Home JAMES D. CAMPBELL, et al, Trustees of The CJC Trust, vs. GERALD P. MALLOY, JR., Trustee of Malloy Family Trust.

LC 140790

May 18, 1990

Barnstable, ss.



This is a proceeding under the provisions of an Act of Congress known as the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, and Mass. St. 1943, c. 57, as amended 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, Gerald P. Malloy, Jr., Trustee of Malloy Family Trust, hereinafter called the defendant, was in the military service of the United States. Notice of the proceeding was served by certified mail on the defendant at the address set forth in the mortgage in question, and in the note which it secures. Marvin N. Geller, Esquire filed an Answer on behalf of the defendant stating that Mr. Malloy is currently a Captain in the United States Army and stationed at Fort Bragg, North Carolina.

A hearing was held on May 15, 1990, at which the plaintiffs were represented by counsel. Attorney Gellar was given notice of said hearing, but neither he, nor the defendant appeared thereat. On all the evidence I find as follows:

The plaintiffs hold a mortgage containing the statutory power of sale given by the defendant to them dated May 28, 1988, recorded with Barnstable County Registry of Deeds in Book 6305, Page 51, covering the premises known as and numbered 29 Locust Street, Falmouth, Massachusetts. The mortgage which was given to James D. Campbell and Janet E. Campbell, Trustees of The CJC Trust (said Trust was formerly known as The CPC Trust) given to secure a loan made to the defendant and his brother, Christopher H. Malloy in the principal amount of $475.000.00 as evidenced by a promissory note from the defendant and brother to said plaintiffs. Christopher executed the note on May 26, 1988. Gerald signed the note and mortgage on May 28, 1988. Said note has interest at 8 1/2% per annum requiring staggered payments of principal and interest, commencing on June 30, 1988. The final payment of principal and interest is due on September 15, 1992. The note contained a default provision which made the entire principal sum and accrued interest due and payable if there was any deficieny in the payment of any installment.

At the date of hearing, the mortgage loan was clearly in default. At that date the unpaid principal balance on the loan was $395,000.00. Accrued interest to May 15, 1990 was $72,673.33. The total delinquency as of May 15, 1990 was $103,405.86, which consisted of taxes and water of $3,137.39, interest of $72,673.33, principal arrearage of $20,000.00, attorney's fees of $5,402.50 and late charges of $2,192.64. The plaintiffs have received no payment from the defendant since August 15, 1989 when the sum of $20,000.00 in principal was received.

The secured property consists of two structures, one of which is a residential building and the other is occupied by Century Irish Pub.

On May 28, 1988 when he signed the note and mortgage in question the defendant Gerald P. Malloy, Jr. had been a member of the military service for several years having graduated previously from the United States Military Academy at West Point, New York. He was then a Lieutenant in the United States Army stationed at Fort Sill in Lawton, Oklahoma. At the time of hearing the said defendant was still in the United States Army stationed at Fort Bragg in North Carolina as a Captain.

I find that the defendant Gerald P. Malloy, Jr. was a member of the United States Army on May 28, 1988, when he signed the mortgage and the note secured thereby and on June 14, 1988 when the deed and mortgage were recorded with the Barnstable County Registry of Deeds. Therefore, he is not entitled to the benefits of the 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 the 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.

The court hereby rules that a judgement is to be entered granting the plaintiffs authority to make an entry and to exercise the power of sale contained in the mortgage.

Judgment accordingly.