MISC 08-386939

April 25, 2011


Piper, J.


In this case, plaintiff Countrywide Home Loans, Inc. (“Countrywide”) seeks a judgment of this court reviving a mortgage they allege was fraudulently discharged, declaring the priority of that mortgage once revived, and reforming a descriptive error in that mortgage. The locus is the property, improved with a single-family residence, known as 56 Parkview Drive, Hingham, Plymouth County, Massachusetts (as more particularly described below, the “Property”).


Plaintiff Countrywide alleges it is the holder of a mortgage on the Property, given in April 2004 to SLM Financial Corporation, and transferred to Countrywide by assignment.

Defendant Denise Bruce, also known as Denise David, (“Bruce”) is the record owner of the Property. Andrew J. Curley (“Curley”), not a party to this litigation, was at one point married to defendant Bruce. Margaret Connolly, also not a party, was the closing attorney for several of the subject loans, and had a business called Madison Title Services.

There are six other defendants:

1. Mortgage Electronic Registration Systems, Inc. as Nominee for Homecomings Financial, LLC, Successor-in-Interest to Mortgage Electronic Registration Systems, Inc. as Nominee for Fremont Investment and Loan (“Homecomings”);

2. Deutsche Bank National Trust Company, Trustee for Long Beach Mortgage Trust 2006-2 (“Deutsche Bank”);

3. Mortgage Electronic Registrations Systems, Inc. as Nominee for Fremont Investment and Loan (“Fremont”);

4. Wachovia Savings Bank (“Wachovia”), the successor to World Savings Bank, FSB (“World Savings”);

5. Emigrant Mortgage Company, Inc. (“Emigrant”);

6. Mortgage Electronic Registrations Systems, Inc. as Nominee for HSBC Mortgage Corporation (“HSBC”).

Each of these defendants purports to hold a mortgage on the Property. Fremont has been defaulted by the court pursuant to Mass. R Civ. P. 55 (a). Table 1 provides a summary of the various mortgages. The “Discharge” column indicates when a discharge was recorded, although the validity of certain of these discharges is a central issue disputed in this case.


Mortgagee Mortgagor Principal Date Discharge
Option One Curley $365,500.00 April 22, 2002 July 8, 2003
Fremont Curley $390,000.00 April 25, 2003 Oct. 17, 2003
Fremont/Homecomings Bruce $423,750.00 Dec. 22, 2003 Sept. 1, 2005
Countrywide Bruce $473,600.00 April 30, 2004 Sept. 2, 2005
Deutsche Bank Bruce $487,500.00 Sept. 8, 2005 Apr. 19, 2006
Fremont Bruce $468,000.00 Apr. 21, 2006 --
Wachovia Bruce $408,750.00 Mar. 20, 2007 --
HSBC Bruce $325,000.00 June 27, 2007 --
Emigrant Bruce $440,000.00 Mar. 4, 2008 --


This case was filed originally in the Plymouth County Superior Court Department. It was transferred to the Land Court Department on November 4, 2008 pursuant to G.L. c. 212, § 26A. [Note 1] On December 9, 2008, this court (Piper, J.) conducted a case management conference. Countrywide filed its Fourth Amended Complaint on December 17, 2008. Defendant Bruce filed her answer on December 24, 2008. On January 6, 2009 Wachovia filed its answer. Emigrant Mortgage answered and filed a cross-claim (seeking a judgment reforming its own mortgage) on January 7, 2009. Deutsche Bank filed its Answer, Counterclaims, and Cross-Claims on January 12, 2009. In its counterclaims and cross-claims, Deutsche Bank seeks a declaration that its mortgage is a valid encumbrance because the document purporting to discharge its mortgage is fraudulent, and a determination of its priority. On January 20, 2009, HSBC filed its answer. The answers to the various counterclaims and cross-claims that were received are as reflected on the court’s docket for this case, and need not be set out in this Order.

