MISC 95231

October 18, 1979

Berkshire, ss.

Randall, C. J.


Plaintiff filed this petition on June 12, 1979 under the provisions of the Soldiers and Sailors Civil Relief Act of 1940 and Mass. St. 1943, c. 57 as amended by St. 1945, c. 120 and St. 1959, c. 150 to foreclose a mortgage by entry and power of sale. The mortgage was given by respondents Kenneth W. Lake and Maryellen D. Lake, to petitioner, Lee Savings Bank, by instrument dated July 19, 1977, recorded in Book 991, Page 966. [Note 1] The said Lakes gave a second mortgage on the premises in question to Bruce M. Freeman and Marcia Blake Freeman by instrument of the same date, namely July 19, 1977, recorded in Book 991, Page 968. Both mortgages are in arrears. It appearing that Bruce M. Freeman is a major in the United States Air Force a military attorney, Joseph W. Topor, Jr. was appointed by the court to represent his interest in these proceedings in accordance with the provisions of the Soldiers and Sailors Civil Relief Act of 1940 as amended. At a hearing held at the Land Court on September 27, 1979 it appeared that the said Major Bruce M. Freeman had graduated from the United States Air Force Academy and from June 7, 1967 up to the present has served continuously in the armed services. In a letter dated September 1, 1979 Major Freeman indicated to Attorney Topor that he knew of the arrearages in the first mortgage and that the second mortgage was also in arrears; that he was not interested in redeeming the property himself; that he did not intend to write off any amount due to him by the Lakes but would hold them personally liable for it. Attorney Topor showed the Court a letter he sent to Major Freeman dated September 17, 1979 explaining fully the consequences on the second mortgage of Freeman of a foreclosure of the first mortgage held by the Lee Savings Bank.

Major Bruce Freeman chose not to file any answer in this proceeding. Section 302(1) provides as follows: "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 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."

Respondent Major Freeman is not entitled to any benefits under this act for several reasons; first because he is a mortgagee here rather than a mortgagor and owes no obligation and second, because this transaction took place long after he became a member of the armed services.

Judgment is to be entered granting plaintiff authority to make an entry and to exercise the power of sale contained in the mortgage.

Judgment accordingly.


[Note 1] All book and page references are to documents on file at the Berkshire County Registry of Deeds unless otherwise indicated.