MISC 16-000013

April 6, 2018

Plymouth, ss.



Plaintiff Thomas Harrington (Plaintiff) initiated this action on January 7, 2016, seeking to compel Defendant Cenlar FSB to try title pursuant to G. L. c. 240, §§ 1–5. Plaintiff alleges Defendant's mortgage (Mortgage) on property located at 801 Federal Furnace Road in Plymouth (Property), became obsolete on or around January 9, 2014, under the provisions of G. L. c. 260, § 33 (Obsolete Mortgage Statute). Plaintiff also alleges, alternatively, the Mortgage became unenforceable pursuant to G. L. c. 106, § 3-118, after the six-year statute of limitations passed.

On January 11, 2016, this court denied Plaintiff's motion for preliminary injunctive relief. Defendant moved to dismiss on January 26, 2016. The court denied the motion to dismiss on July 15, 2016, ruling that, despite the issues raised by Defendant with respect to the res judicata effect of an earlier Superior Court judgment in a case involving the Mortgage brought by Plaintiff's wife and co-mortgagor, Plaintiff in this action had raised an issue respecting the obsolete mortgage statute which would not have been extant at the time of the Superior Court action. A hearing on Defendant's motion was held on November 17, 2017, at which all parties were heard.

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). The following relevant material facts are taken from the joint statement filed by the parties.

Plaintiff and his wife, Paula Harrington, granted the Mortgage to South Shore Savings Bank on June 6, 2006, securing a promissory note in the amount of $382,500. The Mortgage is recorded with the Plymouth County Registry of Deeds in Book 32836, at Page 329. [Note 1] Plaintiff and his wife are listed as borrowers on the Mortgage and makers on the promissory note (Note).

On September 20, 2007, the Mortgage was assigned to Defendant by assignment recorded in Book 35383, at Page 246. In early 2008, the loan went into default. A notice to cure was sent to the Harringtons on November 4, 2008, and an acceleration notice was sent on January 9, 2009. A confirmatory assignment of the Mortgage from South Shore Savings Bank to Defendant was recorded on November 9, 2012, in Book 42220, at Page 292, after which a new acceleration notice was sent to the Harringtons on October 19, 2013.

In July 2014, Paula, represented by counsel, filed a twelve-count complaint in Plymouth Superior Court, seeking to stop the foreclosure sale of the Property. On October 23, 2014, her request for injunctive relief was denied, and her subsequent emergency motion for reconsideration was denied on January 24, 2015. She filed a petition for an interlocutory appeal, which the Appeals Court denied. On August 19, 2015, the Superior Court allowed Defendant's motion for summary judgment, finding Defendant's "foreclosure of the property at issue was proper."

Plaintiff filed this action on January 7, 2016, represented by the same counsel who represented Paula Harrington in the Superior Court case, and seeking a temporary restraining order enjoining Defendant from conducting a foreclosure sale. Following a hearing on January 11, 2016, this court denied Plaintiff's request for injunctive relief and Defendant foreclosed on the Property on January 13, 2016.

Plaintiff's Complaint, although not broken down into separate counts, appears to assert the following: an action to compel Defendant to try title, and a claim that Defendant is barred by the Obsolete Mortgage Statute and the statute of limitations of G. L. c. 106, § 3-118, from foreclosing on the Mortgage.

Obsolete Mortgage Statute

Plaintiff argues the Mortgage is now obsolete pursuant to G. L. c. 260, § 33, which provides that a mortgage expires thirty-five years from the date of its recording if no maturity date is stated on the mortgage, and a mortgage with a stated maturity date expires five years from the stated date. The Mortgage at issued here contains a stated maturity date of July 1, 2036.

Plaintiff claims the first acceleration notice, dated January 9, 2009, advanced the maturity date of the Mortgage, and therefore the Mortgage became obsolete as of January 9, 2014. Plaintiff provides no support that an acceleration notice advances a stated maturity date in a mortgage, and nothing in the text of the Obsolete Mortgage Statute supports Plaintiff's assertion that the acceleration of the maturity date of the note affects the five-year limitations period for the related mortgage. Hayden v. HSBC Bank, N.A., 867 F.3d 222, 224 (2017). The Mortgage, therefore, is not obsolete, and will not expire until five years from its stated maturity date of July 1, 2036.

Statute of Limitations

Plaintiff also alleges Defendant is barred from foreclosing by the six-year statute of limitations provided for in G. L. c. 106, § 3-118, which states an action "to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date." As stated, however, this section applies to notes and other negotiable instruments, and not mortgages. See Duplessis v. Wells Fargo Bank, N.A., 91 Mass. App. Ct. 1125 (2017) (1:28 Decision).

A mortgage is an interest in real property that secures a creditor's right to repayment. The promissory note and the mortgage co-exist, and provide the creditor "a double remedy, one upon his deed, to recover the land, another upon the note, to recover a judgment and execution for the debt." Thayer v. Mann, 36 Mass. 535 , 537 (1837). The mortgage is "to be and remain in full force until the debt shall be paid." Id. Although a party may be barred by the statute of limitations from collecting on the note in a contract action, the mortgage remains enforceable, for the debt has not been paid. See id.; Munroe v. Stanley, 220 Mass. 438 , 443 (1915) ("[t]he statute of limitations does not extinguish the debt, it merely bars the remedy"). Accordingly, Defendant is not barred from foreclosing on the Mortgage by the statute of limitations set forth in G. L. c. 106, § 3-118.

Try Title

A try title action under G. L. c. 240, § 1, involves a two-step procedure. First, the petitioner must establish three jurisdictional elements: (1) that s/he holds "record title" to the property; (2) that s/he is a person "in possession"; and (3) the existence of an actual or possible "adverse claim" clouding the plaintiff's record title. Abate v. Freemont Inv. & Loan, 470 Mass. 821 , 827 (2015); Bevilacqua v. Rodriguez, 460 Mass. 762 , 767 (2011). If these requirements are satisfied, the second step requires the adverse claimant either to disclaim the relevant interest in the property or to bring an action to assert the claim in question.

This is a post-foreclosure try title action (the foreclosure took place following Plaintiff's filing of this action and the court's denial of his motions for a temporary restraining order and preliminary injunctive relief). Plaintiff failed to present any evidence to support a legally valid challenge to the foreclosure. The summary judgment record demonstrates at the time of the foreclosure, Defendant held the Mortgage by a recorded assignment from South Shore Savings Bank, and held the underlying note, and the foreclosure was performed in accordance with G. L. c. 244, § 14. See Eaton, 462 Mass. 569 , 583–585, 588–589 (2012). Plaintiff's equitable title was thus foreclosed, and the Mortgagors no longer hold valid title to the Property. As such, plaintiff does not have standing to challenge Defendant's superior title.

Accordingly, Defendant's motion for summary judgment is ALLOWED, and this action will be dismissed.

Judgment to enter accordingly.


[Note 1] All subsequent recording references are to this Registry.