MISC 356439

January 12, 2009


Grossman, J.



Andre A. Edmond and Josee Edmond (plaintiffs) initiated this action on October 15, 2007 seeking a determination that the mortgage (Mortgage) purportedly encumbering their premises at 86-94 Oak Street (locus), Springfield, Massachusetts, has been discharged as a matter of law. [Note 1] At the time the locus was first conveyed to the plaintiffs by Robert Kelly (Kelly), it was encumbered by the Mortgage dated November 21, 1990 in the principal sum of $60,000.00, having a maturity date of December 31, 1992. It had been granted by Kelly to Ernest J. Roy and Jean Roy (Roys) and recorded with the Registry at Book 7592, Page 455.

That Mortgage was assigned to Marks Realty Trust No. 29 (defendant) by instrument dated November 15, 2001 and recorded on February 14, 2002 with the Registry at Book 12162, Page 340. There is no discharge or extension of record. However, the dispute giving rise to this action centers upon the effectiveness of a document styled Affidavit Under M.G.L. c. 260 § 33, ( § 33 Affidavit ) recorded by the defendant with the Registry on September 26, 2006, [Note 2] at Book 16215, Page 759. It provides in substantial part as follows:

I, MARK R. DRAYMORE, trustee of MARKS REALTY TRUST NO. 29…holder by assignment of a certain mortgage from ROBERT A. KELLY to ERNEST J. ROY and JEAN ROY which mortgage is dated November 21, 1990 and recorded with the Hampden County Registry of Deeds in Book 7592, Page 455 (“the Mortgage”) covering property located at 86-90 Oak Street, Springfield, Massachusetts, * and having personal knowledge of the facts herein stated, under oath depose and say as follows:

* a/k/a as 86-94 Oak Street, Springfield, MA [Note 3]

3. [Note 4] The above mortgage remains unsatisfied.

4. The undersigned specifically reserves all rights and remedies allowed by law, including but not limited to the power of sale in said mortgage, entry and such other proceedings as provided for in said mortgage and note.

Sworn to under the pains and penalties of perjury on the 26th day of September, 2006. MARKS REALTY TRUST NO. 29

/s/ By___________________________

Mark R. Draymore, Trustee

Thereafter, a document styled Scrivener’s Affidavit and signed by Mark R. Draymore, Esquire (Draymore), was recorded with the Registry on November 27, 2007 at Book 17041, Page 94. In that document, Draymore first recited that he was an attorney at law in good standing in the Commonwealth; he continued as follows:

2. On or about September 26, 2006, I prepared an Affidavit purportedly in accordance with M.G.L. c. 260 s 33 on behalf of Mark R. Draymore, Trustee Of Marks Realty Trust No. 29 (“the Mortgagee”)….

3. Through inadvertence, mistake or oversight, the Affidavit failed to name the current title owners of the real estate, namely Andre A. Edmond and Josee Edmond of Brockton, Massachusetts, and failed to state that the entire $60,000.00 principal amount was due and owing under the mortgage with accrued interest of $106, 200.00 for a total due of $166,200.00, which is the total amount believed to remain unpaid as of September, 2006.

4. It was the intention of the Mortgagee that the Aforesaid Affidavit should be construed to read as above described, and should operate as of the original date of said Affidavit.

Simply stated, the question at hand asks whether the Mortgage has been discharged pursuant to the provisions of G. L. c. 260, §§ 33 and 34, or whether the § 33 Affidavit in tandem with the Scrivener’s Affidavit suffice to prevent that discharge. For the reasons that follow, I conclude that the Mortgage has been discharged.

Summary Judgment Standard

Summary judgment is to be granted when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.), citing, e.g., Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).

To meet his burden, the moving party need not proffer affidavits or other similar materials negating the opponent’s claim. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323. “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the…court demonstrates that the standard for the entry of summary judgment is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324. [Note 5]

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light,…does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

The possibility that the non-movant could elicit material evidence on cross-examination of witnesses is not grounds for denying summary judgment. Thompson v. Commonwealth, 386 Mass. 811 (1982). Once the moving party has met its burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). “In determining whether a factual dispute is “genuine,” the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F. Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Finally, although the court may not pass on the credibility of witnesses or weigh the evidence, Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987), Mass R. Civ. P. 56(c) does permit the court to dispose of controversies, if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. The record before the court reveals no genuine factual dispute, material under the relevant law, which would preclude a legal determination of plaintiffs’ claim. Accordingly, the case is ripe for summary judgment.


At the time the Mortgage was executed, G. L. c. 260, § 33 provided in relevant part as follows:

No power of sale in any mortgage of real estate shall be exercised and no entry shall be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of fifty years from the recording of the mortgage in case of mortgages recorded on or after January first, nineteen hundred and thirteen….unless…an extension of the mortgage or an acknowledgement or affidavit that the mortgage is not satisfied, is recorded within the last ten years of such period. In case an extension of the mortgage or such an acknowledgement or affidavit is so recorded, the period shall continue until ten years shall have elapsed…. The period shall not be extended…by any…extension, acknowledgement, affidavit or other action not meeting the requirements of this section and section…thirty-four.

