Preview
Date Filed 2/15/2023 10:30 AM
Superior Court - Middlesex
Docket Number 238JCV00353
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
C.A. No. 2381CV00353
2/15/2023
xxxxx xxxxx and
xxxxxx xxxxx,
Plaintiffs,
Vv.
WILMINGTON TRUST NATIONAL
ASSOCIATION, MFRA TRUST 2015-
1, PLANET HOME LENDING, LLC, et
al.,
Defendant.
DEFENDANT’S MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER
AND OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION
Defendants Wilmington Trust National Association, MFRA Trust 2015-1! (together with
Wilmington Trust, “Wilmington Trust” or the “Mortgagee”), Planet Home Lending, LLC,
Citibank, N.A., not in its individual capacity, but solely as separate trustee for PMT NPL Financing
2015-1, and PNMAC Capital Management, LLC (collectively, “Defendants”) hereby move to
dissolve this Court’s February 3, 2023 temporary restraining order and oppose the institution of
any further injunctive relief.
1 The Najdas erroneously name “Wilmington Trust National Association” and “MFRA Trust 2015-1” as separate
entities: In fact, the mortgagor is “Wilmington Trust, National Association, not in its individual Capacity but solely
in its capacity as Trustee of MFRA Trust 2015-1.” This entity became the mortgagee on June 21, 2018 by operation
of a duly recorded assignment.
TH
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Docket Number 2381CV00353,
I Factual & Procedural Background
The complete factual and procedural background Televant to this matter spans the better
part of the last decade and is memorialized in no less than three court dockets. Therefore, in the
interests of brevity and promptly responding to Plaintiffs xxxxx Nadja and xxxxxx Nadja’s (the
“Najdas”) Emergency Ex Parte Motion for a Temporary Restraining Order (the “Motion”,
Defendants summarize only the facts relevant to the Court’s consideration of their opposition to
the Motion.
On August 3, 2007, the Najdas refinanced a prior mortgage on 71 Flint’Road, Concord,
Massachusetts (the “Property”) with CitiMortgage, Inc. (“CitiMortgage”). They executed an
adjustable rate promissory note (“Note”) to CitiMortgage in the amount of $3,464,000.00. To
secure the Note, Defendant xxxxx xxxxx granted a mortgage (“Mortgage”) (together with the Note,
the “Mortgage Loan”) on the, Property to Mortgage Electronic Registration Systems, Inc.
(“MERS”) as nominee for CitiMortgage and its successors and assigns. Citibank, N.A., not in its
individual capacity, but solely as separate trustee for PMT NPL Financing 2015-1 (the “Federal
Court Plaintiff’) became the mortgagee through a series of valid, duly recorded assignments.
The Federal Court Plaintiff's predecessor in interest, Citibank, N.A., as Trustee for the
benefit of SWDNSI Trust Series 2010-3 (“Citibank Trustee”), filed a judicial foreclosure action
on September 9, 2014, alleging that the Najdas were in default on the Mortgage Loan, and seeking
an order authorizing it to foreclose by the power of sale on the Property. This case is docketed in
the United States District Court for the District of Massachusetts at Docket No. 14-13593-GAO
(the “Federal Court Action” or the “Judicial Foreclosure Action”). In response, the Najdas filed
original and amended counterclaims against Specialized Loan Servicing LLC (“SLS”) (a former
servicer); CitiMortgage; then-servicer PennyMac Loan Services, LLC (“PLS”); the former holder
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Docket Number 2381.CV00353 -
of their Mortgage, PennyMac; and MERS. The Najdas expressly conceded the District Court's
jurisdiction over the matter in their counterclaims.
The Federal Court Case proceeded to a mixed bench/jury trial in November 2017. The
jury returned a verdict for Plaintiff on the claims for breach of contract and G.L c: 93A and the
District Court found in favor of Plaintiff on the. remaining claims tried to the bench. As relevant
here, the District Court found that the Federal Court Plaintiff held the Najdas’ Note and Mortgage;
the Najdas were in breach thereunder for failing to make all required payments; and the Federal
Court Plaintiff had satisfied all pre-foreclosure requirements, including the notice requirement
under Paragraph 22 of the Mortgage. The’ District Court concluded that Plaintiff had standing to
foreclose on the Property by power of sale. The District Court directed entry of judgment on these
claims in the Federal Court Plaintiff's favor.
Judgment in the Federal Court Action entered on March 30, 2018. The Federal Court
Plaintiff was declared the lawful holder of the Note and Mortgage with standing to foreclose on
the Property. The judgment stated that the Najdas had two months from the entry of the Judgment,
or until May 30, 2018, to pay the total amount owing ($4,833,073.61) plus interest. “Otherwise,
the Court shall enter an order pursuant to Mass. Gen. Laws ch. 244, § 11, authorizing [the Federal
Court Plaintiff] to conduct a public sale of the Property pursuant to the power of sale contained in
the Mortgage with such sale to be published and noticed in the same or similar manner as provided
for in Mass. Gen. Laws ch. 244, § 14, and upon such other terms and conditions as the Court may
require.” After the sale, the Judgment directed the Federal Court Plaintiff to file a motion for
approval of the sale.
The district court denied all of the Najdas’ post-Judgment motions and the Najdas appealed
(once after Judgment and once after resolution of all post-Judgment motions). Those consolidated
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appeals are docketed in the United States Court of Appeals for the First Circuit (the “First Circuit”)
at Docket Numbers 19-1434 and 20-1057. In a December 30, 2022 Order, the First Circuit
remanded the matter to the District Court “for further fact finding and a determination whether
there was minimal or complete diversity between the parties at the time the action was
commenced[]” and retained jurisdiction over the appeal.
Despite the remand, on January 23, 2023, the Najdas filed in the First Circuit an emergency
motion to stay or enjoin Wilmington Trust from carrying out a non-judicial foreclosure sale of the
Property originally scheduled for February 6, 2023 at 10:00 a.m. In a January 25, 2023 Order, the
First Circuit denied the Najdas’ motion and found them in violation of Federal Rule of Appellate
Procedure 8. On January 26, 2023, the Najdas filed essentially the same motion in the District
Court. On January 30,,2023, the Federal Court Plaintiff filed its opposition to the Najdas’ motion.
On February 2, 2023, without first receiving a response from the District Court, the Najdas’ once
again filed a substantively similar motion in the First Circuit. The next day, the First Circuit denied
the Najdas’ motion once more and statéd, “We expect that a ruling by the district court on this
motion is forthcoming.” To date, the District Court has not ruled on the Najdas’ pending motion.
Thus, fearing that Wilmington Trust would finally carry out a nonjudicial foreclosure sale
in accordance with the terms of the Mortgage, the Najdas filed their Motion in this Court in an
effort to sidestep ongoing litigation, subvert the District Court,.and further prolong and complicate
a litigation history that, through their actions, has been nothing short of vexatious and harassing.
For the foregoing reasons, the Najdas’ Motion is meritless and they are not entitled to any relief.
I. Legal Standard
To succeed in an action for a preliminary injunction, a plaintiff must show (1) a
likelihood of success on the merits; (2) that irreparable harm will result from denial
of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the
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merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to
the defendants in granting the injunction.
Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001) (citing
Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 617 (1980)). In applying these standards,
courts balance the relative risks of irreparable harm to both the moving and opposing parties.
