Posts tagged "Murphy"

James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-12325   JAMES B. NUTTER & COMPANY  vs.  ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]).       Suffolk.     October 2, 2017. – January 18, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Mortgage, Foreclosure.  Real Property, Mortgage.       Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively.   A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court.   The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court.     Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue.     GANTS, C.J.  In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes.  A few years later, two of the borrowers died; the third took ill and could no longer live in her home.  Alleging default, Nutter now seeks to foreclose on the mortgages.  Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.”  The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21.  We hold that it does. Background.  1.  Reverse mortgages.  For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes.  See Consumer Financial Protection Bureau, Issue Brief:  The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017).  In order to secure cash for their living expenses, many […]

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Posted by Massachusetts Legal Resources - January 18, 2018 at 10:26 pm

Categories: News   Tags: , , , , , , , , ,

Aurora Loan Services, LLC v. Murphy (Lawyers Weekly No. 11-186-15)

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-874                                          Appeals Court   AURORA LOAN SERVICES, LLC  vs.  WALTER MURPHY.[1] No. 13-P-874.   Plymouth.    November 4, 2015. – December 11, 2015.   Present:  Berry, Meade, & Maldonado, JJ. Mortgage, Foreclosure, Real estate.  Real Property, Mortgage, Sale.  Sale, Real estate.  Notice, Foreclosure of mortgage. Practice, Civil, Retroactivity of judicial holding. Retroactivity of Judicial Holding.     Summary process.  Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012.   The case was heard by Anne Kenney Chaplin, J., and a motion for reconsideration was heard by her.     Paul R. Collier, III, for the defendant. Shawn Michael Masterson for the plaintiff.     MEADE, J.  Walter Murphy purchased his home in 2007 with a mortgage loan from GreenPoint Mortgage Funding, Inc. (GreenPoint).  In November of 2010, Murphy received a notice from Aurora Loan Services, LLC (Aurora), notifying him that he had defaulted on his loan.  The letter also informed him of his right to cure the default, or to assert the nonexistence of a default or any other defense to acceleration of the loan in a foreclosure proceeding.  Acting as nominee for GreenPoint, the Mortgage Electronic Registrations Systems, Inc. (MERS), assigned the mortgage to Aurora on April 13, 2011.  In October, 2011, Aurora foreclosed on and purchased the property in an extrajudicial foreclosure auction.  Thereafter, Aurora commenced a summary process action to evict Murphy. In Housing Court, the judge determined that Aurora, as mortgage servicer, adequately complied with the requirements under G. L. c. 244, § 35A, as mortgagee, and granted it summary process to recover possession of the premises.  On appeal from the judgment, Murphy claims that, pursuant to the Supreme Judicial Court’s (SJC) recent decision in Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015), Aurora’s failure to strictly comply with the notice of foreclosure procedures contained in Murphy’s mortgage renders the subsequent foreclosure void.  Asserting that a ruling in his favor would not impair existing property interests and doing so would apply Pinti‘s otherwise prospective limitation equitably and without appearing arbitrary and capricious, Murphy claims the Pinti ruling ought to extend to cases pending on appeal (when the claim was raised and preserved) at the time of the Pinti decision’s release.  We agree and therefore reverse. 1.  Background.  Murphy purchased 245 Holmes Street in Halifax on March 13, 2007, through a mortgage loan […]

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Posted by Massachusetts Legal Resources - December 11, 2015 at 8:42 pm

Categories: News   Tags: , , , , , ,

Murphy v. Wachovia Bank of Delaware, N.A., et al. (Lawyers Weekly No. 11-108-15)

