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13-P-506                                            Appeals Court

   JOHN E. HASKINS    vs. DEUTSCHE BANK NATIONAL TRUST COMPANY,
                         trustee,1 & others.2


                            No. 13-P-506.

     Worcester.       September 3, 2014. - November 10, 2014.

            Present:    Green, Graham, & Katzmann, JJ.


Mortgage, Foreclosure. Notice, Foreclosure of mortgage.
     Assignment. Consumer Protection Act, Investigative demand.
     Fraud. Practice, Civil, Complaint. Contract, Implied
     covenant of good faith and fair dealing.



     Civil action commenced in the Superior Court Department on
June 13, 2012.

     A motion to dismiss was heard by Janet Kenton-Walker, J.


     Adam T. Sherwin for the plaintiff.
     Christopher A. Cornetta for the defendants.


     GREEN, J.    We are called upon to address a question raised

but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467

     1
       Of the Residential Asset Securitization Trust 2004-A2,
Mortgage Pass-Through Certificates, Series 2004-B.
     2
       OneWest Bank, FSB; MERSCORP Holdings, Inc.; and Mortgage
Electronic Registration Systems, Inc.
                                                                   2


Mass. 421 (2014) (Schumacher):   whether a notice of a

mortgagor's right to cure a mortgage loan default, sent pursuant

to G. L. c. 244, § 35A, is deficient if it is sent by the

mortgage servicing agent (rather than the record holder of the

mortgage), or if it identifies the servicing agent as the

mortgage holder.   We conclude that the notice in the present

case complied with the statute, and affirm the judgment of the

Superior Court dismissing the plaintiff's complaint.3

     Background.   The plaintiff, John E. Haskins, purchased his

residence at 98 Southville Road, Southborough, in 2002.     In

2004, incident to a refinancing transaction, he granted a

mortgage to defendant Mortgage Electronic Registration Systems,

Inc. (MERS), as nominee for First Magnus Financial Corporation

(First Magnus).4   Haskins thereafter defaulted on his loan

payment obligations and, by letter dated May 4, 2010, IndyMac

Mortgage Services, the mortgage servicing division of defendant

OneWest Bank, FSB (IndyMac), informed Haskins that he was in

default, but that he had the right to cure the default within

ninety days.   The letter identified "IndyMac Mortgage Services,




     3
       As discussed infra, we likewise reject the plaintiff's
various other claims of error in the dismissal of his complaint.
     4
       As part of the refinancing, Haskins also executed a
promissory note in favor of First Magnus.
                                                                    3


a Division of OneWest Bank" as the mortgage holder.5   In fact,

record title to the mortgage was held at the time by MERS, and

the equitable or beneficial ownership of the loan secured by the

mortgage was held by defendant Deutsche Bank National Trust

Company (Deutsche Bank), as trustee of the Residential Asset

Securitization Trust 2004-A2, Mortgage Pass-Through

Certificates, Series 2004-B (securitization trust).    By letter

dated December 8, 2010, IndyMac again advised Haskins of the

default, and of his right to cure the default (this time within

150 days); like the May 4 letter, the December 8 letter

identified "IndyMac Mortgage Services, a Division of OneWest

Bank" as the mortgage holder.    Haskins did not cure the default,

and Deutsche Bank thereafter obtained a judgment from the Land

Court, pursuant to the Servicemembers Civil Relief Act, allowing

it to foreclose the mortgage pursuant to the statutory power of

sale.    Prior to foreclosure, however, Haskins commenced the

present action in Superior Court, seeking declaratory and

injunctive relief to prevent the foreclosure, as well as money

damages.    A judge allowed the defendants' motion to dismiss the

complaint for failure to state a claim upon which relief may be

granted.    The case comes to us on the plaintiff's appeal from

the resulting judgment of dismissal.

     5
       The copy of the May 4 letter in the record (and attached
as an exhibit to the plaintiff's amended complaint) contains
only the first page of the letter.
                                                                     4


     Discussion.   1.   Section 35A notice.   In Schumacher, the

Supreme Judicial Court considered whether alleged deficiencies

in notice given to a defaulted borrower pursuant to G. L.

c. 244, § 35A, furnished a basis to challenge the title acquired

pursuant to a subsequent extrajudicial foreclosure sale.     467

Mass. at 422.   The court concluded that the notice of a

borrower's right to cure a default, required under § 35A, is not

a part of the foreclosure process, but instead "is designed to

give a mortgagor a fair opportunity to cure a default before the

debt is accelerated and before the foreclosure process is

commenced through invocation of the power of sale."     Id. at 431.

