United States Court of Appeals 

For the First Circuit 

No. 15-2421 

EDYTHE DYER, 

Plaintiff, Appellant, 

v. 

WELLS FARGO BANK, N.A., d/b/a America's Servicing Company; 

U.S. BANK, N.A., as Trustee for CSFB Mortgage-Backed 

Pass-Through Certificates, Series 2005-2, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. M. Page Kelley, U.S. Magistrate Judge] 

Before 

Howard, Chief Judge, 

Lipez and Thompson, Circuit Judges. 

 Glenn F. Russell, Jr., with whom Glenn F. Russell Jr., & 

Associates, P.C. was on brief, for appellant. 

 David E. Fialkow, with whom Jeffrey S. Patterson, Michael R. 

Stanley, and K&L Gates LLP were on brief, for appellees. 

April 17, 2020 

	
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Per Curiam.1 The plaintiff, Edythe Dyer, brought this 

suit against U.S. Bank, N.A. ("U.S. Bank") and Wells Fargo Bank, 

N.A. ("Wells Fargo"), arising out of a foreclosure sale on her 

property. The suit was dismissed, and we now affirm. 

I. 

In 2004, Dyer executed a promissory note to Dreamhouse 

Mortgage Corporation ("Dreamhouse") and granted a mortgage on her 

property at 41 Commonwealth Avenue, Unit #9, in Boston, 

Massachusetts (the "Property"). She granted the mortgage to 

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

"nominee" for Dreamhouse and its successors and assigns. In 2008, 

MERS executed a document entitled "Assignment of Mortgage," which 

transferred the mortgage to U.S. Bank, as trustee. The document 

was recorded with the Registry of Deeds for Suffolk County, 

Massachusetts. MERS also executed an assignment of the mortgage 

to U.S. Bank in 2011. In 2012, MERS published a "Confirmatory 

Assignment" confirming the 2008 assignment. That document 

explained that the 2011 assignment was a nullity because, in 2011, 

1 An opinion first issued in this appeal in November 2016. 

In June 2018, that opinion was withdrawn, the judgment was vacated, 

and the case was reassigned to the current, entirely different 

panel. See Dyer v. Wells Fargo Bank, N.A., 841 F.3d 550 (1st Cir. 

2016), withdrawn, 2018 WL 3018544 (1st Cir. June 14, 2018).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the withdrawn opinion properly resolved the issues on appeal.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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MERS did not have standing to assign the mortgage, given that it 

had already transferred the mortgage to U.S. Bank in 2008. In 

2013, Wells Fargo, U.S. Bank's servicer of the loan, recorded an 

affidavit in the registry of deeds attesting that, as of that time, 

U.S. Bank held the note secured by Dyer's mortgage. 

In April 2015, U.S. Bank notified Dyer that it intended 

to foreclose on the Property by utilizing the statutory power of 

sale granted in Massachusetts General Laws Chapter 183, § 21. That 

provision permits a proper party to execute a foreclosure sale 

without prior judicial authorization. See Eaton v. Fed. Nat'l 

Mortg. Ass'n, 969 N.E.2d 1118, 1127 (Mass. 2012). The requirements 

for exercising that statutory power of sale are laid out in 

Massachusetts General Laws Chapter 244, § 14. See Fed. Nat'l 

Mortg. Ass'n v. Rego, 50 N.E.3d 419, 422-23 (Mass. 2016). 

Dyer filed suit against U.S. Bank and Wells Fargo in 

Massachusetts state court in May 2015. She sought a declaratory 

judgment that U.S. Bank is not a proper party to utilize the 

statutory power of sale, and she also sought damages against U.S. 

Bank for slander of title based on that same allegation. In her 

claim against Wells Fargo, the servicer of the loan, Dyer sought 

damages under Massachusetts's catch-all consumer protection 

statute, Massachusetts General Laws Chapter 93A. 

