JAMES GRAHAM, WALTER NEMES, CONSTANCE MARINI and BRUCE CONE, as they are TRUSTEES OF THE LONGBROOK ESTATES CONDOMINIUM TRUST vs. GFI LONGBROOK, LLC, JOSEPH A. PACELLA, RALPH DEPALMA, WEBSTER BANK NATIONAL ASSOCIATION, TOWN OF AGAWAM, CHAMPAGNE DRYWALL, INC., COMPETITIVE KITCHEN DESIGNS, INC., CONTRACTORS HOME APPLIANCES, INC., EGAN, FLANAGAN AND COHEN, P.C., NATIONAL LUMBER COMPANY, KAYCAN, LTD., SHAWN P. ALLYN, DAUPHINAIS AND SON, INC., HYDROPRO IRRIGATION, INC., G&S PAINTING AND CONTRACTING, LLC, and 84 LUMBER CO., L.P.

Plaintiffs, Trustees of the Longbrook Estates Condominium Trust, filed their unverified Complaint on June 7, 2011, pursuant to G. L. c. 231A, seeking 1) declaratory judgment (against all Defendants) relative to the parties' respective interests in property which is part of phased land in a condominium, 2) quiet title (against Webster Bank National Association ("Webster") and Joseph A. Pacella and Ralph DePalma (together, "Pacella/DePalma")), and 3) equitable relief (against Webster and Pacella/DePalma). [Note 1] Defendants Egan, Flanagan and Cohen, P.C. ("P.C.") and Pacella/DePalma filed their Answer on June 28, 2011. Defendant Town of Agawam (the "Town") filed its Answer on June 30, 2011. Defendant National Lumber Company ("National Lumber") filed its Answers and Responses on July 12, 2011. Defendant Kaycan, Ltd. filed its Answer on July 15, 2011. Defendant Shawn P. Allyn ("Allyn") filed his Answers and Responses on July 19, 2011. Defendant Champagne Drywall, Inc. filed its Answer and Affirmative Defenses on July 21, 2011. Defendant Dauphinais and Son, Inc. filed its Answer on July 28, 2011. A case management conference was held on August 10, 2011. On August 12, 2011, Defendant Webster filed its case management statement. On September 6, 2011, Defendant Competitive Kitchen Designs, Inc. was defaulted. On November 16, 2011, Defendants GFI, Contractors Home Appliances, Inc., Hydro-Pro Irrigation, Inc., G&S Painting and Contracting, LLC, 84 Lumber Co., L.P. and Allyn were defaulted. A telephone conference call was held on April 6, 2012, at which time Default against Allyn was vacated; P.C., Dauphinais and Son, Inc., Champagne Drywall, Inc., and Kaycan LTD were dismissed from the case; and this court DENIED a Request for Default against National Lumber. [Note 2]

On June 15, 2012, Plaintiffs filed their Motion for Partial Summary Judgment (Counts II, III, V, VI and IX) against Defendants Webster, Pacella/DePalma, National Lumber and Allyn, together with supporting memorandum, Statement of Material Facts, Affidavit of Katherine Brady, Esq., and Appendix. [Note 3] On July 18, 2012, Webster filed its Opposition to Summary Judgment, together with supporting memorandum, Affidavit of Kathleen E. Connolly, Esq., and Appendix. On August 10, 2012, Allyn filed his Opposition to Summary Judgment, together with supporting memorandum. On August 13, 2012, Plaintiffs filed their Reply. On August 17, 2012, Plaintiffs filed their Motion to Strike Portions of Allyn's Opposition. On August 21, 2012, Allyn filed his Opposition to Motion to Strike. A hearing on all motions was held on August 27, 2012, and the matter was taken under advisement. [Note 4] A telephone conference call was held on February 4, 2013, between this court, counsel for Webster, counsel for Plaintiffs, and Allyn, at which time this court requested that the parties submit additional documentation from the Hampden County Registry of Deeds (the "Registry"). An additional telephone conference call was held on February 15, 2013, between the same parties, and this court requested that the parties submit further supplementary documentation from the Registry.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. The Longbrook Estates Condominium (formerly known as Suffield Commons Condominium) (the "Condominium") is a phased residential condominium located in Agawam, Massachusetts, created by a Master Deed (the "Master Deed") recorded with the Registry on April 15, 1988, at Book 6808, Page 168.

