Taylor, et al. v. Martha’s Vineyard Land Bank Commission (Lawyers Weekly No. 10-162-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11963 HUGH C. TAYLOR, trustee,[1] & others[2] vs. MARTHA’S VINEYARD LAND BANK COMMISSION. Suffolk. March 8, 2016. – October 11, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.[3] Easement. Real Property, Easement. Martha’s Vineyard Land Bank Commission. Civil action commenced in the Land Court Department on June 9, 2010. A motion for summary judgment was heard by Alexander H. Sands, III, J., and the remaining issues were also heard by him. The Supreme Judicial Court granted an application for direct appellate review. Diane C. Tillotson for the defendant. Gordon M. Orloff for the plaintiffs. Jeffrey T. Angley & Nicholas P. Shapiro, for Roma III, Ltd., amicus curiae, submitted a brief. Greg D. Peterson, Mark S. Furman, & Matthew S. Furman, for Sarah A. Kent, amicus curiae, submitted a brief. LENK, J. The defendant, Martha’s Vineyard Land Bank Commission, owns and manages a nature preserve on the western edge of Martha’s Vineyard. The preserve is comprised of various parcels of land that the defendant purchased in the 1990s. In 2010, the defendant created a hiking trail through the preserve, which it planned to open to the public. The trail began on a main road, crossed over the grounds of an inn owned by the plaintiffs via a forty-foot wide easement, proceeded from there across three parcels of the defendant’s land for whose benefit the easement was created, and then entered a fourth parcel, also owned by the defendant, that was not intended to benefit from the easement. The plaintiffs filed an action in the Land Court to prevent the defendant from using the easement as part of the hiking trail. They argued, among other things, that it was improper, pursuant to Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965), for the trail to cross over the easement and then continue onto the fourth parcel, given that the easement was not intended to serve that parcel. On this basis, a judge of the Land Court granted partial summary judgment for the plaintiffs. Following a bench trial, at which certain remaining issues were resolved in the defendant’s favor, the defendant appealed from the grant of partial summary judgment, and we allowed its application for direct appellate review.[4] The defendant contends that the bright-line rule […]
U.S. Bank National Association v. Bolling (Lawyers Weekly No. 11-116-16)
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 15-P-1259 Appeals Court U.S. BANK NATIONAL ASSOCIATION, trustee,[1] vs. WENDY BOLLING. No. 15-P-1259. Hampden. June 9, 2016. – September 1, 2016. Present: Grainger, Meade, & Wolohojian, JJ. Contract, Choice of law clause. Mortgage, Assignment, Foreclosure. Real Property, Mortgage. Practice, Civil, Standing. Conflict of Laws. Summary process. Complaint filed in the Western Division of the Housing Court Department on April 17, 2012. The case was heard by Robert G. Fields, J., on motions for summary judgment; a motion to vacate judgment, filed on April 1, 2014, was heard by him; a motion for reconsideration, filed on May 22, 2014, was heard by him; and the entry of judgment was ordered by him. Robert Bruce Allensworth (Robert W. Sparkes, III, with him) for the plaintiff. Glenn F. Russell, Jr., for the defendant. Daniel Bahls & Uri Strauss, for Luz Diaz, amicus curiae, submitted a brief. WOLOHOJIAN, J. At issue is whether the defendant, Wendy Bolling, has standing to challenge the assignment of a mortgage that was not made in accordance with the terms of a pooling and servicing agreement (PSA) to which she was not a party. Because the defect rendered the assignment merely voidable rather than void, we conclude that she does not. Bolling moved for summary judgment in the summary process eviction action below, arguing (among other things)[2] that the foreclosure sale through which the plaintiff, U.S. Bank National Association, trustee for RASC 2006KS9 c/o GMAC Mortgage, LLC (trust), took title to a property at 114 Lamont Street, Springfield, was void because the assignment of the mortgage to the trust did not comply with the terms of a PSA between Residential Asset Securities Corporation, Residential Funding Company, LLC, and U.S. Bank National Association.[3] Specifically, Bolling alleged that the assignment did not take place within the time period required under the PSA. She further argued that this deficiency rendered the assignment void under New York law, which she contended governed because of the PSA’s choice-of-law provision.[4] The judge agreed, ruled that Bolling had standing to challenge the assignment because it was void under New York law (and not merely voidable), and allowed her motion for summary judgment. Judgment entered accordingly. The trust appeals. We begin with the proposition, of long standing, that Massachusetts applies its own law […]