The defendants removed the case to federal court based 

on diversity jurisdiction, and the parties consented to proceeding 
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before a magistrate judge. See 28 U.S.C. § 636(c). Dyer then 

filed a separate motion for a preliminary injunction to stop the 

foreclosure sale, which the magistrate judge denied. The 

defendants thereafter filed a motion for judgment on the pleadings. 

See Fed. R. Civ. P. 12(c). The magistrate judge granted that 

motion and dismissed all of Dyer's claims. Dyer now appeals. 

II. 

We start with the issues concerning U.S. Bank. The 

declaratory judgment and slander of title counts in Dyer's 

complaint both rest on the same contention: that U.S. Bank was not 

authorized to exercise the statutory power of sale. Hence, if 

U.S. Bank had such authority, both causes of action fail.2 

In contending that U.S. Bank was not authorized to 

exercise the statutory power of sale, Dyer chiefly argues that 

U.S. Bank was not the holder of the mortgage when it purported to 

exercise the statutory power and that, under Eaton, U.S. Bank was 

not entitled to exercise that power. See 969 N.E.2d at 1129, 1131 

(holding that, to foreclose under Section 14, an entity must both 

hold the mortgage and either hold the note or act as an agent of 

the noteholder). In so contending, Dyer acknowledges that there 

2 Because Dyer seeks damages for slander of title, the appeal 

is not moot even though the foreclosure sale went forward after 

the magistrate judge denied Dyer's motion for a preliminary 

injunction. See McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 

210 n.2 (1st Cir. 2012). 
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was a purported 2008 assignment of the mortgage from MERS to U.S. 

Bank. Dyer acknowledges as well that U.S. Bank referenced this 

assignment in the statutorily required notice. See Mass. Gen. 

Laws ch. 244, § 14. But, Dyer contends, that 2008 assignment was 

void for a number of reasons. We do not agree. 

Dyer first argues that the assignment was void because 

MERS, when it made the 2008 assignment, was neither the noteholder 

nor the agent of the noteholder. Instead, MERS held the mortgage 

only as a "nominee" for the lender, Dreamhouse, and its successors 

and assigns. But we held in Culhane v. Aurora Loan Services of 

Nebraska, 708 F.3d 282 (1st Cir. 2013), 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 thus authorizes MERS to assign the mortgage on behalf 

of the lender to the lender's successors and assigns. Id. at 293. 

And here, Dyer's 2004 mortgage contract contains the same language 

regarding MERS, and its status as nominee (in this case for 

Dreamhouse), as the one that we addressed in Culhane. 

Dyer responds that Culhane is not controlling. She 

contends that Culhane relied on a construction of Section 14 that 

pre-dated the SJC's decision in Eaton and that Eaton renders that 

construction impermissible. While Eaton did expressly reserve the 

question of whether a "nominee" is an "agent" of the noteholder, 

it did so only in connection with its discussion of whether MERS's 
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status as a "nominee" of the lender empowered it to execute the 

statutory power of sale. See Eaton, 969 N.E.2d at 1134 n.29. 

