Starkey DB JPMC Opp Mjop 9a 07-17-2019

COMMONWEALTH OF MASSACHUSETTS
BARN ST ABLE, ss SUPERIOR COURT DEPARTMENT

Civil Action No. 0972-CV-00829
)
H. CHRISTOPHER STARKEY 1 )
and ) PLAINTIFFS OPPOSITION TO
LOUISA STARKEY, ) DEFENDANTS
Plaintiffs, ) DEUTSCHE BANK NATIONAL TRUST
) COMPANY as TRUSTEE For WAMU
) Mortgage Pass Through Certificates Series
V. ) 2006-ARI Trust AND
) JPMORGAN CHASE BANK, N.A.,
DEUTSCHE BANK NATIONAL ) MOTION FOR JUDGMENT ON THE
TRUST COMPANY, as Trustee, For ) PLEADINGS
WAMU Mortgage Pass Through Certificates Series )
2006-ARl Trust )
and JPMORGAN CHASE BANK, N.A. )
)
Defendants )
Pursuant to Superior Court Rule 9A, and Mass. R. Civ. P., R. 12(c), Plaintiffs H.
Christopher Starkey [posthumously] and Louisa Starkey, herein through counsel,
respectfully file their Opposition to the Defendants Deutsche Bank National Trust
Company, as Trustee and JPMorgan Chase Bank, N.A., Motion for judgment on the
pleadings in favor of Counts I, II, III, IV, V, VI and VII of Plaintiffs' Complaint. As
reasons therefore, Plaintiffs respectfully direct this Court to the instructions upon remand
under the ruling by the Appeals Court.
The Panel on Appeal in this matter indisputably found that Muse J. (formerly of
this Court) went beyond the pleadings in his determination that the Plaintiffs' loan was
"quickly packaged and sold to Defendant Deutsche Bank Trustee". On the basis of the
' Sadly, Mr. Starkey ,lcceased shortly prior to the September 11, 2018 Appeal Court
decision in this matter.
preceding, the Panel found under its de novo review that the Motions to Dismiss were
therefore converted to ones under Mass. R. Civ. P., R. 56, and thereafter the Panel
conducted a review of the Order of Muse J. on appeal within such proper R. 56 legal
context de nova.
Under such R. 56 context, the Panel indisputably found that disputed factual
issues remained as to the Defendants claim that Plaintiffs' "loan, note/mortgage"
was/were an owned asset of Washington Mutual Bank, N.A. ("WaMu") at the time of the
Bank failure, and/or that Deutsche Bank as Trustee for the Defendant Trust could
possibly claim current ownership of Plaintiffs' loan. The Panel further found that
Plaintiffs were entitled to Discovery on this issue of disputed fact. Unlike Defendants
statement related to arguments under the PSA being "settled law", the Panel correctly
identified that under the specific pattern presented here [not those under the fact patterns
of Defendants case law citation], that the timing issue here is a crucial [potentially
outcome determinative] component as to a number of issues in this matter, 2 Unlike
Defendants assertions, the Opinion from the Appeals Court clearly discussed the PSA
[without any admonishment to undersigned for so raising, and in fact considered such
PSA language in its ruling], and how issues related to "timing" may be determinative in
'Further interesting is the fact that undersigned was not only "allowed" to make
arguments under the PSA in U.S. Bank Nat 'I Ass 'n v. Ibanez, 458 Mass. 637 (SJC 2011 ),
but undersigned convinced the SJC to author its opinion to rely on such references to the
PSA in its landmark ruling, [see U.S. Bank Nat 'I Ass 'n v. Ibanez, 458 Mass. 637, 641-
645; 649-652 (SJC 2011) [also reference Ibanez at 648, 650]] much like the instant Panel
did in the Appeal here. Such references clearly undercut the Defendants position that
claims by a borrower re the PSA are "well-settled", as the requested "blanket application"
of rulings examining other theory(s) ofreliefunder divergent and distinctly different fact
patterns chills any creativity to advance claims under different factual underpinnings, as
well as making different claim for their entitlement to relief [especially where the lion
share of these rulings are 12(b)(6) opinions that only stand for a decision on the merits as
to the plausibility/feasibility of those particular litigant claim and theory of relief].
2
the Deutsche Bank claim that the Trust presently owns Plaintiffs' loan. Under the
Appellate ruling, the Panel clearly stated that Plaintiffs were entitled to discovery that
also extended to all other remaining claims within the complaint.
Defendants' Motion fails to articulate or even discuss, in any detailed manner or
form, that their basis for their previous Motion for dismissal was premised upon the
jurisdictional bar of "FIRREA". Indeed, on this basis, it was the Defendants themselves
that claimed dismissal should be directed to the Plaintiffs' complaint because the state
court lacked subject matter jurisdiction as it was "preempted" by FIRREA 's
jurisdictional requirements. That claim has not changed on remand, as the Court, never
reached the ultimate determination of this issue. The Appeals Court Panel expressly
stated that this matter was to be remanded "consistent with this ruling". Further unlike
Defendants cited case law, it was the Defendants [not Plaintiffs] who proffered the PSA
in this matter as support for their claim that Deutsche Bank owns the Plaintiffs loan as
Trustee for the Defendant Trust, which Muse, J. considered in his finding that Plaintiffs'
loan was "quickly packaged and sold to Deutsche Bank in 2006".
The Defendants argument that Judge Muse issued any other finding outside of
dismissal on the basis of FIRREA is clearly erroneous, [compare Exhibit B attached
hereto]. Again, under Defendants' own position [which is the subject of the ruling of the
Appeals Court on remand], is that the Superior Court lacked jurisdiction to opine at all, as
it was "preempted by FIRREA", and therefore was precluded from making any other
decision without jurisdiction. Thus, besides Judge Muse failing to make any other finding
for dismissal on the basis of FIRREA, under the existing ruling under Defendants own
legal theory, and the Panel's instructions on remand, these issues remain a disputed
factual issue under R. 56. Indeed, the only way that FIRREA applies would be a
determination under a fully developed record that, [as Defendants so vehemently claimed
previously before this Court and on appeal] Plaintiffs "loan" was an owned asset of
WaMu at the time of its failure as purportedly evidenced by the 2009 purported
assignment of Plaintiffs' mortgage from the FDIC as Receiver for WaMu that is recorded
upon their deed to the title of the premises in question. In addition, the determination as
to WaMu's ownership status of Plaintiffs' loan at the time of the WaMu failure is a
foundational legal condition precedent as to whether this Court even has the subject
matter jurisdiction to opine at all. 3 However, the recorded 2009 assignment from
3 It is interesting to "note" that Defendants have "rolled out" massive "artillery" in the
defense of this matter in the form of two very large law firms [Morgan Lewis and Wilmer
Cutler, Pickering, Hale and Dorr, LLP] . Such firepower seems unnecessary and
excessive to defend this matter against a mere savant with a small niche practice solely
devoted to the defense of threatened residential real estate mortgage foreclosure actions.
However, undersigned somehow has managed to keep the good ship SS. Starkey sailing
along down the river of justice for over ten years since it left port at South Yarmouth.
Subsequent to the Appeal Court Ruling in this matter, the present law firm immediately
filed a Petition for Rehearing on the claimed basis that Plaintiffs sought dismissal only as
to Count I. [See Exhibit C attached hereto] The Appeals Court Panel Denied such
rehearing by rejecting Defendants claim out of hand, by identifying that Plaintiffs very
clearly challenged the remaining claims at p. 38 of their Opening Brief., [see attached
Appeals Court Docket, Ca. No. 2016-P-1594, Entry re paper #24, dated 10/18/2018].
Subsequently, Defendants opened an Application for Further Appellate Review under Ca
No. FAR-26395, where a "blue-ribbon cadre" of four attorneys from Wilmer Hale were
then hired to take on the undersigned savant [2 of these Wilmer Hale attorneys clerked
with U.S. Supreme Court Justices [Arpit Garg - Souter, J.; Breyer, J. Executive Editor
Yale Law Review; Alan Schoenfeld [Sotomayor, J.], another [Mark C. Fleming] who has
extensively argued cases before SCOTUS, and yet a fourth [Albinas Prizgintas] who has
provided extensive support for SCOTUS cases]. The SJC Denied FAR [See Exhibit D
attached hereto], which caused the good ship Starkey to return here to the Barnstable
Superior Court dock from whence it left. However, as a result of the ships sojourn to and
from the Appeals court, Plaintiffs ship is now docked before this Court adorned with new
accoutrements that have fortified its Hull. Such "fortification" comes by way of the
findings and instruction made in the Appeals Court in its ruling ordering remand.
Plaintiffs also raised the specter of a potential due process impingement where a federal
statute [FIRREA] provides no notice to a borrower that he/she/it must first undertake a
assignment plausibly calls into question Defendants claim that Plaintiffs' loan was
acquired by Deutsche Bank as Trustee in 2006.
At the initial status conference in this matter at Clerk Nickerson's Office, an
attorney for the Defendants current law firm also raised the same issue of immediately
filing a Motion under MRCP, R. 12(c) to which undersigned explicated that under the
Order on remand, Plaintiffs were allowed discovery on the foundational legal predicate at
issue, namely the determination as to the foundational basis of Defendants' stated
claim/admission that Plaintiffs' loan was owned by WaMu at the time of its failure, and
whether such ownership precludes the subject matter jurisdiction of this Court. Clerk
Nickerson agreed with undersigned's position and set out a tracking order allowing
discovery in this matter, which deadline remains quite distant from today. 4 Undaunted,
Defendants unilaterally have decided that enough time has passed for them to make
another attempt of such filing of which they were previously informed was not
contemplated under the tracking order, but more importantly of which is not consistent
with the wording of the Opinion and instruction from the Appeals Court on remand.
Plaintiffs respectfully request that Defendants Motion be Denied.
ARGUMENT
I. LEGAL STANDARD UNDER INSTRUCTIONS FROM THE APPEALS