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-1943                                       Appeals Court   HAROLD B. MURPHY, trustee,[1]  vs.  WACHOVIA BANK OF DELAWARE, N.A., & another.[2] No. 13-P-1943. Middlesex.     November 12, 2014. – August 13, 2015.   Present:  Kafker, Cohen, & Milkey, JJ.   Mortgage, Real estate, Foreclosure, Assignment, Junior lien. Real Property, Mortgage.  Judicial Estoppel.       Civil action commenced in the Superior Court Department on May 29, 2008.   The case was heard by Dennis J. Curran, J.     David M. Bizar for Wachovia Bank of Delaware, N.A. John C. Elstad for the plaintiff.     COHEN, J.  This case concerns the proper distribution of surplus funds after a foreclosure sale initiated and conducted by the holder of a second mortgage.  After a jury-waived trial, a judge of the Superior Court ruled that defendant Wachovia Bank of Delaware, N.A. (Wachovia), erroneously distributed surplus funds to the holder of the first mortgage, Wells Fargo Bank, N.A. (Wells Fargo), instead of to the mortgagor, Nigel Thorpe.  The judge therefore ordered Wachovia to pay $ 178,626.61, plus interest and costs, to the plaintiff, Harold B. Murphy, as trustee of the bankruptcy estate of Thorpe (trustee).  On appeal, Wachovia argues that it was entitled to disburse the funds to Wells Fargo, but even if it was not, it had valid equitable defenses to the trustee’s claims.[3]  For the reasons that follow, we affirm. Background.  We summarize the judge’s findings, supplemented by additional undisputed facts.[4]  Prior to the foreclosure sale, Thorpe was the owner of residential property in Wilmington.  The property was encumbered by two mortgages:  a first mortgage dated March 23, 1999, held by Wells Fargo, and a second mortgage, dated July 26, 2000, held by Wachovia. In March, 2006, Thorpe defaulted on the payment obligations secured by the second mortgage, and Wachovia exercised its statutory power of sale to foreclose on the property.[5]  The notice of sale to Thorpe and to any potential buyers provided that “[b]y virtue and in execution of the Power of Sale contained in [the second mortgage], . . . [t]hese premises will be sold and conveyed subject to . . . all unpaid . . . liens or existing encumbrances of record which are in force and are applicable, having priority over said mortgage.” On July 25, 2006, Wachovia conducted a foreclosure auction.  At that time, the outstanding debt secured by the Wachovia mortgage was $ 130,000, and the outstanding debt secured […]

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Posted by Massachusetts Legal Resources - August 14, 2015 at 12:10 am

Categories: News   Tags: , , , , , , ,

Commonwealth v. Murphy (Lawyers Weekly No. 11-094-14)

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   12-P-1634                                       Appeals Court   COMMONWEALTH  vs.  THOMAS MURPHY. No. 12-P-1634. Middlesex.     October 9, 2013.  –  August 12, 2014. Present:  Cypher, Katzmann, & Maldonado, JJ. Practice, Criminal, Jury and jurors, Voir dire, Required finding.  Constitutional Law, Impartial tribunal, Jury.  Jury and Jurors.  Breaking and Entering.       Indictments found and returned in the Superior Court Department on June 30, 2009.   The cases were tried before S. Jane Haggerty, J.     Kenneth I. Seiger for the defendant. Kimberly Rugo, Assistant District Attorney, for the Commonwealth.      KATZMANN, J.  The primary issue in this appeal arises from the denial of the defendant’s request for a postverdict hearing regarding the potential partiality of a juror.  The defendant was convicted by a jury of four counts of breaking and entering, three counts of larceny, and three counts of malicious destruction of property emerging from incidents at four gas stations.  Shortly after the jury trial, the prosecutor reported to the Superior Court judge that, after the verdict, a juror spoke to the proprietor of one of those gas stations — Welch’s Automotive in Littleton –- who was also a witness at trial.  The trial judge denied the defendant’s request for a postverdict evidentiary inquiry.  The defendant appeals, seeking such a hearing on remand, and further claiming that there was insufficient evidence to support the conviction of breaking and entering at Welch’s Automotive.  We affirm. Background.  Between September, 2007, and May, 2008, a spate of break-ins occurred at gas stations in the adjacent towns of Littleton, Boxborough, and Westford, and the nearby town of Concord.[1]  On September 18, 2007, the incident that is the heart of this case occurred.  An alarm at Welch’s Automotive Services (Welch’s), a gas station and garage in Littleton, automatically notified the Littleton Police Department.  When Sergeant Robert Raffalo arrived at Welch’s, he investigated together with the owner of the gas station, Mark Shapiro, who was notified as well.  They discovered that a ground-level panel from one of the garage doors appeared to have been kicked in and was lying on the ground.  There was a footprint on the panel with a distinctive pattern on it, which investigators later matched to the sneakers of the defendant.  No other property was taken or damaged.[2]  A jury convicted the defendant of breaking and entering.[3] We briefly summarize the facts of the additional incidents because […]

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Posted by Massachusetts Legal Resources - August 12, 2014 at 5:33 pm

Categories: News   Tags: , , , ,