Eaton in no way suggested that MERS's status as a nominee was 

insufficient to permit it to hold or assign a mortgage to a 

successor or assign of the lender. And, in Culhane, in which we 

expressly applied Eaton, Culhane, 708 F.3d at 288 n.4, we concluded 

that MERS's status as a nominee was sufficient to permit it to 

hold a mortgage and to make such an assignment. Id. at 293. Thus, 

Dyer's first ground for contending that the 2008 assignment is 

void is without merit given the language of the 2004 contract 

naming MERS as Dreamhouse's nominee.3

Dyer also contends that the 2008 assignment from MERS to 

U.S. Bank is void for an independent reason. She argues that MERS 

assigned the mortgage to U.S. Bank in violation of a trust 

3 Eaton holds that, even if the mortgage and the note had 

previously been separated, a party may only exercise Section 14's 

power of sale if at the time of the sale it holds both the mortgage 

and the note. Eaton, 969 N.E.2d at 1129. In addition to contesting 

U.S. Bank's status as the mortgage holder, Dyer separately 

challenges the magistrate judge's finding that U.S. Bank also held 

the note. The magistrate judge based that finding on both a copy 

of the note endorsed in blank that U.S. Bank produced and a copy 

of the 2013 affidavit by Wells Fargo, U.S. Bank's agent and 

servicer of the loan, stating that U.S. Bank held the note. Dyer 

provides no basis for rejecting that finding beyond her conclusory 

contrary assertion and a reference to an allonge, which she does 

not develop into an argument that would warrant reversal of the 

magistrate judge's finding. We thus treat as waived any argument 

that U.S. Bank was not a proper party to execute the sale because 

it did not hold the note in addition to the mortgage. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
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agreement between U.S. Bank and the investors in the loan and that 

the breach of the trust agreement rendered the assignment void. 

But in Butler v. Deutsche Bank Trust Co. Americas, 748 F.3d 28, 37 

(1st Cir. 2014), we held that an assignment made in contravention 

of such a trust agreement is at most voidable at the option of the 

parties to the trust agreement, not void as a matter of law. 

Hence, the alleged violation of the trust agreement does not void 

the 2008 assignment and thereby strip U.S. Bank of its status as 

a holder of the mortgage. Accordingly, this argument, too, fails. 

Dyer next asserts that the 2008 assignment is void for 

yet another reason: the 2012 Confirmatory Assignment states that 

MERS lacked "standing" to assign the mortgage. That document, 

however, makes clear that MERS lacked "standing" to assign the 

mortgage in 2011, because MERS had validly assigned the mortgage 

to U.S. Bank in 2008. The Confirmatory Assignment thus hardly 

casts doubt on the validity of the 2008 assignment to U.S. Bank; 

in fact, it appears to confirm it. We therefore reject this 

argument as well. 

Finally, we reject Dyer's separate argument that U.S. 

Bank was not a proper party to exercise the statutory power of 

sale because the notice of sale that Section 14 required U.S. Bank 

to publish did not comply with the statutory requirements. See 

Mass. Gen. Laws ch. 244, § 14 (stating that "in the event a 

mortgagee holds a mortgage pursuant to an assignment, no notice 
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under this section shall be valid unless (i) at the time such 

notice is mailed, an assignment, or a chain of assignments, 

evidencing the assignment of the mortgage to the foreclosing 

mortgagee has been duly recorded in the registry of deeds for the 

county or district where the land lies and (ii) the recording 

information for all recorded assignments is referenced in the 

notice of sale required in this section"). Specifically, she 

contends that the notice failed to refer to what Dyer identifies 

as various "intermediate transfers." 

Dyer's complaint is less than clear as to what she 

contends was being assigned in these "intermediate transfers," and 

her briefing does not do much to help clarify matters. The premise 

of this argument appears to be that MERS, as the nominee of 

Dreamhouse, never properly held the mortgage. From this premise, 

she contends that the notice published by U.S. Bank had to set 

forth a chain of title that ran from Dreamhouse, the original 

lender, to the various parties the complaint identifies as being 

involved in "intermediate transfers" to U.S. Bank. 

The problem with this argument stems from its mistaken 

premise. As we have explained, per our decision in Culhane, MERS's 

status as nominee did not bar it from holding the mortgage. See 

Culhane, 708 F.3d at 291-92. Thus, MERS was the record holder of 

the mortgage as nominee for Dreamhouse in 2004, and Dyer does not 

allege that MERS subsequently assigned the mortgage back to 
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Dreamhouse or to any other entity prior to MERS's 2008 assignment 

of the mortgage to U.S. Bank. 

Thus, even accepting as we must the factual allegations 

in Dyer's complaint that there were what she calls "intermediate 

transfers," she provides no basis for concluding that MERS did not 

remain the sole record holder of the mortgage up until the time it 

assigned that mortgage to U.S. Bank in 2008. In fact, because 

MERS continued to hold the mortgage all along, in keeping with the 

way the MERS system operates, it appears that the intermediate 

transfers Dyer identifies in her complaint were merely transfers 

of the "beneficial ownership interest[]" in the mortgage among 

MERS members. Eaton, 969 N.E.2d at 1121 n.5.4

Against this background, the notice published by U.S. 