COURT ON REMAND
"claims procedure" under FIRREA administrative process [as happened here] but yet
even though never receiving notice of this requirement is then found to be permanently
precluded from defending the title to their real property as a result of a federal statute,
and which application took place without a hearing
' Due to the complex fact pattern and esoteric legal issues presented, undersigned has
carefully and diligently drafting questions and requests for documents, as well as
developing a list of potential deponents in this matter, and to date, has not yet sent these
over to Defendants, but anticipates that he will do so in fairly short order.
.'i
The Moving Defendants describe at p. 6 of their Memorandum the legal standard
for a Motion brought under MRCP, R. 12(c), namely that [A]ny party may move for
judgment on the leadings." "after the pleadings are closed". Defendants then cite to n.6
on the same page stating, "that the pleadings have been closed in this matter since March
18, 2019 when the Court allowed Defendants leave to file the operative answer in this
case". Despite the clear wording from the Appeals Court on remand, the Defendants
seek to have this Court maintain its focus solely on Plaintiffs' allegations in their
complaint, see Def Mem generally at pp. 7-20. Defendants mischaracterize the
procedural posture of this matter by implying that the holding of the Appeals Court made
was a ruling upon a 12(b)(6) Motion, so that after Defendants filed an answer they could
apparently then have two bites at the apple to attack Plaintiffs' pleadings as to their
plausibility, [which is unclear how this could take place anyway, as the standard
involving a 12(c) Motion is similar to that of one under 12(b)(6)). However, crucially,
Defendants either failed to examine the wording of Appeals Court Order regarding the
procedural posture of this matter that was given de novo review by the Panel to be one
under MRCP., R. 56, or Defendants purposely chose to ignore it for their benefit.
Understandably, Defendants fail to discuss the actual holding of the Appeals
Court on reversal and remand regarding the precise procedural posture of this matter.
Indeed, see the Appeals Court Opinion;
"At this stage in the proceedings, however, we need not determine what
claims or actions might be barred by FIRREA with respect to assets
owned by Washington Mutual on the date it went into receivership. That is
because the judge, appropriately, considered the PSA in ruling on the
motions to dismiss, specifically concluding that "[t]he mortgage was
quickly packaged into a security sold to Deutsche Bank." The judge thus
implicitly treated the motions as ones for summary judgment under
Mass. R.Civ. P. 56, 365 Mass. 824 (1974), rather than as motions to
(i
dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See
Mass. R. C iv. P. 12 (b) ("If, on any motion asserting the defense numbered
[6] , to dismiss for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment ... "). Accord Cousineau v. Laramee, 388 Mass. 859, 860 n.2
(1983) (trial judge who relies on factual matters outside the pleadings in
deciding a rule 12 [b] [6] motion implicitly converts that motion into one
for summary judgment)." Starkey v. D eutsche Bank as Trustee, et al,
94 Mass. App. Ct. 1, at pp. 5-6 (Attached hereto at Exhibit A)
Further, the Panel then considered the merits of Plaintiffs' appeal under the
appropriate R. 56 standard, de novo, and then conducted an examination as to whether the
Defendants were entitled to Judgment as a matter of law, which was clearly answered in
the negative. Thus, this matter is clearly beyond the exami nation of the plausibility of the
pleadings stage, as the Panel very clearly converted this matter to one under R. 56:
"On appeal, we therefore do the same. Our review is de novo. Bulwer v.

Mount Auburn Hosp., 473 Mass. 672, 680 (2016). Drawing every
inference from the record in favor of the nonmoving parties, the
plaintiffs, we must determine whether there is any genuine issue of
material fact and whether, as a matter of law, the defendants are
entitled to judgment. Id. See Miller v. Cotter, 448 Mass. 671 , 676 (2007).
ld.
Unlike the Defendants assertions, the pleadings in Plaintiffs complaint are clearly
no longer at issue as to their plausibility. That the Panel found Plaintiffs' claims
" plausible", and therefore create issues of genuine disputed material fact is indisputably
evidenced by the Panel 's finding below:
"As our description of the proceedings below suggests, there is, at

least, a genuine issue of fact with respect to the ownership of the
plaintiffs' mortgage loan in 2008. If, as the PSA suggests, the note and
the mortgage were sold to the trust in 2006, they were no longer assets
of Washington Mutual on the day it went into receivership. Both the
note and the mortgage would have been the property of the trust since
2006, notwithstanding the transfer document recorded in May 2009."
Id. At p. 6
7
The above finding by the Panel also undercuts Defendants' argument that
allegations regarding the PSA are somehow "well-settled", as the Panel clearly references
the PSA requirements. 5 The above statement of the Panel also indisputably further
distinguishes the basis of the Panel's examination of the PSA under the specific fact
pattern presented here in this matter from those other cases fact patterns cited by
Defendants involving the PSA issue. 6 Further, the Court also clearly addressed the "fact"
that because disputed factual issues remain in the instant matter under the de novo R. 56
inquiry undertaken by the Appeals Court Panel, that Plaintiffs were entitled to discovery
on these disputed issues:
"To the extent there exists any dispute by the defendants about the
ownership of the note or the mortgage on the date Washington Mutual
went into receivership --and we note that date of preparation or
recordation of a mortgage transfer does not necessarily indicate that that is
the date on which ownership of the mortgage was in fact transferred to a
purchaser -- the plaintiffs are entitled to further discovery on the matter".
Id, at JO
With respect to the remaining claims, the Appeals Court also states at n. 8:
5
Defendants do not make citation to any SJC case that would support their claim that the
PSA issue is "well-settled". Indeed, as far as undersigned is aware, undersigned
successfully argued the sole case before the SJC that examined the PSA issue, and not
only was allowed to advance such argument, but the Court incorporated much of his
argument in the ruling itself; in U.S. Bank Nat'/ Ass 'n v. Ibanez, 458 Mass. 637 (SJC
2011 ).
6 Apparently under Defendants view; the factual underpinning involving every single
mortgage foreclosure case is identical, and there can be no divergent set of facts upon
which a borrower can allege relief under, or for a court to apply a legal framework
specifically based thereon. Indeed to agree with Defendants position regarding the "PSA"
would stand for the proposition that every Lender, mortgage transaction, Mortgage, Note,
Assignment, PSA, and every other conceivable fact in every case, and the particular
litigants claim for their entitlement to relief under divergent fact pattern, are all precisely
identical to each other. Clearly, the Panel in this matter [not Defendants cited cases]
understood that under the precise set of facts specifically presented here that involve
questions of the timing of the claimed acquisition of Plaintiffs' loan due to the Failure of
WaMu, requires an examination of the PSA to assess Defendants claim of legal
ownership of Plaintiff mortgage loan and their claimed right to enforce the same.
8
"The same course should be taken with respect to surviving claims, if any,
pressed by the plaintiffs for money damages against Washington Mutual
or JPMorgan Chase as purchaser of its assets from the FDIC." Id. At n. 8
Thus, the Appeals Court opinion clearly stated that it reversed and
remanded this matter back to this Court, ''.for further proceedings consistent with this
Opinion". Respectfully submitted, such consistency demands inquiry as to the
Defendants inconsistent stated claims of ownership of Plaintiffs' mortgage loan, which
therefore clearly allows Plaintiffs to quiz Defendants as to their foundational basis for
claims of purported ownership, and whether or not such ownership was derived from
Washington Mutual Bank at time it was seized by the FDIC after is failure.
A. Defendants Claims In Defense Centered on Their Position That The

Superior Court Lacked Jurisdiction To Opine Because It Was Pre-
empted By FIRREA
Defendants posit that somehow Muse J came to some other finding that Plaintiffs
"failed to appeal" relative to the well pled counts of their complaint, see [Def. Mem. At
pp. 4-6; 10-20], Such claims are not suppotted by the decision itself, compare Muse, J.
Ruling at Exhibit B attached hereto. Referencing the findings made by Muse J with
respect to each and every Count of Plaintiffs' complaint, indisputably the sole basis for
dismissal was reliance upon the jurisdictional bar of FIRREA, and Muse, J. statements
that the Court lacked jurisdiction. Defendants protestations otherwise are easily dispensed
with, [please also compare n. 4 of Plaintiffs' Memorandum at p. 4; with Judge Muse's
bottom line findings for each Count at Exhibit B attached hereto.]
To further bolster Plaintiffs' position that Defendants now seek to disclaim their
previous claims before this Court, under the R. 56 matter presented to this Court,
Plaintiffs direct this Court to the Appeals Court ruling at p. 4

"The defendants argue that the statute bars the plaintiffs' claims
because it eliminates the trial court's jurisdiction, and that the plaintiffs
are remitted to the claim procedure set forth in FIRREA, under which the
deadline for filing claims has now passed. See Alkasabi v. Washington
Mut. Bank, F.A., 31 F. Supp. 3d 101, 104 (D.D.C. 2014) (FDIC set
December 30, 2008, as deadline for filing claims against the Washington
Mutual receivership)." Starkey v. Deutsche Bank as Trustee et al, at 4
Thus, Defendants now seek to take an inconsistent position on remand than they
did under oath previously before this Court, prior to Judge Muse's ruling. Now suddenly,
[after failing on their R. 56 Motion], Defendants now seek to return this to an
examination to the 12(c)-standard involving the pleadings alone. Suddenly, Defendant
seeks to abandon their previous vociferous claims of this Court's lack of subject matter
jurisdiction made under oath. Clearly such 180-degree position currently suits
Defendants' purposes much better. Unfortunately for Defendants such position clearly
does not comport with American jurisprudence, or more importantly clearly does not
comport with specific instructions to this Court on from the Appeals Court's de novo
findings and instruction under remand. Clearly, Defendants' current position cannot
stand, as it is in contravention and inconsistent with Appeals Court's de novo findings
and instruction
However, most importantly, and understandably, Defendants do not discuss the
implications of the Defendants' unresolved claim of this Court's lack of subject matter
jurisdiction. Such claim by Defendant clearly remains undecided, as it hinges upon the
ultimate determination by this Court whether the Plaintiffs' loan was an owned asset of
WaMu at the time of its failure. Theoretically such finding would preclude the Court's
jurisdiction in this matter. 7 8

