Opinion
14-P-1665
10-29-2015
PETER O'CONNELL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On cross motions for summary judgment on the cross claim, a judge of the Land Court granted summary judgment in favor of Deutsche Bank National Trust Company, as trustee for the MLMI Trust Series 2007-MLN1 (Deutsche Bank), and against Russell E. Kelcourse. The judge reformed a mortgage Kelcourse granted to Mortgage Electronic Registration Systems, Inc. (MERS). By deed dated August 15, 2006, Kelcourse acquired property comprising lots 395 through 399 on a plan dated May 1, 1909. The description of property in the mortgage, which is clear and unambiguous, indicates that the mortgage property comprises lots 396 and 397; the mortgage description, however, makes reference to the deed of August 15, 2006, to Kelcourse. The judge reformed the mortgage so that it includes lots 398 and 399 as well.
The claims involving Peter O'Connell are not at issue in this appeal.
Our review of the award of summary judgment is de novo. Porter v. Clarendon Natl. Ins. Co., 76 Mass. App. Ct. 655, 658 (2010). We may assume without deciding that a clear and unambiguous description of property owned by a mortgagor contained in a mortgage may be reformed on grounds of either mutual mistake, or mistake by one party that is known by the other. In order to succeed in such a claim, a plaintiff would be required to prove his case by clear and convincing evidence, rather than a mere preponderance. See Covich v. Chambers, 8 Mass. App. Ct. 740, 747 (1979).
In this case, there can be no doubt that there is a dispute about the intent of the parties. Indeed, Kelcourse has submitted sworn testimony that he intended to mortgage only lots 396 and 397. There is a genuine issue of material fact sufficient to defeat a motion for summary judgment. Consequently, the summary judgment in favor of Deutsche Bank is vacated, and the case is remanded to the Land Court for further proceedings.
So ordered.
By the Court (Green, Rubin & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 29, 2015.