BAYBANK HARVARD TRUST COMPANY vs. CAROL J. DIGNAN, Trustee of Brookdale Street Realty Trust.

BayBank, successor to BayBank Harvard Trust Company, holder of a mortgage and security agreement (Exhibit No. 2) dated May 14, 1986 and recorded in the Plymouth County Registry of Deeds (to which all recording references herein refer) from Paul L. Dignan, Trustee of Brookdale Realty Trust under Declaration of Trust dated December 20, 1977 and duly recorded in Book 4389, Page 113 (Exhibit No. 3) seeks in this action to obtain a judgment authorizing it to foreclose the mortgage by entry and sale pursuant to the provisions of St. 1943 c. 57, as amended, relating to the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. 50 USCA App. §501 et seq. An answer was filed on behalf of Christine H. Dignan (Exhibit No. 6) in which she claimed to be a commissiond officer in the United States Air Force on active duty and as a beneficiary of said Trust entitled to the benefits of said Act. [Note 1]

A trial was held at the Land Court on March 20, l992 to determine whether the defendant was entitled to the benefit of the Act and whether as a matter of the Court's discretion the proceedings should be stayed. A military attorney, Joseph F. Linehan, had been appointed by the Court to represent the service person and to report to the Court on the salient issues. At the trial she also was represented Mark P. White, Esquire. A stenographer was appointed to record and transcribe the testimony. Witnesses at the trial were Paul L. Dignan, [Note 2] Joseph F. Linehan and Christine H. Dignan. The trustee, although served with a summons, did not appear. Seven exhibits were introduced into evidence which are incorporated herein by reference.

On all the evidence I find and rule as follows:

1. Paul L. Dignan individually originally obtained title to the mortgages premises by deed of Robert Davison et al dated July 25, 1977 and duly recorded in Book 4296, Page 452.

2. Mr. Dignan simultaneously executed a purchase money mortgage to Quincy Savings Bank also dated July 25, 1977 and duly recorded in Book 4296, Page 455. This mortgage is still outstanding.

3. Later in 1977 Mr. Dignan transferred the premises to himself as trustee of Brookdale Street Realty Trust by deed dated December 20, 1977 and duly recorded in Book 4389, Page 120 (Exhibit No. 4). There are six named beneficiaries in the trust: Paul L. Dignan, his wife Carol J. Dignan and four of their five children: Christine, James, Patrick and Courtney.

4. Paul L. Dignan individually borrowed $350,000 from BayBank Harvard Trust Company evidenced by a note dated April 3, 1986 due one year thereafter with the maturity extended to May 3, 1990 by a July 8, 1987 amendment to the note (Exhibit No. 1).

5. The note was secured by the mortgage and security agreement above referred to which also was modified by an instrument dated July 8, 1987.

6. The sole obliger in the note secured by the mortgage which the plaintiff seeks to foreclose is Paul L. Dignan.

7. By instrument dated November 4, 1987 and duly recorded in Book 8115, Page 029 Mr. Dignan resigned as trustee of Brookdale Street Realty Trust, and Mrs. Carol J. Dignan accepted appointment (Exhibit No. 5).

8. At the time of the 1987 borrowing Christine H. Dignan was a student at Bryn Mawr where she joined the ROTC at St. Joseph's College. Upon graduation she returned home and was employed as a Security Analyst by the Bank of Boston at a salary of $24,000.

9. Lt. Dignan was called to Active Duty in January 1989, and she presently is stationed at Hanscom Air Force Base. Her salary is about $30,000. She has made occasional voluntary contributions to her family, but she understands she has no obligation to the plaintiff to pay the amounts due in the Note.

It is clear that Lt. Dignan is in the military service of the United States and that her father's obligation to BayBank preceded her call to active duty. It is unclear from the federal act whether the beneficiary of a trust whose trustee executed a mortgage on the trust assets to secure his personal obligations is protected by the Soldiers' and Sailors' Civil Relief Act. For the purpose of this decision I assume she is (See Twitchell v. Home Owners' Loan Corporation, 59 Ariz. 22 , 122 P. 2d 210 (1942) and Fourth Nat. Bank in Winchester v. Hill, 181 Kan. 683 P. 2d 312 (1957)). However, 50 App. 532 (2) provides that after hearing the Court has discretion to determine the appropriate disposition of the case to equitably conserve the interests of all parties so long as the ability of the defendant to comply with the terms of the obligations is not materially affected by reason of his military service.

On all the evidence I find and rule that the defendant Christine H. Dignan has no obligation to the plaintiff and that even if she did, her ability to comply with the terms of the obligation entered into by her father is not materially affected by reason of her military service.

Having made my own I take no action in the plaintiff's requests for findings of fact and rulings of law.

Judgment may enter authorizing the plaintiff to foreclose by entry and by exercise of the power of sale.

Judgment accordingly.