
foundational basis under the historical ratio decidendi of
this Commonwealth. The only possible exception to this rule
would be after a bankruptcy discharge, but again such “in
rem” proceeding would be subject to the applicable repose
period set forth in G.L. c. 260, §33.
4
Further, the Court in Duplessis was in error, where they
failed to recognize that G.L. c. 260, §33, represents the
statute of limitations for that “in Rem Proceeding”, i.e. the
time period in which to “foreclose” upon the borrower’s
statutory right of redemption [G.L. c. 244, §18] under G.L.
c. 260, §33.
25
to the hearing Judge, as well as distinguished Hayden v. HSBC
Bank USA, N.A., 867 F.3d. 222 (1st Cir 2017), and also
alerted the Judge to the fact that undersigned had
subsequently and successfully had the ruling in Hayden
vacated. 5 Plaintiffs also identified that the sole basis for
the preliminary injunction judge finding that Plaintiffs were
not likely to succeed on Count III of their complaint was
solely premised upon Hayden, [RA-580 to RA-584].
B. The SJC Has Clearly Interpreted The Term “Maturity Date”

In G.L. c. 260, §33 To Mean “The Date Upon Which The
Underlying Debt Falls Due” That Triggers The 5 Year
Statute of Repose
The Legislature amended G.L. c. 260, §33 to create two
different limitations periods, 1) for any “mortgage in which
the term or maturity date of the mortgage is stated” [5
years], and the other for any “mortgage in which no term of
the mortgage is stated” [35 years], Deutsche Bank NT. Co, v.
Fitchberg Capital, LLC, 471 Mass, 248, 253 (2015).
“In 2006, the statute was amended to create two

different limitations periods, one for any "mortgage
in which the term or maturity date of the mortgage
is stated" and one for any "mortgage in which no
term of the mortgage is stated." G. L. c. 260, § 33,
as amended by St. 2006, c. 63, § 6. The limitations
period for stated term mortgages is five years after
expiration of the term or maturity date, and the
5 At the time of the drafting of the instant Opening Brief,

Hayden remains open and pending before a new Panel at the
First Circuit. Maybe Opposition counsel should begin to put
money aside for the beverage he promised to buy undersigned,
see RA-577, at Line 15
26
limitations period for nonstated term mortgages is
thirty-five years from the recording of the
mortgage.” Fitchberg at 252.
In making its ruling and examination of statute, the
SJC clearly did not limit its review to the literal “text” or
letters, words, and sentences that make up the paragraphs of
G.L. c. 260, §33. Instead, the SJC “applied well-settled
rules of statutory construction”, see Fitchberg, at 253.
Indeed, the SJC went on to explain:
“When the meaning of a statute is at issue, "[w]e

begin with the canon of statutory construction that
the primary source of insight into the intent of the
Legislature is the language of the statute."
International Fid. Ins. Co. v. Wilson, 387 Mass.
841, 853 (1983). The language is interpreted in
accordance with its plain meaning, and if the
language is clear and unambiguous, it is conclusive
as to the intent of the Legislature. Commissioner of
Correction v. Superior Ct. Dep't of the Trial Court,
446 Mass. 123, 124 (2006), citing Commonwealth v.
Clerk-Magistrate of the W. Roxbury Div. of the Dist.
Court Dep't, 439 Mass. 352, 355-356 (2003).”
The SJC applied the above referenced framework of
“well-settled statutory construction” in order to glean the
interpretation of the Legislative intent regarding the term
“maturity date” as expressed within the codified language of
G.L. c. 260, §33. Indeed, unlike the First Circuit “review of
the text” of G.L. c. 260, §33, the SJC specifically utilized
statutory construction to find that:
"Thus, the common meaning of the "maturity date of

the mortgage" is the date on which the underlying
27
debt is due because a mortgage derives its vitality
from the debt that it secures.” ..., it has long
been recognized that "a mortgage ultimately depends
on the underlying debt for its enforceability."
Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569,
576, 578 n.11 (2012), citing Crowley v. Adams, 226
Mass. 582, 585 (1917), Wolcott v. Winchester, 15
Gray 461 (1860), and Howe v. Wilder, 11 Gray 267,
269-270 (1858). By its nature, a mortgage does not
mature distinctly from the debts or obligations that
it secures. See Eaton, supra at 577-578 ("the basic
nature of a mortgage [is] security for an underlying
mortgage note"); Barnes v. Lee Sav. Bank, 340 Mass.
87, 90 (1959) ("The debt having been extinguished,
a bond or mortgage given as security for the debt is
necessarily discharged"). Accordingly, a mortgage is
a device for providing security for a loan, but it
does not generally have a binding effect that
survives its underlying obligation.” Fitchberg, at
254, 255.
One of the key findings made by the SJC above is
that, “by its nature, the mortgage does not mature
distinctly from the note or obligations that it secures”.
“Moreover, we noted in Eaton that the "essential

nature and purpose of a mortgage [i]s security for
a debt." Eaton, 462 Mass. at 584. As noted above,
because the scope of a mortgage is necessarily tied
to the reach of the underlying obligation,
considering the term or maturity date of the
underlying obligation to be the term or maturity
date of the mortgage comports with the common-law
understanding of the words "mortgage" and "note."
See Barnes, 340 Mass. at 90.” [see Fitchberg at
p.255].
Fitchberg also unsuccessfully argued that the statute
would only apply to loans that have been “satisfied” or “paid
off” to which the SJC responded:
“The obsolete mortgage statute created a limitations

