PETER A. POULOS, Individually and as Trustee of 48 Aunt Julia Ann's Road Trust v. FINANCIAL FREEDOM, a Subsidiary of OneWest Bank, FSB, f/k/a Financial Freedom Senior Lending Corporation; CRAIG T. ROCKWOOD, ESQ., as Trustee of the Snowden Family Trust; KATHERYNE L. SNOWDEN, Executrix of the Estate of Katheryne A. Snowden Poulos; and WILLIAM C. SNOWDEN, III.

Introduction

The plaintiff, Peter A. Poulos in his individual capacity and as Trustee of the 48 Aunt Julia Ann’s Road Trust (plaintiff / Poulos [Note 1]), initiated this action pursuant to G.L. c. 240 §§ 6-10. Financial Freedom, a subsidiary of OneWest Bank, FSB (Financial Freedom), Craig T. Rockwood, Esq. as Trustee of the Snowden Family Trust (Rockwood), Katheryne L. Snowden as executrix of the estate of Katheryne A. Snowden Poulos (Kathy), and William C. Snowden, III (William Snowden) [Note 2] (collectively, the “defendants”) have been named as defendants. Poulos asserts title to the property known as 48 Aunt Julia Ann’s Road, West Dennis, Massachusetts (locus/property). The defendant Financial Freedom has filed a Motion for Summary Judgment (Motion); the plaintiff has filed a Cross-Motion for Summary Judgment against the defendants. For the reasons which follow, Summary Judgment will enter against the plaintiff.

Background

On December 21, 1987, Peter A. Poulos and his former wife, Katheryne A. Snowden Poulos (Kay), as the owners in common of the property at 48 Aunt Julia Ann’s Road, conveyed a life estate in the locus by deed [Note 3] to Katheryne A. Snowden Poulos [Note 4] and the interest of Peter A. Poulos to the plaintiff Peter A. Poulos as Trustee of 48 Aunt Julia Ann’s Road Trust for the benefit of their daughter, Marianne Poulos. The resulting title was held by Kay and the plaintiff as tenants in common. [Note 5] The trust referenced in the deed, i.e. 48 Aunt Julia Ann’s Road Trust, had been created by Declaration of Trust dated November 3, 1987. [Note 6]

At a point in 1987, an Agreement was drafted (the 1987 Agreement) that listed Kay, the plaintiff, Marianne Poulos, Kathy, William Snowden, Georgia Poulos (plaintiff’s mother), and Socrates Mavodones (plaintiff’s brother-in-law) as intended signatories. [Note 7] The Agreement, by its own terms, was drafted in order to resolve ongoing litigation among the various parties. [Note 8] It was never recorded with the Registry of Deeds. [Note 9]

For purposes of this litigation, the pertinent portion of the Agreement is paragraph five. The plaintiff asserts that paragraph five restricted Kay’s ability to grant mortgages on the locus, and that it granted him additional rights in the property. [Note 10] That paragraph reads as follows:

To enable Katheryne Snowden Poulos to pay Peter Poulos Forty Thousand ($40,000.00) Dollars, Peter Poulos, Marianne Poulos and Katheryne Snowden Poulos will join in applications to lending institutions by virtue of which Katheryne Snowden Poulos may borrow up to Forty-nine Thousand ($49,000.00) Dollars to be secured by a mortgage on the entire property that is the subject of Exhibit A. The additional Nine Thousand ($9,000.00) Dollars about [sic] the Forty Thousand ($40,000.00) Dollars to be paid by Katheryne Snowden Poulos to Peter Poulos is to be used to improve said property and for no other purpose. In addition, Peter A. Poulos agrees to join with Katheryne S. Poulos in any request made by her within five years of this agreement to a lending institution to borrow an additional $40,000.00 secured by a mortgage on the subject property, which funds shall be used, however, only for the purpose of adding a bedroom to the first floor of the existing house thereon. All payments including balances due on sale on any loans secured by mortgages obtained under this paragraph shall be made by Katheryne Snowden Poulos. Katheryne Snowden Poulos shall provide Peter Poulos with documents on a quarterly basis showing the balances due on said loans. If any lending institution notifies Katheryne Snowden Poulos that there is a default on the payments due on said loans and she fails to cure said default within thirty days of the receipt of such notice, Peter Poulos may, by written notice to her, require that the property be sold on the open market. In the event of such a sale, all said loans unpaid at the time of sale shall be paid by Katheryne Snowden Poulos from her share of the proceeds, Katheryne Snowden Poulos shall be entitled to receive from the proceds [sic] the value of her remaining life estate, which, if the parties cannot agree on the fair market value thereof shall be submitted to final and binding arbitration at Boston, Massachusetts, under the rules of the American Arbitration Association, and the remaining proceeds shall be divided equally between Katheryne Snowden Poulos and Peter Poulos, who shall, however, hold his share as trustee under the terms of the trust instrument annexed hereto as Exhibit C. [Note 11] (emphasis supplied)

