Plaintiff, Jean Brogna commenced this action on April 22, 2008, seeking to remove a cloud on title, pursuant to G.L. c. 240, § 6-10, created by a writ of execution levied by defendant, Metro Credit Union, on a parcel of her real property, known as and numbered 34 Lane Avenue in Weymouth.
On May 11, 2009, plaintiff filed a Motion for Summary Judgment. Defendant opposed the motion and filed a Cross-Motion for Summary Judgment on June 10, 2009. On July 3, 2009, plaintiff filed an opposition to the defendants cross-motion and the Affidavit of Joel A. Stein in support. On July 10, 2009, defendant filed a Motion to Strike the Affidavit of Joel A. Stein and Motion to Strike Portions of the Plaintiffs Opposition. The motions were argued on July 15, 2009, and are the matters presently before the Court.
After reviewing the record before the Court, I find that the following facts are not in dispute: 1. By deed dated October 29, 1993, and recorded at the Norfolk County Registry of Deeds in Book 149316, page 115, plaintiff, Jean Brogna and Felix L. Brogna, III took title to a parcel of real property, known as and numbered 34 Lane Avenue in Weymouth (the Property), as tenants by the entirety.
2. On or about March 2003, plaintiff filed a Complaint for divorce against Mr. Brogna in Norfolk County Probate and Family Court.
3. On July 9, 2003, the Probate and Family Court issued a Judgment of Divorce Nisi, awarding to plaintiff, among other things, the Property.
4. The Judgment provides also that the Brognas are equally responsible for the marital debt as of July 2002 and individually responsible for their individual debt.
5. The Judgment of Divorce became absolute on October 7, 2003.
6. The Judgment was not immediately recorded.
7. At some point after the Judgment of Divorce became absolute, plaintiff filed a Request for Relief from Judgment, seeking to amend the award of Mr. Brognas 401(k) to plaintiff incorrectly calculated in the Judgment.
8. On or about September 12, 2003, plaintiff refinanced the Property, obtaining a mortgage, which describes the borrower as Jean M. Brogna, Sole Owner.
9. The mortgage was recorded on September 18, 2003, in Book 19882, page 512.
10. On or about November 14, 2002, Mr. Brogna executed a loan and security agreement with defendant, in which he promised to pay the amount of the loan plus interest as specified in the note.
11. Defendants collection notes indicate that on or about July 15, 16, and 31, and on August 22, 2003, defendant was informed that Mr. Brogna no longer resided at the Property.
12. Defendants collection notes indicate that on or about October 1, 2003, defendant was informed that Mr. Brogna was still the owner of the property with plaintiff and that plaintiff is his ex-wife.
13. Defendants collection notes indicate that on October 2, 2003, plaintiff informed defendant that she refinanced the Property in her name.
14. On October 29, 2003, defendant filed a Complaint in Waltham District Court against Mr. Brogna, seeking to collect on the note, alleging that Mr. Brogna had defaulted. On March 12, 2004, the District Court issued a Judgment by Default against Mr. Brogna. On March 22, 2004, the Court issued a writ of execution against Mr. Brogna.
15. Defendant did not perform a title search on the Property.
16. On March 30, 2004, a Norfolk County Sheriff levied the execution on the Property.
17. The same day, the execution was recorded at the Norfolk County Registry of Deeds, in Book 20762, pages 138-139.
18. By letter dated March 30, 2004, the Sheriff returned service of the seizure and record to the defendants counsel and acknowledged that she suspended further action on the levy as requested by defendant.
19. The writ of execution identifies the Judgment Debtor as Felix E. Brogna, III.
20. On April 27, 2005, the Judgment of Divorce was recorded in Book 22330, page 70.
I. ORDER ALLOWING THE DEFENDANTS MOTION TO STRIKE THE AFFIDAVIT OF JOEL A. STEIN AND DENYING THE MOTION TO STRIKE PORTIONS OF THE PLAINTIFFS OPPOSITION
As an initial matter, defendant moves to strike (1) the Affidavit of Joel A. Stein and (2) portions of the Plaintiffs Opposition to the Defendants Cross-Motion for Summary Judgment.
Defendant argues that the Stein Affidavit comprises solely legal conclusion. At the summary judgment hearing on July 15, 2009, counsel for plaintiff expressed willingness to withdraw the affidavit. I agree that the Stein Affidavit is inadmissible. Accordingly, it is hereby ORDERED that the defendants Motion to Strike the Affidavit of Joel A. Stein is ALLOWED; and it is further ORDERED that the Stein Affidavit is STRICKEN.
Defendant argues also that portions of the Plaintiffs Opposition are a mischaracterization of the facts and are unsupported by the record. While this may or may not be true, the opposition is legal argument. The record speaks for itself, and the Court will determine the appropriate characterization of the facts. Accordingly, it is hereby ORDERED that the defendants Motion to Strike the portion of the Plaintiffs Opposition to the Defendants Cross-Motion for Summary Judgment is DENIED.