2. Plaintiffs are Trustees of the Longbrook Estates Condominium Trust (the "Trust"). The Trust, which is the governing body of the organization of unit owners of the Condominium, was initially established as the Suffield Commons Condominium Trust, under a Declaration of Trust recorded with the Registry on April 15, 1988, at Book 6808, Page 228.

3. Andover Development Residential Trust ("Andover") was the original declarant under the Master Deed. Pursuant to the Declaration of Trust and the Master Deed, Andover transferred 4.56 acres of land to the Condominium (the "Original Land"), more adequately described in Schedule A to the Master Deed and shown on a plan entitled "Survey Map Suffield Commons Condominium" dated April 11, 1988, prepared by Igor Vechesloff (the "1988 Plan"), and recorded with the Registry at Book of Plans 255, Page 120. Schedule B to the Master Deed described two additional parcels of land (the "Additional Land"), Parcel A, containing approximately 24.41 acres ("Parcel A"), and Parcel B, containing approximately 11.75 acres ("Parcel B"), as shown on the 1988 Plan. [Note 5]

4. Sections 20.6 and 20.7 of the Master Deed provided for the phased development of the Condominium. Pursuant to Section 20.6(a) of the Master Deed, Andover reserved the right to submit any portion of the Additional Land to condominium status as part of the Condominium (the "Original Phasing Rights").

5. Between 1988 and 1991, Andover submitted a portion of the Additional Land to the Condominium. [Note 6] By deed dated March 14, 1991, and recorded with the Registry at Book 7655, Page 526, Andover conveyed all of the Additional Land that it had not yet submitted to the Condominium to Princess Realty, Inc. [Note 7] ("Princess"), GFI's predecessor in interest. Through various Amendments to the Master Deed between 1991 and 1996, Princess submitted several additional portions of Parcel A to condominium status as part of the Condominium. The Original Phasing Rights expired on December 31, 2002.

6. On March 10, 2004, Princess and the Trust executed a Settlement Agreement and Mutual Release (the "Settlement Agreement"), effectively reviving the Original Phasing Rights relative to those portions of the Additional Land that had not yet been submitted to the Condominium (the "Undeclared Land"). The Undeclared Land consisted of (1) two separately described portions of Parcel A (a portion of Parcel A, consisting of 4.34 Acres, and Parcel A-1 consisting of 2.96 Acres ("Parcel A-1")) and (2) Parcel B, consisting of 11.75 Acres. [Note 8] On June 30, 2004, the Trust executed an Instrument of Revival and Grant (the "Instrument of Revival"), which extended the Original Phasing Rights to Princess and its successors and assigns until July 26, 2011 (the "Revived Phasing Rights"). The Instrument of Revival and the Settlement Agreement were recorded together at the Registry at Book 14362, Page 1 et seq. [Note 9]

7. The Instrument of Revival states, inter alia:

8. The Settlement Agreement states, inter alia:

9. By deed dated, July 22, 2004, and recorded with the Registry at Book 14354, Page 481, Princess conveyed the Undeclared Land and the Revived Phasing Rights to GFI (the "GFI Deed").

10. By Phasing Amendment to the Master Deed, dated August 26, 2005 ("Phasing Amendment 13"), and recorded with the Registry at Book 15279, Page 526, GFI submitted Buildings 18 and 23 and 1.53 acres of Parcel A to the Condominium.

11. By Phasing Amendment to the Master Deed, dated May 4, 2006 ("Phasing Amendment 14"), and recorded with the Registry at Book 15906, Page 517, GFI submitted Buildings 19 and 22 and 1.09 acres of Parcel A to the Condominium.

12. On October 4, 2006, GFI granted a first mortgage on Parcel A-1 and Parcel B (the "Mortgaged Land") to Webster (the "Webster Mortgage") to secure a note in the sum of $4,950,000.00. [Note 10] The Webster Mortgage was recorded with the Registry at Book 16281, Page 313. GFI used the proceeds from the Webster Mortgage to construct condominium units submitted to the Condominium via subsequent phasing amendments, as discussed, infra.