A photocopy [Note 12] of the Agreement has been submitted to the court. However, it is not only undated but it is unsigned by Kay, Marianne Poulos, Kathy, and William. The plaintiff acknowledges that he has never seen the original Agreement or a copy of same bearing the signatures of all parties. [Note 13]

On December 21, 1987, Kay, together with the plaintiff in his capacity as Trustee, granted a mortgage on the Locus to the Cape Cod Cooperative Bank in the principal sum of $49,000. [Note 14] On June 19, 1991, Kay and the said plaintiff granted a mortgage on the Locus to Robert Churbuck in the amount of $25,000. [Note 15]

On April 6, 1992, Kay and Marianne Poulos granted a mortgage encumbering the Locus to the SBA, Boston District Office, in the amount of $29,500. [Note 16] On February 8, 2002, Kay granted a reverse mortgage on the Locus to Financial Freedom Senior Funding Corporation in the amount of $687,800 (Financial Freedom Mortgage). [Note 17] Proceeds from the Financial Freedom Mortgage were used to pay off the prior outstanding mortgages [Note 18] in the amount of $71,188.28. [Note 19]

On April 29, 2004, Kay established the Snowden Family Nominee Trust. [Note 20] That same day, she conveyed her interest as tenant in common in the Locus to the Trust. She retained her interest as life tenant in the Locus. [Note 21] Kay utilized the Locus as her primary residence from 1987 until her passing [Note 22] in 2009. [Note 23] On July 15, 2009 Craig T. Rockwood became the successor trustee of the Snowden Family Nominee Trust. [Note 24]

The plaintiff subsequently filed the instant lawsuit seeking to quiet title to the Locus, to void all other interests therein and to obtain monetary damages as compensation “for the fraudulent mortgages placed on the property and for monies lent as a result of use of the fraudulently acquired mortgages,” for “the express violations of the Deceased [Kay] and the Defendants’ Agreement dated December 21, 1987,” and “for all unauthorized encumbrances of the Property and for all associated costs.” [Note 25]

In his Cross-Motion for Summary Judgment, the plaintiff requests that the court “clear the title of the subject property by having the interest of the Defendants Trusts voided by virtue of the fraud of Katheryne Snowden Poulos, Katheryne Lee Snowden and William Snowden. Plaintiffs’ [sic] also seek to have the Financial Freedom loan invalidated due to its knowledge and misconduct in making a loan it knew or should have known could not be made and by trying to obtain an interest through a mortgage that it knew it did not have any right to.” [Note 26]

For its part, Financial Freedom, in its Motion for Summary Judgment, requests that the court dismiss all claims against brought by the plaintiff in his individual capacity and as trustee. Financial Freedom also request a determination that the interest of the plaintiff in the Locus is subject to Financial Freedom’s mortgage to the extent of $35,594.14.

Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with 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 moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). Accordingly, when acting upon motions for summary judgment, this court is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

“The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis v. General Motors Corp., 410 Mass. at 713, quoting Celotex Corp. v. Catrett, 477 U.S. at 323-24. In cases where the “nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id.

