This case concerns the property at 29 Louis Street, Whitinsville, Massachusetts (property) that is owned by defendants Robert Menard, Jr. (Robert Jr.) and Cheryl Menard a/k/a Cheryl A. Menard (Cheryl) as joint tenants, with defendant Robert R. Menard, Sr. (Robert Sr.) (together, the Menards), holding a life estate. Plaintiff U.S. Bank National Association, not in its individual capacity, but solely as a trustee for the RMAC Trust, Series 2016-CTT (U.S. Bank) holds a mortgage on the property given by Robert Jr. and Cheryl. U.S. Bank brought its complaint for two reasons. First, it seeks to reform the deed to Robert Jr. and Cheryl and its mortgage to correct the description of the property. The Menards do not object to reformation of the deed and mortgage description. After amending its complaint to name all interested parties, U.S. Bank is currently in the process of providing notice to those parties by service and publication.
Second, U.S. Bank seeks either to reform its mortgage or obtain equitable subrogation of its mortgage to the mortgage that it refinanced, on the grounds that its mortgage does not name as mortgagor Robert Sr. in his capacity as a life tenant. The Menards challenge those claims. The reformation and equitable subrogation of the mortgage claims were tried to me. As set forth below, I find that, while the mortgage cannot be equitably subrogated, it should be reformed.
Procedural History
U.S. Bank filed its complaint on March 23, 2018, seeking reformation and equitable subrogation with respect to its mortgage and other documents affecting title to the property. The Menards filed Defendants' Answer to Complaint on April 27, 2018.
The case management conference was held on May 7, 2018. On September 7, 2018, the Court determined that U.S. Bank could, upon identifying the heirs of the property, file its Motion to Amend Complaint, letter of diligent search and Motion for Publication. On November 1, 2018, the Menards agreed to the amendment of the complaint so as to include additional heirs as parties. U.S. Bank filed its Motion to Amend Complaint and Motion for Publication on January 3, 2019, and its Plaintiff's Motion to Amendment Complaint, Memorandum of Law in Support of Motion to Amend Complaint, and Plaintiff's Motion for Order of Notice by Publication with Affidavits of Diligent Search on February 20, 2019.
The pre-trial conference was held on February 25, 2019. At the pre-trial conference, the Motion to Amend Complaint was allowed, the Amended Complaint was deemed filed, the Plaintiff's Motion for Order of Notice by Publication was allowed, and the Order of Notice for Publication was to be issued. At a status conference on March 28, 2019, the Parties declined to proceed as a summary bench trial under Land Court Rule 14, the publication was set to issue and the trial was scheduled.
The trial was held on April 11, 2019. Exhibits 1-30 were admitted. Testimony was heard from Robert Jr. and Cheryl. After both parties rested, U.S. National Bank reported that any further defendants would be added to the citation for publication.
On April 16, 2019, defendant Bernard A. Malone filed the Answer of Defendant Bernard A. Malone. On April 19, 2019, defendants Barbara J. Haaversen and Stace Lee Malone respectively filed the Answer of Defendant Barbara J. Haaversen, and the Answer of Defendant Stace Lee Malone. On May 29, 2019, U.S. Bank filed its Plaintiff's Post-Trial Brief, Plaintiff's Proposed Findings of Fact, and Plaintiff's Proposed Conclusions of Law. The Menards filed their Defendants' Request for Findings of Fact and Rulings of Law on May 31, 2019. The Court heard closing arguments on June 4, 2019, and the matter was then taken under advisement.
On July 12, 2019, U.S. Bank filed a status report stating that it had mailed the filings for returns of service as well as an Affidavit of Service with respect to the defendants it was able to serve by registered mail. On July 15, 2019, U.S. Bank filed a Supplementary Motion for Publication (adding defendants it was unable to serve by certified mail to the previously-approved motion); the Plaintiff's Supplemental Motion for Order of Notice by Publication; a Proposed Publication; Agreements for Judgment with eleven defendants (Mark A. St. Amand, Lucille Barber, Priscilla Korzeniowski, Ralph Nolet, Jr., Ronald Lesco, Alice Roy Thompson, Elizabeth Nolet Talabac, Leo Roy, Christine Nolet, Dineen Gosselin Olson, and Linda Oby Patch); and Plaintiff's Request for Entry of Default of Defendants Pursuant to Mass. R. Civ. P. 55(a). On the same day, ninety-two defendants [Note 1] were defaulted pursuant to Mass R. Civ. P. 55(a). At a case management conference on December 16, 2019, the defaults of Robert Jr., Cheryl, and Robert Sr. were lifted. Agreements for Judgment with defendants Barbara J. Haaverson, Bernard A. Malone, and Stace Lee Malone were filed on December 23, 2019.
