RY-CO INTERNATIONAL, LTD. v. DOUGLAS VONIDERSTEIN and LINDA VONIDERSTEIN, TRUSTEES of VONIDERSTEIN REALTY TRUST, RBS CITIZENS, N.A. and SOVEREIGN BANK.

This subsequent action demonstrates the Legislature’s wisdom in enacting G.L. c. 260, § 33, the Obsolete Mortgage Statute. The Obsolete Mortgage Statute provides that a mortgage may not be foreclosed upon, and shall be deemed discharged, thirty-five years after recording if the mortgage does not state a term, or, if the mortgage does state a term, five years after expiration of the term. Id. On July 1, 1986, Douglas and Linda VonIderstein gave a mortgage on the subject registered property to Thomas J. and Concetta Riley. The mortgage stated that it was to secure a note payable in July 1987. The mortgage was assigned to Massachusetts Bank and Trust Co. in October 1986, but the Rileys registered a discharge of the mortgage in March 1987. Massachusetts Bank and Trust Co. was taken over by the FDIC on July 31, 1992. The petitioner Ry-Co International, Ltd. alleges that the FDIC conveyed the mortgage to it in April 2012, and now seeks to bring forward the mortgage in the Land Court. The VonIdersteins raise multiple objections, including claims that they paid the debt secured by the mortgage in 1987, that the assignment was improper, and that Thomas Riley defrauded them, objections which raise highly disputed issues of fact about events occurring more than 25 years ago. The Obsolete Mortgage Statute cuts this Gordian knot. By its terms, the subject mortgage is deemed discharged no later than July 31, 1992, five years after the latest due date of the term stated in the mortgage. Petitioner Ry-Co International, Ltd.’s motion for judgment on the pleadings is denied, the VonIdersteins’ motion to dismiss is allowed, and this action is dismissed with prejudice.

Procedural Background

On January 18, 2013, the Petitioner, Ry-Co International, Ltd. (Ry-Co) filed its Petition to Bring Forward Mortgage and Related Assignments (complaint), alleging that it was the current holder of a mortgage on registered land (document no. 256687), by assignment involving two subsequent assignments (document nos. 262684 and 701934, respectively). Ry-Co petitioned the Land Court to bring forward the mortgage and related assignments to be registered on subsequent, intervening cancelled certificate of title no. 74861, and current certificate of title no. 92811.

On March 22, 2013, the Respondents, Douglas VonIderstein and Linda VonIderstein (the VonIdersteins), Trustees of the VonIderstein Realty Trust, filed their Verified Answer (answer), in which they asserted thirteen affirmative defenses. The defaults of defendants Sovereign Bank and RBS Citizens, N.A. were entered on April 8, 2013. On April 17, 2013, Ry-Co filed its Motion for Default Judgment against Sovereign Bank and RBS Citizens, N.A. pursuant to Mass. R. Civ. P. 55(b)(2). The VonIdersteins filed their opposition to the Ry-Co’s motions for default judgment against Sovereign Bank and RBS Citizens, N.A. on May 9, 2013.

Ry-Co filed Petitioner Ry-Co International, Ltd.’s Motion for Judgment on the Pleadings and Petitioner Ry-Co International, Ltd.’s Memo for Judgment on the Pleadings on May 13, 2013. A case management conference was held on May 13, 2013. On June 13, 2013, the VonIdersteins filed their Opposition of VonIderstein Respondents to Ry-Co’s Motion for Judgment on the Pleadings; Memorandum of VonIderstein Respondents in Opposition in (sic) to Ry-Co’s Motion for Judgment on the Pleadings; Cross-Motion of VonIderstein Respondents to Dismiss Complaint; Memorandum of VonIderstein Respondents in Support of Cross-Motion to Dismiss Complaint; Motion of VonIderstein Respondents to Amend Their Answer; Motion of VonIderstein Respondents to Defer Obligation (if any) to Present Facts in Opposition to Ry-Co’s Motion for Judgment on the Pleadings; and Affidavit of David J. Fine in Support of Motion to Defer. On June 19, 2013, the VonIdersteins filed the Motion of VonIderstein Respondents for Leave to Seek Appropriate Relief in Light of FDIC’s June 12, 2013 Letter in Event the Court Denies the VonIdersteins’ Pending Cross-Motion to Dismiss. On July 10, 2013, Ry-Co filed Petitioner Ry-Co International, Ltd.’s Opposition to VonIderstein Respondents’ Cross-Motion to Dismiss Complaint; Petitioner Ry-Co International, Ltd.’s Response to Motion of VonIderstein Respondents’ Opposing Ry-Co’s Motion for Judgment on the Pleadings; Petitioner Ry-Co International, Ltd.’s Opposition to Motion of VonIderstein Respondents to Amend Their Answer; and Petitioner Ry-Co International, Ltd.’s Opposition to Respondents’ Motion to Defer Obligation (if any) to Present Facts in Opposition to Petitioner’s Motion on the Pleadings.

