MISC 330244

February 27, 2009

Sands, J.


Plaintiff filed its Verified Complaint on October 3, 2006, seeking a declaratory judgment, pursuant to G. L. c. 231A, to reform a mortgage given by Defendant Richard Vining (“Vining”) to Plaintiff, by adding Defendant Nissa D. Giberson (“Giberson”) as a mortgagor. [Note 1] On the same day Plaintiff filed a Motion for Approval of Memorandum of Lis Pendens, which this court allowed at a hearing on October 13, 2006, at which neither Giberson nor Vining appeared. Vining and Giberson were defaulted on November 24, 2006 pursuant to Mass. R. Civ. P. 55(a). A case management conference was held on December 27, 2006, which Giberson attended but at which Vining did not appear. Giberson filed an Answer on March 30, 2007. [Note 2]

Plaintiff filed its Motion for Summary Judgment on November 9, 2007, together with supporting memorandum, Concise Statement of Undisputed Material Facts, Appendix, and Affidavits of Giles L. Krill, Esq., David Hadlock, Esq., and Stacey Lynn Brown, Esq. On December 18, 2007, Giberson filed her Opposition, together with supporting memorandum, and Affidavit of Nissa D. Giberson. On January 25, 2008, Plaintiff filed a Reply Memorandum, together with Affidavit of Frank Mercado, Jr. (a vice-president of Plaintiff), and Motion to Strike Certain Affidavit and Deposition Testimony of Giberson. This court held a hearing on all motions on February 6, 2008. A Decision of today’s date has been issued.

In accordance with that Decision it is:

ORDERED and ADJUDGED that the record indicates a mutual mistake in that the Mortgages [Note 3] fail to reflect the true intent of both parties and, as such, the Mortgages are reformed so as to name Giberson as a mortgagor, nunc pro tunc, to the date and time of recording of the Mortgages. Giberson’s interest in property located at 51 Elmwood Avenue, West Springfield, MA (“Locus”) is subject to the Mortgages as if she had been named therein, and had executed the Mortgages as a co-mortgagor at the time of the execution and delivery of the Mortgages. ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)


[Note 1] Plaintiff filed an Amended Substitute Complaint on August 21, 2007, and August 24, 2007 (corrected version), adding a count to reform the Second Mortgage, as hereinafter defined.

[Note 2] Giberson filed an Answer to the Amended Substitute Complaint on September 21, 2007.

[Note 3] To purchase Locus, Vining applied for two mortgages from Plaintiff in the amounts of $116,800 and $29,200. The first purchase-money mortgage covering Locus, which was recorded with the Hampden County Registry of Deeds (the “Registry”) on August 19, 2003, at Book 13499, Page 291, and the underlying note for $116,800 secured by the above-referenced mortgage, both dated August 18, 2003, referenced as mortgagor, and were executed only by, Vining (“First Mortgage”). A corrective mortgage, also dated August 18, 2003, and securing the first note, which incorporated missing riders, referenced as mortgagor, and was executed only by, Vining, was recorded with the Registry on August 28, 2003, at Book 13529, Page 477 (“Corrective Mortgage”). The second purchase-money mortgage dated August 18, 2003, securing a note in the principal amount of $29,200, both of which were also executed only by Vining, was recorded with the Registry on August 19, 2003, at Book 13499, Page 307 (“Second Mortgage”). The First Mortgage and the Second Mortgage, in addition to the Corrective Mortgage, are referred to collectively as the “Mortgages.”