This Decision follows.
Findings of Fact
Based on the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact. My findings of fact are limited to those relevant to the issue tried to me, namely, whether the subject mortgage should be reformed to include Robert Sr. as mortgagor or equitably subrogated.
1. U.S. Bank is a national banking association with an address of 60 Livingston Ave., St. Paul, MN 55107. Exh. 1.
2. Robert Jr. and Cheryl are married. They reside at the property with Robert Sr., Robert Jr.'s father. Exh. 1; Tr. 9, 27, 34.
3. The property is shown as Parcel 2 on a plan of land by John R. Andrews, Jr., titled "Land of James Menard, et ux. Northbridge, Mass." dated June 18, 1977, and recorded with the Worcester District Registry of Deeds (registry) at Plan Book 439, page 69 (Menard plan). The Menard plan shows the correct boundaries of the property. Exh. 1.
4. By deed recorded with the Registry on October 3, 1924 at Book 2349, Page 8, Albert Lesco and Louis Lescault conveyed title to the property to Adelord Nolet. Exhs. 1, 2.
5. Adelord Nolet conveyed the property to James F. Menard and Irene A. Menard by a deed recorded with the registry on September 9, 1947 at Book 3078, Page 474. Exhs. 1, 3.
6. James F. Menard and Irene A. Menard conveyed the property to Robert Sr. (while reserving life estates) by a deed recorded with the registry on October 27, 1995 at Book 17424, Page 234 ("Second Menard Deed"). Exhs. 1, 4.
7. James F. Menard passed away on March 28, 1998. Exh. 1.
8. Robert Sr. and Irene A. Menard conveyed the property to Robert Sr. as sole owner by deed recorded with the registry on August 25, 2004 at Book 34452, Page 301, thereby eliminating the life estates previously held by James F. and Irene A. Menard (Robert Sr. deed). Exhs. 1, 5.
9. By a deed dated August, 25, 2004, and recorded with the registry at Book 34452, Page 302, Robert Sr. conveyed the property to Robert Jr. and Cheryl as joint tenants (Robert Jr./Cheryl deed). Tr. 9, 34-35; Exhs. 1, 6.
10. The purchase price was $292,000.00. Robert Jr. and Cheryl did not make a down payment on the property. Instead, they financed the purchase price through a first mortgage given to Mortgage Electronic Registration Systems, Inc. (MERS) as Nominee for Lender, Fremont Investment & Loan (Fremont) in the original principal amount of $262,800.00 (MERS/Fremont mortgage) and a second mortgage given to Robert Sr. in the original principal amount of $29,200 (Robert Sr. mortgage). At least some of the funds from the MERS/Fremont mortgage were used to build an in-law apartment at the property for Robert Sr. Tr. 9-12, 35-36; Exhs. 7, 9.
11. The MERS/Fremont mortgage is dated August 25, 2004, and was recorded with the registry in Book 34452, Page 303. Exh. 7.
12. The Robert Sr. mortgage is dated August 25, 2004, and was recorded with the registry in Book 34452, Page 325. Exh. 9.
13. By an instrument titled "Quitclaim Deed of Life Estate," dated August 27, 2004, Robert Jr. and Cheryl granted Robert Sr. a life estate in the property (life estate deed). Although dated August 27, 2004, the life estate deed was not recorded with the registry until October 28, 2005, at Book 37665, Page 330. The grant of life estate to Robert Sr. was a condition of Robert Jr.'s and Cheryl's purchase of the property, i.e., Robert Sr. conveyed the property in exchange, in part, for the life estate. Robert Jr. did not understand that he was supposed to record the life estate deed until his father asked him about it. Thus, MERS and Fremont had no actual or record notice of the life estate deed at the time they took the MERS/Fremont mortgage. Tr. 13-14, 28- 29; Exhs. 1, 7, 13.