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. As there are no genuine issues of material fact outstanding, this matter is ripe for summary judgment.

Discussion

The plaintiff has filed his Cross-Motion naming all the defendants. In so doing, he advances two essential arguments in support of his request for relief, i.e. that a) the Financial Freedom mortgage is invalid, and b) the 1987 Agreement restricted Kay’s ability to grant mortgages. The court will address each of these arguments in turn, below.

I. Quiet Title - The Financial Freedom Mortgage

Kay granted a reverse mortgage to Financial Freedom on February 8, 2002. [Note 27] Relying on the 1987 Agreement, the plaintiff argues that Kay was, as a matter of law precluded from granting such mortgage, that the mortgage encumbers the entire Locus and is, as a consequence, invalid. He requests, therefore, that the mortgage be voided together with the interests of all defendants in the Locus.

As previously observed, Kay and the plaintiff held title to the Locus as tenants in common under the deed of December 21, 1987. [Note 28] Kay also possessed a life estate under that same document. [Note 29] “When property is owned by tenants in common, each cotenant has an undivided fractional interest and the right to possession and use of the entire property.” Brady v. City Council of Gloucester, 59 Mass. App. Ct. 691 , 695 (2003). “The interest of a tenant in common is alienable, and may be transferred without the consent of the co-tenants by deed, lease, mortgage, will, or intestate succession.” Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77 , 88 fn. 21 (2008). “One tenant in common may bind his own interest in the common property by mortgage . . . and a mortgage of a deceased cotenant's interest in land . . . would not affect the title of the surviving cotenant.” Altobelli v. Montesi, 300 Mass. 396 , 398 (1938). Any such mortgage granted is invalid as against the interest of the cotenant. Curtis v. Inhabitants of Sheffield, 213 Mass. 239 , 244 (1913) (“It is familiar law that a conveyance whether in fee, in mortgage or by lease, by a tenant in common of his undivided interest in a specific part of the land held in common is invalid as against his cotenants without their consent.”)

Consequently, “[i]f there is a breach of condition of such a mortgage and it is foreclosed properly, the purchaser becomes a tenant in common with the other cotenant.” Altobelli v. Montesi, 300 Mass. 396 , 398 (1938). As a tenant in common, Kay had the right to grant a mortgage encumbering her interest in the property. Altobelli v. Montesi, 300 Mass. 396 , 398 (1938).

In his Memorandum, the plaintiff repeatedly refers to Kay’s interest as a “mere life estate.” [Note 30] However, even a life estate may be made subject to a mortgage. Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77 , 88 fn. 20 (2008) (“A life estate is alienable by the life tenant, and he can accordingly convey his estate to a third person, or mortgage it, or lease it for a term of years.”); see G.L. c. 184, § 9. Thus, Kay acted well within her legal authority, either as a tenant in common or as a life tenant, in granting a mortgage to Financial Freedom which encumbered her interest in the property.

The mortgage as granted does not, as a matter of law, encumber the interest of the plaintiff either in his individual capacity, or in his capacity as Trustee.

II. The 1987 Agreement

The plaintiff alleges that, with the exception of the two mortgages in which he participated as co-mortgagor, the 1987 Agreement, and specifically paragraph five thereof, prevented Kay from granting mortgages on the Locus. As an initial matter, the court notes that no party to this litigation has provided a copy of the 1987 Agreement that purports to have been signed by Kay. As a matter of law, a contact of this nature is not deemed valid against a party who has not signed it.

In this regard, G.L. c. 259 § 1, the so-called Statute of Frauds, provides in pertinent part, as follows:

No action shall be brought: . . .

Fourth, Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them; or,

Fifth, Upon an agreement that is not to be performed within one year from the making thereof;

Unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.

In the case at bar, the Agreement is plainly a contract concerning an interest in land. It is also an agreement that is not to be performed within one year from the making thereof. [Note 31] As such, the Agreement is unenforceable unless it is signed by Kay, the “party to be charged therewith.” As Kay’s signature does not appear on the Agreement, no further analysis is necessary. This court is satisfied that the Agreement had no effect upon Kay, as it has not been demonstrated that she was a signatory thereto.

