This is a proceeding filed on September 29, 1980 under the provisions of an Act of Congress known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, and 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 Gary J. Landry, 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 or answer 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, Russell T. Burr, not in the military service, received notice by hand delivery and did not appear or answer the complaint.
A hearing was held on June 12, 1981 at which the plaintiff was represented by counsel and the defendant, Gary J. Landry, by the military attorney.
On all the evidence I find the following facts:
The plaintiff holds a mortgage containing the statutory power of sale given by the defendants to it dated November 8, 1978, recorded with Hampden County Registry of Deeds in Book 4687, Page 143, covering the premises known and numbered as 15 Forest Street, Springfield, Massachusetts.
At the date of the hearing, the mortgage loan was clearly in default.
The defendant Gary J. Landry entered the service of the United States after the execution of the note and mortgage, and thus is entitled to the benefit of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The defendant was notified of these proceedings by his military attorney, Mr. Topor. He sent a letter (filed with the Court) to his mother stating that he would not be able to make the payments on the mortgage and asking her to notify Mr. Topor to this effect which she did.
The Court rules that the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, have been complied with and since the defendant is not able to comply with the terms of the mortgage 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.