ROBERT L. RIEMER, d/b/a PICKWICK FINANCIAL ASSOCIATES vs. BUFORD J. KAIGLER, JR., LEROY ALEXANDER and PENSION NOMINEE CORP.

In this complaint to remove a cloud on title pursuant to the provisions of G.L. c. 240, §6-10 inclusive, the plaintiff seeks relief from his noncompliance with the Soldiers' and Sailors' Civil Relief Act of 1940. In this proceeding all defenses are open as distinguished from a complaint brought pursuant to said Act. The defendant Kaigler contends that noncompliance with the Act "chilled" the foreclosure sale at public auction. In addition the defendant demands return of his "non-refundable" deposit of $5,000, paid as consideration for repurchase of the premises following the public auction.

A trial was held at the Land Court on January 15, 1992, the Court having earlier accepted a withdrawal of defendant's counterclaim and having granted plaintiff's motion for summary judgment against the defendants Panek.

At the trial a stenographer was appointed to record and transcribe the testimony. Buford J. Kaigler, Jr., the defendant and Russell Johnson, the auctioneer, where the only witnesses, and both were called by the plaintiff. All exhibits are incorporated herein for the purpose of appeal.

On all the evidence I find and rule as follows:

1. Buford Kaigler granted Robert Riemer, d/b/a Pickwick Associates (hereinafter "Pickwick") a mortgage for the premises, a summer home located at "Lot 1" of Shaw Street in Oaks Bluffs in the County of Dukes on February 16, 1988.

2. Mr. Kaigler experienced financial difficulties and subsequently defaulted on mortgage payments. The defendant admits his mortgage loan was in default.

3. Pickwick initiated foreclosure proceedings against Kaigler. On two separate occasions, Mr. Kaigler filed for Chapter 13 bankruptcy to forestall immediate foreclosure of the premises. The Bankruptcy Court granted relief to Pickwick, allowing Pickwick to move forward with the foreclosure sale.

4. Pickwick advertised the foreclosure action in the Martha's Vineyard Gazette for three consecutive weeks preceding the scheduled date of the auction, and otherwise complied with the statutory provisions. The advertisements did not mention whether or not there was compliance with the Soldiers' and Sailors' Civil Relief Act of 1940 or if the sale would be "fast track".

5. On the scheduled date, June 16, 1990, shortly after noon, the auctioneer opened the bids before neighbors and at least one-half dozen others, including both Mr. Kaigler and Mr. Riemer. Pickwick's oral bid for $90,000 was the only bid registered.The defendant claimed that no bid was made by the plaintiff, but I find otherwise.

6. On June 19, 1990 the two parties signed a purchase and sales agreement, upon payment as a deposit by the defendant Kaigler of a non-refundable five thousand dollar ($5,000) cashier's check purchased by Mr. Kaigler to be applied to the purchase price.

7. The defendant was unable to comply with his purchase agreement, and Pickwick took possession.

8. Thereafter Pickwick conveyed the premises to Mr. and Mrs. Panek.

9. At no time have any of the defendants asserted or demonstrated they qualify for relief under the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. To the contrary, Mr. Kaigler admits he was never in the armed forces during the period he owned or occupied the premises.

10. Attached to the purchase and sale agreement was an executed Agreement for Judgment which was filed by the plaintiff in the District Court to obtain possession (Exhibit No. 5).

11. The plaintiff did not comply with the provisions of the Soldiers' and Sailors' Civil Relief Act, but there was no evidence that the sale was chilled by such noncompliance.

Under Massachusetts law, "[i]f a foreclosure [is] otherwise properly made, failure to comply with the 1940 Relief Act would not render the foreclosure invalid as to anyone not entitled to the protection of that Act." Beaton v. Land Court, 367 Mass. 385 , 390 (1975) (citing Guleserian v. Pilgrim Trust Co., 331 Mass. 431 , 433-34 (1954). There are instances where the failure to comply might be held to chill a sale, but each case turns on its own facts. The serious problem with such failure is that it opens the judicial proceedings such as this to all defenses. There was no error here sufficient to set aside the sale. I recognize that the foreclosure sale was delayed on three separate occasions, and Pickwick was the only party actually to bid upon the property. Nonetheless "[t]here is no credible evidence that the nature or timeliness of the foreclosure sale was unreasonable or caused [Mr. Kaigler] damages. MacKay v. Hibernia Savings Bank, Land Court Miscellaneous Case No. 140252. "The effect of the Massachusetts legislation here at issue is merely to prevent a mortgagor from raising certain defenses in an action which can result only in a determination that interested parties are entitled to the limited benefits of the servicemen's protection statute." Id. at 935. Since Mr. Kaigler presents no evidence the sale was "chilled" or in any way invalid and evidence is uncontroverted that none of the defendants have ever been in the armed services, I find the foreclosure sale conducted with no detriment to Mr. Kaigler.

Mr. Kaigler also argues he is entitled to return of the five thousand dollar ($5,000) check used as a deposit in his subsequent purchase of the premises from Mr. Riemer. Mr. Kaigler alleges he was induced to make this payment under duress caused by Mr. Riemer's assurance he would arrange for the defendant a loan at Manhattan Financial Services where Riemer was a partner. I do not find that such an absolute agreement was made, although the plaintiff may have offered to try to arrange refinancing. There, however, is no indication that Mr. Riemer acted with any fraudulent intent in his dealings with Mr. Kaigler. I find that Mr. Kaigler acted freely in transferring the cashier's check to Mr. Riemer and fully realized as a former attorney the implications of his actions.

On all the evidence I find and rule that at the time of the foreclosure of a mortgage from the defendant Kaigler dated February 16, 1988 and recorded with Dukes County Registry of Deeds in Book 494, Page 44, as evidenced by a foreclosure deed to the plaintiff dated June 21, 1990 and recorded with said Deeds in Book 543, Page 177 none of the defendants was in the military service nor entitled to the benefit of said Civil Relief Act and that the defendant Kaigler is not entitled to a refund of his deposit.

Having made my own findings of fact and rulings of law I take no action on those filed by the plaintiff.

Judgment accordingly.