Defendant Fremont was defaulted by the court on February 9, 2009. On March 26, 2009, defendant Homecomings requested that the court lift the default entered against Fremont, to the extent that Homecomings was Fremont’s successor-in-interest. That request was allowed on April 3, 2009. To the extent that Homecomings did not succeed Fremont, as with respect to the April 21, 2006 mortgage, the default against Fremont remains in place. Finally, on September 1, 2009, after hearing on a motion to amend, which was allowed, Homecomings filed its Amended Answer, Counterclaims, and Cross-Claims. [Note 2] Homecomings seeks a judgment reinstating its mortgage, voiding as fraudulent the purported discharge of the mortgage, and declaring the priority of its lien.

On November 30, 2009, Countrywide filed a Motion for Partial Summary Judgment seeking a declaration that the discharge filed September 2, 2005 is void, and that the Countrywide Mortgage is the first priority lien. Countrywide also seeks summary judgment on its request for reformation to correct a descriptive error. Defendants HSBC, Wachovia, and Emigrant Mortgage filed a joint opposition to Countrywide’s motion on January 4, 2010; those filings were superceded by papers filed January 8, 2010. Homecomings filed its opposition on January 14, 2010. Deutsche Bank filed no opposition. The court held hearing on the motion on February 23, 2010. Following hearing, the court granted parties leave to obtain, and supplement the summary judgment record with, a certain canceled check, and to file supplemental briefing on the check’s import. The check was produced on March 3, 2010. Countrywide filed its supplemental briefing on March 16, 2010. No other party filed any supplemental briefing. The court now rules on the pending summary judgment motions.


The following facts are supported by the record assembled pursuant to Mass. R. Civ. P. 56 and appear without material dispute:

7. Denise David took title to the property known as 56 Parkview Drive, Hingham, Plymouth County, Massachusetts pursuant to the deed (“Deed”) dated August 31, 1998 and recorded with the Plymouth County Registry of Deeds (“Registry”) at Book 16566, Page 267. The Property is more particularly described in the Deed as being that lot numbered 212 on a plan of R.N. Linke, C.E., dated August 26, 1947 and recorded with the Registry at Plan Book 7, Page 502 (“Linke Plan”). The Deed also contains a metes and bounds description.

8. On April 22, 2002, one Andrew J. Curley purported to grant a mortgage on the Property to Option One Mortgage (“Option One”), purporting to secure a note in the original principal amount of $365,600.00 (“First Curley Mortgage”). All parties agree that at the time of the First Curley Mortgage, Andrew J. Curley held no title to 56 Parkview Drive. The First Curley Mortgage was recorded at the Registry at Book 21987, Page 269.

9. On April 25, 2003, one Andrew J. Curley purported to give a mortgage on the Property to Fremont Investment & Loan, purporting to secure a note in the original principal amount of $390,000.00 (“Second Curley Mortgage”). All parties agree that at the time of the Second Curley Mortgage, Andrew J. Curley held no title to 56 Parkview Drive. The Second Curley Mortgage was recorded at the Registry at Book 24977, Page 141.

10. On July 8, 2003, a Discharge of Mortgage was filed at the Registry at Book 25700, Page 34, discharging the First Curley Mortgage held by Option One.

11. On October 17, 2003, a Discharge of Mortgage was filed at the Registry at Book 26819, Page 329, discharging the Second Curley Mortgage held by MERS as nominee for Fremont. [Note 3]

12. On December 22, 2003, Denise Bruce a/k/a Denise David granted a mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Fremont Investment & Loan (“Fremont”), securing a note in the original principal amount of $423,750.00 and recorded with the Registry at Book 27309, Page 53. This mortgage (“Homecomings Mortgage”) is now owned by Homecomings.

13. On April 30, 2004, Denise David a/k/a Denise Bruce conveyed the Property to Denise Bruce by deed recorded with the Registry at Book 28137, Page 244. Among other errors, this deed described the Property as lot numbered 21 on the Linke Plan. The correct lot number is 212.

