This is a proceeding filed in the Land Court on May 4, 1982, pursuant to Mass. 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 consistent with the provisions of an Act of Congress known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
The plaintiff filed an affidavit as to military service which disclosed that Danny R. Feathers was in the military service of the United States. Notice of the proceeding was served by Deputy Sheriff on the said Danny R. Feathers who did not appear or answer the complaint, but service was late and subsequent attempts failed. Accordingly, a military attorney, Elliot M. Davidson, was appointed by the Court to represent and protect the interest of the said Danny R. Feathers.
The defendants, Jacquelyn D. Feathers, John A. Ranno, Jr. and Debra Ranno, none of whom are in the military service, received notice by registered mail at their last and usual places of abode and did not appear or answer the complaint.
A hearing was held on November 19, 1982 at which the plaintiff was represented by counsel and Danny R. Feathers was represented by the military attorney.
On all the evidence I find and rule as follows:
The plaintiff, Union National Bank, is the holder of a mortgage containing a statutory power of sale given to it by Danny R. Feathers and Jacquelyn D. Feathers, husband and wife, dated July 17, 1980 and recorded with Middlesex South District Registry of Deeds in Book 14012, Page 576. The mortgaged premises are located at 6 Fredonian Street, Shirley, in the County of Middlesex.
As of April 30, 1982, the mortgage payments were in arrears by three payments and those due thereafter are in default as well. Real estate taxes due on January 7, 1982 and December 3, 1982 in the amount of $1,262.80 and $353.10 (without interest), respectively, are unpaid. The principal balance of the mortgage is $39,863.93, with unpaid interest of $4,712.69 as of November 5, 1982. Additionally, a per diem rate of $15.50228 applies after said date.
The defendant, Danny R. Feathers, originally entered the military service on May 14, 1973, began active duty on July 8, 1978 and served until October 26, 1981. He subsequently reentered the military service on October 26, 1981 for a period of six years. He presently is stationed at Fort Meade, Maryland. He was a member of the United States Army when the mortgage and note secured thereby were executed. Therefore, he is not entitled to the benefits of said 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." I have noted that the period of military service expired on October 26, 1981 and immediately commenced again on said date. The simultaneous re-enlistment does not give Sergeant Feathers the benefit of the Act for this is not the type of situation where Congress intended to protect the serviceman.
In addition, the defendants Feathers have separated, neither is now within Massachusetts and neither has shown any interest in the premises or in the right to bring the mortgage current.
The Court hereby rules that a decree is to be entered granting the petitioner authority to make an entry and to exercise the power of sale contained in the mortgage.