However, effective October 1, 2006, St. 2006, c. 63, § 6 amended G. L. c. 260, § 33 to shorten significantly, the potential duration of any mortgage. Section 33 provides in relevant part, as follows:

A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of,…5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage or the acknowledgement or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period…The period shall not be extended by reason of….agreement, extension, acknowledgement, affidavit or other action not meeting the requirements of this section and sections 34 and 35. Upon the expiration of the period provided herein, the mortgage shall be considered discharged for all purposes without the necessity of further action by the owner of the equity of redemption or any other person having an interest in the mortgaged property…. (emphasis added)

Section 8 of that Act provides, inter alia, that the said § 6 “shall apply to all mortgages, whether recorded before, on or after the effective dater hereof.” The effective date as provided in Section 9, was October 1, 2006.

Defendant argues that the “Subject Mortgage Should Still be Considered Outstanding and Encumbering the Title…Notwithstanding that the Acknowledgement of Non-Satisfaction of the Mortgage Under MGL Ch. 260 § 33 [Note 6] was Defective.” [Note 7] Defendant asserts that certain equitable principles as well as the recording of the Scrivener’s Affidavit serve to vitiate the negative impact of any such defects. For their part, plaintiffs contend that defendant’s defective § 33 Affidavit failed to comport with the provisions of G. L. c. 260 § 34 and so was ineffective when recorded. [Note 8]

Assuming, arguendo, that a properly executed Affidavit would serve to insulate the mortgage from discharge under the current iteration of § 33, I must conclude that the deficiencies in the Affidavit are such as to render it ineffective for such purpose.

It is clear that the § 33 Affidavit does not meet the requirements of G. L. c. 260 § 34. That section recites that an affidavit of non-satisfaction, of the sort here at issue, will not suffice to extend the period specified in § 33 unless:

1. It is executed by the holder of the mortgage.

2. It describes the mortgage sufficiently to identify the record thereof.

3. It names one or more of the person or persons appearing of record to own the encumbered property.

4. It states that the mortgage remains unsatisfied.

5. If the mortgage secures a note or sum of money, it states the amount believed to remain unpaid.

In Martha’s Vineyard Land Bank Comm’n v. Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) in discussing principles of statutory construction, the Court offered the following helpful observations:

Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its [plain] wording, which we are constrained to follow…[so long as] its application would not lead to an ‘absurd result’…. We need not look beyond the words of the statute itself, in such a case, even if…we recognize a potential unfairness within a statute’s clear language….. (internal citations omitted)

Notwithstanding these statutory requisites, the § 33 Affidavit fails either to name the record owners or to specify the outstanding amount. Defendant asserts that “the defendant’s second affidavit recorded…November 27, 2007 [Scrivener’s Affidavit] corrected these deficiencies in the first affidavit.”

I respectfully disagree. It is well to note that the relevant language in § 33 is essentially self- executing. It provides that the statutory period is not to be extended by “affidavit or other action not meeting the requirements” of § 34. At the expiration of that period, the mortgage is deemed discharged as a matter of law. Consequently, I think it clear that the Mortgage at hand has not been extended by virtue of the faulty § 33 Affidavit. And a subsequently filed Scrivener’s Affidavit could not serve to resuscitate that Mortgage once it had been discharged.

The case of T. F. v. B. L., 442 Mass. 522 (2004) is instructive when considering the extensive equitable arguments advanced by the defendant. There, the Court took note of the “maxim that equity follows the law as declared by statute,” and concluded that “[t]he grant of equitable powers does not permit a court to disregard statutory requirements.” Lastly, it observed that “[e]quity is not an all-purpose judicial tool by which the ‘right thing to do’ can be fashioned into a legal obligation possessing the legitimacy of legislative enactment.” [Note 9] (internal citations omitted).


For the foregoing reasons, I conclude that the relevant statutory provisions are unambiguous in setting forth the requirements of the non-satisfaction affidavit. Those requirements, in critical respects, were not met in the instant case. As a matter of law therefore, the § 33 Affidavit could not serve to extend the Mortgage or prevent its discharge. Under such circumstances, the Scrivener’s Affidavit could simply not revive a mortgage that had long since been discharged.

In sum, there is nothing on the summary judgment record that demonstrates compliance with the relevant statutes.

Consequently, it is hereby

ORDERED that the Plaintiffs’ Motion for Summary Judgment be, and hereby is, ALLOWED. Judgment to enter accordingly.


By the Court. (Grossman, J.)

Attest: Deborah Patterson


Dated: January 12, 2009


[Note 1] For their title, see the deed recorded on December 23, 2004 with the Hampden County Registry of Deeds (Registry) at Book 14719, Page 278.

[Note 2] G. L. c. 260, § 33 was amended effective October 1, 2006.

[Note 3] This addition is handwritten.

[Note 4] There are no paragraphs 1 and 2.

[Note 5] “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purposes.” Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323-324.

[Note 6] See document supra, captioned “Affidavit Under M.G.L. c. 260 §33. ”

[Note 7] Defendant’s Memorandum in Response to Plaintiffs’ Motion for Summary Judgment (Defendant’s Memorandum), § IIIB.

[Note 8] Plaintiffs Memorandum in Support of their Motion for Summary Judgment (Plaintiffs’ Memorandum), pp. 4-5.

[Note 9] T.F. v. B.L. 442 Mass. 522 , 533-534 (2004).