MISC 87326

September 7, 1978

Plymouth, ss.

Fenton, J.


This is a proceeding filed on October 7, 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 Mitchell Woods Gordon, hereinafter called the defendant, was in the military service of the United States. Notice of the proceeding was served by registered mail on the defendant who did not appear nor answer to the complaint. Accordingly, a military attorney, John H. Sullivan, Jr., was appointed by the court to represent and protect the interest of the defendant. A hearing was held on July 7, 1978, 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 holds a mortgage containing the statutory power of sale given by the defendant and his wife, Dianne T. Gordon, to it dated September 14, 1973, recorded with Plymouth County Registry of Deeds in Book 3932, Page 578 and covering the premises known as and numbered 16 Burdett Road in Brockton, Massachusetts. The mortgage was given to secure a loan made to the defendant and his wife by the plaintiff in the principal amount of $23,900.00 as evidenced by a note from the defendant and his wife to the plaintiff dated September 14, 1973, with interest at seven and three-quarters percent per annum requiring monthly payments of principal and interest of $171.23 commencing on October 14, 1973.

At the date of hearing, the mortgage loan was clearly in default. At that date, the unpaid principal balance on the loan was $23,068.42. No payment of principal and interest has been made since March, 1977. The plaintiff had paid a balance of $120.30 for back real estate taxes and taxes due November 1, 1977 and May 1, 1978 remain unpaid. The plaintiff had also paid premiums for fire insurance on the mortgaged property in the total amount of $103.71. Additionally the plaintiff paid $105.00 for winterizing the house and $457.60 for boarding and securing the property. The mortgaged premises have been vacant since February, 1978 when the plaintiff took possession. At that time the pipes had burst due to freezing. On March 23, 1978 an appraisal of the property shows it to be in deteriorating condition and values it at $25,500.00, an amount less than the balance of principal and accrued interest due on the mortgage loan together with other payments made by the bank and charged to the mortgage account.

The defendant entered the United states Army on August 25, 1976. He was not, therefore, in military service at the time the mortgage and note secured thereby were executed by him and his wife. At the time this proceeding commenced, it appears the defendant was stationed in Oklahoma. He received registered mail notice of this proceeding but did not appear or answer. In addition, the military attorney notified him by registered mail on May 5, 1978 advising him of his appointment, providing him with pertinent information as to the overdue mortgage account and requesting the defendant to advise whether he had any further interest in the property. Sometime after May, the defendant wrote to the military attorney from his new station in Germany and forwarded a copy of an order from the bankruptcy court for the Western District of Oklahoma discharging the defendant as a bankrupt on April 13, 1978. In his letter he did not disclose any desire to save the mortgaged property but pointed out that he believed that his discharge in bankruptcy precluded any action against him for any deficiency judgment. The military attorney reported to the court that the defendant had no further interest in the property and confirmed that the current indebtedness due plaintiff exceeded the present value of the property.

The mortgage in question is a mortgage on real property owned by the defendant at the commencement of his current period of military service which is still owned by him and which secures an obligation originating prior to the defendant's current period of military service. The defendant, therefore, is entitled to protection under the provisions of Section 302(1) of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The Act, however, does not preclude the foreclosure of mortgages on property owned by those in the military service who are entitled to the protection afforded by it. The Act rather forbids foreclosure under a power of sale contained in a mortgage unless the sale under the power is made upon an order previously granted by the court and a return thereto made and approved by the court.

I have nothing before me which would permit me to find the defendant's entry into the military service materially effected his ability to comply with terms of the mortgage obligation in question. The defendant appears to have no equity in the mortgaged premises. There is no indication that defendant ever attempted to sell the property nor rent it. Instead the defendant has permitted it to deteriorate and waste away. I further find that the defendant is not apparently interested in making the payments required under the mortgage terms. I find that the amount due is increasing and that the property has deteriorated and will continue to deteriorate and that its value will decrease further unless proper supervision is given and repairs made as required. No request for a stay or for any other disposition has been made by the defendant or anyone acting on his behalf.

The court, therefore, rules that a decree should be entered granting the plaintiff authority to make an entry and to exercise the power of sale contained in the mortgage.

Decree accordingly.