DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-R-7 v. VICTORIA A. KELLEY and LEO A. KELLEY.

INTRODUCTION

The Plaintiff, Deutsche Bank National Trust Company, filed its “Third Supplemental Petition” in the instant action (the “Complaint”) on July 25, 2013. The Plaintiff claims to be the holder, by assignment, of a mortgage granted by the Defendants, Victoria A. Kelley and Leo A. Kelly, on registered land identified as 35 Bay Farm Road, Kingston, Massachusetts (the “Bay Farm Property”). The Plaintiff contends that, through inadvertence or mutual mistake, an incorrect Exhibit A property description was attached to said mortgage. Instead of describing the Bay Farm Property, it describes a different property in Kingston also owned by the Kelleys at that time. Additionally, the Plaintiff contends that the subject mortgage was inadvertently filed on the recorded land side of the Plymouth County Registry of Deeds, instead of in the Land Court Registry District. The Plaintiff seeks reformation of the mortgage’s Exhibit A Legal Description by substituting the Bay Farm Property description. The Plaintiff further seeks to have the mortgage, as so reformed, registered as an encumbrance on the Bay Farm Property, nunc pro tunc to June 15, 2004 ? the date of the mortgage’s original recording.

The Defendants answered the Complaint on August 21, 2013. Their Answer denies that the Plaintiff holds a valid assignment of the subject mortgage, and denies that the subject mortgage was intended to encumber the Bay Farm Property.

On September 16, 2013, the Plaintiff filed a Mass. R. Civ. P. 12(c) Motion for Judgment on the Pleadings, together with a supporting Memorandum of Law. After the Defendants failed to file any opposition, the Motion was decided without oral argument, pursuant to Land Court Rule 6. The Plaintiff’s Motion for Judgment on the Pleadings was denied on March 21, 2014.

On May 23, 2014, the Plaintiff filed a Motion for Summary Judgment, together with supporting affidavits. The Defendants did not file any opposition or other response within the thirty-day period provided by Land Court Rule 4, and never sought to file a late response. The court has now determined that the unopposed Motion for Summary Judgment may also be decided on the papers pursuant to Land Court Rule 6. As discussed below, the undisputed material facts established through the summary judgment record entitle the Plaintiff to judgment as a matter of law. Accordingly, Plaintiff’s Motion for Summary Judgment is ALLOWED.

UNDISPUTED MATERIAL FACTS

The summary judgment record establishes the following undisputed material facts.

1. On April 11, 1994, Defendant Victoria A. Kelley, individually, took title to the Bay Farm Property by foreclosure deed, filed with the Plymouth County Registry District of the Land Court (the “Registry District”) on April 15, 1994 as Document No. 367965, with Transfer Certificate of Title No. 86204.

2. On April 15, 1994, Victoria granted a mortgage on the Bay Farm Property to John R. Hamilton, Jr., as security for a note in the principal amount of $211,000 (the “1994 Bay Farm Mortgage”). The 1994 Bay Farm Mortgage was filed with the Registry District on April 15, 1994, as Document No. 367966. A discharge of the 1994 Bay Farm Mortgage was filed with the Registry District on February 27, 1996 as Document No. 392686.

3. Over the next nine years, the Bay Farm Property was the subject of numerous refinancings. Each time, the prior mortgage was paid off with the proceeds from the refinancing mortgage.

4. On April 25, 2003, Victoria granted Ameriquest Mortgage Company (“Ameriquest”) a mortgage on the Bay Farm Property to secure a note in the principal amount of $322,700 (the “2003 Bay Farm Mortgage”). The property references contained therein, including the attached and incorporated Exhibit A legal description and the property references in the Adjustable Rate Rider, all correctly describe and/or identify the Bay Farm Property. The Loan Number associated with the 2003 Bay Farm Mortgage is “0046671616-5609”. The 2003 Bay Farm Mortgage was filed with the Registry District on May 8, 2003 as Document No. 535293. [Note 1]

5. Shortly after the 2003 Bay Farm Mortgage was filed with the Registry District, Leo, acting as trustee of the KFT Realty Trust, conveyed an unregistered property identified as 32 Crescent Street, Kingston, Massachusetts (the “Crescent Street Property”) to himself and Victoria as tenants by the entirety by deed dated May 24, 2003. Said deed was recorded on June 12, 2003 at the Plymouth County Registry of Deeds (the “Registry of Deeds”) at Book 25421, Page 54.

6. Also on May 24, 2003, Leo and Victoria, as tenants by the entirety, granted Ameriquest a mortgage on the Crescent Street Property, to secure a note in the principal amount of $127,500 (“the 2003 Crescent Street Mortgage”). The property references contained therein, and in the attached and incorporated legal description, the attached Adjustable Rate Rider, and the attached 1-4 Family Rider, all describe and/or identify the Crescent Street Property as the subject property. The Loan Number associated with the 2003 Crescent Street Mortgage is listed as “0047660394- 5609”. The Crescent Street Mortgage was recorded at the Registry of Deeds on June 12, 2003 at Book 25421, Page 57.

7. The Crescent Street Property was subsequently sold at a foreclosure sale for consideration of $370,000. The foreclosure deed for the Crescent Street Property was recorded at the Registry of Deeds on June 21, 2005 at Book 30754, Page 76.