Accordingly, "G. L. c. 244, § 35A, is not one of the statutes

'relating to the foreclosure of mortgages by the exercise of a

power of sale,'" ibid., quoting from G. L. c. 183, § 21, and a

deficiency in the notice sent pursuant to § 35A does not furnish

a basis to challenge the validity of the foreclosure.      See id.

at 429-430.   Instead, the appropriate avenue for a borrower to

raise a challenge to the form of notice given under § 35A is by

means of an equitable action, prior to foreclosure, seeking to

enjoin the foreclosure.   Id. at 422 n.4.

     By virtue of its conclusion, the court did not reach the

second of two questions on which it solicited amicus briefs:6


     6
       For reference to the amicus briefs filed in Schumacher,
see 467 Mass. at 423 n.5. We take judicial notice of the
                                                                    5


whether a notice sent pursuant to § 35A that lists the name and

address of the mortgage servicer, but incorrectly identifies it

as the current holder of the mortgage, satisfies the statutory

requirement that the notice inform the mortgagor of, inter alia,

"the name and address of the mortgagee, or anyone holding

thereunder."     G. L. c. 244, § 35A(c)(4), inserted by St. 2007,

c. 206, § 11.7    The present appeal requires us to reach that

question.

     General Laws c. 244, § 35A, gives a mortgagor of real

property in the Commonwealth a right to cure a payment default

before foreclosure proceedings may be commenced.8    In its present




questions framed for amici, as described in the docket of that
case.
     7
       This language now appears in § 35A(h)(4).
     8
       As approved on November 29, 2007, and made effective on
May 1, 2008, § 35A gave mortgagors a ninety-day cure period.
St. 2007, c. 206, § 11. The 2010 amendment, effective August 7,
2010, among other things extended the presumptive cure period
from ninety to 150 days, subject to certain exceptions not
applicable in the present case. St. 2010, c. 258, § 7. The
2007 version of § 35A was in effect at the time of the May 4
notice (and throughout the ninety-day cure period following it).
The 2010 version was in effect at the time of the December 8
notice. The parties do not address why IndyMac sent the
December 8 notice, or whether it, or the May 4 notice, should be
considered the effective notice for purposes of this case. (As
we indicated in note 5, the copy of the May 4 notice includes
only the first page, and ends before the signature.) The
question is immaterial, as both notices are identical in their
references to IndyMac as the "mortgage holder," and the
plaintiff asserts no claim that the December 8 notice failed in
any other respect to meet the requirements imposed by the 2010
amendments. For purposes of our discussion, we shall refer to
                                                                   6


form, the statute provides that "[t]he mortgagee, or anyone

holding thereunder, shall not accelerate maturity of the unpaid

balance of [a residential mortgage or note secured thereby] or

otherwise enforce the mortgage because of a default consisting

of the mortgagor's failure to make any [payment required by such

residential mortgage or note secured thereby] by any method

authorized by this chapter or any other law until at least 150

days after the date a written notice is given by the mortgagee

to the mortgagor."    G. L. c. 244, § 35A(g), inserted by

St. 2010, c. 258, § 7.    Subsection (h) of the statute provides

that the required notice "shall inform" the mortgagor of various

matters, as set out in the margin.9



the December 8 notice and the version of the statute then in
effect.
     9
         General Laws c. 244, § 35A(h), provides as follows:

     "(h) The notice required in subsection (g) shall inform the
     mortgagor of the following: --

     "(1) the nature of the default claimed on such mortgage of
     residential real property and of the mortgagor's right to
     cure the default by paying the sum of money required to
     cure the default;

     "(2) the date by which the mortgagor shall cure the default
     to avoid acceleration, a foreclosure or other action to
     seize the home, which date shall not be less than 150 days
     after service of the notice and the name, address and local
     or toll free telephone number of a person to whom the
     payment or tender shall be made unless a creditor chooses
     to begin foreclosure proceedings after a right to cure
     period lasting less than 150 days that engaged in a good
     faith effort to negotiate and agree upon a commercially
                                                              7



reasonable alternative but was not successful in resolving
the dispute, in which case a foreclosure or other action to
seize the home may take place on an earlier date to be
specified;

"(3) that, if the mortgagor does not cure the default by
the date specified, the mortgagee, or anyone holding
thereunder, may take steps to terminate the mortgagor's
ownership in the property by a foreclosure proceeding or
other action to seize the home;

