SHIRLEY M. CAMPBELL vs. DANIEL M. CAMPBELL, JR., JOHN DOE, A/K/A DANIEL M. CAMPBELL, JR., MORTGAGE FUNDING CORPORATION, ROCKLAND FEDERAL CREDIT UNION, HOUSEHOLD FINANCE CORPORATION II and DIANE J. CANNON.

This matter came on to be heard on April 9, 1990, on the motion of the Defendants, Mortgage Funding Corporation and Rockland Federal Credit Union, for summary judgment pursuant to Mass. R. Civ. P. 56. Upon review of the complaint, the memoranda of the parties, together with supporting affidavits, the recorders of this Court, the arguments of counsel and the facts stipulated thereby, I find and rule that there is no genuine issue of material fact, and therefore, the case is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1976).

I. FINDINGS OF FACT

1. The Plaintiff, Shirley M. Campbell ("Ms. Campbell"), resides at 410 Main Street, Yarmouth Port, Massachusetts.

2. The Defendant, Daniel M. Campbell, Jr. ("Mr. Campbell"), resides at 11 Iroquois Boulevard, West Yarmouth, Massachusetts.

3. The Defendant, John Doe, also known as Daniel M. Campbell, Jr., is also known as J.C. Mendes and Carl Mendes ("Mendes"). Mendes whereabouts are unknown.

4. The Defendant, Mortgage Funding Corporation ("MFC"), is a Massachusetts corporation with a usual place of business at P.O. Box 1313, 269 Hanover Street, Hanover, Massachusetts.

5. The Defendant, Rockland Federal Credit Union ("Rockland"), is a Massachusett corporation with a usual place of business at 241 Union Street, Rockland, Massachusetts.

6. The Defendant, Household Finance Corporation II, is a corporation with a usual place of business at 369 Main Street, Hyannis, Massachusetts.

7. The defendant, Diane J. Cannon, now known as Diane J. Pelletier, resides at 5 Lilly Street, Weymouth, Massachusetts.

8. On Friday, October 30, 1987, Mendes, representing himself as Mr. Campbell, attended a loan closing in Hanover, Massachusetts with respect to the property located at 11 Iroquois Boulevard, West Yarmouth, Massachusetts (the "property"), which was owned by Mr. and Ms. Campbell as tenants by the entirety. In addition to Mendes, the closing was attended by Robert J. Mailloux ("Mailloux"), an attorney retained by Mendes (then using the name of Mr. Campbell) to represent him in the transaction, and Donald G. Kethro ("Kethro"), an attorney representing MFC.

9. At the closing, Mendes forged Mr. Campbell's name on numerous documents, including a mortgage to the property and an accompanying promissory note in the amount of $107,661.00. In connection with the signing of these documents, Mendes produced a Massachusetts driver's license bearing his photograph, but identifying him as Mr. Campbell. The license was examined by both Mailloux and Kethro.

Because the property was registered land standing in the names of Mr. and Ms. Campbell, as tenants by the entirety, Kethro indicated that he could not consummate the transaction without the signature of Ms. Campbell and without the owner's duplicate certificate of title for the property. In this regard, Mendes produced a purported power of attorney from Ms. Campbell, which Kethro rejected.

10. Mendes responded that he would rather have "his wife" (meaning Ms. Campbell) deed the property to "him" (as Mr. Campbell) alone. To that end, Kethro's office prepared a quitclaim deed which Mendes took away supposedly to obtain the signature and acknowledgement of Ms. Campbell.

11. Mendes forged Mr. Campbell's name upon a petition for a new duplicate certificate of title which was notarized by Mailloux on October 10, 1987. Mendes submitted the petition and, on November 2, 1987, the Recorder of the Land Court entered an order for the issuance of a new duplicate certificate of title. Said order is registered as document number 443424 on certifiate number 21904.

12. On the morning of Wednesday, November 4, 1987, Mendes met Kethro at the Office of the Registry District of Barnstable County ("Barnstable Registry District"). Mendes had in his possession the aforementioned order of the Land Court for issuance of a new duplicate certificate of title and the aforementioned quitclaim deed. The deed now bore the purported signatures of Mr. Campell and Ms. Campbell, both of whom purportedly acknowledged their execution of the deed before the Defendant Diane J. Cannon, a notary public. As was the case with the documents executed at the closing, the signatures on the deed were forgeries. The signature of the Defendant Diane J. Cannon, as a notary public, was also forged.

