Case Against US Bnk-Bollingbrieffinal

COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS
NO. 2015-P-1259
U.S. BANK, N.A., AS TRUSTEE FOR

RASC 2006KS9
Plaintiff-Appellant
V.
WENDY BOLLING
Defendant - Appellee
ON APPEAL FROM A FINAL JUDGMENT OF
THE WESTERN HOUSING COURT
APPELLEE’S 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
2
russ45esq@gmail.com
Dated: May 24, 2016

TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED.........1
II. STATEMENT OF THE

CASE...........................................4
III. STATEMENT OF
FACTS...........................................5
IV. SUMMARY OF THE

ARGUMENT......................................16
V. STANDARD OF
REVIEW........................................19
VI.
ARGUMENT......................................19
VI. CONCLUSION......................................50
RULE 16(k)..........................................52
STATEMENT CERTIFICATE OF SERVICE....................53
ADDENDUM............................................54
2
3
TABLE OF AUTHORITIES
Massachusetts Cases 
Arnold v. Reed, 162 Mass. 438 , 440 (1894) ..........................27
Aurora Loans Services, LLC v. Mendenhall ...............................48
Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C.,
et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012) .............passim
Bank of New York Mellon Corp, as Trustee v. Wain, 11
N.E.3d. 633.................................................................................................47
Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011) .......27
Bongaards v. Millen, 440 Mass. 10 , 15 (2003) ...................27
Boskowitz v Held, 15 App Div 306, 310-311.............................57
Boulanger v. Wells Fargo Bank, N.A., 14-P-1438.................44
Comm'r of Banks v. Tremont Trust Co., 259 Mass. 162,
179–80, 156 N.E. 7, 14–15 (1927) ..............................................41
Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc.,
455 Mass. 458, 918 N.E.2d 36, 44 (2009)..............................23
Deutsche Bank as Trustee v. Collins, et al, Worcester
Housing Court, 1185-SP-5095 (July 18, 2013) ....................49
Eaton v. Fed. Nat’l Mortgage Ass’n, 462 Mass 569
(2012).......................................................................................................21, 31
Eaton, 969 N.E.2d at 1127 ...................................................................23
Faneuil Investors Group, Ltd. Partnership v. Selectmen
of Dennis, 458 Mass. 1 , 6 (2010) ............................................24
Hoyt v. BAC Home Loans ..........................................................................44
HSBC as Trustee v. Howe, et al .......................................................48
HSBC as Trustee v. Howe, et al, Malden Court District,
No. 1350-SU-0237 (Sept. 18, 2014) ............................................51
Koufos v. U.S. Bank, N.A. .............................................................36, 42
Koufos v. U.S. Bank, N.A., 415 B.R. 8, 22 (Bankr. D.
Mass. 2009).................................................................................................42
Nickerson v. Loud, 115 Mass. 94 , 97-98 (1874).................27
Norfolk & Dedham Mut.Fire Ins. Co. v. Morrison, --
N.E.2d --, 2010 WL 1345156, at *3 (Mass. Apr. 8,
2010) ...............................................................................................................21
S & H Petroleum Corp. v. Register of Deeds for the
County of Bristol, 46 Mass. App. Ct. 535 , 537 (1999)
...........................................................................................................................27
Saint Patrick's Religious, Educ. & Charitable Ass'n v.
Hale, 227 Mass. 175 , 177 (1917) ..............................................24
Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009)....25, 43, 44,
45
Springer v. Deutsche Bank National Trust Co.......................46
Sullivan v. Kondaur Capital, 85 Mass.App.Ct. 202, 206
n. 8, 7 N.E.3d 1113, 1116, n. 8 (2014) ................................47
U.S. BANK NAT’L ASS’N v. IBANEZ.....................................................12
3
4
U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass. 637 (2011)

....................................................................................................................passim
U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) 23
U.S. Bank National Association v. Schumacher, 467
Mass. 421 (2014).....................................................................................15
U.S. Bank v. Hoynoski, Western Housing Court, No. 11-
SP-3965 (Nov. 8, 2012) ......................................................................49
U.S. Bank v. Wright, et al, Quincy District Court, No.
1156-SU-1214 (Oct. 21, 2013) ........................................................48
U.S. National Association v. Ibanez, 458 Mass. at 650-
51 ......................................................................................................................48
Wenzel v. Sand Canyon Corp., 841 F.Supp.2d 463, 477-78
(D.Mass.2012) ............................................................................................22
Other Cases 
Aronoff v. Albanese, 446 N.Y.S.2d 368, 370 (App. Div.
1982) ...............................................................................................................54
Anderson v. Mather, 44 N.Y. 249 (N.Y.1870) ..........................54
Dernier v. Mortgage Network, Inc. 87 A.3d 465 (Vt.
2013) ...................................................................................................52, 53, 58
Dye v Lincoln Rochester Trust Co., 31 NY2d 1012) ............57
Kirsch v. Tozier 143 NY 390 (1894)..............................................51
Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375 (1894) .......51
Feldman v. Torres, 939 N.Y.S.2d 221, 224 (App. Term
2011) ...................................................................................................................56
Dye v. Lewis, 67 Misc.2d 426, 324 N.Y.S.2d 172, 175
(N.Y.Sup.Ct.1971)………………………………………………………54
Greagan v. Buchanan, 15 Misc. 580, 37 N.Y.S. 83, 85
(N.Y.Sup.Ct. 1896) ....................................................................................55
Hine v. Huntington, 118 A.D. 585, 103 N.Y.S. 535, 540
(1907).............................................................................................................55
In re Application of Dana, 119 Misc.2d 815, 465
N.Y.S.2d 102, 105 (N.Y.Sup.Ct. 1982).........................................54
McPherson v. Rollins 107 NY 316 (1887) ....................................51
Mooney v. Madden, 193 A.D.2d 933, 597 N.Y.S.2d 775,
776 (1993) ...................................................................................................57
National Black Theatre Workshop Inc. v. Nubian
Properties LLC, 89 A.D.3d 518, 932 N.Y.S.2d 466, 467
(2011).............................................................................................................54
Conservative Party of the State of New York v. New
York State Board of Elections, 170 Misc.2d 885, 652
N.Y.S.2d 463, 465 (N.Y.Sup.Ct.1996) ...........................................54
National Sur. Co. v Manhattan Mtge. Co., 185 App Div
733, 736-737 ..................................................................................................57
Smith v. Kidd 68 NY 130 (1877) .......................................................51
4
5
Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S. 301, 304

(1912).............................................................................................................55
Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL
1831799 (N.Y. Sup. Ct. April 29, 2013) ................................50
Statutes 
G. L. c. 183, § 3 ......................................................................................24
G. L. c. 183, § 4 ......................................................................................27
G. L. c. 203, §§ 2-3 ...............................................................................27
G. L. c. 240, § 1 ......................................................................................27
G.L. c. 183, §21.............................................................................11, 23, 32
G.L. c. 244, § 35A ........................................................................13, 14, 15
G.L. c. 244, §14..................................................................................passim
Mass. R. Civ. P., R. 56 ........................................................................21
Other Authorities 
6A C.J.S. Assignments § 132 (2012)..............................................23
Culhane v. Aurora Loan Servcs of Neb., 708 F.3d. 282,
291 (2013) .................................................................................35, 39, 41, 44
Federal Cases
Almond v. Capital Props., Inc., 212 F.3d 20, 24 & n. 4
(1st Cir.2000)..........................................................................................22
Butler v. Deutsche Bank Trust co. Americas, 748 F.3d.
28, 37 (1st cir. 2014) .................................................................passim
Culhane v. Aurora Laon Services of Nebraska, 708 F.
3d. 282, 290 (2013)........................................................................23, 28
Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d 449,
453-54 (D.Mass.2008) ...........................................................................22
In re Birnbaum, 117 A.D.2d 409, 503 N.Y.S.2d 451, 456
(1986).............................................................................................................57
In re Gifty Samuels, 415 B.R. 8, 22 (B.A.P. 2009)...36, 42,
43
In re Pepi, 268 A.D.2d 477, 701 N.Y.S.2d 915, 916
(2000).............................................................................................................57
In re Sheedy, 801 F.3d 12 (1st Cir. 2015).........................38, 39
Livonia Property Holdings, 717 F.Supp.2d at 735 ..............54
Oum, 842 F.Supp.2d at 413 ...................................................................22
Rajamin v. Deutsche Bank Nat. Trust Co., 757 F. 3d 79
(2nd Cir. 2014) .................................................................................52, 59
Royal Bank of Canada v. Trentham Corp., 665 F.2d 515,
516 (5th Cir. 1981)..............................................................................50
Valerio v. U.S. Bank, 716 F.Supp.2d 124 (2010).................21
Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 7-14
(1st Cir. 2014) ................................................................................passim
5
6
Wilson v. HSBC Mortgage Servcs., Inc., 744 F.3d, 1, 10

(1st. Cir. 2014).......................................................................................35
Woods v. Wells Fargo Bank, N.A., 733 F.3d.349, 354
(1st. Cir. 2013).....................................................................35, 41, 42, 44
Constitutional Provisions 
and XII ..............................................................................................................29
articles I .......................................................................................................29
X 29
Other Statutes 
Fed. R. Civ. P., R. 12(b)(6) ............................................................40
28 U.S.C. § 1652.........................................................................................50
New York law, NY CLS EPTL §7-2.4 ............................................49, 50
New York state law, N.Y. Est. Powers & Trusts Law § 7-
2.4 .............................................................................................................passim
St. Uses and Trusts, 1 Rev. St. §65..........................................52
6
7
I. STATEMENT OF ISSUES
A. WHERE THE PLAINTIFF TRUSTEE [ON BEHALF OF THE

PLAINTIFF TRUST AND OR ITS BENEFICIAL
CERTIFICATEHOLDERS], CLAIMED SUPERIOR TITLE FOR
POSSESSION THROUGH TITLE DERIVED FROM AN EXERCISE
OF G.L. c. 244, §14, THERE CAN BE NO DISPUTE THAT
PLAINTIFF BORE THE BURDEN TO DEMONSTRATE THE
VALIDITY OF THE FORECLOSURE SALE ON WHICH ITS
PURPORTED CLAIM TO SUPERIOR TITLE RESTED
1. To Enforce The Power of Sale Under G.L. c. 244,

§14, G.L. c. 183, §21 Requires 1) That The
Terms of The Mortgage Contract Be Followed
Strictly; 2) That All Mandatory Statutory
Condition Precedents and Formalities Be
Followed Strictly
B. WHERE THE DEFENDANT IDENTIFIES ITSELF AS A

“TRUSTEE” THAT PURPORTS TO ACT ON BEHALF OF A OF
THE DEFENDANT TRUST, IT IS INDISPUTABLE THAT THE
DEFENDANT TRUSTEE COULD ONLY EXERCISE DOMINION
AND/OR CONTROL OVER LEGALLY HELD CORPUS ASSETS OF
THE DEFENDANT TRUST THAT WERE CONVEYED UNDER THE
CONROLLING TERMS OF ITS GOVERNING INSTRUMENT
1. The Defendant Trust Governing Instrument

Pooling and Servicing Agreement (PSA)
Controlling Terms Set Forth The Protocol For
The Creation of The Legally Held Corpus
Assets, and Very Creation of, The Trust
Itself.
2. New York Trust Law Governed The Requirement

For The Defendant Trustee To Strictly Comply
With The Governing Instrument Terms For The
Legal Conveyance of Mortgage Loans To The
Trust
C. THE HOUSING JUDGE PROPERLY IDENTIFIED THAT

PLAINTIFF WAS NOT SEEKING TO “ENFORCE THE PSA”,
AS SHE HAD STANDING TO CHALLENGE AN ASSIGNMENT
THAT WAS “VOID” WHERE SHE MADE NO THIRD PARTY
CONTRACT CLAIM OF “ENFORCEMENT”
7
8
1. In Order To Demonstrate The Validity of The

Foreclosure Sale upon Which Its Purported
Superior Title Rested, The Defendant Was
Required To Establish That It Was In
Contractual Privity With Plaintiff,
Therefore Creating The Contractual Standing
For Plaintiff To Allege That The Assignment
Was Void
2. Under The Peculiar PSA At Issue, The

Beneficial Certificateholder Owners of The
Defendant Trust Had No Right To Control The
Trustee, or Manage The Trust Fund, And
Therefore Could Not later “Ratify” Any
“Ultra-Vires” Act of The Defendant Trustee,
Especially Concerning The Very Creation OF
The Trust Itself
3. Massachusetts Case Law on This Issue Has

Only Examined The Unopposed Imprimatur
Wrongfully Impressed Upon The Decisional
Case Law That The “Borrower Lacks Standing
To Enforce The PSA”, Where The Borrower
Obviously Retains The Contractual Standing
To Challenge A Stranger to The Mortgage
Contract, or An Entity That Lacks
Contractual Privity To Do So
D. THE SJC HAS ALREADY EXAMINED ISSUES RELATED TO