Jose v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 11-089-16)
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 15-P-835 Appeals Court TOMAS JOSE vs. WELLS FARGO BANK, N.A. No. 15-P-835. Essex. May 6, 2016. – July 22, 2016. Present: Cohen, Green, & Hanlon, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Administrative Law, Agency’s interpretation of regulation. Civil action commenced in the Superior Court Department on March 5, 2012. The case was heard by Thomas Drechsler, J., on a motion for summary judgment. Thomas J. Gleason for the plaintiff. David Fialkow for the defendant. GREEN, J. Regulations promulgated by the Federal Department of Housing and Urban Development (HUD) require a mortgage lender to conduct a face-to-face meeting with defaulting borrowers before foreclosing on certain federally insured mortgages. The defendant, Wells Fargo Bank, N.A., (Wells Fargo), acknowledges that failure to comply with those regulations may serve as a basis to invalidate its foreclosure of the mortgage it held on the plaintiff’s property, but asserts that it qualifies for an exemption. We conclude that Wells Fargo does not qualify for the exemption from the face-to-face meeting requirement, and reverse so much of the judgment as dismissed that part of the plaintiff’s complaint. Background. On March 28, 2005, the plaintiff, Tomas Jose, executed a promissory note in the amount of $ 440,002 to refinance a prior mortgage loan on 499 Boston Street in Lynn (property). To secure the note, Jose granted a mortgage (mortgage) to Mortgage Electronic Registration Systems, Inc. (MERS), solely as nominee for the lender and the lender’s successors and assigns. The mortgage was insured by the Federal Housing Administration, and incorporated applicable HUD regulations by reference. More specifically, under par. 9(d) of the mortgage, acceleration or foreclosure of the mortgage is not authorized “if not permitted by regulations of the [HUD] Secretary.” On February 4, 2009, MERS assigned the mortgage to Wells Fargo. At all relevant times, Wells Fargo serviced Jose’s mortgage loan. Wells Fargo does not maintain a servicing branch within 200 miles of the property. However, Wells Fargo does maintain deposit and home loan origination branch offices within 200 miles of the property. Wells Fargo never scheduled or conducted a face-to-face meeting with Jose to discuss an alternative to foreclosure. Despite the absence of a face-to-face meeting, however, Wells Fargo and Jose entered into several forbearance agreements and three permanent modifications. Jose breached each […]
Bank of America, N.A. v. Prestige Imports, Inc., et al. (Lawyers Weekly No. 11-087-16)
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 15-P-248 Appeals Court BANK OF AMERICA, N.A.[1] vs. PRESTIGE IMPORTS, INC., & others.[2] No. 15-P-248. Norfolk. January 11, 2016. – July 20, 2016. Present: Grainger, Rubin, & Milkey, JJ. Attorney at Law, Attorney-client relationship, Lien, Contingent fee agreement, Withdrawal. Damages, Quantum meruit. Civil action commenced in the Superior Court Department on February 1, 1991. A motion to adjudicate an attorney’s lien, filed on December 9, 2013, was heard by Patrick F. Brady, J. Steven J. Bolotin for George Deptula. Timothy J. Fazio (Jennifer L. Morse with him) for the defendants. RUBIN, J. In 1992, attorney George Deptula agreed to represent Prestige Imports, Inc., and its principals, Helmut Schmidt and his wife Renate Schmidt[3] (collectively, Prestige), on a contingent fee basis in litigation with South Shore Bank and, later, its acquirer, Bank of America, N.A. (Bank of America), in exchange for a nonrefundable retainer and a percentage of any recovery on Prestige’s counterclaims.[4] After victories at two trials and a reversal of those victories by this court, see Bank of America, N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741 (2009) (Prestige Imports), Deptula withdrew from the case without Prestige’s consent in April, 2010. Represented by different counsel, Prestige won a judgment of $ 27,031,568.12, including statutory interest, at a third trial. While that judgment was on appeal at this court, Deptula filed a notice of attorney’s fees lien pursuant to G. L. c. 221, § 50. Prestige brought a motion to adjudicate this lien, arguing that Deptula forfeited it by withdrawing without Prestige’s consent and without good cause. After a jury-waived trial, a Superior Court judge — who was also the trial judge for the third trial in the underlying litigation — ordered the entry of judgment for Prestige. Deptula appealed that judgment and, for the reasons stated infra, we reverse. Background. The litigation between Bank of America and Prestige involved claims by Bank of America for repayment of loans, and counterclaims by Prestige chiefly alleging Uniform Commercial Code violations, violation of G. L. c. 93A, and negligence, arising out of Bank of America’s handling of certain checks and its issuance of treasurer’s checks by which the comptroller of Prestige embezzled substantial funds from Prestige. Detailed facts about that litigation are set forth in Prestige Imports, supra at 742-752. We summarize here […]