"(4) the name and address of the mortgagee, or anyone
holding thereunder, and the telephone number of a
representative of the mortgagee whom the mortgagor may
contact if the mortgagor disagrees with the mortgagee's
assertion that a default has occurred or the correctness of
the mortgagee's calculation of the amount required to cure
the default;

"(5) the name of any current and former mortgage broker or
mortgage loan originator for such mortgage or note securing
the residential property;

"(6) that the mortgagor may be eligible for assistance from
the Homeownership Preservation Foundation or other
foreclosure counseling agency, and the local or toll free
telephone numbers the mortgagor may call to request this
assistance;

"(7) that the mortgagor may sell the property prior to the
foreclosure sale and use the proceeds to pay off the
mortgage;

"(8) that the mortgagor may redeem the property by paying
the total amount due, prior to the foreclosure sale;

"(9) that the mortgagor may be evicted from the home after
a foreclosure sale; and

"(10) the mortgagor may have the following additional
rights, depending on the terms of the residential mortgage:
(i) to refinance the obligation by obtaining a loan which
would fully repay the residential mortgage debtor; and (ii)
to voluntarily grant a deed to the residential mortgage
lender in lieu of foreclosure.
                                                                    8


     At the time of the December 8 notice, MERS held record

title to the mortgage.   Accordingly, the notice was inaccurate

in its identification of IndyMac as the current mortgage holder,

if and to the extent an entity's status as mortgagee under the

statute is determined by record title.10   The plaintiff contends

that the disparity requires a conclusion that the notice is

ineffective, because "we adhere to the familiar rule that 'one

who sells under a power [of sale] must follow strictly its

terms.    If he fails to do so there is no valid execution of the

power, and the sale is wholly void.'"    U.S. Bank Natl. Assn. v.

Ibanez, 458 Mass. 637, 646 (2011), quoting from Moore v. Dick,

187 Mass. 207, 211 (1905).   In response, the defendants contend

that a defect in a § 35A notice will render it ineffective only

if the noncompliance would render a subsequent foreclosure "so

fundamentally unfair that [the homeowner] is entitled to



     "The notice shall also include a declaration, in the
     language the creditor has regularly used in its
     communication with the borrower, appearing on the first
     page of the notice stating: 'This is an important notice
     concerning your right to live in your home. Have it
     translated at once.'

     "The division of banks shall adopt regulations in
     accordance with this subsection."
     10
       It also appears that, as servicer, IndyMac held no
beneficial ownership interest in the mortgage, or in the debt
secured thereby; instead, its role was strictly as servicing
agent for Deutsche Bank (which in turn served as trustee of the
securitization trust), the note holder and owner of the debt
secured by the mortgage.
                                                                     9


affirmative equitable relief . . . 'for reasons other than

failure to comply strictly with the power of sale provided in

the mortgage.'"   Schumacher, 467 Mass. at 433 (Gants, J.,

concurring), quoting from Bank of America, N.A. v. Rosa, 466

Mass. 613, 624 (2013).    See Bank of N.Y. Mellon Corp. v. Wain,

85 Mass. App. Ct. 498, 501-502 (2014).    In our view, neither

position is correct.

     As the Supreme Judicial Court made clear in Schumacher,

§ 35A "is not one of the statutes 'relating to the foreclosure

of mortgages by the exercise of a power of sale.'"    467 Mass. at

431, quoting from G. L. c. 183, § 21.    Accordingly, the rule of

strict adherence observed in Ibanez and invoked by the plaintiff

is inapposite.    However, the circumstances here are unlike those

in Schumacher in a particularly important respect; indeed, the

present case is in precisely the posture recognized by the court

in Schumacher as appropriate to challenge the validity of a

§ 35A notice in order to prevent a foreclosure sale from going

forward.   See Schumacher, supra at 422 n.4.   Accordingly, the

standard of "fundamental unfairness" furnishes too narrow a lens

through which to view potential grounds for relief based on a

defective notice.11    We accordingly consider how the statutory


     11
       The fundamental unfairness standard discussed in
Schumacher applies when a § 35A violation is raised in a
postforeclosure summary process action, instead of properly in a
preforeclosure equity action. 467 Mass. at 433 (Gants, J.,
                                                                 10


requirements should be construed, using familiar principles of

statutory construction.