Defendants have admitted through sworn pleadings both at
• Defendants seek to rely upon Ressler v. Deutsche Bank Trust Co. Americas, 92 Mass.
10
the trial court level and on appeal that they rely upon the premise that Plainti ffs'
mo1tgage was an owned asset of WaMu at the time of its failure in 2008. Yet at the same
time Defendants also asserted under oath that they relied upon the PSA to stand for the
App Ct. 502, 509 (2017). Unlike Ressler, clearly the Plaintiffs' claims here were
indisputably found to be "meritorious" by the Panel. Further, Ressler does not involve the
specific fact pattern requiring examination as to the timing of what assets were held by
Washington Mutual at the date of its failure and takeover by the FDIC, nor how such
finding would interplay with the claimed timing of acquisition of Plaintiffs' loan under
the Deutsche Bank Trust PSA two years prior. Unlike Defendants assertion, the Appeals
Court ruling evidences that the Panel understood that Plaintiffs do not seek "to enforce
the PSA" to obtain some "benefit therefrom", but rather Plaintiffs challenge the Trust's
claim to the ownership of their loan and/or the claimed defeasible fee interest in their title
to the premises at issue in this matter. The Panel further understood that Defendants'
claim of ownership is purportedly based upon a purported "mortgage assignment". For a
similar examination regarding claims involving standing to challenge the legal
effectiveness of a mortgage assignment, see Sullivan v. Kondaur Capital, 85 Mass. App.
Ct. 202, 205 "Observing that the Sullivans are neither parties to nor intended
beneficiaries of the first assignment or the second assignment, Kondaur contend'> that
they are without standing to challenge the validity of either instrument. It is of course
true that a nonparty who does not benefit from a contract generally is without standing to
enforce rights under it. See, e.g., Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455
J\,fass. 458 , 464 (2009). However, that is not the position the Sullivans occupy, since
they are not seeking to enforce any rights under either assignment. Instead, by tJ,eir
complaint tJ,ey seek to cl,al/enge Kondaur's claim of title to tl,e property tl,e Sullivans
formerly owned, which derives from foreclosure of the_mortgage Kondaur claims to
have acquired bv virtue of the first and second assignments. Komlaur l,e/d legal
autl,ority to conduct the foreclosure, under the statutory power of sale contained in t/,e
mortgage, only if it held a valid title to t/,e mortgage at tl,e time it gave tl,e notice of
foreclosure required under G. L. c. 244, § 14 .... " Ressler relied upon Strawbridge v,
Bank of New York Mellon, 9 1 Mass.App.Ct. 827 (2017). Indeed, the transcript of the
oral argument in the Appeal of this matter will reveal that Defendants counsel cited to
Strawbridge, and undersigned's involvement therein, to which the Hon Rubin, J. replied
to Defendants' counsel that he had reviewed Strawbridge "and was not a fan "/. The
preceding is further evidenced by Rubin J. ' s findings in the instant Appellate opinion that
was remanded to this Cou1t.
• However, if such was the finding, Plaintiffs would herein raise Constitutional challenges
to such finding which would clearly deprive them of an opportunity for a hearing
regarding the taking of their real property under a federal statute which provided them no
notice, (Plaintiffs' addressed this issue in this issue in their Opening Brief at p. 32, and
Reply Brief at p. 14], [avai lable as PDF's on the Appeals Court Public Information
website].
11
proposition that Plaintiffs' loan was "quickly packaged and sold" to Deutsche Bank, N.T.
as Trustee for the Defendant Trust in 2006. Clearly the Panel understood the plausibility
of Plaintiffs' claims regarding the conundrum of such divergent positions advanced
simultaneously by Defendants. Thus, on this basis the Panel clearly understood the
obvious need for discovery to obtain the Defendants position under oath as to the true and
correct state of ownership of Plaintiffs' loan, regarding this disputed material fact. The
preceding issues are also a condition precedent to determine this Court's jurisdiction to
entertain the remaining claim within the Plaintiffs' complaint as well.
B. The Appeals Court Panel Clearly Allowed Plaintiffs To Conduct

Discovery Regarding Their Remaining Monetary Claims As Well,
Which Were Alao Dismissed Solely Under FIRREA's Jurisdictional
Bar
The entirety of Defendants' Motion is solely focused on the incorrect
premise that "the pleadings were closed in this matter on March 19, 2019". Again,
Defendants attempt to rely upon the fact that the Appeals Court ruling stated that it was
only presented with one issue, FIRREA and its jurisdictional bar. Defendants then
postulate that somehow this allows them to now seek relief on the pleadings relative all
counts in the complaint on a different claim.
Unfortunately for Defendant, while a clever attempt to change the trajectory of
the analysis, rather obviously the reason why the Appeals Court was only presented with
the FIRREA issue solely, was because that was Muse J. 's sole basis for the dismissal of
each and everv Count in Plaintiffs' complaint (save the count that was settled). Indeed,
the Appeals Court decided the Appeal premised upon Defendants steadfast reliance upon
FIRREA's jurisdictional Bar, and the claimed lack of jurisdiction of this Court It is
indisputable by Defendants that the Appeals Court never reached any decision on the
12
ultimate jurisdictional issue, as it is a factual based exami11atio11 more properly suited
for this Court on remand, and with the benefit of a fully developed record.
C. Plaintiffs Were Never Provided Any Opportunity To Fully Brief The

FIRREA Issue Before This Court, And Also Were Never Provided Any
Opportunity To Brief The Constitutional Implication of FIRREA's
Jurisdictional Bar Where A Borrower Receives No Notice That His Claim To
Title Is In Jeopardy, Where A Failure to Undertake FIRREA's
Indeed, even under the existing claims, Plaintiffs are entitled to raise the
constitutional dimension to Muse, J.'s findings, should this Court make the ultimate
finding that Plaintiffs would be precluded under FIRREA's Jurisdictional scheme.
Plaintiffs made extensive citation in their appellate briefs to decisions from the
bankruptcy and other courts that were extremely concerned about such potential
constitutional deprivation as a result of blanket application of the FIRREA jurisdictional
bar to mortgagor borrowers 9 •
II. CONCLUSION
As to the merits of Defendants Motion, Plaintiffs state that the Defendants claim
to act under R. 12(c) is rather easily dispensed with under the authority of the Appeals
Court instructions on remand. If for no other reason, that the Appeals Court has left open
the issue of whether or not this Court even has the subject matter jurisdiction to entertain
this matter. The Appeals Court also allowed Plaintiffs discovery to create a fully
developed record on remand regarding this and the remaining issues under the filed
complaint. Such determination of subject matter jurisdiction has to be made as a
condition precedent, in order to even reach Defendants conflicting claims of ownership of
' lnckcd, due to a conllirt between the Circuits on this issue, SCOT! IS intervention may
be appropriate
Plaintiffs' loan, as well as Defendants protestations regarding the ultimate merits of
Plaintiffs' claims. 10
However, the Appeals Court ruling dashed Defendants hopes in this regard in
another way, namely that the Panel conducted a de novo review of Judge Muse's ruling
and converted the Motion to Dismiss under R. 12(b)(6) appealed from to become an
action under R. 56. Further, by so doing the Appeals Court implicitly found that the
Plaintiffs claims are clearly plausible and remain unresolved. Indeed, Plaintiffs' claims
were found so plausible that the Appeals Court determined that the Plaintiffs are entitled
to the keys to unlock discovery regarding the disputed claims of ownership of the
Plaintiffs' mortgage loan.
WHEREFORE, it is with the utmost deference, and in reliance upon the entirety
of the preceding argument, and the ratio decidendi citation herein, that the Plaintiffs
respectfully request that this Court Deny the Defendants Motion for Judgment on The
Pleadings
Respectfully submitted,
Plaintiffs
By Their Attorney,
'"Despite fierce headwinds, the SS. Starkey has steadfastly sailed mightily down the river
of justice for these past ten years The past decade has witnessed a bevy of harrowing
twists and turns, as the ship has managed to deftly maneuver its way past most of the
dangerous rocks and unseen obstacles it has encountered on its journey. While
undersigned has recently taken sole Captainship of this voyage, he still feels the presence
and guiding hand of Mr. Starkey, who poured many hours into the defense of this matter,
and his factual input on this continuing voyage is greatly missed. While Defendants
instant Motion seeks to "roll the jagged stone" beneath the hull of the SS Starkey in order
to sink the vessel, the ship has now taken evasive measures by steering hard left to avoid
the catastrophic collision that Defendants hoped would terminate Plaintiffs' voyage.
11
Ole . Russell, Jr., Esq
38 Rock Street, Suite # 12
Fall River, MA 02720
(508) 324-4545
BBO# 656914
Dated: July 17, 2019
CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr., attorney for Plaintiffs, hereby certify that on July 17,
2019, I served an Original of the foregoing Opposition to Defendants Motion for
Judgment on the Pleadings, upon the Defendant's attorney ofrecord listed below,_within
the time required by Superior Court Rule 9A. I further certify that I also served a true
copy of the original of this document to provide a working copy thereof forthwith upon
the Defendants' counsel, with service via email, and hard copy by way of US Mail,
postage prepaid.
Charles L. Solomont
Vanessa M. Brown
Elizabeth M. Bresnahan
Wayne E. George
MORGAN, LEWIS BOCKIUS, LLP

One Federal Street
Boston, MA 02110-1726
EXHIBIT
A
7/15/2019 STARKEY vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, 94 Mass. App. Ct. 1
H. CHRISTOPHER STARKEY & another

[Notel] VS. DEUTSCHE BANK NATIONAL TRUST
COMPANY, trustee, [Note2] & others. [Note3]
94 Mass. App. Ct. 1

December 11, 2017 - September 11, 2018
Court Below: Superior Court, Barnstable County
Present: Rubin, Lemire, & Shin, JJ.
Mortgage, Real estate, Foreclosure. Real Property, Mortgage. Federal Deposit Insurance
Corporation. Jurisdiction. Practice, Civil, Motion to dismiss, Summary judgment.
In a civil action brought in the Superior Court by the plaintiff mortgagors of residential real
property, seeking declaratory relief, damages, and rescission of their mortgage and note, the
dismissal of the plaintiffs' claims required reversal, where their claims were not barred by the
relevant portions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(act), 12 U.S.C. § 1821(c)-(I) (2006) (requiring creditors of failed banks to file
Page 2
claims with the Federal Deposit Insurance Corporation [FDIC] and divesting courts of jurisdiction
to hear such claims against such banks or the FDIC as receiver until exhaustion of
administrative remedies with the FDIC), in that, to the extent the defendants disputed the
ownership of the mortgage or note on the date that the original mortgagee went into
receivership, the plaintiffs were entitled to further discovery (6-10]; further, this court declined
to consider the plaintiffs' argument that some or all of their claims did not fall under the act's
jurisdictional bar. (10-11]
CIVIL ACTION commenced in the Superior Court Department on November 20, 2009.
Motions to dismiss were heard by Christopher J. Muse, J., and entry of judgment was
ordered by him.
Glenn F. Russell, Jr., for the plaintiffs.
Charles L. Solomont for Deutsche Bank National Trust Company & another.
masscases.com/cases/app/94/94massappct1 .html 1/1 1