Bank of America, N.A. v. Commissioner of Revenue (Lawyers Weekly No. 10-096-16)
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-11995 BANK OF AMERICA, N.A., trustee,[1] vs. COMMISSIONER OF REVENUE. Suffolk. March 7, 2016. – July 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Trust, Taxation. Taxation, Trust, Income tax. Fiduciary. Domicil. Words, “Inhabitant.” Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Kevin P. Martin (Joshua M. Daniels with him) for the taxpayer. Kirk G. Hanson, Assistant Attorney General, for Commissioner of Revenue. Phoebe A. Papageorgiou, of the District of Columbia, & Brad S. Papalardo, for Massachusetts Bankers Association & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider whether Bank of America, N.A. (bank), in its capacity as a corporate trustee of several inter vivos trusts, qualifies as an “inhabitant” and accordingly is subject to the fiduciary income tax under G. L. c. 62, § 10, even though the bank is not domiciled in Massachusetts. Considering the bank’s appeal from a decision of the Appellate Tax Board (board) in which the board determined that the bank did qualify as an inhabitant, we affirm the board’s decision on the record of this case, but on somewhat different grounds.[2] Background.[3] The bank is a national banking association authorized to act as a fiduciary. At all relevant times, the bank’s commercial domicil was in North Carolina, with its principal place of business in Charlotte, North Carolina. This case concerns appeals by the bank from the denials, by the Commissioner of Revenue (commissioner), of applications for abatement of fiduciary income taxes paid by thirty-four inter vivos trusts. The taxes were paid by the bank in its capacity as trustee or co-trustee of each of the thirty-four trusts;[4] the taxes paid related to the tax year ended December 31, 2007 (tax year at issue). In 2011, the bank took the position that these thirty-four and similar inter vivos trusts of which the bank served as trustee or co-trustee did not qualify as “resident inter vivos trusts,” as described in 830 Code Mass. Regs. § 62.10.1(1) (b) (2016),[5] and therefore were not subject to fiduciary income tax under G. L. c. 62, § 10 (§ 10). Accordingly, the bank filed with the commissioner 2,987 applications for abatement of the tax and […]
Santos v. U.S. Bank National Association, et al. (Lawyers Weekly No. 11-081-16)
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 15-P-334 Appeals Court MILTON R. SANTOS[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & others.[3] No. 15-P-334. Suffolk. February 24, 2016. – July 8, 2016. Present: Katzmann, Milkey, & Blake, JJ. Bank. Loan. Mortgage, Real estate, Foreclosure. Real Property, Mortgage. Notice. Practice, Civil, Motion to dismiss, Summary judgment, Summary process. Summary Process. Civil action commenced in the Superior Court Department on March 28, 2011. The case was heard by Heidi E. Brieger, J., on a motion for summary judgment. Michael J. Traft (Robert Graves with him) for the plaintiff. Sean R. Higgins (Michael Stanley with him) for the defendants. KATZMANN, J. The plaintiff mortgagor Milton R. Santos appeals from orders of a Superior Court judge dismissing his claim that the mortgagee and mortgage servicing defendants violated G. L. c. 244, § 35A, and granting summary judgment to the defendants on his claim that U.S. Bank National Association (U.S. Bank) negligently processed his loan modification applications made pursuant to the Home Affordable Modification Program (HAMP). We affirm. Background. We recite the facts alleged in Santos’s complaint as supplemented by the undisputed facts in the summary judgment record and descriptions of HAMP from case law. HAMP.[4] “HAMP was part of Congress’s response to the financial and housing crisis that struck the country in the fall of 2008.” Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 772 (4th Cir. 2013). Acting under authority conferred by the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. § 5201 et seq. (and specifically the Troubled Asset Relief Program [TARP], 12 U.S.C. §§ 5211–5241), and in conjunction with the Federal Housing Finance Agency, the Federal National Mortgage Association (Fannie Mae), and the Federal Home Loan Mortgage Corporation (Freddie Mac), the Secretary of the Treasury (Secretary) introduced the Making Home Affordable Program in February, 2009. HAMP, which is administered by Fannie Mae, is part of this initiative. Markle v. HSBC Mort. Corp. (USA), 844 F. Supp. 2d 172, 176 (D. Mass. 2011). “HAMP aims to provide relief to borrowers who have defaulted on their mortgage payments or who are likely to default by reducing mortgage payments to sustainable levels. . . . Under HAMP, loan servicers receive incentive payments for each permanent loan modification completed. . . . Mortgage lenders approved by Fannie Mae […]
