MISC 93428

January 2, 1980

Plymouth, ss.

Sullivan, J.


On January 29, 1979 Brockton Savings Bank (the "Bank") filed a complaint for leave to foreclose by entry and exercise of the power of sale a mortgage from Lurline I. Onessimo and Deron Grinion to it dated August 6, 1976 and duly recorded with Plymouth Deeds in Book 4187 at Page 547. The mortgage covers the premises at 404 Centre Street in Brockton in the County of Plymouth, more particularly described in said mortgage. After the complaint was filed the Bank advised the Court that one of the mortgagors was on active duty in the United States Marine Corps. The Court therefore appointed Elliott M. Davidson as a military attorney to represent the interests of Lance Corporal Grinion in accordance with the provisions of an Act of Congress known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. Service by deputy sheriff was made on the defendants Lurlene I. Onessimo and by registered mail on Industrial Bankers, but despite repeated efforts to reach the third defendant it is unclear whether he in fact received notice of the pendency of these proceedings. Mrs. Onessimo, however, is his mother and is believed to have communicated with him relative to the Bank's complaint.

On all the evidence I find and rule as follows:

1. The plaintiff is the holder of a mortgage containing statutory power of sale given by Mrs. Onessimo and Lance Corporal Grinion to it dated and recorded as set forth above. As of March 26, 1980, the amount necessary to pay the mortgage debt in full was as follows:

Principal $22,405.46

Interest from June 6, 1978 to March 26, 1980 3,387.78

Escrow 206.83

Accrued Late Charges 78.33

Other Charges and Fees 370.60

Total $26,449.00

The above sums do not include the complete legal fees and expenses for the foreclosure proceedings. In addition there are real estate taxes which are due and unpaid in the total amount of $1,974.01 plus interest thereon.

2. No payments have been made to the Bank since June 6, 1978. As of December 28, 1979 it would have required $5,551.97 to make banK paymens current in addition to whatever foreclosure costs had been incurred as of that date together with unpaid real estate taxes.

3. The defendant Lance Corporal Grinion entered the service of the United States after the execution of the note and mortgage so he is entitled to the benefit of said Act of Congress. However, every effort has been made, including correspondence directed to the Judge Advocate at Cawp Lejeune and to the defendant at the address furnished by the Marine Corp, to advise the defendant of the pendency of these proceedings. It is believed that he is aware of these proceedings and does not wish, or is not in a financial position, to make the mortgage loan current.

Since the mortgage loan is so obviously in default and has been for over 21 months it seems apparent that the serviceman has elected no longer to perform his obligations to the mortgagee. Undoubtedly he signed the mortgage papers with his mother with the best of intentions in order that she and his siblings might have a home in which to live but without necessarily any fixed purpose of personally continuing to make the payments as they came due.

The Court hereby rules that a decree is to be entered granting the plaintiff authority to make an entry and to exercise the power of sale contained in the mortgage.

Judgment accordingly.