THE PSA IN U.S. BANK NAT’L ASS’N v. IBANEZ, AND
INDICATED THAT WHERE RELYING UPON A PSA, IT
MUST BE SHOWN THAT THE ENTITY PURPORTING TO
ASSIGN MORTGQGE LOANS THEREUNDER (DEPOSITIOR)
ACTUALLY OWNED THE MORTGAGE LOANS PURPORTEDLY
TRANSFERRED TO THE TRUST THEREUNDER
II. STATEMENT OF THE CASE:
This is the Plaintiff’s appeal of the Housing
Court's decision granting summary judgment (and
therefore possession of the property) to Bolling in a
summary process eviction action. On April 17, 2012,
the Trust served Bolling with a Summary Process
8
9
Summons and Complaint after Bolling failed to vacate
the property located at 114 Lamont Street,
Springfield, MA 01119 (hereinafter referred to as the
"Property") following a December 27, 2011 foreclosure
sale in which the Trust took title to the Property.
Bolling was served but on April 2, 2012; she had
not vacated her home. No foreclosure sale took place
(although an auction was apparently walked through) as
only a mortgagee who has received the mortgage from a
chain of mortgagees who actually legally held a real
interest in the mortgage and legally transferred has
“authority and jurisdiction” to utilize the power of
sale contained therein. The Securitized Trust that
claimed to have authorized the foreclosure never owned
the mortgage; it had nothing to sell and so nothing
was bought at the auction sale.
On April 20, 2012, Bolling filed an answer with
defenses. The Parties filed cross-motions for summary
judgment in August 2013. Bolling argued that the
foreclosure sale was void, for two reasons. First, she
argued that the Trust failed to strictly comply with
G.L. c. 244, § 35A, rendering the foreclosure void.
Second, she claimed the foreclosure sale was void
because the mortgage had been purportedly “assign” to
9
10
the Trust, but in contravention of the controlling
terms of the Trust's Governing Instrument pooling and
servicing agreement ("PSA"), such that the foreclosure
auction sale was void due to the fact that the Trust
did not actually legally own superior title for
possession where the Plaintiff’s mortgage was never a
legally held corpus asset.
Bolling demonstrated through primary evidence
that the foreclosure sale was void because no chain of
the legal required assignments occurred prior to the
proceeding to foreclose and no party with the legal
interest in the mortgage foreclosed. See G.L. c. 244 §
14, see also U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass.
637 (2011) The Plaintiff trust did not establish its
prima facie case as Bolling demonstrated with primary
evidence of the Pooling and Servicing Agreement what
assignments were necessary to establish a chain of
title and by what date (as future back-dating or
ratification is not supported in Massachusetts law)
these were not provided by Plaintiff Trust.
On November 7, 2013, the Housing Court rendered a
decision granting summary judgment in favor of
Bolling, and denying summary judgment for the Trust,
on the issue of possession of the Property. In so
10
11
doing, the Housing Court held that G.L. c. 244, § 35A
required strict compliance, and if the foreclosing
entity did not strictly comply with that statute, the
resulting foreclosure was invalid.10 The Housing Court
found that the Trust did not strictly comply with G.L.
c. 244, § 35A, and therefore, it lacked standing to
bring the summary process action and possession
entered in favor of Bolling.11 On April 1, 2014, the
Trust filed a Motion to Vacate Judgment based on the
subsequently-rendered Supreme Judicial Court ("SJC")
decision of U.S. Bank National Association v.
Schumacher, 467 Mass. 421 (2014).
On April 25, 2014, the Housing Court vacated its
November 7, 2013 Order, but on grounds that relied
upon Bolling's second argument in her Motion for
Summary Judgment regarding the PSA. The Housing Court
held that Bolling had standing to challenge the
assignment of mortgage and that the assignment of
mortgage was void because it did not comply with the
terms of the PSA, rendering the foreclosure void.
Specifically, the Housing Court found that Bolling had
standing to challenge the assignment of mortgage due
to action taken by the Trustee in contravention of the
terms of the PSA. Relying predominantly on New York
11
12
state law (Wells Fargo Bank, N.A. v. Erobobo, 39
Misc.3d 1220 (A) (2013)), as well as other authorities
citing Erobobo, the Housing Court found that because
the mortgage was assigned after the closing date
indicated in the PSA, this constituted an ultra vires
act, resulting in a void assignment of the mortgage.
The Housing Court reasoned that because the
foreclosing entity therefore was never legally
assigned the mortgage, it did not properly foreclose
on the Property under G.L. c. 244, §14, precluding the
Trustee’s claim of “Superior Title”. In so holding,
the Housing Court held that the PSA is governed by New
York state law as specified in the PSA, and,
therefore, New York state law* including Erobobo,
governs the matter. On these grounds, the Housing
Court again dismissed the Trust's claim for possession
and entered judgment for Defendant.
On May 1, 2014, the Trust filed a Notice of
Appeal.17 On May 20, 2014, the Trust also filed a
Motion for Reconsideration of the Housing Court's
April 25, 2014 Order, which Bolling opposed. On March
5, 2015, the Housing Court denied the Trust's Motion
for Reconsideration and entered a final judgment in
favor of Bolling on the issue of possession.19 On
12
13
March 11, 2015, the Trust filed a subsequent Notice of
Appeal.
III. STATEMENT OF FACTS
On July 21, 2006, Bolling granted a mortgage to
Aegis Funding Corporation (“Lender”) to secure a
promissory note and loan in the amount of
$138,700.00.21. Undisclosed to Bolling, Mortgage
Electronic Registration Systems, Inc. ("MERS")
purported to act as a “nominee” for the Lender. MERS
purported to assign the mortgage to U.S. Bank National
Association as Trustee for RASC 2G06KS9, and an
assignment of mortgage was recorded on April 30, 2010
U.S. Bank National Association as Trustee for RASC
2006KS9 initiated the statutory remedy through
publication of the notice of the Mortgagee's Sale of
Real Estate on December 6, 2011, December 13, 2011 and
December 20, 2011,
On December 27, 2011, U.S. Bank National
Association as Trustee for RASC 2006KS9 conducted a
purported foreclosure sale of the Property by public
auction and the Trust claimed to be the “highest
bidder”, taking the property under a “credit bid”, and
Demanding Bolling Vacate the Property on or about
March 7, 2012. Bolling failed to vacate the Property,
13
14
resulting in the Trust commencing the underlying
summary process eviction action in the Housing Court.
Bolling continues to occupy the Property, where
the Court correctly ruled in her favor, denying
Defendant possession. The Trust cannot accept rent or
take any action to create a tenancy with Bolling
following the void foreclosure sale.
IV. SUMMARY OF ARGUMENT:
Plaintiff-Appellant Securitized Trust RASC
2006-KS9 argues that the Housing Court erred in
granting Bolling possession by relying on (i)
authorities from other jurisdictions that (ii) have
since been reversed, discredited and contain unsound
reasoning. Positing that the majority of Massachusetts
and other decisions have determined that purportedly
foreclosed homeowners lack standing to challenge
assignments made in contravention of the express
requirements PSAS either because such violative
assignments are “voidable” and not “void” or because
they are not parties nor beneficiaries to the Trust,
Plaintiff-Appellant Trust then states that Bolling did
not rebut their prima facie argument.
Appellant deletes the historic first top state
Court Securitized Trust decision: the Mass SJC’s
14
15
decision in Ibanez. As a combined case, the Court
applied its new legal test for Securitized Trusts
acquiring mortgage loans to two Securitized Trusts. It
started its analysis from the founding Trust
Documents, the PSAs, for the Trusts as controlling of
their attempts to acquire the Ibanez and LaRace loans.
And while the Ibanez Court scrutinized the
compliance by the Trusts with their own controlling
trust documents as defined by their requirements of
assignors and assignees and their governing state
laws, it reminded all Massachusetts courts that a
failed assignment – given that it is a transfer of
interest in property – is void by operation of law ab
initio. It found these assignments were void without
any homeowner even being party to the case.
Appellant attempts to impugn the Housing Court
decision as having only “opined” that New York law
governs the interpretation of the PSA even though this
is its explicit language and The Housing Court in its
decision repeated both parties acknowledgement that
the PSA is governed by New York law. Appellant
attempts to impugn that reliance by making an
unsupported claim that New York jurisprudence of the
interpretation of express trusts has been primarily
15
16
against a recognition that the acts of a Trustee in
contravention of a Trust document are void ab initio
when over hundred years of decisions uphold that such
acts are void.
The Appellant points first to the reversal of the
Erobobo decision on Appeal when the reserval was not
based on the instant legal issue but on a procedural
issue of the timing of the standing challenge1.
Appellant attempts then to discredit other top court
decisions like Glasko because like the Housing Court
they relied on the black letter law of New York2 and
the precedents cited in Erobobo which reach all the
way back to Powers v. Bergen (1852) 6 N.Y. 358, Smith
1
Quoting the New York Appellate Court: “there is no language in the answer from which it could
be inferred that he [Erobobo] sought to assert the defense of lack of standing. Nor did Erobobo
raise this defense in a pre-answer motion to dismiss the complaint. Accordingly, the defendant
waived the defense of lack of standing… “. It is on this procedural basis alone that Erobobo was
reversed. Wells Fargo Bank, N.A. v Erobobo, 2015 NY Slip Op 03522 [127 AD3d 1176] (2015).
2
§ 7-2.4 was preceded by a statute of nearly identical language[2] – 1 R.S. 730, § 65. That statute
was first considered by the highest court in New York, the Court of Appeals, in 1852. Powers v.
Bergen (1852) 6 N.Y. 358, found a sale of certain real property held in trust under the direction
that the real property would be a life estate for the beneficiary was void under that statute – despite
the fact that the beneficiary did not object and that the legislature made a private statute
specifically to facilitate such sale. The high court of New York found neither the ratification of the
beneficiary, nor private statute of the legislature made the act of the trustees in contravention of
the trust agreement anything less than void. See also Briggs v. Davis (1859) 20 N.Y. 15 (grantees
of land in trust for the payment of debts reconveyed to the grantor, reciting that the trusts had been
executed. In fact, the debts had not all been paid. The debtor then mortgaged the land to one
having no actual notice of the trust. It was held that the reconveyance, being in contravention of
the trust, was void, and that the legal estate remained in the trustees.); Genet et al. v. Hunt et
al. (1889) 113 N.Y. 158 (“The statute makes every conveyance or other act of the trustees of an
express trust in lands, in contravention of the trust, absolutely void…”); Russell v. Russell (1867)
36 N.Y. 581 (Transfer in contravention of the trust agreement void, despite mutual assent to it by
the trustee and beneficiary).
16
17
v. Kidd 68 NY 130 (1877), McPherson v. Rollins 107 NY
316 (1887) and Kirsch v. Tozier 143 NY 390 (1894).
Appellant asks this Court to rely on two lines of
decisions which are either not argued on a comparable
basis or inapposite. First, Appellant argues a chain
of cases that are progeny of an argument that the
purportedly foreclosed homeowner must be a party or
beneficiary of the PSA to challenge an assignment that
is actually void by operation of law. This argument is
made in direct contradiction of the Trust’s own
founding document where certificateholders (the
beneficiaries) are explicitly not able to vote on the
actions of the Trustee.
Second, Appellant argues a chain of cases the
progeny of which is the almost baseless “analysis” of
New York “Trust” cases in the Illinois Bassman
decision. Bassman analyzed ten top New York decisions
to establish a history of “voidable” Trust transfers
to discredit the necessity of strict compliance with
New York’s expressed trust law. Most of these ten
decisions are inapposite as not regarding “express
trusts” and two of the decisions about expressed
Trusts in fact upheld the voidness of the ultra vires
attempts to transfer assets under NY EPTL 7-2.4.
17
18
Most importantly, the Appellant appears to argue
that Massachusetts Trust law controls. Instead, the
existence of Securitized Trusts are beholden to the
historic uniqueness of New York Common Trust law and
the recent specially-crafted Business Trust law of
Delaware –which require strict “verbatim” adherence by
Trusts to their founding documents and determine that
ultra vires acts by Trustees are void.
THE FINANCIAL BAR HAS CONSISTENTLY ADVANCED

INCORRECT LEGAL THEORY THAT HAS BEEN ACCEPTED BY
THE COURT, UNTIL CLOSE SCRUNTINY BY THE APPELLATE
COURTS OF THIS COMMONWEATH.
Indeed, over a ten year (or more) period, where
the foreclosing entity sought to utilize the
“statutory remedy” under G.L. c. 244, §14, courts
repeatedly held that such foreclosing entity needed
possession of the mortgage only to be a statutory
“mortgagee”, because the statute was addressed to
“mortgagees” not note holders, see Valerio v. U.S.
Bank, 716 F.Supp.2d 124 (2010); “The Massachusetts
statute governing foreclosure sales is addressed to
mortgagees, not note holders, G.L. c. 244, § 14.” This
incorrect statement of the law held sway, until this
issue was squarely presented to the SJC in Eaton v.
Fed. Nat’l Mortgage Ass’n, 462 Mass 569 (2012), where
18
19
the SJC found that the historical ratio decidendi, and
legislative intent was that to meet the statutory
definition of the term “mortgagee” there must be a
connection to the note and mortgage. Another incorrect
“theory” advanced by the financial bar for the better
part of a decade was that a borrower “lack standing to
challenge an assignment of mortgage”. However, when
this issue was squarely presented to the U.S. Court of
Appeals for the First Circuit, that Court found that
this “theory” could not stand muster where an
assignment was “void”, as a Massachusetts mortgagor
finds herself in a unique position, that would leave
her without any ability to defend the title to her
home, if not able to question an entity without
contractual standing to utilize an extra judicial
remedy,
“As applied here, these considerations raise a

potential question as to whether the plaintiff's
standing is jeopardized by the prudential concern
that a litigant should not normally be permitted
to assert the rights and interests of a third
party. With this in mind, several courts have
ruled that mortgagors lack standing to challenge
mortgage assignments because they are neither
parties to nor third-party beneficiaries of the
assignments. See, e.g., Oum, 842 F.Supp.2d at 413
(citing Edelkind v. Fairmont Funding, Ltd., 539
F.Supp.2d 449, 453-54 (D.Mass.2008)); Wenzel v.
Sand Canyon Corp., 841 F.Supp.2d 463, 477-78
(D.Mass.2012). We think that these cases paint
with too broad a brush. It is true that a nonparty
who does not benefit from a contract generally
19
20
lacks standing to assert rights under that

contract. See, e.g., Almond v. Capital Props.,
Inc., 212 F.3d 20, 24 & n. 4 (1st Cir.2000); Cumis
Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455
Mass. 458, 918 N.E.2d 36, 44 (2009). But a
Massachusetts real property mortgagor finds
herself in an unusual position because of two key
facts. First, as explained below, a Massachusetts
mortgagor has a legally cognizable right under
state law to ensure that any attempted foreclosure
on her home is conducted lawfully. See G.L. c.
183, §21; id. G.L. c. 244, § 14. Second, where (as
here) a mortgage contains a power of sale,
Massachusetts law permits foreclosure without
prior judicial authorization. See Eaton, 969
N.E.2d at 1127. Thus — unlike an ordinary debtor
who could challenge an assignment as a defense
upon being hauled into court by the assignee
seeking to collect on her debt, see 6A C.J.S.
Assignments § 132 (2012) — a Massachusetts
mortgagor would be deprived of a means to assert
her legal protections without having standing to
sue. As such, we hold only that Massachusetts
mortgagors, under circumstances comparable to
those in this case, have standing to challenge a
mortgage assignment. Culhane v. Aurora Laon
Services of Nebraska, 708 F. 3d. 282, 290 (2013)
The above reasoning applies with equal force to claims
made under a PSA, where the failure to transfer assets
under the controlling terms of this Trust Governing
Instrument creates a void [not ”voidable”] assignment,
and thus represents a challenge “qua mortgagee”.
Indeed, Culhane was correctly cited to and relied upon
by the Housing Court Judge, where formulating his well
reasoned and legally sound decision, related to the
PSA
A. THE SJC IN IBANEZ CLEARLY SPOKE TO THE PRECISE

ISSUE PRESENTED TO THIS COURT REGARDING THE PSA
20
21
Indeed, in U.S. Bank Nat’l Ass’n v. Ibanez, 458
Mass. 637 (2011), the Supreme Judicial Court
specifically addressed requirements that must be
established for an entity that is claiming as a
“securitized trust” and seeks to utilize the statutory
remedy under G.L. c. 244, §14. At p. 649 of Ibanez
the SJC makes the prescient observation:
“Like a sale of land itself, the assignment of a

mortgage is a conveyance of an interest in land
that requires a writing signed by the grantor. See
G. L. c. 183, § 3; Saint Patrick's Religious,
Educ. & Charitable Ass'n v. Hale, 227 Mass. 175 ,
177 (1917). In a "title theory state" like
Massachusetts, a mortgage is a transfer of legal
title in a property to secure a debt. See Faneuil
Investors Group, Ltd. Partnership v. Selectmen of
Dennis, 458 Mass. 1 , 6 (2010). ….. Where, as
here, mortgage loans are pooled together in a
trust and converted into mortgage-backed
securities, the underlying promissory notes serve
as financial instruments generating a potential
income stream for investors, but the mortgages
securing these notes are still legal title to
someone's home or farm and must be treated as
such.” Ibanez at p. 649
Further, while Ibanez involved Plaintiff Bank Trustees
seeking to Quiet Title, the SJC clearly stated that
“There is no question that the relief the

plaintiffs sought required them to establish
the validity of the foreclosure sales on
which their claim to clear title rested.”
Ibanez, at 645
The above standard is precisely what the Plaintiff
Trustee’s burden was before the Housing Court
21
22
It is also beyond dispute that the statutory
foreclosure process in this Commonwealth is deemed
“initiated” at the time of the first publication of
auction sale, and therefore whereas here the
Plaintiffs published the auction [and have now
subsequently held the auction sale], the Defendant
therefore had to establish that it had at that point
the “jurisdiction and authority” to foreclose by the
power of sale. In Ibanez at p. 651 of that holding,
the Court specifically references the following:
“Where a pool of mortgages is assigned to a

securitized trust, the executed agreement that
assigns the pool of mortgages, with a schedule of
the pooled mortgage loans that clearly and
specifically identifies the mortgage at issue as
among those assigned, may suffice to establish the
trustee as the mortgage holder. However, there
must be proof that the assignment was made by a
party that itself held the mortgage. See In re
Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009).”
As the basis for the above referenced statement,
the SJC stated that with regard to the Ibanez loan,
that even if the Bank Trustee had provided a “Mortgage
Loan Schedule”, with the required information
[notating those borrowers names and addresses], the
Bank Trustee failed to produce any document that
supported the fact that the Depositor ever held the
mortgage to be assigned;
22
23
“Finally, even if there were an executed trust

agreement with the required schedule, U.S. Bank
failed to furnish any evidence that the entity
assigning the mortgage -- Structured Asset
Securities Corporation -- ever held the mortgage
to be assigned.” Ibanez, at 650.
With respect to the LaRace mortgage, the SJC

stated:
“Turning to the LaRace mortgage, Wells Fargo

claims that, before it issued the foreclosure
notice, it was assigned the LaRace mortgage under
the PSA.. Moreover, Wells Fargo provided the judge
with no document that reflected that the ABFC
(depositor) held the LaRace mortgage that it was
purportedly assigning in the PSA.” Ibanez, at 650
In the matter before this Court, Plaintiff
Trustee failed to provide any evidence that
Residential Asset Securities Corporation (Depositor)
ever held the mortgage that it purported to convey
under the Governing Instrument of the Plaintiff Trust,
which the Housing Court properly recognized.
Unlike Plaintiff-Appellant’s incorrect argument
otherwise; the Housing Court wisely did not rely upon
the mere fact that assignments were recorded to
establish their legal sufficiency. Such sole reliance
upon the recordation of a purported “assignment”
establishes no legal validity as the recorded
assignments indisputably facially contradict the
requirements of the Plaintiff Trust’s Governing
Instrument related to a legal conveyance of assets to
23
24
the Trust. Further, the SJC has definitively opined
that recordation upon a registry of deeds is for
notice purposes only, and cannot in any manner
establish the legal validity of the document in
question, see Bevilacqua v. Rodriguez, 460 Mass. 762,
771 (2011)
“there is nothing magical in the act of