On July 15, 2013, Ry-Co’s motion for judgment on the pleadings and the VonIdersteins’ cross-motion to dismiss the complaint and motions to amend their answer, to defer obligation (if any) to present facts in opposition to Ry-Co’s motion for judgment on the pleadings, and for leave to seek appropriate leave in light of the FDIC’s June 12, 2013 letter, were all heard. All motions were taken under advisement.

On July 19, 2013, Ry-Co filed its Request for Judicial Notice, requesting judicial notice that the mortgage in question has express language of a “dragnet clause,” and such request for judicial notice was accepted by the court for docketing as a supplemental memorandum of law on July 31, 2013. On August 5, 2013, the VonIdersteins filed VonIderstein Respondents’ Notice of Claim that Assignment was Forged, and a Motion for Guidance as to How to Proceed. The VonIdersteins filed the Affidavit of Concetta Riley on August 6, 2013, and the VonIderstein Respondents’ Memorandum in Response to Ry-Co’s July 19, 2013 Request for Judicial Notice of Dragnet Clause on August 12, 2013. On August 21, 2013, Ry-Co filed its Opposition to Respondents’ Memo in Response to the Ry-Co’s Request for Judicial Notice of the Dragnet Clause and Plaintiff’s Opposition to the Respondent’s Notice of Claim that Assignment was Forged, and Motion for Guidance. On September 16, 2013, the VonIdersteins filed VonIderstein Respondents’ Motion to Further Amend their Answer. On September 27, 2013, Ry-Co filed Petitioner’s Opposition and Memorandum to Respondents’ Motion to Further Amend Their Answer.

On October 11, 2013, the Court allowed the VonIdersteins’ motion for leave to file a reply as set forth in footnote one of their memorandum in support of their motion to further amend their answer, and they filed VonIdersteins’ Reply in Support of Motion to Further Amend their Answer. On November 6, 2013, Ry-Co filed Plaintiff’s Motion to Amend Judgment on the Pleadings and/or Cross Motion (With Memo) in light of the recent decision in Deutsche Bank National Trust Co. v. Fitchburg Capital, LLC [Note 1]; the court allowed the motion on November 7, 2013. On November 22, 2013, the VonIdersteins filed VonIderstein Respondents’ Supplemental Memorandum in Light of Decision in Deutsche Bank National Trust Co. v. Fitchburg Capital, LLC. On December 5, 2013, Ry-Co filed Petitioner’s Reply Memorandum to the VonIderstein Respondents’ Supplemental Memorandum in Light of the Decision in Deutsche Bank National Trust Co. v. Fitchburg Capital, LLC. On December 9, 2013, the court allowed the filing of Ry-Co’s reply memorandum.

Background

In considering a motion for judgment on the pleadings, “all of the well pleaded factual allegations in the adversary’s pleadings are assumed to be true and all contravening assertions in the movant’s pleadings are taken to be false.” Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904 , 905 (1984). In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept “legal conclusions cast in the form of factual allegations.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). In either a motion for judgment on the pleadings or a motion to dismiss for failure to state a claim, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting either motion to a motion for summary judgment. Marram, 442 Mass. at 45 n.4 (2004); Jarosz v. Palmer, 436 Mass. 526 , 530 (2002); Schaer v. Brandeis Univ., 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 (2008). The court will consider the various registered instruments submitted with the complaint, answer, Motion for Judgment on the Pleadings, Cross-Motion to Dismiss, subsequent motions, memoranda, replies, and other documents referred to therein.

