COMMONWEALTH MORTGAGE COMPANY, INC. vs. DOROTHY MAE BROOKS BOND, et als

This is a proceeding filed on June 20, 1977 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 Carl L. Bond, formerly known as George L. Bond, hereinafter called the defendant, was in the military service of the United States. Notice of the proceeding was served by certified mail on the defendant who did not appear nor answer to the complaint. Accordingly, a military attorney, Robin Lederman, was appointed by the court to represent Carl L. Bond and to protect his interest. A hearing was held on March 1, 1978, at 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 George E. Bond to it dated February 22, 1977, recorded with Plymouth County Registry of Deeds in Book 4247, Page 211 and covering the premises known as and numbered 249 Mattakeesett Street in Pembroke, Massachusetts. The mortgage was given to secure a loan made to George E. Bond by the plaintiff in the principal amount of $19,900.00 as evidenced by a note to the plaintiff dated February 22, 1977, with interest at eight percent per annum requiring monthly payments of $146.07 commencing on April 1, 1977. No payments of principal or interest were ever made on the mortgage loan since the mortgagor, George E. Bond, died on April 4, 1977.

A petition for administration of his estate was filed in the Probate Court of Plymouth County by his widow, Alneta E. Bond, and was allowed on June 28, 1977, in Case No. 123453. The defendant, who was referred to therein as George L. Bond, was listed as a son and one of the heirs of the deceased.

At the date of hearing, the mortgage loan was clearly in default. At that date the unpaid principal amount of the loan was $19,900.00. Interest to March 1, 1978 was due in the amount of $1,614.10. The plaintiff had paid $420.16 for real estate taxes due on November 1, 1977 and had also paid an insurance premium of $160.00 on June 7, 1977. The plaintiff had also paid $41.29 for new locks and $75.00 for winterizing the house. The mortgaged premises have been vacant since April 4, 1977.

The defendant entered the military service on July 21, 1976, and was a member of the United States Air Force at the time the mortgage and the note secured thereby were executed by his father. At the time this proceeding commenced he was stationed at Grand Forks Air Force Base in North Dakota. He received certified mail notice of this proceeding. In addition, the military attorney wrote to him on November 9, 1977 and again on December 5, 1977 asking if he had any objections to the foreclosure of the mortgage and if he wished to bring the mortgage loan into current status. The military attorney received no reply from the defendant to either letter. Since the defendant was a member of the United States Air Force at the time the mortgage and the note secured thereby were executed by his father 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 at the commencement of the period of 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 plaintiff authority to make an entry and to exercise the power of sale contained in the mortgage.

Decree accordingly.