13. On October 26, 2006, GFI granted a second mortgage on the Mortgaged Land to Pacella/DePalma (the "Pacella/DePalma Mortgage") to secure a note in the sum of $1,411,950.00. The Pacella/DePalma Mortgage was recorded with the Registry at Book 16281, Page 342.

14. By Phasing Amendment to the Master Deed, dated November 30, 2006 ("Phasing Amendment 15"), and recorded with the Registry at Book 16367, Page 373, GFI submitted Building 20 and .96 acres of Parcel A to the Condominium. In relation to Phasing Amendment 15, both Webster and Pacella/DePalma executed and recorded a consent and subordination of mortgage (the "Phase 15 Subordinations"), recorded with the Registry at Book 16367, Page 395 and Page 398, respectively. The relevant language in the Phase 15 Subordinations states:

[s]uch exercise [of the mortgagee's rights pursuant to its mortgage] will be subject and subordinate to the provisions of the [Master Deed], as amended, including in and by the said Phasing Amendment, the Mortgagee hereby recognizing the establishment of the Condominium by said Master Deed, and the inclusion therein of the mortgaged premises as Phase 15 of the Condominium pursuant to the Phasing Amendment...

The right, title, interest and lien of [the mortgagee] shall henceforth affect and apply to the Units of Phase 15 only, together with the undivided interest appurtenant thereto in the common areas and facilities.

15. By Phasing Amendment to the Master Deed, dated March 22, 2007 ("Phasing Amendment 16"), and recorded with the Registry at Book 16630, Page 18, GFI submitted Building 21 and the remaining portions of Parcel A (.75 acres) to the Condominium. In relation to Phasing Amendment 16, both Webster and Pacella/DePalma executed a consent and subordination of mortgage (the "Phase 16 Subordinations"). The Phase 16 Subordinations were recorded together with Phasing Amendment 16.

16. By Phasing Amendment to the Master Deed, dated February 27, 2008 ("Phasing Amendment 17"), and recorded with the Registry at Book 17167, Page 121, GFI submitted Building 39 and portions of Parcel B (.78 acres) to the Condominium. In relation to Phasing Amendment 17, both Webster and Pacella/DePalma executed a consent and subordination of mortgage (the "Phase 17 Subordinations"). The Phase 17 Subordinations were recorded together with Phasing Amendment 17. [Note 11]

17. On June 26, 2008, Allyn was issued a Writ of Attachment by the Hampden County Superior Court in the amount of $30,000 (the "Allyn Lien") against "all the right, title, and interest [GFI] has in any and all real estate in [Hampden] County." As it is relevant to this case, the Allyn Lien attached to the Residual Undeclared Land, as described, infra. Said attachment was recorded with the Registry on June 27, 2008, at Book 17365, Page 550. [Note 12]

18. On July 30, 2008, a Writ of Attachment was issued by the Bristol Superior Court for the benefit of National Lumber in the amount of $82,000, commanding the Sheriffs of the several counties of the Commonwealth to attach the real estate of GFI (the "National Lumber Lien"). The Writ of Attachment was recorded with the Registry at Book 17420, Page 179. As it is relevant to this case, the National Lumber Lien attached to the Residual Undeclared Land, as described, infra. After Judgment had entered against GFI in a court case in Bristol County Superior Court between National Lumber and GFI, a Writ of Execution was issued by the Bristol County Superior Court on June 16, 2009, in the sum of $96,606.23. [Note 13] This Writ of Attachment, commanding the Sheriffs of the several counties of the Commonwealth to cause National Lumber to be paid out of the "goods, chattels, or land" of GFI, was recorded with the Registry at Book 18272, Page 8.

