Home ACORN 420 BROADWAY LLC vs. NEW ENGLAND PHOENIX COMPANY, INC.

MISC 13-478331

May 18, 2015

SANDS, J.

JUDGMENT

On June 25, 2013, after Respondent New England Phoenix Company, Inc. (“Respondent”) had asserted an ownership claim in the property known as and located at 420 West Broadway, South Boston, MA (“Locus”), Petitioner Acorn 420 Broadway LLC (“Petitioner”) commenced this action by filing an unverified petition seeking, pursuant to G. L. c. 240, § 1, to compel Respondent to try its claim to title to Locus and its claim that it is in possession of Locus. Respondent filed an answer to the petition on August 29, 2013; Respondent’s answer denied that Petitioner owned Locus, but did not interpose a counterclaim to assert its own claim to title thereof. A case management conference was held on September 4, 2013, after which the parties began exchanging discovery.

On July 30, 2014, Petitioner filed a motion for summary judgment, together with a supporting memorandum of law, a statement of undisputed material facts, and an appendix containing affidavits of Pradip Tandon (“Tandon”) (Chief Financial Officer of Petitioner) (“Tandon Affidavit 1”), John Troy, Esq. (“Troy”) (Land Court title examiner), and Douglas L. Whitaker, Esq. (“Whitaker”) (Petitioner’s attorney). On August 29, 2014, Respondent filed a cross-motion for summaryjudgment, together with a supporting memorandum of law, a statement of additional facts, and an appendix containing the affidavit of John M. Keough (“Keough”) (Respondent’s President and attorney); on the same date, Respondent also filed a motion to strike portions of Tandon Affidavit 1. Petitioner filed its reply brief on September 12, 2014, together with a supporting memorandum of law and an appendix containing supplemental affidavits of Whitaker and Tandon (“Tandon Affidavit 2”); on the same date, Petitioner also filed opposition to the motion to strike. A hearing was held on all three motions on October 20, 2014, and, at that time, this matter was taken under advisement.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that Respondent’s motion to strike Tandon Affidavit 1 is hereby DENIED; and,

ORDERED and ADJUDGED that OBC Deed 1 [Note 1] was a valid conveyance, since, pursuant to the Fraine Certificate [Note 2] and Confirmatory Fraine Certificate, Barbara A. Buckley (“Buckley”), Trustee of the 420 West Broadway Realty Trust (the “Trust”) [Note 3], unambiguouslyindicated that she had given her proxy to Fraine to execute OBC Deed 1 on her behalf; and,

ORDERED and ADJUDGED that OBC Deed 2 [Note 4] was a valid confirmatory deed confirming her consent to the Trust’s prior conveyance of Locus (prior to the effective date of the P.I. [Note 5]) pursuant to OBC Deed 1; and,

ORDERED and ADJUDGED that the MBTA Mortgage Amendment [Note 6] did not have the effect of rendering the MBTA Mortgage junior to either Buckley Mortgages 1 or 2 [Note 7], or any other mortgage (including the Fraine Mortgage [Note 8] and the other mortgages referenced in the Buckley Subordination [Note 9]); and,

ORDERED and ADJUDGED that the Invictus Assignment [Note 10], the Invictus Notice of Sale [Note 11], the Invictus Entry [Note 12], the Invictus Certificate of Entry, the 420 West Deed [Note 13], and the Petitioner Deed [Note 14] effectively conveyed title to Locus from the MBTA to Petitioner; and,

ORDERED and ADJUDGED that Petitioner has record title to Locus, subject to the Enterprise Mortgage [Note 15]; and,

ORDERED and ADJUDGED that Petitioner has adequately demonstrated that it has possession of Locus; and,

ORDERED and ADJUDGED that Petitioner has standing to bring this try title action; and,

ORDERED and ADJUDGED that Petitioner holds record title to Locus free and clear of any claim of Respondent; and,

ORDERED and ADJUDGED that Petitioner’s Motion for Summary Judgment is hereby ALLOWED in all respects; and,

ORDERED and ADJUDGED that Respondent’s Cross-Motion for Summary Judgment is hereby DENIED in all respects; and,

ORDERED and ADJUDGED that Respondent’s claims to record title to Locus are hereby DISMISSED, with prejudice.

By the court.

FOOTNOTES

[Note 1] OBC Deed 1 is defined in the Decision as the deed dated February 19, 1999 and recorded in the Registry at Book 23463, Page 177 the Suffolk County Registry of Deeds (the “Registry”).

