MISC 83165

November 15, 1977

Suffolk, ss.

Sullivan, J.


This is a proceeding filed on December 9, 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. 150 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 Kenneth J. Chaisty, hereinafter called the defendant, was in the military service of the United states. Neither defendant filed an appearance nor an answer, but service by certified mail was had.

In accordance with the provisions of the said Act of Congress, Joseph W. Topor, Jr. was appointed by the Court to represent Chief Warrant Officer Kenneth J. Chaisty and to protect his interests. Hearing was held at the Land Court on November 9, 1977 at which the plaintiff was represented by counsel and the defendant 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 Kenneth J. Chaisty and Judith A. Chaisty, dated April 28, 1976 and recorded with Barnstable Registry of Deeds in Book 2330, Page 22. The mortgaged premises are located at 24 Greenville Drive in Sandwich, Forestdale Section, in the County of Barnstable, and are presently occupied by Judith A. Chaisty and her five children.

Since the commencement of these proceedings, the defendant has made no monthly installments and has claimed in a letter dated September 9, 1977 to Joseph W. Topor, Jr., the military attorney, that he is currently in the process of filing a petition in bankruptcy and is unable to redeem the property. Payments due August 28, 1976 and thereafter are in default as are real estate tax payments. The present principal balance of the mortgage is $33,808.56 with unpaid interest of $3,904.80, late charges of $119.56, and a real estate tax payment from the mortgagee's funds of $60.10, due as of November 7, 1977.

The defendant entered the military service more than eighteen years ago and was a member of the United states Navy when the mortgage and the note secured thereby were executed. Therefore, he is not entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. Section 302(1) thereof provides, "The provisions of this section shall apply only to obligations secured by a mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service and still so owned by him which obligations originated prior to such person's period of military service."

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.