In analyzing the VonIdersteins’ Cross-Motion to Dismiss, the court must accept as true the allegations of Ry-Co’s Complaint and reasonable inferences drawn therefrom. In analyzing Ry-Co’s Motion for Judgment on the Pleadings, the court must assume all of the VonIdersteins’ well pleaded factual allegations to be true and all contravening assertions in Ry-Co’s pleadings to be false. These cross-motions therefore seem to require the drawing of competing inferences. This is not a bar to deciding the cross-motions; their resolution only requires the consideration of the following undisputed facts, without (except where noted) the drawing of any inferences.

On or about July 1, 1986, as part of the consideration for their purchase of the property located at 379 King Caesar Road, Duxbury, Massachusetts (the property), from Thomas J. Riley and Concetta Riley (the Rileys), the VonIdersteins gave the Rileys a purchase money promissory note for $100,000 and a mortgage (the Mortgage). The Mortgage was registered in the Plymouth Registry District of the Land Court (registry district) as document no. 256687, as noted on canceled certificate of title no. 73523. On October 20, 1986, the Rileys assigned their complete interest in the Mortgage to Massachusetts Bank and Trust Co. The bank registered the assignment in the registry district on October 24, 1986, as document no. 262684, on canceled certificate of title no. 73523.

The Rileys executed a discharge of the Mortgage on January 5, 1987, which was registered on March 10, 1987, as document no. 268848, also noted on canceled certificate of title no. 73523. The VonIdersteins subsequently conveyed the property to the VonIderstein Realty Trust, formed on August 18, 1997, of which the VonIdersteins are trustees, as reflected by canceled certificate of title no. 73523. On July 31, 1992, Massachusetts Bank and Trust Co. failed and the United States Office of Thrift Supervision placed it into the receivership of the Federal Deposit Insurance Corporation (FDIC).

Ry-Co was administratively dissolved by the Massachusetts Secretary of State, under G.L. c. 156D, § 14.21, on August 31, 1998. The VonIdersteins gave a mortgage on the property to RBS Citizens, N.A., in 2006, and a mortgage to Sovereign Bank in 2008.

Ry-Co alleges, and the court accepts as true for the purposes of these cross-motions, that the FDIC assigned the Mortgage to Ry-Co on April 30, 2012. [Note 2] On May 23, 2012, upon referral from the registry district, the Land Court opened case 12 SBQ 20850 05 - 001 to address the issue that after a subsequent conveyance of the property, the Mortgage, assignment, and discharge were dropped upon preparation by the registry district of new certificate of title no. 74861. Ry-Co was revived on July 11, 2012, pursuant to G.L. c. 156B, § 108, by an application filed by Ara Eresian, Jr. Case 12 SBQ 20850 05 - 001 was closed on November 7, 2012, after service was unsuccessful on the VonIdersteins. The result of 12 SBQ 20850 05 - 001 was that the 2012 assignment of the Mortgage (now contested by the VonIdersteins) was allowed to be registered on canceled certificate of title no. 73523, and no further documents were accepted for notation on that certificate. Ry-Co filed its petition to bring forward the Mortgage and related assignments in the Land Court on January 18, 2013.

Discussion

To survive the VonIdersteins’ Motion to Dismiss, the complaint must set forth factual allegations which, if true, plausibly suggest that Ry-Co is entitled to the relief it seeks. Iannacchino, 451 Mass. at 636. In its complaint, Ry-Co requests that the Mortgage and related assignments be brought forward, to be registered on subsequent, intervening, cancelled certificate of title no. 74861 and current certificate of title no. 92811. The VonIdersteins move to dismiss the complaint on the grounds, among others, that the relief Ry-Co seeks is barred by G.L. c. 260, § 33, the Obsolete Mortgage Statute.