[Note 2] The Fraine Certificate is defined in the Decision as the trustee’s certificate dated February 18, 1999 and recorded in the Registry at Book 23463, Page 176. It was confirmed by the Confirmatory Fraine Certificate, which is defined in the Decision as the confirmatory trustee’s certificate executed by Francis K. Fraine (“Fraine”) on April 7, 1999 and recorded in the Registry at Book 23659, Page 61.

[Note 3] The Trust was established by declaration of trust (the “Declaration of Trust”) dated November 26, 1986 and recorded in the Suffolk County Registry of Deeds (the “Registry”) at Book 13231, Page 191, which was confirmed by a confirmatory declaration of trust recorded on February 14, 1989 in the Registry at Book 15369, Page 292.

[Note 4] OBC Deed 2 is defined in the Decision as the deed dated June 19, 2001 and recorded in the Registry at Book 26715, Page 304.

[Note 5] The P.I. is defined in the Decision as the preliminary injunction issued by the Suffolk County Superior Court on September 14, 2000 in an action in Suffolk County Superior Court entitled New Eng. Phoenix Co. v. Buckley (Case No. SUCV2000-04021) (the “P.I. Action”). The P.I. restrained Buckley “from assigning, transferring, paying, encumbering, or taking any other actions to diminish the value of any assets owned by Buckley ... including but not limited to . . . [Buckley Mortgage 1 and the Fraine Mortgage ].”

[Note 6] The MBTA Mortgage is defined in the Decision as the mortgage dated March 3, 1999 and recorded in the Registry at Book 23509, Page 24, pursuant to which On Broadway Corporation (“OBC”) granted to the Massachusetts Bay Transportation Authority Retirement Fund (the “MBTA”) a $2,500,000.00 mortgage secured by Locus. The MBTA Mortgage Amendment is defined in the Decision as the first amendment and restatement of the MBTA Mortgage, which was recorded in the Registry at Book 26715, Page 306.

[Note 7] Buckley Mortgage 1 is defined in the Decision as the mortgage dated September 6, 2000 and recorded in the Registry on September 7, 2000 at Book 25330, Page 276, pursuant to which OBC granted to Buckley (personally) a $100,000.00 mortgage secured by Locus. Buckley Mortgage 2 is defined in the Decision as the mortgage dated September 6, 2000 and recorded in the Registry on October 2, 2000 at Book 25414, Page 165, pursuant to which OBC granted to Buckley(personally) a $100,000.00 mortgage secured by Locus. As noted in the Decision, the parties dispute whether and Buckley Mortgages 1 and 2 are two separate mortgages or a single mortgage that was recorded twice. This court makes no formal finding as to that dispute.

[Note 8] The Fraine Mortgage is defined in the Decision as the mortgage dated September 6, 2000 and recorded in the Registry at Book 25330, Page 327, pursuant to which Buckley granted to OBC (and two additional entities -- Corporation 655 and Corporation 320 -- entities associated with Fraine, but not relevant to this case) a $600,000.00 mortgage secured by Locus (and two additional unrelated properties).

[Note 9] The Buckley Subordination is defined in the Decision as the subordination dated June 19, 2001 and recorded in the Registry at Book 26715, Page 310, pursuant to which Buckley subordinated Buckley Mortgage 1 (and several other mortgages) to the MBTA Mortgage, as amended.

[Note 10] The Invictus Assignment is defined in the Decision as the assignment dated December 8, 2003 and recorded in the Registry at Book 33648, Page 139, pursuant to which the MBTA assigned the MBTA Mortgage to Invictus Holdings, LLC (“Invictus”).

[Note 11] The Invictus Notice of Sale is defined in the Decision as the notice of sale dated November 20, 2007 pursuant to G. L. c. 244, § 14 sent by Invictus to creditors of record of Locus, including Respondent, which stated that a public sale of Locus would take place on December 4, 2007.

[Note 12] The Invictus Entry is defined in the Decision as the December 4, 2007 entry by Invictus on Locus for the purpose of foreclosing upon the MBTA Mortgage and taking possession of Locus, as confirmed by a certificate of entry (the “Invictus Certificate of Entry”) dated December 4, 2007 and recorded at the Registry at Book 42882, Page 251.

[Note 13] The 420 West Deed is defined in the Decision as the deed dated March 13, 2009 and recorded in the Registry at Book 44665, Page 304.

[Note 14] The Petitioner Deed is defined in the Decision as the deed dated August 3, 2012 and recorded in the Registry at Book 50046, Page 229.

[Note 15] The Enterprise Mortgage is defined in the Decision as the mortgage dated August 23, 2012 and recorded in the Registry at Book 50046, Page 253, pursuant to which Petitioner granted a $2,080,000.00 mortgage to Enterprise Bank and Trust Company secured by Locus.