This is a proceeding filed on October 22, 1981 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 Wayne Gerrish was in the military service of the United States. Notice of the proceeding was served by registered mail on the said Wayne Gerrish who did not appear or answer the complaint. Accordingly, a military attorney, Elliott M. Davidson, was appointed by the Court to represent and protect the interest of the said Wayne Gerrish.
The defendants, John M. and Vivian M. Walsh, not in the military service, received notice by leaving at their last and usual place of abode and did not appear or answer the complaint.
A hearing was held on October 22, 1982 at which the Plaintiff was represented by counsel and Wayne Gerrish 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 August 28, 1978 recorded with Plymouth County Registry of Deeds in Book 4521, Page 426, covering the premises known and numbered as 111 Beach Avenue, Hull, Massachusetts.
At the date of the hearing, the mortgage loan was clearly in default.
Wayne Gerrish was deeded a l/4th interest in the premises by deed of John W. Walsh, et ux on October 15, 1981. He was in the military 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. Wayne Gerrish was notified of these proceedings by his military attorney, Mr. Davidson, one by certified mail and one by first class mail, which have gone unanswered. The military attorney has been informed that the quarter interest in the premises deeded to Wayne Gerrish was for work performed on the premises by said Wayne Gerrish and that actions will be taken in another proceeding to collect the same. It is unknown whether Wayne Gerrish knew of the mortgage encumbrance when he received the deed to one quarter interest in 111 Beach Avenue, Hull.
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 does not appear to be interested in this matter, 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.