EDYTHE L. DYER, Plaintiff, Appellant,
WELLS FARGO BANK, N.A., d/b/a America's Servicing Company; U.S. BANK, N.A., as Trustee for CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-2, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. M. Page Kelley, U.S. Magistrate Judge
F. Russell, Jr., with whom Glenn F. Russell Jr., &
Associates, P.C. was on brief, for appellant.
E. Fialkow, with whom Jeffrey S. Patterson, Michael R.
Stanley, and K&L Gates LLP were on brief, for appellees.
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
plaintiff, Edythe Dyer, brought this suit against U.S. Bank,
N.A. ("U.S. Bank") and Wells Fargo Bank, N.A.
("Wells Fargo"), arising out of a foreclosure sale
on her property. The suit was dismissed, and we now affirm.
2004, Dyer executed a promissory note to Dreamhouse Mortgage
Corporation ("Dreamhouse") and granted a mortgage
on her property at 41 Commonwealth Avenue, Unit #9, in
Boston, Massachusetts (the "Property"). She granted
the mortgage to Mortgage Electronic Registration Systems,
Inc. ("MERS") as the "nominee" for
Dreamhouse and its successors and assigns. In 2008, MERS
executed a document entitled "Assignment of Mortgage,
" which transferred the mortgage to U.S. Bank, as
trustee. The document was recorded with the Registry of Deeds
for Suffolk County, Massachusetts. MERS also executed an
assignment of the mortgage to U.S. Bank in 2011. In 2012,
MERS published a "Confirmatory Assignment"
confirming the 2008 assignment. That document explained that
the 2011 assignment was a nullity because, in 2011, MERS did
not have standing to assign the mortgage, given that it had
already transferred the mortgage to U.S. Bank in 2008. In
2013, Wells Fargo, U.S. Bank's servicer of the loan,
recorded an affidavit in the registry of deeds attesting
that, as of that time, U.S. Bank held the note secured by
April 2015, U.S. Bank notified Dyer that it intended to
foreclose on the Property by utilizing the statutory power of
sale provided for in Massachusetts General Laws Chapter 183
§ 21. That provision permits a proper party to execute a
foreclosure sale without prior judicial authorization.
Eaton v. Fed. Nat'l Mortg. Ass'n, 969 N.E.2d
1118, 1127 (Mass. 2012). The requirements for exercising that
statutory power of sale are laid out in Massachusetts General
Laws Chapter 244 § 14. See Fed. Nat'l Mortg.
Ass'n v. Rego, 50 N.E.3d 419, 422-23 (Mass. 2016).
filed suit in Massachusetts state court on May 26, 2015. Dyer
named U.S. Bank as one of the defendants. She sought a
declaratory judgment that U.S. Bank is not a proper party
under Section 14 to utilize the statutory power of sale, and
she also sought damages against U.S. Bank for slander of
title based on that same allegation about the status of U.S.
Bank under Section 14. Dyer also named Wells Fargo, the
servicer of the loan, as a defendant in the suit. In her
claim against Wells Fargo, Dyer sought damages under
Massachusetts' catch-all consumer protection statute,
Massachusetts General Laws Chapter 93A.
defendants removed the case to the United States District
Court for the District of Massachusetts on the basis of
diversity jurisdiction. In federal court, the parties
consented to proceeding before a magistrate judge pursuant to
28 U.S.C. § 636(c). Dyer then filed a separate motion
for a preliminary injunction to stop the foreclosure sale.
The Magistrate Judge denied that motion. The defendants
thereafter filed a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c).
full round of briefing, the Magistrate Judge granted the
motion for judgment on the pleadings. In so doing, the
Magistrate Judge dismissed all of Dyer's claims. Dyer now
start with the aspect of this appeal that concerns U.S. Bank.
Dyer does not challenge the Magistrate Judge's ruling
that Dyer's slander of title claim rests on the same
contention as her request for a declaratory judgment: that
U.S. Bank was not authorized to exercise the statutory power
of sale. Thus, we fully resolve the U.S. Bank-related portion
of Dyer's ...