          United States Court of Appeals
                     For the First Circuit

No. 13-1907

                        RHONDA G. MILLS,

                      Plaintiff, Appellant,

                               v.

    U.S. BANK, NA, as Trustee for the Lehman XS Trust Mortgage
   Pass-Through Certificates, Series 2007-4N; ONEWEST BANK FSB
      individually and as successor to IndyMac Bank, F.S.B.;
          MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Joseph L. Tauro,    U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
               Howard and Kayatta, Circuit Judges


     Rockwell P. Ludden, with whom Ludden Kramer Law, PC was on
brief, for appellant.
     David G. Thomas, with whom Russell P. Plato and Greenberg
Traurig, LLP were on brief, for appellees.



                          May 27, 2014
              HOWARD, Circuit Judge. Following the 2011 foreclosure on

her home, plaintiff Rhonda Mills filed this suit against defendants

U.S. Bank, N.A. ("U.S. Bank"), OneWest Bank, F.S.B. ("OneWest"),

and   Mortgage    Electronic    Registration      Systems,   Inc.   ("MERS"),

raising   a    potpourri   of   challenges   to    OneWest's   authority    to

foreclose on her property.        On appeal from the district court's

dismissal of her suit for failure to state a claim, Mills primarily

takes issue with the district court's reliance on our decision in

Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir.

2013).    Finding Culhane to be on point, we affirm.

                                     I.

              On October 6, 2006, Mills refinanced her home in Mashpee,

Massachusetts, executing an adjustable rate note (the "note") in

favor of MortgageIT, Inc. ("MortgageIT") for $376,000 and also

granting a mortgage to MERS.         The mortgage contract identified

MortgageIT as the lender and MERS as the mortgagee, "acting solely

as a nominee for Lender and Lender's successors and assigns."              The

mortgage provided MERS with "only legal title" to Mills's property,

giving it the right to foreclose and sell the property "as nominee

for Lender and Lender's successors and assigns."

              MERS, as we explained in Culhane, "was formed by a

consortium of residential mortgage lenders and investors desiring

to streamline the process of transferring ownership of mortgage

loans in order to facilitate securitization." Id. at 287. Joining


                                     -2-
MERS enables lenders to "name MERS as the mortgagee in mortgages

that they originate, service, or own."                  Id.   MERS itself acts

solely as a "nominee" for the owner or servicer of a mortgage,

giving MERS legal title to the mortgage but leaving it with no

beneficial interest in the loan.           Id.     When a note is sold by one

MERS member to another, MERS memorializes the sale in its database

but remains the mortgagee of record, thereby avoiding the time and

expense of publicly assigning the mortgage to a new noteholder.

Id.; see also Butler v. Deutsche Bank Trust Co. Ams., No. 12-2108,

2014 WL 1328296, at *3 (1st Cir. Apr. 4, 2014).               On the other hand,

when a note is sold to a nonmember, MERS assigns the mortgage to

the new noteholder or its designee.              Culhane, 708 F.3d at 287.

              Like Culhane, this case illustrates the function served

by MERS.      Mills's note was sold by MortgageIT on the secondary

market and changed hands several times before ultimately being

deposited      into   the    Lehman   XS       Trust,   Mortgage    Pass-Through

Certificates, Series 2007-4N (the "Trust"), of which U.S. Bank was

trustee; no corresponding assignments were made of legal title to

the mortgage.     Mills, meanwhile, began struggling to keep up with

her loan payments, and applied to IndyMac, F.S.B. ("IndyMac"), the

loan servicer at the time, for a loan modification.                      IndyMac

approved Mills's loan modification application in December 2008,

and   Mills    signed,      notarized,     and    returned    the   modification

agreement. Unfortunately for Mills, however, in March 2009 IndyMac


                                         -3-
was succeeded as loan servicer by OneWest, which failed to honor

the modification.      On April 23, 2009, MERS executed a document

assigning the mortgage to OneWest, which subsequently recorded the

assignment with the Barnstable Land Court Registry.            Finally, on

January 21, 2011, OneWest foreclosed Mills's mortgage and sold her

property at public auction to U.S. Bank.

           Mills filed this lawsuit on May 23, 2012 in Barnstable

Superior Court; the defendants removed the case to the District of

Massachusetts a week later.       Following the plaintiff's submission

of an amended complaint, the defendants moved for dismissal for

failure to state a claim.        On March 28, 2013, the district court

granted the defendants' motions to dismiss and denied Mills's

motion to amend her complaint and add an allegation to her claim

under Mass. Gen. Laws ch. 93A.       Mills subsequently filed a motion

for   reconsideration,   which    the   district   court   denied   without

comment.   This appeal followed.

