WILLIAM Z. CHIZ v. MILDRED P. SPENCER, et als.

This is a proceeding filed on November 14, 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 Calvin A. Stotz, Jr., 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 and did file an answer to the complaint. Accordingly, a military attorney, Joseph Topor, was appointed by the Court to represent and protect the interest of the defendant.

The defendants, Mildred P. Spencer, Hope A. Gomez, Mildred A. Sampson, Emily F. Stotz and Faith A. Stotz were all served by registered mail. Attempts to serve notice both by registered mail and in hand to defendant Vera E. Sampson were unsuccessful. None of the above defendants are in the military service.

A hearing was held on June 12, 1981, at which the plaintiff was represented by counsel and the defendant, Calvin A. Stotz, Jr., 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' mother Hazel Stotz, late of Springfield, Hampden County, Massachusetts. Said mortgage is dated July 16, 1970, recorded in the Hampden County Registry of Deeds in Book 3521, Page 119, covering the premises known and numbered as 77-79 Pine Street, Springfield, Massachusetts.

At the date of the hearing the mortgage loan was clearly in default. The unpaid principal balance due on the loan as of March 23, 1981 was $18,500.00. This sum does not include the complete legal fees and expenses for the foreclosure proceedings.

The defendant, Calvin A. Stotz, Jr., 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. Defendant, however, notified Attorney Topor in writing that neither he nor the other heirs of Hazel H. Stotz were able to pay the balance due on the mortgage. Said letter was filed with the Court on June 12, 1981.

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 Stotz has stated that he cannot meet his obligations under 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.

Judgment accordingly.