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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
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 […]
Wells Fargo Bank, N.A. v. Cook, et al. (Lawyers Weekly No. 11-051-15)
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-381 Appeals Court WELLS FARGO BANK, N.A. vs. NANCY B. COOK & another.[1] No. 14-P-381. Suffolk. January 7, 2015. – May 19, 2015. Present: Kafker, Meade, & Maldonado, JJ. Summary Process. Mortgage, Foreclosure, Acceleration clause. Real Property, Mortgage. Regulation. Practice, Civil, Summary judgment, Summary process. Summary Process. Complaint filed in the Boston Division of the Housing Court Department on August 6, 2012. The case was heard by MaryLou Muirhead, J., on motions for summary judgment. Julia E. Devanthery for the defendants. David E. Fialkow for the plaintiff. KAFKER, J. Nancy and Abena Cook appeal from the judgment entered in favor of Wells Fargo Bank, N.A. (Wells Fargo), in its postforeclosure summary process action against them in the Boston Housing Court. The Cooks contend that the judge erred in granting summary judgment for Wells Fargo on its claim for possession because (1) the judge should have considered the United States Department of Housing and Urban Development (HUD) Handbook No. 4330.1 REV-5, Administration of Insured Home Mortgages (1994) (HUD Handbook), as interpretive guidance to discern the meaning of the HUD regulations incorporated into the mortgage, and (2) the August 12, 2008, meeting Wells Fargo held at Gillette Stadium for defaulting mortgagors did not satisfy the procedural or substantive requirements set out in the HUD regulations at 24 C.F.R. § 203.604(b) (2008), as the Gillette Stadium event was untimely and did not provide for a face-to-face meeting with a representative of the lender authorized to negotiate modification of payment provisions. We conclude that the HUD Handbook should have been considered, that the meeting was untimely, and most importantly, that there are material disputed facts regarding whether the meeting satisfied the substantive face-to-face meeting requirements of the HUD regulations. Therefore, we vacate the judgment of the Boston Housing Court in favor of Wells Fargo.[2] 1. Background. The facts, construed in the light most favorable to the Cooks, are as follows. See DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007). In 1971, Nancy Cook purchased property at 38-40 Rosewood Street in Mattapan, and in 2006 became co-owner of the property with her daughter Abena Cook. In March, 2008, the Cooks refinanced the property with a loan from Fairfield Financial Mortgage Group, Inc. To secure the loan, the Cooks granted a mortgage, including […]
Bank of America, N.A., et al. v. Babcock, et al. (Lawyers Weekly No. 10-176-14)
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 SJC-11651 BANK OF AMERICA, N.A. & another,[1] trustees,[2] vs. VICTORIA BABCOCK & others.[3] October 28, 2014. Trust, Taxation. Taxation, Marital deduction. Practice, Civil, Declaratory proceeding. The trustees of the Indenture of Trust of Hollis W. Plimpton, Jr., dated June 24, 1964, as amended, also known as the Hollis W. Plimpton, Jr. Family Trust (trust), filed a complaint in the county court, pursuant to G. L. c. 231A, seeking a declaration that the trust as drafted correctly expresses the intent of Hollis W. Plimpton, Jr. (settlor) that his estate be eligible to obtain the optimal benefit of allowable Federal and State estate tax marital deductions.[4] Alternatively, the trustees seek an order rewording a portion of the trust to ensure that it accomplishes the settlor’s intent, pursuant to G. L. c. 215, § 6. A single justice of this court reserved and reported the case to the full court. Litigants have sought reformation of trusts, and judicial declarations of rights in will and trust cases, from this court in a variety of situations under the Bosch rubric. See Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456 (1967). The cases raise issues of State law, which the parties have asked us to resolve because of their Federal tax implications. See Walker v. Walker, 433 Mass. 581, 582 (2001); Kirchick v. Guerry, 429 Mass. 215, 217 (1999) (court decides State law issues in Bosch cases, not Federal law issues). “We have decided [such] cases . . . not only when the parties have been actively engaged in disputes with the Internal Revenue Service, but also, on occasion, when the parties have sought decisions that would enable them to plan their estates correctly and to prepare effectively for future tax consequences.” Walker v. Walker, supra at 582-583 (2001). See Shawmut Bank, N.A. v. Buckley, 422 Mass. 706, 709-710 (1996); Billings v. Fowler, 361 Mass. 230, 233-234 (1972). In the latter category, our cases have involved situations where there is a clear mistake in the drafting or some real uncertainty about the meaning of an instrument that would lead inevitably to adverse tax consequences in the future. See, e.g., Hillman v. Hillman, 433 Mass. 590 (2001). See also Linehan v. Linehan, 453 Mass. 1017, 1018 (2009), and cases cited. These features are noticeably absent from the case before us. There is […]
Golrick v. U.S. Bank, N.A. (Lawyers Weekly No. 10-126-14)
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 SJC-11632 JEANNE A. GOLRICK vs. U.S. BANK, N.A. July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. The petitioner filed a petition in the county court pursuant to G. L. c. 211, § 3, challenging a Superior Court order denying her request that the respondent’s attorney be disqualified from representing the respondent in the underlying litigation between the parties. A single justice of this court denied the petition without a hearing, and the petitioner appealed. We affirm. The case is before us on a memorandum and appendix filed by the petitioner pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule requires the petitioner to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” She has failed to carry her burden. The alternative remedy in this case is clear: the petitioner can adequately obtain review of the order denying disqualification of the respondent’s counsel in an appeal from the adverse final judgment.[1] Masiello v. Perini Corp., 394 Mass. 842, 850 (1985) (citation omitted). Borman v. Borman, 378 Mass. 775, 779 (1979). General Laws c. 211, § 3, is not a substitute for the normal process of trial and appeal, and the petitioner has not demonstrated any extraordinary circumstances rendering the ordinary remedy inadequate. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Jeanne A. Golrick, pro se. David W. Merritt for the respondent. [1] The Superior Court docket indicates that judgment now has entered for the respondent and that the petitioner has in fact filed a notice of appeal. Full-text Opinions
Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)
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‑11330 BANK OF AMERICA, N.A. vs. CEFERINO S. ROSA (and three consolidated cases[1]). Essex. September 9, 2013. ‑ December 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure. Summary Process. Housing Court, Jurisdiction. Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim. Jurisdiction, Summary process, Housing Court, Equitable. Uniform Summary Process Rules. Rules of Civil Procedure. Statute, Construction. Summary process. Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively. Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J. Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief. SPINA, J. In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]