RUBIN, J. The plaintiffs, H. Christopher Starkey and Louisa H. Starkey, entered

into a mortgage loan transaction in which they executed a promissory note in favor
of Washington Mutual Bank, FA (Washington Mutual), as lender and payee in the
amount of $1,000,000, on November 22, 2005, and gave Washington Mutual a
mortgage on their residential real property in South Yarmouth. The plaintiffs
ultimately fell behind on their mortgage payments. On May 14, 2009, Deutsche
Bank National Trust Company (Deutsche Bank), as trustee for WaMu Mortgage Pass
Through Certificates Series 2006-ARl Trust (trust), brought a "Complaint to
Foreclose Mortgage" against the plaintiffs under the Servicemembers Civil Relief
Act, as a final step prior to initiating the process of foreclosure through publication.
On June 10 and June 15, 2009, the plaintiffs sent "Notice[s] of Rescission" to
Deutsche Bank as trustee of the trust, in which they claimed the right to rescind
the November 22, 2005, transactions. After receiving no response, they filed their
November, 2009, complaint in the instant action in Superior Court, naming as
defendants Deutsche Bank, as trustee for the trust; JPMorgan Chase Bank, N.A.
(JPMorgan Chase), successor in interest to Washington Mutual; and other entities
related to JPMorgan Chase or Washington Mutual. The plaintiffs sought declaratory
relief, damages, and rescission of the mortgage and note, alleging that the
defendants have no enforceable rights with respect to the mortgage and note due
to their failure to properly convey these assets into the trust (count 1), that the
note and mortgage were obtained without disclosures mandated by G. L. c. 140D
( count 2), that the plaintiffs were
Page 3
fraudulently induced to sign the mortgage and note ( count 3), that the defendants
breached their contract with the plaintiffs by refusing to allow the plaintiffs to
rescind the mortgage loan ( count 4 ), that the defendants violated the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (2006) (count 5), that the
defendants violated the consumer protection statute, G. L. c. 93A (count 6), and
that the defendants violated the borrower's interest statute, G. L. c. 183, § 28C (a)
(count 7).
The defendants filed motions to dismiss in January, 2010. In their memoranda in

support of the motions to dismiss, the defendants did not raise any argument that
dismissal was required by the Financial Institutions Reform, Recovery, and
masscases.com/cases/app/94/94massappct1 .html 2/11
7/15/2019 STARKEY vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, 94 Mass. App . Ct. 1
Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183, the relevant
portions of which are codified at 12 U.S.C. § 1821(c)-(I) (2006). However, at
argument on the motions, without prior notice to the plaintiffs, the defendants
presented the judge with a copy of Demelo v. U.S. Bank Nat'I Ass'n, 727 F.3d 117
(1st Cir. 2013), and argued that FIRREA, as construed by Demelo, required
dismissal of the suit.
The motion judge ordered the dismissal of all but one claim in the complaint --
count 5 as against JPMorgan Chase -- solely on the basis of FIRREA. At the first
opportunity to address that statute, after the decision was rendered, the plaintiffs
filed a motion for reconsideration, arguing the inapplicability of FIRREA. That
motion was denied the same day it was filed. Eventually the remaining count 5
claim was resolved by mutual agreement and dismissed by separate judgment. A
second judgment then entered dismissing counts 1 through 4, 6, and 7, on the
basis of FIRREA. Before us now is the plaintiffs' timely appeal from that judgment
(as corrected to remedy a clerical mistake).
On appeal the only issue before us is whether FIRREA requires dismissal of these
counts. In light of the procedural history described, we think the plaintiffs'
arguments were adequately raised below . [Note 4] Additional relevant facts will be
described in the course of our discussion below.
Analysis. On September 25, 2008, Washington Mutual Bank, formerly Washington

Mutual Bank, FA, .[Note SJ was declared insolvent and placed into receivership of
the Federal Deposit Insurance Corporation (FDIC). See Thompson v. Washington
Mut., 806 F. Supp.
l'dy~ 1
2d 197, 199 (D.D.C. 2011). Its assets were immediately sold to defendant
JPMorgan Chase. FIRREA sets forth a claims procedure that requires creditors of
failed banks to file claims with the FDIC, and divests courts of jurisdiction to hear
these claims against these banks, or the FDIC as receiver, until administrative
remedies with the FDIC have been exhausted. Specifically, the statute provides,
"Except as provided in this subsection, no court shall have jurisdiction over--

"(i) any claim or action for payment from, or any action seeking a determination of
rights with respect to, the assets of any depository institution for which the
Corporation [i.e., the FDIC] has been appointed receiver, including assets which
the Corporation may acquire from itself as such receiver; or
"(ii) any claim relating to any act or omission of such institution or the Corporation
as receiver."
12 U.S.C. § 1821(d)(13)(D). The defendants argue that the statute bars the
plaintiffs' claims because it eliminates the trial court's jurisdiction, and that the
plaintiffs are remitted to the claim procedure set forth in FIRREA, under which the
deadline for filing claims has now passed. See Alkasabi v. Washington Mut. Bank,
F.A., 31 F. Supp. 3d 101, 104 (D.D.C. 2014) (FDIC set December 30, 2008, as
deadline for filing claims against the Washington Mutual receivership).
Procedural setting. As an initial matter, in their complaint, the plaintiffs alleged that
their mortgage was "apparently" held by "Washington Mutual, Inc., or one of its
subsidiaries" on the date of Washington Mutual's insolvency. They alleged that they
were not informed that anyone other than the original mortgagee, Washington
Mutual, held their mortgage loan prior to their receipt of the trust's Complaint to
Foreclose Mortgage. The notion that the mortgage loan was held by Washington
Mutual on the date of its placement in receivership (September 25, 2008) was
certainly a reasonable inference, since, three days before bringing the May 14,
2009, Complaint to Foreclose Mortgage, the trust was purportedly assigned the
mortgage by JPMorgan Chase. The assignment was signed by Barbara Hindman,
vice-president of JPMorgan Chase, recorded in the Barnstable Registry of Deeds on
May 20, 2009, and accompanied by an affidavit by the FDIC stating that
Page 5
JPMorgan Chase came to own all of Washington Mutual's "loans and loan
commitments" on September 25, 2008.
Although the memoranda in support of the defendants' motions to dismiss, filed by

a single attorney purporting to represent all the defendants, including JPMorgan
Chase and the trust, did nothing to clarify the question of who owned the note and
the mortgage at what times, the plaintiffs did append to an opposition

memorandum a copy of the "Pooling and Servicing Agreement" (PSA), an

agreement between WaMu Asset Acceptance Corp. as depositor of a set of assets
(primarily mortgage loans), Washington Mutual Bank as servicer of those loans,
Deutsche Bank as trustee of the trust, and Deutsche Bank Trust Company Delaware
as Delaware trustee. Its inclusion suggests that the mortgage was securitized and
sold to the trust long before Washington Mutual's insolvency. That document
reveals that the trust obtained all its assets through a purchase from WaMu Asset
Acceptance Corp., the set of assets being valued at over $1.5 billion. The PSA
states that those assets include "Mortgage Loans" that would be conveyed to the
trust on the closing date, January 30, 2006. "Mortgage Loan[]" is relevantly defined
to include both the note and the mortgage. According to the PSA, the "Mortgage
Files," which include the mortgage notes and recorded mortgages, endorsed or
assigned respectively either in blank, to the trust, or to the trustee, were also to be
delivered to the trust on January 30, 2006. The trust then issued a variety of
classes of "certificates," each representing a fractional ownership interest in the
bundle of Mortgage Loans that made up the trust assets, and the certificates were
subsequently sold on the open market. The PSA appears to make no provision, and
appears to grant the trust no authority, for acquisition of additional assets by the
trust subsequent to the closing date.
Arguing that FIRREA bars the plaintiffs' claims if the mortgage was owned by
Washington Mutual on the date of its placement in receivership, the defendants
now contend that because the plaintiffs, understandably in light of the defendants'
own conduct, pleaded that the mortgage was "apparently" owned by Washington
Mutual on that date, the plaintiffs have "pied themselves out of court."
At this stage in the proceedings, however, we need not determine what claims or
actions might be barred by FIRREA with respect to assets owned by Washington
Mutual on the date it went into receivership. That is because the judge,
appropriately, considered
Page 6
the PSA in ruling on the motions to dismiss, specifically concluding that "[t]he
mortgage was quickly packaged into a security sold to Deutsche Bank." The judge
thus implicitly treated the motions as ones for summary judgment under Mass. R.

Civ. P. 56, 365 Mass. 824 ( 1974 ), rather than as motions to dismiss under Mass. R.
Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See Mass. R. Civ. P. 12 (b) ("If, on any
motion asserting the defense numbered [6], to dismiss for failure of the pleading to
state a claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment ... "). Accord Cousineau v. Laramee, 388 Mass. 859, 860 n.2
(1983) (trial judge who relies on factual matters outside the pleadings in deciding a
rule 12 [b] [6] motion implicitly converts that motion into one for summary
judgment).
On appeal, we therefore do the same. Our review is de novo. Bulwer v. Mount

Auburn Hosp., 473 Mass. 672, 680 (2016). Drawing every inference from the
record in favor of the nonmoving parties, the plaintiffs, we must determine whether
there is any genuine issue of material fact and whether, as a matter of law, the
defendants are entitled to judgment. Id. See Miller v. Cotter, 448 Mass. 671 , 676
(2007).
Discussion. As our description of the proceedings below suggests, there is, at least,
a genuine issue of fact with respect to the ownership of the plaintiffs' mortgage
loan in 2008. If, as the PSA suggests, the note and the mortgage were sold to the
trust in 2006, they were no longer assets of Washington Mutual on the day it went
into receivership. Both the note and the mortgage would have been the property of
the trust since 2006, notwithstanding the transfer document recorded in May,
2009.
In a suit against a purchaser of a loan from a depository institution that later

became insolvent and went into receivership of the FDIC, the first clause of 12
U.S.C. § 1821(d)(l3)(D) is inapplicable. Such a suit does not seek "payment from,
or ... a determination of rights with respect to, the assets of any depository
institution for which the [FDIC] has been appointed receiver." The question before
us is whether such a suit is barred by the second clause, eliminating jurisdiction
over "any claim relating to any act or omission of such institution or the [FDIC] as
receiver." 12 U.S.C. § 182l(d)(13)(D)(ii).
"In FIRREA, the word 'claim' is a term -of-art that refers only to claims that are
resolvable through the FIRREA administrative

