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.
CUTLER, C. J.
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 in 2004 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 it was through mutual mistake or inadvertence that the subject mortgage 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 2004 mortgage by substituting a new Exhibit A description of the Bay Farm Property for the Exhibit A description attached to the subject mortgage as originally recorded. The Plaintiff further seeks to have the subject mortgage, as so reformed, registered as an encumbrance on the Bay Farm Property, nunc pro tunc to June 15, 2004 -- the date of the mortgages 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 Plaintiffs 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. After determining that the unopposed Motion for Summary Judgment could also be decided on the papers pursuant to Land Court Rule 6, the court issued a Decision Allowing Plaintiffs Motion for Summary Judgment on January 22, 2015. In accordance with said Decision, it is hereby:
ADJUDGED and DECLARED that the parties to the 2004 Mortgage intended said Mortgage to cover the property located at 35 Bay Farm Road in Kingston, Massachusetts, which property is described in Transfer Certificate of Title No. 86204 and shown as Lots 18 and 20 on Land Court Plan No. 14792V (the Bay Farm Property); and it is further
ADJUDGED and DECLARED that, through mutual mistake, the Exhibit A Legal Description attached to the 2004 Mortgage is incorrect in that it does not pertain to the Bay Farm Property, but describes a completely different parcel of land located at 32 Crescent Street in Kingston, Massachusetts; and it is further
ADJUDGED and DECLARED that, through mutual mistake, the 2004 Mortgage was recorded on June 15, 2004 with the Plymouth Registry of Deeds on the recorded land side, instead of with the Registry District; and it is therefore
ADJUDGED, DECLARED and ORDERED that the 2004 Mortgage is reformed nunc pro tunc to the date and time of its original recording by substituting the following Exhibit A Property Description for the Exhibit A Property Description attached to the 2004 Mortgage as originally recorded:
EXHIBIT A
Two certain parcels of land, situate in Kingston, in the County of Plymouth and said Commonwealth, bounded and described as follows:
Being Lot 18 on subdivision plan #14792Q drawn by Delano & Keith, Surveyors, dated Jan. 29, 1958 and filed with Certificate of Title No. 27296 and Lot 20 on subdivision plan #14792S drawn by Delano & Keith, Surveyors, dated July 14, 1960 and filed with Certificate of Title No. 29921.
Said Lot 18 is subject to the agreement that Chester L. Heckman et al shall build a road in the area marked Way, shown on said plan and to install water pipes from River Street to a point one hundred (100) feet westerly from the southeast corner of said lot and to install electric poles and wires sufficient to supply electricity and telephone service to said lot, as set forth in two certain deeds, one from Chester L. Heckman to Alma B. Scott, dated October 16, 1958, filed and registered as document #68659 and the other from Percy L. Walker by Executor to Alma B. Scott, dated December 17, 1958, filed and registered as document #68658.
Said Lots 18 and 20 are also subject to an easement from Percy L. Walker et al to the Plymouth County Electric Company et al, dated July 10, 1956, filed and registered as document #58553.
There is appurtenant to Lot 18, a right of way over the way, shown on said plan, and runs from said lot to River Street and this right of way shall be appurtenant to the above described land in common with others legally entitled thereto, as set forth in said deeds, document #68658 and #68659.
There is also appurtenant to Lot 18 a right to pass and repass from said lot to Kingston Bay and/or Jones River with the right to walk, bathe and land boats on the beach anywhere in the area lying within seven hundred (700) feet northerly of the northerly sideline of River Street, this right to exist only until Chester L. Heckman et al shall convey to said Alma B. Scott, a substituted way and beach and the right to walk, bathe and land boats in an area within eight hundred (800) feet north of the northerly sideline of River Street and which way will be definite in location and not less than twenty (20) feet in width leading easterly from the Way, shown on said plan, to a stated area of beach, which beach area will not be less than one hundred (100) feet in width and run from the upland to low water mark or the extent of private ownership in Kingston Bay and such way to the beach and such beach is subject to all others legally entitled to use the same, as set forth in said deeds, documents #68658 and #68659.
There is also appurtenant to Lots 18 and 20 a view easement over Lot 24 and a ten (10) foot wide foot path along the northerly boundary of said Lot 24 as shown on Land Court Plan #14792V, more particularly described in a Deed of Easement from John R. Hamilton, Jr., Trustee of Kings Towne Realty Trust, which Deed of Easement is dated September 25, 1995 and filed and registered as document #387191.
There is not hereby conveyed any separate right of way as appurtenant to Lot 20 access to the same to be over Lot 18 and the way shown on Land Court Plan #14752Q as Private Way which way is forty (40) feet in width and runs from Lot 18 to River Street, said Private Way being a forty (40) foot way to be used in common with the grantees, the grantors and others hereinafter granted rights over said way, set forth in said deed, document #76541.
For my title see foreclosure deed filed with the Land Court as Document #367965 as noted on Certificate of Title No. 86204 in Registration Book 431, Page 4, a portion of the premises described therein.
And it is further
ADJUDGED, DECLARED and ORDERED that in view of the fact that the Bay Farm property is registered land, a separate Order shall issue to the Registry District ordering that a certified copy of the recorded 2004 Mortgage, as so reformed, shall be accepted for filing and shall be registered and noted on Certificate of Title No. 86204.
So ORDERED