Bank of America, N.A. v. Casey (Lawyers Weekly No. 10-083-16)
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-11943 BANK OF AMERICA, N.A. vs. DEBORA A. CASEY, trustee.[1] February 11, 2016. – June 16, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Validity. Real Property, Mortgage. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Adam C. Ponte for the defendant. Mark B. Johnson for the plaintiff. Lawrence P. Heffernan & Danielle Andrews Long, for The Abstract Club & another, amici curiae, submitted a brief. BOTSFORD, J. We consider two questions certified to this court by the United States Court of Appeals for the First Circuit (First Circuit).[2] The questions, which arise in connection with a bankruptcy proceeding, concern the power and effect of an affidavit of an attorney executed pursuant to G. L. c. 183, § 5B, in relation to a mortgage containing a defective certificate of acknowledgment. The two questions ask: “1. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, correct what the parties say is a material defect in the Certificate of Acknowledgment of that mortgage? “2. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage?” For the reasons that follow, we answer both questions yes, in certain circumstances.[3] 1. Background.[4] By quitclaim deed dated September 29, 1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired title to the property located at 107 Colonial Drive in New Bedford (property). On October 1, 1999, the deed was recorded with the Southern Bristol County registry of deeds (registry). On December 27, 2005, the Pereiras refinanced the property, granting to Bank of America, N.A. (bank), a mortgage in the principal amount of $ 240,000. The Pereiras individually initialed the bottom of each page of the mortgage agreement except the signature page, on which the full signature of each appears. Attorney Raymond J. Quintin also signed […]
Wells Fargo Bank, N.A. v. Anderson (Lawyers Weekly No. 11-050-16)
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 14-P-1156 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. IAN B. ANDERSON. No. 14-P-1156. Bristol. September 8, 2015. – May 11, 2016. Present: Kafker, C.J., Trainor, & Massing, JJ. Mortgage, Assignment, Foreclosure. Real Property, Mortgage. Assignment. Practice, Civil, Standing, Summary judgment, Summary process. Summary Process. Summary process. Complaint filed in the Attleboro Division of the District Court Department on September 1, 2011. After transfer to the Southeastern Division of the Housing Court Department, the case was heard by Anne Kenney Chaplin, J., on motions for summary judgment. Thomas B. Vawter for the defendant. David A. Marsocci for the plaintiff. TRAINOR, J. The defendant, Ian B. Anderson, former homeowner of property located in Norton and holdover in possession after the bank foreclosed, appeals from a Housing Court judgment granting possession of his former home to plaintiff Wells Fargo Bank, N.A. (bank). Anderson argues that the judge erroneously granted summary judgment to the bank. He argues that the judge incorrectly interpreted G. L. c. 183, § 54B, by allowing the bank to rely on certain documents without the need to further substantiate their validity, and that the judge’s interpretation of G. L. c. 183, § 54B, violated his due process rights. Facts. The following facts are undisputed and are taken from the judge’s memorandum of decision on the parties’ cross motions for summary judgment and the summary judgment record. On June 20, 2005, Anderson executed a promissory note and a mortgage in favor of Option One Mortgage Corporation (Option One) using the property as collateral. The mortgage was recorded in the Bristol County registry of deeds, northern district (Bristol registry). On January 2, 2009, Option One assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry and included an effective date of August 14, 2007. On October 15, 2010, Sand Canyon Corporation (Sand Canyon), formerly known as Option One, assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry. After a default by Anderson, the bank through its loan servicer, American Home Mortgage Servicing, Inc., initiated an action in the Land Court on October 25, 2010 under the Servicemembers Civil Relief Act. Judgment entered in favor of the bank and it proceeded with the sale of the property in accordance with the mortgage. On May 5, 2011, the […]
Mack v. Wells Fargo Bank, N.A., et al. (Lawyers Weekly No. 11-180-15)
