ONEWEST BANK FSB v. MATTHEW BREEN, JULIE BREEN and SOVEREIGN BANK.

The Plaintiff in this action seeks the reformation of a mortgage granted by Defendants Matthew Breen and Julie Breen in favor of MERS [Note 1] and recorded at the Middlesex North District Registry of Deeds at Book 21702, Page 89 in 2007 (the “Mortgage”). The Mortgage identifies the mortgaged premises as “8 Emerald Avenue, Wilmington, MA” (the “Property”) and the property description attached as Exhibit A to the Mortgage (“Exhibit A”) describes the mortgaged premises as “being shown as Parcel 3A on a Plan of Land in Wilmington, MA: Scale, 1”= 40’, February 26, 2001 … recorded at the Middlesex North Registry District of Deeds at Plan Book 206, Plan 34” (the “Plan”), and as containing 13,955 square feet of land according to said Plan. Exhibit A to the Mortgage also refers to the described premises as “[b]eing the same premises conveyed to the herein named mortgagor(s) by deed recorded with the Middlesex North Registry of Deeds in Book 21096, page 192.” The referenced deed, however, conveys to the Breens the property known and numbered as 8 Emerald Avenue “being shown as Lot 3A” on the Plan, and further recites that “Lot 3A contains 83,379 square feet of land, more or less according to said plan.” The Plaintiff contends that the portion of Exhibit A describing the mortgaged premises as being “Parcel 3A” and containing 13,955 square feet is erroneous, and resulted from inadvertence or mutual mistake, because the description does not reflect the description in the referenced deed into the mortgagors. Plaintiff therefore requests that the Mortgage be reformed by substituting a new Exhibit A property description which accurately reflects the property description language contained in the referenced deed.

The Verified Complaint in this action having been filed on March 4, 2011, and the duly served Defendants having failed to file a responsive pleading or otherwise defend, the Defendants have been defaulted pursuant to Mass. R. Civ. P. 55(a). In light of the Defendants' default, and upon consideration of the Plaintiff's Motion for Summary Judgment, the court has determined that the Plaintiff is entitled to judgment in its favor.

The summary judgment record establishes that the Mortgage was intended to cover all of the land at 8 Emerald Avenue described in the March 30, 2007 deed into the Breens from Jeffrey K. Miller and Anna T. Miller, recorded at Middlesex North District Registry of Deeds at Book 21096, Page 192, i.e. Lot 3A, containing 83,379 square feet according to the Plan. Although the Plan also depicts a Parcel 3A, containing 13, 955 square feet, it is apparent that the Parcel 3A area is included within the larger Lot 3A area as depicted on the Plan.

Accordingly, it is hereby

ADJUDGED and DECLARED that the Mortgage was intended to encumber the entire Property known as 8 Emerald Avenue, Wilmington, Massachusetts, which identified as Lot 3A on the Plan, and which is shown on said Plan as containing 83, 379 square feet; and it is further

ADJUDGED, DECLARED and ORDERED that the Mortgage is hereby reformed by replacing the Exhibit A property description attached to and incorporated in said Mortgage with the following new Exhibit A property description:

Exhibit A

That certain parcel of land, with the buildings thereon, situated in Wilmington, Middlesex County, Massachusetts, being shown as Lot 3A on a “Plan of Land in Wilmington, MA; Scale 1” = 40', February 26, 2001, Owner: Jeffrey K. & Anna T. Miller, K.J. Miller Co., Inc., Civil Engineers & Land Surveyors, 106 West Street, Wilmington, Mass.” Lot 3A contains 83,379 square feet according to said plan to which reference is made for a more particular description of said Lot 3A. Said plan is recorded at the Middlesex North District Registry of Deeds at Plan Book 206, Plan 34.

Being the same premises conveyed to the herein named mortgagor(s) by deed recorded with Middlesex North District Registry of Deeds in Book 21096, Page 192.

And it is further ADJUDGED, DECLARED and ORDERED that the provisions of this Judgment shall operate nunc pro tunc to the date and time of the original recording of the Mortgage (October 29, 2007 at 1:13 PM) provided, however, that nothing in this Judgment shall extend to alter, impair, diminish or affect any right, title or interest in the Property of any party holding a record interest in the Property who has not been named as a party to this proceeding; and it is further

ORDERED that upon payment of all fees established by law, this Judgment or a certified copy of it may be recorded with the Middlesex North District Registry of Deeds and may thereafter be marginally referenced on the record of the Mortgage at issue and any instruments given and recorded subsequent to the Mortgage for which such reference is appropriate.

SO ORDERED