period for bringing foreclosure actions against
28
mortgages. G. L. c. 260, § 33. Under the amendment,
the statute requires the holder of a mortgage to
foreclose on the mortgage, record a document
asserting nonsatisfaction, or record an extension
before the mortgage has been on record for thirty-
five years or before the secured debt is overdue by
five years (and the due date is stated on the face
of the mortgage). See St. 2006, c. 63, § 6. The
statute has never been interpreted to require
satisfaction of a mortgage's underlying obligations
before the mortgage becomes unenforceable.
Conversely, the statute provides a mortgagee options
to preserve its rights under a mortgage that has not
been satisfied by recording an acknowledgment or
affidavit asserting nonsatisfaction, or by recording
an extension of term. G. L. c. 260, § 33, as amended
by St. 2006, c. 63, § 6. Discharge under the obsolete
mortgage statute has never rested on satisfaction of
a mortgage's underlying obligations, and we decline
to adopt a contrary position today.” Fitchberg, at
257.
C. The Original Maturity Date of August 01, 2035 of

Plaintiffs’ Note Was Accelerated, And Thus Advanced To
Become Immediately Payable In Full On July 10, 2010
Indeed, in the few matters that have actually examined
the 2006 revised wording of G.L. c. 260, §33, these case law
decisions [all non-precedential] have based their entire
“examination” solely on the literal “text” of the statute
itself, making no referencing to “acceleration”. Case in
point, see Hayden v. HSBC Bank, USA, 867 F. 3d. 222 (1st Cir.
2017), a non-precedential federal holding. Prior to its
ruling being vacated, Hayden was held up as a purported
impenetrable barrier to advance any claim for relief
regarding the term “maturity date”. In fact, basically all of
the federal appeals, and many state appeal decisions merely

29
cite to, and/or mirror this currently vacated finding by the
First Circuit in Hayden; for instance, see Harry v.
Countrywide Home Loans, Inc., 902 F.3d 16, at n.2 (1st Cir.,
2018); Fortin v. FNMA, Ca. No. 17-40877-EDK, Adv. Pro. No.
18-4092, Junior v. Wells Fargo Bank, N.A., Civ No. 17-10460-
RGS, 2017 WL 1199768, at *2 (D. Mass), Harrington v. Cenlar,
Ca. No. 16-MISC-000013, 26 LCR [Land Court Reporter] 162,
(April 06, 2018).
In fact, these decisions, as well as the others not
cited here, all begin with the incorrect premise; that is to
refer to the “maturity date of the mortgage”.
As a first matter, the “maturity date” stated in the
Plaintiffs’ mortgage before this Court specifically
references the original [pre accelerated] maturity date of
the Note, not the mortgage itself, [RA-058]. The preceding is
an important distinction as the SJC identified that it is the
“maturity date” of the Note that controls the analysis under
G.L. c. 260, §33. Thus, prior to Plaintiffs default, and
breach, the original contract called for a “maturity date” of
the Note to be August 01, 2035. Defendants do not dispute,
but rather admit that Plaintiffs were in default, and in
breach of the terms of the original terms of the mortgage
contract in 2011 [in fact as of July 10, 2010].
The mortgage contract at paragraph 22 contains bargained

30
for terms between the “Lender” and Plaintiffs that
contemplated the possibility of Plaintiffs’ default and
breach of the original terms of mortgage contract. Paragraph
22 recites the actions by the Lender [some only optional]
that would transpire upon default and breach by Plaintiffs:
“Acceleration ; Remedies. Lender shall give notice to Borrower

prior to acceleration following Borrower's breach of any
covenant or agreement in this Security Instrument (but not
prior to acceleration under Section 18 unless Applicable Law
provides otherwise). The notice shall specify: (a) the default;
(b) the action required to cure the default; (c) a date, not
less than 30 days from the date the notice is given to Borrower,
by which the default must be cured; and acceleration and sale.
If the default is not cured on or before the date specified in
the notice, Lender at its option may require immediate payment
in full of all sums secured by this Security Instrument without
further· demand and may invoke the STATUTORY POWER OF SALE and
any other remedies permitted by Applicable Law. [RA-071, 072]
On June 10, 2010, the Plaintiffs received correspondence
that clearly mirrored the above language in paragraph 22 of
their mortgage contract, [RA-106]. This same correspondence
informed the Plaintiffs’ that if they did not cure their
default by July 10, 2010 [30 days from the letter], that
their “mortgage payments” would be “accelerated” and would
require immediate payment on full of all sums secured by the
Security Instrument. The common understanding of “mortgage
payments” refers to the underlying debt obligation, as one
does not make payments on the security instrument.
Plaintiffs’ never “cured” their default and have made no
further payments after June 10, 2010. Therefore, Plaintiffs

