ATLANTIC SAVINGS BANK v. RALPH A. PESCATORE, Trustee of Megan Realty Trust and ROBERT M. SULLIVAN.

Atlantic Savings Bank filed a complaint on March 9, 1979 for authority to foreclose a mortgage to it from defendant, Robert H. Sullivan, dated December 11, 1974 and recorded with Suffolk Deeds, Book 8757, Page 738, by entry and possession and exercise of the power of sale. During the course of the proceedings defendant Sullivan acknowledged receipt of the citation and gave as his address "N.O.A.A. Ship Surveyor, F.P.O., Seattle, Wash. 98799." Since it appeared from this address that the defendant Sullivan might be in the military service the Court appointed Theodore F. Alcarez, Esquire, attorney, to represent said person and to protect his interest under the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.

A hearing was held in the Land Court (Department) on October 22, 1979. On all the evidence I find and rule as follows: at the time Robert M. Sullivan mortgaged the premises at 101 Washington Avenue in Chelsea in the County of Suffolk to Atlantic Savings Bank he was employed by Pan American World Airways and presumably entered the service at some date after the execution of the mortgage; the mortgage secures a loan under the Servicemen's Readjustment Act, as amended, a so-called GI loan; after the execution of the mortgage defendant Sullivan executed a power of attorney to one Carol Frost undated but acknowledged on September 1, 1976 and recorded with said Deeds, Book 8906, Page 491; the attorney named in the power thereafter executed a deed to herself as trustee of Megan Realty Trust dated October 14, 1976 and a mortgage to defendant Sullivan of the same date, recorded respectively with said Deeds in Book 8906, Pages 493 and 497; subsequently Ms. Frost was removed as trustee and Ralph A. Pescatore substituted in her place as set forth in a certificate recorded with said Deeds in Book 9062, Page 73; as of August 29, 1979 the first mortgage was in arrears in principal, interest and taxes in the amount of approximately $4,306.56; at the date of the execution of the mortgage the estimated value of the mortgaged premises was $23,000; the pipes in the building were frozen during the winter of 1978-79, and the property is now in poor condition and worth less than the amount of the first mortgage.

The mortgagee wishes to foreclose the mortgage and convey the property to the Veterans' Administration for proper disposal since it appears to have been abandoned and is currently deteriorating due to the abandonment. The house is open to vandals and represents a fire hazard to the neighborhood. If defendant Sullivan were still the equity owner of the property, he clearly would be entitled to the benefit of said Soldiers' and Sailors' Civil Relief Act; however, as a second mortgagee who became such after he entered (or re-entered) the military service, it would appear that he is not within the protected class. Section 302(1) provides as follows: "The provi- sions 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 the 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." This makes it clear that it is the mortgagor, not the mortgagee, whose rights are a matter of federal concern. The fact that Massachusetts is a so-called title theory state should make no difference.

In order to be certain that no injustice was done a member of the Armed Services, a military attorney, was appointed to represent Sullivan's interest. After a hearing in open court it appears that on all the evidence the first mortgagee is entitled to a judgment granting the relief which it has sought.

Judgment accordingly.