MISC 82520

September 1, 1977

Suffolk, ss.

Sullivan, J.


This is a proceeding filed on October 19, 1976, under the provisions of an Act of Congress known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, and Mass. St. 1943, c. 57, as amended by St. 1945, c. 120 and St. 1959, c. 105 for authority to make entry and to exercise the power of sale contained in a mortgage of real estate.

The plaintiff, in accordance with the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, filed an affidavit as to military service which disclosed that Nathaniel Manigault, hereinafter called the defendant, was in the military service of the United States. Therefore, a military attorney, Elliott M. Davidson, was appointed by the Court to represent Nathaniel Manigault and to protect his interest. A hearing was held on August 24, 1977 in which the plaintiff was represented by counsel and the serviceman by the military attorney. On all the evidence I find as follows:

The plaintiff is the holder of a mortgage containing a statutory power of sale given by Nathaniel Manigault to it dated October 31, 1974, recorded with Suffolk Deeds in Book 8749, Page 603, and covering the premises now known as and numbered 78 Bloomingdale Street in Chelsea. On August 30, 1977 the unpaid principal amount of the loan was $19,008.64. Interest was in arrears in the amount of $2,116.97. The last payment made by the mortgagor was that due on June 30, 1976 and made on September 23, 1976. Taxes have been paid through December 31, 1976, but a default exists in tax account payments in the amount of $271.17. The mortgagee is also owed $161.65 for sums expended in the winterization of the premises and for fuel oil. In addition to these charges there is an attachment in the amount of $5,000 affecting the premises. The mortgagor clearly is in default, and the default is continuing. The mortgagor is in the military service stationed in Germany. At the time he purchased the property, however, he had retired from the service and was a civilian. Therefore he is entitled to the benefits of the Act of Congress. Nonetheless he has chosen not to avail himself of such rights. He has advised the military attorney that he has decided to abandon the property and assents to the foreclosure.

The Veterans Administration also has stated that the value of the mortgaged premises in December of 1976 was $19,000. It appears that the present value may be even less in the light of the vandalism problem. The sums due to the mortgagee are more than the present value of the mortgaged premises. As he has concluded, it would not be to his advantage to restrain the sale.

The Court hereby 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.