recording an instrument with the registry
that invests an otherwise meaningless
document with legal effect. See S & H
Petroleum Corp. v. Register of Deeds for the
County of Bristol, 46 Mass. App. Ct. 535 ,
537 (1999) ("The function of a registry of
deeds is to record documents. It is
essentially a ministerial function . . .").
Recording may be necessary to place the
world on notice of certain transactions.
See, e.g., G. L. c. 183, § 4 (leases and
deed); G. L. c. 203, §§ 2-3 (trust
documents). Recording is not sufficient in
and of itself, however, to render an invalid
document legally significant. See Arnold v.
Reed, 162 Mass. 438 , 440 (1894); Nickerson
v. Loud, 115 Mass. 94 , 97-98 (1874) ("mere
assertions . . . whether recorded or
unrecorded, do not constitute a cloud upon
title, against which equity will grant
relief"). As a result, it is the
effectiveness of a document that is
controlling rather than its mere existence.
See Bongaards v. Millen, 440 Mass. 10 , 15
(2003) (where grantor lacks title "a mutual
intent to convey and receive title to the
property is beside the point"). The
effectiveness of the quitclaim deed to
Bevilacqua thus turns, in part, on the
validity of his grantor's title.
Accordingly, a single deed considered
without reference to its chain of title is
insufficient to show "record title" as
required by G. L. c. 240, § 1.” Bevilacqua
at 771
24
25
As the SJC established in Ibanez; a purported
“assignment” on the Registry of Deeds that is recorded
and executed before a notary public, therefore
appearing facially valid, - can still be found to be a
legally inoperative document, due of non-compliance
with the terms of the PSA, and therefore be void by
operation ab initio, see Ibanez, at p. 650:
Turning to the LaRace mortgage, Wells Fargo claims

that, before it issued the foreclosure notice, it was
assigned the LaRace mortgage under the PSA. The PSA,
in contrast with U.S. Bank's PPM, uses the language of
a present assignment ("does hereby . . . assign" and
"does hereby deliver") rather than an intent to assign
in the future. But the mortgage loan schedule Wells
Fargo submitted failed to identify with adequate
specificity the LaRace mortgage as one of the
mortgages assigned in the PSA. Moreover, Wells Fargo
provided the judge with no document that reflected
that the ABFC (depositor) held the LaRace mortgage
that it was purportedly assigning in the PSA
In the context of a post foreclosure challenge to
the exercise of the statutory remedy by a foreclosing
claimant, Ibanez established that the foreclosing
entity bore the burden to demonstrate the validity of
the foreclosure auction sale upon which its purported
claim to superior title rested, see Ibanez, at p. 645.
The First Circuit stated that a borrower such as
Bolling has “standing” to challenge an assignment that
is void, and that
25
26
“a Massachusetts mortgagor would be deprived of a

means to assert her legal protections without
having standing to sue.” See Culhane at p. 290
Additionally, Bolling as a party to our Commonwealth's
constitution has a declared right to the protection of
her rights to life, liberty and property under such
laws under articles I, and X, and the protection of
those rights through our Courts under articles XI and
XII, as well as her protections under the United
States Constitution.
1. In Addition To The Housing Court’s Findings

Related To New York Law, Long Standing And Well
Established General Trust Law Theory Supports
Bolling’s Allegation That The Recorded
Assignments That The Plaintiff Trustee Relies
Upon Are Indisputably Void As Bolling Did Not
Allege That She Sought To “Enforce” The PSA
The Plaintiff Trust’s Governing Instrument PSA
controlling terms clearly recite that the term
“Closing Date” is defined as October 27, 2006 [SA022].
At Section 2.03(b) of the PSA Governing Instrument,
the controlling terms clearly state that the
“Depositor” [Residential had good title to, and was
the sole owner of, each mortgage loan [including
Plaintiff’s] [SA054]. The Controlling terms also state
that there is only a two year exception period
“following the Closing Date” (defined as October 27,
2006), to transfer any additional mortgage loan not
26
27
conveyed to the Defendant Trustee at the “Closing
Date”, see {SA054-SA055], SEE ALSO AT Section 2.04
[SA055]. See Article X, AT Section 10.01 (m)(iv),
which specifically states that the Trustee cannot
purchase any Mortgage Loan under Article II or Article
III of the PSA, after the “Closing Date”, unless it
would not adversely affect the Status of any REMIC
created under the PSA, see [SA099]. Further, at
“Section 2.03, the controlling terms of the Trust
clearly identify that “on or prior to the Closing Date
the Custodian shall deliver to the Trustee and Initial
Certification in the form annexed hereto at Exhibit
One evidencing receipt of each Custodial file for each
Mortgage Loan” [SA123]. Custodial File is defined
under the controlling terms as “Any Mortgage Loan
document in the Mortgage File that is required to be
delivered to the Trustee or the Custodian pursuant to
Section 2.01(b) of this Agreement”, [SA022]. Section
2.01(b) states that the required documents required
thereunder consist of; 1) the original Mortgage Note,
2) the original Mortgage, 3) the assignment, (v)(c)(b)
“if MERS is identified on the mortgage or on a
properly recorded assignment of the mortgage, as
applicable, as the mortgagee of record solely as
27
28
nominee for Residential Funding, its successors and
Asigns. The Assignment that Defendant purport to rely
upon, indisputably avers that MERS [autonomously]
“assigned” the Plaintiff’s Mortgage [singly] to the
Defendant Trustee on April 22, 2010.3 There can be no
dispute that such purported transfer contravened the
above temporal limitations set forth by the
controlling terms as to “Closing Date” of October 27,
2006, and such purported “assignment” also does not
fall within the two year exception date for such
addition to the Trust corpus, making the assignment
indisputably void, not “voidable”.
Additionally, the controlling terms of the
Governing Instrument PSA, clearly identify that it was
the title of Depositor to the mortgage loans that was
sold to the Defendant Trustee that would become the
legally held corpus assets of the Trust, see at
Section 2.01(a) [SA051]. The Depositor is indisputably
defined as Residential Asset Securities Corporation
[SA007, at para. Above “Preliminary Statement”]. Thus,
the Pooling and Servicing Agreement provides
indisputable evidence of the strictly-required,
3
Even pre-Eaton, the SJC found that a mortgage holder
singly could not undertake any affirmative autonomous
act, nas such purported entity would only act in a
reversionary trust capacity, see Eaton, at n. 10.
28
29
purported intermediate transfers of the title to the
Plaintiff’s mortgage, which never took place on or by
the temporal date certain the date “Closing Date”, as
correctly identified by the Housing Court Judge.
Specifically, where utilizing the statutory

remedy under G.L. c. 244, §14, where Defendant
proffered no legally tangible indicia that the
Trust was ever legally possessed of any legal
ownership of Defendant’s mortgage and note, as
legally held corpus assets of the “Trust Fund”,
the Plaintiff Trustee is indisputably left in want
of being in contractual privity with Defendant,
and therefore precluded from utilizing the
statutory remedy under G.L. c. 244, §14, and G.L.
c. 183, §21. Should the Plaintiff Trustee seek to
rely upon decisional case law indicating that the
“beneficial owners of the Trust could always later
“ratify” and Ultra Vires act by the Trustee,
Section 11.03(b); unlike previous PSA examinations
before other judicial tribunals, the particular
and peculiar PSA before the Housing Court contains
specific controlling terms affirmatively stating
there is a “Limitation of Rights of the
Certificateholder” beneficial owners, precluding
them from engaging in or; “in any manner otherwise
control the operation or management of the Trust
Fund, or the obligations of the parties thereto”
[SA 101]. Thus, the Plaintiff Trustee cannot rely
upon previous decisional case law opining that the
“beneficial owners could always later “ratify” any
act of the Trustee, is not applicable to the
instant PSA, under the above referenced limitation
terms. Further, Section 11.04, indisputably avers
that the Governing Law to be applied to the
Governing Instrument controlling terms is
indisputably New York Law, [SA101], To drive the
point home that in fact this is a Governing
Instrument of a Trust, and not a “contract among
the parties thereto, please reference the PSA at
Article X, at (a)(2)
“provided however that in no event shall the trust
created hereby continue beyond the expiration of
21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late
29
30
ambassador of the United States to the Court of

St. James, living on the date hereof…” [SA094].
Thus, the Housing Court Judge’s findings in this
matter indisputably does not make any finding that the
Plaintiff seeks to “enforce the PSA”, and arguments
otherwise made by Defendant otherwise are disingenuous
at best
Thus, where it was the title of the Depositor to
the mortgage loans that was to form the legally held
corpus assets of the Plaintiff Trust, this would make
the Depositor the “Settlor” of the Trust. The PSA
requires a temporal date certain for a legal
conveyance of assets to the Trust, such that the same
would become legally held corpus assets constituting
part of the “Trust Fund”. Pursuant to the terms of the
Governing Instrument,
The controlling terms of the Trust’s Governing
Instrument defines the “Closing Date”, as October 27,
2006.
The SJC has definitively stated that where a
foreclosing claimant relies upon a PSA to have
“assigned” title, it must be shown that the entity
purporting to “assign” such title [the “Depositor”]
30
31
actually owned the loan that was purportedly being
transferred thereunder, and Ibanez at 650-651.4
The SJC affirmed that a transfer of interest in
property, whether deed or assignment, occurs on the
date it occurs and only upon that date. A later
assignment cannot be made effective on a previous date
whether by “back-dating” or later ratification.
The Housing Court correctly decided that under
the particular terms of the instant Plaintiff common
law express trust, the beneficial Certificateholder
owners have no legal right to “ratify” any act of the
Plaintiff Trustee:
“Section 11.03… Limitation on Certificateholders…

(b) No certificateholder shall have any right to
vote (except as expressly provided herein) or in
any manner otherwise control the operation and
management of the Trust Fund, or the obligations
of the parties hereto,…
Certificateholders from time to time as partners
or members of an association; nor shall any
Certificateholder be under any liability to any
third person by reason of any action taken by the
parties to this Agreement pursuant to any
provision hereof.”
It is indisputable that the purported recorded
“assignments that Plaintiff purports to rely upon,
facially contravene the controlling term requirements
4
Such prescient finding by the SJC, clearly comports
with the requirements as set out under the Plaintiff
Trust’s Governing Instrument above.
31
32
for there to have been any legal conveyance of the
Bolling note and mortgage as assets.
As Defendant-Appellee is not aware of any
controlling authority sounding in Trust Law that would
stand for the proposition that where an asset was not
conveyed to a trust under the controlling terms of the
trust’s governing document, that this would witness a
“voidable” assignment, especially where such
conveyance purportedly took place to create the trust,
and where here under the peculiar dictates of the
individual Governing Instrument in question, the
beneficial owners lacked any legal authority to
“ratify” any such act,.
2. The Historical Decisions From The Appellant

Trust Regarding Borrowers Reliance Upon The
“PSA” Indisputably Advanced Different Legal
Theory And Claims For Relief, Nowhere Alleged
By Defendant
Plaintiff-Appellant’s case law decisions that it
relies upon claiming to refute the Housing Court’s
decision, include; Woods v. Wells Fargo Bank, N.A.,
733 F.3d.349, 354 (1st. Cir. 2013), Wilson v. HSBC
Mortgage Servcs., Inc., 744 F.3d, 1, 10 (1st. Cir.
2014), Culhane v. Aurora Loan Servcs of Neb., 708
F.3d. 282, 291 (2013), Butler v. Deutsche Bank Trust
co. Americas, 748 F.3d. 28, 37 (1st cir. 2014).
32
33
These cases are founded upon legal theory and
allegation raised by other borrowers in these cited
matters, which are completely distinct from the basis
of the Housing Court’s decision. The genesis of the
Securitized Trusts’ citations have held that a
borrower “lacks standing” to “enforce” the PSA, is
from the citation in Woods, at n. 4, which cites to
solely to In re Gifty Samuels, 415 B.R. 8, 22 (B.A.P.
2009), [incorrectly captioned as Koufos v. U.S. Bank,
N.A.].
The Plaintiff Trustee’s attempts to discredit the
Housing Court’s finding in favor of Bolling, are
mistakenly based upon arguing that these other cases
stood for the proposition that borrowers lacked the
legal standing to attack a mortgage foreclosure based
upon claimed deficiencies under a PSA, regarding an
assignment of mortgage and that based upon these case
law citations, any issue with the assignment would
render it merely voidable at the election of the
parties to the transaction as opposed to being void.
Rather, these other case law citations, involved
completely different allegations and claims [as they
sought relief based upon injury to third parties, see
Samuels, at p. 22]. However, unlike Samuels [and its
33
34
progeny], Bolling never made these same allegations
regarding the PSA. Indeed, none of these matters cited
to by Plaintiff, ever considered, discussed, or even
examined pleadings making the precise argument as
advanced by Defendant.
In particular, Plaintiff Trust’s citations are
based upon other borrower allegations and attempt to
erase clearly distinguishable claims and to treat all
borrowers as advancing precisely the same legal theory
and allegation regarding the PSA.
For example in Wilson v. HSBC Mortg. Servs.,
Inc., 744 F.3d 1, 7-14 (1st Cir. 2014), the first
circuit made a specific examination of the
plausibility of Wilson’s pleadings in particular5:
“The reasoning behind the Wilsons' argument that

the 2009 Assignment is void runs as follows:
Strauss is an employee of HSBC; Strauss executed
the 2009 Assignment; when Strauss executed the
assignment, she did so as an employee of HSBC;
therefore, MERS never assigned the mortgage to
HSBC. The Wilsons' own Complaint, however, flatly
contradicts this position, as it explicitly
alleges that “[t]he March 19, 2009 assignment from
MERS to [HSBC] was executed by Shelene Strauss, as
Vice President of MERS.” Thus, the Complaint
actually alleges that Strauss wore multiple hats,
serving both as an employee of HSBC and an officer
of MERS. Significantly, the Complaint does not
allege that such dual agency violates the common
.5 See Wilson also at pp. 10-11; “The parties, having

taken standing for granted with respect to the 2009
Assignment, have not presented any extensive argument
with respect to that issue”.
34
35
law or any statute or applicable regulation.

