Plaintiffs AmTrust Bank and Mortgage Electronic Registration Systems, Inc. (MERS), as nominee, (collectively, AmTrust) are the current holders of two mortgages on the property at 4 Tally Ho Lane in Andover that were granted by defendants Frederic and Ruth Ann Elias. At issue in this case is whether those mortgages have priority over a prior, undischarged mortgage granted by the Eliases to defendant TD Banknorth, N.A. (TD). Although TD initially argued that AmTrust did not have any priority over TDs mortgage, TD subsequently presented an offer of judgment (pursuant to Mass. R. Civ. P. 68) to enter on the plaintiffs equitable subrogation claim (Count IV), resulting in the TD mortgage being subordinated to AmTrusts position to the extent of $316,077.81 (plus interest to date and less principal payments made). Ex. 41. AmTrust accepted that judgment without prejudice to its right to litigate and seek judgment on the remaining counts, which included a claim that the additional amount of its mortgages should have priority as well. Id.
The Eliases were duly served, did not respond, and were defaulted. A trial was held between the remaining parties, AmTrust and TD, jury-waived. For the reasons set forth in the courts Decision of this date, I find and rule (and it is therefore ORDERED, ADJUDGED, and DECREED) that AmTrusts mortgages (recorded at Book 10032, Page 34 and Book 10032, Page 48) have first priority over the TD mortgage (recorded at Book 8189, Page 272) based upon the doctrines of equitable subrogation and equitable estoppel. I further find and rule that AmTrust is not entitled to damages pursuant to G.L. c. 183, § 55 since it is neither a mortgagor nor the owner of the equity of redemption. All other claims in this case are DISMISSED, in their entirety, with prejudice.
By the court (Long, J.)
Deborah J. Patterson, Recorder
Dated: 22 March 2010