Packaging Indus., 380 Mass. 617 (“[w]hat matters as to each party is not the raw amount of
irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the
party's chance of success on the merits. Only when the balance between these risks cuts in favor
of the moving party may a preliminary injunction properly issue.”) “In an appropriate case, the
tisk of harm to the public interest also may be considered.” Town of Brookline v. Goldstein, 388
Mass. 443, 447 (1983). The issuance of preliminary injunctive relief is “an extraordinary and
drastic remedy that is never awarded as of right.” Peoples Fed. Sav. Bank v. People's United Bank,
672 F.3d 1, 8-9 (1st Cir. 2012).
I. The Najdas Are Not Likely To Succeed on the Merits
Of the facts considered in-a court’s evaluation of whether to grant astay or injunction, “the
likelihood of success on the merits ‘normally weighs heaviest in the decisional scales. o>» Harry v.
Countrywide Home Loans Inc., 215 F. Supp. 3d 183, 186 (D. Mass. 2016) (quoting Coguico, Inc.
v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)). Even where defendants will face the
foreclosure of a residential property in the absence of an injunction, that alone is not sufficient to
warrant an injunction even when the foreclosure will work a greater hardship on the defendants
than the injunction would work on the plaintiff. See Harry, 215 F. Supp. 3d at 188 (“Plaintiffs
will no doubt be subject to significant harm if their residence is foreclosed upon and the hardship
caused thereby would be greater than the hardship to which defendants would be subjected by an
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Docket Number 2384CV00353
allowance of a preliminary injunction. Nevertheless, plaintiffs are not entitled to relief because
likelihood of success on the merits is the critical factor in the analysis.”) (internal citation omitted).
a. Wilmington Trust Complied With the Foreclosure Statute
GL. c. 244, § 14 (the “Foreclosure Statute”) governs the manner in which a mortgagee is
permitted to conduct a foreclosure sale. It states, in relevant part:
The mortgagee . . . may, upon breach of condition and without action, perform all
acts authorized or required by the power of sale; provided, however, that no sale
under such power shall be effectual to foreclosure a mortgage, unless, previous to
such sale . . . notice of the sale has been sent by registered mail to the owner or
owners of record of the equity of redemption as of 30 days prior to the date of sale,
said notice to be mailed by registered mail at least 14 days prior to the date of sale «
to said owner or owners{[.]
(emphasis added). The portion of the Foreclosure Statute excerpted here contains two details that
are time limited concerning the notice provided in advance of a foreclosure sale. First, it states
that notice must be sent to whomever is the real property’s owner at the point in time 30 days prior
to the date of sale. Second, it requires said notice to be sent to the real property’s owner at least
14 days prior to the date of sale. Simply put, the Foreclosure Statute does not require the
foreclosing mortgagee to provide notice to the mortgagor at least 30 days in advance; interpreting
the Foreclosure Statute in this way is plain error. Courts interpreting the Foreclosure Statute have
reached this same conclusion. In Hull v. Attleboro Sav. Bank, for example, the Appeals Court
stated, “The fourteen-day registered mail notice requirement is satisfied by mailing and nonreceipt
is irrelevant.” 33 Mass.App.Ct. 18, 25 (1992) (emphasis added). Similarly, in Chaves v. U.S.
Bank, N.A., the United States District Court for the District of Massachusetts stated, “notice of the
sale must be ‘sent by registered mail’ to the mortgagor at least 14 days prior to the day of the
sale.” 335 F. Supp. 3d 100, 106 (D. Mass. 2018) (emphasis added).
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Here, the Najdas argue in their Motion that “Wilmington and MFRA 2015 failed to strictly
comply with Mass. Gen. Laws ch. 244, § 14 because they sent the Notice of Saleto the Najdas on
January 13, 2023, 2023, only 24 days before the February 6, 2023 foreclosure sale.” See Najdas’
Motion at 3 (emphasis added). Thus, the Court need not look any further. The Najdas, through
their erroneous interpretation of the Foreclosure Statute, have confirmed not only that Defendants
strictly complied but that Defendants provided an extra ten days’ notice of the foreclosure sale.
The Najdas’ argument as to this point is therefore meritless.
b. Wilmington Trust Complied with The Terms of the Mortgage
The Najdas argue that Defendants failed to strictly comply with the terms of the Mortgage
by sending a “Paragraph 22 Notice” after a prior mortgagee accelerated the loan. As an initial
matter, Wilmington Trust acknowledges that counsel for CitiMortgage sent the Najdas an October
21, 2010 letter that purported to accelerate the Note. In fact; on October 22, 2010, CitiMortgage
filed an action in the Land Court against the Najdas under the Servicemembers Civil Relief Act
(Land Court Docket No. 10 MISC 441991) (the “2010 Land Court Action”). CitiMortgage
ultimately dismissed that action on its own accord in February 2014.
The 2010 acceleration is irrelevant for purposes of the Najdas’ current efforts to obtain
relief. Consider first that “under Massachusetts law, a mortgage has separate enforceability from
its underlying note . . . Thus, foreclosure on the mortgage is an alternate remedy to collection on
the note.” Nims v. Bank of N.Y. Mellon, 97 Mass.App.Ct. 123, 128-129 (2020) (emphasis added).
Therefore, acceleration, though perhaps related, is distinct from a mortgagee’s right to foreclose.
The 2010 acceleration concerned events of default (i.e., the Najdas’ failure to make monthly
payments due under the Note) that long predate any of the events relevant to this action or the
Federal Court Action. While CitiMortgage took preliminary steps to effect foreclosure based on
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the 2010 default, its dismissal of the 2010 Land Court Action, and the absence of any conduct
related thereto, evidences its abandonment of that effort altogether. The Najdas’ 2010 default,
however, was not an isolated incident. Rather, several subsequent, distinct events of default have
occurred in the intervening 13 years. Insofar as the Najdas have not made any payments under the
Note since at least August 201 1, there exist separate events of default for each month from then
until the present.
In 2014, the Federal Court Plaintiff commenced the Federal Court Action based on the
Najdas’ August-1, 2011 ‘default. See Federal Court Action, ECF No..98, 22. Hence,
acceleration letter issued by a prior mortgagee triggered by an earlier, and since abandoned, event
of default is completely unrelated. The Federal Court Action resulted in a judgment in the
mortgagee’s favor which stated, in part, that (i) the Najdas were in default under the Note and (ii)
unless the Najdas paid the former mortgagee $4,833,073.61 plus interest, the court would authorize
former mortgagee to sell the Property in accordance with the Mortgage’s power of sale. A copy
of that judgement is attached as Exhibit A.
After that judgment entered, Wilmington Trust became the mortgagee through a series of
duly recorded assignments. As the Najdas continued to miss monthly payments from the entry of
the judgment, new events of default continued to accrue, further compounding the cost to
Wilmington Trust. Thus, in a September 4, 2019 notice, Wilmington Trust, through the loan’s
servicer, Planet Home, sent the Najdas-a notice specifying:
the default; (b) the action required to cure the default; (c) a date, not less than
30 days from the date the notice is given to the Borrower, by which the default
must be cured; and (d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of the sums secured by [the
Mortgage] and sale of the Property.
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in accordance with Paragraph 22 of the Mortgage. See Motion, Ex. B. To date, the Najdas have
failed to demonstrate a single objectionable detail about this notice. Instead, they argue, strangely,
that a former creditor’s abandoned effort to collect on the Note in 2010 prevents the current
mortgagee from carrying out a separate foreclosure predicated on. entirely separate events of
default in 2023. One simply has nothing to do with the other. The foreclosure that the Najdas
now seek to avoid is not entangled with or prejudiced by events that took place over a decade ago.
Rather, it isthe current mortgagee’s present, compliant effort to preserve the value of a secured
debt and, importantly, if is an effort to seek recourse concerning real property under the Mortgage
rather than an effort to seek moneys owed under the Note. See Nims, 97 Mass. App. Ct. at 128-
129.
Additionally, the Najdas’ reliance on Emigrant Mortg. Co. v. Bourke is misplaced. No.