8. In the meanwhile, the Bay Farm Property was again refinanced in 2004. In connection with the May 14, 2004 refinancing, the Borrower, identified as “Victoria A. Kelley, married to Leo A. Kelley,” [Note 2] granted a mortgage to Ameriquest (the “2004 Mortgage”). Although only Victoria was named as Borrower, both of the Kelleys executed the 2004 Mortgage and both initialed every page of said Mortgage. Both Leo’s and Victoria’s signatures on the 2004 Mortgage were notarized.

9. In conjunction with the 2004 Mortgage, the Kelleys executed an Adjustable Rate Note (the “Note”) in the amount of $395,000.00 to Ameriquest, as Lender. The note is dated May 13, 2004. The Note refers to the Bay Farm property. No other property is mentioned. The Uniform Residential Loan Application the Kelleys executed on May 14, 2004 to obtain the $395,000 loan identifies the purpose of the loan as refinancing, and lists the Bay Farm Property address as the address of the subject property.

10. The property references contained on the face of the 2004 Mortgage and on the face of the Adjustable Rate Rider attached thereto identify the address of the subject property as 35 Bay Farm Road, Kingston (i.e., the Bay Farm Property).

11. The Exhibit A Legal Description attached to the 2004 Mortgage, however, does not describe the Bay Farm Property, but instead describes the Crescent Street Property.

12. In connection with the 2004 Mortgage, Leo and Victoria both executed a number of closing documents, including a Truth-in-Lending Disclosure Statement, an Affidavit of Title, a Borrower’s Acknowledgement of Final Loan Terms, a flood disclosure form, a Massachusetts Uniform Mortgage Loan Cost Worksheet, an Occupancy Agreement, a Payment Information form, a Notice of Right to Cancel form, and a Request for Reconveyance and Estoppel. All of these closing documents identify the Bay Farm property as the subject of the refinancing loan and the 2004 Mortgage.

13. The Uniform Residential Loan Application the Kelleys executed to obtain a $395,000 loan for the stated purpose of refinancing, lists 35 Bay Farm Road as the address of the subject property.

14. In connection with the 2004 Mortgage, Leo and Victoria both signed a “HUD-1A” settlement form, which calculated the total disbursement of funds from “Loan Number: 0078826203-7346” (the loan associated with the 2004 Mortgage) and identified the “Property Location” as “35 Bay Farm Rd. KINGSTON, MA 02364.”

15. According to the HUD-1A document, $325,825.13 of the total loan proceeds were to be disbursed to Ameriquest and $60,280.95 of the total proceeds were to be disbursed to the Kelleys.

16. The Request for Reconveyance and Estoppel, signed by Leo and Victoria on May 14, 2004, recites that a check made out to Ameriquest in the amount of $325,825.13 is enclosed for the repayment of Loan No. 8740046671616 (identified as a loan secured by the Bay Farm Property). The form also requests removal of the lien against the subject property (identified as the Bay Farm Property), and requests a reconveyance of the Deed of Trust.

17. On June 15, 2004, the 2004 Mortgage was recorded with the Registry of Deeds at Book 28443, Page 20. It was never filed with the Registry District, however.

18. As a result of the May 14, 2004 refinancing, Ameriquest discharged the 2003 Bay Farm Mortgage by instrument entitled Release of Mortgage/Deed of Trust, dated June 22, 2004, and filed with the Registry District on July 26, 2004 as Document No. 569832. The discharge instrument identified the Bay Farm Property as the subject property.

19. On March 26, 2013, Denise Apicella, acting as an “Assistant Secretary” for Ameriquest, executed a “Corporation Assignment of Deed of Trust/Mortgage,” assigning the 2004 Mortgage and any associated note to the Plaintiff (the “Assignment”). [Note 3] The Assignment identifies the Bay Farm Property as the subject of the assigned Mortgage. The Assignment was neither recorded in the Registry of Deeds nor filed with the Registry District.

DISCUSSION

As ably addressed in the Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, it is well settled that a court has broad equitable power to correct erroneous land descriptions in a written instrument if the error is due to a mutual mistake of fact. The undisputed facts here unequivocally establish that, on the date the 2004 Mortgage was granted, both the Kelleys and Ameriquest intended that the 2004 Mortgage would encumber the Bay Farm Property as security for the $395,000 refinance loan made to the Kelleys by Ameriquest. Given the overwhelming and uncontroverted documentary evidence of that intent, it is clear that the wrong property description was mistakenly attached to the 2004 Mortgage as the Exhibit A legal description. The Defendants have failed to demonstrate otherwise by substantiating any of the contrary allegations made in their Answer. Indeed, the Defendants have not opposed the Plaintiff’s Motion for Summary Judgment. Therefore, I find that the Plaintiff, having also satisfactorily established its standing to seek equitable relief in this matter as assignee of the 2004 Mortgage, is entitled to judgment in its favor reforming the 2004 Mortgage by substituting a new Exhibit A legal description of the Bay Farm Property for the erroneous Exhibit A Legal Description attached to the 2004 Mortgage when originally recorded. Once the 2004 Mortgage has been reformed, it may then be filed in the Registry District. [Note 4]

Judgment to enter accordingly.