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15-P-1259 Appeals Court

U.S. BANK NATIONAL ASSOCIATION, trustee,

1 vs. WENDY BOLLING.

No. 15-P-1259.

Hampden. June 9, 2016. - September 1, 2016.

Present: Grainger, Meade, & Wolohojian, JJ.

Contract, Choice of law clause. Mortgage, Assignment, 

Foreclosure. Real Property, Mortgage. Practice, Civil, 

Standing. Conflict of Laws.

Summary process. Complaint filed in the Western Division 

of the Housing Court Department on April 17, 2012. 

The case was heard by Robert G. Fields, J., on motions for 

summary judgment; a motion to vacate judgment, filed on April 1, 

2014, was heard by him; a motion for reconsideration, filed on 

May 22, 2014, was heard by him; and the entry of judgment was 

ordered by him.

Robert Bruce Allensworth (Robert W. Sparkes, III, with him) 

for the plaintiff.

Glenn F. Russell, Jr., for the defendant.

Daniel Bahls & Uri Strauss, for Luz Diaz, amicus curiae, 

submitted a brief.

 

1 For RASC 2006KS9 c/o GMAC Mortgage, LLC.
2

WOLOHOJIAN, J. At issue is whether the defendant, Wendy 

Bolling, has standing to challenge the assignment of a mortgage 

that was not made in accordance with the terms of a pooling and 

servicing agreement (PSA) to which she was not a party. Because

the defect rendered the assignment merely voidable rather than 

void, we conclude that she does not.

Bolling moved for summary judgment in the summary process 

eviction action below, arguing (among other things)2 that the 

foreclosure sale through which the plaintiff, U.S. Bank National 

Association, trustee for RASC 2006KS9 c/o GMAC Mortgage, LLC 

(trust), took title to a property at 114 Lamont Street, 

Springfield, was void because the assignment of the mortgage to 

the trust did not comply with the terms of a PSA between 

Residential Asset Securities Corporation, Residential Funding 

Company, LLC, and U.S. Bank National Association.3 Specifically, 

Bolling alleged that the assignment did not take place within 

the time period required under the PSA. She further argued that 

this deficiency rendered the assignment void under New York law, 

 

2 Bolling also argued that the assignment was void because 

it did not comply with G. L. c. 244, § 35A. The judge 

originally allowed summary judgment on this basis. However, the 

judge later vacated his decision based on the Supreme Judicial 

Court's subsequent decision in U.S. Bank Natl. Assn. v. 

Schumacher, 467 Mass. 421 (2014). Bolling has not appealed from 

that determination, nor has she made any argument on appeal 

concerning it.

3 Bolling was not a party to the PSA, nor does she claim to 

be an intended third-party beneficiary.
3

which she contended governed because of the PSA's choice-of-law 

provision.4 The judge agreed, ruled that Bolling had standing to 

challenge the assignment because it was void under New York law 

(and not merely voidable), and allowed her motion for summary 

judgment. Judgment entered accordingly. The trust appeals.

We begin with the proposition, of long standing, that 

Massachusetts applies its own law to claims and defenses 

involving real property located within its borders. See Ross v. 

Ross, 129 Mass. 243, 246 (1880); Glannon & Teninbaum, Conflict 

of Laws in Massachusetts Part I: Current Choice-of-Law Theory, 

92 Mass. L. Rev. 12, 23 (2009) ("Massachusetts has long held 

that the law of the place where real property is located 

governs"). Bolling's challenge to the assignment, regardless of 

how she has phrased it, is just such a claim. As we have 

previously explained, "the legally cognizable interest [Bolling] 

seek[s] to protect [is her] ownership interest in the property, 

based on [her] claim that [the trust's] purported foreclosure 

was void by reason of its lack of legal authority to conduct 

it." Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 

206 (2014). Understanding Bolling's challenge to the 

 

4 The PSA provides that "[t]his agreement . . . shall be 

governed by and construed in accordance with the laws of the 

State of New York, without regard to the conflict of law 

principles thereof . . . and the obligations, rights and 

remedies of the parties hereunder shall be determined in 

accordance with such laws."
4

assignment's validity in this way, it is clear that her claims

(as well as her standing to assert them) are governed by 

Massachusetts law. See Restatement (Second) Conflicts of Laws 

§ 223(1) (1971) ("Whether a conveyance transfers an interest in 

land and the nature of the interest transferred are determined 

by the law that would be applied by the courts of the situs").