21-11133-NMG, 2022 WL 3566832, *4 (D. Mass. Aug. 18, 2022). There, in deciding the
borrowers’ motion to dismiss foreclosure proceedings, the district court discussed the general
requirement for morigagees to strictly comply with the terms of the mortgage in reference to a
previous attempt by the mortgagee to foreclose in accordance with the statutory power of sale. Id.
While the court noted generally that paragraph 22 of the Massachusetts standard mortgage
“tequires the borrowers be sent a notice of default prior to acceleration of the loan,” acceleration
was not actually at issue. Jd. Rather, the court’s principal concern in Emigrant was distinguishing
foreclosure under the statutory power of sale from foreclosure by entry. Jd. Additionally, the
“paragraph 22 notice” to which the court was referring was not defective because it preceded
acceleration. Rather, the “notice of default was defective because it impliéd that the borrowers
could, rather than commence an action, wait until a judicial proceeding against them had begun to
assert any defenses to foreclosure[.]” Jd. at *2. Thus, the Emigrant court’s discussion of
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acceleration telative to foreclosure notices was dicta and, as such, is of little, if any, value to the
Najdas.
For these reasons, the September 4, 2019 notice of default strictly complied with the terms
of the Mortgage in all material respects and the Najdas” arguments are unavailing.
¢. The Najdas’ Argument Concerning the Ownership of the Note is Irrelevant
The Najdas argue that the Mortgagee cannot proceed with a foreclosure sale because
Wilmington Trust does not own the Note. Under Massachusetts law, courts “construe the term
‘mortgagee’ in G.L. c. 244, § 14, to mean a mortgagee who also holds the underlying mortgage
note.” Eaton v. Fed. Nat'l Mortg. Ass’n, 462 Mass. 569, 584 (2012). However, a foreclosing
mortgagee need not have physical possession of the mortgage note in order to effect a valid
foreclosure. Jd. at 586. Rather, a mortgagee “who, although not the note holder himself, acts as
the authorized agent of the note holder” may foreclose on the note holder’s behalf. Id. at 586.
Here, on June 21, 2018, Wilmington Trust became the Mortgagee by operation of a duly
recorded assignment. A copy of that assignment is attached hereto as Exhibit B. Additionally, an.
Affidavit Regarding Note Secured by Mortgage Being Foreclosed duly recorded in the Middlesex
South Registry of Deeds (Book 74064, Page 499) on January 30, 2020 demonstrates that
Wilmington Trust is the holder of the promissory note secured by the Mortgage. A true and
accurate copy of the Affidavit is attached as Exhibit C. This affidavit therefore demonstrates that
Wilmington Trust holds both the mortgage and note. Thus, in accordance with Eaton, Wilmington
Trust satisfies the requirements of G.L. c. 244, § 14 and has the requisite authority to foreclose.
For the foregoing reasons, the Najdas present no likelihood whatsoever that they will
succeed on the merits.
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IV. Denial of the Injunction Will Not Result in Irreparable Harm
As to the irreparable harm requirement, the court’s decision in Harry is instructive. There,
the plaintiffs faced a similar fate as the Najdas: residential home foreclosure. Notwithstanding the
eventual foreclosure, however, the court deemed the plaintiffs’ failure to demonstrate a likelihood
of success on the merits fatal to their request for-an injunction and therefore denied the same.
Harry, 215 F. Supp. 3d at 188. Put differently, “[elven in cases involving real estate, irreparable
harm is not assumed; it must be demonstrated[].” Baptiste, 490 F. Supp. 3d at 381. The
circumstances here warrant similar treatment. The Najdas do not face foreclosure because of
another party’s misdeeds. Rather, the Najdas face foreclosure because, despite nearly nine years’
worth of opportunities in the Federal Court Action, they have failed to demonstrate why
foreclosure should not go forward. For these reasons, the Najdas fail to demonstrate why a stay
or an injunction should issue.
Vv. Neither a Balancing of the Equities Nor The Public Interest Favor an Injunction
It must also be noted that neither the balance of the equities nor the public interest favors
an injunction. As to the equities, the imposition of an injunction will (i) further prolong litigation,
(ii) prohibit a non-party from taking action to which it is entitled under a valid mortgage, and (iii)
permit the Najdas to retain possession of a property for which they have not made required
payments in several years on a multi-million dollar home. They do not.even pay the taxes and
insurance on the home. The equities do not favor the Najdas simply because their grossly
prolonged period of possession in default is nearing its end. Finally, the public interest does not
favor an injunction. Rather, an injunction would harm the public interest by burdening the market
for real property and rewarding delinquent borrowers over any number of willing, creditworthy
borrowers that would otherwise be able to mortgage the real property from its beneficial owner.
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VI. The Najdas Must Post Security Should An Injunction Enter
Mass. R. Civ. P. 65(c) provides:
Unless the court, for good cause shown, shall otherwise order, no restraining order
or preliminary injunction shall issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for the payment of such costs and
damages as may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained.
Mass: R. Civ. P. 65(c). In River City Mortg., LLC v. Brousseau, for example, the Superior Court
required a party seeking temporary restraining order to post a bond for “payment of such damages
as the defendants may incur or suffer in the event they are found to have been wrongfully
restrained.” No. 2184CV01269BLS1, 2021 WL 3493414, at *1 (Mass. Super. Ct. June 11, 2021);
see Inv’rs Bank & Tr. Co. v. Gunes, No. 94-2567F, 1994 WL 879800, at *2 (Mass. Super. Ct. June
2, 1994) (requiring the moving party to post a $150,000 bond as a condition to the entry of a
preliminary injunction). “The linkage of injunction with security is common practice under Mass.
R. Civ. P. 65(¢)[.]” Manousos v. Sarkis, 382 Mass. 317, 323 (1981).
Courts considering the comparable federal rules, Fed. R. Civ. P. 65(C) and Fed. R App. P.
8(a)(2)(E), have also opined on the necessity of a bond in comparable circumstances. “The bond
requirement is intended to protect the interest of the creditor’s right under judgment during the
pendency of appeal.” Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1 Cir. 2002). It is not
“unusual to require a party to post . . . post-judgment[] security as a condition for continuing
litigation[].” Zebrowski v. Hanna, 973 F.2d 1001, 1006 (1% Cit. 1992). In addition to procedural
tules, the bond requirement stems from the courts’ well established “authority to preserve a fund
or property which may be the subject of a final decree[.]” HMG Prop. Invs., Inc. v. Parque Indus.
Rio Canas, Inc., 847 F.2d 908, 916 (1 Cir. 1988) (affirming the district court’s decision to Tequire
an appeal bond where the res at issue was real property).
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As of July 19, 2022, Planet Home Lending, LLC, the Najdas’ mortgage loan servicer,
determined that it was paying $6,039.87 per month in carrying costs, which represented property
taxes, insurance, and a property inspection fee. As of the date of this filing, the Town of Concord’s
records indicate that the Property is valued and appraised at $4,327,300. Available at:
https://gis.vgsi.com/ConcordMA/Parcel.aspx?Pid=7343 (ast visited February 10, 2023). To date,
the Najdas continue to occupy a multi-million dollar home as another entity bears the financial
burdens associated with the Mortgage.
Additionally, Planet Home’s September 4, 2019 letter, to which the Najdas made many
self-serving redactions before attaching to their Motion as Exhibit B, demonstrates the extent of
the Najdas’ default and underscores the necessity of a security bond. The letter, an unredacted
version of which is attached as Exhibit D, shows that the Najdas had failed to make 98 mortgage
payments totaling $3,913.155.30. Additionally, the Najdas had incurred $1,099.52 in late charges.
