Posts tagged "1006215"

Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-11756   DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1]  vs. FITCHBURG CAPITAL, LLC, & others.[2] Suffolk.     January 5, 2015. – April 15, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause.  Real Property, Mortgage.  Limitations, Statute of.  Practice, Civil, Summary judgment, Statute of limitations.  Statute, Retroactive application, Construction.  Due Process of Law, Retroactive application of statute, Statute of limitations.  Constitutional Law, Contract clause.   Civil action commenced in the Land Court Department on July 2, 2012.   A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Jeffrey T. Angley (Robert K. Hopkins with him) for Fitchburg Capital, LLC. Jeffrey B. Loeb for the plaintiff. Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief.     HINES, J.  Under a 2006 amendment to the so-called “obsolete mortgage” statute, a mortgage becomes unenforceable after a certain number of years:  a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.[3]  G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6.  The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable.  In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a “mortgage in which the term or maturity date of the mortgage is stated” under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional. The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are […]

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Posted by Massachusetts Legal Resources - April 15, 2015 at 4:53 pm

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