31
Note was accelerated on July 10, 2010, see also Plaintiffs’
complaint at ¶125 [RA-044].
As proof that their Note was accelerated, BNYM sought to
exercise the Power of Sale, and on July 12, 2012, Plaintiffs
were forced to file for protection under Chapter 7 of the
United States Bankruptcy Code, [RA-090, RA-093], see also
BNYM admission in the fact section of their Opposition to
Plaintiff’s Motion for Preliminary Injunction [RA-432, 2nd
para.]. BNYM also admits [as it must] that Plaintiffs’ have
been in default and breach since 2011 and were discharged
from personal liability on the Debt in October 2012. Thus,
BNYM cannot credibly deny that it “accelerated” Plaintiffs’
Note on July 10, 2010. In addition, where Plaintiffs’
bankruptcy stay only encompassed a very brief three (3) month
period of time, it had no effect upon the 5-year repose
period under Plaintiffs specific fact pattern.
Cases have interpreted the filing of the bankruptcy have
stated that this would invoke the “stay” to which a creditor
would be “estopped” from pursuing a judicial remedy of
foreclosure during the pendency of the bankruptcy (unless the
stay had been lifted), see In re LLC, 642 F.3d 263, 54
Bankr.Ct.Dec. 221 (1st Cir., 2011), Shamus Holdings, LLC v.
LBM Financial, LLC. In Shamus, the First Circuit found that
the “automatic stay” operated to toll the statute of

32
limitations, which under the specific facts of In re LLC,
precluded reaching the five-year statute of repose under G.L.
c. 260, §33. Plaintiffs here face no such impediment, as
their underlying Note was “accelerated” on July 10, 2010.
Plaintiffs did not file their bankruptcy petition until July
12, 2012, thus, at the time of bankruptcy filing, Plaintiffs
had already established 2 years under the five-year G.L. c.
260, §33 statute of repose. Plaintiffs’ bankruptcy was
discharged only 3 months later, on October 18, 2012, to which
the clock began to tick anew under G.L. c. 260, §33. Five
years later, Plaintiffs filed the instant complaint on
October 18, 2017. Thus, at the time of the filing of the
instant complaint, even with the consideration of the brief 3
month window in which the automatic stay would have been in
place, still establishes the fact that it has been
effectively seven (7) years since the July 10, 2010 BNYM
“acceleration” of Plaintiffs’ Note. Again, unlike previous
case decisions, Plaintiffs claim under Court III clearly does
not seek to “extinguish” the Note under 106, §3-118(a), but
rather Plaintiffs’ specific claim for relief was that BNYM’s
mortgage was obsolete, as it sought to foreclose well past
the 5 year repose period from the advanced “maturity date” of
July 10, 2010.
1. The Superior Court Judge Erred In Finding That

33
Plaintiffs’ Note Was “Accelerated” In 2015
Again, Plaintiffs specifically identified through
their claim for their entitlement to relief at Count III,
¶125 [RA-044] referencing Exhibit L attached to their
complaint of the June 10, 2010 correspondence they received;
that their Note had been “accelerated” as of July 10, 2010
[RA-106]. Again, the Defendant BNYM admits within the fact
section of its Opposition to Plaintiff’s Motion for
Preliminary Injunction, that BNYM sought to exercise the
Power of Sale “acceleration” remedy in 2012, as well as the
fact that Plaintiffs’ were discharged from their liability on
the Debt in October 2012 [RA-432, 2nd para.]. Therefore, BNYM
cannot credibly point to any other operative “acceleration”
outside its own intentional July 10, 2010 act.
The basis for the preceding is two-fold. First, where
BNYM elected to utilize the optional remedy of “acceleration”
under paragraph 22 of the mortgage on July 10, 2010, BNYM
declared that the original contract terms were breached, and
that the original terms, [including the original August 01,
2035 “maturity date”] were nullified. Indisputably, the July
10, 2010 “acceleration” of Plaintiffs’ Note was the condition
precedent necessary for BYNM to even exercise the optional
Power of Sale bargained for under paragraph 22 of the
mortgage. Second, there were no remaining obligation of

34
Plaintiffs’ that could have been “accelerated” by BNYM in
2015. Indeed, BNYM admits that Plaintiffs’ obligation was
discharged on October 18, 2012.
BYNM very clearly seeks to recover under an “in rem”
proceeding, as there clearly is no remaining debt obligation
of Plaintiffs for BNYM to collect upon, which subjects BNYM
to the strictures of G.L. c. 260, §33. Thus, Plaintiffs
theory of relief specifically relies upon the five-year
repose period from the accelerated “maturity date” for BNYM
to have exercised its “in rem” foreclosure proceeding under
G.L. c. 260, §33.
Further, In Fitchberg, the SJC clearly stated that it
was not required that the underlying debt be paid off or
satisfied in order to obtain relief under G.L. c. 260, §33:
“Accordingly, although the Legislature used the

words “after payoff” in the title of the Act, it is
clear from a review of the entire Act that the
Legislature did not intend to limit all changes in
the Act to affect only mortgages where the underlying
obligations had been paid or satisfied. Discharge
under the Obsolete Mortgage Statute has never rested
on satisfaction of a mortgages underlying
obligations...” Fitchberg, at 257.
Respectfully submitted, what the very few case decisions
examining the “acceleration” issue under G.L. c. 260, §33
have failed [other than the SJC in Fitchberg] to have
undertaken, was statutory construction, or to have even taken
the time to carefully consider the fact that the original