After accounting for a small offset drawn from a suspense account, the Najdas’ total amount past
due at that time was $3,911,453.65. In the nearly three and a half years that have passed since this
letter, the Najdas have neither made monthly mortgage payments nor have they made any other
payments in an effort to pay down their default. Rather, they continue to pay nothing as they
inhabit the Property and the mortgagee covers the aforementioned carrying costs. In the absence
of a bond, Defendants will continue to suffer steep financial consequences as the Najdas proceed
to live in an expensive, encumbered property all the while harassing Defendants with frivolous
litigation. For this reason, a bond represents the bare minimum of relief to which the Defendants
are entitled should this Court issue an injunction.
Here, this Commonwealth’s rules and case law affirm this Court’s authority to require the
Najdas to post a bond for the duration of an injunction, if any. While Defendants expressly deny
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the Najdas’ tight to an injunction of Wilmington Trust’s lawful non-judicial foreclosure sale,
Defendants nevertheless
urge this Court to require a bond pursuant to Mass. R. Civ. P. 65(c) as a
means of securing the Property and protecting Wilmington Trust’s interest therein. Requiring a
bond would offset, however slightly, the burden that a stay or injunction would otherwise impose
on Wilmington Trust. For these reasons, this Court should deem a bond necessary and just under
the circumstances.
VII. Conclusion
The Najdas fail to satisfy any of the legal standards applicable to their request for an
injunction of Wilmington Trust’s non-judicial foreclosure sale of the Property. Rather, the Najdas
seek an extraordinary form of relief from this Court by asserting, beyond comprehension, that they
are likely to succeed on the merits despite their failure to prevail in any meaningful way over the
course of this matter’s years long journey through trial and appellate courts. For the foregoing
reasons, the Najdas’ Motion is meritless and this Court should not afford any relief whatsoever.
In the event, however, that this Court deems an injunction warranted, Defendants respectfully
request that this Court require a security bond for the preservation of the Property and of
Wilmington Trust’s investment therein.
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Respectfully Submitted,
Wilmington Trust National Association,
MERA Trust 2015-1, Planet Home Lending,
LLC, Citibank, N.A. not in its individual
capacity but solely as separate trustee for
PMT NPL Financing 2015-1, PNMAC
Capital Management, LLC,
By their attorneys,
/s/ Kevin P. Polansky
Kevin P. Polansky (BBO# 667229)
kevin.polansky@nelsonmullins.com
Daniel M. Curran (BBO# 709082)
Daniel.curran@nelsonmullins.com
Nelson Mullins Riley & Scarborough LLP
One Financial Center, Suite 3500
Boston, Massachusetts 02111
p. (617) 217-4700
£. (617) 217-4710
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on February 15, 2023, a true and accurate copy of the
foregoing document was served upon the following parties or counsel of record by email:
Andre Nadja
xxxxx Nadja
xxxxx.xxxxxx ail.com
71 Flint Rd.
Concord, MA 01742
/s/ Kevin P. Polansky
Kevin P. Polansky
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EXHIBIT A
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Docket Number 2381CV00353
Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-13593-GAO
CITIBANK, N.A., not in Its Individual Capacity but Solely as
Separate Trustee for PMT NPL FINANCING 2015-1,
Plaintiff,
Vv.
xxxxx ANNA xxxxx a/k/a xxxxx xxxxx, and xxxxxx xxxxx,
Defendants and Counterclaimants,
v.
CITIBANK, N.A., not in Its Individual Capacity but Solely as
Separate Trustee for PMT NPL. FINANCING 2015-1, and CITIMORTGAGE, INC.,
Counterclaim Defendants.
JUDGMENT
March 30, 2018
O’TOOLE, D.J.
Judgment is entered in favor of CitiMortgage, Inc., PennyMac, Corp., PennyMac Loan
Services, LLC, and Specialized Loan Servicing, LLC on all claims against them in accordance
with previous orders of the Court and the jury’s verdict.
With respect to Citibank, N.A. not in its individual capacity, but solely as separate Trustes
for PMT NPL Financing 2015-1 (“Citibank”):
1. Pursuant to 28 U:S.C. §§ 2201-2202, Citibank is hereby declared the valid and lawful
holder under Massachusetts law of the Original “Interest-Only Period Adjustable Rate
“Note” executed by xxxxx xxxxx and xxxxxx xxxxx (“Defendants”) on August 3, 2007,
with original lender CitiMortgage, Inc. (the “Note”).
Date Filed 2/15/2023 10:30 AM
Superior Court - Middlesex.
Docket Number 2381CV00353
Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 2 of 4
2. Pursuant to 28 U.S.C. §§ 2201-2202, Citibank is also declared the valid and lawful holder
under Massachusetts law of the mortgage granted by xxxxx xxxxx on 71 Flint Road,
Concord, Massachusetts (the “Property”) to Mortgage Electronic Registration Systems,
Inc. as nominee for CitiMortgage and its successors and assigns, to secure the Note (the
“Mortgage”).
By virtue of its ownership of the Note and Mortgage, Citibank has standing to foreclose on
the Property pursuant to Massachusetts law and the terms of the Mortgage and Note.
Defendants are in breach and default under the Note, and Defendant xxxxx xxxxx is in
breach and default under the Mortgage for failing to make all payments due thereunder. As
a result of said breaches, Defendants having otherwise been provided with such notices of
default and right to cure as Tequired under the terms of the Note and Mortgage and/or under
applicable law and having failed to cure said breaches, as of December 14, 2017,
Defendants owe Citibank the total sum of $4,833,073.61 pursuant to the terms of the Note
and Mortgage.
Pursuant to Massachusetts General Laws Chapter 244, Section 5, Defendants shall have
two months from the entry of this Judgment to pay Citibank $4,833,073.61 plus interest at
the contract/Note rate of 4.0%. If the foregoing sum is paid in accordance with the terms
of the preceding sentence, the Mortgage shall become void and Defendants shall be
discharged of any liability thereunder. Otherwise, the Court shall enter an order pursuant
to Mass. Gen. Laws ch. 244, § 11, authorizing Citibank to conduct a public sale of the
Property pursuant to the power of sale contained in the Mortgage with such sale to be
published and noticed in the same or similar manner as provided for in Mass. Gen. Laws
ch. 244, § 14, and upon such other terms and conditions as the Court may require.
Date Filed 2/15/2023 10:30 AM
Superior Court - Middlesex Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 30f4
Docket Number 2381CV00353
6. In furtherance of this Judgment and in the event that Citibank sells the Property in the
manner set forth in paragraph 5, Citibank shall file with the Court a motion for approval of
the foreclosure sale demonstrating compliance with the terms and conditions of Mass. Gen.
Laws ch. 244, § 14, and with such other terms and conditions as the Court may require in
the Judgment, and submitting for the Court’s review and approval the form of Foreclosure
Deed to be recorded with the Registry of Deeds.
In furtherance of this Judgment and in the event that Citibank sells the Property in the
manner set forth in paragraphs 5 and 6 and that said sale is approved by the Court as set
forth in paragraph 6, then this Judgment shall be recorded with and as part of the
Foreclosure Deed and upon the recording hereof, all right, title, and interest of the
Defendants to the Property shall be forever released and discharged, and title to said
Property shall be vested in the Grantee named in the Foreclosure Deed free and clear of
any right, title, and interest of said Defendants.
Upon the recording of the Foreclosure Deed, possession shall vest in the Grantee named in
the Foreclosure Deed.
Citibank shall have the right at any such public sale to credit bid up to the amount of its
total indebtedness as its exists as of the date of such sale.
Judgment is hereby entered for Citibank on Counts J, II, IV, and V of Citibank’s Amended
Complaint. Count VII of Citibank’s Amended Complaint is dismissed and Counts III and VI are
dismissed without prejudice.
Judgment is further entered for Citibank on all counterclaims by the Defendants in
accordance with previous orders of the Court and the jury’s verdict.
