This is a proceeding filed on December 30, 1977 pursuant to 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 Robert J. Dunham, hereinafter called the defendant, is in the military service of the United States. Therefore, a military attorney, Robert C. Harrington, was appointed by the Court to represent Robert J. Dunham and to protect his interest. A hearing was held on June 28, 1978 in 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 Robert J. Dunham and Ruth Dunham to it dated June 16, 1977, recorded with Middlesex South District Deeds in Book 13215, Page 006, and covering the premises now known as and numbered 3 Nashua Street in Ayer in the County of Middlesex. The original principal amount of the promissory note secured by the mortgage was $29,500. No payments have been made by the mortgagors from September 1, 1977 to date. The mortgage clearly is in default, and the default is continuing.
Mr. Dunham is in the military service stationed at Fort Devens, Massachusetts. He has served continually with the National Guard and the Military Service of the United States Army from September 14, 1962. His most recent period of enlistment commenced on February 14, 1977. He was in the military service when the mortgage and the note secured thereby were executed and therefore 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 is 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.