19. Plaintiffs filed their Complaint on June 7, 2011. By Phasing Amendment to the Master Deed, dated June 30, 2011 ("Phasing Amendment 18"), and recorded with the Registry on July 18, 2011 at Book 18844, Page 541, GFI submitted the remaining Undeclared Land that it had not previously submitted to condominium status (the "Residual Undeclared Land"). [Note 14] As such, GFI submitted the Residual Undeclared Land to condominium status as part of the Condominium before the Revived Phasing Rights expired on July 22, 2011. Webster and Pacella/DePalma did not execute a subordination agreement relating to Phasing Amendment 18. Allyn and National Lumber have never executed a document subordinating their respective liens to any instrument.

****************

I. Motion to Strike

Plaintiffs filed their Motion to Strike portions of Allyn's Opposition to Partial Summary Judgment, arguing that Allyn failed to respond to Plaintiffs' Statement of Material Facts, Allyn raised additional facts without submitting an Additional Statement of Material Facts, and that the documents submitted in Allyn's appendix are not relevant, inappropriately indexed, and not authenticated. Allyn argues he complied with Land Court Rule 4 and his Opposition to Partial Summary Judgment should not be stricken.

Allyn did not include a response to Plaintiffs' Statement of Material Facts, and as such he is deemed to have admitted the facts. See Land Court Rule 4. Plaintiffs are correct that the appendix to Allyn's Opposition is not properly authenticated. The Appendix includes a Purchase and Sales Agreement between GFI and Allyn relevant to Unit 305 of the Condominium, a copy of a Treasurer(s check in the amount of $12,000, a floor plan of Unit 305, a letter from the Inspector of Buildings for the Town of Agawam, and two addendums to the Purchase and Sale Agreement. These documents, however, are not relevant to the dispute regarding the validity of the Allyn Lien. The Writ of Attachment relating to the Allyn Lien was submitted by Plaintiffs as part of the Summary Judgment record. Allyn's Opposition is legal argument relating to the status of the Allyn Lien, and as such should not be stricken.

It is in the discretion of this court to strike any offending portions of an opposition to the extent it does not comply with Mass. R. Civ. P. 56 and Land Court Rule 4. Accordingly, this court will strike Allyn's Appendix A, but the Motion to Strike is otherwise DENIED.

II. Partial Summary Judgment

Plaintiffs argue that the Undeclared Land, now part of the Condominium, should be free and clear of all encumbrances, pursuant to the Settlement Agreement and the Instrument of Revival. [Note 15] Webster argues that the Land Court does not have jurisdiction to declare that the Mortgaged Land is free and clear of the Webster Mortgage. Rather than release its interest, Webster argues that the Settlement Agreement and the Instrument of Revival require Webster to only subordinate the Webster Mortgage to the Master Deed and the Trust with respect to the Mortgaged Land. Similarly, Allyn argues that the Allyn Lien must merely be subordinate to the Master Deed, rather than released as a security interest. I shall examine each issue in turn. [Note 16]

A. Jurisdiction

Webster argues the Land Court lacks jurisdiction to order land conveyed free of a mortgage unless the mortgage was void or invalid from its inception, or there has been full satisfaction of the loan. Pursuant to G. L. c. 231A, § 1, the Land Court is vested with statutory authority to issue declaratory judgments of "right, duty, status and other legal relations sought." The Land Court's jurisdiction is set out in G. L. c. 185, § 1. Chapter 185, § 1(k), gives jurisdiction for "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts." Chapter 185, § 1(f), gives jurisdiction for complaints to discharge mortgages, under Chapter 240, § 15.

Chapter 185, § 1(f) is not applicable here because Plaintiffs do not seek a discharge of the Webster Mortgage for full satisfaction of the loan. Rather, the Complaint seeks a declaration that pursuant to the Settlement Agreement and the Instrument of Revival, the Undeclared Land was free of encumbrances upon the expiration of the Revived Phasing Rights. This court's jurisdiction is not as limited as Webster suggests. Webster states that this case is distinguishable from other cases where the Land Court had jurisdiction, but Webster failed to cite a case where the action was dismissed based on lack of jurisdiction.

As a result of the foregoing I find the Land Court has jurisdiction to issue a declaratory judgment relative to the Webster Mortgage.