14. Also on April 30, 2004, Denise Bruce f/k/a Denise David granted a mortgage to SLM Financial Corporation, 593 Washington Street, Weymouth, Massachusetts, securing a note in the original principal amount of $473,600.00, and recorded with the Registry at Book 28137, Page 245. The mortgage to SLM Financial was later assigned to Countrywide Home Loans (“Countrywide”). The Exhibit A attached to this mortgage (“Countrywide Mortgage”) incorrectly refers to the Property as “being lot numbered 21” on the Linke Plan.

15. The HUD-1 Settlement Statement executed on April 30, 2004 reflects that $394,388.11 was slated to go to Homecomings Financial.

16. The summary judgment record contains an uncertified copy of what appears to be a facsimile of a letter, the letter being dated March 12, 2004, and addressed to “Denise Bruce/Curley,” on the dual letterhead of Fremont and Homecomings Financial in which Fremont/Homecomings apparently advised Bruce that the Homecomings Mortgage had been transferred to Homecomings Financial. Homecomings generally denies this, although it is unclear what specifically Homecomings is denying.

17. An affidavit (“Stewart Affidavit”) from Vice President of Records Management for Fremont, Jill Stewart , in support of Homecomings, states Fremont released the loan secured by the Fremont Mortgage to Homecomings Financial on June 1, 2004. The same affidavit states that Fremont released the loan secured by the Second Curley Mortgage to Homecomings on July 13, 2003.

18. The summary judgment record contains a copy of a check (“Check 16850”), numbered 16850, in the amount of $394,388.11, dated May 5, 2004, from the account of Margaret T. Connolly, made out to “Homecomings Mortgage”. Check 16850 was produced by the Scituate Federal Savings Bank pursuant to the Order to Produce Documents, issued by this court (Piper, J.) on March 2, 2010. Prior to the production of Check 16850, Homecomings denied that they or Fremont ever received $394,388.11 and alleged that the check was never tendered.

19. On May 10, 2004, the principal balance of the loan secured by the Homecomings Mortgage was $422,234.93 with interest owing from April 1, 2004.

20. Check 16850, as in the record, shows that it was negotiated and paid. Check 16850 was presented for payment on May 7, 2004, and cleared on May 10, 2004. Handwritten into the memo line of the check is a number that, according to Countrywide, corresponds to the loan number for the Second Curley Mortgage.

21. On May 14, 2004, Homecomings reported that the Second Curley Mortgage was paid in full on May 7, 2004.

22. On May 14, 2004, Denise David a/k/a Denise Bruce executed a Confirmatory Deed that stated:

This Confirmatory Deed is recorded to correct the original dated April 30, 2004 and recorded May 5, 2004 in Book 28137 Page 244. The original incorrectly stated the street address as 56 Park View Drive. The correct street address is 56 Parkview Drive. Also, the original omitted the metes and bounds portion of the property description.

The Confirmatory Deed, despite its name, refers to the Property incorrectly as “lot numbered 21” on the Linke Plan, instead of the correct lot number, which is 212. The Confirmatory Deed is recorded with the Registry at Book 28249, Page 314.

23. The summary judgment record contains a copy of what appears to be a letter dated May 19, 2004 from Margaret Connolly to SLM Financial. The text of the letter is “Attached please find letter of Notice of Assignment from Fremont Investment and Loan to Homecomings Financial to verify that the loan for the above referenced client that was paid off is one and the same.” Homecomings denies that SLM Financial received this letter, and denies that this letter supports any inference about the intended priority of the Countrywide Mortgage.

24. Recorded at the Registry on September 1, 2005, at Book 31268, Page 252 is a document (“Homecomings Discharge”) purporting to discharge the Homecomings Mortgage. Homecomings contends this discharge is fraudulent. No party put a copy of this document into the summary judgment record.

25. The Stewart Affidavit provides that neither the person who purportedly executed the Homecomings Discharge, nor the notary who signed the acknowledgment of it, were ever an employee of Fremont (Homecomings’ predecessor).

26. Recorded at the Registry on September 2, 2005, at Book 31275, Page 337 is a document (“Countrywide Discharge”) purporting to discharge the Countrywide Mortgage. Countrywide contends this discharge was fraudulent.