II. SUMMARY JUDGMENT
Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews the evidence in the light most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).
In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Commr of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.
With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case, or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).
When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts. Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with affidavits, if any. Mass. R. Civ. P. 56(c).
In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.
General Laws chapter 183, § 4 provides that recordation is required to render valid a conveyance of an estate in fee simple against any person, except those persons having actual knowledge of the conveyance. The purpose of the recording statute is to create a system on which purchasers may rely. Richardson v. Lee Realty Corp., 364 Mass. 632 , 635 (1974) (citing Swasey v. Emerson, 168 Mass. 118 , 120 (1897)). Therefore, actual notice is strictly construed. Richardson, 364 Mass. at 635 (and cases cited); McCarthy v. Lane, 301 Mass. 125 , 128 (1938) (and cases cited). Actual notice is necessarily exclusive of inquiry notice. Richardson, 364 Mass. at 634 (knowledge of facts which might arouse suspicion would not be sufficient to destroy the bona fides of the subsequent purchaser) (citing McCarthy, 301 Mass. at 128-29; Toupin v. Peabody, 162 Mass. 473 , 478 (1895)). Similarly, G.L. c. 184, § 15 provides that legal proceedings affecting the title to real property are not effective until a memorandum of lis pendens is recorded in the registry of deeds for the county or district where the land lies, except as against persons having actual, non-recorded knowledge of the proceedings. See Debral Realty, Inc. v. DiChiara, 383 Mass. 559 , 561 (1981).
In the instant case, it is undisputed that the writ of execution on the Property was recorded before the Judgment of Divorce. Therefore, the Judgment, which awarded the Property to plaintiff, was not valid as against defendant at the time it recorded the execution. While the Judgment of Divorce served to create an equitable right to its enforcement, as with any conveyance of real property, title was not valid as against the world unless and until it was recorded. [Note 2] Therefore, the writ of execution takes priority.
Plaintiff argues that defendant had actual knowledge of the Judgment of Divorce at the time it recorded the execution, and therefore, the award of the Property to plaintiff was valid as against defendant. However, plaintiff did not expressly inform defendant of the Judgment of Divorce awarding her the Property. While the defendants collection notes suggest that the Brognas may have divorced, there is nothing explicitly demonstrating that defendant had knowledge of the award of the Property. Plaintiff points to the mortgage on record, which identifies the borrower as Jean M. Brogna, Sole Owner (Pl.s Mem. Supp. Summ. J., Ex. E.) (emphasis added). However, at the time the execution was recorded, the recorded title reflected that the property was owned by the Brognas as tenants by the entirety because the Judgment of Divorce had not been recorded at that time. Moreover, this two-word identifier is not sufficient to constitute actual notice of the provision of the Judgment of Divorce. The conversations indicated in the collection notes and in the language in the mortgage constitute information, amounted, if anything, to inquiry notice, which is not sufficient to render the award of the Property to plaintiff valid as against defendant. There is nothing in the record demonstrating that defendant had actual knowledge of the award of Mr. Brognas interest in the Property to plaintiff. Therefore, plaintiff has not met her burden of demonstrating that defendant had actual notice. Accordingly, I rule that the writ of execution against Mr. Brogna levied on his interest in the Property is not void or ineffective.
Plaintiff argues in the alternative that if the failure to record the Judgment of Divorce allows defendants execution to take priority over the award of the Property to plaintiff, then the Property, according to the record, was still held by the Brognas as tenants by the entirety, and therefore, the Property is not subject to execution, pursuant to G.L. c. 209, § 1. This argument misunderstands the law of concurrent estates. A tenancy by the entirety is a form of co-ownership of property that may exist only between a married couple. McGillicuddy v. Devlin, 279 Mass. 194 , 195 (1932); Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145 , 148 (1993); see Finn v. Finn, 348 Mass. 443 , 446 (1965). A tenancy by the entirety, then, is necessarily terminated by divorce of the tenants. Bernatavicius v. Bernatavicius, 259 Mass. 486 , 489-90 (1927) (and cases cited); Petition of Smith, 361 Mass. 733 , 737 (1972). A divorce judgment is a decree of court which severs a marriage at the time it becomes absolute. G.L. c. 208, § 21; Ross v. Ross, 385 Mass. 30 (1982); C.P. Kindregan, Jr. & M.L. Inker, Family Law and Practice § 26:1 (3d ed. 2002) (citing Clark, The Law of Domestic Relations in the United StatesSecond Edition, § 13.2); see Sheffer v. Sheffer, 316 Mass. 575 (1944).
In the instant case, while the failure to record the Judgment of Divorce prevents the award of the Property to plaintiff from being held as effective against defendant at the time the execution was recorded, it has no effect the decrees operation to sever the Brognas marriage. As a matter of law, the Brognas were divorced when the Judgment of Divorce became absolute on October 7, 2003, and the tenancy by the entirety became a tenancy in common. See Ross, 385 Mass. 30 ; Bernatavicius, 259 Mass. at 489-90 (1927) (and cases cited). General Laws chapter 236, § 12 expressly permits a writ of execution to be levied on an interest in property held by the debtor as tenant in common. [Note 3] Therefore, defendant holds a levied and suspended execution on a one-half, undivided interest in the Property.