B. Interests of the Parties:

The Instrument of Revival and the Settlement Agreement constitute an amendment to the Master Deed. In its Response to Plaintiffs' Statement of Material Facts and in its Opposition, Webster admits that the Webster Mortgage is subject to the Instrument of Revival and the Settlement Agreement. The Allyn Lien, attaching all real estate in Hampden County owned by GFI, was recorded subsequent to the recording of the Instrument of Revival and the Settlement Agreement. As such, the Allyn Lien is limited to whatever rights GFI had in the Residual Undeclared Land. Based on the foregoing, I find that the interests of Webster and Allyn in the Residual Undeclared Land are subject to the Instrument of Revival and Settlement Agreement. [Note 17]

The resolution of this dispute depends upon a proper interpretation of the language in the Instrument of Revival and the Settlement Agreement and the rights, limitations, and obligations contained therein. Plaintiffs argue that the covenants in the Instrument of Revival and the Settlement Agreement required GFI to submit the Undeclared Land to the Condominium upon expiration of the Revived Phasing Rights, and Webster and Allyn do not dispute this. Plaintiffs next allege that Webster cannot take any greater rights than GFI had to convey because GFI granted the Webster Mortgage to Webster. Plaintiffs then state that GFI was obligated to submit the Undeclared Land to the Condominium upon expiration of the Revived Phasing Rights and Webster knew of this obligation. According to Plaintiffs, upon expiration of the Revived Phasing Rights, both GFI and Webster (as Webster's rights are limited to those rights GFI had to convey) lost all of their respective rights in the Undeclared Land. On the other hand, relying on Section 3(a) of the Settlement Agreement (see, infra) Webster and Allyn maintain that upon submission of any or all of the Undeclared Land to the Condominium, the Instrument of Revival and the Settlement Agreement merely require that Webster and Allyn subordinate their respective interests to the Master Deed as it is amended by the relevant phasing amendment. Webster and Allyn therefore argue that their respective interests in the Undeclared Land are simply subordinate to the Master Deed, which now includes all of the Undeclared Land pursuant to Phasing Amendment 18; however, said interests are not expunged.

Plaintiffs rest their argument on the black letter principle that a grantor cannot convey more rights than he has. See Marshall v. Francis, 332 Mass. 282 , 289 (1955); Hancock v. Carlton, 72 Mass. 39 , 62 (1856) ("covenants in the mortgage deed could only be coextensive with the estate granted in the deed"). Plaintiffs argue that at the time Webster and GFI entered into the Webster Mortgage, GFI was bound by the Instrument of Revival and the Settlement Agreement, which required GFI to submit all Undeclared Land to the Condominium no later than July 26, 2011. As such, Plaintiffs argue, Webster was on notice of said covenant, and all rights that Webster took via the Webster Mortgage were subject to the covenant requiring GFI to submit all Undeclared Land to the Condominium. Seemingly out of whole cloth, however, Plaintiffs state that the covenant to submit all Undeclared Land to the Condominium required submission of the same free and clear of all mortgages and liens. [Note 18] The Instrument of Revival and the Settlement Agreement do not state this, and this court does not subscribe to Plaintiffs' reading of the Instrument of Revival and the Settlement Agreement.

This court agrees that as Princess' successor, GFI was bound to submit all Undeclared Land to the Condominium no later than July 26, 2011, "whether or not units, buildings and/or improvements are constructed thereon." GFI had, pursuant to the Settlement Agreement, however, the right to transfer, sell, assign, convey, mortgage, etc. the Undeclared Land. Plaintiffs and the Trust therefore explicitly recognized Princess and its successors' right to mortgage the Undeclared Land. Unlike this explicit right granted to Princess, the Instrument of Revival and the Settlement Agreement do not explicitly require Princess to submit all Undeclared Land to condominium status free and clear of all mortgages and liens (subject to the discussion of Section 3(a) of the Settlement Agreement, infra). Through Phasing Amendment 18, GFI complied with Paragraph 5 of the Instrument of Revival, which merely required GFI to submit the Residual Undeclared Land to the Condominium before the expiration of the Revived Phasing Rights.