General Laws c. 260, § 33, as amended by St. 2006, c. 63, § 6, sets forth a five-year repose period for mortgages in which the term or maturity date of the mortgage is stated, running from the expiration date of the stated term, and a thirty-five year repose period for mortgages in which no term of the mortgage is stated, running from the date of recording. [Note 3] The 2006 amendments to G.L. c.260, § 33, made the Obsolete Mortgage Statute self-executing, so that upon the expiration of the period applicable to a mortgage, the mortgage shall be considered discharged for all purposes without the necessity of further action by any persons having an interest in the mortgaged property. Id. The 2006 amendments to G.L. c. 260, § 33, were applied retroactively by St. 2006, c. 63, § 8, which states in pertinent part, “Sections 1 to 7, inclusive, shall apply to all mortgages, whether recorded before, on or after the effective date hereof [April 13, 2006].” Id. The retroactive application of the 2006 amendments to G.L. c. 260, § 33, is constitutional because St. 2006, c. 63, § 9, provided that the amendments would not take effect until October 1, 2006, a grace period of five months, seventeen days after the Act was approved. Gandolfo v. Graham, 18 LCR 517 , 520 (2010) (holding that “this court is satisfied that the approximate five and a half month period afforded by the Legislature in which to pursue a foreclosure claim, is entirely adequate from a constitutional perspective”).

Courts have interpreted “a mortgage in which the term or maturity date of the mortgage is stated,” G.L. c. 260, § 33, as a mortgage that has “a specific term of years, or one that is readily ascertainable.” Gandolfo, 18 LCR at 518 n.4; see Deutsche Bank Nat. Trust Co. v. Fitchburg Capital, LLC, 21 LCR 559 , 562-563 (2013); see also Harvard 45 Assocs., LLC v. Allied Properties & Mtges., Inc., 80 Mass. App. Ct. 203 , 205, 210 (2001) (mortgage providing that it was due and payable on specific date subject to five-year repose period of Obsolete Mortgage Statute). The Mortgage in this case encumbers registered land. The Massachusetts Land Court Guidelines on Registered Land state that “[a]ny mortgage of registered land in which a term or maturity date for the secured obligation is stated,expires 5 years after the stated term or maturity date [emphasis added].” Massachusetts Land Court Guidelines on Registered Land, guideline 61 (February 27, 2009).

The cross-motions can be resolved on the single issue of whether the Mortgage, given by the VonIdersteins to the Rileys on July 1, 1986, is obsolete under the Obsolete Mortgage Statute. The court must first determine whether, pursuant to G.L. c. 260, § 33, the Mortgage is subject to a five-year repose period, or to a thirty-five year repose period. Second, the court must determine whether the repose period to which the Mortgage is subject has run. If the repose period has run, then the Mortgage shall be considered discharged for all purposes, the complaint dismissed for failure to state a claim for which relief can be granted, and the Motion for Judgment on the Pleadings denied.

Pursuant to the Obsolete Mortgage Statute, a mortgage is subject to a five-year repose period if it is a mortgage in which the term or maturity date of the mortgage is stated, and is subject to a thirty-five-year repose period if no term of the Mortgage is stated. G.L. c. 260, § 33. Page one of the Mortgage contains the following language:

THE LOAN AMOUNT – One Hundred Thousand ($100,000.00) Dollars.

THE NOTE – That certain Promissory Note of even date herewith in the Loan Amount from DOUGLAS VON IDERSTEIN and LINDA VON IDERSTEIN, as maker, to THOMAS J. RILEY and CONCETTA RILEY, with an annual interest rate of twelve percent (12%) payable on July , 1987, and monthly payments of interest due on the day of each month.

The Mortgage contains a maturity date. That maturity date is “July , 1987.” Therefore, under G.L. c. 260, § 33, the Mortgage is subject to a five-year repose period. Because no specific date in July, 1987, is provided in the Mortgage, the repose period will be calculated with the presumption in Ry-Co’s favor that the missing date was not July 1, 1987, exactly one year after the Mortgage was signed, but rather July 31, 1987, the latest possible date within the month indicated. The Mortgage’s repose period ran five years from July 31, 1987, to July 31, 1992, on which date the Mortgage became discharged for all purposes. General Laws c. 260, § 33, was amended to retroactively discharge the Mortgage on April 13, 2006, and Ry-Co, or its predecessors in interest, had until those amendments went into effect on October 1, 2006, to act on the Mortgage. Ry-Co’s Petition to Bring Forward Mortgage and Related Assignments was filed on January 18, 2013, long after the Mortgage had been discharged pursuant to G.L. c. 260, § 33. On its face, the Mortgage has been rendered obsolete by operation of the Obsolete Mortgage Statute.

