WELLS FARGO BANK, N.A., as TRUSTEE for BNC MORTGAGE LOAN TRUST 2007-4 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-4 v. LAWRENCE P. NOVAK, as SUCCESSOR TRUSTEE of NOVAK FAMILY TRUST$$* and LAWRENCE P. NOVAK and MCCLAREN HEATING & AIR CONDITIONING, INC., MAURICE SEDWELL, LTC., and the UNITED STATES OF AMERICA.

INTRODUCTION

These two consolidated cases concern title to a residential property at 235 Candy Lane in Brockton, Massachusetts (the "Property") and the enforceability of certain liens recorded against the Property. On February 18, 2011, Plaintiff Wells Fargo, N.A., as Trustee for BNC Mortgage Loan Trust 2007-4 Mortgage Pass-Through Certificates, Series 2007-4 ("Wells Fargo") filed its Complaint in the first action, 11 MISC 445494, seeking to establish that it holds a first lien on the Property under a mortgage given by Lawrence P. Novak, individually to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for lender BNC Mortgage, Inc. in 2007 (the "BNC Mortgage"). [Note 1] Also on February 18, 2011, Joanne Sullivan, in her then-capacity as Trustee of the Novak Family Trust, filed a Complaint in the second action, 11 MISC 445499, seeking to establish the Trust's title to the Property, and to determine the validity of certain liens recorded against the Property, including the BNC mortgage and various other liens recorded against the Property by Defendant creditors Maurice Sedwell, Ltd. ("Sedwell"), McClaren Heating & Air Conditioning, Inc., and the Department of Justice, U.S. Attorney's Office for the District of Massachusetts. The two cases were consolidated on May 17, 2011.

This is the second summary judgment decision rendered in these consolidated cases. On March 24, 2015, after (1) determining that Lawrence P. Novak ("Novak") did not own the Property individually when he granted the BNC Mortgage, but (2) nonetheless applying the doctrine of estoppel by deed, I allowed Wells Fargo's Motion for Summary Judgment "declaring that Novak is estopped from denying the validity of the BNC Mortgage, and that the BNC Mortgage is enforceable as a valid lien on the Property as if Novak had been the duly appointed Trustee at the time he executed the BNC Mortgage instrument." More specifically, based on the undisputed facts, I determined that the doctrine of estoppel by deed applied to the 2007 Deed granting the Property from Novak as Trustee to Novak individually, once Novak again became Trustee of the Novak Family Trust on October 21, 2012. [Note 2] Application of this doctrine rendered the BNC Mortgage on the Property valid and enforceable.

Now, in reliance on the estoppel by deed theory, Maurice Sedwell, Ltd. ("Sedwell"), Interested Party in 11 MISC 445494 and Defendant in 11 MISC 445499, has moved for Summary Judgment against Novak as successor Trustee of the Novak Family Trust ("Novak Trustee"), declaring that Novak Trustee is estopped from denying the validity of the 2007 deed to Novak individually, and further declaring that the Writ of Attachment and Writ of Execution Sedwell recorded against the Property in 2009 and 2010, respectively, after obtaining a judgment against Novak in the Federal District Court for default on a personal debt, are similarly valid and enforceable against the Property. Novak and Novak Trustee have opposed Sedwell's Motion, arguing that (as this court determined in the March 24, 2015 Summary Judgment Decision and Order) the deed Novak executed and recorded in 2007, purporting to be a conveyance from himself as Trustee of Novak Family Trust to himself, individually was of no effect because Novak was not the Trustee at the time and had no authority to execute such deed. Novak urges the court to conclude that title to the Property, thus having remained with the Trust, is beyond reach of any of Novak's personal creditors.

The court conducted a summary judgment hearing on May 10, 2016. Now, based upon the undisputed, material facts established in the record before me, and consistent with my March 24, 2015 Summary Judgment Decision and Order, I ALLOW Sedwell's Motion for Summary Judgment.

UNDISPUTED MATERIAL FACTS

I incorporate herein the Undisputed Material Facts set forth in the March 24, 2015 Summary Judgment Decision. Additionally, Sedwell has established the following undisputed material facts:

1. Maurice Sedwell LTD is a bespoke tailor on Seville Row in London that provides custom tailoring services in the United Kingdom, United States, and other countries.