Plaintiff argues also that while the execution on the Property was recorded, there is no record or other notice to plaintiff that defendant suspended its further process, and therefore, the execution is ineffective. However, there is no requirement that a suspension of a levy be recorded or noticed otherwise given to the record owner. See G.L. c. 236.
Lastly, plaintiff argues that the writ of execution is ineffective, pursuant to G.L. c. 223, § 66, because it identifies Mr. Brogna with the wrong initial. Such a minor typographical error is not misleading and not sufficient to defeat the writ. Bates v. Nessen, 263 Mass. 371 (1928) (attachment against Barnard N. effective to encumber property of Barnett N.); Gillespie v. Rogers, 146 Mass. 610 (1888) (attachment against James N. Howe effective to encumber property of James Howe). It is not contested that the writ otherwise correctly identifies Mr. Brogna. Therefore, the writ of execution is proper.
For the foregoing reasons, this Court concludes that the writ of execution on Mr. Brognas interest in the Property is not void or ineffective. An execution against a tenant in common may be levied on the tenancy property. Accordingly, the plaintiffs Motion for Summary Judgment is DENIED and the defendants Cross-Motion for Summary Judgment is ALLOWED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Dated: July 24, 2009
[Note 1] A motion for summary judgment can rest in whole or in part on facts set forth in the moving partys pleadings if, but only if, they are conceded in the opposing partys pleadings. Cmty. Natl Bank, 369 Mass. at 557 n.6. It may also rest on the allegations contained in the opposing partys pleadings. G. L. c. 231, § 87 (in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them).
[Note 2] It is worthy of note that G.L. c. 208, § 34A provides that where a judgment orders that an interest in real property be conveyed from one former spouse to the other, that such judgment serves only to create an equitable right to its enforcement, and only upon recordation does title vest in the benefited party. Such a directive-judgment is dissimilar only in method to a judgment of divorce, which awards an interest in real property directly to the benefited party. While there is no similar statutory language to guide a court where the latter kind is concerned, it would defeat the purpose of the recording system to allow awards of real property to vest title and become valid as against the world immediately without the requirement to record.
[Note 3] Even if the property were held by the Brognas as tenants by the entirety, the levy would be valid. General Laws chapter 209, § 1 disqualifies property held in tenancy by the entirety from seizure or execution by a creditor of a debtor spouse. It is basic and well-settled property law, that [o]ne spouse, acting alone, cannot convey or encumber the entire estate, because any conveyance or encumbrance remains subject to the continuing right of the other spouse to the whole property. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145 , 151 (1993) (emphasis in original) (citing Drury v. Abdallah, 46 B.R. 718, 719 (Bankr. D. Mass. 1984). However, either spouse may convey or encumber his or her interest in property held as tenants by the entirety, Coraccio, 415 Mass. at 152 (emphasis added), so long as the right of the non-debtor spouse to continued possession of the property is unaffected, Peebles v. Minnis, 402 Mass. 282 , 283 (1988). The purpose of G.L. c. 209, § 1 is to protect the non-debtor spouse from being dispossessed of his or her primary residence. Nevertheless, [t]hat real property is owned by the entirety does not mean that the interest of a debtor spouse has no value to his or her creditors, and a creditor may hold a potential right over the debtor spouses interest without obstructing the statutory rights of the non-debtor spouse. Innis v. Robertson, 67 Mass. App. Ct. 388 , 391 (2006); see Coraccio, 415 Mass. at 152; Myette v. Avi Arazi Co., Inc., 11 LCR 34 , 35 (2003) (Misc. Case No. 280905) (Lombardi, J.).
Nothing in G.L. c. 209, § 1 prevents one tenant from mortgaging, conveying, or otherwise encumbering his or her own interest in the tenancy property. Coraccio, 415 Mass. at 152. An execution levied on one spouses interest in the whole, but further process then suspended does not affect the continuing rights of the non-debtor spouse. Myette, 11 LCR at 35; see Peebles, 402 Mass. at 283 (a passive, recorded execution may remain in place without violating G.L. c. 209, § 1). Such a lien possessed by the creditor is a potential acquisition of the debtor spouses interest in the property, but a right, which may be exercised only if the debtor spouse survives the non-debtor. Myette, 11 LCR at 35 (quoting Coraccio, 415 Mass. at 152). A similar interest may be acquired by a foreclosing mortgagee. Coraccio, 415 Mass. at 152 (a mortgagee, if it foreclosed, could acquire [the debtor spouse]s interest in the property, namely a right wholly defeasible should the nondebtor spouse survive him). This levy and suspend procedure of execution is no more violative of the rights of [the non-debtor spouse] under G.L. c. 209, § 1, than the possibility of the mortgage foreclosure , held permissible under Coraccio. Id.