27. The affidavit (“Burns Affidavit”) of Deanna Burns, Vice President of Countrywide Home Loans, Inc., avers that the Countrywide Discharge is afflicted with several inappropriate and inaccurate features; Burns says the Countrywide Discharge misstates that Countrywide is a California Corporation (Countrywide is incorporated in New York); misstates the department issuing the discharge as “Document Control” when the proper department is Trustee Division, ReconTrust Company; was notarized in Orange County, California despite the fact that Countrywide’s discharges originate in either Ventura County, California, or Maricopa County, Arizona; was apparently executed and prepared by individuals who were never employees of Countrywide; as well as several other irregularities.

28. On September 8, 2005, Denise Bruce granted a mortgage on the Property to Long Beach Mortgage Company, securing a note in the original principal amount of $487,500.00, and recorded with the Registry on September 13, 2005 at Book 31327, Page 70. This mortgage (“Deutsche Bank Mortgage”) is now held by defendant Deutsche Bank.

29. The assignment of the Countrywide Mortgage (from SLM Financial to Countrywide) was recorded at the Registry on October 19, 2005, at Book 31555, Page 102.

30. The Deutsche Bank Mortgage purportedly was discharged by an instrument recorded at the Registry on April 19, 2006 at Book 32536, Page 75. Deutsche Bank maintains that this discharge was fraudulent. No party put a copy of this document into the summary judgment record. Deutsche Bank did not file any papers in support of, or in opposition to, the pending motions for summary judgment.

31. On April 21, 2006, Denise Bruce granted a mortgage of the Property to MERS as nominee for Fremont Investment & Loan, securing a note in the original principal amount of $468,000.00, and recorded with the Registry on April 26, 2006 at Book 32574, Page 170 (“MERS Mortgage”).

32. On March 20, 2007, Denise Bruce granted a mortgage of the Property to World Savings Bank, securing a note in the original principal amount of $408,750.00, and recorded with the Registry on March 28, 2007 at Book 34298, Page 35. This mortgage (“Wachovia Mortgage”) is now owned by Wachovia.

33. On June 27, 2007, Denise Bruce granted a mortgage (“HSBC Mortgage”) of the Property to MERS as nominee for HSBC Mortgage Corporation, securing a note in the original principal amount of $325,000.00, and recorded with the Registry on July 10, 2007 at Book 34796, Page 303.

34. On March 4, 2008, Denise Bruce granted a mortgage (“Emigrant Mortgage”) of the Property to Emigrant Mortgage Company, securing a note in the original principal amount of $440,000.00, and recorded with the Registry on March 27, 2008 at Book 35774, Page 292.

35. Margaret Connolly was the closing attorney for the Countrywide Mortgage, and notarized both of the Curley Mortgages. Madison Title Services closed the Wachovia Mortgage, the HSBC Mortgage, and the Emigrant Mortgage.


“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

A. Validity of Mortgages

“Whether a notary’s certificate is a ‘true presumption’ or ‘rather the drawing of an inference of regularity and compliance with law,’” the presence of a notarization is not fatal to a claim of fraud or forgery, and may be overcome with an appropriate showing. See Keville v. McKeever, 42 Mass. App. Ct. 140 (1997) (quoting Hale v. Hale, 332 Mass. 329 , 333 (1955)) further appellate rev. denied 424 Mass. 1107 (1997). A forged instrument is void and has no effect even when recorded in seemingly regular fashion in the registry of deeds. See Strother v. Shain, 322 Mass. 435 , 437 (1948) (“neither acknowledgment nor recording could confer validity upon an invalid instrument”); Breed v. Gardner, 187 Mass. 300 , 304-305 (1904) (holding forged instrument was void and gained no validity from being recorded in registry of deeds despite good faith purchaser). See also Whittenberger v. Commercial Credit Corp., 1 LCR 38 , 38 (1993) (Misc. Case No. 183154) (Sullivan, J.) (“Historically, real estate, the title to which had not been registered and confirmed in the Land Court, was subject to the general rule that a forged deed was void and passed no title. Interestingly enough it is difficult to find a Massachusetts case that so states unequivocally[.]”). [Note 4]