No doubt, Webster cannot take any rights that GFI did not have to give. Presumably relying on the Instrument of Revival and the Settlement Agreement, which granted Princess and its successors the right to mortgage the Undeclared Land, Webster funded a significant loan to GFI, the proceeds of which were used to construct units of the Condominium. GFI had the right to mortgage the Undeclared Land subject to the explicit covenant that said land was to be submitted to the Condominium no later than the expiration of the Revived Phasing Rights. Webster took no greater rights than GFI had to give.

Curiously, Plaintiffs' reply brief explicitly states that Plaintiffs do not rely on Section 3(a) of the Settlement Agreement and they maintain that section is irrelevant to this dispute. Section 3(a) states:

Prior to the submission of any portion of the Undeclared Land to condominium status in connection with its [Revived] Phasing Rights, Princess shall execute and/or obtain and record, a discharge and/or release, acceptable to [the Trust], of each and every mortgage or other instrument purportedly secured by, or otherwise encumbering, such portion of the Undeclared Land and shall record a subordination agreement from any then existing lien holder or mortgagees subordinating such lien holder or mortgagees' interest(s) to the Master Deed and the [Trust]. Princess acknowledges that failure to record all such discharges as required by this paragraph shall constitute immediate and irreparable harm to [the Trust] and Princess agrees that [the Trust] is entitled to an injunction from the Land Court or any Court of competent jurisdiction enjoining Princess, or anyone claiming through Princess, from recording any Master Deed Amendment pursuant to the Instrument of Revival.

Section 3(a) is the only section within the Instrument of Revival or the Settlement Agreement that refers explicitly to a release or discharge of mortgages and liens. Again, Plaintiffs state that the covenant to submit all Undeclared Land upon expiration of the Revived Phasing Rights implicitly requires submission of the same free and clear of all security interests. There is no explicit provision, other than arguably section 3(a), which contains any explicit requirement that the Undeclared Land be submitted to condominium status free and clear. Yet rather than requiring a discharge at the expiration of the Revived Phasing Rights, section 3(a) requires either a discharge or subordination or mortgage upon submission of any land to the Condominium, e.g. via a Phasing Amendment prior to the expiration of the Revived Phasing Rights. On its face, however, Section 3(a) appears ambiguous.

Contract interpretation is generally a question of law for the court. Lumber Mut. Ins. Co. v. Zoltek Corp., 419 Mass. 704 , 707 (1995). An unambiguous agreement must be enforced according to its terms. Schwanbeck v. Federal Mogul Corp., 412 Mass. 703 , 706 (1992). If words of a contract are plan and free from ambiguity, they must be construed in accordance with their usual and ordinary sense. Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20 , 28 (1981).

"To answer the ambiguity question, the court must first examine the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties." Bank v. Thermo Elemental, Inc., 451 Mass. 638 , 648 (2008). "Contract language is ambiguous 'where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.'" President & Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888 ,896 (2003), quoting Suffolk Construction Co., Inc. v. Lanco Scaffolding Co., Inc., 47 Mass. App. Ct. 726 , 729 (1999).

"Once a contractual ambiguity emerges, the meaning of the uncertain provision becomes a question of fact for the trier." Browning-Ferris Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300 , 307 (2011). If a court determines an ambiguity exists, then it is free to examine extrinsic evidence to elucidate the meaning of the agreement. See Kobayashi v. Orion Ventures, 42 Mass. App. Ct. 492 , 496 (1997).

Unlike Plaintiffs, Webster and Allyn find Section 3(a) to be relevant to this dispute. Webster and Allyn both argue that the Settlement Agreement and Instrument of Revival cannot be interpreted to require expungement of the Webster Mortgage or the Allyn Lien. Webster and Allyn argue that the submission of land to the Condominium does not, by operation of law, expunge any mortgage or lien interest securing any portion of the Undeclared Land. Rather, Webster and Allyn argue that Section 3(a) of the Settlement Agreement provides that upon submitting any portion of the Undeclared Land to condominium status, GFI, as successor to Princess, shall cause any lien holder to subordinate its interest to the Master Deed, as amended, and the Trust. Webster and Allyn also argue that expungement of their mortgage and lien, respectively, will result in unjust enrichment to Plaintiffs and a forfeiture on behalf of Webster and Allyn.

