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. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that this action to reform the Mortgage, as a contract action, was not subject to a three year statute of limitations.

ORDERED and ADJUDGED that the mistake of a missing Exhibit A (giving a legal description) was a mutual mistake.

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)


[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.