Defendants Wachovia, HSBC, and Emigrant Mortgage oppose granting summary judgment to Countrywide and insist that material facts remain in dispute as to whether or not the three disputed discharges are fraudulent or not. They have offered into the summary judgment record, however, nothing by way of proper relevant evidence to support their protests that disputes exist. Attempts to defeat summary judgment by claiming facts are in dispute that require trial, while coming forward with only “conclusory factual assertions,” are simply not sufficient. See Anderson, 477 U.S. at 248. Both Homecomings and Countrywide have offered affidavits listing numerous persuasive reasons in support of their respective officers’ sworn determinations that the Homecomings Discharge and Countrywide Discharge were fraudulent, notwithstanding that they appear on their faces to have been signed by notaries. The authenticity of these notarial certificates themselves also have been called into doubt by the Stewart and Burns Affidavits. If these affidavits (in the form of testimony) were the only evidence introduced at trial, the only reasonable conclusion the court would draw is that the discharges were fraudulent. Wachovia, HSBC, and Emigrant each had an opportunity to demonstrate to the court that the validity of these discharges was truly in dispute, but did not do so. Accordingly, the issue whether the Countrywide Mortgage and Homecomings Mortgage were discharged is settled on the uncontested facts in the record as a matter of law: the purported discharges were not effective because they were forged and fraudulent.

Given that the purported discharges of the Countrywide Mortgage and Homecomings Mortgage are forged and fraudulent, none of the remaining defendants may argue they relied on the presence in the Registry of those forgeries. A fraudulent discharge is void. See Breed v. Gardner, 187 Mass. at 304-305. Reliance on a void instrument by a third party does not confer vitality on the void instrument. See id.

B. Priority of Mortgages

“Equitable subrogation is an exception to the basic ‘first in time is first in right’ rule for mortgage priority.” Wells Fargo Bank v. Nat’l Lumber, 76 Mass. App. Ct. 1 , 5 (2009) (quoting East Boston Sav. Bank v. Ogan, 428 Mass. 327 , 329 (1998)) (internal elision omitted). “Subrogation allows one party who paid the debt of another to be entitled to the rights, remedies, or security enjoyed by the original creditor[.]” Id. When the doctrine is applied, “... ‘the new mortgage given by a mortgagor, who used the proceeds of the new mortgage to extinguish an earlier mortgage, may receive the same priority once given to the earlier mortgage.’” Id., quoting East Boston, 428 Mass. at 330.

A five-prong test is applied to determine if subrogation lies. East Boston Sav. Bank v. Ogan, 428 Mass. at 330. A court must determine:

(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt paid, (4) the subrogee paid off the entire encumbrance, and (5) subrogation would not work any injustice to the rights of the junior lienholder.

Id. (footnote omitted)(quoting Mort v. United States, 86 F.3d 890, 894 (9th Cir. 1996)). Subrogation, however “rests upon equity” Wells Fargo Bank v. Nat’l Lumber, 76 Mass. App. Ct. 1 , 5, and “depending on the individual case, it may apply even when one or more of these factors is absent.” East Boston Sav. Bank, 428 Mass. at 330 (quoting Mort, supra.).

A commonly encountered equitable subrogation case is when a refinancing mortgagee pays off the prior-recorded first mortgage, but neglects (through mistake or inadvertence) to pay off a prior-recorded junior mortgage. In that situation, subrogation is appropriate and the refinancing mortgagee would be put in the position of first priority notwithstanding that its mortgage was recorded later in time than the junior lien. The junior mortgagee in this situation suffers no prejudice because it always intended to be in a junior position. See generally RESTATEMENT (THIRD) OF PROP.: MORTGAGES § 7.6 cmt. e (1996).