Ry-Co raises issues of statutory interpretation and the effect of a dragnet clause as two arguments why, it claims, the Obsolete Mortgage Statute does not apply to the mortgage. Each of these arguments is addressed in turn.

1. Statutory Interpretation

In its Memorandum of November 6, 2013 and its Reply Memo of December 5, 2013, Ry-Co alleges that G.L. c. 260, § 33, does not apply to the Mortgage because it was not paid off. [Note 4] Ry-Co argues that G.L. c. 260, § 33, as amended by St. 2006, c. 63, § 6, should be interpreted only to apply to paid-off mortgages because the title of St. 2006, c. 63 is “AN ACT PROVIDING REMEDIES TO CONSUMERS FOR CLEARING TITLE AFTER PAYOFF OF MORTGAGES.”

The Obsolete Mortgage Statute was originally enacted by St. 1957, c. 370, “AN ACT TO PROTECT TITLES AGAINST OBSOLETE MORTGAGES.” In that act a fifty-year period was set forth after which mortgages would become obsolete. As explained above, St. 2006, c. 63, § 6, amended G.L. c. 260, § 33, by retroactively dividing mortgages into two categories, those stating a term or date, and those with no term or date. The act replaced the fifty-year period with a five-year period for mortgages stating a term or date, and a thirty-five-year period for mortgages with no term or date, and specified that the affect of the statute was self-executing—a statute of repose. Id.

The court is not convinced that the legislature intended in St. 2006, c. 63, § 6, to amend G.L. c. 260, § 33, to apply only to paid-off mortgages. “‘A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.’ Thus, we give effect to a statute’s ‘plain and ordinary meaning’ where the statute’s words are clear.” Olmstead v. Department of Telecommunications & Cable, 466 Mass. 582 , 588 (2013), quoting Sullivan v. Brookline, 435 Mass. 353 , 360 (2001) and Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637 , 640 (2000) (internal citations omitted). While the title of St. 2006, c. 63, does refer to paid-off mortgages, that act consists of nine sections. The act’s amendments to G.L. c. 260, § 33, only appear in section 6. The act does not state in section 6 that it is amending G.L. c. 260, § 33, so that henceforth § 33 will only apply to paid-off mortgages. There is no reference in § 33, as amended, to any requirement that a mortgage be paid off before the time limit shall apply. The amended statute instead protects the interests of mortgagees holding unpaid mortgages by giving them the opportunity to extend the mortgage for a five-year period beyond the expiration date by recording an extension or an affidavit stating that the mortgage has not been paid. Id. The legislative intent behind St. 2006, c. 63, § 6, is best expressed in the legislative materials provided in Exhibit A of Ry-Co’s Memorandum of November 6, 2013:

SECTION 6 rewrites General Laws chapter 260, section 33 governing limitation of mortgage foreclosure actions to reduce the time period for commencing a mortgage foreclosure proceeding from 50 to 35 years from the date of recording said mortgage, or, in the alternative, five years from the expiration of the term or maturity date of said mortgage, unless an extension of the mortgage has been filed.

Commonwealth of Massachusetts, Comments on Enacted Legislation, Nov. 6, 2006.

The Obsolete Mortgage Statute’s words are clear. Giving these words their plain and ordinary meaning, it makes perfect sense that the statute applies to mortgages that are not paid off. It is intended to keep old mortgages from continuing to cloud titles by giving mortgagees incentive to enforce their mortgages or see them discharged. The statute gives mortgagees of unpaid mortgages five years after the underlying obligation is due either to foreclose or to extend the mortgage by filing an affidavit. The Obsolete Mortgage Statute is to be understood according to the plain and ordinary meaning of its language. The statute’s language does not limit it to mortgages that have already been paid in full.

2. The Dragnet Clause

The last sentence of the Mortgage, on page 7, reads as follows:

It is also agreed that this Mortgage is security for the payment of the aforesaid obligation and all other obligations and liabilities of Mortgagor to the Mortgagee, direct or indirect, absolute or contingent, now existing or which may hereafter arise.