                                    II.

           A.     Dismissal

                  1.     Validity of Assignment

           Under Massachusetts statute, only "the mortgagee or his

executors, administrators, successors or assigns" can exercise a

statutory power of sale (which Mills's mortgage granted) and

foreclose without prior judicial authorization.            Mass. Gen. Laws

ch. 183, § 21; see also id. ch. 244, § 14; Culhane, 708 F.3d at


                                    -4-
290; U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 50 (Mass.

2011). Consequently, "[a]ny effort to foreclose by a party lacking

jurisdiction and authority to carry out a foreclosure under these

statutes is void."    Ibanez, 941 N.E.2d at 50 (internal quotation

marks omitted). Like the plaintiff in Culhane, Mills contends that

the foreclosing entity, OneWest, was never assigned valid legal

title, rendering the foreclosure void.       In other words, Mills's

complaint represents a "challenge [to] a foreclosing entity's

status qua mortgagee," which Mills has standing to raise. Culhane,

708 F.3d at 291.   We review de novo the district court's dismissal

of Mills's complaint for failure to state a claim. Mass. Ret. Sys.

v. CVS Caremark Corp., 716 F.3d 229, 237 (1st Cir. 2013).

          Before turning to the merits of Mills's claim, we briefly

review our prior analysis of the MERS system in Culhane, which,

notwithstanding    Mills's   protestations   to   the   contrary,   we

ultimately conclude is dispositive of this case.        In Culhane, we

rejected the plaintiff's contention that the nominal designation of

MERS as holder of the mortgage "was a nullity because MERS never

owned the 'beneficial half of the legal interest' in the mortgage,"

leaving MERS with nothing to assign to the foreclosing entity. 708

F.3d at 291.       On the contrary, we concluded that "the MERS

framework, which customarily separates the legal interest [in the

mortgage] from the beneficial interest [in the underlying debt],




                                 -5-
corresponds   with   longstanding    common-law   principles   regarding

mortgages."   Id. at 292.

          We elaborated that "[t]he mortgage, in a title theory

state like Massachusetts, transfers legal title to the mortgaged

premises from the mortgagor to the mortgagee for the sole purpose

of securing the loan," leaving the mortgagee with "bare legal title

to the mortgaged premises, defeasible upon repayment of the loan

(because the mortgagor owns the equity of redemption)."          Id.   We

noted that under Massachusetts law, a note and the underlying

mortgage need not be held by the same party.       Id.; see also Eaton

v. Fed. Nat'l Mortg. Ass'n, 969 N.E.2d 1118, 1124 (Mass. 2012). We

further explained that the MERS framework, in which the mortgage

and note are held by separate entities from the outset, creates an

implied equitable trust in which the mortgagee "holds bare legal

title to the mortgaged premises in trust for the noteholder" and

"[t]he noteholder possesses an equitable right to demand and obtain

an assignment of the mortgage."      Culhane, 708 F.3d at 292.    Absent

a contrary provision in the mortgage itself, a mortgagee "may

assign its mortgage to another party," and "need not possess any

scintilla of a beneficial interest in order to hold the mortgage."

Id. at 292-93.

          Accordingly, we found that "MERS's role as mortgagee of

record and custodian of the bare legal interest as nominee for the

member-noteholder, and the member-noteholder's role as owner of the


                                    -6-
beneficial interest in the loan, fit comfortably with each other

and fit comfortably within the structure of Massachusetts mortgage

law."   Id. at 293.      Our conclusion was bolstered by the terms of

the mortgage contract itself, which (identical to the mortgage in

this case) designated MERS as the mortgagee "solely as nominee for

[the lender] and [its] successors and assigns."                  Id.     As the

lender's nominee, MERS held "title for the owner of the beneficial

interest," and was therefore contractually authorized to transfer

the mortgage at the direction of the designated loan servicer. Id.

In short, MERS validly held legal title to the mortgaged property

and was doubly authorized (under both Massachusetts common law and

the terms of the mortgage contract) to assign its interest to the

foreclosing entity.

          Mills's     argument   in    this   case,     though   not   entirely

duplicative   of   the    unsuccessful      challenge    in   Culhane,    is   a

variation on the same theme.           Mills focuses primarily on the

Massachusetts statute of frauds, Mass. Gen. Laws ch. 183, § 3,

which requires assignments of mortgages and other interests in land

to be placed in writing and signed by the assignor.               See Ibanez,

941 N.E.2d at 51.     More specifically, Mills avers that while "the

Mills mortgage was securitized and therefore necessarily sold by

way of 'true sale' at least twice before its final assignment to

the Trust," none of these intermediary transfers were recorded.