2. In early 2006, Novak arranged with Sedwell to purchase suits and other clothing.

3. Sedwell charged $133,580.58 for its services. To date, Novak has not paid the balance of Sedwell's charges.

4. Sedwell filed a Complaint against Novak individually in the U.S. District Court for the District of Massachusetts on June 16, 2009 seeking to recover on the debt (Civ. Case No. 1:09-cv-11021-RGS).

5. Judge Richard G. Stearns granted Sedwell a Writ of Attachment on the Property, which Sedwell recorded in the Registry in Book 37390, at Page 148 on June 23, 2009.

6. On August 24, 2010, Judge Stearns granted summary judgment in favor of Sedwell "in the amount of $126.080.58, with statutory interest paid from November 21, 2007." Judgment was later amended on October 18, 2010 to add statutory interest in the amount of 12%, "paid from November 21, 2007 to August 24, 2010 in the amount of $41,782.76 for a total judgment of $167,863.34."

7. On September 3, 2010, Novak filed a Motion to Discharge Attachment on the Property, arguing that he never had authority as a Trustee to convey the Property to himself individually and, accordingly, that the Novak Family Trust (and not he individually) was record titleholder of the Property when the Attachment was recorded.

8. Judge Stearns denied the Motion to Discharge Attachment and by docket entry dated September 8, 2010, wrote "DENIED. This court is without authority to determine title."

9. On October 22, 2010, a Writ of Execution issued. The Writ of Execution was recorded with the Registry in Book 39202, at Page 13 on November 1, 2010.

DISCUSSION

Summary judgment is appropriate when there are no genuine issues of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Opara v. Mass. Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). "Summary judgment, when appropriate, may be rendered against the moving party." Mass. R. Civ. P. 56(c).

On the record before me, I conclude that Sedwell has met its burden of demonstrating the absence of any triable issues. I have previously determined in my March 24, 2015 Summary Judgment Decision that Novak Trustee is estopped from asserting against the prior grantee in the 2007 Deed – Novak individually – the Novak Family Trust's claim of title to the Property. See Dalessio v. Baggia, 57 Mass. App. Ct. 468 , 469-470 (2003) (citing Zayka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992)). [Note 3] Consequently, insofar as Novak Trustee is estopped from denying the validity of the 2007 conveyance of the Property to Novak individually, once a judgment to that effect is issued by this court nunc pro tunc, Novak's personal creditors may attach the Property to satisfy Novak's personal debts. See G.L. c. 223 § 42, et seq. This, of course, includes Sedwell, which already obtained and recorded its Writ of Attachment in 2009 and its Writ of Execution in 2010, during the period in which Novak will now be deemed to have held title to the Property. Consequently, Sedwell's Writs with respect to the personal debt of Novak are enforceable against the Property under any means lawfully available to Sedwell. [Note 4] Accordingly, summary judgment shall enter for Sedwell on the claims asserted by the Novak Family Trust.

Finally, the priority of Sedwell's lien vis-à-vis the BNC Mortgage now held by Wells Fargo is not in dispute. The undisputed facts show that the BNC Mortgage was recorded on June 25, 2007, and that Sedwell's Writ of Attachment and Writ of Execution against the Property were recorded on June 23, 2009 and November 1, 2010, respectively. Thus, the BNC Mortgage, being first recorded in time, has priority over Sedwell's Writs.

In light of the court's rulings in this Decision and its March 24, 2015 Summary Judgment Decision, it appears that the Novak Family Trust will be unable to establish its claims concerning the invalidity or unenforceability of the liens recorded against the Property by the remaining Defendants/Interested Parties, McClaren Heating & Air Conditioning, Inc. and the Department of Justice, U.S. Attorney's Office for the District of Massachusetts, despite their non-appearance and default. See Christakis v. D'Arc, 471 Mass. 365 , 372 (2015) ("The entry of default means that the ‘well-pleaded facts' of the complaint are accepted as true. It does not mean that the party in default is deemed to have admitted the plaintiff's conclusions of law…. If the factual allegations, accepted as true, would not permit a finding of liability, then a defaulting defendant is entitled to dismissal of the complaint despite its default." (internal citations omitted)). Accordingly, the parties shall have fourteen days from the date of this Decision to show cause why the claims of the Novak Family Trust against McClaren Heating & Air Conditioning, Inc. and the Department of Justice, U.S. Attorney's Office for the District of Massachusetts should not be dismissed for failure to state a claim. Failure to show good cause shall result in dismissal of the claims against the defaulted Defendants/Interested Parties.

The court will defer the entry of final judgment in these consolidated cases until such time as the court makes any further findings, rulings, or disposition on the remaining claims.