    "Our primary duty in interpreting a statute is 'to
    effectuate the intent of the Legislature in enacting it.'
    International Org. of Masters v. Woods Hole, Martha's
    Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984).
    We begin with the language of the statute, as 'the
    principal source of insight into legislative intent.'
    Providence & Worcester R.R. v. Energy Facilities Siting
    Bd., 453 Mass. 135, 142 (2009), quoting New Bedford v.
    Energy Facilities Siting Council, 413 Mass. 482, 485
    (1992), S.C., 419 Mass. 1003 (1995). Where the words are
    'plain and unambiguous' in their meaning, we view them as
    'conclusive as to legislative intent.' Sterilite Corp. v.
    Continental Cas. Co., 397 Mass. 837, 839 (1986). Where the
    meaning of a statute is not plain from its language, we
    consider 'the cause of its enactment, the mischief or
    imperfection to be remedied and the main object to be
    accomplished, to the end that the purpose of its framers
    may be effectuated.' DiFiore v. American Airlines, Inc.,
    454 Mass. 486, 490 (2009), quoting Industrial Fin. Corp. v.
    State Tax Comm'r, 367 Mass. 360, 364 (1975). See Oxford v.
    Oxford Water Co., 391 Mass. 581, 588 (1984), quoting
    Commonwealth v. Welosky, 276 Mass. 398, 401-402 (1931),
    cert. denied, 284 U.S. 684 (1932) ('Statutes are to be
    interpreted . . . in connection with their development,
    their progression through the legislative body, the history
    of the times . . .'). 'Where possible, we construe the
    various provisions of a statute in harmony with one
    another, recognizing that the Legislature did not intend
    internal contradiction.' DiFiore v. American Airlines,
    Inc., supra at 491."

Water Dept. of Fairhaven v. Department of Envtl. Protection, 455

Mass. 740, 744-745 (2010).




concurring). Here, the plaintiff indeed filed a preforeclosure
equity action. Because our view is that the § 35A notice in
this case conformed to the statutory requirements, we do not
reach the question what type of defect in the notice would
entitle a mortgagor to relief.
                                                                     11


     Though the term "mortgagee" rests on centuries of common

law, relatively recent developments in the methods by which

residential mortgages are funded, held, and managed have

introduced new complexity in typical residential finance

transactions, creating some ambiguity in how some traditionally

well-understood terms should be understood with reference to

contemporary transaction structures.   Indeed, the Supreme

Judicial Court recently observed that the term "mortgagee" as

used in the statutes governing the foreclosure process "is not

free from ambiguity."    Eaton v. Federal Natl. Mort. Assn., 462

Mass. 569, 571 (2012).   In Eaton, the court adopted an

interpretation of the term in the context of a foreclosure sale

to mean "the person or entity . . . holding the mortgage [at the

time of a foreclosure sale] and also either holding the mortgage

note or acting on behalf of the note holder."   Ibid.     However,

recognizing that its interpretation represented a departure from

traditional practices resting on the understanding that a

foreclosing mortgagee need hold only the mortgage and not the

note, the court held that its interpretation would apply only

prospectively.12   Id. at 588-589.




     12
       The notice at issue in the present case preceded the
Eaton decision.
                                                                  12


     Section 35A contains no definition of the term

"mortgagee."13   The recognized ambiguity of the term in the

context of foreclosure sales, and in light of contemporary

financing structures, precludes us from relying solely on the

plain language of the statute to resolve the question of its

meaning.   We accordingly consider "the cause of its enactment,

the mischief or imperfection to be remedied and the main object

to be accomplished, to the end that the purpose of its framers

may be effectuated."   DiFiore, 454 Mass. at 490, quoting from

Industrial Fin. Corp., supra.

     General Laws c. 244, § 35A, was adopted in response to

recommendations made in the "Report of the Mortgage Summit

Working Groups, Recommended Solutions to Prevent Foreclosures

and to Ensure Massachusetts Consumers Maintain the Dream of

Homeownership," dated April 11, 2007 (Mortgage Summit Report),

which itself was commissioned in "response to rising

foreclosures both locally and nationally, increasing evidence of

mortgage fraud, and other developments in the mortgage market."