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 14-P-1963 Appeals Court DEVENIA MACK vs. WELLS FARGO BANK, N.A., & others.[1] No. 14-P-1963. Worcester. October 5, 2015. – December 1, 2015. Present: Vuono, Carhart, & Sullivan, JJ. Practice, Civil, Summary judgment. Real Property, Mortgage. Mortgage, Foreclosure. Consumer Protection Act, Mortgage of real estate. Massachusetts Civil Rights Act. Immunity from suit. Rules of Professional Conduct. Civil action commenced in the Superior Court Department on October 15, 2010. The case was heard by Brian A. Davis, J., on motions for summary judgment. Robert M. Mendillo for Harmon Law Offices, P.C., & another. James L. O’Connor, Jr. (Barry M. Altman with him) for the plaintiff. CARHART, J. In this mortgage foreclosure action, the plaintiff alleges that Harmon Law Offices, P.C. (Harmon), as counsel for mortgagor Wells Fargo Bank, N.A. (Wells Fargo), and Commonwealth Auction Associates, Inc. (Commonwealth), violated G. L. c. 93A, §§ 2 and 9, and the Massachusetts Civil Rights Act, G. L. c. 12, § 11I (MCRA), by continuing to advertise and schedule foreclosure auctions of her property in violation of a temporary restraining order and preliminary injunction prohibiting them from doing so.[2] Harmon and Commonwealth (together, the defendants) moved for summary judgment, arguing, among other things, that the “litigation privilege” immunizes them from civil liability for their actions. Summary judgment was denied, and the defendants seek interlocutory review. See Visnick v. Caulfield, 73 Mass. App. Ct. 809, 811 n.4 (2009). We agree that Commonwealth’s actions are not privileged as a matter of law and affirm the order denying Commonwealth’s motion for summary judgment. However, because we conclude that Harmon’s actions are protected by the litigation privilege, we reverse the denial of Harmon’s motion for summary judgment and remand for the entry of summary judgment in Harmon’s favor. Background. The following material facts are undisputed. On May 28, 2010, Harmon notified the plaintiff that it had been retained by Wells Fargo to foreclose on her mortgage. On September 10, 2010, Harmon sent the plaintiff notice pursuant to G. L. c. 244, §§ 14 and 17B, of Wells Fargo’s intent to foreclose on the mortgage and to collect from her any deficiency. The notice also advised the plaintiff that a mortgage foreclosure sale of her property would take place on October 18, 2010. On October 13, 2010, the plaintiff’s attorney wrote to Harmon and […]
Bank of America, N.A. v. Diamond Financial, LLC (Lawyers Weekly No. 11-167-15)
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 14-P-1315 Appeals Court BANK OF AMERICA, N.A.[1] vs. DIAMOND FINANCIAL, LLC. No. 14-P-1315. Suffolk. June 12, 2015. – October 20, 2015. Present: Cohen, Green, & Trainor, JJ. Subrogation. Mortgage, Priority, Junior lien. Jurisdiction, Equitable. Land Court. Civil action commenced in the Land Court Department on December 22, 2011. The case was heard by Judith C. Cutler, J., on motions for summary judgment. George E. Sousa for the defendant. Howard S. Goldman for the plaintiff. TRAINOR, J. Bank of America (BOA), the plaintiff, brought suit against Diamond Financial, LLC (Diamond),[2] seeking equitable subrogation of a mortgage it holds on property located at 18 Eastwood Road, in the town of Shrewsbury. The parties filed cross motions for summary judgment. In granting the plaintiff’s summary judgment motion, the judge found that BOA “is entitled to be equitably subrogated to the priority position” for $ 330,368.29 of the previously recorded mortgage, which was discharged. The defendant, Diamond, appeals. Background. We review the relevant undisputed facts. Milton J. Miranda and Solange D. Miranda purchased a property in Shrewsbury on July 31, 2002. The purchase was financed for the most part with a mortgage loan from Moneyone Corporation. On August 24, 2004, the Mirandas refinanced with a $ 336,150 mortgage loan from Argent Mortgage Company, LLC (Argent).[3] This mortgage was recorded. On or about June 28, 2006, the Mirandas borrowed $ 50,000 from the defendant and granted the defendant a mortgage on the Shrewsbury property and on a property in the city of Worcester.[4] On September 29, 2006, the Mirandas refinanced the Argent mortgage with a mortgage loan of $ 344,000 from Equity Advantage (Equity). As part of the refinancing, $ 330,368.29 of the Equity loan was used to pay the full balance of the Argent mortgage. The Equity mortgage was recorded on October 12, 2006, and the discharge of the Argent mortgage was recorded on October 30, 2006. The closing of the Equity mortgage was conducted by a closing attorney and Closeline, LLC. The Diamond mortgage was not identified during the refinancing process and Equity did not enter into a subrogation agreement. The closing attorney issued a title insurance policy through TICOR Title Insurance Company (TICOR). There is no evidence that Diamond learned of the change in the record order of liens prior to this action. There […]