MISC 94871

May 28, 1980

Randall, C. J.


Petitioners herein seek to have the Court approve an entry and sale under a judgment in Land Court Miscellaneous Case No. 94871 entered November 27, 1979 foreclosing rights under the Soldiers and Sailors Civil Relief Act of 1940. To this end petitioners have filed the following documents: 1) Return in said Miscellaneous Case No. 94871; 2) Judgment; 3) Certificate of Entry to Foreclose; 4) Foreclosure Deed and Affidavit and 5) Certified copy of the Docket of Superior Court Case #40245/ 321 Habitat Corporation, et al vs. United Resources Corp. et al.

On April 9, 1980 an objection was filed with the Land Court by 321 Habitat Corporation by its attorney Timothy J. Sheehan, accompanied by 5 affidavits contradicting the affidavit filed by G. Everett Howes on behalf of the petitioners.

The Court on its own volition, though with the suggestion of respondent 321 Habitat Corporation, set the matter down for a hearing which was held on April 17, 1980 and on May 5, 1980. At the hearing a stenographer was sworn, witnesses were heard and 10 exhibits introduced into evidence, all of which are incorporated by reference herein in the event of any appeal.

The question to be decided is the validity of a foreclosure sale held on March 10, 1980 at 4:30 p.m. On all the evidence the Court finds the following facts:

1. On February 27, 1980 a foreclosure sale was scheduled at 10:00 A.M. covering property consisting of 3 contiguous lots described in Exhibit 6 (locus) containing between 8.5 and 9 acres of land in the Osterville section of Barnstable, Barnstable County, Massachusetts. The property is shown on a plan marked "Exhibit 2" herein. Lots 1 and 2 described in Exhibit 6 are south of a private way 40 feet wide shown on the plan, Exhibit 2. These lots contain a house owned by 321 Habitat Corporation and occupied by the Sheehan family. Lot 3 on said Exhibit 6 is located northerly of the private way running between Lot 3 on the north and Lots 1 and 2 on the south. Bounding the locus on the east is a private way running from West Bay in the south in a northeasterly direction to Bridge Street which in turn runs in a general east­west direction well north of the locus and more or less parallel to the private way between Lot 3 on the north and Lots 1 and 2 on the south. The auctioneer, one G. Everett Howes, put his flag in the ground at a point where the southerly edge of the private way running east and west through locus meets with the private way running from West Bay to Bridge Street. Present at the site of the sale were Timothy J. Sheehan, Jr., his wife Barbara Sheehan, Norman Kaufman, Esq., Stephen Ladoulis, Esq., John J. Roscoe, a constable for the City of Boston, a Mr. O'Neil plus two other gentlemen. The said constable John J. Roscoe had been appointed a Special Process Server by the Superior Court of Suffolk County in Case 40245 - 321 Habitat Corporation, et als vs. United Resources Corp. et als. He interrupted the sale after the auctioneer had stated it to serve process on Norman Kaufman, Stephen Ladoulis and the auctioneer in the above case. The process consisted of an order restraining the sale until March tenth. The parties served went to one side for consultation and then the auctioneer announced that the sale would be continued until March 1, 1980. There was controversy as to whether the sale was continued to 10:00 A.M. on March 1, 1980 as claimed by the respondent or was continued until 11:00 A.M. as contended by the petitioners herein. On the view that the Court takes of this matter the time of the continuance of the sale on March 1, 1980 is of no consequence.

2. On March 10, 1980 at 9:45 A.M. one Louis Yacker, a constable for the City of Boston and appointed a Special Process Server by the Suffolk Superior Court in the case of 321 Habitat Corporation vs. United Resources Corp., et als, being No. 40245 appeared at the home of Timothy J. Sheehan on the locus owned by 321 Habitat Corporation preparatory to serving an order restraining the foreclosure sale to be held that day at either 10:00 A.M. or 11:00 A.M. At or before 10:00 A.M. on March 1, 1980, Mr. Yacker, accompanied by Timothy J. Sheehan, Jr. went to the site of the suspended sale of February 27, 1980, just south of the junction of the two private ways as set forth in paragraph 1 above. They arrived and found Timothy J. Sheehan, Sr. there. The latter had previously been dispatched to the site at 5 minutes before 10:00 on March 1, 1980 to be sure that somebody was there at 10:00 A.M. One or more of these people remained at this particular point standing in the open or later sitting in an automobile until noon. One or more of them also walked up the private way running from West Bay to Bridge Street. They kept a large part of the 8.5 to 9 acre locus under constant observation. There is an area to the northeast of the locus, covered with underbrush and wooded, that could not be observed from their position at the intersection of the private roads. During this time they saw only a silver car with two passengers in it drive down the private way from Bridge Street to West Bay, take a right into the east-west private way east to the house located on locus at a rather fast rate of speed. The car then turned around and returned its course to Bridge Street without otherwise stopping. They observed no auctioneer, no auction flag and no other individual or individuals from 9:55 until past noon on March 1, 1980.

3. On March 1, 1980 the auctioneer, G. Everett Howes, testified that he left his office in Hyannis to go to the locus to conduct the sale. His car "was acting up" so much that he was late for the sale and, in error, passed the private road running southerly from Bridge Street to West Bay. He continued on Bridge Street some 300 or 400 feet past the way to West Bay where his car gave out. He testified that he parked on the left hand side of the road, not "the wrong side" of the road, took his trusty flag, and walked down through the woods from Bridge Street to a point that he was sure was inside of the property line of locus. It should be pointed out that he had been at the locus just once before and then not in this part of the locus. He held his flag in one hand, mumbled some words and continued the sale from March 1, 1980 until March 10 at 4:30 P.M. He then went back through the woods to his car, tinkered with his carburetor, got it started, and limped back to his office in Hyannis. Needless to say, nobody was in the woods with him when this sale was continued until 4:30 P.M. on March 10.

4. On March 10 at 4:30 P.M. the auctioneer testified that he appeared at the original location of the sale of February 27, 1980 at the junction of the two private ways on the easterly line of the locus. He did not conduct this third sale in the woods. Present was Norman Kaufman, Trustee, who bid on the property after the auctioneer had put up his flag and had made the announcement. Nobody was there except for the auctioneer and Mr. Kaufman.

5. At some later date G. Everett Howes submitted an affidavit in which under paragraph 6 he stated as follows:

6. That at 10:00 a.m. March 1, 1980 upon instructions from Mr. Kaufman, I again appeared on the subject property; set forth my red auctioneers flag and postponed the sale by reading the printed advertisement and adding thereto the fact that the sale was postponed to March 10, 1980 at 4:00 p.m.

On all the above facts the Court finds and rules that the sale on March 10 was invalid due to its being improperly postponed on March 1, 1980. The object of a mortgagee's auction sale is to sell the premises for the best possible price to protect both the mortgagee and mortgagor. This can only be done by giving wide notice of the sale. It was not done here as nobody knew or could have known of the time of the continuance of the sale except for the auctioneer, Mr. Howes, Mr. Kaufman and whomever they may have told. There was no evidence that Mr. Kaufman knew of the manner of the continuance of the sale.

The affidavit of the auctioneer while technically correct would leave much to be desired. The Court having heard and observed the auctioneer, and being aware of some strong idiosyncrasies of some Cape Cod figures, accepts his explanation that his car trouble caused the sale to be continued as it was. It was a mistake in procedure not done with any fraudulent intention.

The Court therefore refuses to approve the mortgage foreclosure sale and rules that a complete new foreclosure sale be held in accordance with G. L. c. 244, § 14.

Judgment accordingly.