Date Filed 2/15/2023 10:30 AM
Superior Court - Middlesex Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 4 of 4
Docket Number 2381CV00353
As the prevailing party, Citibank is entitled to costs incurred in connection with this action,
pursuant to Rule 54(d) of the Federal Rules of Civil Procedure.
It is SO-ORDERED.
/s/ George A. O’ Toole, Jr.
United States District Judge
Date Filed 2/15/2023 10:30 AM
Superior Court - Middlesex
Docket Number 2381CV00353
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ASSIGNMENT OF MORTGAGE
FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is hereby
acknowledged the undersigned, PennyMac Corp. whose address is 3043 Townsgate Road, Suite
300, Westlake Village, CA 91361, (ASSIGNOR), by these presents does assign and transfer all of
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Preview
Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 238JCV00353 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT C.A. No. 2381CV00353 2/15/2023 xxxxx xxxxx and xxxxxx xxxxx, Plaintiffs, Vv. WILMINGTON TRUST NATIONAL ASSOCIATION, MFRA TRUST 2015- 1, PLANET HOME LENDING, LLC, et al., Defendant. DEFENDANT’S MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER AND OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION Defendants Wilmington Trust National Association, MFRA Trust 2015-1! (together with Wilmington Trust, “Wilmington Trust” or the “Mortgagee”), Planet Home Lending, LLC, Citibank, N.A., not in its individual capacity, but solely as separate trustee for PMT NPL Financing 2015-1, and PNMAC Capital Management, LLC (collectively, “Defendants”) hereby move to dissolve this Court’s February 3, 2023 temporary restraining order and oppose the institution of any further injunctive relief. 1 The Najdas erroneously name “Wilmington Trust National Association” and “MFRA Trust 2015-1” as separate entities: In fact, the mortgagor is “Wilmington Trust, National Association, not in its individual Capacity but solely in its capacity as Trustee of MFRA Trust 2015-1.” This entity became the mortgagee on June 21, 2018 by operation of a duly recorded assignment. TH Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353, I Factual & Procedural Background The complete factual and procedural background Televant to this matter spans the better part of the last decade and is memorialized in no less than three court dockets. Therefore, in the interests of brevity and promptly responding to Plaintiffs xxxxx Nadja and xxxxxx Nadja’s (the “Najdas”) Emergency Ex Parte Motion for a Temporary Restraining Order (the “Motion”, Defendants summarize only the facts relevant to the Court’s consideration of their opposition to the Motion. On August 3, 2007, the Najdas refinanced a prior mortgage on 71 Flint’Road, Concord, Massachusetts (the “Property”) with CitiMortgage, Inc. (“CitiMortgage”). They executed an adjustable rate promissory note (“Note”) to CitiMortgage in the amount of $3,464,000.00. To secure the Note, Defendant xxxxx xxxxx granted a mortgage (“Mortgage”) (together with the Note, the “Mortgage Loan”) on the, Property to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for CitiMortgage and its successors and assigns. Citibank, N.A., not in its individual capacity, but solely as separate trustee for PMT NPL Financing 2015-1 (the “Federal Court Plaintiff’) became the mortgagee through a series of valid, duly recorded assignments. The Federal Court Plaintiff's predecessor in interest, Citibank, N.A., as Trustee for the benefit of SWDNSI Trust Series 2010-3 (“Citibank Trustee”), filed a judicial foreclosure action on September 9, 2014, alleging that the Najdas were in default on the Mortgage Loan, and seeking an order authorizing it to foreclose by the power of sale on the Property. This case is docketed in the United States District Court for the District of Massachusetts at Docket No. 14-13593-GAO (the “Federal Court Action” or the “Judicial Foreclosure Action”). In response, the Najdas filed original and amended counterclaims against Specialized Loan Servicing LLC (“SLS”) (a former servicer); CitiMortgage; then-servicer PennyMac Loan Services, LLC (“PLS”); the former holder Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381.CV00353 - of their Mortgage, PennyMac; and MERS. The Najdas expressly conceded the District Court's jurisdiction over the matter in their counterclaims. The Federal Court Case proceeded to a mixed bench/jury trial in November 2017. The jury returned a verdict for Plaintiff on the claims for breach of contract and G.L c: 93A and the District Court found in favor of Plaintiff on the. remaining claims tried to the bench. As relevant here, the District Court found that the Federal Court Plaintiff held the Najdas’ Note and Mortgage; the Najdas were in breach thereunder for failing to make all required payments; and the Federal Court Plaintiff had satisfied all pre-foreclosure requirements, including the notice requirement under Paragraph 22 of the Mortgage. The’ District Court concluded that Plaintiff had standing to foreclose on the Property by power of sale. The District Court directed entry of judgment on these claims in the Federal Court Plaintiff's favor. Judgment in the Federal Court Action entered on March 30, 2018. The Federal Court Plaintiff was declared the lawful holder of the Note and Mortgage with standing to foreclose on the Property. The judgment stated that the Najdas had two months from the entry of the Judgment, or until May 30, 2018, to pay the total amount owing ($4,833,073.61) plus interest. “Otherwise, the Court shall enter an order pursuant to Mass. Gen. Laws ch. 244, § 11, authorizing [the Federal Court Plaintiff] to conduct a public sale of the Property pursuant to the power of sale contained in the Mortgage with such sale to be published and noticed in the same or similar manner as provided for in Mass. Gen. Laws ch. 244, § 14, and upon such other terms and conditions as the Court may require.” After the sale, the Judgment directed the Federal Court Plaintiff to file a motion for approval of the sale. The district court denied all of the Najdas’ post-Judgment motions and the Najdas appealed (once after Judgment and once after resolution of all post-Judgment motions). Those consolidated Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381 CV00353 appeals are docketed in the United States Court of Appeals for the First Circuit (the “First Circuit”) at Docket Numbers 19-1434 and 20-1057. In a December 30, 2022 Order, the First Circuit remanded the matter to the District Court “for further fact finding and a determination whether there was minimal or complete diversity between the parties at the time the action was commenced[]” and retained jurisdiction over the appeal. Despite the remand, on January 23, 2023, the Najdas filed in the First Circuit an emergency motion to stay or enjoin Wilmington Trust from carrying out a non-judicial foreclosure sale of the Property originally scheduled for February 6, 2023 at 10:00 a.m. In a January 25, 2023 Order, the First Circuit denied the Najdas’ motion and found them in violation of Federal Rule of Appellate Procedure 8. On January 26, 2023, the Najdas filed essentially the same motion in the District Court. On January 30,,2023, the Federal Court Plaintiff filed its opposition to the Najdas’ motion. On February 2, 2023, without first receiving a response from the District Court, the Najdas’ once again filed a substantively similar motion in the First Circuit. The next day, the First Circuit denied the Najdas’ motion once more and statéd, “We expect that a ruling by the district court on this motion is forthcoming.” To date, the District Court has not ruled on the Najdas’ pending motion. Thus, fearing that Wilmington Trust would finally carry out a nonjudicial foreclosure sale in accordance with the terms of the Mortgage, the Najdas filed their Motion in this Court in an effort to sidestep ongoing litigation, subvert the District Court,.and further prolong and complicate a litigation history that, through their actions, has been nothing short of vexatious and harassing. For the foregoing reasons, the Najdas’ Motion is meritless and they are not entitled to any relief. I. Legal Standard To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendants in granting the injunction. Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001) (citing Packaging Indus. Grp., Inc. v. Cheney, 380 Mass. 609, 617 (1980)). In applying these standards, courts balance the relative risks of irreparable harm to both the moving and opposing parties. Packaging Indus., 380 Mass. 617 (“[w]hat matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only when the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.”) “In an appropriate case, the tisk of harm to the public interest also may be considered.” Town of Brookline v. Goldstein, 388 Mass. 443, 447 (1983). The issuance of preliminary injunctive relief is “an extraordinary and drastic remedy that is never awarded as of right.” Peoples Fed. Sav. Bank v. People's United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012). I. The Najdas Are Not Likely To Succeed on the Merits Of the facts considered in-a court’s evaluation of whether to grant astay or injunction, “the likelihood of success on the merits ‘normally weighs heaviest in the decisional scales. o>» Harry v. Countrywide Home Loans Inc., 215 F. Supp. 3d 183, 186 (D. Mass. 2016) (quoting Coguico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)). Even where defendants will face the foreclosure of a residential property in the absence of an injunction, that alone is not sufficient to warrant an injunction even when the foreclosure will work a greater hardship on the defendants than the injunction would work on the plaintiff. See Harry, 215 F. Supp. 3d at 188 (“Plaintiffs will no doubt be subject to significant harm if their residence is foreclosed upon and the hardship caused thereby would be greater than the hardship to which defendants would be subjected by an Date Filed 2/15/2023 10:30 AM ‘Superior Court - Middlesex Docket Number 2384CV00353 allowance of a preliminary injunction. Nevertheless, plaintiffs are not entitled to relief because likelihood of success on the merits is the critical factor in the analysis.”) (internal citation omitted). a. Wilmington Trust Complied With the Foreclosure Statute GL. c. 244, § 14 (the “Foreclosure Statute”) governs the manner in which a mortgagee is permitted to conduct a foreclosure sale. It states, in relevant part: The mortgagee . . . may, upon breach of condition and without action, perform all acts authorized or required by the power of sale; provided, however, that no sale under such power shall be effectual to foreclosure a mortgage, unless, previous to such sale . . . notice of the sale has been sent by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale « to said owner or owners{[.] (emphasis added). The portion of the Foreclosure Statute excerpted here contains two details that are time limited concerning the notice provided in advance of a foreclosure sale. First, it states that notice must be sent to whomever is the real property’s owner at the point in time 30 days prior to the date of sale. Second, it requires said notice to be sent to the real property’s owner at least 14 days prior to the date of sale. Simply put, the Foreclosure Statute does not require the foreclosing mortgagee to provide notice to the mortgagor at least 30 days in advance; interpreting the Foreclosure Statute in this way is plain error. Courts interpreting the Foreclosure Statute have reached this same conclusion. In Hull v. Attleboro Sav. Bank, for example, the Appeals Court stated, “The fourteen-day registered mail notice requirement is satisfied by mailing and nonreceipt is irrelevant.” 33 Mass.App.Ct. 18, 25 (1992) (emphasis added). Similarly, in Chaves v. U.S. Bank, N.A., the United States District Court for the District of Massachusetts stated, “notice of the sale must be ‘sent by registered mail’ to the mortgagor at least 14 days prior to the day of the sale.” 335 F. Supp. 3d 100, 106 (D. Mass. 2018) (emphasis added). Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex. Docket Number 2381CV00353 Here, the Najdas argue in their Motion that “Wilmington and MFRA 2015 failed to strictly comply with Mass. Gen. Laws ch. 244, § 14 because they sent the Notice of Saleto the Najdas on January 13, 2023, 2023, only 24 days before the February 6, 2023 foreclosure sale.” See Najdas’ Motion at 3 (emphasis added). Thus, the Court need not look any further. The Najdas, through their erroneous interpretation of the Foreclosure Statute, have confirmed not only that Defendants strictly complied but that Defendants provided an extra ten days’ notice of the foreclosure sale. The Najdas’ argument as to this point is therefore meritless. b. Wilmington Trust Complied with The Terms of the Mortgage The Najdas argue that Defendants failed to strictly comply with the terms of the Mortgage by sending a “Paragraph 22 Notice” after a prior mortgagee accelerated the loan. As an initial matter, Wilmington Trust acknowledges that counsel for CitiMortgage sent the Najdas an October 21, 2010 letter that purported to accelerate the Note. In fact; on October 22, 2010, CitiMortgage filed an action in the Land Court against the Najdas under the Servicemembers Civil Relief Act (Land Court Docket No. 10 MISC 441991) (the “2010 Land Court Action”). CitiMortgage ultimately dismissed that action on its own accord in February 2014. The 2010 acceleration is irrelevant for purposes of the Najdas’ current efforts to obtain relief. Consider first that “under Massachusetts law, a mortgage has separate enforceability from its underlying note . . . Thus, foreclosure on the mortgage is an alternate remedy to collection on the note.” Nims v. Bank of N.Y. Mellon, 97 Mass.App.Ct. 123, 128-129 (2020) (emphasis added). Therefore, acceleration, though perhaps related, is distinct from a mortgagee’s right to foreclose. The 2010 acceleration concerned events of default (i.e., the Najdas’ failure to make monthly payments due under the Note) that long predate any of the events relevant to this action or the Federal Court Action. While CitiMortgage took preliminary steps to effect foreclosure based on Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 the 2010 default, its dismissal of the 2010 Land Court Action, and the absence of any conduct related thereto, evidences its abandonment of that effort altogether. The Najdas’ 2010 default, however, was not an isolated incident. Rather, several subsequent, distinct events of default have occurred in the intervening 13 years. Insofar as the Najdas have not made any payments under the Note since at least August 201 1, there exist separate events of default for each month from then until the present. In 2014, the Federal Court Plaintiff commenced the Federal Court Action based on the Najdas’ August-1, 2011 ‘default. See Federal Court Action, ECF No..98, 22. Hence, acceleration letter issued by a prior mortgagee triggered by an earlier, and since abandoned, event of default is completely unrelated. The Federal Court Action resulted in a judgment in the mortgagee’s favor which stated, in part, that (i) the Najdas were in default under the Note and (ii) unless the Najdas paid the former mortgagee $4,833,073.61 plus interest, the court would authorize former mortgagee to sell the Property in accordance with the Mortgage’s power of sale. A copy of that judgement is attached as Exhibit A. After that judgment entered, Wilmington Trust became the mortgagee through a series of duly recorded assignments. As the Najdas continued to miss monthly payments from the entry of the judgment, new events of default continued to accrue, further compounding the cost to Wilmington Trust. Thus, in a September 4, 2019 notice, Wilmington Trust, through the loan’s servicer, Planet Home, sent the Najdas-a notice specifying: the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to the Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the Mortgage] and sale of the Property. Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 in accordance with Paragraph 22 of the Mortgage. See Motion, Ex. B. To date, the Najdas have failed to demonstrate a single objectionable detail about this notice. Instead, they argue, strangely, that a former creditor’s abandoned effort to collect on the Note in 2010 prevents the current mortgagee from carrying out a separate foreclosure predicated on. entirely separate events of default in 2023. One simply has nothing to do with the other. The foreclosure that the Najdas now seek to avoid is not entangled with or prejudiced by events that took place over a decade ago. Rather, it isthe current mortgagee’s present, compliant effort to preserve the value of a secured debt and, importantly, if is an effort to seek recourse concerning real property under the Mortgage rather than an effort to seek moneys owed under the Note. See Nims, 97 Mass. App. Ct. at 128- 129. Additionally, the Najdas’ reliance on Emigrant Mortg. Co. v. Bourke is misplaced. No. 21-11133-NMG, 2022 WL 3566832, *4 (D. Mass. Aug. 18, 2022). There, in deciding the borrowers’ motion to dismiss foreclosure proceedings, the district court discussed the general requirement for morigagees to strictly comply with the terms of the mortgage in reference to a previous attempt by the mortgagee to foreclose in accordance with the statutory power of sale. Id. While the court noted generally that paragraph 22 of the Massachusetts standard mortgage “tequires the borrowers be sent a notice of default prior to acceleration of the loan,” acceleration was not actually at issue. Jd. Rather, the court’s principal concern in Emigrant was distinguishing foreclosure under the statutory power of sale from foreclosure by entry. Jd. Additionally, the “paragraph 22 notice” to which the court was referring was not defective because it preceded acceleration. Rather, the “notice of default was defective because it impliéd that the borrowers could, rather than commence an action, wait until a judicial proceeding against them had begun to assert any defenses to foreclosure[.]” Jd. at *2. Thus, the Emigrant court’s discussion of Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 acceleration telative to foreclosure notices was dicta and, as such, is of little, if any, value to the Najdas. For these reasons, the September 4, 2019 notice of default strictly complied with the terms of the Mortgage in all material respects and the Najdas” arguments are unavailing. ¢. The Najdas’ Argument Concerning the Ownership of the Note is Irrelevant The Najdas argue that the Mortgagee cannot proceed with a foreclosure sale because Wilmington Trust does not own the Note. Under Massachusetts law, courts “construe the term ‘mortgagee’ in G.L. c. 244, § 14, to mean a mortgagee who also holds the underlying mortgage note.” Eaton v. Fed. Nat'l Mortg. Ass’n, 462 Mass. 569, 584 (2012). However, a foreclosing mortgagee need not have physical possession of the mortgage note in order to effect a valid foreclosure. Jd. at 586. Rather, a mortgagee “who, although not the note holder himself, acts as the authorized agent of the note holder” may foreclose on the note holder’s behalf. Id. at 586. Here, on June 21, 2018, Wilmington Trust became the Mortgagee by operation of a duly recorded assignment. A copy of that assignment is attached hereto as Exhibit B. Additionally, an. Affidavit Regarding Note Secured by Mortgage Being Foreclosed duly recorded in the Middlesex South Registry of Deeds (Book 74064, Page 499) on January 30, 2020 demonstrates that Wilmington Trust is the holder of the promissory note secured by the Mortgage. A true and accurate copy of the Affidavit is attached as Exhibit C. This affidavit therefore demonstrates that Wilmington Trust holds both the mortgage and note. Thus, in accordance with Eaton, Wilmington Trust satisfies the requirements of G.L. c. 244, § 14 and has the requisite authority to foreclose. For the foregoing reasons, the Najdas present no likelihood whatsoever that they will succeed on the merits. 10 Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex. Docket Number. 2381CV00353 IV. Denial of the Injunction Will Not Result in Irreparable Harm As to the irreparable harm requirement, the court’s decision in Harry is instructive. There, the plaintiffs faced a similar fate as the Najdas: residential home foreclosure. Notwithstanding the eventual foreclosure, however, the court deemed the plaintiffs’ failure to demonstrate a likelihood of success on the merits fatal to their request for-an injunction and therefore denied the same. Harry, 215 F. Supp. 3d at 188. Put differently, “[elven in cases involving real estate, irreparable harm is not assumed; it must be demonstrated[].” Baptiste, 490 F. Supp. 3d at 381. The circumstances here warrant similar treatment. The Najdas do not face foreclosure because of another party’s misdeeds. Rather, the Najdas face foreclosure because, despite nearly nine years’ worth of opportunities in the Federal Court Action, they have failed to demonstrate why foreclosure should not go forward. For these reasons, the Najdas fail to demonstrate why a stay or an injunction should issue. Vv. Neither a Balancing of the Equities Nor The Public Interest Favor an Injunction It must also be noted that neither the balance of the equities nor the public interest favors an injunction. As to the equities, the imposition of an injunction will (i) further prolong litigation, (ii) prohibit a non-party from taking action to which it is entitled under a valid mortgage, and (iii) permit the Najdas to retain possession of a property for which they have not made required payments in several years on a multi-million dollar home. They do not.even pay the taxes and insurance on the home. The equities do not favor the Najdas simply because their grossly prolonged period of possession in default is nearing its end. Finally, the public interest does not favor an injunction. Rather, an injunction would harm the public interest by burdening the market for real property and rewarding delinquent borrowers over any number of willing, creditworthy borrowers that would otherwise be able to mortgage the real property from its beneficial owner. I Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 VI. The Najdas Must Post Security Should An Injunction Enter Mass. R. Civ. P. 65(c) provides: Unless the court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. Mass: R. Civ. P. 65(c). In River City Mortg., LLC v. Brousseau, for example, the Superior Court required a party seeking temporary restraining order to post a bond for “payment of such damages as the defendants may incur or suffer in the event they are found to have been wrongfully restrained.” No. 2184CV01269BLS1, 2021 WL 3493414, at *1 (Mass. Super. Ct. June 11, 2021); see Inv’rs Bank & Tr. Co. v. Gunes, No. 94-2567F, 1994 WL 879800, at *2 (Mass. Super. Ct. June 2, 1994) (requiring the moving party to post a $150,000 bond as a condition to the entry of a preliminary injunction). “The linkage of injunction with security is common practice under Mass. R. Civ. P. 65(¢)[.]” Manousos v. Sarkis, 382 Mass. 317, 323 (1981). Courts considering the comparable federal rules, Fed. R. Civ. P. 65(C) and Fed. R App. P. 8(a)(2)(E), have also opined on the necessity of a bond in comparable circumstances. “The bond requirement is intended to protect the interest of the creditor’s right under judgment during the pendency of appeal.” Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1 Cir. 2002). It is not “unusual to require a party to post . . . post-judgment[] security as a condition for continuing litigation[].” Zebrowski v. Hanna, 973 F.2d 1001, 1006 (1% Cit. 1992). In addition to procedural tules, the bond requirement stems from the courts’ well established “authority to preserve a fund or property which may be the subject of a final decree[.]” HMG Prop. Invs., Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916 (1 Cir. 1988) (affirming the district court’s decision to Tequire an appeal bond where the res at issue was real property). 12 Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 As of July 19, 2022, Planet Home Lending, LLC, the Najdas’ mortgage loan servicer, determined that it was paying $6,039.87 per month in carrying costs, which represented property taxes, insurance, and a property inspection fee. As of the date of this filing, the Town of Concord’s records indicate that the Property is valued and appraised at $4,327,300. Available at: https://gis.vgsi.com/ConcordMA/Parcel.aspx?Pid=7343 (ast visited February 10, 2023). To date, the Najdas continue to occupy a multi-million dollar home as another entity bears the financial burdens associated with the Mortgage. Additionally, Planet Home’s September 4, 2019 letter, to which the Najdas made many self-serving redactions before attaching to their Motion as Exhibit B, demonstrates the extent of the Najdas’ default and underscores the necessity of a security bond. The letter, an unredacted version of which is attached as Exhibit D, shows that the Najdas had failed to make 98 mortgage payments totaling $3,913.155.30. Additionally, the Najdas had incurred $1,099.52 in late charges. After accounting for a small offset drawn from a suspense account, the Najdas’ total amount past due at that time was $3,911,453.65. In the nearly three and a half years that have passed since this letter, the Najdas have neither made monthly mortgage payments nor have they made any other payments in an effort to pay down their default. Rather, they continue to pay nothing as they inhabit the Property and the mortgagee covers the aforementioned carrying costs. In the absence of a bond, Defendants will continue to suffer steep financial consequences as the Najdas proceed to live in an expensive, encumbered property all the while harassing Defendants with frivolous litigation. For this reason, a bond represents the bare