PAUL NORTON, as Executor of the ESTATE OF RICHARD McDONALD v. BARON K. JOSEPH, as Trustee of the CHERRY TREE REALTY TRUST

This action was commenced by plaintiff, Paul Norton, as Executor of the Estate of Richard McDonald, on March 17, 2008, seeking to reform a mortgage to include a power of sale and seeking also a declaratory judgment that the mortgage is in default and that he, as current holder of the mortgage, has the power to conduct a foreclosure sale. The mortgage encumbers real property known and numbered as 8 McLean Drive in Scituate. Defendant Baron K. Joseph, as Trustee of the Cherry Tree Realty Trust, is current owner of the subject property.

The parties have previously been involved in litigation in this Court relating to issues arising out of this mortgage. In Land Court Miscellaneous Case No. 299191, Mr. Joseph, plaintiff in that action, sought to remove the encumbrance by having the mortgage invalidated. On July 27, 2006, the Court (Trombly, J.) issued a decision and judgment ruling that the mortgage was valid. The Appeals Court later affirmed.

On October 20, 2008, in the present action, plaintiff filed a motion for summary judgment. On November 17, 2008, defendant filed an opposition to the plaintiff’s motion. Plaintiff filed an amended appendix to his motion on December 10, 2008, containing a copy of the back of the mortgage document as well as a reply brief to defendant’s opposition. The motion was argued before the Court on January 6, 2009, and taken under advisement.

After consideration of all of the evidence, the Court entered a decision today, ruling that the Mortgage is in default but that it does not contain a power of sale clause and should not be reformed to contain such a clause.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the plaintiff’s motion for summary judgment is ALLOWED IN PART and DENIED IN PART; and it is further

ADJUDGED and ORDERED that the Mortgage encumbering the parcel of land known and numbered as 8 McLean Drive in Scituate, registered as Document No. 415524 and noted on Certificate of Title No. 68141 issued from the Plymouth Registry District of the Land Court, is in default; and it is further

ADJUDGED and ORDERED that the aforementioned mortgage does not contain a power authorizing the mortgagee to foreclose by exercise of a power of sale, nor shall that mortgage be reformed to insert such a power.

By the Court (Trombly, J.).