SBQ 06-14792-12-001

January 4, 2010

Sands, J.


Plaintiff filed its unverified Petition on December 15, 2006, alleging clerical errors in, and seeking to amend, a mortgage (“Mortgage 3”) granted to it by Defendants Victoria A. Kelley (“Victoria”) and Leo A. Kelley (“Leo”) (together, “Defendants”). [Note 1] An Amended Petition was filed on April 17, 2007, correcting a misspelling of Victoria’s name. A Second Amended Petition was filed on October 2, 2007, adding a count for declaratory judgment as to the status of Mortgage 3. Defendants filed their Answer on August 16, 2007. [Note 2], [Note 3] A case management conference was held on November 29, 2007.

Plaintiff filed its Motion for Summary Judgment on January 30, 2008, together with supporting memorandum, Statement of Undisputed Material Facts, Appendix, and Affidavit of Tamara Price. [Note 4] On April 22, 2008, Defendants filed their Motion to Deny Summary Judgment. [Note 5] Defendants filed their Stipulated Undisputed Material Facts on November 4, 2008. Plaintiff filed its Response to Defendants’ Stipulated Undisputed Material Facts on November 18, 2008. Defendants filed their Motion to Dismiss on April 21, 2009, alleging predatory lending, fraud and malfeasance, and forgery. [Note 6] Plaintiff filed its Opposition to Defendants’ Motion to Dismiss on July 22, 2009. A hearing was held on all motions on September 14, 2009, at which time all motions were taken under advisement. [Note 7] On December 23, 2009, this court issued a Fifteen Day Nisi Order in which Plaintiff was required to provide proof of its interest in Mortgage 3 and the Note, as hereinafter defined. Plaintiff complied with this Nisi Order by providing this court with Plaintiff’s assignment (the “Assignment”) of Mortgage 3 and the Note on December 28, 2009, and by recording such Assignment with the Registry on December 31, 2009, at Book 38092, Page 3. A decision (“Decision”) of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that the mortgage granted by Victoria to Ameriquest on May 14, 2004 (Mortgage 3) securing an Adjustable Rate Note executed by Victoria and Leo dated May 13, 2004 (the “Note”), in the amount of $395,000 in favor of Ameriquest (Loan No. 78826203), was intended to encumber Locus. [Note 8] This property was comprised of the following three lots: (1) Lot 18 on registration plan 14792-Q, drawn by Delano & Keith, Surveyors, dated January 29, 1958, and filed with Certificate of Title No. 27296; (2) Lot 20 on registration plan 14792-S, drawn by Delano & Keith, Surveyors, dated July 14, 1960, and filed with Certificate of Title No. 29921; and (3) Lot 23 on registration plan 14792-V, drawn by Delano & Keith, Surveyors, dated November 29, 1962, and filed with Certificate of Title No. 34845. Lot 23 was sold by Victoria to P. Tracy Morrison and Susan A. Morrison by Quitclaim Deed dated September 25, 1995, and registered with the Registry District on September 25, 1995, as Document No. 387192. The remaining land (Lots 18 and 20) is referred to as Locus. Exhibit A of Mortgage 3 shall be amended to reflect the correct legal description of Locus, and Mortgage 3 and the Assignment shall be recorded on the registered side of the Registry.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED and Defendants’ Motion to Dismiss is DENIED.

By the court. (Sands, J.)


[Note 1] The clerical errors alleged in the Petition were : (1) recording Mortgage 3 on the recorded (versus the registered) side of the Plymouth County Registry of Deeds (the “Registry”); and (2) omitting the address from the margin of Mortgage 3 and including the wrong legal description of the property on Exhibit A of Mortgage 3.

[Note 2] Defendants filed their Answer to Second Amended Petition on December 21, 2007.

[Note 3] Defendants were initially represented by Brenda Golden Hallisey, Esq. Attorney Hallisey filed a Motion to Withdraw as Counsel, which was allowed on March 7, 2008. Since that time Defendants have represented themselves pro se.

[Note 4] Plaintiff filed its Revised Motion for Summary Judgment on September 15, 2008, together with Revised Statement of Undisputed Material Facts, Appendix, and Supplemental Affidavit of Tamara Price.

[Note 5] Defendants filed their Opposition to Revised Motion for Summary Judgment on September 9, 2009, together with supporting memorandum.

[Note 6] Defendants filed a second Motion to Dismiss on June 24, 2009.

[Note 7] Defendants’ Motions to Dismiss do not refer this court to a particular authorizing rule of civil procedure or statutory provision. Further confusing matters is that Defendants’ second Motion to Dismiss refers to Plaintiff’s Motion for Summary Judgment. However, aware of Defendants’ pro se status and this court’s duty pursuant to Mass. R. Civ. P. 8(f) to interpret “[a]ll pleadings . . . as to do substantial justice,” the merits of Defendants’ Motions to Dismiss are addressed in the Decision.

[Note 8] Victoria took title to property located at 35 Bay Farm Road, Kingston, Plymouth County, Massachusetts (a portion of which is “Locus”) by foreclosure deed of Citicorp Mortgage, Inc. This deed was registered as Document No. 367965 on Transfer Certificate of Title No. 86204 dated April 15, 1994, which is registered with the Plymouth County Registry District of the Land Court (the “Registry District”) at Book 431, Page 4. Locus is also shown as Lot 12 on Kingston Assessor’s Map 37. Locus has been the principal residence of Defendants since 1995 and contains approximately 1.52 acres.