35
“maturity date” stated upon the face of the mortgage applies
only where there has been no default, or breach, of the
original terms of the Security Instrument contract. Indeed,
Plaintiffs repeatedly brought to the attention of the
Superior Court Judges in this matter [numerous times],
supportive appellate case law from this Commonwealth standing
for the premise that the act of acceleration advances the
[original] maturity date [of the note] to become immediately
due and payable, see Ferreira v. Yared, 32 Mass. App.Ct.328,
330 (1992)
“...the act of acceleration advances the maturity

of the debt; the debt becomes immediately due and
payable [citing]; Matter of LHD Realty Corp., 726
F.2d 327, 330 (7th Cir. 1984).”
Also see; Plaintiffs complaint at ¶131 [RA-045],;
Plaintiffs’ response to BNYM supplemental authority [RA-487,
488]; Plaintiffs’ Motion for Reconsideration of Denial of PI
[RA-506,507]; Plaintiffs Opposition to BNYM MSJ, [RA-537], as
well as at the hearing on BNYM’s Motion [RA-584]. 6
2. The Fourth Circuit Has Examined Acceleration Of An

Underlying Debt In The Context of A Statute of
Limitations Involving A Mortgage
6Therefore, case law as far back as 1992 placed BNYM on

Notice of what the effect of “acceleration” would be on the
maturity date of an underlying debt involving a mortgage, as
well as the fact that G.L. c. 260, §33 was amended in 2006.
Thus the current issue was known law to BNYM on July 10,
2010, yet BNYM, and its Massachusetts counsel, elected to sit
on BNYM’s rights.
36
Indeed, unlike the findings made under some of the
reported decisions involving the “acceleration” issue, stating
that no case law addresses this subject, in fact, in addition
to Yared, the Fourth Circuit has also opined in a very similar
fashion to Yared, where it was confronted with an issue of
statute of limitations involving a mortgage, and the
“acceleration” of the underlying debt; see Delebreau v. Bayview
Loan Servicing, LLC, 680 F.3d 412, 415 (4th Cir., 2012):
“As stated above, the deed of trust [mortgage]

provided that,[680 F.3d 416] upon acceleration, “
all sums secured by this Security Instrument and
accrued interest thereon shall at once become due
and payable.” (Emphases added.) Because no
additional payments were scheduled thereafter, the
acceleration date became “the due date of the last
scheduled payment of the agreement, within the
intendment of the statute of limitations.”
Therefore, the original schedule of payments, which
would have ended on June 1, 2030, no longer had any
effect under the terms of the deed of trust.”
The above language and fact pattern mirrors
paragraph 22 of Plaintiffs’ mortgage. Indeed, the
language in Plaintiffs’ Mortgage identifying the
“maturity date” of the debt as August 01, 2035 no longer
had any effect, as BNYM identified that the last scheduled
payment was n due on July 10, 2010, with no other
additional payments scheduled.
The Superior Court Judge was required to have gauged
the “plausibility of Plaintiffs’ claim for relief” under

37
a similar examination as the 4th Circuit above. In fact,
there was no examination undertaken, as Plaintiffs’
complaint was summarily dismissed under a two-page Motion
to Dismiss, and the entirety of two paragraphs of the
ruling devoted to the dismissal of Count III of Plaintiffs
complaint. Count III was dismissed solely on the basis of
the [incorrect] finding by the Superior Court Judge, with
no analysis, that the “acceleration” of Plaintiffs’ Note
occurred in 2015, and that the “maturity date” stated in
the mortgage was August 01, 2035, and therefore the
Plaintiffs mortgage would not be Obsolete under G.L. c.
260, §33 until 2040. 7 Again, the original maturity date
of August 01, 2035 no longer had any meaning subsequent
to BNYM accelerating the schedule of payment to become
all due at once on July 10, 2010, see Delebreau supra.
Again, the finding by the Massachusetts Appeals
Court in Yared provided additional support of the
plausibility of Plaintiffs claim for relief I this regard
under Count III. Yet, the Superior Court Judge apparently
completely disregarded any consideration of this ruling
and/or this theory of relief.
7 Again, Plaintiffs provided the Judge with a copy of the

Ferreira v. Yared decision at oral argument on BNYM’s summary
judgment Motion
38
3. The SJC In Fitchberg Was Clear In That A Mortgage
Does Not Mature Distinctly From The Underlying
Debt It Secures
In Delebreau v. Bayview Loan Servicing, LLC, 680
F.3d. 412, 416 (4th Cir 2012), Delebreau took a very
similar position as advanced by BNYM and accepted by the
Superior Court Judge here. Delebreaus’ position before
the Fourth Circuit was discussed by the Court
“By contrast, the Delebreaus' suggested

interpretation implausibly would result in the
claims expiring on June 1, 2031, more than two
decades after the Delebreaus' default. And the fact
that the Delebreaus initiated their claims years
earlier does not strengthen their legal position,
because that position relies on the loan maturity
date, plus the one-year period afforded under the
statute of limitations, as the claims' expiration
date irrespective whether the claims were filed
years earlier.[680 F.3d 417] Delebreaus' claims were
barred under the one year period imposed by the
statute of limitations, which began to run from the
acceleration date set by Bayview in accordance with
the terms of the deed of trust“
Delebreau v. Bayview Loan Servicing, LLC, 680 F.3d.
412, 416 (4th Cir 2012)
Indeed, through statutory construction as identified by
the SJC in Fitchberg, the “legislative intent” under G.L. c.
260, §33 was that the term “maturity date” [when stated]
specifically refers to the underlying debt obligation. The SJC
specifically found that a “mortgage does not mature distinctly
from the debt that it secures”, Fitchberg at 254; and that
“..a mortgage is a device for providing security for a loan,
but it does not generally have a binding effect that that