We would reach the same result using a functional approach 

to resolving which law applies.5 See Resolute Mgmt. Inc. v. 

Transatlantic Reins. Co., 87 Mass. App. Ct. 296, 302 (2015), 

quoting from Lou v. Otis Elevator Co., 77 Mass. App. Ct. 571, 

583 (2010) (in tort cases, "Massachusetts generally follows a 

functional approach to resolving choice of law questions on 

substantive matters, eschewing reliance on any particular 

choice-of-law doctrine"). As the State where the real property 

is located, Massachusetts has the strongest interest in ensuring 

that the foreclosure took place in accordance with its laws and 

in determining who has the superior right of possession. See 

Newburyport Five Cents Sav. Bank v. MacDonald, 48 Mass. App. Ct. 

904, 906 (1999).

The PSA's choice-of-law provision, see note 4, supra, does 

not bear on what law governs Bolling's standing to challenge the 

 

5 We do not mean to suggest that the functional approach is 

necessarily to be applied to claims concerning real property, 

although it appears to have been used -- albeit without 

discussion -- in Newburyport Five Cents Sav. Bank v. MacDonald, 

48 Mass. App. Ct. 904 (1999).
5

trust's claim of superior possession to the property. Bolling's 

counterclaims and defenses do not arise from either the 

assignment or from the PSA, Sullivan, 85 Mass. App. Ct. at 205, 

and Bolling has not otherwise shown any interest New York might 

have in the property, or in who has title or the superior right 

of possession. For these same reasons, New York law does not 

govern whether the assignment was "void" or "voidable" for 

purposes of establishing Bolling's standing.

Under Massachusetts law, although Bolling has standing to 

challenge deficiencies that render the assignment void, she does 

not have standing to challenge those that make it merely 

voidable. See id. at 206; Bank of N.Y. Mellon Corp. v. Wain, 85 

Mass. App. Ct. 498, 502-504 (2014). See also Culhane v. Aurora 

Loan Servs. of Neb., 708 F.3d 282, 290-291 (1st Cir. 2013); 

Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 354 (1st Cir. 

2013). Bolling does not argue, nor has she shown, that the 

assignment on its face failed to satisfy the applicable 

statutory requirements for assignments. See G. L. c. 183, 

§ 54B. She therefore has "no basis for arguing that the 

assignment is void." Wain, 85 Mass. App. Ct. at 504. Her 

contention that the assignment was not made in accordance with 

the terms of the PSA, a contract to which she had no connection, 

either as a party or an intended third-party beneficiary, is 

instead the type of latent defect that renders an assignment 
6

merely voidable. Ibid. See Woods, 733 F.3d at 354 ("claims 

that merely assert procedural infirmities in the assignment of a 

mortgage, such as a failure to abide by the terms of a governing 

trust agreement, are barred for lack of standing").

6

The judgment is vacated and the matter is remanded for 

further proceedings consistent with this opinion.

So ordered.

 

6 Although we conclude that New York law does not apply, we 

note that it would lead to the same result. "[A] mortgagor 

whose loan is owned by a trust, does not have standing to 

challenge the plaintiff's possession or status as assignee of 

the note and mortgage based on purported noncompliance with 

certain provisions of the PSA." Wells Fargo Bank, N.A. v. 

Erobobo, 127 A.D.3d 1176, 1178 (2015). See Rajamin v. Deutsche 

Bank Natl. Trust Co., 757 F.3d 79, 86-87 (2d Cir. 2014).