7/15/2019 STARKEY vs. DEUTSCHE BANK NAT IONAL TRUST COMPANY, 94 Mass. App. Ct. 1
I I J• /
process, and the only claims that are resolvable through the administrative process
are claims against a depository institution for which the FDIC is receiver." American
Nat'I Ins. Co. v. Federal Deposit Ins. Corp., 642 F.3d 1137, 1142 (D.C. Cir. 2011).
This understanding of the scope of the word "claim" accords with the purposes of
FIRREA, which are "to ensure that the assets of a failed institution are distributed
fairly and promptly among those with valid claims against the institution, and to
expeditiously wind up the affairs of failed banks." McCarthy v. Federal Deposit Ins.
Corp., 348 F.3d 1075, 1079 (9th Cir. 2003), quoting Freeman v. Federal Deposit
Ins. Corp ., 56 F.3d 1394, 1401 (D.C. Cir. 1995). See Marquis v. Federal Deposit
Ins. Corp., 965 F.2d 1148, 1154 (1st Cir. 1992) ("FIRREA was designed to create
an efficient administrative protocol for processing claims against failed banks");
Rosa v. Resolution Trust Corp., 938 F.2d 383, 396 (3d Cir. 1991) (purpose of
FIRREA's administrative procedure is to "quickly and efficiently resolve claims
against a failed institution without resorting to litigation").
Courts have required the use of the administrative claims procedure for claims
against third-party banks that purchased the assets of the failed bank from the
FDIC as receiver and assumed its rights and/or liabilities from the FDIC - - the
purchasing bank in this case is JPMorgan Chase -- when those claims are
"functionally," if not "formally," against the failed bank. See, e.g., Tellado v .
IndyMac Mtge. Servs., 707 F.3d 275, 280- 281 (3d Cir. 2013); Benson v . JPMorgan
Chase Bank, N.A., 673 F.3d 1207, 1214 (9th Cir. 2012); Aber-Shukofsky v.
JPMorgan Chase & Co., 755 F. Supp. 2d 441, 448 (E.D.N.Y. 2010). In those cases,
the suit was functionally against the failed bank because the purchasing bank held,
at the time of the suit, the assets that the FIRREA claims process was designed to
distribute, and a contrary rule would allow plaintiffs to circumvent the required
process simply by naming the purchasing bank rather than the failed bank as the
defendant. See, e.g., American Nat'I Ins. Co., supra at 1144; Benson, supra at
1214. This was the case with the defendant bank in Demelo v. U.S. Bank Nat'I
Ass'n, 727 F.3d 117 (1st Cir. 2013), relied on by the defendants here. [Note 6]
Consistent with the purposes of the statute, though, in Demelo the United States
Court of Appeals for the First Circuit implied

Page 8
that the FIRREA bar applies only to holders of mortgages originally issued by the
failed bank when those mortgages were "acquired ... by way of the powers vested
in the FDIC under FIRREA." Id. at 124. See American First Fed., Inc. v. Lake Forest
Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir. 1999) ("[The bank], having
purchased the note from the [FDIC], stands in the shoes of the [FDIC] and acquires
its protected status under FIRREA"), In other circumstances, the assignee will have
whatever "successor liability" comes with the assigned mortgage. Demelo, supra.
This is the approach taken by the United States Court of Appeals for the Second
Circuit in Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905 (2d Cir. 2010). In
that case, a trust created by a bank, NextBank, purchased some assets from
NextBank before it failed. The trust then issued notes backed by proceeds from the
assets, which notes it subsequently sold. After NextBank failed, the FDIC and
various noteholders each claimed the right to certain proceeds -- the noteholders
under the notes, and the FDIC as receiver for the trust's creator. The trust
interpleaded the FDIC and the noteholders to resolve the dispute. Id. at 908-910.
The FDIC argued that the case was barred by FIRREA. Id. at 920. The Second
Circuit rejected this argument because, although it concluded the case involved
claims related to an "act or omission" of the FDIC, the claims at issue were only
against the solvent trust - - not against the failed bank or the FDIC as receiver.
Since such claims could not have been brought under the administrative
procedures of 12 U.S.C. § 1821(d), FIRREA did not bar them:
"This interpleader ... is not an administrative claim, nor could it have been one.
The noteholders are not creditors of NextBank, and they assert no claims against
either that failed institution or against the FDIC. They hold notes issued by the
trust, an independent and still solvent entity. Accordingly, since they assert no
claims against the FDIC as receiver for NextBank, they are not bound by the
jurisdictional limitations or other procedural requirements of§ 1821(d).
"While the plain language of ... § 1821(d)(13)(D)(ii)[] may initially appear helpful
to the FDIC's argument, closer examination reveals it to be irrelevant. Section
1821(d)(13)(D)(ii) states: '[e]xcept as otherwise provided in this subsection, no
court shall have jurisdiction over ... any claim relating to any act or omission of
[an] institution [in receivership] or the
[FDIC] as receiver.' Read out of context, this provision may seem to deprive courts
of jurisdiction over any claim involving the FDIC's 'act or omission,' even a claim
not directly against the FDIC. Such an interpretation would be erroneous. This
provision is not an isolated edict, but is part of FIRREA's statutory scheme, which
was intended to force plaintiffs with claims against failed depository institutions to
exhaust administrative remedies before coming to [F]ederal court. Carlyle Towers
[Condominium Ass'n, Inc. v. Federal Deposit Ins. Corp.], 170 F.3d [301,] 307 [(2d
Cir. 1999)]. Courts interpreting the broad language of§ 1821(d)(13)(D)(ii) have
universally concluded that this provision bars only claims that could be brought
under the administrative procedures of§ 1821(d), not any claim at all involving the
FDIC. See Auction Co. of Am. v. FDIC, 141 F.3d 1198, 1201 (D.C. Cir . 1998)
(holding that§ 1821[d][13][D][ii] grants the FDIC immunity only from claims that
can be brought through the administrative processes of§ 1821[d]); Hudson United
Bank v. Chase Manhattan Bank of Conn ., N.A., 43 F.3d 843, 849 (3d Cir. 1994)
('The purpose [of FIRREA] was not to immunize certain claims from review.'). We
agree with their conclusion. Accordingly, since the noteholders assert no claim
against either the FDIC or NextBank, and since they are not compelled to comply
with the administrative procedures of§ 1821(d), § 1821(d)(13)(D)(ii) [does not]
bar[] their claims .... "
Bank of N.Y., supra at 920-921.
We find that reading of FIRREA persuasive. And indeed, although the reasoning of
various courts in construing this provision of FIRREA varies, we are aware of no
case in which a court has held that FIRREA eliminates j urisdiction over a claim such
as this -- against a solvent third party that is not the failed bank, the FDIC, or a
successor that obtained assets of the failed bank from the FDIC -- for either money
damages that the third party will be required itself to pay, or for declaratory or
injunctive relief. [Note 7] Except to the extent, if any, that the plaintiffs seek
money damages from Washington Mutual, or arguably JPMorgan Chase
as the bank that assumed its rights and/or liabilities from the FDIC, then, we
conclude their claims are not barred by FIRREA. To the extent there exists any
dispute by the defendants about the ownership of the note or the mortgage on the
date Washington Mutual went into receivership --and we note that date of
preparation or recordation of a mortgage transfer does not necessarily indicate that
that is the date on which ownership of the mortgage was in fact transferred to a
purchaser -- the plaintiffs are entitled to further discovery on the matter.
The plaintiffs also argue that, even if the mortgage loan was owned by Washington
Mutual on the date of receivership or FIRREA otherwise applied, some or all of their
claims would survive because they do not fall within the language of the statute as
properly construed, in particular because declaratory judgments and affirmative
defenses do not fall under FIRREA's definition of "claim." See Bolduc v. Beal Bank,
SSB, 167 F.3d 667, 671-672 (1st Cir. 1999) (preemptive assertion of affirmative
defense to foreclosure action not barred by FIRREA). See also, e.g., Beaton v. Land
Court, 367 Mass . 385 , 392 (1975) (fraud is defense to foreclosure). In light of our
holding, and the fact that the motion judge was presented with the FIRREA
argument only at the hearing on the motions to dismiss, so that these issues were
Pc1q,~ 11
not fully briefed before the motions were initially decided, we think the prudent
course is to allow the Superior Court to address these issues on remand in the first
instance, should it become necessary. [Note 8]
The corrected judgment is reversed and the case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.
FOOTNOTES
.[Note l l Louisa H. Starkey .
.[Note 21 Of the WaMu Mortgage Pass Through Certificates Series 2006-ARl Trust .
.[Note 31 JPMorgan Chase Bank, N.A.; Chase Home Finance, LLC; Washington Mutual,
Inc.; Washington Mutual Bank, FA; Washington Mutual Mortgage Securities
Corporation; Washington Mutual Mortgage Service Corporation; and ATM Corporation.
[Note 4 l The plaintiffs also raise a constitutional argument that, in light of our
disposition of this case, it is unnecessary to address.
masscases.com/cases/app/94/94massappct1.html 10/11
[Note 5] We treat these entities as the same for simplicity.
[Note 61 We note that the record before us contains no evidence as to JPMorgan

Chase's assumption of Washington Mutual's or the FDIC's liabilities.
[Note 71 Our conclusion is not inconsistent with the recent decision in Willner v.
Dimon, 849 F.3d 93 (4th Cir. 2017), on which the defendants would rely, but which
they read for more than it is worth. Although the court in Willner held that the
language in 12 U.S.C. § 1821(d)(13)(D)(ii) is broad enough to encompass certain
claims brought against third parties (i.e., not the failed bank, the FDIC, or a successor
that obtained assets of the failed bank from the FDIC) based on the acts or omissions
of the failed bank or the FDIC, id . at 105, its holding was limited to claims that could
have been brought in an administrative proceeding under the statute and that, if found
meritorious, would have been paid by the FDIC, not the third party itself. Indeed, after
concluding that claims were not automatically excepted from the FIRREA bar because
brought against third parties, the court went on to say that, regardless of that
conclusion, "[c]ourts interpreting ... § 1821(d)(13)(D)(ii) have universally concluded
that [it] bars only claims that could be brought under the administrative procedures of
§ 1821(d)." Id. at 105-106, quoting Bank of N.Y., 607 F.3d at 921. The Willner court
then went on to assess whether claims against a solvent third party that had
purchased a mortgage prior to a failed bank's insolvency could be brought under that
procedure; the plaintiffs argued that the FDIC could not order a remedy against that
third party and that, therefore, the claims could not have been brought under the
FIRREA administrative procedure.
The court held that FIRREA applied, but only because the money damages claim was
"functionally" against the failed bank and "upon receiving a timely and meritorious
claim for damages, the FDIC can resolve it by making a payment to the claimant." Id.
at 108. It did not address whether a money-damages claim that would be paid by the
third party, not the FDIC, would be barred by the statute. Likewise, it explicitly
declined to determine whether the claims procedure could be used to issue a
declaratory judgment binding against the third party. Id. at 108-109.
[Note 8] The same course should be taken with respect to surviving claims, if any,
pressed by the plaintiffs for money damages against Washington Mutual or JPMorgan
Chase as purchaser of its assets from the FDIC.
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EXHIBIT
B
BARNSTABLE, ss. SUPERIOR COURT
CMLACTION
NO. 2009-00829
H. CHRISTOPHER STARKEY & another 1
DEUTSCHE BANK NATIONAL TRUST COMPANY2 & others 3
MEMORANDUM OF DECISION AND ORDER

