THE BOSTON FIVE CENTS SAVINGS BANK vs. THOMAS BRIAN SWIST, LEONA ANN SWIST

This proceeding was filed on October 21,1974, under the of provisions of an Act of Congress know as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, (the Act) and Mass. St. 1943, c. 57, as amended by St. 1945, c.120 and St. c.105, for authority to make entry and to exercise the power of sale contained in a mortgage of real estate.

The petitioner, in accordance with the provisions of the Act, filed an affidavit as to military service which declared that Thomas Brian Swist, hereinafter call the respondent, was in the military service of the United States. Pursuant to the Court's order, a copy of the order of notice was duly sent by registered mail to the respondent at Fort Meade, Maryland, his military address Similar notice was also given to the respondent's wife. Due notice of the proceeding was given and was received by all respondents. No appearance or answer was filed by or on behalf of any respondent by the return day. In accordance with the Act, an attorney was appointed by the Court on November 20, 1974, to represent and protect the interest of the respondent. A hearing was held at which the petitioner was represented by counsel and the respondent by the Court appointed military attorney. On all the evidence I find as follows:

The petitioner, The Boston Five Cents Savings Bank, is the holder of a so-called "G. I." mortgage containing a statutory power of sale given by the respondent and his wife, Leona Ann Swist, which mortgage is dated September 6, 1973, and recorded with Bristol County Registry of Deeds in Book 1083, Page 374. The mortgage secures a 30 year loan at 7% originally in the principal amount of $23,490.00 requiring monthly principal and interest payments of $156.29 and a monthly real estate escrow tax payment of $59.71. The mortgaged premises consist of a single family dwelling located at 137 Mountfair Circle, Swansea, Massachusetts, which is presently unoccupied. No principal, interest or escrow tax payments due on the mortgage note have been made since May 6, 1974, and, therefore, a default thereunder now exists and is continuing. At the time of hearing the principal balance was $23,314.60; interest to May 22, 1975, was $1,704.89; expenses of possession, including boarding, securing and clearing the premises, were $580.00; legal charges, disbursements and military attorney's fee were $596.67. The total amount owed as of the date of hearing, not including late charges, was $26,196.16. Unpaid real estate taxes on the premises were $684.95.

The mortgaged premises were purchased by the respondent and his wife on September 6, 1973. The respondent was not in the military service at that time but was employed in Fall River, Massachusetts, at an hourly rate of $3.54. In October, 1973, the respondent began employment in the post office in Providence, Rhode Island, where he earned $4.87 an hour, but subsequently resigned from this job for personal reasons. While unemployed and searching for work the respondent fell and severely injured his ankle which resulted in his hospitalization at a Veterans' Hospital in Boston where he submitted to surgery.

The respondent and his wife vacated the mortgaged premises sometime in July, 1974, and no one has occupied them since that time. The property has been put up for sale by the respondent and his wife without success. After vacating the premises in July, 1974, the respondent and his wife went to live with the parents of the respondent in Rhode Island where the respondent tried to find a job, apparently without success.

The default continuing and the mortgaged premises being unoccupied and vandalized, the petitioner made entry on said premises to foreclose the mortgage on November 22, 1974, and made expenditures totalling $580.00 to secure, clear and repair said premises.

The respondent reenlisted in the United States Army on August 26, 1974, and at the date of hearing was assigned to a military police battalion at Fort Meade, Maryland. His gross salary is $547.00 per month. The Court appointed military attorney has made commendable efforts to represent the respondent's interest. He has communicated with the respondent, his wife, the petitioner, and the father of the respondent by telephone and by letter. On December 16, 1974, the respondent's wife by letter informed the military attorney that she and the respondent would like to redeem the mortgaged premises on acceptable terms, one of which was that the respondent's father would rent the said premises for one year with an option to buy. She requested the attorney to communicate with the petitioner and her father-in-law to determine if a satisfactory arrangement could be achieved. Thomas J. Swist, the respondent's father, confirmed his intention to rent with an option to purchase and encouraged the military attorney to negotiate terms with the petitioner by letter of December 24, 1974. The military attorney had several conversations with officials of the petitioner which culminated in a written proposal to said attorney on February 10, 1975, under which foreclosure proceedings would be suspended, providing an initial payment of $1,000.00 was paid to the petitioner; the balance of the arrearage to be paid so that the loan was current within twelve months. Request was made that notice of approval of the special program be communicated to the petitioner by February 18, 1975. The military attorney sent a copy of the petitioner's letter, outlining the terms of reinstatement of the loan to the respondent and the respondent's father but received no reply from either. On March 4, 1975 the military attorney sent a certified letter to the respondent (with copy to his father) advising that, not having heard from him and being informed by respondent's mother of respondent's intention to make military service his career, he intended to report to the Court that he had no objections to the pending foreclosure proceeding. No reply to this letter was received by the attorney. On April 18, 1975 notice of the hearing to be held on May 28, 1975 was sent to the respondent, his father and the Judge Advocate General's Office at Fort Meade.

The mortgage in question is a mortgage on real property owned by the respondent at the commencement of his current period of military service which is still owned by him and which secures an obligation originating prior to the respondent's current period of military service. The respondent, therefore, is entitled to protection under the provisions of Section 302 (1) of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The Act, however, does not preclude the foreclosure of mortgages on property owned by those in the military service who are entitled to the protection afforded by it. The Act rather forbids foreclosure under a power of sale contained in a mortgage unless the sale under the power is made upon an order previously granted by the Court and a return thereto made and approved by the Court.

I find that the respondent's entry into the military service did not materially affect his ability to comply with terms of the mortgage obligation in question. The respondent appears to have no equity in the mortgaged premises. The default first occurred several months prior to the respondent's entry into service, due undoubtedly to his injury and unemployment. The mortgaged premises had been vacated by the respondent and his wife for some time prior to his entry into military service. I further find that the respondent is not apparently interested in making the payments required under the mortgage terms. I find that the amount due is increasing and that the property has deteriorated and will deteriorate further and that its value has and will decrease further unless proper supervision is given and repairs made as required. No request for a stay or for other disposition has been made by the respondent or anyone acting on his behalf.

The Court, therefore, rules that a decree is to be entered granting the petitioner authority to make an entry and to exercise the power of sale contained in the mortgage.

Decree accordingly.