Home RUSSELL MANAGEMENT, INC. vs. WHITFIELD JOHNSON, Administrator of the Estate of Howard Moore.

MISC 1978-5004

November 13, 1978

Nantucket, ss.

Fenton, J.


This petition was brought under the provisions of G. L. c. 185, § 114, by a registered owner of land in Nantucket asking this court to amend petitioner's certificate of title by striking therefrom a notice of lis pendens filed by respondent.

A hearing was held by this court on July 5, 1978, at which time arguments were presented and documents introduced into evidence. These exhibits, which chronicle certain relevant procedural events in state and federal courts, are incorporated herein for purposes of any appeal.

The facts are not in dispute. Petitioner Russell Management, Inc., is the registered owner in fee simple of a parcel of land situated in the Town of Nantucket, described in Certificate of Title No. 6548, registered in Book 33, Page 148 in the Registry District of Nantucket County. Among the memoranda of encumbrances noted on the certificate is a notice of lis pendens, Document No. 18037, executed by Gerald H. Abrams, Esquire. This lis pendens purported to give notice of an application filed in the United States District Court for the District of Massachusetts to reopen the bankruptcy case of William E. Beach. The lis pendens was accepted for registration on March 18, 1977. As revealed in the amended answer, it was filed by Attorney Abrams on behalf of Whitfield Johnson, Administrator of the Estate of Howard Moore, a creditor in the original bankruptcy proceeding. Mr. Beach had filed the bankruptcy petition in 1933 and was discharged on December 4, 1934. The registered land owned by the petitioner was at one time a part of the estate of the bankrupt. Bankruptcy Judge Lawless denied the application to reopen on July 29, 1977, and his decision was appealed to the United States District Court for the District of Massachusetts. Petitioner filed this petition in the Land Court contending that the application to reopen the bankruptcy case could not support the lis pendens because it was not a "... proceeding affecting the title to land ..." within the meaning of G. L. c. 185, § 86. This court deferred consideration of this issue pending the final determination of the application to reopen in the United States District Court.

On April 10, 1978, United States District Court Judge Tauro ordered the case "remanded to the bankruptcy judge for reconsidera- tion in light of the F.B.I. report recently made available to the court." In Re William Beach, Bankruptcy No. 77-2633-T (Judge Tauro, U. S. District Judge). Also on April 10, 1978, Russell Management moved to intervene in the appeal from Judge Lawless' decision for the purpose of seeking an order to vacate the lis pendens. Judge Tauro remanded this issue as well to Judge Lawless, who denied the motion on August 11, 1978, thus leaving it for this court to decide the validity of the lis pendens.

On October 13, 1978, petitioner moved to enlarge the record to include documents reflecting procedural developments that occurred in the United states District Court subsequent to the hearing in this court on July 5, 1978. Respondent's counsel informed this court that he did not wish to contest the admissibility of the documents, and so they were accepted into the record on October 25, 1978 and are hereby incorporated for purposes of any appeal. The new exhibits indicate as follows. On August 31, 1978, Bankruptcy Judge Lawless issued a decision on remand for reconsideration in which he reaffirmed his earlier conclusion that the bankruptcy case did not merit reopening. Judge Tauro approved the report on September 11, 1978, and no appeal was taken within the 30 day limit imposed by Fed. Rule App. P. 4(a). Respondent filed a final motion, in the United States District Court which requested Judge Tauro to set aside all prior orders of Judge Lawless in the case and to disqualify him from any fUrther participation in the proceedings. This motion was denied by Judge Tauro on October 20, 1978.

This court rules that any conceivable justification for allowing the lis pendens to remain on petitioner's certificate of title has been removed by the actions described above. We need not now consider whether the original application to reopen provided a valid basis for a lis pendens, since the application has been conclusively denied and there is now no proceeding of any type pending in the United States District Court which could possibly support the lis pendens. That issue is therefore moot. G. L. c. 185, § 86, allows the filing of a memorandum of a notice of lis pendens affecting registered land if there is a "proceeding affecting the title to land or the use and occupation thereof or the buildings thereon •••" Since there is not now pending in the United States District Court for the District of Massachusetts any action by Estate of Howard Moore relating to the petitioner's land as described above, there is no basis for the continued notation of the lis pendens on petitioner's certificate of title.

The lis pendens filed in the Registry District of Nantucket County as Document No. 18037 on March 17, 1977, and noted on petitioner's Certificate of Title No. 6548 is hereby ordered cancelled.

Decree accordingly.