CITIBANK, N.A., as Trustee on Behalf of Bear Stearns ALT-A Trust Pass Through 2007-3 [Note 1] v. SANDRA A. HEYWOOD and THOMAS H. HEYWOOD.

Introduction

This action, commenced on December 21, 2012, concerns the property known and numbered as 17 Glenwood Avenue, Northampton, Massachusetts (property / locus). In its Verified Complaint, the plaintiff seeks the reformation of a mortgage owing to what it asserts is a mutual mistake. Specifically, the plaintiff wishes to name the defendant Thomas H. Heywood as an additional borrower and mortgagor.

Background

Sandra A. Heywood and Thomas H. Heywood (Heywoods), who were formerly married to each other, currently hold title to the locus as tenants in common under two deeds; [Note 2] the first is dated August 1, 1969 and is recorded with the Hampshire District Registry of Deeds (Registry) at Book 1555, Page 732. The second deed is dated August 25, 1972 and is recorded with the Registry at Book 1655, Page 253. The Heywoods, when married, granted a mortgage on the property to United Bank [Note 3] (United Bank Mortgage) in the principal sum of $97,500.00. The said mortgage, dated November 21, 1997, was recorded with the Registry at Book 5251, Page 96. The Heywoods were divorced by a Judgment Absolute dated June 30, 2007 issued by Hampshire Probate and Family Court. In connection with the divorce action, the Heywoods executed a Separation Agreement (Agreement) dated February 26, 2007 which provided, inter alia, that the property would be refinanced “in her name alone,” and that Mr. Heywood would convey his interest in the property to his spouse thereafter. The Separation Agreement also provided for the disposition of the refinancing proceeds between the parties including the full payment of the United Bank Mortgage.

Notwithstanding the terms of the Agreement, while the refinancing Mortgage held by the plaintiff by assignment [Note 4] names Sandra A. Heywood as “Borrower” and mortgagor, the interest in the locus belonging to Thomas H. Heywood was never conveyed to his former spouse as contemplated under the Separation Agreement. The said refinancing mortgage (Mortgage) dated March 19, 2007 names Sandra A. Heywood as “Borrower” and mortgagor, Evest Lending, Inc. as “Lender” and Mortgage Electronic Registration Systems, Inc. (MERS) as “Mortgagee.” The Mortgage was recorded with the Registry on July 16, 2007 at Book 9200, Page 174.

The plaintiff now seeks relief in the alternative. To this end it has filed an Agreement for Judgment between the plaintiff Citibank and the defendant Thomas H. Heywood. This court declines to approve the said Agreement for Judgment pursuant to Land Court Rule 10 but will allow the plaintiff’s Motion for Summary Judgment as to both defendants and will reform the Mortgage.

Summary Judgment

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits .. . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). Accordingly, when acting upon motions for summary judgment, this court is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

“The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-24. In cases where the “nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id.

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “[t]he right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. As this courts finds that there are no genuine issues of material fact, this matter is ripe for summary judgment.

Discussion

“[A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality.” Beaton v. Land Court, 367 Mass. 385 , 392 (1975) (emphasis added). Where the true intent of the parties is not reflected in the language of a written instrument, the mutual mistake is reformable. Mickelson v. Barnet, 390 Mass. 786 , 791 (1984); see also Barrell v. Britton, 252 Mass. 504 , 508 (1925) ([T]o entitle a party to a contract to have it reformed on the ground of mistake, it must appear that the mistake was mutual.”). “The mistake must be either mutual . . . or made by one party and known to the other party.” Polaroid Corp. v. Traveler’s Indem. Co., 414 Mass. 747 , 756 (1993) (internal citations omitted) (emphasis added). “[T]o be entitled to reformation, a party must present full, clear, and decisive proof of mistake.”

In reaching the conclusions hereunder, the court has considered the summary judgment record before it including the Verified Complaint, the plaintiff’s statement of undisputed facts and critically, the Affidavit of Thomas H. Heywood. It is to be noted that the defendant Sandra A. Heywood, while represented by counsel, neither appeared at the hearing on the plaintiff’s Motion for Summary Judgment nor filed a written opposition thereto. Based upon the uncontroverted evidence herein, this court is satisfied that a mutual mistake occurred which warrants the equitable reformation of the Mortgage in order to include Thomas H. Heywood as “Borrower” and mortgagor. It is clear that the mortgage proceeds at issue served to benefit both named defendants to a significant degree. All parties, including the mortgagee, intended to secure the loan with a mortgage that encumbered the entire ownership interest in the locus. See, in this regard, the Affidavit of Thomas H. Heywood in which he recites the following:

[A]lthough I agreed to and benefited from the mortgage loan transaction, I understood that the lender would receive full mortgage security in the Property… …I understood that in accordance with the Separation Agreement filed in the divorce action…Sandra entered into the 2007 Mortgage for purposes of refinancing existing marital debt that I was obligated on (including a prior mortgage that I had signed) and obtaining cash proceeds used to buy out my remaining equity in the Property. In exchange it was agreed that I would convey my ½ interest to Sandra, so that the mortgage would be fully secured by 100% of the underlying title to the Property…. I understand that it would not have been possible for Sandra to obtain the financing necessary to consummate the terms of the Separation Agreement unless the lender received a mortgage fully secured by 100% of the title to the Property.… I am unable to explain why the deed contemplated by the Separation Agreement was omitted and can only assume that it escaped the attention of our divorce lawyers. (emphasis added)

Conclusion

In light of the foregoing, this court concludes that, owing to mutual mistake, the Mortgage ought to be reformed nunc pro tunc as of the date of recording so as to designate Thomas H. Heywood as a borrower and mortgagor therein. As so reformed the Mortgage will accord with the expectations and intent of the parties.

Accordingly, it is hereby

ORDERED that the plaintiff’s Motion for Summary Judgment is hereby ALLOWED as set forth herein.

SO ORDERED.

Judgment to issue accordingly.