We previously made a blog post on this case on October 27, 2019

On December 03, 2019, the Massachusetts Appeals Court held oral argument on Nims v. Bank of New York Mellon as Trustee, et. al, Ca. No. 2019-P-0179.

As fate would have it, on this Tuesday December 03, 2019, a snowstorm struck the area. I happen to live in Rhode Island, and had to wake up at 4:00am that day to factor in the weather and travel delays in getting to Boston, a mere 60 miles from my residence.

However, prior to leaving on my sojourn that day, I had to make sure to shovel the driveway and walkway to my house in order that the members of my family could get to their cars.

In my rush to complete all of the preceding, I forgot to take the record appendix with me to Court that day.

The drive to Boston took me approximately 3 and one-half hours (to drive 60 miles).

Thankfully, this case was #4 of the 5 cases heard that day, so I was present when the case was called.

When the case was called, I walked up to the podium, announced my name and who I was representing, and Justice Agnes immediately asked me where the June 10, 2010 Acceleration Letter could be found in the appendix. I was confused as I was certain that I had cited to this document in the Opening Brief.

The oral argument can be heard here

I had prepared for weeks to present the argument in this matter, I had the legal arguments down, and I was loaded for bear, however I did not anticipate Justice Agnes' question right off the bat, as I was confident that I had clearly cited to the document in the Opening Brief.

However, despite my statements to the panel that the reference to the June 10, 2010 acceleration letter could be found in the Opening brief, the Panel repeatedly stated that there was no such citation. Justice Agnes went so far as to state to me that if the June 10, 2010 letter was not in the Appendix; "you lose"

Subsequently, I was left to scrap my oral argument to scramble on an emergency basis to locate the citation within the 48 page brief (at great embarrassment) . While out of the corner of my eye I anxiously watched as the 15 minute clock for oral argument ticked down in front of me, I continued to scramble scanning the brief as quickly as I could to find any citation to the document.

In my rush to find the document, I cited the first reference I saw related to the June 10, 2010 Letter. which was to the complaint at paragraph 125, and its attached Exhibit L. Thus, I made that citation to Judge Agnes, who turned to Justice Wolohojian and turned the laptop in her direction to which she replied "Exhibit L", Okay. Once this exchange was completed I was only left with about 1 minute of argument.

Upon returning home from the oral argument, humiliated, I reviewed the complaint at paragraph 125, then reviewed "Exhibit L" in the Appendix. To my horror, the document attached to Exhibit L was blank. However, the Panel did not relay to me that Exhibit L contained no document.

Thereafter, I carefully reviewed the Opening Brief to see if I had really failed to cite to the document. Sure enough, at p. 30 of the Opening Brief, I had clearly cited to the June 10, 2010 Acceleration Letter and referenced page 106 of the Record Appendix where the document could be found. In fact, the document was located at Exhibit M of the complaint, not Exhibit L. In addition in my Opposition to the Bank of New York Mellon's 2 page Motion to Dismiss (also in the Record Appendix), I also clearly cited to Exhibit M to where the June 10, 2010 document could be found

I thereafter filed a MRAP 16(l) Letter with the court explicating that, in fact, the current record did include reference to the June 10, 2010 Acceleration Letter at p. 30 of the Opening Brief and at p. 106 of the Record Appendix, I also included Exhibits of these 2 pages.see the December 04, 2019 MRCP 16(l) filing here
Compare The oral argument can be heard here

However, despite the preceding, at oral argument, the Panel propounded questioning to the Defendants' counsel, to which they could not articulate any cogent reason for the Superior Court Judge's decision. Most importantly, the Panel queried precisely how the Nims Note could have been subsequently accelerated in 2015 (after the June 10, 2010 letter) where the Nims filed bankruptcy and the Note was discharged in October 2012. The Superior Court Decision found that the Bank of New York Mellon sent the Nims a 2015 Acceleration letter, and therefore, the clock only began to run from 2015, and therefore 5 years to discharge the mortgage had not taken place.

We argued at the Superior Court level that it was impossible to have "accelerated" a Note in 2015 that had been discharged in bankruptcy in 2012. We also argued that, in fact, the SJC provided guidance as to statutory interpretation of the Obsolete Mortgage Statute in Deutsche Bank, NT. Co., et al. v. Fitchburg Capital, LLC, 471 Mass.248 (SJC 2015)

Nims v. BONY / BOA Superior Court Decision

Nims v. BONY MTD Hearing Transcript

Nims Superior Court Opposition to BONY Motion to Dismiss

Bank of New York Mellon ("BONY") Superior Court Motion to Dismiss

Nims v. BONY Decision Denying Preliminary Injunction

This case is extremely important as to providing borrowers with a significant legal defense to threatened foreclosure actions, as the financial industry completely ignored the legislative 2006 changes to G.L. c. 260, sec. 33. The financial industry counted on you the consumer to be too ignorant to figure out these nuances in the law, and further counted on the fact that only a comparatively few of these cases are ever challenged by borrowers represented by counsel.

Hopefully the Bank of New York Mellon thought wrong

We will see how the Panel rules here.

We will keep you posted as to any subsequent haps.