Home Wilmington Trust, National Association not in Its individual capacity, but solely as Trustee for MFRA Trust 2015-1, Plaintiff v. Deborah A. Breen and Charles K. Macneil, Defendants


January 29, 2020

Housing Court, Southeast Division



This is a summary process action brought to recover possession of the subject premises located at 87 Plymouth Street, Pembroke, Massachusetts ("Premises"). The parties appeared on January 6, 2020 for the scheduled trial, Plaintiff represented by Counsel and Defendants, having filed an answer, appearing pro se.

After hearing testimony, reviewing the evidence submitted by the parties and drawing reasonable inferences therefrom the Court finds the following;

1. That the Plaintiff is the current owner of the premises via a foreclosure deed recorded on September 4, 2019 in the Plymouth County Registry of Deeds at Book 51596 Page 113.

2. That the Plaintiff submitted attested copies of the recorded documents related to the foreclosure. I find the documents submitted to be legally sufficient to demonstrate the Plaintiff's ownership of the premises.

3. That the Defendants are the former owners of the premises who have held over and remain in possession of the premises as tenants at sufferance.

4. That on November 16, 2019 the Plaintiff served and the Defendants each received a 72 Hour Notice to Quit. I find these notices to be legally sufficient for their intended purposes.

5. That on December 14, 2019 the Plaintiff served and the Defendants each received a Summary Notice Summons and Complaint.

6. The Plaintiff is not seeking use and occupancy from the Defendants.

7. The Defendants filed an answer and counterclaim against the Plaintiff seeking $4,000.00 in damages based upon the Plaintiff's failure to modify their mortgage.

8. That the Plaintiff has met the burden of demonstrating a prima facie case of its superior right to possession.

9. In their answer the Defendants claim that they were not notified properly of this action. Based upon my review and the Defendants testimony I find notice was adequate and proper.

10. With respect to the Defendants' counterclaims, they seem to revolve around the denial of a loan modification with the Plaintiff. The denial of a loan modification in and of itself does not serve as the basis for a counterclaim without other supporting information indicating unfair or deceptive behavior by the Plaintiff. Defendants presented no evidence to fully explain or support their assertion of that type of behavior by the Plaintiff. I find for the Plaintiff on the counterclaim of the Defendants.

11. Both the Defendants stated that they are over the age of 65 and have chronic illnesses involving COPD and Diabetes respectively. I find the testimony of the Defendants to be credible on this issue.


M.G.L. c. 239, §9 states in relevant part:

"In an action of summary process to recover possession of premises occupied for dwelling purposes . . . where a tenancy has been terminated without fault of the tenant, either by operation of law or by act of the landlord, . . . a stay or stays of judgment and execution may be granted, as hereinafter provided, for a period not exceeding six months or for periods not exceeding six months in the aggregate, or, for a period not exceeding twelve months or for periods not exceeding twelve months in the aggregate in the case of premises occupied by a handicapped person or an individual sixty years of age or older, as the court may deem just and reasonable...."

M.G.L. c. 239, §10 states in relevant part:

"Upon application for such a stay of proceedings, the court shall hear the parties, and if upon the hearing it appears that the premises of which possession is sought to be recovered are used for dwelling purposes; that the applicant cannot secure suitable premises for herself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by her are situated; that she has used due and reasonable effort to secure such other premises; that her application is made in good faith and that she will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted, the court may grant a stay as provided in the preceding section, on condition that the terms upon which such stay is granted be complied with."

The Defendants, due to their ages and respective infirmities, have requested the Court additional time to move pursuant to M.G.L. c. 239, §§9 and 10. Based upon the information provided, the Court shall stay issuance of the execution until March 30, 2020 and allow the Defendants to move on or before March 30, 2020 pursuant to M.G.L. c. 239, §9, strictly conditioned on the following terms and conditions as follows: 1) the Defendants shall suffer no waste to the Premises; 2) Delivery of the keys to the Premises, to the Plaintiffs when they vacate; 3) Further, the Defendants shall permit the Plaintiffs, their agents, employees and contractors, access, upon 24 hours' notice for the purposes of inspection, showings to potential purchasers and/or tenants, and for repair upon reasonable notice.

The Plaintiff presented no information concerning the use and occupancy value of the premises and as such it is deemed waived without prejudice.

If the Defendants fail to comply with the aforementioned conditions, the Plaintiff may by motion, request that the execution issue prior to March 30, 2020.

Order and Entry of Judgment. For the above-stated reasons after taking all evidence into consideration and drawing reasonable infrences therefrom;

1. Judgment shall enter for the Plaintiff for possession of the subject premises and the costs related to the prosecution of this matter.

2. Judgment shall enter for the Plaintiff on the Counterclaim of the Defendants

3. Execution issuance shall be stayed until March 30, 2020 in accordance with the terms designated above

4. If Defendants should fail or refuse to comply with the above terms then the Plaintiff may petiton by motion for the immediate issuance of the execution.