This action was filed by Joseph B. Solans and Christine P. Solans (collectively Plaintiffs) on August 25, 2008 seeking declaratory judgment pursuant to G. L. c. 231A that an attachment recorded by them encumbers a parcel of property in the town of Ware and, more importantly, that it takes precedence and priority in the chain of title over a mortgage held by WM Specialty Mortgage, LLC (WM or Defendant) encumbering the same property.
The Court (Trombly, J.) endorsed Plaintiffs Ex Parte Lis Pendens on August 26, 2008 and issued a Temporary Restraining Order enjoining WM from taking any steps to foreclose the mortgage. After notice and a hearing, the Court entered a Preliminary Injunction on October 9, 2008 continuing the order precluding foreclosure, denying WMs Special Motion to Dismiss, and denying also WMs Motion to Dissolve the lis pendens.
On September 28, 2009, WM filed a Motion for Summary Judgment, a Memorandum in support thereof, and a list of facts it deemed to be not in dispute. Plaintiffs filed an Opposition to Defendants Motion on November 9, 2009.
The motion was argued and taken under advisement on January 11, 2010.
After careful consideration of all of the evidence and the arguments of counsel, the Court issued a Decision today, ruling that Plaintiffs attachment does not have priority over a mortgage currently held by Defendant WM Specialty Mortgage, LLC. because Briam McMenimen, the person whose property was sought to be attached, was not the record owner of the subject property at the time the attachment was recorded.
In accordance with that Decision, it is hereby:
ADJUDGED and ORDERED that a mortgage granted by Brian McMenimen to Mortgage Electronic Registration Systems, Inc.(MERS), dated June 8, 2006 but not recorded at the Hampshire County Registry of Deeds until October 13, 2006 in Book 8911, Page 128, and currently held by Defendant WM Specialty Mortgage, LLC by virtue of an Assignment dated March 20, 2008 and recorded on April 22, 2008 in Book 9460, Page 338, takes precedence and has priority over a Pre-Judgment Attachment obtained by Plaintiffs against Brian McMenimen, dated September 14, 2006 and recorded in Book 8885, Page 1, as memorialized in a levy on Execution recorded on May 29, 2008 in Book 9497, Page 242, the Court having found that Brian McMenimen was not the owner of the property known as and numbered 18 Aspen Street in Ware, Hampshire County, on the date on which the attachment was recorded. It is further ADJUDGED and ORDERED that the complaint be, and hereby is, dismissed.
By the Court. (Trombly, J.)