However, even were the plaintiff or other party to submit a copy of the 1987 Agreement signed by Kay, this court is of the view that she was not restricted in her ability to encumber her own interest. The court concurs with the plaintiff insofar as he argues that Kay could not grant a mortgage encumbering the entire Locus, without first securing his concurrence. See Curtis v. Inhabitants of Sheffield, 213 Mass. 239 , 244 (1913). That is because, as a tenant in common, Kay could only encumber her own interest, which constituted a one-half undivided interest in the whole. However, nothing in the language of the 1987 Agreement, in paragraph five or otherwise, operates to preclude Kay from granting a mortgage(s) which encumbers her interest only.

The 1987 Agreement serves merely to obligate the plaintiff to “join in applications to lending institutions” with Kay, so that she might borrow up to $49,000.00 “to be secured by a mortgage on the entire property….” Forty thousand dollars of that amount “is to be paid by Katheryne Snowden Poulos to Peter Poulos… The additional …$9,000.00… is to be used to improve the property and for no other purpose.” Further, the plaintiff is obliged under the 1987 Agreement to join with Kay “in any request made by her within five years of this agreement to a lending institution to borrow an additional $40,000.00 secured by a mortgage on the subject property…” for purposes “of adding a bedroom to the first floor of the existing house thereon.”

It is clear then, given the explicit wording of the purported 1987 Agreement that the plaintiff intended to collateralize his own interest in the property for two limited purposes only: (1) to enable the payment to him of $40,000 from the proceeds of the contemplated mortgage loan and (2) to utilize up to an additional $49,000 of mortgage proceeds strictly for the improvement of the Locus. Of the $49,000, it was contemplated that $40,000 would be used for the addition of a bedroom on the first floor. Any such improvements would likely serve to enhance the value of his own interest in the property. The relevant provisions of the 1987 Agreement is, in the view of this court, clear and unambiguous. There is simply no language therein that purports to restrict Kay’s ability to grant additional mortgages encumbering her interest in the Locus.

Putting aside other issues concerning the 1987 Agreement aside, the court notes thatthe plaintiff has been unable to provide the original Agreement to the court. The Massachusetts Guide to Evidence § 1002 states “To prove the content of a writing or recording, but not a photograph, the original writing or recording is required, except as otherwise provided in these sections, or by common law or statute.” Further elaboration can be found in Commonwealth v. Ocasio, 434 Mass. 1 , 6 (2001) where the Court stated “The best evidence rule provides that, where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction. The rule is a doctrine of evidentiary preference principally aimed, not at securing a writing at all hazards and in every instance, but at securing the best obtainable evidence of its contents. Thus, where the original has been lost, destroyed, or is otherwise unavailable, its production may be excused and other evidence of its contents will be admissible, provided that certain findings are made.” Here, no such excuse has been advanced which would account for the absence of an original document. The court could decline to consider the 1987 Agreement on that basis alone. However, given the discussion and this court’s conclusions supra, the court need not address the absence of the document further.

III. Ancillary Matters

Plaintiff raises issues of fraud with regard to the Financial Freedom mortgage. Mass. R. Civ. P. 9(b) provides that when alleging fraud “the circumstances constituting fraud… shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.” In construing Rule 9 (b), the case of Equipment & Systems For Industry, Inc. v. Northmeadows Construction Co., Inc. 59 Mass. App. Ct. 931 (2003) is especially helpful. The Court took note of a count for “fraud and deceit.” It continued as follows:

Nothing here remotely complies with Mass. R. Civ. P. 9(b) . . . which requires that allegations of fraud and deceit must be pleaded with particularity . . . A claim for damages from deceit requires proof that (1) the defendant made a misrepresentation of fact; (2) it was made with the intention to induce another to act upon it; (3) it was made with the knowledge of its untruth; (4) it was intended that it be acted upon, and that it was in fact acted upon; and (5) damage directly resulted therefrom . . . At a minimum, a plaintiff alleging fraud must particularize the identity of the person(s) making the representation, the contents of the representation, and where and when it took place. In addition, the plaintiff should specify the materiality of the misrepresentation, its reliance thereon, and resulting harm. (internal citations omitted).

