Home JPMORGAN CHASE & CO., INC. and WELLS FARGO BANK NATIONAL ASSOCIATION vs. CARLO CASARANO, as Trustee of the Ford Realty Trust, MARY Y. ODOMS-HARRIS, formerly known as MARY E. WELLS, and CITY OF BOSTON

MISC 07-344419

September 16, 2010

Sands, J.

JUDGMENT

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Plaintiff JPMorgan Chase & Co., Inc. (“JPMorgan”) filed its unverified Complaint on April 3, 2007, seeking (1) a declaratory judgment pursuant to G. L. c. 231A as to a) the validity and enforceability of a mortgage and note (the Crosby Mortgage and the Crosby Note, as hereinafter defined) [Note 1] on property located at 39 Maxwell Avenue, Dorchester, Massachusetts (“Locus”), and b) equitable subrogation of the Crosby Mortgage to a mortgage on Locus which JPMorgan holds by assignment; and (2) to quiet title to Locus pursuant to G. L. c. 240, § 6. [Note 2] Defendant City of Boston (“City”) filed its Answer on May 22, 2007. [Note 3] Defendant Carlo Casarano, Trustee of the Ford Realty Trust (“Casarano”), filed his Answer and Jury Claim on May 29, 2007. [Note 4] On July 2, 2007, Defendant Mary Y. Odoms-Harris (“Odoms-Harris”) filed her Answer and Cross-Claim against Casarano, seeking declaratory judgment relative to the Crosby Mortgage and Crosby Note and quiet title relative to Locus, and alleging breach of contract, breach of implied covenant of good faith and fair dealing, infliction of emotional distress, and a violation of G. L. c. 93A. [Note 5] A case management conference was held on July 20, 2007. Casarano filed his Answer to Cross-Claim and Jury Demand on July 26, 2007.

Casarano filed his Motion for Partial Summary Judgment (relative to the issue of equitable subrogation) on March 16, 2009, together with supporting memorandum and Statement of Undisputed Material Facts. On the same day, Plaintiffs filed their Motion for Summary Judgment (relative to payment and negotiability of the Crosby Note, as hereinafter defined), together with supporting memorandum, Statement of Undisputed Material Facts, Appendix containing excerpts from the depositions of Odoms-Harris, Carlo Casarano, and David Fulmer, and Declaration of Robert E. McLaughlin. Jr. Casarano filed his Opposition to Plaintiffs’ Motion for Summary Judgment on April 16, 2009, together with supporting memorandum, Appendix, and Affidavits of Alan H. King, Esq. (“King”) and Carlo Casarano. On the same day Plaintiffs filed their Opposition to Casarano’s Motion for Partial Summary Judgment, together with Statement of Additional Undisputed Material Facts, Supplemental Appendix, and Affidavit of Odoms-Harris. On April 30, 2009, Plaintiffs filed their Reply Brief and Motion to Strike Affidavit of Alan H. King, Esq. Casarano filed his Opposition to the Motion to Strike on September 17, 2009. A hearing was held on all motions on September 18, 2009, at which time all motions were taken under advisement. [Note 6] A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that Plaintiffs’ Motion to Strike the Affidavit of Alan H. King, Esq. is DENIED.

ORDERED and ADJUDGED that in the event that the Crosby Note and the Crosby Mortgage remain valid and enforceable against Odoms-Harris, the mortgage granted by Odoms-Harris on September 24, 2004, to Mortgage Electronic Registration Systems, Inc. as nominee for Fremont Investment & Loan (the “Fremont Mortgage”) in the amount of $323,000 which was recorded with the Registry on October 1, 2004, at Book 35596, Page 3, would be subrogated to the position previously occupied by the First Eastern Mortgage Corporation (as such rights are found in a mortgage granted by Odoms-Harris in the amount of $108,000 by document dated March 21, 1991, and recorded with the Registry on March 26, 1991, at Book 16763, Page 40 (the “First Eastern Mortgage”)) to the extent of the amount of the First Eastern Mortgage that was paid off by a subsequent mortgage granted by Odoms-Harris to Ameriquest Mortgage Company in the amount of $121,500 by document dated July 14, 1998, and recorded with the Registry at Book 22765, Page 326 (the “Ameriquest Mortgage”). [Note 7]

ORDERED and ADJUDGED that the Crosby Note is not a “negotiable instrument” as such term is defined in G. L. c.106, § 3-104(a).

ORDERED and ADJUDGED that the Crosby Note was assigned from Kevin to Casarano.