39
survives its underlying obligation, citing Piea Realty Co. v.
Papuznski, 342 Mass. 240, 246 (1961_ quoting Pineo v. White,
320 Mass. 487, 489 (1946).
Therefore, where BNYM undertook the optional election to
“accelerate” Plaintiffs’ Note, the stated “maturity date” [as
that term was defined by the SJC within G.L. c. 260, §33] of
August 01, 2035 was clearly advanced to become immediately due
and payable at the time of the July 10, 2010 “acceleration”,
see Ferreira v. Yared, 32 Mass. App. Ct. 328, 330 (1992).
In a recent Land Court decision, LaRace v. Wells Fargo Bank,
N.A., et. al., 18 MISC 000327 (RPS) [pending possible
reconsideration], the trial court Judge cited reliance to the
underlying Land Court trial court ruling in Deutsche Bank, N.T.Co.
v. Fitchberg Capital, LLC, 21 LCR 559, 563 (Mass. Land Ct. 2013)
(Foster, J.), stating the following:
“The idea of forcing a mortgage holder or others to

search for off-record sources of the maturity date
of the mortgage, as urged by the LaRaces, was
rejected in the decision affirmed by the SJC in
Deutsche Bank. Basing a maturity date, for statute
oflimitations purposes, only on a date that is
clearly set forth on the face of the mortgage itself,
instead of forcing the mortgage holder to search for
this information outside the record title,creates "a
greater level of certainty and consistency for
members of the public." Deutsche Bank Nat'l Trust
Co. v. Fitchburg Capital, LLC, 21 LCR 559, 563 (Mass.
Land Ct. 2013) (Foster, J.), affd Deutsche Bankv.
Fitchburg Capital, LLC, supra, 471 Mass. 248.
Furthermore, the requirement that the term be stated
on the face of the mortgage "ensures that the
enforcement period is clear from the record,
40
affording the discharge process greater efficiency."
Id.” Larace at p. 17
The above finding only considers where the mortgage
remains on record and the mortgagee does not elect to
“accelerate” the maturity date of the underlying debt, thus,
the maturity date of the note referenced upon the face of the
mortgage remains unambiguous and clear on the record for
purposes of G.L. c. 260, §33. However, “acceleration” of the
underlying debt was never raised as an issue in Fitchberg at
the trial court or appellate level, and therefore was never
considered under the Fitchberg holdings.
This appeal involves examining this open issue under G.L.
c. 260, §33, where the SJC in Fitchberg was definitive,; i.e.
that it is the “date to when the debt falls due” which is to
be applied as the marking time for the 5-year repose period
under G.L c. 260, §33. It is indisputable here, that “the date
when the debt falls due” is no longer August 01, 2035, as no
further payments are scheduled by Plaintiffs to the [purported]
mortgagee BNYM. Under the acceleration Notice, Plaintiffs’
final payment [in full] was indisputably scheduled, and
immediately due in full on July 10, 2010,. Thus, BNYM is now
attempting to enforce the mortgage, which is clearly past five
years overdue, [past the “maturity date” of July 10, 2010].
Indeed, referencing Delebreau above, this makes perfect

41
sense. Thus, where the mortgagee optionally elects to
“accelerate” the underlying debt, that maturity date no longer
contractually remains the original maturity date [August 01,
2035], as the act of “acceleration” advances the maturity date
to become immediately due and payable [July 10, 2010], “the
date when the debt falls due”, see Ferreira v. Yared.
Further, respectfully submitted, such analysis in LaRace
is flawed, where Fitchberg never considered the “mortgagee’s”
act of “acceleration” of the “date when the debt falls due”.
Unlike the position taken by the trial Court in Fitchberg (and
LaRace), after “acceleration” the “maturity date” on record
title upon the registry of deeds continues to be unambiguous
and certain. The preceding is supported by the fact that
“acceleration” indisputably causes numerous documents to be
recorded by the “mortgagee” upon the record title of the
borrower, which indisputably provides clear record evidence
that the underlying debt has been accelerated, see G.L. c.
244, §35C(b)
“Prior to publishing a notice of foreclosure

auction 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
cred, 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 ths affidavit with the registry of
deeds for the county or district to where the land
lies.”
42
Therefore, again respectfully submitted, reliance upon
the trial court language in Fitchberg is misplaced, as the
trial and appellate courts in that matter were never presented
with the precise issue of “acceleration” of the “maturity date”
of the underlying debt, within the specific context of G.L. c.
260, §33.
Thus, by accepting the Superior Court’s position in this
matter, as urged by BNYM [and indeed by the entirety of the
title and financial industry], would clearly frustrate the
statutory legislative intent under the revised 2006 language
enacted under G.L. c. 260, §33. Indeed, the Defendants urged,
and the Superior Court accepted whole cloth, the position that
while the Plaintiffs Note was “accelerated” to July 10, 2010,,
its “maturity date” of the mortgage would somehow remain to
be the original date of August 01, 2035, but see Fitchberg,
“By its nature a Mortgage does not mature distinctly from the
debts or obligations that it secures”, Fitchberg at p. 254. 8
Again, regarding the act of “acceleration”, the 4th
Circuit examined the Delebreau claim premised upon the very
8 Again, under the bargained for contractual language

contained within Plaintiffs’ security instrument mortgage
contract, the “mortgagee’s” election to “accelerate” the
underlying debt was only an “option”, and by intentionally
electing to “accelerate” the underlying debt, BNYM
intentionally advanced the underlying’s debt “maturity date”
[the date when Plaintiffs’ debt fell due] to July 10, 2010.
43
same underpinning of the Superior Court Judge here:
“By contrast, the Delebreaus' suggested

