KATHLEEN MCMATH v. JAMES SHEA

On December 14, 2019, plaintiff Kathleen M. McMath filed a Verified Complaint to Remove Cloud from Title against defendant James W. Shea. Ms. McMath's Verified Complaint contained three counts, all of which centered on a $40,000.00 loan Mr. Shea made to McMath in 2006. McMath secured her obligation to repay the loan by giving Shea a mortgage (the "Mortgage") on Unit 68B of a condominium located at 68 School Street, Salem, Massachusetts.

On January 14, 2019, Mr. Shea answered the Verified Complaint and counterclaimed against Ms. McMath. The counterclaim asserted that an affidavit (the "Affidavit") that McMath recorded at the Essex County Southern District Registry of Deeds (the "Registry") pursuant to M.G.L. c. 183, §5B contained incorrect statements that allegedly "slandered" the Mortgage.

On June 28, 2019, the Court gave Ms. McMath leave to amend her complaint. Her First Amended Complaint contained three counts. In Count I, McMath asked for a declaratory judgment that the Mortgage had expired in September 2013 pursuant to the Obsolete Mortgage Statute, M.G.L. c. 260, §33. In Count II, McMath sought a declaration that Mr. Shea could not use the Mortgage to collect amounts he charged in the first year of his loan in excess of the Commonwealth's criminal usury statute, M.G.L. c. 271, §49. In Count III, McMath sought a declaration that Shea could not use the Mortgage to collect late fees from McMath in excess of the amounts allowed under M.G.L. c. 183, §59. Mr. Shea answered the First Amended Complaint on July 16, 2019 and renewed his counterclaim. He asked for (a) an order declaring the Mortgage not to be obsolete (the "Declaration"), (b) an order directing the Registry to reference the Declaration on the margins of the Mortgage and the Affidavit; and (c) an order expunging the Affidavit from the Registry.

The parties subsequently moved for summary judgment on their claims. For the reasons set forth in the Decision issued this same date, the Court (a) DENIES Ms. McMath's Motion for Summary Judgment and GRANTS Mr. Shea's Motion for Summary Judgment on Count I of McMath's First Amended Complaint to Remove Cloud from Title; (b) GRANTS Ms. McMath's Motion for Summary Judgment and DENIES Mr. Shea's Motion for Summary Judgment on Counts II and III of McMath's First Amended Complaint; and (c) GRANTS in part and DENIES in part Mr. Shea's Motion for Summary Judgment on his Counterclaim. The Court further:

1. ORDERS, ADJUDGES, and DECREES that the mortgage granted by Kathleen M. McMath to James W. Shea dated September 15, 2006 and recorded at the Southern Essex District Registry of Deeds on September 21, 2006 in Book 26101, Page 196 (the "Mortgage") is not one "in which the term or maturity date of the mortgage is stated" within the meaning of M.G.L. c. 260, §33, notwithstanding the Agreement for Revision of Terms of Note attached as Exhibit B to the Affidavit Under M.G.L. c. 183, §5B recorded at the Registry on August 17, 2018 in Book 36946, Page 515.

2. ORDERS, ADJUDGES, and DECREES that Mr. Shea and his successors in interest under the Mortgage may not use the Mortgage to collect late fees allegedly due under the Note dated September 15, 2006 from Ms. McMath to Mr. Shea, as amended (the "Note"), to the extent any such late fee exceeds the amount permitted under M.G.L. c. 183, §59.

3. ORDERS, ADJUDGES, and DECREES that Mr. Shea and his successors in interest under the Mortgage may not use the Mortgage to collect payments due for the first year of the Note that exceed $8,000.00.

Upon payment of all required fees, a certified or attested copy of this Judgment may be recorded at the Registry of Deeds and marginally referenced on all relevant documents.

SO ORDERED.