PETER O'CONNELL vs. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR THE MLMI TRUST SERIES 2007-MLN1 and RUSSELL E. KELCOURSE.
LONG, J.
Plaintiff filed his unverified Complaint on February 14, 2012, pursuant to G.L. c. 231A, seeking a declaratory judgment relative to a mortgage (the Deutsche Bank Mortgage) granted by Defendant Russell E. Kelcourse (Kelcourse), presently held by Defendant Deutsche Bank National Trust Company as Trustee for the MLNI Trust Series 2007-MLN1 (Deutsche Bank). [Note 1] Also on February 14, 2012, Plaintiff filed an Application for a Temporary Restraining Order and Preliminary Injunction (the Application). Attached to the Application was the contested legal description for the Deutsche Bank Mortgage. This court denied the Application on February 14, 2012. Deutsche Bank filed its Answer, Counterclaims and Cross-claims on April 3, 2012. [Note 2] [Note 3] A case management conference was held on April 9, 2012. Plaintiff filed his Answer to Counterclaims on April 30, 2012. Kelcourse filed his Answer to Cross-claims on May 17, 2012. On August 7, 2012, Plaintiff and Deutsche Bank filed a Stipulation of Dismissal of all claims and counterclaims between them in this case with prejudice and without costs. On July 19, 2013, Plaintiff and Kelcourse filed a Stipulation of Dismissal of all claims and cross-claims between them in this case with prejudice and without costs. Deutsche Bank filed its Motion for Summary Judgment on January 15, 2014, together with supporting memorandum, Statement of Material Facts, and Appendix, including the Affidavit of Steven Manchini. On February 19, 2014, Kelcourse filed his Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Supplemental Statement of Facts, and Affidavit of Russell E. Kelcourse (the Kelcourse Affidavit). A hearing was held on all motions on April 15, 2014, and the matter was taken under advisement. A Decision of todays date has been issued (the Decision). In accordance with the Decision it is hereby:
ORDERED and ADJUDGED that there was mutual mistake between the parties in not including Lots 398 and 399 as part of the legal description of the Deutsche Bank Mortgage.
ORDERED and ADJUDGED that there would be unjust enrichment in not including Lots 398 and 399 as part of the legal description in the Deutsche Bank Mortgage.
ORDERED and ADJUDGED that the Deutsche Bank Mortgage was intended to encumber Lots 396 through 399.
ORDERED and ADJUDGED that the Deutsche Bank Mortgage shall be reformed to include Lots 398 and 399 in the legal description of the property covered by the mortgage.
ORDERED and ADJUDGED that Deutsche Banks Motion for Summary Judgment is hereby ALLOWED and Kelcourses Cross-Motion for Summary Judgment is hereby DENIED.
So ordered.
FOOTNOTES
[Note 1] Plaintiff filed his First Amended Complaint on February 24, 2012, adding information relative to zoning issues.
[Note 2] The Counterclaims were against Plaintiff: 1) to reform the Deutsche Bank Mortgage; 2) to equitably subrogate the mortgage granted by Kelcourse to Plaintiff; and 3) alleging fraud between Plaintiff and Kelcourse. The Cross-claims were against Kelcourse: 1) to reform the Deutsche Bank Mortgage; 2) to equitably subrogate the mortgage granted by Kelcourse to Plaintiff; and 3) alleging fraud between Plaintiff and Kelcourse.
[Note 3] Kelcourse filed his Answer to the First Amended Complaint on May 17, 2012.