It is clear that the Rule 9 (b) requisites are, by and large, wholly lacking herein. Specifically, based upon the court’s discussion supra, no misrepresentation of fact has been made or demonstrated. The plaintiff has not specified his reliance on the alleged misrepresentation, nor has he indicated how he has been harmed by the alleged fraud. As the allegations of fraud have not been pleaded with the requisite particularity, the allegations of fraud cannot be sustained. The plaintiff also argues that the interests of Kay as tenant in common (now in trust) and the interests of Kathy and William as beneficiaries of the trust are void due to fraud. [Note 32] In light of the court’s discussion supra concluding there was no fraud as Kay had the right to encumber her interest in the Locus, [Note 33] this argument must fail.

IV. Standing

Although the parties do not raise the issue of standing, this court may do so sua sponte as the issue of standing pertains to subject matter jurisdiction. See Prudential-Bache Secs., Inc. v. Commissioner of Revenue, 412 Mass. 243 , 248 (1992). Plaintiff, in his individual capacity, possesses no interest in the Locus. [Note 34] Therefore, as an individual, he has no basis upon which to maintain a quiet title action. First Baptist Church of Sharon v. Harper, 191 Mass. 196 , 209 (1906) (“[A] bill to remove a cloud from the land affected cannot be maintained unless both actual possession and the legal title are united in the plaintiff.”). Nor does plaintiff have standing to bring a quiet title action in his capacity as trustee. To maintain such action, the plaintiff must be able to show that 1) he has record title, and 2) that his title has been injuriously affected. Blanchard v. Lowell, 177 Mass. 501 , First Baptist Church of Sharon v. Harper, 191 Mass. 196 . Here, plaintiff is unable to satisfy the second prong. Altobelli v. Montesi, 300 Mass. 396 , 398 (1938) (“The plaintiff's title is in no wise affected by the mortgage. His title in the common property remains unimpaired and he is not entitled to maintain the bill in the first case.”).

V. Financial Freedom’s Request to Encumber Plaintiff’s Interest

Financial Freedom requests that the court determine that plaintiff-as-trustee’s interest in the Locus is subject to the extent of $35,594.14, which is one half of the Financial Freedom mortgage proceeds which were used to pay off prior mortgage loans on the Locus which has been granted by the plaintiff-as-trustee or the beneficiary of the trust. However, no legal analysis has been presented to the court that would warrant the requested relief, and therefore the court declines to make said determination.

Conclusion

In light of the above discussion, this court concludes as follows:

(a) Kay possessed legal authority to grant a mortgage to Financial Freedom encumbering her own interest in the Locus.

(b) The purported 1987 Agreement did not restrict her ability to so encumber her interest in the Locus.

(c) There was no demonstrable fraud in the granting of the said mortgage which encumbered only Kay’s undivided one-half interest in the Locus.

(d) This court is unable to conclude that the plaintiff’s interest in the Locus is subject to Financial Freedom’s mortgage to the extent of $35,594.14.

(e) The plaintiff is without standing to maintain his quiet title action, either in his capacity as individual, or as trustee.

In view of the foregoing, it is hereby

ORDERED that the Motion for Summary Judgment of the defendant Financial Freedom [Note 35] is hereby ALLOWED in part and DENIED in part to the extent set forth herein. Thus, to the extent Financial Freedom seeks a determination that its Mortgage encumbers the plaintiff’s interest in the Locus, that request is hereby Denied. Its Motion is otherwise Allowed. It is further

ORDERED that the plaintiff’s Cross-Motion for Summary Judgment is hereby DENIED.

Judgment to issue accordingly.

SO ORDERED.