MISC 1978-91249

November 22, 1978

Middlesex, ss.

Sullivan, J.


This is a complaint to remove a cloud from the plaintiff's title to real estate situated on Union Avenue and Brewster Street in Framingham in the County of Middlesex. The defendant, Suburban Credit Union, is the lessee in a lease executed prior to the mortgage pursuant to the foreclosure of which the plaintiff claims. The defendant, Leon M. Fox, is an attorney who presumably is the holder of a lien on the mortgaged premises, but his interest therein is not clear. The other defendants neither appeared nor answered.

The cloud of which the plaintiff complains derives from the proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act brought in this Court by Framingham Trust Company. On March 28, 1978 in Miscellaneous Case No. 88575 a judgment was entered authorizing Framingham Trust Company to make an entry and to sell the property covered by a mortgage from Laurence N. Fogarty, Trustee of the World Realty Trust to Framingham Trust Company, dated April 22, 1971 and recorded with Middlesex South District Deeds, Book 11985, Page 116 [Note 1] When the foreclosure deed and entry were brought to this Court for approval, one of the judges declined to sign such certificate in view of the following facts. After the entry of the judgment in Miscellaneous Case No. 88575, Framingham Trust Company assigned said mortgage, and the note and claim secured thereby to the present plaintiff who immediately thereafter in turn assigned the mortgage, note and claim to Faith V. Easter; the two assignments were recorded in Book 13461 at Pages 393 and 395. Easter thereafter reassigned the mortgage, note and claim to the present plaintiff by instrument recorded in Book 13496, Page 703. The legal advertising was done in the name of Easter who was the then holder of the mortgage, these publications being on June 1, June 8 and June 15 of this year. The sale was held on June 26, 1978 and was sold by the plaintiff, the then holder of the mortgage, through an auctioneer to himself at public sale. After this Court declined to approve the foreclosure for purposes of the Soldiers' and Sailors' Civil Relief Act, the deed, affidavit of sale and certificate of entry were recorded on July 24, 1978 in Book 13496 at Page 704 which was within thirty days of the sale.

The plaintiff now brings this petition to establish that there was no person entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, at the time of the sale, that the entry and sale complied with such provisions and the provisions of G. L. c. 244, §14, and that the plaintiff holds his title to the property described in the mortgage free from all claims of the defendants arising from any irregularities in such sale.

Answers were filed on behalf of the defendants, Suburban Credit Union and Leon M. Fox. A trial was held at the Land Court on October 25, 1978 at which a stenographer was sworn to record the testimony. All exhibits introduced at the trial are incorporated by reference for the purpose of any appeal.

The mortgage is subject by its terms to a notice of lease, duly recorded with said Deeds, Book 11820, Page 461. I assume that this is the lease to Suburban Credit Union since the plaintiff admitted at the trial that his title is subject thereto) and the Court so finds and rules. There seems to be no dispute among the parties as to the defendant, Leon M. Fox's standing to raise a question about the validity of the mortgage foreclosure. The only issue which has been presented as to that is the propriety of the original mortgagee assigning the debt and its security after entry of the Land Court judgment but before foreclosure proceedings, of the first assignee in turn assigning the mortgage, note and claim secured thereby to one who was presumably a straw whose name was to appear in the newspaper for purposes of the legal advertising required by Chapter 244, Section 14, and of the reassignment to the first assignee to conduct the sale. The case also presents the further question raised by Suburban Credit Union as to its entitlement to counsel fees which the defendant alleges it should not have had to incur since it always has been clear that its interest was prior to that of the mortgagee.

Historically, this Court has been reluctant to approve foreclosure proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, when the foreclosure was consummated by one not a party to the court proceedings. This reluctance apparently can be traced to the rule of Lynn Institution for Savings v. Taff, 314 Mass. 380 (1943), wherein the Supreme Judicial Court recognized the defendant's right to interpose defenses other than those sounding in military service and to counterclaim as well. The General Court thereafter limited the right to appear and answer to those entitled to the benefit of the federal act. St. 1959, c. 105, §2; see Beaton v. Land Court, 367 Mass. 385 , 387-88, appeal denied, 423 U.S. 806 (1975). In view of the limitation now placed on defendants in such proceedings and the rarity of a counterclaim, there seems no reason to preserve the former rules but rather to permit substitution of parties when required by the factual situation. That is not the question which is presented here, however, for the assignments occurred after the entry of the judgment in the previous case. The issue now is whether the three assignments described above in any way affected the validity of the sale. Absent any evidence that the advertisement by one assignee and the conduct of the sale by another misled possible purchasers or chilled the bidding, I see no impropriety in the actions of the assignees. Montague v. Dawes, 12 Allen 397 , 399-400 (1866). The assignee of the mortgage or successive assignees of the mortgage, as the case may be, when also the holder and endorsee of the note secured thereby, is possessed of all the rights, interests and benefits which the original mortgagee had. Provident Co-operative Bank v. James Talcott, Inc., 358 Mass. 180 (1970); United States Trust Co. v. Commonwealth, 245 Mass. 75 (1923). These include the right when a default exists and is continuing to enter, take possession and sell the mortgaged premises in accordance with the provisions of G. L. c. 244, §14. On all the evidence I therefore find and rule that the entry and exercise of the power of sale complied with said statutes, that no person interested in the premises was in the military service and that the plaintiff holds the premises free from any claims of the defendants other than Suburban Credit Union to whose rights under the lease, to the notice of which reference has been had, his title is subject.

A motion was made at the trial that costs be awarded to Suburban Credit Union on the theory that it had been required to incur legal fees to preserve its status as lessee when its priority should have been obvious. See G. L. c. 231, §6F, inserted by St. 1976, c. 233, §1. The statute now permits the court to award an amount representing counsel fees and other costs and expenses incurred in defending against claims if the court expressly finds that a claim made by a party represented by counsel was "insubstantial, frivolous and not advanced in good faith". Goodwin Brothers Leasing, Inc. v. Nousis, Mass. (1977) [Note 2] I cannot find that the claim was not made in good faith so recovery based on section 6F is denied. There is no basis for recovery by the defendant corporation at common law. See Sandor v. Fuss, Mass. (1977) [Note 3] where the Supreme Judicial Court said:

As a general rule in Massachusetts, a litigant must bear his ovm expenses except in so far as (1) a statute permits awards of costs, Loyal Protective Life Ins. Co. v. Massachusetts Indem. & Life Ins. Co., 362 Mass. 484 , 494 (1972), or (2) a valid contract or stipulation provides for costs, or (3) rules concerning damages permit recovery of costs. Bournewood Hosp. Inc. v. Massachusetts Comm'n Against Discrimination, Mass. , (1976). Successful litigants can recover attorneys' fees as an item of damages only in a very restricted class of cases. Bournewood Hosp. Inc. v. Massachusetts Comm'n Against Discrimination, supra at , (attorney's fees not allowed where important legislative public policy at issue).

Judgment accordingly.


[Note 1] All recording references are to the Middlesex South District Registry of Deeds unless the context otherwise Suggests.

[Note 2] Mass. Adv. Sh. (1977) 1663, 1673.

[Note 3] Mass. Adv. Sh. (1977) 363, 370.