Here, the situation is different. Countrywide seeks to be subrogated to Homecomings’ superior position because Countrywide intended a first-priority mortgage, and attempted to pay off the Homecomings Mortgage. The problem for Countrywide is that, for whatever reason, the entire amount of the debt secured by the Homecomings Mortgage was not paid off. “Where subrogation to a mortgage is sought, the entire obligation secured by the mortgage must be discharged. Partial subrogation to a mortgage is not permitted.”RESTATEMENT (THIRD) OF PROP.: MORTGAGES § 7.6 cmt. a (1996). [Note 5] Homecomings remains in a position superior to Countrywide because the debt secured by the Homecomings Mortgage was not satisfied by the $394,388.11 payment from Countrywide. Of course, although the Homecomings Mortgage remained outstanding as a result of this incomplete payment, the amount then secured by the Homecomings Mortgage was reduced by the payment received.

The issue whether Fremont or Homecomings received any payoff funds is not a disputed fact requiring a trial. It has been established as a matter of law. Included in the orders made by the court following the February 23, 2010 hearing on the motion for summary judgment was: “Within Ten Days of Receipt of Subpoenaed Check, Plaintiff to Supplement Summary Judgment Record with Copy of Subpoenaed Check and to File Brief Memorandum Describing the Check's Legal Significance. Responsive Memoranda to be Filed and Served Within Ten Days of Receipt of Plaintiff's Filing.” The subpoenaed check, Check 16850, was produced on March 3, 2010. Countrywide filed its supplemental briefing on March 16, 2010. Homecomings had the opportunity to file its own legal memoranda explaining to the court what impact, if any, the production of the Check 16850 had on this case, or to contest its authenticity or raise some other objection or defense. Homecomings did not take that opportunity. The fact that Check 16850 was given to and negotiated by Homecomings is established as an uncontested fact on the record as it stands.

Based on the undisputed facts in this record, Homecomings received the payment from Countrywide, and that payment was intended to satisfy the debt secured by the Homecomings Mortgage. There can be no dispute that payment, albeit in an amount somewhat less than claimed as due to satisfy the obligations then secured by the mortgage, went from Countrywide to Homecomings. Accordingly, the judgment that enters in this case will provide for reduction of the amount due on the Homecomings Mortgage by the amount tendered by Countywide to Homecomings, [Note 6] and will declare that the Homecomings Mortgage, securing that reduced amount, is in first position, and the Countrywide Mortgage is in second position.

As to the remaining four defendants, Deutsche Bank, Wachovia, HSBC, and Emigrant, there is no motion before the court that would allow the court to determine their priority in relation to each other (other than that they fall behind, and subject to, the mortgages of Homecomings and Countrywide). The issue whether the instrument purporting to discharge the Deutsche Bank Mortgage was, as alleged by Deutsche Bank, a forgery, is not up for decision today. Neither is the priority among the final three mortgagees to make loans secured by the Property, Wachovia, HSBC, and Emigrant. It appears, however, that each of these three defendants made a loan when there was at least one – and in the case of Emigrant, three – superior mortgages of record already encumbering the Property, in addition to the two fraudulently discharged mortgages. The Deutsche Bank Mortgage went to record at a time when the title may have appeared unencumbered because of the fraudulent discharges. However, it being settled that a fraudulent discharge is void, however it might present itself in the registry of deeds, and there being no defense available based on any good faith reliance, the fraudulent discharges at issue here are void, and the mortgages purportedly satisfied by them remained, at the time of the subsequent loans, in force. See supra Part IV.A. Given the rulings of law made today, it is not clear to the court what, if any, arguments remain available to these defendants that would alter their ordinary and chronologically indicated positions of priority.

C. Reformation

A deed, including a mortgage, can be reformed based on fraud, mutual mistake, or “mistake of one party . . . which is known to the other party . . . .” Ward v. Ward, 70 Mass. App. Ct. 366 , 369 & nn.4-5 (2007), but a deed will not be reformed based on mistake unless there is “full, clear, and decisive proof that the instrument failed to express the intent which both parties had in making it.” New York, N. H. & H. R. Co. v. Plimpton, 238 Mass. 337 , 340 (1921).