The first clause of the first sentence states:

Prior to the submission of any portion of the Undeclared Land to condominium status in connection with its [Revived] Phasing Rights, Princess shall execute and/or obtain and record, a discharge and/or release, acceptable to [the Trust], of each and every mortgage or other instrument purportedly secured by, or otherwise encumbering, such portion of the Undeclared Land...

This clause appears inconsistent with the second clause of the sentence which states:

and [Princess or its successors] shall record a subordination agreement from any then existing lien holder or mortgagees subordinating such lien holder or mortgagees' interest(s) to the Master Deed and the [Trust] (emphasis supplied).

The first clause requires Princess (or its successors) to obtain a release or discharge of any mortgage or instrument securing whatever land is being submitted to the Condominium. The second sentence requires Princess to record a subordination agreement, subordinating any mortgage or instrument to the Master Deed. A subordination agreement implies that the interest being subordinated will remain as an encumbrance, but that such interest will be subordinate or junior to another instrument. In this case, it appears that Section 3(a) applies to the subordination of the Webster Mortgage and Allyn Lien to the Master Deed (and all amendments including the Instrument of Revival and the Settlement Agreement). On the other hand, a release or a discharge of a mortgage or lien implies that the relevant security interest will be wiped out and will no longer secure, in this case, the Mortgaged Land. [Note 19]

A mortgagee or lien holder cannot both subordinate its mortgage interest and release its mortgage interest at the same time. If the mortgage or lien is subordinated, it still exists; however, a discharge or release wipes the mortgage or lien and strips the mortgagee or lien holder of any security, senior or subordinate. It makes no sense to obtain a release of a mortgage or lien and to subordinate the same to another instrument at the same time. Notwithstanding the word "and" between the first two clauses of section 3(a) of the Settlement Agreement, these dueling obligations cannot co-exist in this sense.

The evidence, however, gives rise to a reasonable interpretation of Section 3(a) of the Settlement Agreement. First, the release and/or subordinate terms of Section 3(a) apply "[p]rior to the submission of any portion of the Undeclared Land to condominium status in connection with the [Revived] Phasing Rights..." The Revived Phasing Rights took effect on July 26, 2004. Subsequent to that date, GFI submitted various portions of the Undeclared Land to the Condominium via Phasing Amendments 15-18. If Plaintiffs' argument was to hold water, then upon submission of portions of the Undeclared Land via Phasing Amendments 15-18, GFI would have had to cause a release of the Webster Mortgage and all other instruments encumbering any portion of the submitted land. Neither Webster nor Allyn released their interest in any land submitted to the Condominium via Phasing Amendments 15-18.

What did happen, however, is that Webster (and Pacella/DePalma) executed a subordination agreement relative to Phasing Amendment 15, Phasing Amendment 16, and Phasing Amendment 17. The purpose and effect of the several subordination agreements was to subordinate any mortgage interest held by Webster to the Master Deed as amended by the relevant Phasing Amendment. It appears that at each time land was submitted to the Condominium, the Trust did not oppose or object to the various subordination agreements in favor of a release or discharge of any mortgage interest held by Webster. The course of dealing subsequent to the execution of the Settlement Agreement therefore indicates that the parties understood Section 3(a) to require a subordination of mortgage to the amended Masted Deed upon submission of any portion of the Undeclared Land to the Condominium, not a release of the mortgage interests with respect to said land.