ON DEFENDANTS' MOTIONS TO DISMISS
The plaintiffs, H. Christopher Starkey and Louisa A. Starkey ("the Starkeys"), are
homeowners who refinanced a $1,000,000 loan mortgaging their residence at 149 River Street,
South Yannouth, with loan originator Washington Mutual, Inc. ("WaMu") in 2006. The
mortgage was quickly packaged into a security sold to Deutsche Bank National Trust Company
("Deutsche Bank"). In the course of the subsequent economic crisis, WaMu was seized and
placed into the receivership of the Federal Deposit Insurance Corporation ("FDIC"), which sold
certain WaMu assets, including the Starkeys' loan, to JPMorgan Chase Bank, N.A. ("JPMC"), on
September 25, 2008. The plaintiffs thereafter fell behind on their mortgage payments and
initiated these proceedings challenging the validity of the mortgage and the note on several bases,
including failure to properly convey or assign the note, an action for rescission of the note under
G. L. c. 140D, common law fraud, breach of contract, violation of 12 U.S.C. § 2605(e)
1
Louisa A. Starkey
2
As trustee for WaMu Mortgage Pass Through Certificates Series 2006-ARI Trust
3
JPMorgan Chase Bank, N.A.; Chase Home Finance, LLC; Washington Mutual, Inc.; Washington Mutual Bank, FA;
Washington Mutual Mortgage Securities Corporation; Washington Mutual Mortgage Service Corporation
ADD-001
("RESP A"), fraud under G. L. c. 93A, and violation of the Borrower's Interest Act, G. L. c. 183,
§ 28C(a). Defendants Deutsche Bank, JPMC, Chase Home Finance, LLC ("Chase Home"),
Washington Mutual Mortgage Service Corporation ("WaMu Service") now move to dismiss the
entirety of the complaint for failure to state a claim under Massachusetts Rule of Civil Procedure
12(b)(6), as well as failure to exhaust administrative remedies against WaMu through the claims
processing regime set out by the Financial Institutions Reform, Recovery, and Enforcement Act
("FIRREA").
DISCUSSION
I. Standard of Review
When evaluating the sufficiency ofa complaint pursuant to Mass. R. Civ. P. 12(b)(6), the
court must accept as true the well pleaded factual allegations of the complaint, as well as any
reasonable inferences which can be drawn therefrom in the plaintiffs favor. Eyal v. Helen
Broadcasting Corp., 4 I I Mass. 426, 429 (1991 ). In order to survive such a motion, "a complaint
must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell At/. Corp. v. Twombly,
550 U.S. 544, 570 (2007). These factual allegations, taken as true, must be '"enough to raise a
right to relief above the speculative level"'. Iannacchino v. Ford Motor Co., 451 Mass. 623,636
(2008), quoting Twombly, 550 U.S. at 555. Therefore, "(w]hat is required at the pleading stage
are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief,
in order to reflect[] the threshold requirement ... that the plain statement possess enough heft to
sho[w] that the pleader is entitled to relief." Id., (internal quotations omitted). See Iqbal, 556
U.S. at 678 ("A claim has facial plausibility when the plaintiff pleads factual content that allows
ADD-002
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.").
II. Federal Claim Preclusion under FIRREA
In DeMelo v. U.S. Bank, the United States Court of Appeals for the First Circuit
considered the preclusion under the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989 ("FIRREA"), 12 U.S.C.A. § 1821(d)(3)-(13), of state-court actions by homeowners
against the bank that assumed the mortgage pursuant to an FDIC purchase and assumption
agreement after the originating bank was placed into receivership. 727 F.3d 117 (I" Cir. 2013).
Like the case at bar, the DeMelos sought to bring a claim under the Borrower's Interest Act,
claiming that the originating bank, "in making the loan, violated a state consumer protection
law." Id. at 121. The court held that FIRREA constituted a jurisdictional bar to the
consideration of the homeowners' state-court claims, where the claims processing regime set up
by FIRREA "is not optional: participation in its is mandatory for all parties asserting claims
against failed institutions" and "[t]he failure to pursue and administrative claim is fatal." Id. at
122 (internal citations and quotations omitted). Specifically, FIRREA precludes judicial review
of"'any claim relating to any act or omission of [the failed] institution"', such as the "consumer
protection claims aris[ing] out of and relat[ing] exclusively to pre-receivership acts or omissions
of the failed institution" under the Borrower's Interest Act. Id. at 122, quoting 12 U.S.C.A. §
1821 (d)(I 3)(D).
In the case at bar, the Starkeys bring seven causes of action against the defendants, six of
which clearly "arise out of and relate exclusively to pre-receivership acts or omissions" of
ADD-003
WaMu, the failed institution, or the FDIC. See id.
A. Count I
Count I alleges that the defendants, generally, do not have proper standing to enforce the
note against the Starkeys because the note was not properly conveyed or assigned. As with the
failed institution in DeMelo, "[t]he FDIC, as a matter of federal law, succeeded to the assets" of
WaMu as receiver, and "[a]cting in that capacity, the FDIC was empowered by federal law to
'transfer any asset or liability of [the failed bank] ... without any approval, assignment, or
consent with respect to such transfer."' See id. at 125, quoting 12 U.S.C.A. §
182l(d)(2)(G){i)(ll). Thus, the Starkeys' claim as to the validity of the conveyance or assignment
of note to the current holder necessarily arise from the actions or omission of either WaMu or the
FDIC, as WaMu's successor. For that reason, Count I falls within the FIRREA jurisdictional bar;
the defendants' Motions to Dismiss must be ALLOWED as to Count I.
B. Count II
Count II claims that the Starkeys have a right to rescind the note under G. L. c. 140D,
because WaMu failed to accurately disclose financing charges and give required consumer
information to the Starkeys (e.g. telephone notifications and various publications including the
Notice of Right to Cancel, the Truth in Lending Disclosure Statement, and the Consumer
Handbook on Adjustable Rate Mortgages). The Starkeys do not allege any conduct or omissions
by any party other than WaMu that forms the grounds for recision under c. 140D, and thus the
Starkeys are required to pursue this claim through the process set out in FIRREA. Accordingly,
the defendants' Motions to Dismiss must be ALLOWED as to Count II.
ADD-004
C. Count III
Count III sounds in common law fraud, resting on three types of misrepresentations,
First, the plaintiffs allege that the defendants, generally, failed to disclose material facts regarding
the loan transaction. The plaintiffs plead a multitude of facts regarding the acts and omissions of
WaMu that support the contention that the failed institution engaged in extensive fraud during
the origination of the loan. 4 However, the plaintiffs do not plead any facts relating to conduct by
Deutsche Bank, JPMC, Chase Home, or WaMu Service at any time thereafter; this aspect of the
fraud claim finds no support against any defendant except W aMu. Second, the plaintiffs allege
that the defendants misrepresented facts in the origination of the loan. Clearly, as WaMu was the
only defendant that was a party to the origination of the loan, this aspect of the plaintiffs' fraud
claim is also limited to the acts and omissions of WaMu.
Finally, the plaintiffs contend that the defendants created false records for the purposes of
deceiving the plaintiffs and the court. While this contention could be construed to refer to some
unspecified creation of false records by Deutsche Bank, JPMC, Chase Home, or WaMu Service
during the course of this litigation, such a contention is without any support in the pleadings. 5
4
These well pleaded facts include, inter alia, WaMu's fraudulent appraisal of the plaintiffs' home, WaMu's
securities fraud in the securitization of the plaintiffs' loan, WaMu's fraud in the inducement causing the plaintiffs to
enter into a unfavorable loan agreement, WaMu's misrepresentations that it was the 'ttue' lender when the real parties
in interest were other financial institutions involved in the securitization process, WaMu's failure to notify the
plaintiffs of transfer of the note for the purposes ofrecision notification, WaMu's breach of its fiduciary duty to the
plaintiffs, WaMu's falsification of the plaintiffs' income and home value to obtain approval for the loan, and
WaMu's receipt of undisclosed fees from intermediaries for sccuritization of the loan.
5
At hearing, the plaintiffs invoked the specter of the possible falsity of the FDIC--JPMC Purchase and Assumption
Agreement that the defendants included as an attachment to their Motion to Dismiss, providing this jurist with copies
of pleadings filed in wholy unrelated cases in other jurisdictions that contain passing references to a P&A Agreement
with a different number of pages than the one produced by the defendants in this case. The plaintiffs failed to
develop this implication of fraud on the court beyond vague references to the apparent inconsistency; until such time
as such a claim is fonnally lodged with this court, it will be disregarded as a red herring. Further, the specific tenns
ADD-005
Any claim for fraud must be pleaded with particularity under Massachusetts Rule of Civil
Procedure 9(b), which requires that the plaintiff identify specify the creator, time, place and
substance of the alleged false document or misrepresentation, as well as the particulars of the
plaintiffs' detrimental reliance on the falsehood. See, e.g., Guo v. Datavantage Corp., 2008 WL
660338, at *5 (D.Mass. 2008). In the absence of any pleaded facts identify misrepresentations or
false documentation produced any defendant, with the exception ofWaMu, this aspect of the
plaintiffs' fraud claim also falls wholly within the confines ofFIRREA's claims processing
scheme for claims arising from the acts of the failed institution. SeeDeMelo, 727 F.3d at 122.
Accordingly, the defendants' Motions to Dismiss must be ALLOWED as to Count III.
D. CouutIV
Count IV asserts that the plaintiffs had a right to rescission under the terms of the note
that extended for four years if there were specific violations ofG. L. c. 140D and related
provisions of the Code of Massachusetts Regulations by the originator. While the plaintiffs
assert that any defendant who currently holds the note is bound by the terms of the note,
including to respond to the plaintiffs' notification ofrescission, a breach can only be found where
the plaintiffs prevail on the merits of the underlying claim for violation of c. 140D, set out in
Count II. Thus, the breach of contract claim arises out of the acts or omissions of WaMu, and is
precluded by FIRREA for the same reasons discussed with respect to Count II. Id. For that
reason, the defendants' Motions to Dismiss must be ALLOWED with respect to Count IV.
of the P&A Agreement are irrelevant where the plaintiffs' claims against the defendants (with the exception of
WaMu) are entirely predicated on the fact that those defendants assumed the plaintiffs' loan from the FDIC after
WaMu failed, thus subjecting the plaintiffs to the strictures of the FIRREA-dictated claims process. See DeMelo,
727 F.3d at I 22.
ADD-006
D.CountVI
Corn1t VI also alleges fraud, this time under the auspices of the consumer protection
statute, G. L. c. 93A. The plaintiffs specifically claim that WaMu offered them a loan at a teaser
rate which is presumptively unfair, and further reallege "well over 50 violations" listed elsewhere
in the complaint. As discussed above with respect to Count III, the plaintiffs' common law fraud
claim, this court can only identify pleaded facts relating to the conduct ofWaMu at the time of
the loan origination that could support a claim of fraud-the plaintiffs fail to allege any facts
relating to fraud by the other defendants, let alone any sufficient to meet the heightened pleading
standard. Accordingly, the 93A claim is also limited solely to the acts and omission ofWaMu, a
failed institution, before it was placed into the receivership of the FDIC, and thus this claim is
precluded by the mandatory claims processing scheme set out in FIRREA. Id Thus, the
defendants' Motions to Dismiss must be ALLOWED with respect to Count VI.
E. CountVII
The plaintiffs' final claim is the one that tracks most closely with the facts in DeMelo,
violation of the Borrower's Interest Act, G. L. c. 183, §28C(a) by the originating bank. As
extensively discussed above and in DeMelo, this type of state consumer protection claim arising
solely from the acts or omissions of an originating bank, which thereafter fails, must be first filed
with the FDIC and subjected to the claims-processing regime set out in FIRREA. Id. at 121. The
plaintiffs' failure to exhaust such administrative remedy therefore precludes this claim, and the
defendants' Motions to Dismiss must be ALLOWED with respect to Count VII.
ADD-007
qualified written requests by borrowers: Section 2605(e) is titled "duty of loan servicer to
respond to borrower inquiries". Only JPMC was a servicer of the plaintiffs' loan at the time the
letters were sent; none of the other named defendants has duty to respond to the plaintiffs letters
under RESP A. Accordingly, the defendants' Motions to Dismiss must be ALLOWED with
respect to Count V for all defendants with the exception of JPMC.
ORDER
For the reasons stated herein, it is hereby ORDERED that JP Morgan Chase Bank,
N.A.'s Motion to Dismiss be DENIED as to Count V, but the defendants' Motions to Dismiss
be ALLOWED for all other claims.
September 4, 2014
A true copy, A~e~?. · ~~ 9

