Summary
noting as significant that one of the parties to the PSA was the one who endorsed the note in blank and the PSA required notes to be endorsed in blank
Summary of this case from U.S. Bank v. WilliamsOpinion
15-P-1662
04-12-2017
Andrew M. CARROLL v. The BANK OF NEW YORK MELLON, trustee.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Andrew M. Carroll, appeals from the dismissal, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), of his complaint seeking (1) a declaratory judgment that the defendant, The Bank of New York Mellon (BNY-Mellon) as trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2006-OA10 Mortgage Pass Through Certificates (BNY-Mellon), was not entitled to enforce the power of sale in his mortgage, and (2) damages for slander of title. The case presents with the now-familiar characteristics of a foreclosure under a mortgage originally granted to Mortgage Electronic Registration Systems, Inc. (MERS) to secure a loan, evidenced by a note, from a third party that was subsequently securitized and transferred. As Carroll has failed to state a plausible claim that BNY-Mellon, as the foreclosing party, did not hold both the note and mortgage at the time of foreclosure, see Eaton v. Federal Nat1. Mort. Assn., 462 Mass. 569, 583-589 (2012) (establishing this as requirement for all foreclosures, like one at issue here, initiated after June 22, 2012), the judgment is affirmed.
Standard. In reviewing the allowance of a motion to dismiss under rule 12(b)(6), "we examine the same pleadings as the motion judge and therefore proceed de novo." Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012). In so doing, we accept as true all factual allegations of the complaint and draw any reasonable inferences therefrom in the plaintiff's favor. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). The verified complaint, viewed in a light most favorable to Carroll, reveals the following.
Background. On May 24, 2006, Carroll refinanced property he owned in Franklin, securing a $372,000 adjustable rate loan from First Magnus Financial Corporation (FMFC) in return for the execution of a promissory note. To secure payment of the note, Carroll also executed a mortgage, which was filed with the registry of deeds on the same date. In the mortgage, Carroll was identified as the "Borrower" and FMFC as the "Lender." Like many other mortgages, however, it also identified MERS as the "mortgagee." Specifically, the mortgage provides that MERS, as mortgagee, was "acting solely as a nominee for Lender and Lender's successors and assigns." It further provides that Carroll, as "Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale, the [Franklin property]." Still further, the mortgage provides:
The copy of the mortgage attached to the complaint is unexecuted and unrecorded, but Carroll has not disputed that it is the same as the one he signed and that was recorded.
For a discussion of what MERS is and the role it plays in the residential mortgage industry, see Eaton, 462 Mass. at 572 n.5.
"Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument."
By its terms, the mortgage could "be sold one or more times without prior notice to [Carroll]."
While it is not stated in the complaint, it is clear that Carroll subsequently fell behind on the note. Certainly, Carroll does not suggest that he was not in default. On November 17, 2014, counsel for BNY-Mellon sent Carroll a notice of the bank's intent to foreclose on the Franklin property pursuant to the power of sale contained in the mortgage originally granted to MERS. The sale was scheduled for December 9, 2014. In response, Carroll filed the present action on December 3, 2014, and sought to enjoin the sale. Ultimately, the sale was postponed while BNY-Mellon pursued its motion to dismiss. On April 27, 2015, after a hearing, a judge of the Superior Court allowed BNY-Mellon's motion and dismissed the complaint. Carroll appealed, but apparently did not seek to stay the sale. BNY-Mellon indicates that on July 6, 2015, it went forward with the sale and purchased the property itself.
Notably, Carroll also has not suggested that any party other than BNY-Mellon has attempted to foreclose or collect on the note.
BNY-Mellon also indicates that it initiated a postforeclosure summary process action against Carroll in District Court, which has been stayed pending this appeal.
While Carroll raised various issues in his complaint, he essentially has challenged whether BNY-Mellon satisfied the requirements established in Eaton; namely, "that unless a foreclosing party holds the mortgage and is either the note holder or an authorized agent of the note holder, a foreclosure by power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11 – 17C, is invalid." Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 162-163 (2014), citing Eaton, 462 Mass. at 586. As to this issue, the complaint reveals as follows.