Mortgage, at 7.

Ry-Co argues that this “dragnet clause” brought the Mortgage within § 33’s category of mortgages “in which no term is stated,” valid for thirty-five years from recording date, and out of § 33’s category of mortgages “in which the term or maturity date of the mortgage is stated,” valid for only five years from the expiration of the term or from the maturity date. G.L. c. 260, § 33. Whether or not a dragnet clause excepts the mortgage in which it resides from § 33’s five-year repose period appears to be a question of first impression in the Commonwealth. Interpreting the language of G.L. c. 260, § 33, and existing Massachusetts case law addressing dragnet clauses, the court finds that the mere inclusion of a dragnet clause in a mortgage instrument without evidence of an existing additional obligation secured by such dragnet clause is not enough to take that mortgage out of § 33’s five-year repose period. Ry-Co has alleged no specific debt secured by the Mortgage other than the Note, for $100,000, explicitly recited on page one of the Mortgage. The court rejects Ry-Co’s argument that mere inclusion of a dragnet clause in the Mortgage is sufficient to remove the Mortgage from the five-year repose period.

A dragnet clause is a “mortgage provision that purports to make the real estate security for other, usually unspecified debts that the mortgagor may already owe or may owe in the future to the mortgagee.” In re Ballarino, 180 B.R. 343, 346 (D. Mass. 1995). “The possibility for oppressive use of dragnet clauses is high, as ‘such clauses are usually boilerplate in a document drafted by the lender, seldom the subject of negotiation, and often the debtor is unaware of its presence or implications.’” Id. at 347, quoting Lundgren v. National Bank of Alaska, 756 P.2d 270, 277-278 (Alaska 1987). “Dragnet clauses are generally enforced, but because their apparent coverage is so broad, and because the mortgager is often unaware of their presence or implication, the courts tend to construe them narrowly against the mortgagee.” Id. at 346, quoting Osborne, Nelson and Whitman, Real Estate Finance Law, § 12.8 at 228-229 (1979). “[R]elief from the effect of dragnet clauses involves principles of equity.” Id. at 347, citing Everett Credit Union v. Allied Ambulance Serv. Inc., 12 Mass. App. Ct. 343 , 346 (1981).

Massachusetts courts have therefore imposed “narrow construction on dragnet clauses in an effort to prevent the oppressive and fraudulent use of dragnet clauses.” NAB Asset Venture III, L.P. v. Brockton Credit Union, 62 Mass. App. Ct. 181 , 183-184 (2004). The “guiding principle in construction of a dragnet clause in a mortgage is the determination of the intent of the parties in view of the particular circumstances and the language employed in the mortgage.” Financial Acceptance Corp. v. Garvey, 6 Mass. App. Ct. 610 , 613 (1978); see also NAB Asset Venture III, 62 Mass. App. Ct. at 183; Debral Realty, Inc. v. Marlborough Coop. Bank, 48 Mass. App. Ct. 92 , 94 (1999), Ballarino, 180 B.R. at 346; In re Goodman Indus., Inc., 21 B.R. 512, 517 (Bankr. D. Mass. 1982). The purpose of this test is to determine what the reasonable expectations of the parties were. Financial Acceptance Corp., 6 Mass. App. Ct. at 613; see NAB Asset Venture III, 62 Mass. App. Ct. at 184. A future obligation purported to be secured by a dragnet clause will not be secured unless it is of the same kind and quality as the original obligation; sufficiently related to the original indebtedness such that consent of the debtor can be inferred; the new obligation incurred refers to the mortgage; or security of the new obligation by the mortgage was contemplated by the parties. See id. at 183; Financial Acceptance Corp., 6 Mass. App. Ct. at 613, Ballarino, 180 B.R. at 346.

Applying these principles, the dragnet clause does not subject the Mortgage to the thirty-five year repose period of the Obsolete Mortgage Statute. The statute provides a thirty-five year repose period only for “a mortgage in which no term of the mortgage is stated.” G.L. c. 260, § 33. Dragnet clause or not, the Mortgage contains the words “payable on July ___, 1987.” By its terms, the Mortgage is not “a mortgage in which no term of the mortgage is stated.” Id. Therefore, the Mortgage is not subject to the thirty-five year repose period of § 33.

