Posts tagged "1106514"

Apfel, et al. v. Miller (Lawyers Weekly No. 11-065-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       13‑P‑1508                                       Appeals Court   DANIEL J. APFEL & another,[1] trustees,[2]  vs.  WAYNE A. MILLER.     No. 13‑P‑1508. Suffolk.     April 10, 2014.  ‑  June 13, 2014. Present:  Grainger, Rubin, & Hanlon, JJ.   Real Property, Registered land, Restrictions.  Mistake.  Practice, Civil, Summary judgment.       Civil action commenced in the Land Court Department on June 4, 2009.   The case was heard by Karyn F. Scheier, J., on motions for summary judgment.     David J. Apfel (Maren Klawiter with him) for the plaintiffs. Joel Z. Eigerman for the defendant.     GRAINGER, J.  The plaintiffs, trustees of the Penny Apfel-Rechtschaffen Nominee Trust (trust), brought a declaratory judgment action in the Land Court seeking the application of certain restrictive covenants to a parcel of registered land owned by the defendant Wayne A. Miller.[3]  The judge denied the plaintiffs’ motion for partial summary judgment, allowed the defendant’s motion for summary judgment, and entered a declaratory judgment resolving all of the issues in favor of the defendant.  See Boston v. Massachusetts Bay Transp. Authy., 373 Mass. 819, 829 (1977). The plaintiffs filed a timely appeal. 1.  Background.  The facts are undisputed.  The parties are abutting landowners.  The trust holds title to registered land   designated as lot 1 of the Boldwater residential subdivision in Edgartown.  Miller owns lot 7 in the subdivision. a.  The parties’ chains of title.  The trust acquired title to lot 1 as the high bidder at a foreclosure sale conducted by Plymouth Savings Bank (bank).  The owner and mortgagor at the time of sale was Thomas C. Wallace, the president of Boldwater, Inc., an entity which had originally held title to the land now comprising the subdivision.  Wallace took title to lot 1 when the subdivision was created.  Thereafter he also acquired title to what is now denominated lot 7, land that was originally a portion of lot 2 at the time of the creation of the subdivision. To finance these real estate acquisitions, Wallace borrowed money, not only from the bank, but also from the defendant Miller.  As collateral Wallace granted Miller a second mortgage on lot 1, subordinate to the bank.  Miller also received a third mortgage on lot 7, subordinate to the bank (second position) and subordinate to Clifford Meehan (first position). The proceeds derived from the plaintiffs’ purchase of lot 1 were sufficient […]

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Posted by Massachusetts Legal Resources - June 14, 2014 at 2:28 am

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