The securitized trust agreement. On June 1, 2006, a week after Carroll executed the note and mortgage, BNY-Mellon entered into a Pooling and Servicing Agreement (PSA) in connection with "Alternative Loan Trust 2006-OA10 Mortgage Pass-Through Certificates, Series 2006-OA10" (Trust). "PSAs are securitized trust agreements that ‘operate[ ] as the governing document for the Trust.’ " Dyer v. U.S. Bank, N.A., 141 F. Supp. 3d 149, 154 (D. Mass. 2015), quoting from Matt v. HSBC Bank, 968 F. Supp. 2d 351, 360 (D. Mass. 2013). Under the PSA, BNY-Mellon was to act as "Trustee" of a "Trust Fund" consisting of a pool of "Mortgage Loans." The trust fund was to be owned by CWALT, Inc. (CWALT), which is referred to as the "Depositor" in the PSA. The mortgage loans were to be transferred to CWALT by a "Closing Date" of June 30, 2006, by certain "Sellers," one of which was Countrywide Home Loans, Inc. ("Countrywide"). In turn, CWALT was to immediately transfer the trust fund to BNY-Mellon, which would hold it for the benefit of the investors, known as "Certificateholders."
All of the terms referenced in this section are defined in the PSA.
Specifically, Countrywide was to deliver to CWALT, or, if CWALT so directed, to BNY-Mellon, by the closing date, the "Mortgage File" for each mortgage loan. If the mortgage files were delivered to CWALT, then CWALT was to deliver them to BNY-Mellon within thirty days of the closing date. The PSA specified that the mortgage files were to include, in relevant part:
"the original Mortgage Note endorsed by manual or facsimile signature in blank in the following form: ‘Pay to the order of __________ without recourse,’ with all intervening endorsements showing a complete chain of endorsement from the originator to the Person endorsing the Mortgage Note;
...
"the original recorded Mortgage or a copy of such Mortgage certified by Countrywide as being a true and complete copy of the Mortgage ... and in the case of each MERS Mortgage Loan,[ ] the original Mortgage, noting the presence of the MIN[ ] of the Mortgage Loans and either language indicating that the Mortgage Loan is a MOM Loan[ ] if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded."
"MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R) System."
"MIN: The mortgage identification number for any MERS Mortgage Loan."
"MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such Mortgage Loan and its successors and assigns."
As to any assigned MERS mortgage loan, the PSA further provided:
"In addition, in connection with the assignment of any MERS Mortgage Loan, each Seller agrees that it will cause, at the Trustee's expense, the MERS(R) System[ ] to indicate that the Mortgage Loans sold by such Seller to the Depositor have been assigned by that Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files the information required by the MERS(R) System to identify the series of the Certificates issued in connection with such Mortgage Loans."
"MERS(R) System: The system of recording transfers of mortgages electronically maintained by MERS."
A list of the mortgage loans transferred to BNY-Mellon to be held in the trust fund was to be set forth in a "Mortgage Loan Schedule" attached to the PSA as "Schedule I." The copy of the PSA that Carroll attached to his complaint did not include the mortgage loan schedule, but BNY-Mellon submitted a redacted copy with its motion to dismiss that it suggests identifies Carroll's mortgage loan as one of those transferred by Countrywide pursuant to the PSA. The mortgage loan schedule submitted by BNY-Mellon does not identify Carroll by name. Nor does it identify the address of his Franklin property, though it does identify the "City" as "Franklin" and the four digits in the "Zip" column (2038) match the last four digits of the zip code for Franklin. The loan number identified on the schedule (128471056) also does not match the loan number on Carroll's note and mortgage (1241881951). The balance of the information on the mortgage loan schedule, however, matches the characteristics of Carroll's loan.
BNY-Mellon urges that a number handwritten at the top of the note attached to the complaint matches the loan number on the mortgage loan schedule. However, BNY-Mellon is the source of that copy of the note and the record does not reflect how or when that number came to be written there.
BNY-Mellon also suggests that the loan number on the mortgage loan schedule and handwritten at the top of the note was assigned via the securitization process, but there is nothing in the record to verify that explanation.
