UNITED STATES OF AMERICA vs. HOWARD A. BROWN and BERTHA M. BROWN.

This is a proceeding filed on August 24, 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. 105 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 Howard A. Brown, hereinafter called the defendant, was in the military service of the United States.Notice of the proceeding was served by registered mail on the defendant who did not appear nor answer to the complaint. Accordingly, a military attorney, Joseph W. Topor, Jr., was appointed by the court to represent and protect the interest of the defendant.

The defendant, Bertha M. Brown, was served by registered mail and she did not appear nor answer to the complaint. Bertha M. Brown is not in the military service of the United States.

A hearing was held on January 18, 1980, at which the plaintiff was represented by counsel and the defendant, Howard A. Brown, by the military attorney. On all the evidence I find as follows:

The plaintiff holds a mortgage containing the statutory power of sale given by the defendants to it dated September 13, 1967, recorded with Hampden County Registry of Deeds in Book 3294, Page 94, covering the premises known as and numbered 11 Dorchester Street in Springfield, Massachusetts. The mortgage which was given to "W. J. Driver, as Administrator of Veterans' Affairs, an officer of the United States ... and to his successors in such office" was given to secure a loan made to the defendant and his wife by the plaintiff in the principal amount of $8,200.00, as evidenced by a promissory note from the defendant and his wife to "W. J. Driver, as Administrator of Veterans' Affairs, an officer of the United States ... and to his successors in such office," dated September 13, 1967, with interest at six percent per annum requiring monthly payments of principal and interest of $52.84 commencing on November 1, 1967. The final payment of principal and interest was due on October 1, 1992. The note contained a default provision which made the entire principal sum and accrued interest due and payable if there was any deficiency in the payment of any installment.

At the date of hearing, the mortgage loan was clearly in default. At that date the unpaid principal balance on the loan was $6,952.21. Accrued interest to December 3, 1979, was $716.91. The total delinquency as of December 1, 1979, was $3,614.32, which consisted of taxes and insurance of $2,027.05, interest $716.91, principal arrearage $870.36 and late charges $85.68. The plaintiff has received no payment from the defendants since January 12, 1979, when the sum of $179.40 was received.

The secured property is a two-family house. An appraisal report discloses it has a present market value of $12,950.00, which would be increased to $15,500.00 if many repairs were made. The evidence disclosed and I find that the defendants received rental income from the mortgaged property during 1978 in the amount of $2,089.05.

On September 13, 1967, the date of the note and mortgage in question, the defendant Howard A. Brown had been a member of the military service for nearly 15 years. He was then in the United States Air Force stationed at Westover Air Force Base in Westover, Massachusetts. At the time of hearing the said defendant was still in the United States Air Force stationed overseas. The military attorney wrote to the military defendant on October 18, 1979, announcing to him his appointment, advising him of the amount necessary to bring his mortgage account up to date and asking for a reply setting forth his interest, if any, in the mortgaged property. By letter of November 9, 1979, the military defendant wrote to the military attorney advising that he was still interested in the property but that he would not have the funds to pay the full amount due to eliminate the arrearage. He requested additional time to bring the account up to date. On November 21, 1979, the military attorney again wrote to the military defendant asking him how much time he needed to bring the account up to date and what arrangements might be made to pay off the mortgage loan. The military attorney received no response to this letter. Between February, 1972 and April, 1979 the United States of America, through the Veterans Administration, sent 21 letters to the defendants requesting that all arrearages be paid and that the mortgage loan be kept current. The last communication received by the United States was a communication dated April 18, 1979, wherein Mrs. Brown offered to pay $1,120.00 at that time on the arrearage together with $200.00 per month until the account was made current. This offer was accepted by the United States of America but it never received any funds from either of the defendants pursuant to the offer.

I find that the defendant Howard A. Brown was a member of the United States Air Force on September 13, 1947, 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 judgment 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.