14. The MERS/Fremont mortgage was an interest-only adjustable rate mortgage, and the monthly payment almost immediately increased from $1,700 to $2,400 to $3,200. Therefore, a few months after they purchased the property, Robert Jr. and Cheryl refinanced the MERS/Fremont mortgage through a loan from Option One Mortgage Corporation (Option One). They gave a mortgage on the property to Option One in the original principal amount of $314,500 on February 22, 2005, that was recorded with the Registry in Book 35774, Page 361 (Option One mortgage), and paid off both the MERS/Fremont mortgage and the Robert Sr. mortgage. Because the life estate deed was not recorded until October 28, 2005, Option One had no record notice of the life estate deed at the time it took the Option One mortgage. Tr. 12-13, 36-37; Exhs. 11, 13.
15. The Robert Sr. mortgage was discharged by a Discharge of Mortgage dated February 16, 2005, and recorded with the registry in Book 35774, Page 360. The Robert Sr. mortgage was discharged before the date of the Option One mortgage. Robert Jr. testified that the funds from the Option One mortgage refinance were used to satisfy the Robert Sr. mortgage. It appears, however, that Robert Sr. never actually provided any funds to Robert Jr. and Cheryl; rather, his mortgage was intended to secure his accepting less than the full value of the property. It is likely that the discharge of the Robert Sr. mortgage was a condition Option One required before taking the Option One mortgage. Tr. 13; Exh. 10.
16. The MERS/Fremont Mortgage was discharged by a Release of Mortgage/Deed of Trust dated March 9, 2005, and recorded with the registry in Book 35912, Page 27. Exh. 8.
17. Robert Jr. and Cheryl granted a mortgage on the property to Equity One, Inc. in the original principal amount of $33,227.72 on May 25, 2006, that was recorded with the registry in Book 39070, Page 389 (2006 Equity One mortgage). Robert Sr. did not sign the 2006 Equity One Mortgage. Exh. 14.
18. Robert Jr., Cheryl, and Robert Sr. gave a mortgage on the property to Equity One, Inc. (Equity One) in the original principle amount of $378,204.33 dated April 20, 2007, and recorded with the Registry at Book 41040, Page 128 (2007 Equity One mortgage). The 2007 Equity One mortgage secured a promissory note in the same amount (2007 Equity One note). The 2007 Equity One mortgage was given to refinance the Option One mortgage and the 2006 Equity One mortgage at a lower interest rate, and those mortgages were paid off. Tr. 15-17, 37- 38; Exhs. 1, 16, 17.
19. Equity One required that Robert Sr. execute the 2007 Equity One mortgage, and he did so. He did not sign the 2007 Equity One note. Robert Jr. testified that he "trust[ed] the
brokers to tell us what had to be done, so they must have said it needed to be done." Tr. 16, 32- 33; Exhs. 1, 16, 17.
20. The Option One mortgage was discharged by a Mortgage Release, Satisfaction, and Discharge dated May 2, 2007, and recorded with the registry in Book 41103, Page 90. Exh. 12.
21. The 2006 Equity One mortgage was discharged by a Discharge of Mortgage dated June 20, 2007, and recorded with the registry in Book 41477, Page 139. Exh. 15.
22. By an Assignment of Mortgage dated February 28, 2008, and recorded with the registry on March 11, 2008, at Book 42535, Page 21, the 2007 Equity One Mortgage was assigned to American General Financial Services, Inc. (American General). Exhs. 1, 18.
23. In 2008, Robert Jr. and Cheryl refinanced the 2007 Equity One mortgage with lender First Horizon Home Loans (First Horizon), in order to obtain a lower interest rate. Neither their mortgage loan application nor their residential mortgage survey affidavit listed Robert Sr. as a borrower or disclose that he held a life estate on the property. Robert Jr. and Cheryl did not complete the application themselves; rather, they provided information to the mortgage broker with whom they were working, and the broker prepared the application. I credit Robert Jr.'s and Cheryl's testimony that they disclosed the existence of the life estate to the broker, but that the broker told them "that it wasn't an issue" and that they "didn't have to worry about it." Robert Jr. did not understand the significance of Robert Sr.'s life estate; in fact, in 2008 he "didn't know what the life estate meant." Tr. 17-26, 29-31, 38-39; Exhs. 22, 24.
