FRED PETTI vs. JOHN L. PUTIGNANO & others [Note 1] (and a companion case [Note 2]).

PERRETTA, J. Fred Petti (plaintiff) holds a second mortgage with a statutory power of sale that the defendants have given him on property in Avon. He commenced an action in the Superior Court pursuant to St. 1943, c. 57, as amended through St. 1959, c. 105, seeking authorization to foreclose the mortgage. Notice issued to the defendants and to "all persons entitled to the benefit of the Soldiers' and Sailors' Civil Relief Act of 1940 as amended" (50 U.S.C. App. Section 501 [1976]). The defendants then filed a complaint seeking to enjoin the foreclosure and

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asserting that there had been no breach of any of the conditions of the mortgage. See Beaton v. Land Court, 367 Mass. 385 , 392-393 (1975). The trial judge consolidated the two actions for trial, at the conclusion of which he made two findings, identical as to each action: the plaintiff is the holder of a mortgage from the defendants, and the defendants are not responsible for any substantial breach of a material condition of the mortgage. He entered judgments for the defendants in both actions, and the plaintiff appealed; we reverse the judgments.

The findings made by the trial judge do not comport with Mass.R.Civ.P. 52(a), 365 Mass. 816 -817 (1974); however, we decline to remand these matters for further findings. Compare Levine v. Amber Mfg. Corp., 6 Mass. App. Ct. 840 (1978), with George v. Quincy Co-op. Bank, 5 Mass. App. Ct. 771 (1977). We have before us the mortgage note, the second mortgage, checks drawn in payment of that mortgage, and the transcript of testimony. Although we do not pass on the credibility of any of the witnesses (Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246 , 254 [1972]; Albano v. Jordan Marsh Co., 2 Mass. App. Ct. 304 , 311 [1974]), it is apparent from the documentary evidence and the undisputed portions of the testimony that the judge's findings are clearly erroneous.

In 1970 the defendants' father purchased the plaintiff's property by giving him a ten-year note which was secured by a mortgage on the property. The note, dated May 14, 1970, was in the approximate amount of $117,000 and provided for monthly payments by the fourteenth day of each month. The note also specified that: "Should default be made in the payment of interest or principal when due, for more than (30) days . . . the whole sum of principal and interest then remaining unpaid shall become immediately due, without notice at the option of the holder." In 1974 the plaintiff, at the request of the father, "lifted" his mortgage on the property so that the father could obtain a loan from the Randolph Savings Bank, which required mortgage priority as a condition of its loan. [Note 3] Other transactions

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concerning these mortgages subsequently occurred, but they are not here material. In 1976 the father conveyed the property to the defendants, subject to the mortgage held by the Randolph Savings Bank. The defendants then gave the plaintiff a second mortgage which stated it was "to secure the payment of note dated May 14, 1970." The plaintiff asserts that the defendants have not made timely payments on this note, and, therefore, that they have defaulted on a condition of the second mortgage. [Note 4]

The second mortgage, just as the note which it secured, required monthly payments to be made by the fourteenth day of each month. This mortgage was signed on October 19, 1976, and the first payment was due on November 14, 1976; the note, which was made a part of the second mortgage by reference, provided for a thirty-day grace period. The record indicates that the defendants made this first payment after the fourteenth day of November but during the grace period; all other payments before the commencement of foreclosure proceedings on May 19, 1977, were made after the expiration of the grace period. [Note 5]

The second mortgage provides that: "This mortgage is upon the statutory condition, and upon the further condition that all covenants and agreements of the Mortgagor contained herein and in the Note shall be kept and fully

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performed, for any breach of which the mortgagee shall have the Statutory Power of Sale." The defendants were in default on May 19, 1977, when the plaintiff elected to exercise his statutory power of sale pursuant to G. L. c. 183, Section 21. They take the position, however, that by the time of trial of these actions in August of 1977 they were current in their payments, having paid through July, and August not yet due. In Wilshire Enterprises, Inc. v. Taunton Pearl Works. Inc., 356 Mass. 675 , 678 (1970), it was held that "[p]ayment of the overdue instalment prior to the time the option [to accelerate the note] is exercised removes the conditions upon which the exercise may be based." Here the breach (see note 4, supra) had not been cured when the plaintiff exercised his option to accelerate the note by commencing foreclosure proceedings. Strong v. Stoneham Co-op. Bank, 357 Mass. 662 , 667 (1970). The facts that the defendants thereafter tendered and the plaintiff accepted the arrearages do not constitute a waiver or abdication by the plaintiff of his right to continue with foreclosure, 4 American Law of Property Section 16.193, at 463-464 (Casner ed. 1952), and it was error to declare that he has no such right.

After commencing foreclosure proceedings, the plaintiff's attorney filed a proper military affidavit stating that the defendants were not in the military service and listing their Massachusetts residences. The clerk subsequently entered an interlocutory decree taking the complaint for confessed as to each defendant. Mass.R.Civ.P. 55(a), 55(b) (4), 365 Mass. 822 -823 (1974). The defendants have never asserted that they are entitled to benefits under the Soldiers' and Sailors' Civil Relief Act. Consequently, there was nothing left for the trial judge to do in that action but authorize the plaintiff to foreclose the mortgage (see Beaton, supra at 390-391; Boston Five Cents Sav. Bank v. Johnson, 3 Mass. App. Ct. 790 [1975]), and the findings and judgment in that action are clearly erroneous.

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Both judgments are reversed. In the first action judgment is to be entered authorizing the plaintiff to exercise his statutory power of sale; in the cross action judgment is to be entered dismissing the action, without prejudice to the right of the defendants to redeem the premises from the second mortgage at any time prior to a foreclosure sale as defined in Outpost Cafe, Inc. v. Fairhaven Sav. Bank, 3 Mass. App. Ct. 1 (1975).

So ordered.