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Clwfl,,-t/J,<.,l 'clerk k
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ADD-008
EXHIBIT
C
7/17/2019 Mass Appellate Courts - Public Case Information
APPEALS COURT
Full Court Panel Case
Case Docket
H. CHRISTOPHER STARKEY & another vs. CHASE HOME FINANCE LLC & others
2016-P-1594
CASE HEADER
Case Status Closed: Rescript issued Status Date 01/25/2019
Nature Mortgage/foreclosure law Entry Date 11 /28/2016
Sub-Nature SJ Number
Appellant Plaintiff Case Type Civil
Brief Status Brief Due
Panel RU, LE, SH, JJ . Argued/Submitted 12/11/2017
Citation 94 Mass. App. Ct. 1 Decision Date 09/ 11/2018
Lower Court Barnstable Superior Court TC Number
Lower Ct Judge Christopher J. Muse, J. TC Entry Date 11/20/2009
FAR Number FAR-26395 SJC Number
INVOLVED PARTY ATTORNEY APPEARANCE

H. Christopher Starkey Glenn F. Russell, Jr., Esquire
Plaintiff/Appellant
Blue br, app & reply br filed
5 Exts, 130 Days
Louisa H. Starkey Glenn F. Russell, Jr., Esquire
Plaintiff
Chase Home Finance LLC Wayne E. George, Esquire

DefendanUAppellee Charles L. Solomont, Esquire
Red brief filed
1 Ext, 53 Days
Deutsche Bank National Trust Com Wayne E. George, Esquire

DefendanUAppellee Randall M. Levine, Pro Hae Vice Attorney
Red brief filed
1 Ext, 53 Days
JP Morgan Chase Bank NA Wayne E. George, Esquire

Red brief filed
1 Ext, 53 Days
Washington Bank FA
Defendant
Washington Mutual Inc
Defendant
Washington Mutual Mortgage Secur

Defendant
Washington Mutual Mortgage Servi Wayne E. George, Esquire
DefendanUAppellee
Red brief filed
1 Ext, 53 Days
DOCUMENTS
Appellant Starkey Brief Appellee Chase Home Finance LLC Others Brief
Starkey Reply Brief
www.ma-appellatecourts.org/display_ docket.php?src=party&dno=2016-P-1594&pf=y 1/3

DOCKET ENTRIES
Entry Date Paper Entry Text
11/28/2016 #1 Lower Court Assembly of the Record Package
11/28/2016 Notice of entry sent.
11/28/2016 #2 Civil Appeal Entry Form filed for H. Christopher Starkey by Attorney Glenn F. Russell.
12/01/2016 ORDER: Plaintiffs filed a notice of appeal on August 23, 2016, from the Superior Court's entry of
judgment on July 27, 2016, dismissing "all counts except Count V." The docket does not reflect entry
of separate and final judgment pursuant to Mass. R. Civ. P. 54(b). Accordingly, the appeal appears to
be premature. Therefore, on or before December 12, 2016, plaintiffs are to move for voluntary
dismissal of the appeal pursuant to Mass. R. App. 29(b), or to show cause, in writing, why jurisdiction
over this appeal is proper. Notice/attest
12/08/2016 #3 Joint response to order to show cause, filed by H. Christopher Starkey, Louisa H. Starkey, Chase
Home Finance LLC, Deutsche Bank National Trust Company, JP Morgan Chase Bank NA,
Washington Mutual Mortgage Service Corporation.
12/09/2016 RE#3:The parties are granted leave to file, and the trial court to consider, a motion under Mass. R. Civ.
P. 6(a) to correct a clerical mistake in the judgment. Status report due on or before December 30,
2016 concerning the trial court's disposition of said motion. *Notice/Attest.
12/30/2016 #4 Joint Status Report RE: Motion to Correct Clerical Mistake, filed by H. Christopher Starkey, Louisa H.
Starkey, Chase Home Finance LLC, Deutsche Bank National Trust Company, Washington Mutual
Mortgage Service Corporation .
01/04/2017 RE#4: Appellate proceedings STAYED to 02/04/2017. Status report due then as to 60(a) motion.
*Notice/Attest
02/02/2017 #5 Joint Status Report filed for H. Christopher Starkey, Louisa H. Starkey, Deutsche Bank National Trust
Company and JP Morgan Chase Bank NA by Attorney Wayne E. George and Attorney Glenn F.
Russell, Jr.
02/02/2017 RE#5: Stay vacated. Extension to 03/03/2017 granted for filing of brief and appendix of H. Christopher
Starkey, Plaintiff/Appellant. Notice to counsel.
03/01/2017 #6 Docketing Statement filed for H. Christopher Starkey and Louisa H. Starkey by Attorney Glenn F.
Russell, Jr..
03/01/2017 #7 Motion of Appellant to extend date for filing brief and appendix filed for H. Christopher Starkey by
Attorney Glenn F. Russell. Jr..
03/02/2017 RE#?: Allowed to 04/03/2017. Notice sent.
03/30/2017 #8 Motion of Appellant to extend date for filing brief and appendix filed for H. Christopher Starkey and
Louisa H. Starkey by Attorney Glenn F. Russell, Jr..
03/31/2017 RE#8: Allowed to 05/03/2017. Notice sent.
05/02/2017 #9 Motion of Appellant to extend date for filing brief and appendix filed for H. Christopher Starkey and
Louisa H. Starkey by Attorney Glenn F. Russell, Jr..
05/10/2017 #10 Appellant brief filed for H. Christopher Starkey and Louisa H. Starkey by Attorney Glenn F. Russell, Jr..
05/10/2017 #11 Appendix filed for H. Christopher Starkey and Louisa H. Starkey by Attorney Glenn F. Russell, Jr..
0§/2~ 17 #12 MOTION of Appellee to extend brief due date filed for Chase Home Finance LLC, Deutsche Bank
National Trust Company, JP Morgan Chase Bank NA and Washington Mutual Mortgage Securities
Corporation by Attorney Wayne E. George.
08/01/2017 #13 Appellee brief filed for Chase Home Finance LLC, Deutsche Bank National Trust Company, JP
Morgan Chase Bank NA, Washington Mutual Mortgage Service Corporation by Attorney Wayne E.
George.
08/08/2017 #14 Copy of updated docket sheets received from Barnstable Superior Court (received 2/8/17).
08/14/2017 #15 Motion of Appellant to extend date for filing Reply Brief filed for H. Christopher Starkey and Louisa H.
Starkey by Attorney Glenn F. Russell, Jr..
08/14/2017 RE#15: Allowed to 08/28/17. *Notice .
08/28/2017 #16 Reply brief filed for H. Christopher Starkey and Louisa H. Starkey by Attorney Glenn F. Russell, Jr..
10/11/2017 Notice sent seeking information on unavailability for oral argument in December 2017
10/13/2017 #17 Letter of Wayne E. George, Esquire unavailable for oral argument all date. Attorney Charles L.
Solomont expected to argue and is unavailable December 1st through 10th.
10/18/2017 #18 Motion for leave to enter the appearance of Charles L. Solomont filed for Deutsche Bank National
Trust Company and JP Morgan Chase Bank NA by Attorney Wayne E. George.
www.ma-appellatecourts.org/display_docket.php?src=party&dno=2016-P-1594&pf=y 2/3
DOCKET ENTRIES
10/18/2017 RE#18: Attorney Solomont's appearance is entered this date. *Notice.
10/27/2017 #19 Notice of 12/11/2017, 9:30 AM argument at John Adams Courthouse, Courtroom 4 (a4) sent.
10/30/2017 Letter from Glenn F. Russell, Jr. , Esquire re: will appear and argue on 12/11/2017.
11/10/2017 ORDER: It has come to the court's attention that pages RA 001-006 of the Appellant's Appendix are
missing. H. Christopher Starkey shall electronically re-file the Revised Appellant's Appendix containing
the missing pages or a letter stating that the pages were intentionally left out, on, or before
11/20/2017. Notice.
11/10/2017 ORDER: It has come to the court's attention that pages RA 056-066 of the Appellant's Appendix are
not high quality and are difficult to view. H. Christopher Starkey shall electronically re-file the
Appellant's Appendix containing more legible, higher quality production of those pages or a letter
stating that no better copy exists on, or before 11/20/2017. Notice.
11/14/2017 #20 MOTION to admit counsel pro hac vice filed for Deutsche Bank National Trust Company and JP
Morgan Chase Bank NA by Attorney Wayne E. George.
11/15/2017 RE#20: Allowed for this appeal only. *Notice.
11/20/2017 #21 Response to unclear copy order filed for H. Christopher Starkey and Louisa H. Starkey by Attorney
Glenn F. Russell, Jr..
11/20/2017 RE#21: Accepted. The court will substitute this document as a replacement for the previously filed
version . *Notice.
11/27/2017 Scheduling Update and Notice of Oral Argument Pilot Program sent.
11/29/2017 Charles L. Solomon!, Esquire re: (Telephone confirmation) will appear and argue on 12/11/2017.
11/29/2017 Randall M. Levine (0), Esquire re: (Telephone confirmation) will appear and argue on 12/11/2017.
12/11/2017 Oral argument held. (Rubin, J., Lemire, J., Shin, J.).
12/13/2017 #22 Letter pursuant to MRAP 16(1) filed for H. Christopher Starkey and Louisa H. Starkey by Attorney
Glenn F. Russell, Jr..
09/11/2018 #23 Decision: Full Opinion (Rubin, J.). The corrected judgment is reversed and the case is remanded for
further proceedings consistent with the opinion of the Appeals Court. *Notice.
09/25/2018 FAR-26395 opened on MOTION to file FAR application late filed for Deutsche Bank National Trust
Company, JP Morgan Chase Bank and Chase Home Finance by Attorney Mark Fleming.
09/25/2018 #24 PETITION for Rehearing filed for Chase Home Finance LLC, Deutsche Bank National Trust Company,
JP Morgan Chase Bank NA and Washington Mutual Mortgage Service Corporation by Attorney
Charles Solomon!.
10/18/2018 RE#24: Defendants-Appellees JPMorgan Chase Bank, N.A.and Deutsche Bank National Trust
Company, Acting Solely in its Capacity as Trustee for the WAMU Mortgage Pass-Through Certificates
Series 2006 AR1 Trust have filed a petition for rehearing "or, in the alternative, clarification of [this
court's] opinion of September 11, 2018 in the above captioned appeal." The premise of that motion is
that "[o]n Appeal, Appellants sought reversal only of the Trial Court's dismissal of Count I." Petition at
4. That premise is incorrect. See, e.g., Appellants' Brief at 38 ("Therefore, it was error for the Superior
Court Judge to dismiss Plaintiffs remaining claims solely on the basis of the holding in DeMelo ... ").
Although our opinion is clear, the motion is allowed to the extent it seeks clarification concerning the
scope of our judgment: We reversed the dismissal of counts 1, 2 , 3, 4, 6, and 7 and remanded the
case to the Superior Court for further proceedings consistent with our opinion. To the extent the
petition seeks rehearing it is denied. (Rubin, Lemire, Shin, JJ.) *Notice
01/24/2019 FAR DENIED (on 01/24/2019).
01/25/2019 RESCRIPT to Trial Court.
As of 03/07/2019 20:00
www.ma-appellatecourts.org/display_ docket.php?src=party&dno=2016-P-1594&pf=y 3/3