24. Robert Jr. and Cheryl borrowed $390,775.00. The promissory note was signed by Robert Jr. and Cheryl, but not by Robert Sr. Robert Jr. and Cheryl gave a mortgage on the property in that amount to MERS, as nominee for First Horizon Home Loans, dated June 3, 2008, and recorded with the registry on June 9, 2008, at Book 42944, Page 23 (2008 MERS mortgage). The 2008 MERS mortgage was not executed by Robert Sr. Tr. 17, 39; Exhs. 1, 20, 21, 23.
25. It was Robert Jr.'s and Cheryl's intent that the 2008 MERS mortgage essentially replace the 2007 Equity One mortgage, and that the loan they were taking out be fully secured by everyone's interest in the property. I find that it was also First Horizon's intent to secure their loan to Robert Jr. and Cheryl with a mortgage that encumbered the entire property, as the 2007 Equity One mortgage did. As evidenced by the loan application and the HUD settlement statement, First Horizon was aware that it was refinancing the loan secured by the 2007 Equity One mortgage, and it is reasonable to infer that it expected the same security on the property given in the 2007 Equity One mortgage. Tr. 26, 39; Exhs. 22, 23.
26. Proceeds from the loan secured by the 2008 MERS mortgage were used to pay off, in full, the then-existing 2007 Equity One mortgage's outstanding balance of $379,383.38. Exhs. 1, 23.
27. American General discharged the 2007 Equity One mortgage by a Release of Mortgage dated June 20, 2008, and recorded with the registry at Book 42990, Book 267 (Equity One discharge). Exhs. 1, 19.
28. U.S. Bank is the current holder of the 2008 MERS mortgage by virtue of a chain of assignments recorded with the registry at Book 49372, Page 248; Book 52003, Page 254; Book 52716, Page 112; Book 54564, Page 323; and Book 56621, Page 43. Exhs. 1, 26, 27, 28, 29, 30.
29. Robert Jr. and Cheryl have not made a payment on the 2008 MERS mortgage since 2009. Robert Sr. has never contributed to or made any payments on the 2008 MERS mortgage or the 2007 Equity One mortgage. Robert Sr. does not contribute to any of the household expenses. Tr. 26-28, 40.
Discussion
The complaint, as amended, has four counts. Count I seeks to reform the Robert Sr. deed, the Robert Jr./Cheryl deed, the life estate deed, and the 2008 MERS mortgage to correct the description of the property in each of those instruments. The Menards agree to that reformation. At present, the U.S. Bank is undertaking notice to all of the interested parties. Count I was not tried to the court.
Counts II, III, and IV were the subject of this trial. Count II seeks reformation of the 2008 MERS mortgage to include Robert Sr. as mortgagor along with Robert Jr. and Cheryl. Count III seeks subrogation of Robert Sr.'s life estate to the 2008 MERS mortgage on the grounds of unjust enrichment. Count IV seeks equitable subrogation of the 2008 MERS mortgage to the 2007 Equity One mortgage. For the reasons set forth below, I find that, while subrogation of the 2008 MERS mortgage is not appropriate either on the grounds of equitable subrogation or unjust enrichment, the 2008 MERS mortgage should be reformed to include Robert Sr. as mortgagor.