Instead, the sole recorded transfers of the mortgage were the


                                      -7-
original mortgage contract between Mills and MERS and the final

assignment    from    MERS   to    OneWest.        Because    the   intermediary

transfers were not recorded, concludes Mills's syllogism, the

"chain of assignments" was broken and MERS had no interest to

assign OneWest.

             Without specifically addressing this statute of frauds-

based argument, the district court found Culhane fatal to Mills's

claim,   citing      our   pronouncement        that   the   MERS   system   "fit

comfortably within the structure of Massachusetts mortgage law."

We agree with the district court's conclusion, and we find that

Mills's contentions to the contrary rest on a misperception of the

MERS framework.

             At the outset, we note that Mills's complaint does not

allege that the mortgage (which evidences legal title to Mills's

property) changed hands prior to securitization; instead, Mills's

allegation    is   that    the    note    (which   evidences    the   beneficial

interest) "was subsequently sold by MortgageIT on the secondary

market and earmarked to become, through a series of transfers, part

of a mortgage pool deposited into the [Trust]."                 This is hardly

surprising, since MERS's very raison d'être "is its ability to

remain mortgagee of record, possessing a legal interest in a

homeowner's    mortgage,     while       the   beneficial    interest   in   that

accompanying note is transferred among MERS's member institutions."

Butler, 2014 WL 1328296, at *3.                Given the separability of the


                                         -8-
mortgage and note under Massachusetts law, see Eaton, 969 N.E.2d at

1124, the transfer of the promissory note between MERS members does

not affect legal title to the mortgage.    See Woods v. Wells Fargo

Bank, N.A., 733 F.3d 349, 355-56 (1st Cir. 2013) (distinguishing

"electronically   track[ing]   transfers   of   a   mortgagors'   [sic]

promissory note" within the MERS registry from "the assignment and

recordation of mortgage interests in a county registry of deeds");

Culhane, 708 F.3d at 292 ("[T]he transfer of the note does not

automatically transfer the mortgage."); In re Marron, 455 B.R. 1,

7 (Bankr. D. Mass. 2011) ("The fact that the debtors' promissory

note passed like a hot potato down a line of owners, . . . with no

accompanying assignment of the note owner's beneficial interest in

the mortgage, changes nothing.").1

          Mills's statute of frauds-based argument, while less than

a paragon of lucidity, appears to follow a narrower track than the

broad challenges that we rejected in Culhane, Woods, and Butler.

Rather than resting on the erroneous premise that the transfer of



     1
       Mills suggests in passing that even if Massachusetts law
allows for the note and mortgage to be held by different entities,
the language of the mortgage contract here did not. Specifically,
Mills points to a provision in the mortgage contract stating that
"[t]he Note or a partial interest in the Note (together with this
Security Instrument) can be sold one or more times without prior
notice to Borrower," which she takes to mean "that the mortgage may
be assigned with the note." We, however, have already rejected
this reading as "jejune," noting that the language of the provision
is "permissive and by no means prohibits the separation of the two
instruments" and that the mortgage and note had in fact been
"separated upon their inception." Culhane, 708 F.3d at 292 n.6.

                                 -9-
the note entails a corresponding transfer of the separately-held

mortgage as a matter of law, Mills scrutinizes the language of the

mortgage contract in an apparent attempt to demonstrate that it did

not in fact grant MERS legal title to the property.   Specifically,

Mills alleges that there is a "strident ambiguity" as to whether

MERS is an "actual mortgagee" (i.e., "owner of legal title to the

secured property") or merely "act[ing] in a representative capacity

on behalf of the actual owner" of legal title.          As we have

recounted, the mortgage contract established MERS as mortgagee

while also describing MERS as "acting solely as a nominee for

Lender and Lender's successors and assigns."     Mills claims that

these provisions "place[] MERS in the impossible position of being

both principal and agent with regard to the same mortgage at the

same time."

          Proceeding on the theory that MERS acted solely as an

agent of the successive noteholders with no legal title to the

property, Mills suggests that each intermediary transfer of the

promissory note entailed a change of principals and thus a transfer

of the mortgage from one principal to the next.       Because these

intermediary transfers were not recorded, continues the argument,

the mortgage failed to move down the chain of principals.       Any

subsequent assignment by MERS on behalf of a principal who did not

in fact validly receive title to the mortgage, Mills concludes,




                               -10-
"becomes a fraudulent act, the recording of which is not only

meaningless but an affront to the democratic recording system."2

            This theory rests on a flawed foundation -- indeed, upon

the same premise that we invalidated in Culhane.      Although Mills

contends that "MERS acts solely in a representative capacity and

owns nothing with regard to the mortgage loan," she herself

acknowledges that we adopted a different view in Culhane, holding

(in her words) that MERS "acts in an ownership capacity -- it

actually owns the legal title to the secured property" and that

"[b]ecause it remains the mortgagee throughout the securitization

process, assignments are unnecessary."