13. At 8:14 A.M. on November 4, 1987, the order of the Land Court for the issuance of a new duplicate certificate of title and the quitclaim deed conveying the property to Daniel M. Campbell, Jr. alone, were registered as encumbrances on transfer certificate of title 21904. A certified copy of certificate 21904 is attached to the Pinto Affidavit on file in this matter. Simultaneously, certificate 21904 was cancelled and a new transfer certificate of title, numbered 112665, was entered. However, consistent with the quitclaim deed just registered, certificate 112665 showed title to the property as standing in the name of Daniel M. Campbell, Jr., alone. A certified copy of certificate 112665 is also attached to the Pinto Affidavit. Finally, Kethro caused the mortgage to be registered on behalf of MFC. The mortgage was duly noted as an encumbrance on certificate 112665.

14. Later, on November 4, 1987, Kethro disbursed the loan proceeds by issuing several checks from an MFC client account. The largest of those checks was made out to Daniel M. Campbell, Jr., in the amount of $98,476.92. Mendes, still posing as Mr. Campbell, retrieved this check from Kethro's office that afternoon. Mendes then apparently forged Mr. Campbell's endorsement on the back of the check and cashed it.

15. On or about November 20, 1987, Rockland took an assignment of the mortgage from MFC. Rockland then registered the assignment, which was noted as an encumbrance on certificate 112665.

16. Later, in the summer of 1988, both MFC and Rockland learned for the first time that the man they believed to be Mr. Campbell was, in fact, an imposter, and that the mortgage granted by MFC and assigned to Rockland was the product of fraud and forgery.

II. SUBSIDIARY FINDINGS

17. Neither Ms. Campbell nor Mr. Campbell participated in, nor were aware, of the fraud being perpetrated by Mendes.

18. Neither Ms. Campbell nor Mr. Campbell executed any document relied upon by MFC or Rockland.

19. The presentation of the forged and fraudulent petition for a new owner's duplicate certificate of title constituted a fraud upon the Land Court.

While the issue of possible negligence on the part of MFC and its agents has been raised by the Plaintiff, together with the issue, by certain Defendants, of the position of both MFC and Rockland as bona fide purchasers for value, I do not consider such issues material to the resolution of this case. This is not, however, to preclude or prejudice any party from seeking any other relief which may be available.

III. RULINGS OF LAW

1. The registration of certificate of title number 112665, having been procured by the presentation of a forged and fraudulent petition for a new duplicate certificate, by a fraudulently obtained order for a new owner's duplicate certificate of title and by a forged deed with a forged attestation, is null and void. G.L. c. 185, §62.

2. The deed purporting to convey title from Daniel M. Campbell, Jr. and Shirley M. Campbell to Daniel M. Campbell, Jr., not having been executed by any person having legal title to the property or authority to convey, is invalid, null and void.

3. The note executed by Carl Mendes is invalid and unenforceable as against Daniel M. Campbell, Jr. and Shirley M. Campbell.

4. Carl Mendes, having executed the note and received value is obligated by its terms.

5. The mortgage to MFC securing said note and purporting to encumber title to the property is null and void by reason of fraud and forgery as to both the mortgage instrument and the note it purportedly secures.

6. The mortgage to MFC being void, the assignment thereof by MFC to Rockland vested in Rockland no right, title or interest in or to the property or against Daniel M. Campbell, Jr. or Shirley M. Campbell.

JUDGMENT

In consideration of the foregoing, it is

ORDERED and ADJUDGED that

1. As to Diane J. (Cannon) Pelletier, this action is dismissed; and it is further

ORDERED and ADJUDGED that

2. The Defendants MFC and Rockland are permanently enjoined from exercising or purporting to exercise any rights under mortgage document number 443426 and assignment document number 444611, including but not limited to rights of foreclosure against the property located at 11 Iroquois Boulevard, West Yarmouth, Massachusetts; and it is further

ORDERED and ADJUDGED that

3. The Defendant Household Finance Corporation II is permanently enjoined from exercising or purporting to exercise any rights under attachment document number 467765 against the property located at 11 Iroquois Boulevard, West Yarmouth, Massachusetts; and it is further

ORDERED and ADJUDGED that

4. The deed dated October 30, 1987 and registered as document number 443425 is null and void and is rescinded; and it further

ORDERED and ADJUDGED that

5. The mortgage registered as document number 443426 and the assignment thereof registered as document number 444611 are null and void and are rescinded; and it is further

ORDERED and ADJUDGED that

6. The attachment registered as document number 467765 is rescinded and discharged; and it is further

ORDERED and ADJUDGED that

7. The Recorder of this Court is to issue a certificate of title for the property in the name of Daniel M. Campbell, Jr. and Shirley M. Campbell, husband and wife, as tenants by the entirety, as it stood in certificate of title number 21909.

By the Court