Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 16-1679 

MATS A. SAMUELSSON; MARIA A. SAMUELSSON, 

Plaintiffs, Appellants, 

v. 

HSBC BANK USA, N.A., as Trustee on behalf of Ace Securities 

Corp., Home Equity Loan Trust and for the Registered Holders of 

Ace Securities Corp., Home Equity Loan Trust, Series 2006-HE4; 

OCWEN LOAN SERVICING, LLC, 

Defendants, Appellees, 

ROXIE J. ROSE, 

Defendant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

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

Before 

Kayatta, Circuit Judge, 

Souter, Associate Justice,*

and Selya, Circuit Judge. 

Glenn F. Russell, Jr. and Glenn F. Russell, Jr., 

& Associates, P.C., on brief for appellants. 

Marissa I. Delinks, Maura K. McKelvey, Robert M. Buchholz, 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
and Hinshaw & Culbertson LLP on brief for appellees. 

March 29, 2018 

 
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SOUTER, Associate Justice. Mats and Maria Samuelsson 

appeal from the dismissal of their action in the nature of a 

petition for declaratory judgment, by which they sought, among 

other things, an injunction against a foreclosure sale of their 

house. We affirm. 

According to their allegations, appellants entered into 

a loan refinancing arrangement in May 2006. They signed a $560,000 

promissory note payable to Sunset Mortgage Company, L.P., and 

executed a mortgage agreement for securing repayment of the loan. 

Under its terms, appellants "mortgage[d], grant[ed], and 

convey[ed]" legal title to the property to Mortgage Electronic 

Registration Systems, Inc. (MERS),1 acting "solely as a nominee 

for [Sunset] and [Sunset's] successors and assigns." On May 14, 

2009, MERS ostensibly assigned the mortgage to appellee HSBC Bank 

USA, N.A., as Trustee on behalf of ACE Securities Corp., Home 

Equity Loan Trust and the registered holders of ACE Securities 

Corp., Home Equity Loan Trust, Series 2006-HE4 ("HSBC"). 

 1 MERS was formed by residential mortgage lenders and 

investors "to streamline the process of transferring ownership of 

mortgage loans in order to facilitate securitization." Culhane v. 

Aurora Loan Services of Nebraska, 708 F.3d 282, 287 (1st Cir. 

2013). When a MERS member sells a note to another MERS member, 

MERS remains the mortgagee of record. When a MERS member sells a 

note to a nonmember, MERS assigns the mortgage to the new 

noteholder. "This system reduces paperwork and avoids fees that 

otherwise would be required to record assignments of mortgages at 

local recording offices." Id. 
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Shortly thereafter, HSBC began foreclosure proceedings 

in Massachusetts Land Court, which ultimately entered judgment 

authorizing HSBC to foreclose. Appellants then brought this action 

in Massachusetts Superior Court seeking both a declaratory 

judgment that HSBC lacked authority to foreclose on the mortgage 

because the assignment to HSBC was invalid, and damages for slander 

of title committed by recording the assignment.2 Appellees removed 

the action to federal court on the basis of diversity and 

successfully moved to dismiss under Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim. 

We review the dismissal order de novo. Butler v. 

Deutsche Bank Trust Co. Americas, 748 F.3d 28, 32 (1st Cir. 2014). 

The Samuelssons' claims depend on the sufficiency of allegations 

in support of the proposition that HSBC has never validly held the 

mortgage under Massachusetts law. In support, they allege and 

argue, first, that MERS did not have the power to assign the 

mortgage and, second, that the assignment was made in violation of 

the Pooling and Servicing Agreement ("PSA") governing the Trust. 

Both positions are foreclosed by precedent. 

As for the first, it is true that under Massachusetts 

law, "the statutes governing foreclosure by sale . . . requir[e] 

 2 Appellants do not challenge the dismissal of two other 

claims. 
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a foreclosing mortgagee both to control the note (either as the 

noteholder or as its agent) and to hold the mortgage." Culhane v. 

Aurora Loan Services of Nebraska, 708 F.3d 282, 288 (1st Cir. 2013) 

(citing Eaton v. Fed. Nat'l Mortg. Ass'n, 969 N.E.2d 1118, 1129 & 

n.20, 1131 (Mass. 2012)).3 But prior to sale, "the note and the 

mortgage need not be held by the same entity" and, absent a 

contractual provision stating otherwise, "a mortgagee may assign 

its mortgage to another party." Id. at 292. 

Appellants suggest that because MERS held the mortgage 

merely as the "nominee" for Sunset, it was not the mortgagee and 

lacked the power to assign the mortgage. But we have rejected 

this very argument many times over. See id. at 293; see also Dyer 

v. Wells Fargo Bank, N.A., 841 F.3d 550, 553 (1st Cir. 2016) 

(declining to accept argument because "we held in Culhane . . . 

that a mortgage contract that names 'MERS . . . as nominee for 

[Lender] and [Lender's] successors and assigns' does suffice to 

make MERS the mortgage holder and then authorize MERS to assign 

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

and assigns"); Butler, 748 F.3d at 32 (rejecting argument because 

"[o]ur court has previously considered, and found wanting, this 

 3 In an affidavit filed in the Land Court, a representative 

of appellee Ocwen Loan Serving, LLC, averred that HSBC was the 

holder of the note (which had been endorsed in blank). Appellants 

do not challenge HSBC's current status as the noteholder. 
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precise challenge to MERS's ability to serve as assignor of a 

mortgage"); Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 355 

(1st Cir. 2013) ("Culhane made clear that MERS's status as an 

equitable trustee does not circumscribe the transferability of its 

legal interest."). Appellants offer no persuasive basis on which 

to distinguish these cases. 

As for appellants' second argument, they claim that 

MERS's assignment was made in violation of the Trust's PSA in two 

respects: first, that the assignment was made after the closing 

date provided for in the PSA; second, that the assignment was not 

made by the depositor for the Trust. Whatever merit these 

contentions might have, our precedents are clear that appellants 

do not have standing to press them. While "a mortgagor has 

standing to challenge a mortgage assignment as invalid, 

ineffective, or void (if, say, the assignor had nothing to assign 

or had no authority to make an assignment to a particular 

assignee)," Culhane, 708 F.3d at 291, "an assignment made in 

contravention of . . . a trust agreement is at most voidable at 

the option of the parties to the trust agreement, not void as a 

matter of law," Dyer, 841 F.3d at 554. Because such assignments 

are merely voidable, appellants' claims of noncompliance with the 

PSA are not tantamount to an allegation that the assignment is 

invalid, and are claims that appellants lack standing to raise. 

See Butler, 748 F.3d at 37 ("Under Massachusetts law, it is clear 
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that [third-party] claims alleging disregard of a trust's PSA 

[charge acts that are] voidable, not void."). Accordingly, a 

mortgagor's "claims that merely assert procedural infirmities in 

the assignment of [the] mortgage, such as a failure to abide by 

the terms of a governing trust agreement, are barred for lack of 

standing. In contrast, standing exists for challenges that contend 

that the assigning party never possessed legal title and, as a 

result, no valid transferable interest ever exchanged hands." 

Woods, 733 F.3d at 354 (citation omitted). Indeed, in Butler, we 

held that the mortgagor lacked standing to raise one of the very 

theories of noncompliance raised here: that the assignment was 

made after the trust's closing date. See 748 F.3d at 34, 37. 

Appellants' argument boils down to a refusal to accept these cases 

as rightly decided, a position we have no warrant to consider.

In sum, the appellants have alleged no basis to dispute 

the validity of the assignment in question and the action was 

properly dismissed. 

Affirmed.