Sullivan v. Bank of New York Mellon Corp., 91 F. Supp. 3d 154

Plaintiffs allege mortgage disputes and threatened foreclosure involving Bank of New York Mellon as Trustee and Nationstar; two loans totaling $280,500 were originated with MERS as nominal mortgagee; PSA/REMIC structure assigned the First Mortgage to Bank of New York years after closing; Plaintiffs pursued modification attempts and HAMP requests with Nationstar/Aurora; they alleged misstatements in notices and improper foreclosure timing; assignment to Bank of New York and related REMIC compliance are central; Plaintiffs claim various violations and wrongful foreclosure; court addresses Rule 12(b)(6) standard and evaluates each count for plausibility and standing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Strict compliance with §21 required?	Sullivan argues paragraph 22 must be strict with the statutory power of sale.	Defendants contend §21 does not require strict compliance of all mortgage terms.	Count II not dismissed; unsettled question pending Pinti.
Breach of contract due to notice defect (Count I)?	Plaintiffs assert breach of paragraph 22 notices invalidating foreclosure.	Difference between 'court action' vs 'foreclosure proceeding' is immaterial; no harm shown.	Count I dismissed with prejudice.
§35A notice sufficiency (Count III)?	Notice failed to comply with §35A in timing and content.	Schumacher limits pre-foreclosure claims; some notice aspects compliant.	Count III denied in part; §35A violations alleged could proceed; not dismissed in full.
§35B modification rights (Count IV)?	Plaintiffs had rights to a modified mortgage loan within a 3-year period and were not properly assisted.	Rights exhausted; loan modification accepted February 2012 falls within three-year window.	Count IV dismissed without prejudice.
Standing to challenge PSA assignment (Count V)?	Assignment to Bank of New York was void under PSA/Tax Code; plaintiffs challenge ownership.	Assignment voidable, not void; no standing to challenge under authorities.	Count V dismissed for lack of standing.

U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (Mass. 2011) (strict compliance required for the power of sale, otherwise foreclosure void)
U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421, 5 N.E.3d 882 (Mass. 2014) (pre-foreclosure notice issues; §35A is not identical to §21 but has distinct impact in pre-foreclosure context)
Woods v. Wells Fargo Bank, N.A., 733 F.3d 349 (1st Cir. 2013) (standing issues; challenges to assignment often voidable not void)
Rajamin v. Deutsche Bank Nat’l Trust Co., 757 F.3d 79 (2d Cir. 2014) (trust-transaction authority; challenges to trust’s acquisition of loans are voidable, not void)
Bank of New York Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 11 N.E.3d 633 (Mass. App. Ct. 2014) (pre-foreclosure/post-foreclosure notice standards; holds on §35A/§21 context)