Rather, notwithstanding the presence of the dragnet clause, the Mortgage is subject to the five-year repose period for “a mortgage in which the term or maturity date of the mortgage is stated.” Id. The term or maturity date of a mortgage, for purposes of the Obsolete Mortgage Statute, can be the term or maturity date of the obligation the mortgage secures, if such term is recited in the mortgage instrument. See Gandolfo, 13 LCR at 518 n.4; Deutsche Bank Nat. Trust Co., 21 LCR at 562; see also Harvard 45 Assocs., LLC, 80 Mass. App. Ct. at 205, 210. The Mortgage identifies the Note as the obligation the Mortgage secures:

The Mortgagor, for consideration paid, hereby grants to the Mortgagee, WITH MORTGAGE COVENANTS, the Mortgaged Premises to secure payment of the Loan Amount, with interest and all other charges due thereon, payable as provided in the Note, and also to secure the payment and performance of all covenants and agreements contained herein and in the other Loan Documents.

Mortgage, at 2. This language refers to the “Note” and “Loan Amount” as defined on page one of the Mortgage, and “Loan Documents” as defined on page two of the Mortgage. The maturity date of the Note is “July ___, 1987,” making that the maturity date of the obligation that the Mortgage secures. This maturity date is prominently stated on page one of the Mortgage. The Mortgage cannot be exempted from the five-year repose period upon nothing more than a claim that a dragnet clause, buried in the seventh page of the mortgage instrument, might hypothetically secure some possible future mortgage obligation.

Even construing the pleadings in favor of Ry-Co, there is no allegation in the complaint that the dragnet clause secured any further obligations of the VonIdersteins to the Rileys. A future obligation purported to be secured by a dragnet clause will not be secured unless it is sufficiently related to the original indebtedness such that consent of the debtor can be inferred. See NAB Asset Venture III, 62 Mass. App. Ct. at 183; Financial Acceptance Corp., 6 Mass. App. Ct. at 613; Ballarino, 180 B.R. at 346-347. The pleadings of both parties state that the intent of the VonIdersteins and the Rileys was to give a purchase money mortgage on the property as security for a $100,000 note given by the VonIdersteins to the Rileys in return for $100,000 to make up a shortfall in the purchase price of the property that the VonIdersteins were buying from the Rileys. The reference in the Mortgage, at page 2, that it is “also to secure the payment and performance of all covenants and agreements contained herein and in the other Loan Documents” is not, as Ry-Co argues, a reference to any other debts secured by the Mortgage. “Loan Documents” is a defined term in the Mortgage—it is defined just above the language on which Ry-Co relies. Mortgage at 2. The term “Loan Documents” is defined as the “Note, Mortgage and Security Agreement, and as the same may hereafter be amended, extended and renewed”, id., i.e., the $100,00 note that is secured by the Mortgage and recited on page 1.

The original indebtedness secured by the Mortgage arose twenty-seven years ago, and was for a term that expired twenty-six years ago. There is no allegation, and no reasonable inference, that a new obligation has or will arise between the VonIdersteins and the Rileys, sufficiently related to the original indebtedness so that the VonIdersteins’ consent can be inferred to have the 1986 Mortgage secure this new obligation. In short, the dragnet clause on page seven of the Mortgage does not remove the Mortgage from the Obsolete Mortgage Statute’s five-year repose period.

Conclusion

For the foregoing reasons, Douglas VonIderstein and Linda VonIderstein, Trustees of VonIderstein Realty Trust’s Cross-Motion of VonIderstein Respondents to Dismiss Complaint is ALLOWED. Petitioner Ry-Co International, Ltd.’s Motion for Judgment on the Pleadings is DENIED. Petitioner Ry-Co International, Ltd.’s Petition to Bring Forward Mortgage and Related Assignments is DISMISSED WITH PREJUDICE. It is hereby ORDERED AND DECLARED that the Mortgage is considered discharged for all purposes, effective July 31, 1992, without the necessity of further action. Upon the payment of the fee for the recording of a discharge, the Mortgage may be marked as discharged on the relevant memorandum of encumbrances in the same manner as for any other mortgage duly discharged.

SO ORDERED