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Dyer v. Wells Fargo Bank, N.A.

United States Court of Appeals, First Circuit

November 14, 2016

EDYTHE L. DYER, Plaintiff, Appellant,
v.
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.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. M. Page Kelley, U.S. Magistrate Judge

          Glenn F. Russell, Jr., with whom Glenn F. Russell Jr., & Associates, P.C. was on brief, for appellant.

          David E. Fialkow, with whom Jeffrey S. Patterson, Michael R. Stanley, and K&L Gates LLP were on brief, for appellees.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         The 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.

         I.

         In 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 Dyer's mortgage.

          In 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).

         Dyer 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.

         The 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).

         After a 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 appeals.

         II.

         We 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 ...


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