“It is settled that a written instrument...will be reformed on the grounds of mistake upon ‘full, clear, and decisive proof’ of the mistake.” Simches v. Simches, 423 Mass. 683 , 687 (1996) (quoting Berman v. Sandler, 379 Mass. 506 , 509 (1980)). See Franz v. Franz, 308 Mass. 262 , 266267 (1941) (ruling that reformation of deed is appropriate where necessary to give effect to the intent of parties). See also Dime Sav. Bank of New York v. Sullivan, Land Court Miscellaneous Case No. 160590 (Nov.10, 1992) (Kilborn, J.), aff’d, 37 Mass. App. Ct. 1107 (1994) (unpublished opinion issued pursuant to Appeals Court Rule 1:28). Wells Fargo Bank, N.A. v. Metcalf, 15 LCR 436 (2007), New Century Mortg. Corp. v. Vining, 17 LCR 155 (2009).

“It is well established that legal instruments, including deeds, may be reformed on the ground of mutual mistake.” Buk Lhu v. Dignoti, 431 Mass. 292 , 294 (2000). “If the language of a written instrument does not reflect the true intent of both parties, the mutual mistake is reformable. Mickelson v. Barnet, 390 Mass. 786 , 791 (1984). Fireman’s Fund Ins. Co. v. Shapiro, 286 Mass. 577 , 582 (1934). The mistake must either be mutual... or be made by one party and known to the other party (see Century Plastic Corp. v. Tupper Corp., 333 Mass. 531 , 535 [1956]; Torrao v. Cox, 26 Mass. App. Ct. 247 , 250 [1988]). To be entitled to reformation, a party must present full, clear, and decisive proof of mistake. ...” Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747 , 756 (1993). “The parol evidence rule does not bar extrinsic proof of intent in these circumstances.” Id.

In W. M. Gullicksen Mfg. Co. v. MacNeil, 347 Mass. 568 , 575-576 (1964), the court referred to the “principle of undoubted soundness to the effect that a court of equity has power to order the reformation of deeds or the execution of confirmatory deeds to include property or parties omitted through error.”

In Smith v. Smith, 313 Mass. 687 , 694-695 (1943), the court, in reference to Franz v. Franz, supra, said: “Since the deed in that case was not drawn in accordance with their expressed intent and the expected legal consequences were not provided for therein, it was held that the deed should be reformed....” In Franz, 308 Mass. at 267, the court cited approvingly to Williston’s view that “[f]or relief [reforming a deed] ‘[i]t is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention.’”

“[A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality.” Beaton v. Land Court, 367 Mass. 385 , 392 (1975).

On the record assembled, there is a sufficient, entirely unopposed demonstration that Countrywide is entitled to a judgment which reforms the descriptive error in its mortgage. Countrywide has made a sufficient showing, to the full degree of proof the law insists upon, that Countrywide as lender intended to have its borrower validly and effectively encumber the Property, meaning the land shown as lot 212 on the Linke Plan, not “lot 21.” There simply is no contrary inference the court might reasonably draw on this record. The street address recited in the mortgage description is correct, and there is nothing to suggest that Bruce owns the property that is shown as “lot 21” on the Linke Plan.

The defendants Wachovia, HSBC, and Emigrant oppose granting a judgment of reformation to Countrywide based on laches, arguing that Countrywide’s delay in seeking reformation has prejudiced them in some way. The court is not convinced a laches defense lies in this case. Reformation for mutual mistake inevitably involves error on the part of the parties to a transaction. This case involves a lending transaction, and there is no reason why, the error having been committed, and the mortgage having gone to record with a single digit missing from the lot designation on the record plan used to describe the locus, Countrywide would have come to be aware of that error any sooner than it did. There is no evidence in the record to show otherwise. Countrywide, having taken in the flawed mortgage, having closed the loan on its strength, and having recorded the mortgage in the registry, would not have had any real occasion, nor any duty, to return to its files or to the registry to ferret out the descriptive error. Even if Countrywide had some responsibility to audit its mortgage loan documentation, and to scour them for an elusive descriptive error of the sort involved here, nothing shows how Wachovia, HSBC, or Emigrant would be the beneficiary of that responsibility, and entitled to its protection. The judgment that enters in this case will reform the Countrywide mortgage, nunc pro tunc back to the date of its recording, to reflect the proper and obviously intended lot number of the Property.