Equitable subrogation. Courts "have broad power over mortgages." East Boston Sav. Bank v. Ogan, 428 Mass. 327 , 328 (1998). This equitable power includes the power to subrogate a mortgage to one that has been discharge by mistake; that is, to substitute the existing mortgage for the one that it discharged, placing that mortgage in the same priority as the discharged mortgage to the extent of the amount paid to discharge the mortgage. Id. at 329-330. Here, U.S. Bank seeks to subrogate the 2008 MERS mortgage to the 2007 Equity One mortgage in the amount applied to pay off that mortgage, $379,383.38. To apply equitable subrogation, I must find that (1) First Horizon, the original mortgagee of the 2008 MERS mortgage, made the payment to protect its own interest, (2) First Horizon did not act as a volunteer, (3) First Horizon was not primarily liable for the debt paid, (4) First Horizon paid off the entire encumbrance, and
(5) subrogation would not work any injustice to the rights of the junior lienholder. Id. at 330. I have no trouble finding that U.S. Bank has established prongs one through four. First Horizon refinanced the 2007 Equity One mortgage. In doing so, it paid off that mortgage to protect its own interest, it did not act as a volunteer because it was protecting its own interest, id. at 330 n.4, it was not liable for the debt, and it paid off the entire outstanding debt. The problem comes with prong five and the equitable roots of equitable subordination. Equitable subordination most commonly applies when there is an intervening mortgage or lien that prevents the new mortgage from being in the same priority position as the mortgage that it paid off. See id. at 328-329; Wells Fargo Bank, N.A. v. Comeau, 92 Mass. App. Ct. 462 , 467 (2017) (Comeau). That is not the situation here: there is no intervening mortgage that First Horizon overlooked in paying off the 2007 Equity One Mortgage. Rather, U.S. Bank seeks subordination so that Robert Sr.'s life estate, which was subject to the 2007 Equity One mortgage, becomes subject to the 2008 MERS mortgage.
The application of equitable subordination in this different context "is ultimately determined by principles of equity." Id. at 466. The situation here is remarkably similar to the situation in which Wells Fargo Bank sought subrogation in Comeau. In Comeau, the husband and wife owned their property as tenants by the entirety. Id. at 467. For the original mortgage, only the husband was obligated on the note, but both the husband and wife executed the mortgage. Id. at 463. The husband refinanced with Wells Fargo's predecessor, Washington Mutual Bank, F.A. (WaMu). Id. For the refinance, the husband was the only person on the note and the mortgage; the wife executed neither. Id. After the husband's death, when his interest in the property passed to his wife, Wells Fargo sought to subrogate the mortgage they obtained from WaMu to the position of the previous mortgage for which the wife was a mortgagor. Id. at 463-464.
The Appeals Court affirmed the Superior Court's refusal to subrogate the mortgage. The Appeals Court found that it would be unequitable to subrogate the mortgage because, among other reasons, (1) there was no evidence WaMu intended to hold a mortgage on the entire property but rather was taking the mortgage subject to encumbrances such as the wife's survivorship interest; (2) there was no intervening lien, which meant that notwithstanding that the wife's interest was not subject to its mortgage, Wells Fargo could enforce the note and levy on the property or enforce against the husband's estate; (3) the wife would be prejudiced by being exposed to the risk of foreclosure on a debt that only her deceased husband was obligated to pay; and (4) while the wife was enriched, she was not unjustly enriched - it was not her obligation that was terminated when WaMu paid off the previous loan, only her husband's. Id. at 467-468.
The Menards' situation is remarkably similar. Robert Sr.'s life estate is an encumbrance like the wife's survivorship interest in Comeau. Like the wife, Robert Sr. was not obligated on the note secured by the 2007 Equity One mortgage, but was only a mortgagor on the mortgage. Like WaMu, First Horizon gave a new loan to Robert Jr. and Cheryl, but not to Robert Sr. The one possible difference between Comeau and this case is that the Appeals Court in Comeau found that the Comeaus did not mislead WaMu in obtaining the new loan, id. at 468, while U.S. Bank argues that Robert Jr. and Cheryl misled First Horizon. However, I find that Robert Jr. and Cheryl disclosed the existence of Robert Sr.'s life estate to the mortgage broker, and reasonably relied on the broker's and First Horizon's (the broker's principal) properly taking the existence of the life estate into account in granting the loan and taking the 2008 MERS mortgage. Based on the holding in Comeau, there are no grounds here to equitably subrogate the 2008 MERS mortgage to the 2007 Equity One Mortgage.
Unjust enrichment. U.S. Bank also seeks to subrogate the 2008 MERS mortgage through a declaration that the life estate is subject to that mortgage on the grounds of unjust enrichment.
