TLC 84828

July 15, 1991

Suffolk, ss.



This matter comes before the Court upon Essex Home Mortgage Servicing Corporation's petition to vacate a decree of foreclosure entered by this Court on May 30, 1990, foreclosing all rights of redemption on real estate located at 2 Lyford Street in Dorchester (the "property"). The petition to vacate was filed on April 23, 1991 and a hearing was held thereon on July 10, 1991.

1. On October 6, 1987 the City of Boston made a tax taking for the non-payment of Fiscal Year 1987 real estate taxes on the property. The taxes had been assessed against the owners of the property, Frank Alfred and Claudenette Fraser. The taking was duly recorded at the Suffolk County Registry of Deeds on November 20, 1987 at Book 14262, Page 29. [Note 1]

2. Subsequent to the tax taking, a mortgage dated January 25, 1988 was given on the property by Frank Alfred and Claudenette Fraser a/k/a Elizabeth Alfred (the "Alfreds") to the Century Mortgage Company ("Century") and recorded at Book 14441, Page 250. At the time of the recording of the mortgage, the tax taking made by the city was on record. However, Century neglected to redeem the title by paying the amount of taxes owed.

3. On January 31, 1989 the City filed in this Court a petition to foreclose all rights of redemption. A notice of filing petition was recorded at Book 15338, Page 205. After completion of service on all parties in interest, none of which filed an answer in objection to the proceedings, the City filed a motion for a general default which was allowed on May 22, 1990. On May 30, 1990, this Court entered a decree of foreclosure.

4. The mortgage given by the Alfreds was assigned by Century to Essex Home Mortgage Servicing Corporation ("Essex") by assignment dated May 16, 1989 and recorded at Book 15562, Page 332. Following the assignment to Essex, Century continued to service the loan. Subsequent to the assignment, the Alfreds defaulted on their mortgage payments and Essex began foreclosure proceedings. Century became aware that the city was foreclosing its tax lien when the attorney conducting the foreclosure performed a title examination which revealed the tax lien and the pending foreclosure by the city. Century decided not to pay the taxes at this time, but to wait and offer to pay the tax obligation after the foreclosure sale was held. Essex held the foreclosure sale on October 12, 1989 and at that sale, Essex purchased the property. Despite Century's knowledge of the pending foreclosure by the city, neither Century nor Essex paid the taxes after the sale.

5. Subsequent to the foreclosure sale, Essex and Century discovered that the foreclosure sale was not conducted in the correct legal name of Essex because of a defect in the assignment of the mortgage by Century.

6. On May 30, 1990 this Court allowed the city's petition to foreclose and entered a decree of foreclosure.

7. On July 24, 1990, Essex conducted a second foreclosure sale at which it was the purchaser. After the second foreclosure sale, Century and Essex realized that the taxes had not been paid and that the decree of foreclosure had issued. Essex filed this petition to vacate the decree of foreclosure on April 23, 1991 and this Court held a hearing on July 10, 1991.

G.L. c.60, §69 provides that after a decree of foreclosure is entered, the decree may be vacated in the discretion of the court upon petition. G.L. c.60, §69A provides that "[n]o petition to vacate a decree of foreclosure entered under section sixty-nine. . .shall be commenced . . .except within one year after the final entry of the decree." Clearly, Essex has brought its petition to vacate the decree of foreclosure within the one year period. However, "a petition to vacate a prior decree foreclosing the right of redemption under a tax title is 'extraordinary in nature and ought to be granted only after careful consideration and in instances where. . .[it is] required to accomplish justice.'" Sharon v. Kafka, 18 Mass. App. Ct. 541 , 542 (1984), quoting Lynch v. Boston, 313 Mass. 478 , 480 (1943).

Essex maintains that the confusion resulting from the improper assignment of the mortgage by Century to Essex and the ensuing necessity of a second foreclosure sale caused Century, as the servicing agent for Essex, to inadvertently neglect to pay the amounts due on the tax title account in a timely fashion. Essex relied on Century as its servicing agent to handle this matter and therefore, Essex similarly failed to pay the amount due on the tax title account.

The city opposes Essex's petition to vacate. The city has removed vagrants from this property since it was foreclosed and has also incurred expense by securing and patrolling the property through its Municipal Police Department. In addition, the city has maintained the property in order to dispose of it for affordable housing and has held meetings with the community to determine the best use for the property.

Under these circumstances, the Court, in the exercise of its discretion, rules that Essex has not shown good and sufficient reason to be allowed to redeem the property and therefore, the petition to vacate the decree of foreclosure is denied.


[Note 1] Unless otherwise provided, all instrument referred to hereinafter are recorded in the Suffolk County Registry of Deeds.