D. Resolution of the Case

The record in this case shows a staggering mess made of the record title to a single residential property. Not one, not even a few, but multiple mortgage loans over several years yielded repetitive advances, by a large number of lenders, of many hundreds of thousands of dollars each, all secured by the same house parcel. Whatever cozenage may have been involved in these misbegotten transactions (and the record strongly suggests a pattern of artful and intentional deceit) was to no small degree facilitated by deficient lending controls and practices.

The court is not able to say how much the house here is worth. But it is no great challenge for the court to conclude that the various lien holders’ claims, taken one after another, will hit the bottom of the well fairly fast, given the large loan amounts put out each time (not to mention the legal and other costs incurred since, in dealing with the tortured title these loans engendered.) It may be that, on pragmatic reflection, many, if not all, of the lenders involved in this litigation will conclude that there is no real need to pursue it much further than it has come, given the lack of reward likely to be achieved. The court encourages counsel to caucus with their respective clients to make a well-balanced determination on how this case ought to reach its conclusion.

It is

ORDERED that Countrywide’s motion for partial summary judgment is, to the extent set out in this Order, GRANTED. It is further

ORDERED that counsel for all parties are to confer, and to file, by May 23, 2011, a joint written report detailing their position(s) on whether this case is ready for judgment, or whether issues remain for the court to resolve. Based on the submission, the court will proceed to enter judgment or order further proceedings. If parties agree that judgment is to enter, the parties are to file either an agreed-upon proposed form of judgment, or competing proposed forms of judgment. Proposed forms of judgment are to include the specific amounts of monies outstanding on each loan secured by a mortgage at issue in this case, and the priority to be given to each, in light of the rulings made in this Order.

So Ordered.

By the Court. (Piper, J.)


[Note 1] “The superior court may, upon the application of either party, order a jurywaived civil action where any right, title or interest in land is involved, including actions for specific performance of contracts, removed to the land court for trial and disposition. Upon the entry of such an order, the clerk of the court shall forthwith transmit all the papers in the case to the recorder of the land court who shall forthwith enter them on the land court docket, which court thereafter shall have jurisdiction of the action so removed.”

[Note 2] This filing was preceded by several filings by Homecomings that were amended or withdrawn. The full record is as reflected in the court’s docket for this case.

[Note 3] It is unclear on this record why Fremont took a mortgage on the Property from Andrew Curley ( the Second Curley Mortgage), whether the loan supposedly secured by that mortgage was ever paid off, and whether the discharge recorded October 17, 2003 was authorized by Fremont, or was the result of mistake, or of fraud. To the extent that the October 17, 2003 “discharge” refers to a “mortgage” that was granted by a person who at all relevant times lacked any title to the mortgaged property, the discharge is void. See infra Part IV.A.

[Note 4] The Whittenberger case dealt with land, title to which was registered by the Land Court, and was affirmed, 37 Mass. App. Ct. 303 (1994). The courts in Whittenberger relied on the provisions of G.L. c. 185, s. 62 governing registered land transactions, that “any subsequent registration procured by the presentation of a ... forged deed or other instrument, shall be null and void.”

[Note 5] “The reason is that partial subrogation would have the effect of dividing the security between the original obligee and the subrogee, imposing unexpected burdens and potential complexities of division of the security and marshaling upon the original mortgagee.” Id.

[Note 6] The Restatement provides that, “[w]hile a subordinate mortgagee who makes partial payments on a prior mortgage... may not have subrogation, such a mortgagee may add the payment to the balance owing on the subordinate mortgage, and may recover it in foreclosure or in an action on the debt or for reimbursement of the payment, as appropriate. See § 2.2. The payor may also have an independent claim for restitution to prevent unjust enrichment.” RESTATEMENT (THIRD) OF PROP.: MORTGAGES § 7.6 cmt. a (1996)