U.S. Bank relies on the SJC's decision in Home Owners' Loan Corp. v. Baker, 299 Mass. 158 (1937) (Baker). In Baker, the defendant Sarah Howard Baker owned the property at issue and gave two mortgages. Id. at 159. She then conveyed the property to Elizabeth Laycock and reserved a life estate for herself and another woman (who later passed away). Id. The new owner, Laycock, refinanced and paid off the two mortgages with the proceeds of her new loan. Id. The plaintiff mortgagee did not discover Baker's life estate until after taking the mortgage, and sought to establish its mortgage as superior to the life estate. Id. at 159-160. The SJC held that mortgagee "was not guilty of culpable and inexcusable negligence" in failing to discover the life estate. Id. at 161. Because the loan was used to pay off Baker's previous mortgages, equity required that Baker's life estate be subject to the mortgage to the extent of the amount paid off. Id. at 161-163.
The Baker decision is not applicable here for the same reason that Comeau does apply: unlike the life tenant Baker, Robert Sr. was never obligated on the note secured by the 2007 Equity One mortgage. Thus, like Ms. Comeau, he was not unjustly enriched by the 2008 MERS mortgage's refinance of the 2007 Equity One mortgage. See Comeau¸ 92 Mass. App. Ct. at 468.
Reformation. This leaves U.S. Bank's claim for reformation. U.S. Bank argues that the 2008 MERS mortgage should be reformed to include Robert Sr. as mortgagor because First Horizon and the Menards made a mutual mistake in not having Robert Sr. named as mortgagor in the same way that the 2007 Equity One mortgage that was being refinanced named him. "[A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality." Beaton v. Land Court, 367 Mass. 385 , 392 (1975); see G.L. c. 185, §1(k) ("[The Land Court] shall also have original jurisdiction . . . of . . . [a]ll cases and matters cognizable under the general principles of equity jurisprudence"). Reformation based on mistake will be allowed if there is "full, clear, and decisive proof that the instrument failed to express the intent which both parties had in making it." New York, New Haven, & Hartford R.R. Co. v. Plimpton, 238 Mass. 337 , 340 (1921); Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747 , 756 (1993).
I find that U.S. Bank has established by full, clear, and decisive proof that First Horizon and the Menards made a mutual mistake in not including Robert Sr. as a mortgagor of the 2008 MERS mortgage. Robert Jr. and Cheryl obtained the 2007 Equity One mortgage on the terms that, while they were the only ones obligated on the note, Robert Sr. and his life estate would be encumbered by the mortgage. Robert Jr. and Cheryl expected and intended to refinance on the same terms. They disclosed the life estate to the mortgage broker. They did not express any intent to exclude the Robert Sr. and the life estate from the 2008 MERS mortgage. Rather, they freely admitted that they expected to refinance with First Horizon on the same terms of the 2007 Equity One mortgage and note, at a lower interest rate, and that the 2008 MERS mortgage would replace the 2007 Equity One mortgage on the same terms. On its part, First Horizon expected and intended to replace the 2007 Equity One mortgage with its own mortgage on the same terms; that is, First Horizon intended to take a mortgage that fully encumbered the property, including the life estate. It is a reasonable inference that a refinancing lender intends to encumber the property to the same extent that the refinanced mortgage encumbered the property, unless there is evidence that the borrowers or lender had some different intent. Here, there is no such evidence: Robert Jr. and Cheryl intended to give the same kind of mortgage that they gave in the 2007 Equity One mortgage, and none of the testimony or loan paperwork show a different intent. Compare JPMorgan Chase Bank, N.A. v. Niakaros, 24 LCR 757 , 760-761 (2016) (reformation denied where evidence showed the borrower did not intend to encumber property, expressed such intent to lender, and lender agreed).
In short, both Robert Jr. and Cheryl on the one hand, and First Horizon on the other, intended to encumber Robert Sr.'s life estate in the 2008 MERS mortgage. The failure to do so was a mutual mistake on their part. The 2008 MERS mortgage shall be reformed to reflect the intent of the parties. Robert Sr. as life tenant shall be named as an additional mortgagor.
Discussion
For the foregoing reasons, judgment shall enter on count II of the complaint, ordering the 2008 MERS mortgage reformed to add as co-mortgagor Robert Sr. in his capacity as life tenant. Counts III and IV shall be dismissed with prejudice. Final judgment shall await completion of notice to the other defendants on count I of the complaint, and the entry of either agreements for judgment or default judgments with respect to that count.
Judgment accordingly.
U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CTT v. ROBERT MENARD, JR., CHERYL MENARD a/k/a CHERYL A. MENDARD, ROBERT R. MENDARD, SR., et al.