2017 Mass. App. Div. 189

October 20, 2017 - December 18, 2017

Appellate Division Northern District

Court Below: District Court, Lynn Division

Present: Coven, P.J., Crane & Nestor, JJ.

Joseph S. Provanzano and Kenneth A. Swartz for plaintiff.

Stephen E. Kiley for the defendant.

CRANE, J. This is an appeal from a trial court ruling that the proceeds of a voluntary sale of real estate that was attached are protected from being seized to satisfy any judgment until one year after the sale because of a homestead exemption. We dismiss because the appeal is moot.

Chris W. Henderson ("Henderson") obtained a prejudgment attachment on registered land owned by Neal Dubrow ("Dubrow") in Marblehead. He caused the sheriff to record it on March 18, 2015. There is no dispute that this was Dubrow's primary residence and that it was subject to a declaration of homestead.

On April 1, 2015, the parties entered into an agreement for judgment for Henderson in the amount of $14,855.00. It was filed in the same court where Henderson obtained the attachment. However, Henderson never requested or obtained an execution. Consequently, Henderson never levied on the attachment or took any other action to seize or sell Dubrow's residence to satisfy the judgment.

In October, 2016, Dubrow made a voluntary sale of his residence for a sale price of $505,000.00. After paying off various obligations and creditors other than Henderson,

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Dubrow realized enough net proceeds to satisfy the judgment in full. Instead of paying Henderson, funds were withheld from the closing and held by an escrow agent in an arrangement that was not disclosed in the record. However, at argument, the parties informed this Division that any funds that were withheld had been delivered to Dubrow. Following argument, counsel for Henderson notified this Division that upon further inquiry, he had determined that no distribution had been made to Dubrow and that the escrow agent still held the funds. Counsel for Henderson also informed this Division that on October 26, 2017, a court approved an attachment on trustee process in the amount of $30,000.00 on any funds of Dubrow held by the same escrow agent.

On January 12, 2017, the trial court that had granted the original real estate attachment and entered the agreement for judgment conducted a hearing on Dubrow's motion "for court order invalidating writ of attachment and protecting sale proceeds." After hearing, the trial court ruled, "This Court has not received any evidence . . . that the Defendant [Dubrow] has purchased a subsequent primary residence nor has a year passed since the date of sale. Until such, the proceeds are not subject to the Plaintiff's [Henderson's] Attachment and remain protected." It also ruled that the homestead exemption applied to the equity in the property.

Henderson contends that the trial court erred by (1) finding that the sale proceeds were protected without any evidence that Dubrow was within the period of protection afforded by the statute; (2) that the estate of homestead protects only the value of the property, not the net equity; (3) by voluntarily agreeing to the original writ of attachment, Dubrow either waived any homestead exemption or made it subordinate to the attachment; and (4) that Dubrow brought his motion to invalidate the writ of attachment and to protect the sale proceeds late.

The pertinent provisions of G.L. c. 188, ยง 11 are:

"(a) If a home that is subject to an estate of homestead is sold, whether voluntarily or involuntarily, . . . then the proceeds received on account of any such sale, taking, or damage shall be entitled to the protection of this chapter during the following periods:

"(1) in the event of a sale, whether voluntary or involuntary, or a taking, for a period ending on the date on which the person benefited by the homestead either acquires another home the person intends to occupy as a principal residence or 1 year after the date on which the sale or taking occurred, whichever occurs first; . . . ."

Where the extended year of protection under the homestead exemption has expired and an escrow agent holds funds from the sale subject to any attachment, there is no longer any controversy between the parties and the appeal is moot.

When a matter is moot, we may exercise our discretion to address issues raised that are of significant public importance that are capable of repetition and will evade review. Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).

The parties do not urge us to exercise our discretion to reach the issue presented by this appeal. Furthermore, we would decline to do so if requested, because there is no reason to expect that the issues presented will evade review when an actual controversy exists. Commissioner of Correction v. Ferguson, 383 Mass. 651, 653-654

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(1981). There will be ample opportunity for these issues to be addressed between parties when an actual controversy exists between them.

Appeal dismissed as moot.


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