Bank complied with Section 14 for a simple reason. The notice 

referenced the assignment (in 2008) from the record holder of the 

mortgage, MERS, to U.S. Bank. The notice thus did just what it 

needed to do: it referenced "an assignment of the mortgage to the 

foreclosing mortgagee" that "has been duly recorded in the registry 

of deeds for the county or district where the land lies" and for 

4 The SJC explained that MERS is the "mortgagee of record for 

mortgage loans registered on the MERS electronic registration 

system, which tracks servicing rights and beneficial ownership 

interests in those loans; the system allows these servicing rights 

and beneficial ownership interests to be traded electronically 

between members without the need to record publicly each mortgage 

assignment." Eaton, 969 N.E.2d at 1121 n.5. 
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which "the recording information . . . [was] referenced in the 

notice of sale required in this section." Mass. Gen. Laws ch. 

244, § 14; cf. U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 53 

(Mass. 2011) ("A foreclosing entity may provide a complete chain 

of assignments linking it to the record holder of the mortgage, or 

a single assignment from the record holder of the mortgage."). 

In sum, none of Dyer's arguments as to why U.S. Bank was 

not authorized to exercise the statutory power of sale under 

Section 14 have merit. 

III. 

Dyer also brought a claim for damages against Wells Fargo 

under Chapter 93A, which prohibits "unfair or deceptive acts or 

practices in the conduct of any trade or commerce." Mass. Gen. 

Laws ch. 93A, § 2(a). The statute requires that, thirty days 

before filing a claim under Chapter 93A, a claimant must, as a 

general matter, send a "written demand for relief" to the 

defendant, outlining the unfair or deceptive act or practice and 

the injury suffered. Id. § 9(3). 

Dyer alleged in her complaint that the suit itself served 

as the demand letter required by Chapter 93A. The magistrate judge 

rightly held that the suit could not serve to fulfill the demand 

letter requirement, because the demand letter must be sent prior 

to filing suit. See id.; Rodi v. S. New Eng. Sch. of Law, 389 
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F.3d 5, 19 (1st Cir. 2004). Accordingly, the magistrate judge 

ruled that the claim must be dismissed. 

On appeal, Dyer contends for the first time that she was 

not required to send a demand letter at all. She relies on the 

exception to the demand letter requirement set forth in Section 

9(3) of Chapter 93A. The exception provides that "[t]he demand 

requirements of this paragraph shall not apply if . . . the 

prospective respondent does not maintain a place of business or 

does not keep assets within the [C]ommonwealth." Mass. Gen. Laws 

ch. 93A, § 9(3). 

Dyer contends that Moronta v. Nationstar Mortgage, LLC, 

41 N.E.3d 311, 315 n.11 (Mass. App. Ct. 2015), makes clear that 

this exception applies so long as the putative defendant does not 

maintain both a place of business and assets within the 

Commonwealth. She contends that Wells Fargo has no assets in the 

Commonwealth. The defendants counter that Moronta describes the 

exception's disjunctive nature only in dicta, and they contend 

that the dicta conflicts with our decision in McKenna v. Wells 

Fargo Bank, N.A., 693 F.3d 207, 218 (1st Cir. 2012). 

We decline to engage with this debate. Because Dyer did 

not argue in the district court that the demand letter requirement 

was inapplicable, she waived the argument. See Malave v. Carney 

Hosp., 170 F.3d 217, 222 (1st Cir. 1999) ("[E]xcept in the most 

extraordinary circumstances (not present here), matters not raised 
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in the trial court cannot be hawked for the first time on 

appeal."). And, given that Dyer does not dispute that her 

complaint failed to plead that she had sent a demand letter prior 

to filing suit, we affirm the order dismissing Dyer's Chapter 93A 

claim. 

IV. 

For the foregoing reasons, we affirm the dismissal of 

Dyer's claims. So ordered.