DALE COHEN & DANIEL COHEN v. ROCKLAND TRUST COMPANY

Introduction

In this S-Case, [Note 1] petitioners Dale and Daniel Cohen request the court to strike a mortgage held by respondent Rockland Trust Company from the Certificate of Title for their registered land located at 5 Winship Way in Stoughton. The petitioners contend that the mortgage is no longer enforceable under the so-called "Obsolete Mortgages" statute, G.L. c. 260, § 33, under which a mortgage is unenforceable five years after its stated maturity date unless either an extension of the mortgage or an acknowledgment or affidavit that the mortgage is not satisfied is recorded prior to the expiration of that five year period, because more than five years have passed since the November 23, 2010 maturity date set forth in the mortgage. The respondent has moved to dismiss this action based on its assertion that the mortgage is not unenforceable under the Obsolete Mortgages statute because a modification agreement that was registered on the petitioners' Certificate of Title fewer than five years after November 23, 2010 extended the maturity date of the mortgage to December 25, 2042 and constitutes an acknowledgement by the petitioners that the mortgage has not been satisfied.

As further discussed below, the mortgage is not unenforceable under the Obsolete Mortgages statute because the registered modification agreement extended the mortgage and contains acknowledgments that the mortgage is not satisfied. The respondent's motion to dismiss is therefore ALLOWED, and the petitioners' claims are DISMISSED, with prejudice.

Facts

On November 23, 2005, the petitioners granted the respondent a mortgage on their registered land located at 5 Winship Way to secure a home equity line of credit. That mortgage was registered on the petitioners' Certificate Title on November 30, 2005 as document number 1087074. The mortgage provides that its maturity date is November 23, 2010. [Note 2] See Mortgage at p. 9. It also contemplates modifications, providing that "any change or amendment to [the] Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or amendment." See Mortgage at p. 8.

The parties subsequently entered into a modification agreement dated January 14/15, 2013 that was registered on the petitioners' Certificate of Title on February 5, 2013 as document number 1276115. [Note 3] Both of the petitioners and a representative of the respondent signed the modification agreement, which was duly notarized. [Note 4] See Modification Agreement at pp. 4 & 5. The modification agreement "amend[s] and supplement[s]" the November 23, 2005 mortgage at issue in this case. [Note 5] Modification Agreement at p. 1.

The modification agreement expressly extends the maturity date of the mortgage to December 25, 2042. [Note 6] See Modification Agreement at pp. 1 & 2. It also contains a number of provisions and representations by the petitioners that indicate that the mortgage is not satisfied. In the modification agreement, the petitioners "certify, represent to Lender and agree . . . [they are] experiencing a financial hardship, and as a result, [they are] in default under the Loan Documents." See Modification Agreement at p. 1. The modification agreement provides that the "principal balance of [their] Note is $125,364.31 (the ‘Modified Principal Balance')" and that that amount "does not include interest accruals that are past due or escrow account shortages." See Modification Agreement at p. 2. It also states that "[t]he past due interest in the amount of $9,083.55 will be deferred to the end of the loan." See Modification Agreement at p. 2. It further provides that the petitioners "agree to pay in full the Modified Principal Balance and any other amounts still owed under the Loan Documents, including those amounts deferred. . . ." See Modification Agreement at p. 2.

On October 26, 2016, the petitioners filed this S-Case in which they request the court to strike the November 23, 2005 mortgage from their Certificate of Title based on their contention that the mortgage is no longer enforceable under the Obsolete Mortgages statute. The respondent disagrees and has moved to dismiss the petition for failure to state a claim upon which relief can be granted pursuant to Rule 4 of the Rules of the Land Court and Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure.

Discussion

Under the Obsolete Mortgages statute, G.L. c. 260, § 33, "any mortgage containing a stated maturity date expires and is discharged five years after that maturity date unless, before the expiration of such period, an extension of the mortgage is recorded, or an acknowledgment or affidavit that the mortgage is not satisfied is recorded." [Note 7]

Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213 , 216 (2011). Such an extension, acknowledgment, or affidavit must satisfy the requirements of G.L. c. 260, § 34. See Harvard 45 Assocs., LLC v. Allied Properties & Mortgages, Inc., 80 Mass. App. Ct. 203 , 207–210 (2011). Under § 34, an extension acknowledgement must be executed by at least one of the property owners of record, describe the mortgage sufficiently to identify it, and state "that the property is subject to the mortgage or that the mortgage is not satisfied." G.L. c. 260, § 34. [Note 8]

More than five years have passed since the November 23, 2010 maturity date stated within the mortgage. The mortgage is not unenforceable under the Obsolete Mortgages statute, however, because the parties' January 14, 2013 modification agreement is both "an extension of the mortgage" and "an acknowledgment or affidavit that the mortgage is not satisfied" that satisfies the requirements of §§ 33 & 34.

The November 23, 2005 mortgage allows modifications so long as they are in writing and signed by those who will be bound by the modified terms. The January 14/15, 2013 modification agreement signed by the petitioners and a representative of the respondent satisfies those requirements. That modification agreement expressly modifies the November 23, 2005 mortgage, extends the maturity date to December 25, 2042, and contains several representations by the petitioners regarding their default and outstanding indebtedness under the mortgage. The modification agreement is thus an extension of the mortgage as well as an acknowledgement by the petitioners that the mortgage is not satisfied.

As required under § 33, the modification agreement was registered fewer than five years after the mortgage's initial maturity date of November 23, 2010. In addition, it satisfies the requirements of § 34 because all of the property owners of record signed it, it provides that the mortgage is not satisfied, and it describes the mortgage more than sufficiently by referencing the borrowers, the lender, the property address, the date of the mortgage, the date it was registered, and its registered document number.

Therefore, the mortgage is not unenforceable under the Obsolete Mortgages statute.

Conclusion

For the foregoing reasons, the petitioners' claims are DISMISSED in their entirety, with prejudice, and their request that the mortgage dated November 23, 2005 registered as Document Number 1087074 be stricken from their Certificate of Title is DENIED. Judgment shall issue accordingly.

SO ORDERED.