MISC 11-444706

January 3, 2012

Sands, J.


Plaintiff filed its Verified S-Petition on January 19, 2011, pursuant to the provisions of G. L. c. 240, § 6-10, seeking to reform a mortgage and remove a cloud on title on property owned by Defendants and located at 391 Poplar Street, Roslindale, Massachusetts (“Locus”). [Note 1] A case management conference was held on February 18, 2011, at which Defendants did not appear. In response to a 15 Day Nisi Order dated February 18, 2011, Defendants filed their Answer on March 4, 2011, in which they stated that “we were not disputing the claim.” Subsequently, Defendants hired an attorney and appeared at a status conference on April 7, 2011. Defendants raised the issue of Plaintiff’s standing through a Motion to Dismiss, and at a status conference held on May 24, 2011, this court determined that Plaintiff had standing. At status conferences held on August 2 and August 5, 2011, Defendants attempted to raise issues relative to a proposed foreclosure of the Mortgage, but this court advised Defendants that such issues were premature, and set a deadline of August 15, 2011, for Defendants to answer the S-Petition. [Note 2] On August 24, 2011 (five days late), Defendants filed an Answer and Affirmative Defenses to Verified S-Petition, alleging that Plaintiff, in commencing this action, had violated a statute of limitations. On August 26, 2011, Plaintiff responded to Defendants’ Answer. At a status conference on September 23, 2011, this court established a summary judgment schedule. Plaintiff filed its Motion for Summary Judgment on October 31, 2011, together with supporting memorandum and Appendix including Affidavit of Desiree I. Martin. Defendants did not file an Opposition. A hearing was held on the motion on January 3, 2012, at which both parties appeared, and the matter was taken under advisement.

I find that the following facts are not in dispute:

1. Defendants purchased Locus by deed dated March 30, 2006, which deed was registered with the Suffolk County Registry of the Land Court on Certificate of Title No. 123232 (the “Certificate of Title”) as Document #718028. On the same day Defendants obtained a purchase money mortgage (the Mortgage) from Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Eastern Bank, in the amount of $462,738, and executed a note (the “Note”) in the same amount to Eastern Bank. The Mortgage was registered on the Certificate of Title as Document # 718029. The Mortgage referenced Locus as the mortgaged premises and also referenced an Exhibit A giving the legal description. However, Exhibit A was missing from the Mortgage.

2. On December 23, 2008, MERS assigned the Mortgage and Note to Plaintiff, and the assignment was registered on the Certificate of Title.


Defendants argue that this case was brought too late, in violation of the three year statute of limitations provided in G. L.. c. 260, § 2A. That statute, however, only relates to actions in tort, contract to recover for personal injuries, and replevin actions. As a result, I find that this action to reform the Mortgage, as a contract action, was not subject to a three year statute of limitations.

Defendants also argue that the mistake of a missing Exhibit A was unilateral and not a mutual mistake. Plaintiff argues that the mistake was mutual, and cites Beaton v. Land Court, 367 Mass. 385 , 392 (1975), which states that “[a] court acting under general principles of equity jurisprudence has broad powers to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality.” Plaintiff also argues unjust enrichment, stating that it would be unfair for Defendants to use the proceeds of the Note for the purchase of Locus and not have a lien on Locus. See Santagate v. Tower, 64 Mass. App. Ct. 324 (2005), Community Builders v. Indian Motorcycle Assocs., 44 Mass. App. Ct. 537 (1998). [Note 3] The facts indicate that the Mortgage, executed by both Defendants, was a purchase-money mortgage, that Defendants purchased Locus on the same day using the proceeds of the mortgage financing, and the Mortgage stated that it was to encumber Locus. [Note 4] It would be unreasonable to assume that Defendants intended to obtain the funds to purchase Locus without some security as collateral, particularly where they executed the Mortgage stating Locus was the mortgaged premises. As a result, I find that the mistake of a missing Exhibit A (giving the legal description) was a mutual mistake.

As a result of the foregoing, I ALLOW Plaintiff’s Motion for Summary Judgment.

Judgment to enter accordingly.


[Note 1] The basis of the mortgage reformation case is that the legal description was not attached to the mortgage (the “Mortgage”) as Schedule A.

[Note 2] This deadline was extended to August 19, 2011.

[Note 3] See also Bank of New York Mellon v. Robinson, 19 LCR 74 (2011), New Century Mortgage Corporation v. Vining, 17 LCR 155 (2009).

[Note 4] It should also be noted that Defendants, in their Answer, indicated that they did not dispute Plaintiff’s claim.