Accordingly, the facts set forth in the Complaint
actually describe a valid assignment from MERS to
HSBC. While this defective pleading is likely
enough on its own to doom the Wilsons' first six
counts, it is not the only thing we have to go on.
We also have available for consideration the text
of the 2009 Assignment. According to the Wilsons,
“there is no indication that Ms. Straus[s]
executed the assignment with purported authority
from MERS.” This statement is simply incorrect:
the 2009 Assignment clearly identifies MERS as the
assignor and HSBC as the assignee.”
Unlike Wilson’s allegations above, Bolling’s
allegation regarding the Governing Instrument for the
Plaintiff Express Trust; clearly does not
speculatively attack any signatory authority on an
assignment to support its voidness, but rather the
specific trust law legal theory that Bolling relies
upon a void, not voidable, assignment.
In re Sheedy, 801 F.3d 12 (1st Cir. 2015) involved
an appeal of a bankruptcy matter challenging a “proof
of claim”, the particular allegations regarding the
“PSA” made by Sheedy, unlike Plaintiff’s allegation,
merely involved Sheedy’s allegation that flatly pled
that “the assignment violated the PSA”, with no
apparent plausible argumentation as to why this was
35
36
so, and also failed to even allege that the assignment
was void.6:
“Sheedy's standing challenge is that Deutsche Bank

cannot enforce the Mortgage against her because it
was transferred into the Securitized Trust in
violation of the PSA, six years after the trust
was created. Sheedy cannot question Deutsche
Bank's status as her creditor unless she
"challenge[s] a mortgage assignment as invalid,
ineffective, or void[,]" rather than as an
assignment that is only "voidable." Culhane v.
Aurora Loan Services of Nebraska, 708 F.3d 282,
291 (1st Cir. 2013). Yet a valid challenge for
violations of the terms of a PSA would result in
the assignment being voidable and not void. Butler
v. Deutsche Bank Tr. Co. Americas, 748 F.3d 28, 37
(1st Cir. 2014) ("Under Massachusetts law, it is
clear that claims alleging disregard of a trust's
PSA are considered voidable, not void.").” Sheedy,
at 26.
Unlike Wilson, the Housing Court here, relied on
the specific legal grounds for Bolling’s possession,
that the Plaintiff Trustee relies upon void recorded
assignments. Unlike Wilson, Bolling’s Note and
Mortgage, this asset, clearing outside any claim by
the Plaintiff Trustee that the same is a current
legally held corpus asset of the Plaintiff Trust.
The Housing Court’s decision rest upon these
well-reasoned examination of undisputable facts that
preclude the Plaintiff Trustee from exercising
6
Thus, mirroring the type of defective pleadings
described in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
as referenced by Twombly. Sheedy’s specific allegation
involved third party rights, which were clearly not
redressable to any injury to him/her.
36
37
contractual rights in the Plaintiff’s mortgage, and
therefore, left the Plaintiff Trustee unable to
utilize the statutory remedy given that the
Assignments that the Plaintiff Trustee relies upon are
void.7 Plaintiff Trust fails by ignoring the fact that
the Plaintiff Trustee is, in fact, not in current
contractual privity with her.
The apparent foundational basis for the
historical “voidable” PSA argument Plaintiff Trust
trots out can be traced back to citation of pleadings
alleged by a specific borrower in an appeal of a
bankruptcy matter before the Bankruptcy Appellate
Panel, where that borrower specifically alleged claims
related to third party(s) rights, that he was not a
party to.8 It directly cited to Wilson [which advanced
different allegation than Bolling], and Butler v.
Deutsche Bank Tr. Co. Americas, 748 F.3d 28 (1st Cir.
2014) for authority. Butler also involved a Motion to
Dismiss, under Fed. R. Civ. P., R. 12(b)(6), and which
7
Indeed, please reference G.L. c. 183, §21, requiring
that the foreclosing entity comply with the terms of
the mortgage first, then with all statutes related to
foreclosure, see also G.L. c. 244, §14, last
paragraph.
8
Indeed, there may be questions whether a Bankruptcy
Appellate Panel even had subject matter jurisdiction
to reach this issue at all, see In re Correia, 452
B.R. 319, at n. 3, (1st Cir. BAP 2011).
37
38
also involved Butler’s particular allegation, this
Court noted:
“Under Massachusetts law, it is clear that claims

alleging disregard of a trust's PSA are considered
voidable, not void. See Woods, 733 F.3d at 354
(“[C]laims that merely assert procedural
infirmities in the assignment of a mortgage, such
as a failure to abide by the terms of a governing
trust agreement, are barred for lack of
standing.”); Wilson, 744 F.3d at 10 (“[W]hen a
corporate officer acts beyond the scope of his
authority, his acts in excess of [that] authority,
although voidable by the corporation, legally
could be ratified and adopted by it.”)
(alterations and quotation marks omitted) (quoting
Comm'r of Banks v. Tremont Trust Co., 259 Mass.
162, 179–80, 156 N.E. 7, 14–15 (1927)); cf.
Culhane, 708 F.3d at 291 (allowing for standing
where claims are predicated on the theory that
“the assignor had nothing to assign or had no
authority to make an assignment to a particular
assignee”). Thus, having only presented facts
sufficient to show the assignment was voidable
under Massachusetts law, Butler lacks standing to
challenge Deutsche Bank's possession of the
mortgage on this ground. Culhane, 708 F.3d at 291.
Absent such standing, this theory as to the
invalidity of Deutsche Bank's possession cannot
form the basis for relief.” Butler, at 37
Again, the foundational basis for Plaintiff
Trust’s citation to Butler, related to claims
regarding the PSA are “voidable” above, was
predicated upon Woods v. Wells Fargo Bank, N.A., 733
F.3d. 349, at n. 4. In Woods, which matter also
involved a Motion to Dismiss Woods’s particularized
38
39
pleadings9:
“Insofar as Wood's amended complaint also suggests

that the assignments were in violation of the
trust's Pooling and Servicing Agreement, we find
that no standing exists as to these alternate
claims, which would render the assignment only
voidable. See, e.g., Koufos v. U.S. Bank, N.A.,
415 B.R. 8, 22 (Bankr. D. Mass. 2009)..”
Thus the foundational basis for Plaintiff Trust’s
citation to Woods v. Wells Fargo Bank, N.A., 733 F.3d.
349, at n. 4 was predicated citation to 415 B.R. 8,
[being incorrectly titled as Koufos v. U.S. Bank,
N.A.]10. In fact, reviewing the particular pleadings of
the borrower in this bankruptcy matter, [Gifty
Samuels], at p. 22, this borrower specifically alleged
the following, with regard to the PSA:
“Second, the Debtor argues that the PSA required

that all mortgages acquired thereunder to be
funneled to Deutsche Bank, as pool trustee,
through the entity designated by the PSA as
"depositor," ARSI. A failure to follow this
protocol—such as by direct assignment of the
mortgage from the loan originator to the pool
trustee, bypassing the depositor— would, the
Debtor contends, constitute a breach of the PSA, a
9
Additionally, case citation related to a corporate
officers “ultra vires” acts being later ratified, has
no application to the Housing Court’s determination
under trust law theory, and where Plaintiff Trust’s
Governing Instrument precludes the beneficial owners
of the Trust from later ratifying any act of the
Trustee.
10
The Woods opinion errs in its caption to the
citation at “415 B.R. 8”, as being titled “Koufos v.
U.S. Bank N.A”, as this citation indisputably
references a bankruptcy matter captioned “In re Gifty
Samuels”,
39
40
breach of fiduciary obligations under the PSA to

investors, a breach of federal regulations, and an
act giving rise to unfavorable tax consequences
for the investors. The Debtor argues that because
the Confirmatory Assignment is a direct assignment
from Argent to Deutsche Bank that bypasses the
depositor, it must be invalid. This argument falls
far short of its goal. Even if this direct
assignment were somehow violative of the PSA,
giving rise to unfavorable tax, regulatory,
contractual, and tort consequences, neither the
PSA nor those consequences would render the
assignment itself invalid. In fact, under the
Debtor's own argument, the unfavorable
consequences could and would arise only if, and
precisely because, the assignment were valid and
effective.” In re Samuels, at p. 22.
Plaintiff Trust’s citations to Wilson, Butler or
other matters advancing distinctly different
allegation are inapplicable to the Bolling decision.
Tracing the above referenced, Plaintiff Trust’s
attempt to undermine the Housing Court’s decision
based on an inapplicable “voidable PSA issue”. Indeed,
the “precedent” that asserts that a borrower “lacks
standing to challenge the PSA”, apparently has its
genesis from the above passage in Samuels, at p. 22
where that litigant borrower flatly pled that;
“A failure to follow this protocol—such as by

direct assignment of the mortgage from the loan
originator to the pool trustee, bypassing the
depositor— would, the Debtor contends, constitute
a breach of the PSA, a breach of fiduciary
obligations under the PSA to investors, a breach
of federal regulations, and an act giving rise to
unfavorable tax consequences for the investor.”
Clearly Samuel’s particularized pleadings above,
40
41
sought to enforce obligations that he as a borrower
was not in privity with, and therefore lacked standing
“to enforce”, making those particular claims not
redressable and inapplicable here. The Samuels Court
also made no analysis as to the borrower Samuels
ability to challenge an assignment that was void.
Unlike Samuels, the Housing Court nowhere relied upon
any of these facially deficient claims as advanced by
Samuels. The Housing Court relied upon the failure to
convey the Bolling note and mortgage as an asset to
the Plaintiff Trust, under the requirements of the
terms of its Governing Instrument PSA, creating a void
assignment. The Housing Court correctly found that
this precluded the Plaintiff Trustee from utilizing
the statutory remedy against Bolling. This failure to
transfer in compliance with the PSA indisputably
renders the assignment void ab initio by operation of
law, not voidable.11
11
Indeed, state law matters have relied upon these
same line of cases, without apparently examining those
particular borrower’s pleadings, see Hoyt v. BAC Home
Loans, 14-P-517, (2013) [unpublished R. 1:28 Opinion],
at p. 5; “See Woods v. Wells Fargo Bank, N.A., 733
F.3d 349, 354 (1st Cir. 2013) (holding that "claims
that merely assert procedural infirmities in the
assignment of a mortgage, such as a failure to abide
by the terms of a governing trust agreement, are
barred for lack of standing")……Because "a mortgagor
does not have standing to challenge shortcomings in an
41
42
Thus, to recapitulate, unlike Samuels [and its
progeny], Wilson, and Butler, the Housing Court relied
upon violations of the Trust’s governing document and
governing law to which, as in the Ibanez and LaRace
analysis, the homeowner need not be a party as the
assignments are void by operation of law ab initio.
Bolling is not aware of any authority sounding in
trust law, that would stand for the proposition that
an improperly conveyed asset to a trust at the time of
its creation, would be “voidable” by the recipient
assignee Trustee, such that existing “voidability”
would somehow magically render the Plaintiff Trustee’s
reliance upon void recorded assignments, representing
assignment that render it merely voidable at the

election of one party but otherwise effective to pass
legal title[,]" Culhane v. Aurora Loan Servs., 708
F.3d 282, 291 (1st Cir. 2013) (applying Massachusetts
law), the judge properly concluded that the
plaintiffs' complaint failed to state a claim. See
also Boulanger v. Wells Fargo Bank, N.A., 14-P-1438
[Unpublished r. 1:28 Opinion] (2015), “Finally, the
plaintiffs allege that the third assignment to the
Plaintiff failed to comply with the terms of the
governing documents (commonly referred to as the
pooling and service agreement, or the PSA) of the RMAC
REMIC Trust Series 2009-9, the organization for which
the Plaintiff holds the mortgage as trustee. Providing
no documentation to support their claim, the
plaintiffs contend, inter alia, that the assignments
should have been executed prior to the closing date
dictated by the PSA. Whatever the merit of this
contention, as third-party beneficiaries, the
plaintiffs lack enforceable rights under the PSA. The
plaintiffs do not assert that the purported defects
render the assignment void.”
42
43
an existing improper conveyance of an asset to a
trust, now legally valid, and/or able to be later
“ratified”, especially where there is a specific
temporal limitation (“Closing Date”) for a legally
valid conveyance of assets to the Plaintiff Trust, and
where the specific Governing Instrument precludes the
beneficial owners from so ratifying. Indeed, it is to
be remembered that the Plaintiff is a New York common
law express Trust, not an ongoing corporation, or
ongoing business concern.
Indeed, in the few Massachusetts state law
matters examining this issue, also all involved
defective allegations as specifically advanced by
those borrowers. For instance, see Springer v.
Deutsche Bank National Trust Co.,
“Plaintiff alleges in Count II that:

“Defendant knew or should have known that it
was required under the terms of the pooling
and servicing agreement under which it
receives its authority to act as Trustee,
that the mortgage for the Plaintiff’s
property had not been properly assigned to
the REMIC [Note 21] within the time period
allowed by law” and that therefore Defendant
lacked standing to foreclose on the
plaintiff’s property. More specifically, the
plaintiff alleges as follows:B. REMIC
ISSUES:11. The Defendant…is a trustee for a
Real Estate Mortgage Investment Conduit
(REMIC).12. Under the Internal Revenue Code
regulations relative to REMIC’s, all
mortgage assets must be transferred into the
Trust at the start date of the Trust, in
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44
order for it to maintain [its] tax-exempt

status. 26 USC 860 (G)(a)(3). 13. As the
REMIC for which the Defendant is Trustee was
formed September 1, 2006 and the mortgage
was not assigned to the Defendant until June
12, 2009, the Defendant cannot be the valid
holder of the mortgage without being in
violation of the Internal Revenue Code.”
Springer, at 21 LCR 22, (2013).
Also see Sullivan v. Kondaur Capital, 85 Mass.App.Ct.
202, 206 n. 8, 7 N.E.3d 1113, 1116, n. 8 (2014). See
also Bank of New York Mellon Corp, as Trustee v. Wain,
11 N.E.3d. 633.
3. Plaintiff-Appellant’s Reliance on chains of

decisions flowing from Bassman’s
misrepresentation of NY jurisprudence as
divided on Void and Voidability of Ultra
Vires Attempted Transfers of Express Trusts.
a. The Trust’s Lack of Chain to Exercise the

Power of Sale Rests in its Void Transfer
of the Boyers Mortgage
The remaining question, then, is whether the
assignment to a trust itself is void or voidable if it
is in contravention of the PSA. All of the courts
agree that this hinges on the New York courts’
interpretation of ultra vires actions as “void” or
“voidable”. Several lower Massachusetts Courts have
decided upon a shared understanding that NY State law
is explicit and consistent that such ultra vires
transfers in express Trusts is void.
In addition to the Bolling decision upholding the
44
45
purportedly post-foreclosure homeowner’s right to
superior possession based on its determination that
the Trust’s ultra vires actions voided its legal claim
to the homeowner’s mortgagee and so the prior
foreclosure, four other Massachusetts lower court
decisions concur.
U.S. Bank v. Wright, et al, Quincy District
Court, No. 1156-SU-1214 (Oct. 21, 2013):
“At issue is the chain of title from MERS to US

Bank. On April 16, 2006, MERS assigned the
mortgage to Wachovia Bank, N.A. as trustee of the
Aegis Asset Back Security Trust, Mortgage Pass-
through Certificates, Series 2004-2. ... it
cannot be demonstrated that Aegis Lending
Corporation ever assigned or transferred the
mortgage which defendants had granted to it to
the Aegis Asset Back Security Trust ... Series
2004-2. ... the defect in title... exists on the
evidence introduced by the Plaintiff...
Exhibits... are only probative on the plaintiff’s
right to possession upon acceptance of the
representation that the mortgage at issue is one
which is part of Aegis Asset Back Security Trust,
Mortgage Pass-through Certificates, Series 2004-
2.” [Emphasis added]
HSBC as Trustee v. Howe, et al, Malden Court
District, No. 1350-SU-0237 (Sept. 18, 2014) looked to
NY Law (EPTL § 7-2.4):
“In Aurora Loans Services, LLC v. Mendenhall, the