The note. When BNY-Mellon's counsel sent Carroll notice of the bank's intent to foreclose on November 17, 2014, attached thereto was a document entitled "Certificate Relative to Foreclosing Mortgagee's Right to Foreclose Pursuant to 209 C.M.R. 18.21A(2)(c)" (certificate), executed by an Assistant Vice President of Specialized Loan Servicing LLC (SLS), which purported to be the "third party loan servicer" for Carroll's loan acting on behalf of BNY-Mellon. The certificate includes an assertion that BNY-Mellon is the holder of Carroll's note and mortgage. In addition, attached to the certificate as exhibit B is what purports to be "[a] copy of [Carroll's note] with all existing endorsements and allonges (if any)." The attached copy of the note contained three indorsements reflecting that it had been transferred as follows: (1) without recourse from FMFC, the original holder, to Countrywide Bank, N.A.; (2) without recourse from Countrywide Bank, N.A. to Countrywide; and (3) from Countrywide "Pay to the order of __________ without recourse."
209 Code Mass. Regs. § 18.00 et seq. (2013), entitled "Conduct of the Business of Debt Collectors and Loan Servicers," was promulgated by the Massachusetts Division of Banks. 209 Code Mass. Regs. § 18.21A(2)(c) provides:
"A third party loan servicer shall certify in writing the basis for asserting that the foreclosing party has the right to foreclose, including but not limited to, certification of the chain of title and ownership of the note and mortgage from the date of the recording of the mortgage being foreclosed upon. The third party loan servicer shall provide such certification to the borrower with the notice of foreclosure, provided pursuant to M.G.L. ch. 244, § 14, and shall also include a copy of the note with all required endorsements."
In an effort to comply with 209 Code Mass. Regs. § 18.21A(2)(c), see note 12, supra, the certificate also purportedly included, as exhibit A, an attorney's "Certification of Title" reflecting that BNY-Mellon was the holder of Carroll's mortgage. Carroll chose not to include either of the exhibits with the copy of the certificate that he attached to his complaint. However, he did attach a stand-alone copy of the note that came with the certificate (exhibit B) as a separate exhibit.
The assignment of mortgage. On June 8, 2011, several years after the closing date under the PSA and several years prior to the original date scheduled for the foreclosure sale on the Franklin property, MERS executed and filed with the registry of deeds an assignment of mortgage (assignment), transferring Carroll's mortgage to BNY-Mellon as trustee under the trust.
General Laws c. 244, § 35C, affidavit. On October 24, 2014, prior to BNY-Mellon's issuance of the notice of foreclosure sale to Carroll, an "Affidavit Regarding Note Secured by Mortgage Being Foreclosed," executed by a Second Assistant Vice President of SLS, the purported third-party loan servicer for Carroll's loan, was filed with the registry of deeds. The affidavit appears to have been filed in an effort to comply with G. L. c. 244, § 35C, inserted by St. 2012, c. 194, § 2 (35C affidavit). The 35C affidavit identifies BNY-Mellon as the foreclosing mortgagee, as a result of the assignment from MERS, and certifies that, on that date, BNY-Mellon was "the holder of the promissory note secured by [Carroll's] mortgage."
BNY-Mellon filed a certified copy of the affidavit from the registry of deeds with its rule 12(b)(6) motion. On a motion to dismiss, such "matters of public record ... may be taken into account." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000), quoting from 5A Wright & Miller, Federal Practice and Procedure § 1357, at 299 (1990).
The statute, which defines a "creditor" as including a "mortgage servicer," G. L. c. 244, § 35C(a ), provides, in pertinent part:
"A creditor shall not cause publication of notice of foreclosure, as required under [G. L. c. 244,] section 14, when the creditor knows or should know that the mortgagee is neither the holder of the mortgage note nor the authorized agent of the note holder.
"Prior to publishing a notice of a foreclosure sale, as required by [G. L. c. 244,] section 14, the creditor, or if the creditor is not a natural person, an officer or duly authorized agent of the creditor, shall certify compliance with this subsection in an affidavit based upon a review of the creditor's business records. The creditor, or an officer or duly authorized agent of the creditor, shall record this affidavit with the registry of deeds for the county or district where the land lies."