interpretation implausibly would result in the
claims expiring on June 1, 2031, more than two
decades after the Delebreaus' default”. Delebreau,
680 F.3d. 412,at 416
Again, like Delebreau, such interpretation of statute by
the Superior Court Judge in this matter clearly frustrates the
purpose and Legislative intent of G.L. c. 260, §33, which is
to remove stagnant encumbrances upon title. Paradoxically, the
holding of the trial court ruling on appeal before this Panel
actually stands for the proposition of extending the repose
period after the maturity date that an “obsolete mortgage”
could remain on title.
BNYM could have very easily utilized the savings clause
under G.L. c. 260, §33 by filing an extension or foreclosing
upon Plaintiffs mortgage within the five-year repose period of
G.L. c. 250, §33, but BNYM did not do so. 9 The failure to file
an extension or foreclose within the 5 year repose period now
subjects BNYM to the strict liability of the Obsolete Mortgage
Statute; for examples of the strict liability automatic
operation of statute; see: Harvard 45 Assocs. LLC v. Allied
Props. & Mortg. Inc. (Mass. App., 2011); Housman v. Lbm
Financial Llc., 80 Mass.App.Ct. 213, 952 N.E.2d 418 (Mass.
9 BNYM may possibly be left only with recourse against its

Massachusetts counsel for such failure.
44
App., 2011); Overlook Props., LLC v. Braintree Co-Operative
Bank, 87 N.E.3d 1201(Table) (Mass. App., 2017).
When undertaking statutory construction, [which was
Never undertaken by the tral court Judge with resect to
this particular fact pattern], the case law decisions
have stated as follows:
“..the legislature's words are generally deemed to

carry their plain and ordinary meaning. Boivin v.
Black, 225 F.3d 36, 40 (1st Cir.2000); Cohen v. Comm'r
of Div. of Med. Assist., 423 Mass. 399, 668 N.E.2d
769, 774 (1996). When that meaning produces a
plausible result, the inquiry typically ends.
Plumley v. S. Container, Inc., 303 F.3d 364, 369
(1st Cir.2002); Cohen, 668 N.E.2d at 774. Even so,
plain meaning is not invariably the be all and end
all of statutory construction. If a plain-meaning
interpretation produces outcomes “that are either
absurd or antithetical to [the legislature's]
discernible intent,” an inquiring court must
continue its search. Stornawaye Fin. Corp. v. Hill
(In re Hill ), 562 F.3d 29, 32 (1st Cir.2009); accord
Sullivan, 758 N.E.2d at 115.” In re Llc, 642 F.3d
263, 54 Bankr.Ct.Dec. 221, 265 (1st Cir., 2011)
Indeed, the Massachusetts Appeals Court has also
discussed the effect of the “broad sweep” of a repose period
under Legislative enacted statutory language:
“A statute of repose is a product of the Legislature.

Its scope sweeps broader than any interests of
judicial economy and it is not within our power to
rewrite such legislation. Cf. Fidler v. E.M. Parker
Co., 394 Mass. 534, 548 (1985) (statute of repose
governing medical malpractice actions). The
Legislature is not obliged to create statutory
classifications “with surgical precision,” Opinion
of the Justices, 408 Mass. 1215, 1224 (1990), for
“[i]t is enough that there is an evil at hand for
correction, and that it might be thought that the
45
particular legislative measure was a rational way to
correct it.” Zeller v. Cantu, 395 Mass. 76, 84
(1985), quoting from Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 487–489 (1955). See
Prudential Ins. Co. of America v. Boston, 369 Mass.
542, 547 (1976) (“function of the court” is to
construe statute as it is written “and an event or
contingency for which no provision is made does not
justify” court to rewrite statute's terms or
conditions to meet such event or contingency, as may
arise).” Ry-Co Int'l, Ltd. v. Voniderstein, 89
Mass.App.Ct. 1130, 54 N.E.3d 606(Table) (1:28 Mass.
App., 2016)
Given the SJC interpretive guidance regarding the
Legislative intent regarding the legislative usage, definition
and meaning of the term “maturity date” as written by the
Legislature under revised G.L. c. 260, §33, and the repose
period set by the Legislature, a mere “plain meaning”
interpretation of “maturity date” [as undertaken by the
Superior Court Judge, produces a result that is antithetical
to the intent of the Legislature, as G.L. c. 260, §33 was
interpreted by the SJC in Fitchberg. Again such literal “plain-
meaning” reading of G.L. c. 260, §33 creates an inherent
conflict with the Legislative intent of said statute. 10 It is
10As stated above, the claim that one would have to “look
beyond the record” to determine that the underlying Note has
been accelerated is inaccurate where statutory and regulatory
requirements require filing documents upn the Registry of
Deeds associated with such default and acceleration by the
“mortgagee”, e.g. the Affidavit required under G.L. c. 24,
§35C(b). Thus, where the Note remains “unaccelerated” the
date listed upon the face of the mortgage recorded upon the
Registry of Deeds controls, however once the “mortgagee”
elects to exercise the optional contractual remedy of
46
indisputable that such original contract “maturity date”
[August 01, 2035] is subject to paragraph 22 [“Acceleration”
Remedies] of the bargained for terms within Plaintiffs’
mortgage contract. Thus, where BNYM declared Plaintiffs’ Note
accelerated on July 10, 2010, this became the “maturity date”
for purposes of G.L. c. 260, §33, where BNYM demanded full
payment of all amounts due upon the debt, with no further
scheduled payments thereon, [see Delebreau Supra]. It is
indisputable that the Notices of sale, both published and
provided to Plaintiffs [as required under G.L. c. 244, §14]
are cearly more than five years beyond the “due date” of July
10, 2010. BNYM has not filed any extension as required under
G.L. c. 260, §33, and therefore is subject to the strict
operation of statute, leaving Plaintiffs’ mortgage obsolete,
and void as a matter of law.
Therefore, Plaintiffs not only set out cogent and
plausible claims for relief under Count III of their complaint,
but also established their right to a decision in their favor.
Plaintiffs’ complaint clearly met the minimal bar of Iannachino
“acceleration”, the “acceleration date” then becomes the