            We decline Mills's invitation to revisit our still-recent

precedent. Contrary to Mills's claim of "strident ambiguity" as to

MERS's status under the mortgage contract, Culhane makes clear that

MERS validly serves both as the holder of "bare legal title as

mortgagee of record" and as "nominee for the member-noteholder."



     2
         Mills offers the following illustration of her theory:

     In the MERS model, MERS is the agent for the originating
     lender, A. As such, assuming it has the authority to do
     so, MERS may transfer the mortgage from A to B. But that
     transfer is of an interest in land, and there must still
     [be] a writing . . . signed by the party to be bound in
     order to have any legal effect. And even though MERS may
     also act as B's agent, it cannot transfer the mortgage
     from B to C unless and until there has been a valid
     written assignment from A to B -- that is to say, without
     a valid assignment from A to B there is nothing for MERS
     to assign on behalf of B even though there is an agency
     relationship between MERS and B.

                                 -11-
708 F.3d at 291, 293; see also Culhane v. Aurora Loan Servs. of

Neb., 826 F. Supp. 2d 352, 369 (D. Mass. 2011) ("[T]he notion that

MERS is pejoratively 'two-faced' [as 'both principal and agent']

derives from a legal premise that is faulty in its understanding of

MERS's interest in the mortgage.").          MERS's designation as nominee

means   that   it   "holds   title   for    the   owner   of   the   beneficial

interest," not, as Mills appears to suggest, that it lacks title

altogether. Culhane, 708 F.3d at 293; cf. Morrison v. Lennett, 616

N.E.2d 92, 94 (Mass. 1993) ("A nominee trust is often used to hold

legal title to real estate so that the identity of the trust

beneficiary may remain undisclosed."); Black's Law Dictionary 1149

(9th ed. 2009) (defining "nominee" as "[a] party who holds bare

legal title for the benefit of others").            Because legal title to

the mortgage remained vested in MERS and not in the noteholder, the

intermediary transfers of the note in no way undermined the

subsequent assignment of the mortgage from MERS to OneWest.                See

Marron, 455 B.R. at 7 ("Through all of these transfers [of the

promissory note] right up until it finally assigned the mortgage to

HSBC, MERS remained the mortgagee in its capacity as trustee and as

nominee for whomever happened to own the note.").

                    2.   Mass. Gen. Laws ch. 183, § 54B

           Mills also avers that the assignment of her mortgage from

MERS to OneWest ran afoul of Mass. Gen. Laws ch. 183, § 54B, which

provides in pertinent part:


                                     -12-
           [An] assignment of mortgage . . . if executed
           before a notary public . . . by a person
           purporting to hold the position of president,
           vice president, treasurer, clerk, secretary,
           cashier,   loan   representative,   principal,
           investment, mortgage or other officer, agent,
           asset manager, or other similar office or
           position, including assistant to any such
           office or position, of the entity holding such
           mortgage, or otherwise purporting to be an
           authorized signatory for such entity . . .
           shall be binding upon such entity and shall be
           entitled to be recorded . . . .

           Mills   claims   that    the   statute   "was   misread   and

misapplied in such a way as to allow the non-holder of a mortgage

to foreclose merely by having its agent 'purport' to act on their

behalf."   Once again, her position is foreclosed by Culhane, where

we described the plaintiff's claim that "MERS was not the 'entity

holding such mortgage' within the purview of section 54B" as

"simply an old wine in a new bottle," premised on the already-

refuted proposition that MERS did not validly hold the mortgage.

708 F.3d at 294.   Mills's argument is of the same spoiled vintage

as that in Culhane: here, too, we have already held that MERS

possessed legal title to the mortgage at the time of assignment,

invalidating Mills's § 54B claim.3


     3
      Mills also raises cursory challenges under the Massachusetts
Declaration of Rights, suggesting that "the interpretation and
application of § 54B urged by the Appellees impinges upon the
guarantees of substantive and procedural due process."        This
argument is inadequately developed, see United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990), and in any event it, too, is
"contingent on the plaintiff's core contention that MERS did not
validly hold the mortgage at the time of its assignment to
[OneWest]," Culhane, 708 F.3d at 295, which we have rejected.