G. L. c. 244, § 35C(b ).
Discussion. As stated above, while Carroll has advanced a number of arguments, his claim, ultimately, concerns whether BNY-Mellon held both the note and mortgage at the time of foreclosure, thereby qualifying as a "mortgagee" for purposes of exercising the statutory power of sale under G. L. c. 244, § 14. See Eaton, 462 Mass. at 584 ("we construe the term ‘mortgagee’ in G. L. c. 244, § 14, to mean a mortgagee who also holds the underlying mortgage note"). To that end, Carroll has identified what he suggests are gaps in the documentation that BNY-Mellon relies upon to establish its standing as "mortgagee." The question before us, however, is whether he has set forth a plausible claim that BNY-Mellon did not hold both the note and mortgage at the time of foreclosure.
As an initial matter, we note that the PSA is a publicly available document filed with the Securities and Exchange Commission (SEC). Carroll does not dispute that it is authentic. In fact, he attached a copy of it to his complaint and has relied upon it and its terms as the basis for some of his arguments. The mortgage loan schedule, however, is not included as part of the PSA on file with the SEC. Presumably, it is for that reason that (1) Carroll did not include it with the copy of the PSA attached to his complaint, and (2) BNY-Mellon submitted a copy in support of its motion to dismiss. In any event, it would appear that Carroll did not have prior notice of that particular part of the PSA. Accordingly, we have not considered the mortgage loan schedule, as to do so would convert the motion to dismiss to one for summary judgment. Compare Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004) (noting that documents plaintiff had notice of and relied on in framing complaint, but did not attach thereto, may be considered without converting motion to dismiss to motion for summary judgment). Even absent consideration of the mortgage loan schedule, however, Carroll has failed to set forth a plausible claim that BNY-Mellon did not hold both the note and mortgage at the time of foreclosure.
Schedule I as attached to the PSA on file with the SEC consists of nothing more than the words, "Delivered at Closing to Trustee."
The record does not reflect an objection from Carroll to the judge's consideration of the mortgage loan schedule. The judge, however, chose not to consider it due to the discrepancy in the loan numbers and the fact that she had already found that Carroll did not have standing to challenge the transfer of the loan under the PSA. Carroll has disputed the authenticity of the mortgage loan schedule here on appeal, both in his brief and in opposition to a motion BNY-Mellon filed to supplement the appendix with another, purportedly clearer, copy of the mortgage loan schedule.
First, with respect to the note, a copy as purportedly held by BNY-Mellon was produced to Carroll at the time BNY-Mellon provided notice of its intent to foreclose. Specifically, a copy was attached to the certificate from the purported third-party loan servicer. The indorsements on that copy of the note evidence that it made its way from the original holder, FMFC, to Countrywide, and that Countrywide then indorsed it in blank and without recourse. A promissory note is a negotiable instrument. See G. L. c. 106, § 3-104. "When indorsed in blank, [it] becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed." G. L. c. 106, § 3-205(b ), inserted by St. 1998, c. 24, § 8. Once Countrywide indorsed the note in blank, therefore, BNY-Mellon merely needed possession of the note to become the "holder." According to the certificate, as well as the 35C affidavit that was also executed by representatives of the purported third-party loan servicer shortly before the initiation of the foreclosure, BNY-Mellon was the "owner" and "holder" of the note. Carroll, in turn, has not provided a plausible, nonspeculative basis for doubting those assertions.
A "bearer" is "a person in possession of a negotiable instrument." G. L. c. 106, § 1-201(b )(5), inserted by St. 2013, c. 30, § 2.
A "holder" is "the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." G. L. c. 106, § 1-201(b)(21).
Since we are dealing with a rule 12(b)(6) motion, we have not assessed whether these documents either fully comply with the technicalities of the applicable underlying laws or regulations or otherwise have evidentiary value. At this stage, we consider them in the overall context of assessing the plausibility of Carroll's claim.