     13
       We note that the 2010 amendments added a definition of
"Creditor" as "a person or entity that holds or controls,
partially, wholly, indirectly, directly, or in a nominee
capacity, a mortgage loan securing a residential property,
including, without limitation, an originator, holder, investor,
assignee, successor, trust, trustee, nominee holder, Mortgage
Electronic Registration System or mortgage servicer, including
the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation. 'Creditor' shall also include any
servant, employee or agent of a creditor." G. L. c. 244,
§ 35A(a), inserted by St. 2010, c. 258, § 7.
                                                                   13


Mortgage Summit Report, supra at 2.   The Mortgage Summit Report

highlighted what the authors considered "[f]our problems with

existing Massachusetts law":   (1) "[t]he only pre-foreclosure

notice required by Massachusetts law may be sent as few as 14

days before the [foreclosure] sale"; (2) "Massachusetts law does

not include a right to cure a default to prevent foreclosure";

(3) "Massachusetts law allows foreclosure sales without a prior

court proceeding"; and (4) "Massachusetts homeowners get no

notice of what happens at the foreclosure sale of their home."

Id. at 16.   Accordingly, the Mortgage Summit Report recommended

implementation of a requirement that notice be sent to

defaulting borrowers ninety days before commencement of

foreclosure, advising them of a right to cure a payment default

and thereby avoid foreclosure, and a prohibition against

imposition of attorney's fees or other costs during the

specified cure period.   Id. at 17.

    As originally adopted, § 35A tracked the Mortgage Summit

Report recommendation of a notice requirement preceding

commencement of foreclosure, and a ninety-day cure period,

exactly.   The statute also required the notice to advise the

mortgagor of, inter alia, the nature of the default, the name of

any current and former mortgage broker or mortgage loan

originator, the potential eligibility of the mortgagor for

assistance from the Massachusetts Housing Finance Agency (and
                                                                  14


information about how the mortgagor might request such

assistance), and the "name and address of the mortgagee, or

anyone holding thereunder, and the telephone number of a

representative of the mortgagee whom the mortgagor may contact

if the mortgagor disagrees with the mortgagee's assertion that a

default has occurred or the correctness of the mortgagee's

calculation of the amount required to cure the default."     G. L.

c. 244, § 35A(c)(4), inserted by St. 2007, c. 206, § 11.

    The evident purpose of the notice required by § 35A is to

"give a mortgagor a fair opportunity to cure a default before

the debt is accelerated and before the foreclosure process is

commenced through invocation of the power of sale."     Schumacher,

467 Mass. at 431.   To accomplish that purpose, the statutory

notice is designed to provide the mortgagor with the information

necessary to contact the party who holds all relevant

information about the loan (including balances, payment history,

and overdue payment amounts), and who holds authority to make

decisions or otherwise take action to allow the mortgagor to

cure any default, pay off the loan balance by means of a sale or

refinancing, or undertake discussions of a possible modification

of the loan.   In the circumstances of loans such as the one

here, that party is the mortgage servicer.

    MERS typically holds a bare legal title to the mortgage

security instrument.   See, e.g., Eaton, 462 Mass. at 572;
                                                                   15


Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 209

(2014).   See generally Culhane v. Aurora Loan Servs. of Neb.,

708 F.3d 282, 287 (1st Cir. 2013).   A securitization trust

holding the equitable or beneficial interest in the debt secured

by the mortgage likewise typically plays no active role in

managing the mortgage (though a securitization trust does hold

the authority to accept or reject modification proposals

negotiated by the servicer, and to direct ultimate decisions

concerning whether to complete or abandon a foreclosure sale);

instead the servicer is responsible for collecting and recording

instalment payments on the loan, conducting communications with

the mortgagor, and managing the foreclosure process if the loan

goes into default (or alternatively considering terms of a loan

modification).   See generally Levitin & Twomey, Mortgage

Servicing, 28 Yale J. on Reg. 1, 16, 23 (2011).   Viewed against

the statutory objective of furnishing a mortgagor with the

information necessary to contact the party from whom information

about the loan may be obtained, to whom any curative payment may

be made, or with whom modification discussions might be

conducted, it is sensible to consider the servicer within the

scope of parties encompassed by the term "mortgagee" in

§ 35A(h)(4).14   Moreover, nothing in the statutory objective


     14
       We acknowledge the observation in Eaton that "[w]here the
Legislature uses the same words in several sections which
                                                                   16


