MISC 93304

August 27, 1979

Suffolk, ss.

Sullivan, J.


This is a proceeding filed on January 19, 1979 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. 150 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 Michael Calvin Perry, also known as Michael C. Perry, hereinafter called the defendant, was in the military service of the United States. Neither defendant filed an appearance nor an answer, but service by registered mail was had.

In accordance with the provisions of the said Act of Congress, John Henry Sullivan, Jr. was appointed by the Court to represent Staff Sergeant Perry and to protect his interests. Hearing was held at the Land Court on August 27, 1979 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 is the holder of a mortgage containing a statutory power of sale given by Michael C. Perry and Pauline Perry, husband and wife, to it, dated February 26, 1976 and recorded with Suffolk Deeds in Book 8857, Page 342. The mortgaged premises are located at 36 Rill Street in Boston in the County of Suffolk.

As of January 2, 1979 the mortgage payments were in arrears by six payments and those due thereafter are in default as well. Real estate taxes due May 1979 in the amount of $531.09 are unpaid. The present principal balance of the mortgage is $8,370.14 with unpaid interest of $710.09 due as of June 26, 1979.

The defendant originally entered the military service on December 12, 1969 and served to December 10, 1972. He subsequently served from December 11, 1972 to March 6, 1975, March 7, 1975 to December 6, 1978 and reentered December 7, 1978. He presently is stationed at Fort McPherson, Georgia. He was a member of the United States Army when the mortgage and the note secured thereby were executed. Therefore, he 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's 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.

Decree accordingly.