MARIA BRANDAO BARBOSA v. ANNA M. BRANDO HUNT [Note 1] and another [Note 2]

FINNERTY, J. In this appeal by the holder of a promissory note against the makers of the note, we review the decision of the trial court after a bench trial for any error of law, findings that are clearly erroneous, or abuse of discretion, all of which the plaintiff-appellant, Maria Brandao Barbosa ("Maria") claims.

Anna M. Brando Hunt and Harry J. Hunt (the "Hunts") gave Maria a notarized promissory note on May 11, 1996 by which they promised to pay Maria $10,000 in monthly installments until the debt was paid in full. Simple arithmetic shows that payment in full would have been expected to be made after fifty payments or by July 11, 2000. The note did not provide for interest; nor was there an acceleration clause. The complaint was filed on October 31, 2016. Among other defenses, the Hunts pleaded that the suit was time barred under the applicable statute of limitations. After judgment, Maria's motions to amend judgment and to amend findings were denied.

At trial, Americo Barbosa ("Americo"), for whom Maria worked as his housekeeper, testified that he kept a receipt book of all installment payments received by him for Maria. The receipts he submitted did not amount to the total amount of the promissory note. The receipt book was admitted as an exhibit at trial and shows total payments of $2,600, the last being on May 31, 1997. Maria testified in rebuttal, but only with respect to a conversation defense witness Dennis Brandao said he had with Maria. Her testimony did not go to her claims against the Hunts, and she offered no testimony as to payments made or not made on the note. The Hunts did not testify.

When all was said and done, the trial court had as exhibits the note, the receipt book kept by Americo, a quit claim deed to real estate from Maria to the Hunts dated and recorded on April 30, 1996, and a stipulation regarding the execution of the note and a written demand for payment having been made on June 10, 2016. The court

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also had Americo's testimony that every payment he received from the Hunts on account was recorded in his receipt book.

The court did not credit Americo's testimony that he was with Maria at all times after the note was signed; nor did it credit his testimony that he recorded every payment made by the Hunts on the note. In support of those findings, the court had evidence that the receipt book maintained by Americo had eight receipts, five of which were unsigned, and that three receipts were missing from the receipt book without explanation. Americo testified that he did not know if the plaintiff had been paid directly. No witness testified as to the balance owed on the note, and the court did not find credible evidence that the Hunts defaulted on the note. The trial judge found that Maria had not proved default on the note and awarded judgment to the Hunts.

Maria contends that because Americo's receipt book was admitted into evidence, and because he testified that he recorded every payment made on the note, Maria should prevail. As noted, our review of the record reveals the holes in his testimony upon which the trial court based its findings of fact and determination of credibility as to that witness. We are bound by the findings of fact of the trial judge if they are supported by the evidence and the reasonable conclusions to be drawn therefrom. Credibility of the witnesses is exclusively for the trial judge. Jancsy v. Hy-Land Realty, Inc., 58 Mass. App. Dec. 152, 157 (1976). An appellate court will set aside findings only if they are unsupported by the trial evidence or tainted by error of law. Such findings must be clearly erroneous and regard must be given to the opportunity of the trial judge to judge the credibility of the witnesses. Mass. R. Civ. P. 52(c). So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it. Advanced Spine Ctrs., Inc. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2012 Mass. App. Div. 117, 118. "Findings are clearly erroneous when, 'although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' The judge, with a 'firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence. . . .' 'If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous'" (citations omitted). LFS Group, Inc. v. Gutzler, 2011 Mass. App. Div. 83, 87 n.7.

With the exception of whether a default had occurred and the date of that default (see note 9, infra), we do not find clear error in the trial court's findings of fact.

Although we accept the court's findings of fact here as they are supported by the trial evidence, we also review the judgment for any error of law.

A promissory note properly received in evidence makes out a prima facie case for the plaintiff holder of the note. McDuffee v. Kelsey, 312 Mass. 458, 460 (1942). See also R.W. Bishop, Prima Facie Case § 14.9, at 431 (5th ed. 2005); G.L. c. 106, § 3-413. Here, the note was in evidence, and the uncredited testimony of Americo did not add to, or subtract from, that prima facie proof. Where, as here, the suit was against the maker(s) of the note, Maria was not required to prove presentment and demand. Rockland Trust Co. v. South Shore Nat'l Bank, 366 Mass. 74 (1974). The burden of

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proving payment of the note is upon the defendant. Pabujian v. Pabujian, 266 Mass. 403 (1929); R.W. Bishop, supra at § 14.26, at 459. Although the Hunts did not testify, the evidence before the court showed payments totaling $2,600, leaving a balance of $7,400 due on the note as of May 31, 1997. The Hunts have not proved any other payments.

Because we find that the plaintiff has made out a prima facie case that was not rebutted by the defendants, we must consider the Hunts' argument that the suit was barred by the applicable statute of limitations. The trial judge did not find that a default had been proved or when it had occurred if it did, and therefore did not reach the question of when the cause of action accrued.

An action to enforce a promissory note payable at a definite time must be commenced within six years after the due date or dates stated in the note. G.L. c. 106, § 3-118(a). If an obligation is payable in installments, the statute of limitations begins to run against recovery of each installment from the time it becomes due. Clark v. Trumbull, 44 Mass. App. Ct. 438 (1998); 22 Williston on Contracts, § 60:61 (4th ed.). Prior to February 12, 1998 when G.L. c. 106, § 3-118 was enacted, the applicable statute of limitations on a note under seal was twenty years pursuant to G.L. c. 260, § 1. Upon the effective date of § 3-118, the statute of limitations applicable to actions to enforce a promissory note was made six years from the date of accrual of the cause of action. The statute also provides that if no demand has been made, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years. The "new" statute of limitations does not apply to any causes of action that have accrued before the effective date. Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 476 (2013).

At best then for Maria on her claims, the installment payments due for June, 1997 through May, 1998 (twelve months at $200 each, or $2,400) [Note 5] were within the twenty-years' limitation at the time she filed her complaint. [Note 6] Installments due after that date would be subject to the six-year statute of limitations, as well as to the additional

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limitation of ten years if payments of "neither principal nor interest on the note has been paid for a continuous period of 10 years." G.L. c. 106, § 3-118(b). [Note 7]

Presentment and demand is not required against the maker of the note. Rockland Trust Co., supra, so the demand made on June 10, 2016 was not necessary, and was in any event far too late to avoid the limitations prescribed by G.L. c. 106, § 3-118.

For all of the foregoing reasons, the matter is returned to the trial court for entry of judgment in favor of the plaintiff against the defendants, jointly and severally, in the amount of $2,400, [Note 8] plus prejudgment interest at the rate of twelve percent per annum from June 12, 1997, the date of default on the installment that was due on June 11, 1997. [Note 9]

We decline to award appellate costs.