MISC 104726

September 1, 1982

Berkshire, ss.




There are pending in this Court two complaints pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, for leave to foreclose two mortgages given by Patrick J. Ringer, Sr., and Martha L. Ringer, one to Williamstown Savings Bank (the "Bank") dated March 23, 1978 and recorded with Berkshire (Northern District) Registry of Deeds, Book 683, Page 49, covering premises known as 106 Ballou Lane in Williamstown in the County of Berkshire and the other to Robert A. DeSanty and Lorraine M. DeSanty (the "DeSantys") dated March 23, 1979 and recorded with said Deeds, Book 691, Page 161 covering premises on Houghton Street in North Adams in said County.

During the course of the proceedings it appeared that defendant Patrick J. Ringer, Sr. might be entitled to the benefits of said Act, and the Court therefore appointed Elliot M. Davidson, Esq. to represent Mr. Ringer and to protect his interest. The military attorney has filed reports in both cases, and a hearing was held in each of them on August 27, 1982.

On all the evidence I find and rule as follows:

1. The promissory note to the Bank and the mortgage securing it were executed on March 23, 1978 and there presently is due to the Bank therin $27,785.00, exclusive of legal fees for the court appearance and certain other sums. The former home of the defendants is situated on the mortgaged premises.

2. The promissory note to the DeSantys and the mortgage securing it were executed on March 23, 1979. The North Adams premises are commercial with an apartment house thereon. The last payment on the note was made April 23, 1981.

3. Mr. Ringer encountered financial reverses after the execution of said documents, and his wife's illness plus an over extension of obligations have lead to the loss of three other properties.

4. Mr. Ringer enlisted in the United States Army Reserves for six years on March 23, 1981 and was called to active duty for the period from September 3, 1981 to and including November 3, 1981.

5. Both complaints were filed on October 16, 1981 and the orders of notice were issued on October 26, 1981 with retun day of December 14, 1981. Therefore, at the time the Bank and the DeSantys commenced these proceedings Mr. Ringer was on active duty, but his status at the time of the return day and at present is inactive.

6. Mr. Desanty recognizes the impossibility of curing the default in his Bank obligations, and on the evidence a like conclusion is warranted as to the DeSanty note.

7. Defaults exist in both notes and mortgages, they have not been cured and are continuing.

8. The former Ringer residence is not habitable in its present condition.

Section 511 of the Soldiers' and Sailors' Civil Relief Act extends its protection to those on "Federal service on active duty with any branch of service . . . as well as training or education under the United States preliminary to induction into the military service." 504 S. C. A. App. ยง511. Mr. Ringer was in fact on active duty when the complaints were filed in this Court and the orders of notice issued, but at the time of the return day, and the hearings, he had reverted to inactive status. While he may periodically return to active duty annually for a limited time, there is nothing in the record to suggest that this was the situation on August 27. He, therefore, is not entitled to the benefits of the act Bowles v. Dixie Cob Ass'n, 113 F. Supp. 324 (1953). Even if I assume he does return to active duty for two weeks each year, I find and rule that he is not entitled to the benefit of the Act during the remainder of the year, that he is not in a position to cure the defaults in his obligations, that the properties are deteriorating, that it is in the best interest of Mr. Ringer to authorize the foreclosure of the mortgages and that the Bank and the DeSantys are entitled to judgments granting the relief they seek.

Judgment accordingly.