Furthermore, this court does not read the first clause of Section 3(a) out of the Settlement Agreement. This court notes it is often the case that a mortgagee, holding a mortgage securing land to be submitted to condominium status, will first execute a subordination of the mortgage to the condominium upon submission of mortgaged land to condominium status. Then the mortgagee will execute a release or partial discharge of its mortgage, not upon submission of land to condominium status, but upon the sale of individual units that have been submitted to condominium status. See e.g. Dudley Corp. v. Pizzi Farms, Inc., 4 LCR 75 , 77 (1996) ("as one would expect, units in phase 1 (and indeed in all four phases) were sold and that partial releases from the [mortgage] were granted in connection therewith"). This court has examined 79 releases or partial discharges of the Webster Mortgage (and the Pacella/DePalma Mortgage) relating to the sale of Unit 136 through Unit 177, and Unit 298 (together, the "Discharges"). [Note 20] The Discharges state, in connection with a conveyance of the individual units, Webster (or Pacella/DePalma) release to GFI all interest acquired under the Webster Mortgage (or the Pacella/DePalma Mortgage) pertaining to the particular unit of the Condominium. Based on this court's examination of the several subordinations and the Discharges, the true meaning of section 3(a) comes to light.

The most fair and plausible reading of Section 3(a) requires Princess (and GFI as its successor) to obtain a subordination of any mortgage interest or other instrument to the Master Deed (and amendments) upon submission of any portion of the Undeclared Land to the Condominium via a phasing amendment. Section 3(a) then also requires Princess (or GFI as its successor) to obtain a partial release or discharge of all mortgage interests upon the sale of individual units included in the Phasing Amendments. Based on the foregoing interpretation of section 3(a), GFI and Webster fully complied with said section: Webster executed a subordination agreement with respect to Phasing Amendment 15-17, and then Webster also executed a release and partial discharge of mortgage with respect to at least 73 individual units sold within the various phases of the Condominium. [Note 21]

Webster and Allyn also argue that expungement of the Webster Mortgage and Allyn Lien would unjustly enrich Plaintiffs and the Trust and will cause a forfeiture to Webster and Allyn. Webster and Allyn state that the Trust will unjustly obtain the benefit of the Undeclared Land and Building 39, submitted via Phasing Amendment 17 and constructed with proceeds from the Webster Mortgage. In other words, the Trust will receive the benefit of Webster and Allyn's financing while simultaneously stripping Webster of its security interests. Plaintiffs argue that Webster and Allyn were on notice of the Instrument of Revival and the Settlement Agreement, thus the stripping of the Webster Mortgage and Allyn Lien does not unjustly enrich the Trust. In this case, however, the rights of the parties are governed by valid contracts, e.g. the Webster Mortgage, the Instrument of Revival and the Settlement Agreement. Pursuant to the analysis, supra, the Instrument of Revival and the Settlement Agreement do not require expungement of the Webster Mortgage and Allyn Lien. "It is well settled that quantum meruit relief may not be granted where an express contract covering the matter exists." York v. Zurich Scudder Invs., Inc., 66 Mass. App. Ct. 610 , 620 (2006) , citing Zarum v. Brass Mill Materials Corp., 334 Mass. 81 , 85 (1956). Accordingly, Webster's and Allyn's quantum meruit argument is inapplicable. [Note 22] Webster and Allyn also attempt to argue that expungement would constitute a forfeiture and that the proper action is subordination to the Master Deed. This argument, however, essentially relies on the interpretation of Section 3(a), described supra; thus it is unnecessary to readdress this issue here.

Based on a reasonable reading of the Instrument of Revival and the Settlement Agreement, I find that the Webster Mortgage is valid and must be subordinated to the Master Deed and the Trust. Accordingly, Webster must subordinate its interests to Phasing Amendment 18. I find that the Allyn Lien is valid and Allyn must subordinate the Allyn Lien to the Master Deed, as amended by Phasing Amendment 18, and the Trust. As stated, supra, FN 15, even though Pacella/DePalma and National Lumber did not submit any argument, it appears that these parties are similarly situated to Webster and Allyn, respectively. As such, Pacella/DePalma must subordinate the Pacella/DePalma Mortgage to Phasing Amendment 18. National Lumber must subordinate the National Lumber Lien to the Master Deed, as amended by Phasing Amendment 18, and the Trust.

As a result of the foregoing, Plaintiffs' Motion for Partial Summary Judgment is DENIED.

The parties shall attend a status conference on Friday, March 15, 2013, at 10:00 AM to discuss the remaining issues in this case, i.e. Counts IV, VII, and VIII. [Note 23]

Judgment shall issue after all matters are resolved.