In addition, while we have not considered the mortgage loan schedule, we have considered the PSA and we cannot ignore that (1) Countrywide was both a Seller under the PSA and a purported indorser of Carroll's note; (2) the form of indorsement required for the transfer of notes under the PSA (in blank, without recourse) matches Countrywide's purported indorsement on Carroll's note; and (3) BNY-Mellon, the purported holder of Carroll's note in its capacity as trustee on behalf of the certificateholders, was, in its capacity as trustee on behalf of the certificateholders, the final intended holder of the notes transferred by Countrywide under the PSA. These strike us as more than mere coincidences, and the only reasonable inference we can draw is that, contrary to Carroll's claim, BNY-Mellon was the holder of the note at the time it initiated and executed the foreclosure.
As discussed infra, Carroll does not have standing to challenge the assignment of his loan due to any alleged failure by the parties to the PSA to comply with the technical requirements of the PSA in effectuating the transfer. Even if he could so challenge, however, the note as held by BNY-Mellon at the time of foreclosure appears to comply with the PSA. While the PSA calls for the mortgage loans to be transferred from Countrywide, as seller, to CWALT, as depositor, it does not require CWALT to indorse the mortgage notes in the mortgage files that are delivered to BNY-Mellon. In fact, as noted above, the mortgage files could, if CWALT so directed, go directly from Countrywide to BNY-Mellon. Still further, BNY-Mellon was required by the PSA to provide CWALT and Countrywide with an "Initial Certification" certifying that it received the mortgage files and, among other things, that the mortgage notes therein were received with the indorsement, "Pay to the order of __________ without recourse." This suggests that the mortgage notes were intended to be received by BNY-Mellon as bearer instruments, in the exact form as BNY-Mellon received Carroll's note according to the copy attached to the certificate from the third-party loan servicer.
As for Carroll's mortgage, it was assigned from MERS to BNY-Mellon, as trustee on behalf of the certificateholders, by way of the June 8, 2011, assignment filed with the registry of deeds. Carroll questions the validity of the assignment, however, because (1) it occurred after the June 30, 2006, closing date for the transfer of mortgage loans under the PSA, and (2) the terms of the PSA provided that CWALT, not MERS, was to transfer the mortgage loans to BNY-Mellon. His arguments are without merit.
Carroll has disavowed any claim (1) that MERS lacked authority to assign his mortgage because at the time of the assignment it did not also hold the note, and (2) that the person who executed the assignment lacked proper authority from MERS to do so.
First, Carroll lacks standing to raise these arguments. As we have previously summarized:
"In Sullivan v. Kondaur Capital Corp., [85 Mass. App. Ct.] 202, 206 (2014) (Kondaur Capital), we held that a mortgagor has standing to claim that a ‘purported foreclosure was void by reason of [the mortgagee's] lack of legal authority to conduct it.’ At the same time, however, we emphasized that a mortgagor's standing was limited to claims that a defect in the assignment rendered it void, not merely voidable. Id. at 206 n.7. As we explained, ‘[a] deficiency in an assignment that makes it merely voidable at the election of one party or the other would not automatically invalidate the title of a foreclosing mortgagee, and accordingly would not render void a foreclosure sale conducted by the assignee or its successors in interest.’ Ibid."
Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 502 (2014). Even if accurate, Carroll's claims that the assignment violated the terms of the PSA, by purportedly having been executed after the closing date and without a prior assignment from CWALT, would only render it voidable at the election of one or more of the parties to that agreement. As such, Carroll, as a nonparty to the PSA, has no standing to challenge the assignment on those bases. See Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 354 (1st Cir. 2013) ("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").
While we need not decide the issue given Carroll's lack of standing, the PSA does not appear to require "Mortgages" that were transferred with MERS mortgage loans, like Carroll's, to be the subject of separate assignments, either prior to the closing date, to CWALT prior to BNY-Mellon, or otherwise. The PSA speaks in terms of Countrywide selling, transferring, assigning, setting over, and otherwise conveying the mortgage loans to CWALT. As for the delivery of mortgages with the mortgage files for MERS mortgage loans, the PSA only required delivery of "the original mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the mortgage certified by the public recording office in which such mortgage has been recorded." It does not require delivery of an assignment. The PSA only required that Countrywide cause MERS to reflect the assignment of MERS mortgage loans on the MERS(R) System. In contrast, the PSA specifically calls for the delivery of "a duly executed assignment of the Mortgage" for mortgage loans that are not MERS mortgage loans.