minimum of relief to which the Defendants are entitled should this Court issue an injunction. Here, this Commonwealth’s rules and case law affirm this Court’s authority to require the Najdas to post a bond for the duration of an injunction, if any. While Defendants expressly deny 13 Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 the Najdas’ tight to an injunction of Wilmington Trust’s lawful non-judicial foreclosure sale, Defendants nevertheless urge this Court to require a bond pursuant to Mass. R. Civ. P. 65(c) as a means of securing the Property and protecting Wilmington Trust’s interest therein. Requiring a bond would offset, however slightly, the burden that a stay or injunction would otherwise impose on Wilmington Trust. For these reasons, this Court should deem a bond necessary and just under the circumstances. VII. Conclusion The Najdas fail to satisfy any of the legal standards applicable to their request for an injunction of Wilmington Trust’s non-judicial foreclosure sale of the Property. Rather, the Najdas seek an extraordinary form of relief from this Court by asserting, beyond comprehension, that they are likely to succeed on the merits despite their failure to prevail in any meaningful way over the course of this matter’s years long journey through trial and appellate courts. For the foregoing reasons, the Najdas’ Motion is meritless and this Court should not afford any relief whatsoever. In the event, however, that this Court deems an injunction warranted, Defendants respectfully request that this Court require a security bond for the preservation of the Property and of Wilmington Trust’s investment therein. 14 Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 Respectfully Submitted, Wilmington Trust National Association, MERA Trust 2015-1, Planet Home Lending, LLC, Citibank, N.A. not in its individual capacity but solely as separate trustee for PMT NPL Financing 2015-1, PNMAC Capital Management, LLC, By their attorneys, /s/ Kevin P. Polansky Kevin P. Polansky (BBO# 667229) kevin.polansky@nelsonmullins.com Daniel M. Curran (BBO# 709082) Daniel.curran@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP One Financial Center, Suite 3500 Boston, Massachusetts 02111 p. (617) 217-4700 £. (617) 217-4710 CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 15, 2023, a true and accurate copy of the foregoing document was served upon the following parties or counsel of record by email: Andre Nadja xxxxx Nadja xxxxx.xxxxxx ail.com 71 Flint Rd. Concord, MA 01742 /s/ Kevin P. Polansky Kevin P. Polansky 15 Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 EXHIBIT A Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex. Docket Number 2381CV00353 Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 14-13593-GAO CITIBANK, N.A., not in Its Individual Capacity but Solely as Separate Trustee for PMT NPL FINANCING 2015-1, Plaintiff, Vv. xxxxx ANNA xxxxx a/k/a xxxxx xxxxx, and xxxxxx xxxxx, Defendants and Counterclaimants, v. CITIBANK, N.A., not in Its Individual Capacity but Solely as Separate Trustee for PMT NPL. FINANCING 2015-1, and CITIMORTGAGE, INC., Counterclaim Defendants. JUDGMENT March 30, 2018 O’TOOLE, D.J. Judgment is entered in favor of CitiMortgage, Inc., PennyMac, Corp., PennyMac Loan Services, LLC, and Specialized Loan Servicing, LLC on all claims against them in accordance with previous orders of the Court and the jury’s verdict. With respect to Citibank, N.A. not in its individual capacity, but solely as separate Trustes for PMT NPL Financing 2015-1 (“Citibank”): 1. Pursuant to 28 U:S.C. §§ 2201-2202, Citibank is hereby declared the valid and lawful holder under Massachusetts law of the Original “Interest-Only Period Adjustable Rate “Note” executed by xxxxx xxxxx and xxxxxx xxxxx (“Defendants”) on August 3, 2007, with original lender CitiMortgage, Inc. (the “Note”). Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex. Docket Number 2381CV00353 Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 2 of 4 2. Pursuant to 28 U.S.C. §§ 2201-2202, Citibank is also declared the valid and lawful holder under Massachusetts law of the mortgage granted by xxxxx xxxxx on 71 Flint Road, Concord, Massachusetts (the “Property”) to Mortgage Electronic Registration Systems, Inc. as nominee for CitiMortgage and its successors and assigns, to secure the Note (the “Mortgage”). By virtue of its ownership of the Note and Mortgage, Citibank has standing to foreclose on the Property pursuant to Massachusetts law and the terms of the Mortgage and Note. Defendants are in breach and default under the Note, and Defendant xxxxx xxxxx is in breach and default under the Mortgage for failing to make all payments due thereunder. As a result of said breaches, Defendants having otherwise been provided with such notices of default and right to cure as Tequired under the terms of the Note and Mortgage and/or under applicable law and having failed to cure said breaches, as of December 14, 2017, Defendants owe Citibank the total sum of $4,833,073.61 pursuant to the terms of the Note and Mortgage. Pursuant to Massachusetts General Laws Chapter 244, Section 5, Defendants shall have two months from the entry of this Judgment to pay Citibank $4,833,073.61 plus interest at the contract/Note rate of 4.0%. If the foregoing sum is paid in accordance with the terms of the preceding sentence, the Mortgage shall become void and Defendants shall be discharged of any liability thereunder. Otherwise, the Court shall enter an order pursuant to Mass. Gen. Laws ch. 244, § 11, authorizing Citibank to conduct a public sale of the Property pursuant to the power of sale contained in the Mortgage with such sale to be published and noticed in the same or similar manner as provided for in Mass. Gen. Laws ch. 244, § 14, and upon such other terms and conditions as the Court may require. Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 30f4 Docket Number 2381CV00353 6. In furtherance of this Judgment and in the event that Citibank sells the Property in the manner set forth in paragraph 5, Citibank shall file with the Court a motion for approval of the foreclosure sale demonstrating compliance with the terms and conditions of Mass. Gen. Laws ch. 244, § 14, and with such other terms and conditions as the Court may require in the Judgment, and submitting for the Court’s review and approval the form of Foreclosure Deed to be recorded with the Registry of Deeds. In furtherance of this Judgment and in the event that Citibank sells the Property in the manner set forth in paragraphs 5 and 6 and that said sale is approved by the Court as set forth in paragraph 6, then this Judgment shall be recorded with and as part of the Foreclosure Deed and upon the recording hereof, all right, title, and interest of the Defendants to the Property shall be forever released and discharged, and title to said Property shall be vested in the Grantee named in the Foreclosure Deed free and clear of any right, title, and interest of said Defendants. Upon the recording of the Foreclosure Deed, possession shall vest in the Grantee named in the Foreclosure Deed. Citibank shall have the right at any such public sale to credit bid up to the amount of its total indebtedness as its exists as of the date of such sale. Judgment is hereby entered for Citibank on Counts J, II, IV, and V of Citibank’s Amended Complaint. Count VII of Citibank’s Amended Complaint is dismissed and Counts III and VI are dismissed without prejudice. Judgment is further entered for Citibank on all counterclaims by the Defendants in accordance with previous orders of the Court and the jury’s verdict. Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Case 1:14-cv-13593-GAO Document 369 Filed 03/30/18 Page 4 of 4 Docket Number 2381CV00353 As the prevailing party, Citibank is entitled to costs incurred in connection with this action, pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. It is SO-ORDERED. /s/ George A. O’ Toole, Jr. United States District Judge Date Filed 2/15/2023 10:30 AM Superior Court - Middlesex Docket Number 2381CV00353 EXHIBIT B . - nl uni Date Filed 2/15/2023 10:30 AM Bk: 71513 Pg: 200 2 ‘Superior Court - Middlesex Number 23810V00353" $ Bh: 71519 Pg: 200 Doc: ASM Page: 1 of 2. 08/29/2018 09:03 AM Rettirn to: Ly} OLD\REPUBLIC prsthine Les 4 Gow fen P.O. X 250 ORANGE, CA 92856 Ort fr © 02104 2127 Service Number: 02-18019082-02S ASSIGNMENT OF MORTGAGE FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is hereby acknowledged the undersigned, PennyMac Corp. whose address is 3043 Townsgate Road, Suite 300, Westlake Village, CA 91361, (ASSIGNOR), by these presents does assign and transfer all of its right, title and intere