“maturity date” for purposes of G.L. c. 260, §33, and
additional recorded documents upon the Registry will alert
interested parties that the original “maturity date” has been
“accelerated”
47
v. Ford Motor Co., 451 Mass. 623 (2008), and at a minimum Count
III was dismissed in error.
Plaintiffs herein respectfully request that this Panel
make the preceding finding and remand this matter back to the
Worcester County Superior Court with instructions. Where the
Suuperior Court Judge considered documents beyond the
pleadings, this matter should be converted to one under MRCP,
R. 56, and Plaintiffs’ rely upon the last sentence of MRCP,
R.56(c) to allow entry of Judgment in Plaintiffs’ favor on
Count III of their verified complaint.
D. Plaintiffs Are Entitled To Relief Under Count I, Where

BNYM Possessed No Right To Enforce An Obsolete Mortgage
Under G.L. c. 244, §14
As discussed above, BNYM accelerated the maturity date of
Plaintiffs’ Note on July 10, 2010. The effect of the
“acceleration” was for BNYM to demand that the August 01, 2035
“maturity date” be terminated and demanded all outstanding
amounts due on the Note to become immediately due and payable
as of July 10, 2010, with no additional scheduled payments
under the original term of the contract. BNYM thereafter
intentionally elected to exercise its optional remedy under
the Acceleration Remedies under Paragraph 22 of the bargained
for terms of the mortgage contract by invoking the Power of
Sale.
48
Therefore, the Plaintiffs mortgage became Obsolete as an
operation of law on October 10, 2015 [allowing for the stay
under Plaintiffs’ bankruptcy that spanned 3 months (July-
October 2012)].
Because Plaintiffs mortgage was terminated as an
operation of law under G.L. c. 260, §33, BNYM was no longer a
proper statutory party to have claimed the right to terminate
Plaintiffs’ statutory right of redemption under G.L. c. 244,
§14. The result of the preceding is the purported auction sale
of Plaintiffs’ premises held by BNYM is void. Plaintiffs herein
respectfully request that this Panel make the preceding finding
and remand this matter back to the Worcester County Superior
Court with instructions. Where the Suuperior Court Judge
considered documents beyond the pleadings, this matter should
be converted to one under MRCP, R. 56, and Plaintiffs’ rely
upon the last sentence of MRCP, R.56(c) to allow entry of
Judgment in Plaintiffs’ favor on Count I of their verified
complaint. 11
Although Plaintiffs counsel was ‘forced’ to withdraw argument

11
related to the pooling and servicing agreement in this matter,

under veiled threats from opposing counsel, undersigned
continues to believe that such argument has not been
‘foreclosed’. Although not pertinent to the instant appeal,
the majority of decisions involving this issue are 12(b)(6)
rulings which only examined the sufficiency of those particular
borrower’s pleadings. While these decisions represent a
‘decision on the merits’, they only opine on the legal
sufficiency of the individual litigants’ claim for their
49
VI. CONCLUSION
For all of the above discussion, argumentation, and cited
ratio decidendi herein, the Plaintiff respectfully requests that
this court remand this matter for further proceedings before the
Worcester County Superior Court
Respectfully Submitted
Plaintiffs
By their Attorney
Glenn F. Russell, Jr.

& Associates, P.C.
38 Rock Street, Suite 12
Fall River, MA 02720
Phone: (508) 324-4545
Fax:(508) 938-0244
Email: russ45esq@gmail.com
entitlement for relief before that specific tribunal. The

continued ‘blanket application’ of 12(b)(6) rulings on this
issue to every fact pattern would require that every assignment
of mortgage, every mortgage, note and surrounding fact pattern
be identical to each other, as well as finding that every
single borrower advances precisely the same claim for relief,
which is impossible, see undersigned’s statement to the
Superior Court Judge at the hearing on Defendants Motions at
RA-591, Lines 13-25. For reference re “standing” to ‘challenge’
a mortgage assignment, see Sullivan v. Kondaur Capital, 85
Mass App. Ct. 202, 205-206; “It is of course true that a
nonparty who does not benefit from a contract generally is
without standing to enforce rights under it, quoting Cumis
Ins. Soc., Inc. v. BJ’s Wholesale, 455 Mass. 458, 464 (2009).
However, that is not the position the Sullivans occupy, since
they are not seeking to enforce any rights under either
assignment. Instead by their complaint they seek to challenge
Kondaur’s claim of title to the property the Sullivans formerly
owned, which derives from the foreclosure of the mortgage that
Kondaur claims to have acquired by virtue of the first and
second assignments.”
50
RULE 16(k) STATEMENT
I , Glenn F. Russell, Jr., hereby certify that this