EXHIBIT
D
SUPREME JUDICIAL COURT

for the Commonwealth
Case Docket
H. CHRISTOPHER STARKEY & another vs. CHASE HOME FINANCE LLC & others
FAR-26395
CASE HEADER
Case Status FAR denied Status Date 01/24/2019
Nature Mortgage/foreclosure law Entry Date 09/25/2018
Appeals Ct Number 2016-P-1594 Response Date 12/13/2018
Appellant Plaintiff Appllcant
Citation 481 Mass. 1105 Case Type Civil
Full Ct Number TC Number 0972CV00829
Lower Court Barnstable Superior Court Lower Ct Judge Christopher J. Muse, J.
H. Christopher Starkey Glenn F. Russell, Jr., Esquire

Plaintiff/Appellant
Louisa H. Starkey Glenn F. Russell, Jr., Esquire
Plaintiff
Chase Home Finance LLC Wayne E. George, Esquire

DefendanUAppellee Charles L. Solomon!, Esquire
Mark C. Fleming, Esquire
Alan E. Schoenfeld, Pro Hae Vice Attorney
Albinas J. Prizgintas, Pro Hae Vice Attorney
Arpit K. Garg, Pro Hae Vice Attorney
Deutsche Bank National Trust Com Wayne E. George, Esquire

JP Morgan Chase Bank NA Wayne E. George, Esquire

Washington Bank FA Mark C. Fleming, Esquire

Defendant Alan E. Schoenfeld, Pro Hae Vice Attorney
Washington Mutual Inc Mark C. Fleming, Esquire

Washington Mutual Mortgage Secur Mark C. Fleming, Esquire

www.ma-appellatecourts.org/display_docket.php?dno=FAR-26395&pf=y 1/2
Washington Mutual Mortgage Servi Wayne E. George, Esquire

DefendanVAppellee Mark C . Fleming, Esquire
DOCKET ENTRIES
Entry Date Paper Entry Text
09/25/2018 Docket opened.
09/25/2018 #1 MOTION to Enlarge Time to file FAR application filed for Defendants-Applicants. (ALLOWED to
October 31, 2018)
10/30/2018 #2 Assented-to MOTION to Admit Pro Hae Vice filed for Chase Home Finance LLC, Deutsche Bank
National Trust Company, JP Morgan Chase Bank NA, Washington Bank FA, Washington Mutual Inc,
Washington Mutual Mortgage Securities Corporation and Washington Mutual Mortgage Service
Corporation by Attorney Mark Fleming. (ALLOWED)
10/31/2018 #5 FAR APPLICATION filed for Chase Home Finance LLC, Deutsche Bank National Trust Company, JP
Morgan Chase Bank NA, Washington Bank FA, Washington Mutual Inc, Washington Mutual Mortgage
Securities Corporation and Washington Mutual Mortgage Service Corporation by Attorney Mark
Fleming. (Notice sent)
11/05/2018 #6 MOTION to file Opposition Late filed for H. Christopher Starkey and Louisa H. Starkey by Attorney
Glenn F. Russell. (ALLOWED to December 13, 2018.)
12/13/2018 #7 OPPOSITION to FAR application filed for H. Christopher Starkey and Louisa H. Starkey by Attorney
Glenn F. Russell.
01/24/2019 #8 DENIAL of FAR application.
As of 02/08/2019 20:00
www.ma-appellatecourts.org/display _docket.php?dno=FAR-26395&pf=y 2/2

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COMMONWEALTH OF MASSACHUSETTS

BARN ST ABLE, ss SUPERIOR COURT DEPARTMENT

Christopher Starkey [posthumously] and Louisa Starkey, herein through counsel,

under the ruling by the Appeals Court.

issues remained as to the Defendants claim that Plaintiffs' "loan, note/mortgage"

outcome determinative] component as to a number of issues in this matter, 2 Unlike

also extended to all other remaining claims within the complaint.

Defendants' Motion fails to articulate or even discuss, in any detailed manner or

court lacked subject matter jurisdiction as it was "preempted" by FIRREA 's

loan was "quickly packaged and sold to Deutsche Bank in 2006".

dismissal on the basis of FIRREA is clearly erroneous, [compare Exhibit B attached

acquired by Deutsche Bank as Trustee in 2006.

At the initial status conference in this matter at Clerk Nickerson's Office, an

issue, namely the determination as to the foundational basis of Defendants' stated

Plaintiffs respectfully request that Defendants Motion be Denied.

I. LEGAL STANDARD UNDER INSTRUCTIONS FROM THE APPEALS

Understandably, Defendants fail to discuss the actual holding of the Appeals

Indeed, see the Appeals Court Opinion;

appropriate R. 56 standard, de novo, and then conducted an examination as to whether the

"On appeal, we therefore do the same. Our review is de novo. Bulwer v.

evidenced by the Panel 's finding below:

"As our description of the proceedings below suggests, there is, at

on these disputed issues:

Opinion". Respectfully submitted, such consistency demands inquiry as to the

Defendants inconsistent stated claims of ownership of Plaintiffs' mortgage loan, which

A. Defendants Claims In Defense Centered on Their Position That The

with, [please also compare n. 4 of Plaintiffs' Memorandum at p. 4; with Judge Muse's

bottom line findings for each Count at Exhibit B attached hereto.]

Plaintiffs direct this Court to the Appeals Court ruling at p. 4

[after failing on their R. 56 Motion], Defendants now seek to return this to an

examination to the 12(c)-standard involving the pleadings alone. Suddenly, Defendant

stand, as it is in contravention and inconsistent with Appeals Court's de novo findings

However, most importantly, and understandably, Defendants do not discuss the

jurisdiction in this matter. 7 8

of Plaintiffs' claims regarding the conundrum of such divergent positions advanced

entertain the remaining claim within the Plaintiffs' complaint as well.

B. The Appeals Court Panel Clearly Allowed Plaintiffs To Conduct

The entirety of Defendants' Motion is solely focused on the incorrect

counts in the complaint on a different claim.

Unfortunately for Defendant, while a clever attempt to change the trajectory of

C. Plaintiffs Were Never Provided Any Opportunity To Fully Brief The

finding that Plaintiffs would be precluded under FIRREA's Jurisdictional scheme.

constitutional deprivation as a result of blanket application of the FIRREA jurisdictional

bar to mortgagor borrowers 9 •

complaint. Such determination of subject matter jurisdiction has to be made as a

condition precedent, in order to even reach Defendants conflicting claims of ownership of

Plaintiffs' mortgage loan.

MORGAN, LEWIS BOCKIUS, LLP

H. CHRISTOPHER STARKEY & another

94 Mass. App. Ct. 1

Present: Rubin, Lemire, & Shin, JJ.

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

masscases.com/cases/app/94/94massappct1 .html 1/1 1

RUBIN, J. The plaintiffs, H. Christopher Starkey and Louisa H. Starkey, entered

The defendants filed motions to dismiss in January, 2010. In their memoranda in

Analysis. On September 25, 2008, Washington Mutual Bank, formerly Washington

"Except as provided in this subsection, no court shall have jurisdiction over--

masscases.com/cases/app/94/94massappct1 .html 3/11

Although the memoranda in support of the defendants' motions to dismiss, filed by

masscases.com/cases/app/94/94massappct1 .html 4/11

memorandum a copy of the "Pooling and Servicing Agreement" (PSA), an

masscases.com/cases/app/94/94massappct1 .html 5/11

On appeal, we therefore do the same. Our review is de novo. Bulwer v. Mount