ORDERED and ADJUDGED that Casarano’s contract rights under the Crosby Note are governed by the six-year statute of limitations pursuant to G. L. c. 260, § 2.

ORDERED and ADJUDGED that the Crosby Note’s failure to include its term is material, without which the Crosby Note is “wholly unintelligible,” and, thus, invalid. [Note 8]

ORDERED and ADJUDGED that Casarano cannot enforce the Crosby Note against Odoms-Harris.

ORDERED and ADJUDGED that the Crosby Mortgage is discharged. [Note 9]

ORDERED and ADJUDGED that Plaintiffs’ Motion for Summary Judgment is ALLOWED and Defendants’ Motion for Partial Summary Judgment is DENIED.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] On March 21, 1991, Odoms-Harris granted a second mortgage (the “Crosby Mortgage”) to Kevin Crosby (“Kevin”) by document recorded with the Registry on July 22, 1991, at Book 16952, Page 68. The Crosby Mortgage stated that it secured a note (the “Crosby Note”) in the amount of $15,443.00 at ten percent interest, per year. Monthly payments of $100 were required under the Crosby Note.

[Note 2] JPMorgan filed its First Amended Complaint on February 29, 2008, replacing Kathy Casarano with Carlo Casarano as Trustee of Defendant Ford Realty Trust. JPMorgan filed its Second Amended Complaint on September 29, 2008, replacing JPMorgan with Wells Fargo Bank National Association (“Wells Fargo”) as Plaintiff. JPMorgan filed its Third Amended Complaint on January 6, 2009, adding both JPMorgan and Wells Fargo as Plaintiffs (“Plaintiffs”).

The Third Amended Complaint asserts that Odoms-Harris (as hereinafter defined) is a debtor-in-possession under a Chapter 13 bankruptcy proceeding pending before the U.S. Bankruptcy Court, Eastern Division (Boston). The Third Amended Complaint also notes that by Order dated September 11, 2008, the Bankruptcy Court granted Wells Fargo’s Motion For Relief From the Automatic Stay to substitute Wells Fargo as Plaintiff in this action. JPMorgan’s status under such Order is unclear.

[Note 3] City filed its Answer to First Amended Complaint on May 9, 2008. City filed its Answer to Second Amended Complaint on December 19, 2008. City filed its Answer to Third Amended Complaint on February 10, 2009. City is named as a Defendant because it recorded an Instrument of Taking against Locus dated December 13, 2005.

[Note 4] Casarano filed his Answer and Jury Demand to First Amended Complaint on March 19, 2008. On January 30, 2009, Casarano filed his Answer and Jury Demand to Third Amended Complaint, and Counterclaims against JPMorgan, alleging negligent misrepresentation and frivolous and unsubstantiated claims. Casarano filed his Motion to Dismiss Counterclaims on February 27, 2009, which was allowed on March 4, 2009.

[Note 5] Odoms-Harris filed her Answer and Cross-Claim to the First Amended Complaint on May 16, 2008. Odoms-Harris filed her Answer and Cross-Claim to Third Amended Complaint on March 18, 2009. It is clear that this court has jurisdiction over Odoms-Harris’ Cross-Claims seeking declaratory judgment and quiet title. However, that is not the case with her remaining Cross-Claims, which seek damages and sound of contract and tort. As such, this court hereby dismisses, without prejudice, Odoms-Harris’ allegations of breach of contract, breach of implied covenant of good faith and fair dealing, infliction of emotional distress, and a violation of G. L. c. 93A.

[Note 6] Both Odoms-Harris and the City appeared at the summary judgment hearing, but did not file any documentation or argue relative to the summary judgment hearing.

[Note 7] The summary judgment record does not indicate the amount of the First Eastern Mortgage that was paid off by the Ameriquest Mortgage.

[Note 8] As Casarano has failed to establish that the Crosby Note is a valid contract, there is no need to address whether such obligation has been satisfied. A trial would have been necessary to determine whether Odoms-Harris satisfied her obligation under Crosby Note given that this issue involves a material factual dispute. Odoms-Harris stated at her deposition that she paid off the Crosby Note to King. King stated, in his Affidavit, that he had not received payment from Odoms-Harris. Casarano gave deposition testimony that the Crosby Note had not been paid off as well.

[Note 9] Given this finding, there is no need to determine the exact amount to which the Fremont Mortgage is subrogated. In other words, a trial is not needed to determine the amount of the First Eastern Mortgage that was paid off by the Ameriquest Mortgage. See supra note 7.