This matter comes before the Court on plaintiff's Motion for Summary Judgment against Defendant Robert E. Huettner.
The plaintiff seeks a judgment declaring defendant was not in the military service of the United States of America within the meaning of the Soldiers' and Sailors' Act of 1940 during any material time.
The plaintiff is the owner of property located at 156 Gleasondale Road, Stow, Massachusetts. His title stems from a foreclosure sale made pursuant to a power of sale contained in a mortgage. On or about November 19, 1975 the foreclosing mortgagee obtained a judgment in Land Court Case No. 77717 authorizing him to make entry and se1l. Defendant Huettner, a holder or an attachment of record on the above premises recorded after execution of the mortgage, was not a defendant in Land Court Case No. 77717 and apparently did not receive personal notice of the foreclosure sale.
Plaintiff submitted two affidavits in support of his Motion for Summary Judgment, in one of which the plaintiff stated "I know of no service in the military of the United States or her Allies by the Defendant Robert E. Huettner within the meaning of an Act of the 76th Congress of the United States known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, at anytime relevant to aforesaid Land Court Case No. 77717 and above described foreclosure sale." The defendant submitted no opposing affidavits as required by Mass. R. Civ. P. 56(e). The defendant did not appear at the hearing on plaintiff's motion but did submit a letter to the Court stating it was his position he was prejudiced by not being informed of the foreclosure sale. No mention whether or not defendant was entitled, to the benefit of the Soldiers' and Sailors' Act appears in this letter. Thus, as defendant has failed to controvent, as required by Mass. R. Civ. P. 56(e), the only material fact in issue, whether or not the defendant was in the military service within the meaning of the Soldiers' and Sailors' Act of 1940 at any relevant time, summary judgment in favor of the plaintiff is granted.