New York Supreme Court stated: it inexorably
follows that the acts taken by the Trustee were
clearly ultra vires and therefore would
necessarily be void ab initio. ...
The assignment was over three years after the

cutoff date, July 1, 2007, to be included in the
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46
trust according to the PSA. The assignment was

void under New York state law, N.Y. Est. Powers &
Trusts Law § 7-2.4. Also, the plaintiff failed to
provide any evidence that the Howe mortgage was
on the schedule of loans in an exhibit for the
PSA as required in U.S. National Association v.
Ibanez, 458 Mass. at 650-51.”
In U.S. Bank v. Hoynoski, Western Housing Court,
No. 11-SP-3965 (Nov. 8, 2012), the court determined:
“If, as alleged by Hoynoski “upon information and

belief,” the mortgage at issue here was subject
to a pooling and servicing agreement that
involved a trust formed under New York law, the
terms of which were contravened by the assignment
of the subject mortgage into the trust such that
the assignment was void ab initio under New York
law, NY CLS EPTL §7-2.4, the Bank arguably would
not have acquired good title and would have no
superior right to possession herein. This
analysis does not implicate third party
beneficiary status; rather it involves a direct
challenge to a prima facie element of the Bank’s
case, namely that it holds good title.”
And in Deutsche Bank as Trustee v. Collins, et
al, Worcester Housing Court, 1185-SP-5095 (July 18,
2013), Judge upheld Defendants’ Motion for Summary
Judgment “for reasons set forth”. These included:
“This assignment which the plaintiff offers as

part of their prima facie proof of standing does
not comply with the Pooling and Servicing
agreement.... the PSA says that for loans – both
the note and the mortgage – to get into the trust
they would have to have been assigned to
Sheffield Receivables Corporation, Sutton
Funding, LLC, Securitized Assets Backed
Receivables, LLC before being transferred into
the trust. This assignment ... goes from MERS to
Deutsche Bank ... as Trustee.... It only mentions
New Century Mortgage Corporation. Neither MERS
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47
nor New Century Mortgage Corporation are any of

the parties required to transfer a mortgage into
the Trust....
“the closing date for the Trust was on or about
June 14, 2007; the PSA allows only an additional
90 days beyond June 14, 2007 for any loan to have
been reviewed and rejected. This assignment ...
happened on July 28, 2009. The trust was already
closed ... no evidence of the transfer of the
Note. ...
“As NY Trust law explicitly voids any transfer
of assets in contravention of the Trust’s
instrument, this assignment is void as a matter
of law. Deutsche Bank ... as Trustee ... did not,
therefore, own the mortgage and therefore, did
not have the power to exercise the power of sale
in the mortgage. The foreclosure is therefore
void. Plaintiff lacks standing to bring this
eviction action.”
Glaski v. Bank of America, No. F064556 (7/31/13,
Cal. 5th App. Dist.), Saldivar v. JPMorgan Chase, 2013
WL 2452699 (Bky. S.D. Texas 6/5/13) and HSBC Bank USA,
National Association, et al. v. Marra, No. 2008 CA
000630 NC (Aug. 14, 2013) give weight to the clear
language of New York EPTL § 7-2.4; they voided these
foreclosures because of ultra vires acts. From
Saldivar:
“Under 28 U.S.C. § 1652, this Court has the duty

to apply New York law in accordance with the
controlling decision of the highest state court.
Royal Bank of Canada v. Trentham Corp., 665 F.2d
515, 516 (5th Cir. 1981). While the Court finds
no applicable New York Court of Appeals
decision... See Wells Fargo Bank, N.A. v.
Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct.
April 29, 2013). In Erobobo, defendants argued
that plaintiff (a REMIC trust) was not the owner
of the note because plaintiff obtained the note
and mortgage after the trust had closed in
47
48
violation of the terms of the PSA governing the

trust, rendering plaintiff’s acquisition of the
note void. Id. at *2. The Erobobo court held that
under § 7-2.4, any conveyance in contravention of
the PSA is void... Based on the Erobobo decision
and the plain language of N.Y. Est. Powers &
Trusts Law § 7-2.4, the Court finds that under
New York law, assignment of the Saldivars’ Note
after the start up day is void ab initio.”
Once a Trust is created under NY Common Law Trust
statute as specified in Plaintiff’s PSA, it is
controlled by EPTL § 7-2.4 for all the world not just
the investors for whom the Trust complied with REMIC
code3 (A000417)
See Mendenhall the most recent decision from NY
above:
“Defendants allege, inter alia, that the

acceptance of the asset, viz. the note and
mortgage at issue, by the Trustee was actually
accomplished in a manner other than that either
prescribed or permitted by the ... PSA, which is
the controlling instrument for the REMIC.... it
inexorably follows that the acts taken by the
Trustee were clearly ultra vires and therefore
would necessarily be void ab initio.
“For well over one hundred years, it has been the

law in New York that where the transfer of a
mortgage to a third party is effectuated in a
manner that contravenes the express terms of a
governing trust, the transfer is ultra vires and
is void, Kirsch v. Tozier 143 NY 390 (1894)...,
all successors and subsequent assignees are
charged with constructive knowledge of the
express terms of the trust and hence cannot claim
to be bona fide purchasers thereafter inasmuch as
they would either know or would have reason to
know that any interest transferred would be
subject to the operative terms of the trust,
Smith v. Kidd 68 NY 130 (1877), McPherson v.
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49
Rollins 107 NY 316 (1887).”
As the Massachusetts decision in HSBC as Trustee
v. Howe, et al, Malden Court District, No. 1350-SU-
0237 (Sept. 18, 2014) stated:
“For well over one hundred years, it has been the

law in New York that where the transfer of a
mortgage to a third party is effectuated in a
manner that contravenes the express terms of a
governing trust, the transfer is ultra vires and
is void, Kirsch v. Tozier, 143 N.Y. 390, 38 N.E.
375 (1894)….
None of these cases mentioned or distinguished

Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375
(1894), in which the Court of Appeals stated:
“[A]ny act thereafter done by [the trustee] in
contravention of the trust was by the common law
and by the statute void. (St. Uses and Trusts, 1
Rev. St. §65.)”.
The second set of decisions Plaintiff-Appellant
relies heavily upon are Rajamin v. Deutsche Bank Nat.
Trust Co., 757 F. 3d 79 (2nd Cir. 2014) and its
progeny or Dernier v. Mortgage Network, Inc. 87 A.3d
465 (Vt. 2013) out of Vermont; to argue that “most”
Courts have found violations of Pooling and Servicing
Agreements voidable not void. However, both the
citations to Bank of American Nat’l Assoc. v. Bassman
FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct.
2012)’s flawed survey of New York jurisprudence in
Dernier and the specific cases from Bassman that
Rajamin rely upon do not reflect decisions of only
49
50
express NY Common Law Trusts. In fact, Rajamin does
not address NY EPTL 7-2.4, the specifically applicable
statute to express Trusts with founding documents, nor
addresses Erobobo to distinguish it.
The basis for claiming dissension among NY
decisions is an assessment by the Illinois Bassman
Court (given their “exhaustive search” of NY
decisions) that the NY record was inconsistent in the
application of EPTL 7-2.4 voiding acts by Trustees
that contravene the “trust” documents.
The high court decisions across the US that claim
that NY courts are inconsistent in voiding ultra vires
actions of express trusts depend upon the Bassman case
review. The Vermont SJC in Dernier did decide for the
mortgagor but did not rely on NY EPTL § 7-2.4; they
felt based on Bassman that the NY courts were split on
the void or voidability of ultra vires acts.
In the review to follow of the 10 cases cited by
Bassman, (an Illinois Court attempting to interpret
N.Y. Law) incorrectly claimed documented NY Courts’
interpretation of ultra vires transfers by Trustees as
voidable. Bassman argued given NY Courts’
inconsistency, that without a party voiding illegal
transfers into NY Securitized Trusts, the Court cannot
50
51
determine that a break in the chain of title to the
mortgage exists. However, 6 cases were simply
inapposite; none upheld a “voidability” interpretation
of attempted ultra vires transfers; and two actually
upheld NY EPTL 7-2.4 after Court scrutiny.
In fact, even Bassman first admits the long
lineage of NY rulings voiding ultra vires transfers
into express trusts under EPTL 7-2.4.
“If this statute controls, the transfer of the

mortgages to the trust would appear to be a
nullity (we note that this statute has been in
effect in New York in some form since at least
1870 (see Anderson v. Mather, 44 N.Y. 249
(N.Y.1870))). Moreover, this is the sort of
defense — namely, that the transaction is void
under the statute — that defendants would be
permitted to raise. Livonia Property Holdings,
717 F.Supp.2d at 735. Indeed, several New York
courts have applied the statute, or its
predecessors, in such a manner. See, e.g., In re
Application of Dana, 119 Misc.2d 815, 465
N.Y.S.2d 102, 105 (N.Y.Sup.Ct. 1982); Dye v.
Lewis, 67 Misc.2d 426, 324 N.Y.S.2d 172, 175
(N.Y.Sup.Ct.1971).”
For EPTL § 7-2.4 to apply, a Trust must have a
controlling instrument12. The Defendant Trust
indisputably has a “controlling instrument” by which
it was purportedly established; the PSA.
Six of the decisions Bassman cited did not
address express Trusts at all and are inapposite.
Three involved sections of NY Law unrelated to trusts:
12
Footnote EPTL 7-2.4 again
51
52
National Black Theatre Workshop Inc. v. Nubian
Properties LLC, 89 A.D.3d 518, 932 N.Y.S.2d 466, 467
(2011) does not involve a Trust; Conservative Party of
the State of New York v. New York State Board of
Elections, 170 Misc.2d 885, 652 N.Y.S.2d 463, 465
(N.Y.Sup.Ct.1996) revolved around interpretation of NY
Const, art I, § 1 related to the Trust of voters in
elections; Aronoff v. Albanese, 446 N.Y.S.2d 368, 370
(App. Div. 1982) is based on NY corporate law to which
EPTL 7-2.4 cannot apply as business common law trusts
do not exist in NY13.
Three cases involved implied trusts. Greagan v.
Buchanan, 15 Misc. 580, 37 N.Y.S. 83, 85 (N.Y.Sup.Ct.
1896) involved the acts of a court appointed
administrator after a man died intestate. Hine v.
Huntington, 118 A.D. 585, 103 N.Y.S. 535, 540 (1907)
has to do with the disposition of a remaining piece of
property from an estate foreclosed by the executors in
trust for the remaining heirs, themselves and their
sister. Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S.
301, 304 (1912) involves an unfulfilled debt and the
transfer of assets and liabilities through a contract
13
The only place in NY law where business trusts are
referenced is in tax statutes created to cover such
out of state trusts since other states allow them.
52
53
before that debt was fulfilled by the adjudicated
debtor.
4. Courts have a Role Even When Ultra Vires

Actions are Void
The remaining 4 cases that Bassman analyzed do
involve “express trusts” that is trusts with founding
documents that are covered by NY EPTL § 7-2.4 which
makes ultra vires attempts to transfer assets void. In
two of these four cases, the Court after analysis
declared the ultra vires acts void. But even though
transfers into an express trust are covered under NY
EPTL § 7-2.4, there is a role for the Courts when
there is disagreement on the interpretation of the
Trust documents or for fact-finding. An act may be
outside the scope of the Trust document and require
judicial interpretation14. After fact-finding,
questionable acts may be found to be ultra vires and
void but have had such impact that the Court needs to
determine additional equitable resolution.
In Feldman v. Torres, 939 N.Y.S.2d 221, 224 (App.
14
In these remaining Bassman citations, the Trust
Documents may allow beneficiaries to ratify otherwise
ultra vires acts by the Trustee rendering them no
longer ultra vires. With no access to case documents
see if such ratification is included, Defendant
addresses the legitimate judicial role of the Court
without undermining NY EPTL 7-2.4 regardless of the
Trust documents’ specifics.
53
54
Term 2011), the Court was queried to interpret the
Trust document but could not determine the ultra vires
issue because of insufficient facts: “defendant's
submissions did not demonstrate as a matter of law
that Sherry lacked actual or apparent authority to
bind the Trust to the note.” This decision did not go
to the voidability of ultra vires acts but the
inability to determine if the acts were ultra vires.
In two cases, the Court after fact finding
applied EPTL § 7-2.4 and declared the acts void.
Mooney v. Madden, 193 A.D.2d 933, 597 N.Y.S.2d 775,
776 (1993) decision ordered a review of a fact basis
for whether an agreement by the trustees ... “is
binding upon the trustees and enforceable so that
votes cast in violation of that agreement may be ...
declared a nullity”. The Court then sought an
equitable resolution given the impact of the void act
with ratification by all the beneficiaries.
Similarly, In re Pepi, 268 A.D.2d 477, 701
N.Y.S.2d 915, 916 (2000) fulfills the purpose of EPTL
§ 7-2.4 and voids ultra vires acts of the Trustee
showing the evolution of Trust Law in NY so that an
ultra vires act would be assumed void based on the
Trust Document itself. From In re Pepi:
54
55
“It was the duty of the appellants to inquire as

to whether the proceeds obtained through the use
of a trust asset were to be used for the ultimate
benefit of the trust (see, Dye v Lewis, 40 AD2d
582, affd sub nom. Dye v Lincoln Rochester Trust
Co., 31 NY2d 1012). Since the appellants had
reason to know that the conveyance was made in
contravention of the trust, the transaction is
void (see, EPTL 7-2.4; see also, National Sur.
Co. v Manhattan Mtge. Co., 185 App Div 733, 736-
737, affd 230 NY 545; Boskowitz v Held, 15 App
Div 306, 310-311, affd 153 NY 666).”
In re Birnbaum, 117 A.D.2d 409, 503 N.Y.S.2d 451,
456 (1986) the beneficiaries sued the Trust to clarify
and if needed, re-write Trust documents. Again the
Court was not imposing the voidness of ultra vires
acts, it was need to interpret the Trust Document
itself. A Court must rule when Trustees themselves
disagree as to their enabling document15.
However, PSAs do not contemplate all
beneficiaries being able to ratify together a
Trustee’s acts; see explicit standard language in the
instant PSA at sections 11.03 and 11.04. When these
Trusts run afoul of the law, they become party to
lawsuits and a court must decide. Just as stealing is
15
New York’s has an apparent 3-prong test of
circumstances in which courts have to play a role even
though EPTL section 7-2.4 voids acts in contravention
with the “Trust document”. These are cases where acts
require: (1) interpretation of the Trust Documents;
(2) an equitable resolution; (3) if restitution is
owed to the beneficiaries, ratification of resolution
by all beneficiaries.
55
56
illegal, when a Trust document is violated, a Court
still has a role in fact finding, enforcement, and
restitution.
The litany of ten NY decisions supposedly
determining ultra vires acts voidable in contradiction
to NY EPTL § 7-2.4, trotted out in the Bassman
decision in fact yielded: 6 completely inapplicable;
two upholding the voidness of ultra vires acts; and
two needing the Court’s assistance in interpreting the
Trust Document itself. This hardly a sterling basis of
jurisprudential analysis for Dernier and the other
Bassman progeny to root themselves in. Even Rajamin
which drew on only some of the Bassman citations did
not stand on an accurate analysis of New York’s
highest court’s actual consistency of decisions.
Ultra Vires attempted transfers where there
exists a founding Trust Document are void not voidable
under Trust Law as historically and uniquely developed
in the state of NY, the Housing Court’s correctly
identified governing law of the instant Securitized
Trust.
VI. CONCLUSION
For all of the foregoing reasons, and ratio
decidendi cited to herein, the Defendant Bolling
56
57
respectfully request that this court Affirm the
Housing Court Judge’s well reasoned ruling
57
------------------------------------------------
ADDENDUM
-------------------------------------------
TABLE OF CONTENTS
1. August 08, 2015, Decision and Order

2.
3. August 08, 2015 - Entry of Judgment
4. G.L. c. 183 §3
5. G.L. c. 183 §4
6. G.L. c. 183 §21
7. G.L. c. 203 §2
8. G.L. c. 203 §3
9. G.L. c. 240 §1
10. G.L. c. 183, § 21
11. G.L. c. 244 § 14
12. G.L. c. 244 § 35A
13. Mass. R. Civ. P., R. 56
14. NY EPTL 7-2.4

ADD001
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ADD011
5/24/2016 Massachusetts Trial Court
12H79SP001393 U.S. Bank Naitonal Association As Trustee on Behalf of Rasc
2006KS9 c/o GMAC Mortgage, LLC vs. Wendy Bolling Also Know As Wendy
Bowling
Case Type Housing Court Summary Process Case Status Closed

Status Date: 04/17/2012 File Date 04/17/2012
Case Judge: DCM Track:
Next Event:
Property Address
114 Lamont Street
Springfield MA 01119
All Information Party Event Docket Linked Case Disposition Judgment
Party Information
U.S. Bank Naitonal Association Plaintiff
Alias Attorney/Bar Code Phone Number
Hagopian, Esq., Michael R (549919)
Vaulding, Esq., Lori (678404)
More Party Information
Bolling, Wendy Defendant
Alias Attorney/Bar Code Phone Number
More Party Information
Events
Date Session Locality Location Type Result

04/26/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Rescheduled
05/10/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Continued
08/16/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Not held but resolved
09/05/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Continued
09/19/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Rescheduled
10/31/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Held
01/04/2013 10:00 AM Session 1 Western Housing Court Trial Continued
03/08/2013 09:00 AM Session 1 Western Housing Court Motion Hearing Continued
03/15/2013 09:00 AM Session 1 Western Housing Court Motion Hearing Held
04/26/2013 09:00 AM Session 1 Western Housing Court Motion Hearing
05/20/2013 02:00 PM Session 2 Western Housing Court Motion Hearing Held
08/30/2013 05:00 PM Session 1 Western Housing Court Review
09/06/2013 02:00 PM Session 1 Western Housing Court Hearing Rescheduled
ADD012
http://www.masscourts.org/eservices/?x=rVggiHxA8lKG2je57xEif4AZhyaV4VSIﬁMOr4oY*IexDeUhVmxih1ZfbPwc615Ht*eMbLIIX78pkwfIPqoWJg 1/10
09/06/2013 02:00 PM Session 1 Western Housing Court Hearing Rescheduled
09/11/2013 02:00 PM Session 1 Western Housing Court Hearing Held