Carroll further argues that BNY-Mellon should be required to sustain the same burden that the Supreme Judicial Court required of the foreclosing mortgagees in U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011). There, the court held that "[w]here a plaintiff files a complaint asking for a declaration of clear title after a mortgage foreclosure, a judge is entitled to ask for proof that the foreclosing entity was the mortgage holder at the time of the notice of sale and foreclosure, or was one of the parties authorized to foreclose under G. L. c. 183, § 21, and G. L. c. 244, § 14." Id. at 650-651. The plaintiff-mortgagees in Ibanez were not the original mortgagees, but, rather, claimed the authority to foreclose as downstream assignees of the original mortgagees. Id. at 648. By law, however, they could possess authority to exercise the power of sale in the mortgages only if they were the assignees of the mortgages at the time of the foreclosure notice and subsequent sale. Ibid. As the assignments of mortgage they each possessed were dated after the date of the foreclosure sale, and were thus legally insufficient, the mortgagees, both of whom claimed to have been assigned the mortgage loans through securitized trusts similar to that at issue in the present case, attempted to prove that the assignments had actually taken place prior to the foreclosure notice and sale by relying upon the securitized documents. Id. at 640-645, 649-650. Those documents were found wanting. Ibid. The judgment denying their requests for declarations of clear title, therefore, was affirmed. Id. at 652, 655.
Ibanez is distinguishable from the present case. First, BNY-Mellon, unlike the mortgagees in Ibanez, possesses an assignment of mortgage that predates (by many years) the foreclosure notice and subsequent sale. Furthermore, as discussed in Ibanez:
"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. ... A foreclosing entity may provide a complete chain of assignments linking it to the record holder of the mortgage, or a single assignment from the record holder of the mortgage" (emphasis added).
Id. at 651. Here, BNY-Mellon does not have to resort to proving a "chain of assignments linking it to the record holder" of Carroll's mortgage. It possesses an assignment directly from the last record holder, MERS. Even if BNY-Mellon had to satisfy an Ibanez-like burden, therefore, it would not necessarily have to resort to the underlying securitization documents to make such a showing.
Furthermore, the mortgagees in Ibanez were the plaintiffs in actions seeking a declaration of clear title. As a result, they had the burden of proof. Here, Carroll is the plaintiff, responding to a rule 12(b)(6) motion. Once again, it is Carroll, not BNY-Mellon, that bears the burden at this stage, namely, of setting forth a plausible claim. Accordingly, while "we adhere to the familiar rule that ‘one who sells under a power [of sale] must follow strictly its terms,’ " id. at 646, quoting from Moore v. Dick, 187 Mass. 207, 211 (1905) (noting that to do otherwise renders foreclosure sale void), a defendant-mortgagee like BNY-Mellon, in a case like the present one, would only be called upon to prove its compliance after the plaintiff-mortgagor sets forth a plausible claim to the contrary. This Carroll has failed to do.
As we stated in Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 829 n.7 (2016), the Supreme Judicial Court has yet to address whether, at trial in an action like this one challenging the validity of a foreclosure under Eaton, the plaintiff-mortgagor or the defendant-mortgagee would bear the burden of proof. "However, because the facts concerning the relationship between the mortgagee and the note holder are far more readily available to them, and because the statutory requirements governing nonjudicial foreclosures must be strictly adhered to ..., it can be argued that once the mortgagor makes a plausible showing that the mortgagee does not hold the note and is not acting on behalf of the note holder, the mortgagee should carry the burden of proving that the foreclosure is valid under Eaton." Ibid.
In light of Carroll's concession on appeal that his claim for slander of title "is symbiotically tied to" his declaratory judgment claim, we do not reach that issue.
Conclusion. As Carroll's complaint fails to set forth a plausible claim that the mortgage and note were not unified under BNY-Mellon at the time of foreclosure, we conclude that the order of dismissal was appropriate.
To the extent that we have not addressed other arguments made by Carroll, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.