                                   -13-
                   3.    Miscellany

           As a secondary challenge, Mills appears to suggest in the

rather murky closing pages of her opening brief that OneWest may

not "have been servicing the mortgage on the Trust's behalf." Only

in her reply brief and at oral argument did Mills develop this

argument   into   the   more   cogent   argument   that   OneWest   lacked

authority to foreclose because it "did not own the note at the time

of foreclosure." Mills has failed, however, to sufficiently unfold

this argument on appeal. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived."); Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1,

3 (1st Cir. 1983) ("[A]ppellant generally may not preserve a claim

merely by referring to it in a reply brief or at oral argument.").4



     4
       Nor in any event are we persuaded on the merits of this
argument. Although Eaton held that a foreclosing entity must hold
both the mortgage and the note (or act on behalf of the
noteholder), that holding was prospective only and does not apply
here, 969 N.E.2d at 1133, nor does its subsequent extension to
"cases that were pending on appeal . . . when the rescript in
Eaton issued," Galiastro v. Mortg. Elec. Registration Sys., 4
N.E.3d 270, 277 (Mass. 2014). And although Mills suggests that the
terms of the mortgage contract required "that the person
foreclosing must at the time of the foreclosure own both the note
and the mortgage," we disagree. The provision in question provides
that if the borrower's default is not cured, "Lender at its option
may require immediate payment in full of all sums secured by this
Security Instrument without further demand and may invoke the
STATUTORY POWER OF SALE and any other remedies permitted by
Applicable Law." This provision is permissive; we do not read it
as prohibiting the mortgagee from foreclosing without possession of
the note.

                                   -14-
              We also treat as waived the plethora of additional

embryonic arguments that Mills raises at the end of her opening

brief and in portions of her reply brief, including perfunctory

contentions that the mortgage loan was "toxic, predatory, and

doomed   to    fail";    that   "the    securitization   was   not   done   in

compliance with the trust agreements or New York law"; and that the

assignment from MERS to OneWest was "signed by a known robo-

signer."      See Zannino, 895 F.2d at 17.

              B.       Leave to Amend

              Mills also challenges the district court's denial of her

motion to amend her complaint and add an allegation that she sent

a demand letter to the defendants pursuant to her claim under Mass.

Gen. Laws ch. 93A.        The district court denied that motion on the

ground of futility, "[b]ecause adding this allegation has no effect

on the foregoing analysis of OneWest's authority to exercise the

statutory power of sale." Although we ordinarily review a district

court's denial of leave to amend for abuse of discretion, see

Manzoli v. Comm'r of Internal Revenue, 904 F.2d 101, 107 (1st Cir.

1990), we review de novo the district court's determination of

futility, see Glassman v. Computervision Corp., 90 F.3d 617, 623

(1st Cir. 1996).          We find no error in the district court's

conclusion.        Even with the proposed addition, Mills's Chapter 93A




                                       -15-
claim still failed to satisfy Rule 12(b)(6), as it rested on the

faulty premise that OneWest lacked authority to foreclose.5

          C.      Submission of Newly Discovered Evidence

          Mills finally assigns error to the district court's

failure to rule on her motion -- filed mere hours before the

district court issued its dismissal order -- to submit newly

discovered evidence.   In her opening brief, however, Mills alluded

only in passing to "the newly discovered evidence of material

discrepancies in both the assignment and the promissory note," and

did not develop this argument until her reply.   It is accordingly

waived.   See Zannino, 895 F.2d at 17; Pignons S.A. de Mecanique,

701 F.2d at 3.6




     5
       To the extent that Mills suggests (mostly in her reply
brief) that there were alternative bases for her Chapter 93A claim,
such as "that she was given a predatory loan, qualified for a
modification that OneWest refused to honor, and was never behind in
her mortgage payments until she was instructed to stop paying in
order to 'qualify' for her modification," she has failed to
sufficiently develop her argument on appeal, and issues may not be
raised for the first time in a reply brief. See Zannino, 895 F.2d
at 17; Pignons S.A. de Mecanique, 701 F.2d at 3.
     6
       In any event, the import of the submitted evidence --
allegedly contradictory versions of the mortgage assignment from
MERS to OneWest and of the promissory note -- is less than clear.
Although Mills claims various discrepancies between these versions,
she fails to explain how these discrepancies implicate the
documents' validity; instead, she merely engages in the sort of
speculation (e.g., "we cannot rule out the possibility of liberties
having bee[n] taken that should not have been taken in a court of
law") that we need not give weight under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

                               -16-
                               III.

          For the foregoing reasons, we affirm the district court's

order granting the defendants' motion to dismiss and denying

Mills's motion to amend her complaint.




                               -17-