brief complies with the rules of court that pertain to the
filing of briefs, including, but not limited to: Rule
16(a)(6) (pertinent findings or memorandum of decision);
Mass. R. App. P. 16(e) (references to the record); Mass. R.
App. P. 16(f) (reproduction of statutes, rules, regulations);
Mass. R. App. P. 16(h)(length of briefs); Mass. R. App. P. 18
(appendix to the briefs); and Mass. R. App. P. 20 (form of
briefs, appendices, and other papers). This Brief complies
with the typeface requirements of Mass. R. App. P. 16(k)
because it has been prepared in forty-four pages using a
proportionally spaced monospaced typeface, utilizing Word
version in 12 times Courier New style
.
50
CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr., hereby certify that on this 23rd
day of May 2019, I served one copy of the Appellants’ Opening
Brief and one volume of the Record Appendix, by Email, and / or
FedEx or USPS, postage prepaid, upon the following counsel of
record:
Robert M. Mendillo
Harmon Law Offices, P.C.

150 California Street
Newton, MA 02458
John McCann
Schectman, Halperin & Savage, LLC
1080 Main Street
Pawtucket, RI 02806
------------------------------------------------
ADDENDUM
-------------------------------------------
TABLE OF CONTENTS
1. September 12, 2018 12(b)(6) Decision BNYM..........ADD-001
2. September 12, 2018, 12(b)(6)Decision BOA...........ADD-006
3. November 13, 2017 P/I Decision and Order...........ADD-011
4. G.L. c. 106, § 3-118...............................ADD-017
5. G.L. c. 244 § 14...................................ADD-020
6. G.L. c. 260 § 33...................................ADD-019


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Massachusetts Appeals Court Case: 2019-P-0179 Filed: 5/23/2019 11:15 AM

STEPHEN D. NIMS & another

THE BANK OF NEW YORK MELLON, & another

ON APPEAL FROM A JUDGMENT FROM THE

APPELLANTS’ OPENING BRIEF

Glenn F. Russell, Jr. (BBO# 656914)

Dated: May 17, 2019

I. STATEMENT OF THE ISSUES PRESENTED..................4

II. STATEMENT OF THE CASE..............................4

III. STATEMENT OF FACTS.................................6

IV. SUMMARY OF THE ARGUMENT...........................16

A. The Superior Court Judge Abused Her

B. The SJC Has Clearly Interpreted The Term

C. The Original “Maturity Date” of August 01, 2035

1. The Superior Court Judge Erred In Finding

2. The Fourth Circuit Has Examined Acceleration

3. The SJC In Fitchberg Was Clear In That A

D. Plaintiffs Are Entitled To Relief Under

STATEMENT CERTIFICATE OF SERVICE........................51

Deutsche Bank N.T. Co. v. Fitchberg Capital, LLC

Duplessis v. Wells Fargo Bank, N.A.

Eaton v. Fed. Nat’l Mortg. Ass’n

Harvard 45 Assoc., LLC v. Allied Props. & Mortg. Inc.

Housman v. LBM Financial, Inc.

Iannachino v. Ford Motor Co.,

Norfolk & Dedham Mutual Fire Insurance Co. v.

Overlook Props. LLC v. Braintree Co-op Bank

Ry-Co Int’l, LTD v. Voniderstein,

Sullivan v. Kondaur Capital Corp,

Wells Fargo Bank, N.A. v. Khurseed

Delebreau v. Bayview Loan Servicing, LLC

Fortin v. Fannie Mae

Harry v. Countrywide Home Loans, Inc.

Hayden v. HSBC Bank USA, N.A.,

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

G.L. c. 106, §3-118(a)..................................passim

G.L. c. 244, §14........................................passim

G.L. c. 260, §33........................................passim

B. Whether The Superior Court Judge Abused Her Discretion In

II. STATEMENT OF THE CASE:

On October 18, 2017, Plaintiffs’ filed An Emergency

Motion for Preliminary Injunction, Memorandum of Law In

Support[RA-013], and an underlying verified complaint with

attached Exhibits thereto [RA-031]. On October 18, 2017, the

Hon. Campo, J., made endorsement that Short Order of Notice

should issue and that it shall be returnable at the October

23, 2017 hearing on Plaintiffs’ Motion for Preliminary

Injunction [RA-009]. On October 23, 2017, the hearing was

rescheduled at the joint request of the parties. On November

Opposition to Plaintiffs’ Motion for Preliminary Injunction

[RA-430]. On November 11, 2017, hearing was held as scheduled

on Plaintiffs’ Motion for Preliminary Injunction. On November

12, 2017, counsel for Bank of New York Mellon as Trustee

caused correspondence to be sent directly to the Hon. Campo,

J., CITING TO 2 CASE LAW DECISIONS; Hayden v. HSBC Bank, USA,

WL 3319269 (Mass. Land Court 2017) [RA-475]. On November 13,

2017, Plaintiffs filed a Response TO THE CASE CITATIONS

SUPPLIED BY COUNSEL FOR Bank of New York Mellon as Trustee

On November 13, 2017, the Hon. Campo, J. Denied

Plaintiffs’ Motion for Preliminary Injunction, and issued a

written Order memorializing the basis for such Denial [RA-

492] On November 17, 2017, Plaintiffs’ filed a Motion for

Reconsideration of the Order Denying Plaintiffs’ Motion for