04/01/2014 02:00 PM Session 1 Western Housing Court Motion Hearing Allowed
05/27/2014 09:00 AM Session 1 Western Housing Court Motion Hearing Held
07/14/2014 05:00 PM Session 1 Western Housing Court Review Held
09/18/2015 09:00 AM Session 1 Western Housing Court Motion Hearing Allowed
Docket Information
Docket Docket Text File

Date Ref
Nbr.
04/17/2012 SP Summons and Complaint Foreclosure 1
04/17/2012 SURCHARGE 185C:Entry of Action filed (Section 466 M.G.L. c. 185C, §19) SURCHARGE Receipt: 44148
Date: 04/17/2012
04/17/2012 Summary Process: MGL Chapter 185C Section 19; Chapter 262 Section 2
Receipt: 44148 Date: 04/17/2012
04/20/2012 Answer of Wendy Bolling Also Know As Wendy Bowling 2
04/20/2012 Defendant Discovery Requests 3
04/23/2012 Scheduled
Event: Summary Process Trial
Date: 04/26/2012 Time: 09:00 AM
Result: Rescheduled
04/24/2012 Event Resulted
The following event: Summary Process Trial scheduled for 04/26/2012 09:00 AM has been resulted as
follows:
Result: Rescheduled
Reason: By operation of rule
Date: 05/10/2012 Time: 09:00 AM
Result: Continued
follows:
Result: Continued
ADD013
Reason: Both Parties Request
Date: 06/07/2012 Time: 09:00 AM
Result: Continued
05/15/2012 Plaintiff Discovery Response 4
follows:
Result: Continued
Date: 07/13/2012 Time: 09:00 AM
Result: Rescheduled
07/12/2012 Motion by Wendy Bolling Also Know As Wendy Bowling to compel discovery 5
sch'd for 71212 @ 9am
07/12/2012 Notice of limited appearance by Hugh D Heisler, Esq. for Wendy Bolling Also Know As Wendy Bowling. 6
follows:
Result: Rescheduled
Date: 08/02/2012 Time: 09:00 AM
Result: Continued
follows:
Result: Continued/ KAH
Date: 08/16/2012 Time: 09:00 AM
Result: Not held but resolved
08/16/2012 Notice of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling. 7
08/16/2012 Notice of withdrawal of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy 8
ADD014
Bowling.
follows:
Result: Not held but resolved, LAR/LARW for deft, Agm filed
08/16/2012 Agreement, cmc request for 82912/per PQM sch'd for 9512 @ 3:30pm 9
Event: Case Management Conference
Date: 09/05/2012 Time: 03:30 PM (Resch'd notice)
Result: Continued
The following event: Case Management Conference scheduled for 09/05/2012 03:30 PM has been resulted
as follows:
Result: Continued
Reason: Court Action
Date: 09/19/2012 Time: 03:30 PM
as follows:
Result: Rescheduled
09/21/2012 Notice of limited appearance by for . 10
Date: 10/31/2012 Time: 03:30 PM
as follows:
Result: Held
Event: Trial
Date: 01/04/2013 Time: 10:00 AM
11/02/2012 pretrial Order 11
01/03/2013 Notice of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling. 12
01/03/2013 Agreement filed to continue 2hour bench trial along with discovery requests. 13
The following event: Trial scheduled for 01/04/2013 10:00 AM has been resulted as follows:
Result: Continued
Date: 03/29/2013 Time: 10:00 AM
03/05/2013 Motion to Dismiss, and Second Motion to Compel Discovery filed by Wendy Bolling Also Know As Wendy 14
Bowling
ADD015
Event: Motion Hearing on Defendant's Motion to Dismiss, and Second Motion to Compel Discovery
Date: 03/08/2013 Time: 09:00 AM
03/06/2013 Opposition to defendant's motion to dismiss and/or compel discovery by U.S. Bank Naitonal Association As 15
Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
The following event: Motion Hearing scheduled for 03/08/2013 09:00 AM has been resulted as follows:
Result: Def's counsel present and reported that Pl's counsel was unable to be present due to weather and
that the parties were amenable to one week continuation to 3/15/13 @ 9am.
Event: Motion Hearing on Defendant's Motion to Dismiss & Second Motion to Compel Discovery
Date: 03/15/2013 Time: 09:00 AM
03/13/2013 Correspondence received from Defendant's attorney confirming motion hearing of 3/15/13.
03/15/2013 Event Resulted 16
Result: Held by J. Fein. Both parties present through counsel. STATED ON RECORD
1) The defendant's motion to dismiss is DENIED; and
2) The defendant's motion to compell is ALLOWED in its enterity on the subject of "use & occupancy"; POA
and Pulling & Servicing Agreement.
Defendant's oral motion for attys fees. Def's requested to file their motion for Attys fees w/in 7 days;
Plaintiff to file opposition to Attys fees 7 days thereafter.
follows:
Result: Rescheduled
Reason: Court Action as the parties opened their window for discovery request. As set forth on entries made
on 3/15/13.
Date: 05/07/2013 Time: 03:00 PM
04/22/2013 Motion by Wendy Bolling Also Know As Wendy Bowling to compel discovery 17
and to dismiss
Event: D's motion to dismiss & 3rd mtn to compel discovery Hearing
Date: 04/26/2013 Time: 09:00 AM
04/26/2013 Motion to dismiss filed by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC 18
Mortgage, LLC, Wendy Bolling Also Know As Wendy Bowling (voluntary)
Bowling.
04/26/2013 R 41(a)(1) Voluntary Dismissal of use and occupancy claim 19
05/06/2013 Notice of limited appearance by Pro Se for Wendy Bolling Also Know As Wendy Bowling. 21
Attorney: Dulles, Esq., Aaron M.
ADD016
as follows:
Result: Held
05/07/2013 Proposed 1st Amended Answer and Counterclaim of Defendant 22
05/07/2013 Motion to amend answer filed by Wendy Bolling Also Know As Wendy Bowling 23
Event: Motion Hearing to amend her answer and counterclaims
Date: 05/20/2013 Time: 02:00 PM
05/08/2013 Order issued 24
The following event: Motion Hearing scheduled for 05/20/2013 02:00 PM has been resulted as follows:
Result: Held by J. Fein. After hearing with both parties motion Allowed. Clerk's office request to schedule a
cmc. (SEE ENDORSEMENT ON #23)
05/24/2013 Notice of withdrawal of limited appearance by Pro Se for Wendy Bolling Also Know As Wendy Bowling. 25
Date: 06/10/2013 Time: 02:00 PM
05/29/2013 Correspondence received from parties re:request for case managment conference
05/30/2013 Appearance by attorney for Wendy Bolling Also Know As Wendy Bowling
as follows:
Result: Held Both counsel present. counsel will request back PQM
06/26/2013 Correspondence received from attorney Dulles re:request for cmconf/Per PQM sch for 71013 @ 2pm
Date: 07/10/2013 Time: 02:00 PM
Result: Held
as follows:
Result: Held further pretrial order to issue PQM
07/12/2013 Further Pretrial Order *See condition, hrg on such mtn 9613 @ 2pm w/Judge Fields. Copies mailed 26
Event: Hearing
Date: 09/06/2013 Time: 02:00 PM
Result: Rescheduled
The following event: Hearing scheduled for 09/06/2013 02:00 PM has been resulted as follows:
Result: Rescheduled to 91113 @ 2pm w/Judge Fields KAH
Appeared:
Event: Hearing ADD017
Event: Hearing
Date: 09/11/2013 Time: 02:00 PM
Result: Held
08/07/2013 Change of Address by 27
Atty Dulles
08/12/2013 Authorities Cited in support of deft's mtn for summary judg, with twelve attachments 28
08/12/2013 Affidavit of Aaron Dulles in support of deft's mtn for summary judgment, w/nine attachments 29
08/12/2013 Memorandum of Wendy Bolling Also Know As Wendy Bowling 30
of fact and law in support of mtn for summary judgment
08/12/2013 Motion by Wendy Bolling Also Know As Wendy Bowling for summary judgment 31
(per PQM to be heard on 91113)
Event: Review
Date: 08/30/2013 Time: 05:00 PM (for opposition to mtn filed on 81213, give to Judge Fields)
08/22/2013 Opposition to deft's mtn for summary judgment by U.S. Bank Naitonal Association As Trustee on Behalf of 32
Rasc 2006KS9 c/o GMAC Mortgage, LLC
and plaintiff's cross motion for summary judgment
09/03/2013 Opposition to plaintiff's motion for summary judgment(including motion to strike) by Wendy Bolling Also Know 33
As Wendy Bowling
and defendant's reply to plaintiff's opposition to her motion for summary judgment
The following event: Hearing scheduled for 09/11/2013 02:00 PM has been resulted as follows:
Result: Held
Reason: TAKEN UNDER ADVISEMENT rgf
Appeared:
09/11/2013 Memorandum of U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC 34
Mortgage, LLC
in support of object to summary judgment
09/11/2013 Authorities for Plaintiff's objection 35
11/07/2013 Order of Dismissal *See conditions, judgment for defendant for possession, CASE DISMISSED. Copies 36
mailed
11/07/2013 Judgment issued 37
Final Judgment Finding
Fields, Hon. Robert G
Judgment For: Bolling, Wendy
Judgment Against: U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC
Mortgage, LLC
Terms of Judgment:
Interest Begins: 04/17/2012 Jdgmnt Date: 11/07/2013
Damages:
Damage Amt: .00
Costs Pd to Court: .00
Other Costs: .00
Punitive Damages: .00
Crt Ord Atty Fee: .00
Further Orders: JUDGMENT FOR DEFENDANT
11/07/2013 After notice and opportunity to appear for the following event:
09/11/2013 02:00 PM Hearing
the above entitled matter is dismissed for the following reason(s): * By order of the court..
PER ORDER DATED 11713
ADD018
PER ORDER DATED 11713
12/23/2013 Motion to Amend Judgment, or for Relief filed by Wendy Bolling Also Know As Wendy Bowling 38
Event: Motion Hearing on Defendant's Motion to Amend Judgment, or for Relief
Date: 01/03/2014 Time: 09:00 AM
Result: Continued
Event: Motion Hearing to amend judgment or relief
Date: 01/22/2014 Time: 02:00 PM
Result: Held
Result: Continued
Appeared:
Result: Held
Reason: TAKEN UNDER ADVISEMENT
Appeared:
02/26/2014 OrderNew civil action to be initiated for 93A count 39
02/26/2014 DEFENDANT'S COUNTER CLAIM (93A) TRANSFERRED INTO 14CV126. TWO SEPARATE FOLDERS
ARE BEING KEPT. CIVIL CASE FOR DEFENDANT'S 93A CLAIM ONLY.
03/13/2014 Appearance by attorney for U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o
GMAC Mortgage, LLC
03/13/2014 Notice of Appeal by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC 40
Mortgage, LLC from Judgment dated 11/07/2013
03/17/2014 Motion to dismiss appeal filed by Wendy Bolling Also Know As Wendy Bowling 41
03/17/2014 Affidavit of Aaron Dulles 42
03/26/2014 Opposition to Defendan't Motion to Dismiss by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 43
2006KS9 c/o GMAC Mortgage, LLC
Event: Motion Hearing
Date: 04/01/2014 Time: 02:00 PM
Result: Allowed (ENDORSEMENT OF #41)
04/01/2014 Answer of U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC 44
04/01/2014 Motion by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC 45
to vacate judgment
summary judgment
Result: Allowed
Reason: Court Actionappeal dismissed
Appeared:
Event: Motion Hearing
Date: 04/08/2014 Time: 12:00 PM
Result: Held
04/07/2014 Opposition to P's mtn to vacate judgment by Wendy Bolling Also Know As Wendy Bowling 46
Result: Held ADD019
Result: Held
Appeared: both
04/25/2014 Order11/7/2013 order is vacated; Plaintiff's claim for possession is dismissed; Defendant's claims are 47
transferred to 14CV126
Mortgage, LLC from Judgment dated 04/25/2014
05/05/2014 Motion for clarification re: 4/25/14 order filed by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 49
2006KS9 c/o GMAC Mortgage, LLC hsg ct conf, no sessions, pqm called counsel, he will renotice
Event: Motion for clarification, Hearing
Date: 05/20/2014 Time: 09:00 AM
Result: Held
05/21/2014 ack of appeal: mailed to all parties 50
05/22/2014 Motion for reconsideration RE: order 42514 filed by U.S. Bank Naitonal Association As Trustee on Behalf of 51
Result: Held
DEFENDANT TO FILE AND SERVE OPPOSITION ON OR BEFORE 62424
PLAINTIFF TO FILE AND SERVE REPLY ON OR BEFORE 7914
FILE TO JUDGE FIELDS 71414
( this order was entered on 3/5/15)
Event: Review
Date: 07/14/2014 Time: 05:00 PM FILE TO JUDGE FIELDS
Result: Held
06/24/2014 Motion to Strike, and Alternatively, Opposition to Plaintiff's Motion for Reconsideration filed by Wendy Bolling 52
Also Know As Wendy Bowling
The following event: Review scheduled for 07/14/2014 05:00 PM has been resulted as follows:
Result: Held
Appeared:
01/21/2015 Taken under advisement w/ RGF
03/05/2015 Ordermailed 53
03/05/2015 Judgment issued 54
Final Judgment Finding
Fields, Hon. Robert G
Judgment For: Wendy Bolling Also Know As Wendy Bowling
Judgment Against: U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC
Mortgage, LLC
Terms of Judgment:
Jdgmnt Date: 03/05/2015
03/12/2015 Tape Cassette and Digital Recordings of Proceedings MGL 262 section 4b Receipt: 73773 Date: 03/12/2015
Mortgage, LLC from Judgment dated
renewed notice
03/12/2015 cassette order form 56
04/22/2015 Appearance Withdrawn by David W. Merritt, Esq. by U.S. Bank Naitonal Association As Trustee on Behalf of 57
04/22/2015 Appearance by attorney for U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o 58
GMAC Mortgage, LLC
04/23/2015 letter sent regarding CD being ready for pickup 59
04/28/2015 Verification cassette reveived 60
ADD020
04/28/2015 Verification cassette reveived 60
05/07/2015 Correspondence received from attorney Vaulding re:Notice Pursuant to Mass.R.A.P. 8(b) 61
05/27/2015 Transcript of hearing 09/11/13,01/22/14,04/08/14&05/27/14 filed (inside binder) 62
06/09/2015 Tape Cassette and Digital Recordings of Proceedings MGL 262 section 4b Receipt: 75668 Date: 06/09/2015
07/10/2015 Notice pursuant to Mass.R.A.P. 8(b) 63
07/31/2015 Transcript of hearing filed 64
09/14/2015 Motion to withdraw filed by Wendy Bolling Also Know As Wendy Bowling
Event: Motion Hearing to withdraw as counsel
Date: 09/18/2015 Time: 09:00 AM
Result: Allowed
Result: Allowed
09/23/2015 Requesting Party Received CDs from Clerk Office
09/23/2015 Notice of Entry (appeals court)
Linked Cases
Link Group Case # File Date Link Role

14H79CV000126 14H79CV000126 02/26/2014 Associated Case
Case Disposition
Disposition Date
Agreement 08/16/2012
Judgments
Date Type Method For Against

03/05/2015 Final Judgment Finding Bolling, Wendy U.S. Bank Naitonal Association
11/07/2013 Final Judgment Finding Bolling, Wendy U.S. Bank Naitonal Association
ADD021
Massachusetts Civil Procedure Rule 56 http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp56.html
Home > Laws by Source > Mass. Primary Law > Court Rules > Civil Procedure > Rule 56
Massachusetts Civil Procedure Rule 56:

Summary Judgment
[Disclaimer]
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory judgment may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment in his favor upon all or
any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted
or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for
a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the
time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and responses to requests for admission under Rule 36, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone although there is a genuine issue as to the amount
of damages. Summary judgment, when appropriate, may be rendered against the moving party.
(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered
upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of
the motion, by examining the pleadings and the evidence before it and by interrogating counsel,
shall if practicable ascertain what material facts exist without substantial controversy and what
material facts are actually and in good faith controverted. It shall thereupon make an order
specifying the facts that appear without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and directing such further proceedings in
the action as are just. Upon the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith. The court may permit affidavits to be supplemented
or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in this rule, an adverse party may not rest
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ADD022
upon the mere allegations or denials of his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against
him.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts essential to justify his
opposition, the court may refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or may make such other
order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that
any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the
purpose of delay, the court shall forthwith order the party employing them to pay to the other party
the amount of the reasonable expenses which the filing of the affidavits caused him to incur,
including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty
of contempt.
Amended March 7, 2002, effective May 1, 2002.
Reporter's Notes to Rule 56(c) (2002) The 2002 amendment to Rule 56(c) deletes the
phrase "on file" from the third sentence, in recognition of the fact that discovery documents
are generally no longer separately filed with the court. See Rule 5(d)(2) and Superior Court
Administrative Directive No. 90-2. The previous reference to admissions has also been
replaced by a reference to "responses to requests for admission under Rule 36." The
amendment is merely of the housekeeping variety and no change in practice is intended.
(1973) Except in a narrow class of cases, Massachusetts has up to now lacked any
procedural device for terminating litigation in the interim between close of pleadings and trial.
Under G.L. c. 231, §§ 59 and 59B, only certain contract actions could be disposed of prior to
trial. In all other types of litigation, no matter how little factual dispute involved, resolution had
to await trial.
Rule 56, which, with a small addition, tracks Federal Rule 56 exactly, responds to the need
which the statutes left unanswered. It proceeds on the principle that trials are necessary only
to resolve issues of fact; if at any time the court is made aware of the total absence of such
issues, it should on motion promptly adjudicate the legal questions which remain, and thus
terminate the case.
The statutes, so far as they went, embodied this philosophy. They aimed "to avoid delay and
expense of trials in cases where there is no genuine issue of fact." Albre Marble & Tile Co.,
Inc. v. John Bowen Co., Inc., 338 Mass. 394, 397 (1959). Rule 56 will extend this principle
beyond contract cases. Thus in tort actions where the facts are not disputed, summary
judgment for one party will be appropriate. Should the facts concerning liability be undisputed,
but damages controverted, Rule 56(c) authorizes partial summary judgment: the court may
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ADD023
determine the liability issue, leaving for trial only the question of damages.
The important thing to realize about summary judgment under Rule 56 is that it can be
granted if and only if there is "no genuine issue as to any material fact." If any such issue
appears, summary judgment must be denied. So-called "trial by affidavits" has no place under
Rule 56. Affidavits (or pleadings, depositions, answers to interrogatories, or admissions) are
merely devices for demonstrating the absence of any genuine issue of material fact.
Introduction of material controverting the moving party's assertions of fact raises such an
issue and precludes summary judgment.
On the other hand, because Rule 56 recognizes only "genuine" material issues of fact, Rule
56(e) requires the opponent of any summary judgment motion to do something more than
simply deny the proponents allegations. Faced with a summary judgment motion supported
by affidavits or the like, an opponent may not rely solely upon the allegations of his pleadings.
He bears the burden of introducing enough countervailing data to demonstrate the existence
of a genuine material factual issue.
If, however, the opponent is convinced that even on the movant's undisputed affidavits, the
court should not grant summary judgment, he may decline to introduce his own materials and
may instead fight the motion on entirely legal (as opposed to factual) grounds. Indeed, the
final sentence of Rule 56(c) makes clear that in appropriate cases, summary judgment may
be entered against the moving party. This is eminently logical. Because by definition the
moving party is always asserting that the case contains no factual issues, the court should
have the power, no matter who initiates the motion, to award judgment to the party legally
entitled to prevail on the undisputed facts.
Previous Rule Next Rule
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Last update: March 7, 2013 11:03 AM.
3 of 3 9/25/14 12:49 AM
ADD024
General Laws: CHAPTER 183, Section 21 http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chap...
Print
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS

(Chapters 183 through 210)
TITLE I TITLE TO REAL PROPERTY
CHAPTER 183 ALIENATION OF LAND
Section 21 “Statutory power of sale” in mortgage
Section 21. The following “power” shall be known as the “Statutory Power of Sale”, and may be
incorporated in any mortgage by reference:
(POWER.)
But upon any default in the performance or observance of the foregoing or other condition, the
mortgagee or his executors, administrators, successors or assigns may sell the mortgaged
premises or such portion thereof as may remain subject to the mortgage in case of any partial
release thereof, either as a whole or in parcels, together with all improvements that may be
thereon, by public auction on or near the premises then subject to the mortgage, or, if more than
one parcel is then subject thereto, on or near one of said parcels, or at such place as may be
designated for that purpose in the mortgage, first complying with the terms of the mortgage and
with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and
may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in
fee simple; and such sale shall forever bar the mortgagor and all persons claiming under him
from all right and interest in the mortgaged premises, whether at law or in equity.
1 of 1 7/21/12 1:28 PM
ADD025
General Laws: CHAPTER 183, Section 3 24/05/16 3:10 PM
Print
Section 3 Estate created without instrument in writing
Section 3. An estate or interest in land created without an instrument in writing signed by the grantor
or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in
land shall be assigned, granted or surrendered unless by such writing or by operation of law.
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183/Section3/Print Page 1 of 1
ADD026
Print
Section 4 Effect of recordation or actual notice of deeds or leases, or of assignments of rents or profits
Section 4. A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than seven
years from the making thereof, or an assignment of rents or profits from an estate or lease, shall not
be valid as against any person, except the grantor or lessor, his heirs and devisees and persons
having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-
six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice
of assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for the
county or district in which the land to which it relates lies. A ''notice of lease'', as used in this section,
shall mean an instrument in writing executed by all persons who are parties to the lease of which
notice is given and shall contain the following information with reference to such lease:—the date of
execution thereof and a description, in the form contained in such lease, of the premises demised,
and the term of such lease, with the date of commencement of such term and all rights of extension
or renewal. A ''notice of assignment of rents or profits'', as used in this section, shall mean an
instrument in writing executed by the assignor and containing the following information:— a
description of the premises, the rent or profits of which have been assigned, adequate to identify the
premises, the name of assignee, and the rents and profits which have been assigned. A provision in
a recorded mortgage assigning or conditionally assigning rents or profits or obligating the mortgagor
to assign or conditionally assign existing or future rents or profits shall constitute a ''notice of
assignment of rents or profits''.
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183/Section4/Print Page 1 of 1
ADD027
Print
TITLE II DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES,
GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
CHAPTER 203 TRUSTS
Section 2 Record of trust; notice
Section 2. If a trust concerning land is created or declared by such instrument, the recording of the
instrument, or of a certificate conforming to the requirements of section 35 of chapter 184, in the
registry of deeds or the registration office of the land court, in either case for the county or district
where the land lies, shall be equivalent to actual notice to every person claiming under a
conveyance, attachment or execution thereafter made or levied.
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203/Section2/Print Page 1 of 1
ADD028
Print
TITLE II DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES,
GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
CHAPTER 203 TRUSTS
Section 3 Purchasers without notice
Section 3. No trust concerning land, whether implied by law or created or declared by the parties,
shall defeat the title of a purchaser for a valuable consideration without notice of the trust, or prevent
a creditor who has no notice of the trust from attaching the land or from taking it on execution as if
no such trust existed.
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203/Section3/Print Page 1 of 1
ADD029
Print
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE III REMEDIES RELATING TO REAL PROPERTY
CHAPTER 240 PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND
Section 1 Petition to compel adverse claimant to try title
Section 1. If the record title of land is clouded by an adverse claim, or by the possibility thereof, a
person in possession of such land claiming an estate of freehold therein or an unexpired term of not
less than ten years, and a person who by force of the covenants in a deed or otherwise may be
liable in damages, if such claim should be sustained, may file a petition in the land court stating his
interest, describing the land, the claims and the possible adverse claimants so far as known to him,
and praying that such claimants may be summoned to show cause why they should not bring an
action to try such claim. If no better description can be given, they may be described generally, as
the heirs of A B or the like. Two or more persons having separate and distinct parcels of land in the
same county and holding under the same source of title, or persons having separate and distinct
interests in the same parcel or parcels, may join in a petition against the same supposed claimants.
If the supposed claimants are residents of the commonwealth, the petition may be inserted like a
declaration in a writ, and served by a copy, like a writ of original summons. Whoever is in the
enjoyment of an easement shall be held to be in possession of land within the meaning of this
section.
https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter240/Section1/Print Page 1 of 1
ADD030
Print
CHAPTER 244 FORECLOSURE AND REDEMPTION OF MORTGAGES
Section 14 Foreclosure under power of sale; procedure; notice; form
Section 14. The mortgagee or person having estate in the land mortgaged, or a person authorized
by the power of sale, or the attorney duly authorized by a writing under seal or the legal guardian or
conservator of such mortgagee or person acting in the name of such mortgagee or person, may,
upon breach of condition and without action, perform all acts authorized or required by the power of
sale; provided, however, that no sale under such power shall be effectual to foreclose a mortgage,
unless, previous to such sale, notice of the sale has been published once in each of 3 successive
weeks, the first publication of which shall be not less than 21 days before the day of sale, in a
newspaper published in the city or town where the land lies or in a newspaper with general
circulation in the city or town where the land lies and notice of the sale has been sent by registered
mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of
sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale to said
owner or owners to the address set forth in section 61 of chapter 185, if the land is then registered
or, in the case of unregistered land, to the last address of the owner or owners of the equity of
redemption appearing on the records of the holder of the mortgage, if any, or if none, to the address
of the owner or owners as given on the deed or on the petition for probate by which the owner or
owners acquired title, if any, or if in either case no owner appears, then mailed by registered mail to
the address to which the tax collector last sent the tax bill for the mortgaged premises to be sold, or
if no tax bill has been sent for the last preceding 3 years, then mailed by registered mail to the
address of any of the parcels of property in the name of said owner of record which are to be sold
under the power of sale and unless a copy of said notice of sale has been sent by registered mail to
all persons of record as of 30 days prior to the date of sale holding an interest in the property junior
to the mortgage being foreclosed, said notice to be mailed at least 14 days prior to the date of sale
to each such person at the address of such person set forth in any document evidencing the interest
or to the last address of such person known to the mortgagee. Any person of record as of 30 days
prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed
may waive at any time, whether prior or subsequent to the date of sale, the right to receive notice by
mail to such person under this section and such waiver shall constitute compliance with such notice
requirement for all purposes. If no newspaper is published in such city or town, or if there is no
newspaper with general circulation in the city or town where the land lies, notice may be published
in a newspaper published in the county where the land lies, and this provision shall be implied in
every power of sale mortgage in which it is not expressly set forth. A newspaper which by its title
ADD031
page purports to be printed or published in such city, town or county, and having a circulation in that
city, town or county, shall be sufficient for the purposes of this section.
The following form of foreclosure notice may be used and may be altered as circumstances require;
but nothing in this section shall be construed to prevent the use of other forms.
(Form.)
MORTGAGEE'S SALE OF REAL ESTATE.
By virtue and in execution of the Power of Sale contained in a certain mortgage given by . . . . . . . . .
. . .<\/y> to . . . . . . . . . . . .<\/y> dated . . . . . . . . . . . .<\/y> and recorded with
.....
Deeds, Book . . . . . . . . . . . .<\/y>, page . . . . . . . . . . . .<\/y>, of which mortgage the undersigned is

the present holder, . . . . . . . . . . . .<\/y>.
(If by assignment, or in any fiduciary capacity, give reference to the assignment or assignments
recorded with . . . . .Deeds, Book . . . . . . . . . . . .<\/y>, page . . . . . . . . . . . .<\/y>, of which mortgage
the undersigned is the present holder, . . . . . . . . . . . .<\/y>)
for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be
sold at Public Auction at . . . . . . . . . . . .<\/y>o'clock, . . . . . . . . . . . .<\/y> M. on the . . . . . . . . . . . .
<\/y> day of . . . . . . . . . . . .<\/y> A.D. (insert year), . . . . . . . . . . . .<\/y> (place) . . . . . . . . . . . .<\/y>
all and singular the premises described in said mortgage,
(In case of partial releases, state exceptions.)
To wit: ''(Description as in the mortgage, including all references to title, restrictions, encumbrances,
etc., as made in the mortgage.)''
Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time and
place of the sale, and the time or times for payment of the balance or the whole as the case may
be.)
Other terms to be announced at the sale.
(Signed) ___
ADD032
Present holder of said mortgage.___
A notice of sale in the above form, published in accordance with the power in the mortgage and with
this chapter, together with such other or further notice, if any, as is required by the mortgage, shall
be a sufficient notice of the sale; and the premises shall be deemed to have been sold and the deed
thereunder shall convey the premises, subject to and with the benefit of all restrictions, easements,
improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in
the nature of liens, and existing encumbrances of record created prior to the mortgage, whether or
not reference to such restrictions, easements, improvements, liens or encumbrances is made in the
deed; provided, however, that no purchaser at the sale shall be bound to complete the purchase if
there are encumbrances, other than those named in the mortgage and included in the notice of sale,
which are not stated at the sale and included in the auctioneer's contract with the purchaser.
For purposes of this section and section 21 of chapter 183, in the event a mortgagee holds a
mortgage pursuant to an assignment, no notice under this section shall be valid unless (i) at the time
such notice is mailed, an assignment, or a chain of assignments, evidencing the assignment of the
mortgage to the foreclosing mortgagee has been duly recorded in the registry of deeds for the
county or district where the land lies and (ii) the recording information for all recorded assignments
is referenced in the notice of sale required in this section. The notice shall not be defective if any
holder within the chain of assignments either changed its name or merged into another entity during
the time it was the mortgage holder; provided, that recited within the body of the notice is the fact of
any merger, consolidation, amendment, conversion or acquisition of assets causing the change in
name or identity, the recital of which shall be conclusive in favor of any bona fide purchaser,
mortgagee, lienholder or encumbrancer of value relying in good faith on such recital.
ADD033
General Laws: CHAPTER 244, Section 35A http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleII...
Print

(Chapters 211 through 262)
CHAPTER 244 FORECLOSURE AND REDEMPTION OF MORTGAGES
Section 35A Right of residential real property mortgagor to cure a default; good faith effort to
negotiate for commercially reasonable alternative to foreclosure; response from borrower; affidavit upon
initiation of foreclosure proceedings; acceleration of maturity of balance prohibited; notice
[Text of section effective until January 1, 2016. For text effective January 1, 2016, see below.]
Section 35A. (a) As used in this section, the following words shall, unless the context clearly
requires otherwise, have the following meanings:
“Borrower”, a mortgagor of a mortgage loan.
“Borrower’s representative”, an employee or contractor of a non-profit organization certified