appears to be furthered by furnishing the mortgagor with the

name and address of the mortgagee in circumstances where the

loan is serviced by a different entity.   In such circumstances,

as we have observed, all relevant information concerning the

loan and all communications with the mortgagor will be with the

servicer (here, IndyMac) and not the holder of either the legal

interest in the mortgage (here, MERS) or the beneficial interest

in the loan (here, the securitization trust).15

     We are buttressed in our conclusion by the regulations

promulgated by the division of banks pursuant to its rule-making

authority set forth in § 35A(h), which include mortgage

servicers among the entities included in the definition of the

term "mortgagee" for purposes of effectuating the right to cure




concern the same subject matter, the words must be presumed to
have been used with the same meaning in each section." 462
Mass. at 583 (citation omitted). However, Eaton considered the
meaning of "mortgagee" in the context of a foreclosure sale
conducted under the statutory power of sale and, as we have
observed, § 35A is not part of the foreclosure process. See
Schumacher, 467 Mass. at 431.
     15
       By comparison, the requirement that the notice include
the name and address of the mortgage broker or the loan
originator, see G. L. c. 244, § 35A(h)(5), appears (in
conjunction with § 35A[k], which requires a copy of the notice
to be filed with the commissioner of the division of banks)
designed to collect a database of information about mortgage
loan originators who engaged in predatory loan origination
practices. See Mortgage Summit Report, supra at 14.
                                                                 17


notification process.   See 209 Code Mass. Regs. § 56.02 (2012).16

Though that particular regulation was not promulgated until

March 2, 2012, after the notice at issue here, it illustrates

the interpretation of the statute by the administrative

authority charged with its enforcement, which we consider to be

reasonable for the reasons explained supra.   We accordingly

extend it substantial deference.   See Commerce Ins. Co. v.

Commissioner of Ins., 447 Mass. 478, 481 (2006).   See also

Massachusetts Med. Soc. v. Commissioner of Ins., 402 Mass. 44,

62 (1988) ("Where the [agency's] statutory interpretation is

reasonable, . . . [we] should not supplant [its] judgment").

    For the foregoing reasons, we discern no merit in the

plaintiff's contention that the § 35A notice was defective

because it identified IndyMac (the mortgage servicer) as the




    16
       We also note that the "Frequently Asked Questions"
section on the division of banks Web site includes the
following:

          "Q: Is it acceptable for the servicer to put its name
in the Notice everywhere the word 'Mortgagee' appears?"

          "A: Yes. It is acceptable for the servicer or any
entity authorized to act on behalf of the mortgagee to put its
name in every space that references mortgagee. The references
should be consistent throughout the Notice."

     See Frequently Asked Questions on 150/90 Day Right To Cure
Notice, available only at http://www.mass.gov/ocabr/banking-and-
finance/laws-and-regulations/dob-faqs/faq04042012.html
[http://perma.cc/R38E-KF6Y] (last visited November 6, 2014).
                                                                      18


mortgage holder.   The motion judge correctly dismissed the count

of the plaintiff's complaint asserting that claim.

     2.   Other issues.   The plaintiff's remaining claims of

error require little discussion.    There is no merit to the

plaintiff's claim that the § 35A notice was invalid because it

was not sent by certified mail; the statute provides that notice

given in that manner is "deemed delivered," but does not require

the notice to be sent in that manner.     St. 2010, c. 258, § 7.

In any event, the plaintiff acknowledges that he received the

notice.   There is likewise no merit to the plaintiff's claim

that MERS is without capacity to execute a valid assignment of

the mortgage (because it held a bare legal title to the

mortgage, separated from any beneficial interest).    See

Sullivan, 85 Mass. App. Ct. at 209-210.    The plaintiff's claim

under G. L. c. 93A was properly dismissed because he did not

send the requisite demand prior to commencement of suit.17      See

G. L. c. 93A, § 9(3); Kanamaru v. Holyoke Mut. Ins. Co., 72

Mass. App. Ct. 396, 407-408 (2008).    Similarly, the plaintiff's

claim of fraud was properly dismissed because his complaint did

not plead it with particularity.   See Mass.R.Civ.P. 9(b), 365

     17
       The plaintiff argues for the first time on appeal that
the demand requirements of G. L. c. 93A, § 9(3), do not apply
because the defendants do not maintain a place of business or
keep assets in the Commonwealth. The plaintiff failed to plead
this exception in his amended complaint, and he failed to raise
the argument below. Thus, the argument is waived. Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006).
                                                                   19


Mass. 751 (1974).   The plaintiff's challenge to the validity of

the signatures on the mortgage assignment is precluded by the

provisions of G. L. c. 183, § 54B.18   Finally, the plaintiff

pleaded no facts to support his claim that the defendants'

attempts to proceed with foreclosure of the property, based upon

the plaintiff's payment default, constituted a breach of the

implied covenant of good faith and fair dealing.

                                    Judgment affirmed.




     18
       Conformably to § 54B, the assignment was executed by a
person identified as "JC San Pedro," who purported to be an
assistant secretary of MERS.
