          United States Court of Appeals
                      For the First Circuit


No. 16-2274

  CHRISTOPHER HAYDEN; DENINE L. MURPHY, a/k/a Denine L. Hayden,

                     Plaintiffs, Appellants,

                                v.

 HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Wells Fargo
 Asset Securities Corporation Mortgage Asset-Backed Pass Through
      Certificates Series 2007-PA3; WELLS FARGO BANK, N.A.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Denise J. Casper, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Glenn F. Russell, Jr. and Glenn F. Russell, Jr., & Associates,
P.C. on brief for appellants.
     Sean R. Higgins, Y. Frank Ren, and K&L Gates LLP on brief for
appellees.


                          April 17, 2020
               Per Curiam.1            In March 2007, Christopher Hayden and

Denine Murphy ("the Haydens") borrowed $800,000 from GN Mortgage,

LLC     ("the    lender")         to     purchase    a     property     in     Rehoboth,

Massachusetts.              The    Haydens       executed        a   promissory     note

memorializing         the   loan       and   a   mortgage       identifying    Mortgage

Electronic Registration Systems, Inc. ("MERS") as the mortgagee,

acting "solely as a nominee" for the lender and the lender's

successors and assigns.                The mortgage also granted MERS, and its

successors and assigns, power of sale over the property.                             In

January 2008, MERS assigned the mortgage to HSBC Bank USA, N.A.

("HSBC") as trustee for WFALT 2007-PA03.                       In February 2010, HSBC

reassigned the mortgage to itself as trustee for Wells Fargo Asset

Securities       Corporation,           Mortgage     Asset-Backed       Pass    Through

Certificates, Series 2007-PA3.

               The Haydens defaulted on their loan in 2008.                    They then

filed       several    bankruptcy        petitions       and    requested    injunctive

relief, thereby delaying foreclosure until 2016.                             After HSBC

provided notice of a foreclosure sale in June 2016, the Haydens



        1
       An opinion first issued in this appeal in August 2017. In
June 2018, that opinion was withdrawn, the judgment was vacated,
and the case was reassigned to the current, entirely different
panel. See Hayden v. HSBC Bank USA, N.A., 867 F.3d 222 (1st Cir.
2017), withdrawn, 2018 WL 3017468 (1st Cir. June 14, 2018). Having
reviewed the record and relevant precedent, we now conclude that
the withdrawn opinion properly resolved the issues on appeal.
Accordingly, we reiterate here, in substantial part, the analysis
contained in the earlier opinion.
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sued HSBC and Wells Fargo Bank, N.A. ("Wells Fargo"), the mortgage

servicer, to enjoin the sale. They now appeal the district court's

decision to deny their request for a preliminary injunction and to

grant HSBC's and Wells Fargo's motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6).                Specifically, the Haydens

challenge the district court's dismissal of their claims that (1)

HSBC       cannot   foreclose   on   their    property   under   Massachusetts

General Laws Chapter 244, § 14, and (2) the mortgage is obsolete

by operation of Massachusetts General Laws Chapter 260, § 33.2

               We review the district court's order of dismissal for

failure to state a claim de novo. Harry v. Countrywide Home Loans,

Inc., 902 F.3d 16, 18 (1st Cir. 2018).           The district court properly

dismissed the Haydens' claim that HSBC cannot foreclose on the

property on their view that MERS's assignment of the mortgage to

HSBC was invalid.         As the district court found, this claim is

foreclosed by precedent, which holds that MERS can validly assign

a mortgage without holding beneficial title to the underlying

property, see Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282,

291-93 (1st Cir. 2013), and that borrowers do not have standing to

challenge a mortgage assignment based on an alleged violation of




       2  The Haydens do not challenge the district court's
dismissal of their claim that Wells Fargo violated Massachusetts
General Laws Chapter 93A by failing to comply with 209 Mass. Code
Regs. 18.17 and 18.21.
                                      - 3 -
a trust's pooling and servicing agreement, see Butler v. Deutsche

Bank Tr. Co. Ams., 748 F.3d 28, 37 (1st Cir. 2014).

            Our decision in Dyer v. Wells Fargo Bank, N.A., also

issued today, reaffirms Culhane's holding that a mortgage contract

can validly make MERS the mortgagee and authorize it to assign the

mortgage on behalf of the lender to the lender's successors and

assigns.     See Dyer, No. 15-2421, slip op. at 5-6 (1st Cir. April

17,   2020).     Dyer   also   disposes   of   the   assertion    that   the

Massachusetts Supreme Judicial Court's ("SJC") decision in Eaton

v. Federal National Mortgage Association, 969 N.E.2d 1118 (Mass.

2012),     renders   Culhane   noncontrolling    where,   as     here,   the

foreclosing party holds both the note and the mortgage.           See Dyer,

slip op. at 6 n.3; see also Eaton, 969 N.E.2d at 1133 n.28 ("[A]

foreclosing mortgage holder such as [the nominee's assignee] may

establish that it either held the note or acted on behalf of the

note holder at the time of a foreclosure sale by filing an

affidavit in the appropriate registry of deeds . . . .").

            The district court also properly dismissed the Haydens'

obsolete mortgage claim, which has no basis in the plain text of

the statute or in precedent.          Under Massachusetts's obsolete

mortgage statute, a mortgage becomes obsolete and is automatically

discharged five years after the expiration of the stated term or

maturity date of the mortgage.      See Mass. Gen. Laws ch. 260, § 33.

Nothing in the text of the statute supports the Haydens' assertion
                                  - 4 -
that the acceleration of the maturity date of a note affects the

five-year limitations period for the related mortgage.                 Their

citation to the SJC's decision in Deutsche Bank National Trust Co.

v.   Fitchburg   Capital,    LLC,   28    N.E.3d   416   (Mass.    2015),   is

inapposite because the decision makes no mention of the impact of

an accelerated note on the obsolete mortgage statute's limitations

period.   We rejected this same argument in Harry v. Countrywide

Home Loans, 902 F.3d at 19, and our view was recently noted and

adopted by the Massachusetts Appeals Court, see Nims v. Bank of

N.Y. Mellon, [-- N.E. 3d --], 97 Mass. App. Ct. 123, at *4 & n.14

(March 3, 2020).     The Massachusetts court observed that neither

the statute's language nor its "purpose and design" support the

interpretation espoused by the Haydens.            See id. at *4; see also

id. at *3 (discussing the statute's legislative history).

           We agree that the Haydens failed to state a claim,

substantially for the reasons articulated by the district court.

Without   adopting   the    district     court's   opinion,   we   summarily

affirm.   See 1st Cir. R. 27.0(c).

            So ordered.




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