by Housing and Urban Development, an employee or contractor of a foreclosure education
center pursuant to section 16 of chapter 206 of the acts of 2007 or an employee or contractor
of a counseling agency receiving a Collaborative Seal of Approval from the Massachusetts
Homeownership Collaborative administered by the Citizens’ Housing and Planning
Association.
“Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly, or in a
nominee capacity, a mortgage loan securing a residential property, including, without
limitation, an originator, holder, investor, assignee, successor, trust, trustee, nominee holder,
Mortgage Electronic Registration System or mortgage servicer, including the Federal National
Mortgage Association or the Federal Home Loan Mortgage Corporation. “Creditor” shall also
include any servant, employee or agent of a creditor.
“Creditor’s representative”, a person who has the authority to negotiate the terms of and
modify a mortgage loan.
“Modified mortgage loan”, a mortgage modified from its original terms including, but not
limited to, a loan modified pursuant to 1 of the following: (i) the Home Affordable Modification
Program; (ii) the Federal Deposit Insurance Corporation’s Loan Modification Program; (iii)
any modification program that a lender uses which is based on accepted principles and the
safety and soundness of the institution and recognized by the National Credit Union
Administration, the Division of Banks or any other instrumentality of the commonwealth; (iv)
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ADD034
the Federal Housing Agency; or (v) a similar federal refinance plan.
“Mortgage loan”, a loan to a natural person made primarily for personal, family or household
purposes secured wholly or partially by a mortgage on residential property.
“Net present value”, the present net value of a residential property based on a calculation
using 1 of the following: (i) the federal Home Affordable Modification Program Base Net
Present Value Model, (ii) the Federal Deposit Insurance Corporation’s Loan Modification
Program; or (iii) for the Massachusetts Housing Finance Agency’s loan program used solely
by the agency to compare the expected economic outcome of a loan with or without a loan
modification.
“Residential property”, real property located in the commonwealth having thereon a dwelling
house with accommodations for 4 or less separate households and occupied, or to be
occupied, in whole or in part by the obligor on the mortgage debt; provided, however, that
residential property shall be limited to the principal residence of a person; provided further,
that residential property shall not include an investment property or residence other than a
primary residence; and provided further, that residential property shall not include residential
property taken in whole or in part as collateral for a commercial loan.
(b) A mortgagor of residential property shall have a 150-day right to cure a default of a
required payment as provided in the residential mortgage or note secured by the residential
property by full payment of all amounts that are due without acceleration of the maturity of
the unpaid balance of the mortgage; provided, however, that if a creditor certifies that: (i) it
has engaged in a good faith effort to negotiate a commercially reasonable alternative to
foreclosure as described in subsection (c); (ii) its good faith effort has involved at least 1
meeting, either in person or by telephone, between a creditor’s representative and the
borrower, the borrower’s attorney or the borrower’s representative; and (iii) after such
meeting the borrower and the creditor were not successful in resolving their dispute, then
the creditor may begin foreclosure proceedings after a right to cure period lasting 90 days.
A borrower who fails to respond within 30 days to any mailed communications offering to
negotiate a commercially reasonable alternative to foreclosure sent via certified and first
class mail or similar service by a private carrier from the lender shall be deemed to have
forfeited the right to a 150-day right to cure period and shall be subject to a right to cure
period lasting 90 days. The right to cure a default of a required payment shall be granted
once during any 3 year period, regardless of mortgage holder.
(c) For purposes of this section, a determination that a creditor has made a good faith effort
to negotiate and agree upon a commercially reasonable alternative to foreclosure shall
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ADD035
mean that the creditor has considered: (i) an assessment of the borrower’s current
circumstances including, without limitation, the borrower’s current income, debts and
obligations; (ii) the net present value of receiving payments pursuant to a modified
mortgage loan as compared to the anticipated net recovery following foreclosure; and (iii)
the interests of the creditor; provided, however, that nothing in this subsection shall be
construed as prohibiting a creditor from considering other factors; provided, further, that
the creditor shall provide by first class and certified mail or similar service by a private
carrier to a borrower documentation of good faith effort 10 days prior to meeting,
telephone conversation or a meeting pursuant to subsection (b).
(d) A borrower who receives a loan modification offer from the creditor resulting from the
lender’s good faith effort to negotiate and agree upon a commercially reasonable
alternative to foreclosure shall respond within 30 days of receipt of first class or certified
mail. A borrower shall be presumed to have responded if the borrower provides: (i)
confirmation of a facsimile transmission to the creditor; (ii) proof of delivery through the
United States Postal Service or similar carrier; or (iii) record of telephone call to the
creditor captured on a telephone bill or pin register. A borrower who fails to respond to the
creditor’s offer within 30 days of receipt of a loan modification offer shall be deemed to
have forfeited the 150-day right to cure period and shall be subject to a right to cure period
lasting 90 days.
(e) Nothing in this section shall prevent a creditor from offering or accepting alternatives to
foreclosure, such as a short sale or deed-in-lieu of foreclosure, if the borrower requests
such alternatives, rejects a loan modification offered pursuant to this subsection or does
not qualify for a loan modification pursuant to this subsection.
(f) A creditor that chooses to begin foreclosure proceedings after a right to cure period
lasting less than 150 days that engaged in a good faith effort to negotiate and agree upon
a commercially reasonable alternative but was not successful in resolving the dispute shall
certify compliance with this section in an affidavit. The affidavit shall include the time and
place of the meeting, parties participating, relief offered to the borrower, a summary of the
creditor’s net present value analysis and applicable inputs of the analysis and certification
that any modification or option offered complies with current federal law or policy. A
creditor shall provide a copy of the affidavit to the homeowner and file a copy of the
affidavit with the land court in advance of the foreclosure.
(g) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of the
unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of
a default consisting of the mortgagor’s failure to make any such payment in subsection (b)
3 of 8 02/08/12 12:13 AM
ADD036
by any method authorized by this chapter or any other law until at least 150 days after
the date a written notice is given by the mortgagee to the mortgagor; provided, however,
that a creditor meeting the requirements of subsection (b) that chooses to begin
foreclosure proceedings after a right to cure period lasting less than 150 days may
accelerate maturity of the unpaid balance of such mortgage obligation or otherwise
enforce the mortgage because of a default consisting of the mortgagor’s failure to make
any such payment in subsection (b) by any method authorized by this chapter or any
other law not less than 91 days after the date a written notice is given by the creditor to
the mortgagor.
Said notice shall be deemed to be delivered to the mortgagor: (i) when delivered by hand
to the mortgagor; or (ii) when sent by first class mail and certified mail or similar service
by a private carrier to the mortgagor at the mortgagor’s address last known to the
mortgagee or anyone holding thereunder.
(h) The notice required in subsection (g) shall inform the mortgagor of the following:—
(1) the nature of the default claimed on such mortgage of residential real property and of
the mortgagor’s right to cure the default by paying the sum of money required to cure the
default;
(2) the date by which the mortgagor shall cure the default to avoid acceleration, a
foreclosure or other action to seize the home, which date shall not be less than 150 days
after service of the notice and the name, address and local or toll free telephone number
of a person to whom the payment or tender shall be made unless a creditor chooses to
begin foreclosure proceedings after a right to cure period lasting less than 150 days that
engaged in a good faith effort to negotiate and agree upon a commercially reasonable
alternative but was not successful in resolving the dispute, in which case a foreclosure or
other action to seize the home may take place on an earlier date to be specified;
(3) that, if the mortgagor does not cure the default by the date specified, the mortgagee,
or anyone holding thereunder, may take steps to terminate the mortgagor’s ownership in
the property by a foreclosure proceeding or other action to seize the home;
(4) the name and address of the mortgagee, or anyone holding thereunder, and the
telephone number of a representative of the mortgagee whom the mortgagor may
contact if the mortgagor disagrees with the mortgagee’s assertion that a default has
occurred or the correctness of the mortgagee’s calculation of the amount required to cure
the default;
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ADD037
(5) the name of any current and former mortgage broker or mortgage loan originator for
such mortgage or note securing the residential property;
(6) that the mortgagor may be eligible for assistance from the Homeownership
Preservation Foundation or other foreclosure counseling agency, and the local or toll
free telephone numbers the mortgagor may call to request this assistance;
(7) that the mortgagor may sell the property prior to the foreclosure sale and use the
proceeds to pay off the mortgage;
(8) that the mortgagor may redeem the property by paying the total amount due, prior to
the foreclosure sale;
(9) that the mortgagor may be evicted from the home after a foreclosure sale; and
(10) the mortgagor may have the following additional rights, depending on the terms of
the residential mortgage: (i) to refinance the obligation by obtaining a loan which would
fully repay the residential mortgage debtor; and (ii) to voluntarily grant a deed to the
residential mortgage lender in lieu of foreclosure.
The notice shall also include a declaration, in the language the creditor has regularly
used in its communication with the borrower, appearing on the first page of the notice
stating: “This is an important notice concerning your right to live in your home. Have it
translated at once.”
The division of banks shall adopt regulations in accordance with this subsection.
(i) To cure a default prior to acceleration under this section, a mortgagor shall not be
required to pay any charge, fee or penalty attributable to the exercise of the right to cure
a default. The mortgagor shall pay late fees as allowed pursuant to section 59 of
chapter 183 and per-diem interest to cure such default. The mortgagor shall not be
liable for any attorneys’ fees relating to the mortgagor’s default that are incurred by the
mortgagee or anyone holding thereunder prior to or during the period set forth in the
notice required by this section. The mortgagee, or anyone holding thereunder, may also
provide for reinstatement of the note after the 150-day notice to cure has ended.
(j) A copy of the notice required by this section and an affidavit demonstrating
compliance with this section shall be filed by the mortgagee, or anyone holding
thereunder, in any action or proceeding to foreclose on such residential real property.
5 of 8 02/08/12 12:13 AM
ADD038
(k) A copy of the notice required by this section shall also be filed by the mortgagee,
or anyone holding thereunder, with the commissioner of the division of banks.
Additionally, if the residential property securing the mortgage loan is sold at a
foreclosure sale, the mortgagee, or anyone holding thereunder, shall notify the
commissioner of the division of banks, in writing, of the date of the foreclosure sale
and the purchase price obtained at the sale.
Chapter 244: Section 35A. Right of residential real property mortgagor to cure a default; notice required to
accelerate maturity of balance; contents of notice; late fees; filing
[Text of section as amended by 2010, 258, Sec. 8 effective January 1, 2016. See
2010, 258, Sec. 14. For text effective until January 1, 2016, see above.]
Section 35A. (a) Any mortgagor of residential real property located in the
commonwealth, shall have a 90-day right to cure a default of a required payment as
provided in such residential mortgage or note secured by such residential real
property by full payment of all amounts that are due without acceleration of the
maturity of the unpaid balance of such mortgage. The right to cure a default of a
required payment shall be granted once during any 5-year period, regardless of the
mortgage holder. For the purposes of this section, “residential property”, shall mean
real property located in the commonwealth having thereon a dwelling house with
accommodations for 4 or less separate households and occupied, or to be occupied,
in whole or in part by the mortgagor; provided, however, that residential property shall
be limited to the principal residence of a person; provided further, that residential
property shall not include an investment property or residence other than a primary
residence; and provided further, that residential property shall not include residential
property taken in whole or in part as collateral for a commercial loan.
(b) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of the
unpaid balance of such mortgage obligation or otherwise enforce the mortgage
because of a default consisting of the mortgagor’s failure to make any such payment
in subsection (a) by any method authorized by this chapter or any other law until at
least 90 days after the date a written notice is given by the mortgagee to the
mortgagor.
Said notice shall be deemed to be delivered to the mortgagor: (i) when delivered by
hand to the mortgagor; or (ii) when sent by first class mail and certified mail or similar
service by a private carrier to the mortgagor at the mortgagor’s address last known to
6 of 8 02/08/12 12:13 AM
ADD039
the mortgagee or anyone holding thereunder.
(c) The notice required in subsection (b) shall inform the mortgagor of the
following:—
(1) the nature of the default claimed on such mortgage of residential real property
and of the mortgagor’s right to cure the default by paying the sum of money required
to cure the default;
(2) the date by which the mortgagor shall cure the default to avoid acceleration, a
foreclosure or other action to seize the home, which date shall not be less than 90
days after service of the notice and the name, address and local or toll free
telephone number of a person to whom the payment or tender shall be made;
(3) that, if the mortgagor does not cure the default by the date specified, the
mortgagee, or anyone holding thereunder, may take steps to terminate the
mortgagor’s ownership in the property by a foreclosure proceeding or other action to
seize the home;
(4) the name and address of the mortgagee, or anyone holding thereunder, and the
telephone number of a representative of the mortgagee whom the mortgagor may
contact if the mortgagor disagrees with the mortgagee’s assertion that a default has
occurred or the correctness of the mortgagee’s calculation of the amount required to
cure the default;
(5) the name of any current and former mortgage broker or mortgage loan originator
for such mortgage or note securing the residential property;
(6) that the mortgagor may be eligible for assistance from the Massachusetts
Housing Finance Agency and the division of banks and the local or toll free
telephone numbers the mortgagor may call to request this assistance;
(7) that the mortgagor may sell the property prior to the foreclosure sale and use the
proceeds to pay off the mortgage;
(8) that the mortgagor may redeem the property by paying the total amount due,
prior to the foreclosure sale;
(9) that the mortgagor may be evicted from the home after a foreclosure sale; and
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ADD040
(10) the mortgagor may have the following additional rights, depending on the
terms of the residential mortgage: (i) to refinance the obligation by obtaining a loan
which would fully repay the residential mortgage debtor; and (ii) to voluntarily grant
a deed to the residential mortgage lender in lieu of foreclosure.
The notice shall also include a declaration, appearing on the first page of the notice
stating: “This is an important notice concerning your right to live in your home. Have
it translated at once.”
The division of banks shall adopt regulations in accordance with this subsection.
(d) To cure a default prior to acceleration under this section, a mortgagor shall not
be required to pay any charge, fee, or penalty attributable to the exercise of the
right to cure a default. The mortgagor shall pay late fees as allowed pursuant to
section 59 of chapter 183 and per-diem interest to cure such default. The
mortgagor shall not be liable for any attorneys’ fees relating to the mortgagor’s
default that are incurred by the mortgagee or anyone holding thereunder prior to or
during the period set forth in the notice required by this section. The mortgagee, or
anyone holding thereunder, may also provide for reinstatement of the note after the
90 day notice to cure has ended.
(e) A copy of the notice required by this section and an affidavit demonstrating
compliance with this section shall be filed by the mortgagee, or anyone holding
thereunder, in any action or proceeding to foreclose on such residential real
property.
(f) A copy of the notice required by this section shall also be filed by the mortgagee,
or anyone holding thereunder, with the commissioner of the division of banks.
Additionally, if the residential property securing the mortgage loan is sold at a
foreclosure sale, the mortgagee, or anyone holding thereunder, shall notify the
commissioner of the division of banks, in writing, of the date of the foreclosure sale
and the purchase price obtained at the sale.
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ADD041
7-2.4 - Act of trustee in contravention of trust :: 2013 New York Consolidated Laws :: US Codes and Statutes :: US Law :: Justia 24/05/16 3:20 PM
Universal Citation: NY Est Pow & Trusts L § 7-2.4

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§ 7-2.4 Act of trustee in contravention
summaries of federal and
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trustee, every sale, conveyance or
other act of the trustee in
contravention of the trust, except as
authorized by this article and by
any other provision of law, is void.
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COMMONWEALTH OF MASSACHUSETTS

U.S. BANK, N.A., AS TRUSTEE FOR

ON APPEAL FROM A FINAL JUDGMENT OF

THE WESTERN HOUSING COURT

APPELLEE’S OPENING BRIEF

Glenn F. Russell, Jr.

Dated: May 24, 2016

I. STATEMENT OF THE ISSUES PRESENTED.........1

II. STATEMENT OF THE

IV. SUMMARY OF THE

STATEMENT CERTIFICATE OF SERVICE....................53

U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass. 637 (2011)

Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S. 301, 304

Wilson v. HSBC Mortgage Servcs., Inc., 744 F.3d, 1, 10

A. WHERE THE PLAINTIFF TRUSTEE [ON BEHALF OF THE

1. To Enforce The Power of Sale Under G.L. c. 244,

B. WHERE THE DEFENDANT IDENTIFIES ITSELF AS A

1. The Defendant Trust Governing Instrument

2. New York Trust Law Governed The Requirement

C. THE HOUSING JUDGE PROPERLY IDENTIFIED THAT

1. In Order To Demonstrate The Validity of The

2. Under The Peculiar PSA At Issue, The

3. Massachusetts Case Law on This Issue Has

D. THE SJC HAS ALREADY EXAMINED ISSUES RELATED TO

II. STATEMENT OF THE CASE:

This is the Plaintiff’s appeal of the Housing

Court's decision granting summary judgment (and

therefore possession of the property) to Bolling in a

summary process eviction action. On April 17, 2012,

the Trust served Bolling with a Summary Process

Summons and Complaint after Bolling failed to vacate

the property located at 114 Lamont Street,

Springfield, MA 01119 (hereinafter referred to as the

"Property") following a December 27, 2011 foreclosure

sale in which the Trust took title to the Property.

Bolling was served but on April 2, 2012; she had

not vacated her home. No foreclosure sale took place

(although an auction was apparently walked through) as

only a mortgagee who has received the mortgage from a

chain of mortgagees who actually legally held a real

interest in the mortgage and legally transferred has

“authority and jurisdiction” to utilize the power of

sale contained therein. The Securitized Trust that

claimed to have authorized the foreclosure never owned

the mortgage; it had nothing to sell and so nothing

was bought at the auction sale.

On April 20, 2012, Bolling filed an answer with

defenses. The Parties filed cross-motions for summary

judgment in August 2013. Bolling argued that the

foreclosure sale was void, for two reasons. First, she

argued that the Trust failed to strictly comply with

G.L. c. 244, § 35A, rendering the foreclosure void.

Second, she claimed the foreclosure sale was void

because the mortgage had been purportedly “assign” to

the Trust, but in contravention of the controlling

terms of the Trust's Governing Instrument pooling and

servicing agreement ("PSA"), such that the foreclosure

did not actually legally own superior title for