Opinion
14-P-310
05-26-2015
SOLO REALTY, LLC v. WILLIAM M. SHEREDY & 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
After a Land Court summary judgment for the plaintiff, Solo Realty, in this summary process action, the defendants, Gail A. and William M. Sheredy (collectively, Sheredys), appeal, arguing that the judge erred in determining that G. L. c. 184, § 24, prevents them from raising as a defense potential defects in a 2002 mortgage assignment. We affirm.
The Sheredys on September 10, 2002, obtained a mortgage from Old Colony Mortgage Corporation (Old Colony) on their home in Berkley. The mortgage was assigned from Old Colony to Principal Residential Mortgage, Inc. (Principal Residential) and recorded at the registry of deeds on September 16, 2002. The Sheredys later defaulted on the CitiMortgage note, and on February 28, 2012, CitiMortgage held a foreclosure sale. As the successful high bidder, Solo Realty obtained a foreclosure deed to the property; that deed was recorded on April 20, 2012.
According to CitiMortgage, Inc.'s amicus brief, as of January 1, 2005, Principal Residential merged into CitiMortgage, Inc., making CitiMortgage the holder of the mortgage at the time of foreclosure sale in February, 2012. Although the Sheredys challenged CitiMortgage's ownership at the time of the summary judgment, they do not raise this issue on appeal.
The Sheredys continued to occupy the property after the foreclosure sale and, on May 14, 2012, Solo Realty filed a summary process (eviction) summons and complaint. The Sheredys counterclaimed and both parties filed summary judgment motions. On October 9, 2013, judgment entered in favor of Solo Realty on all issues; the Sheredys' motion for summary judgment was denied. They timely appealed.
The Sheredys counterclaimed that CitiMortgage lacked standing to bring the action and therefore conducted a wrongful foreclosure. The Sheredys do not raise this on appeal.
The Sheredys argue that the assignment is void because it was created before the note and mortgage existed and the signatures appearing on the assignment were "forged." In their view, those problems with the assignment are not mere "defects" as described in G. L. c. 184, § 24, but, instead, are more fundamental errors that render the assignment void ab initio.We are not persuaded.
The September 16, 2012, assignment was executed by officers of Old Colony; specifically, Richard W. Fisher and Brian P. Johnson, executive vice president and vice president, respectively. At his deposition, Johnson testified that the signature appearing on the assignment was not his; Fisher testified at deposition, "I don't know 100 percent. But I guess if you were asking me to, you know, say that it's absolutely my signature, I would have to say I don't believe that it is my signature." However, he also testified that partial paralysis in his hand due to surgery in 2000 still affected his signature in 2002.
The Sheredys also claim that the acknowledgment is invalid because both Fisher and Johnson testified that, not only did neither personally execute the assignment, neither signed the instrument before a notary as is required under Massachusetts law.
The assignment of a mortgage is a conveyance of an interest in land. See Lamson & Co. v. Abrams, 305 Mass. 238, 240 (1940). Under § 24, an owner of land is provided a curative period of ten years to challenge any allegedly defective written instrument conveying land or interest, such defect including the time of execution of the instrument. The purpose of the statute is to "alert the world" as to the challenged defects in the recorded instrument; the Sheredys failed to do that. Howson v. Crombie St. Congregational Church, 412 Mass. 526, 529 (1992). If a challenger fails to place notice on record within the ten year period, the challenge is barred.
General Laws c. 184, § 24, as appearing in St. 1964, c. 311, § 1, provides: "When any owner of land the title to which is not registered, or of any interest in such land, signs an instrument in writing conveying or purporting to convey his land or interest, or in any manner affecting or purporting to affect his title thereto, and the instrument, whether or not entitled to record, is recorded, and indexed, in the registry of deeds for the district wherein such land is situated, and a period of ten years elapses after the instrument is accepted for record, and the instrument or the record thereof because of defect, irregularity or omission fails to comply in any respect with any requirement of law relating to seals, corporate or individual, to the validity of acknowledgement, to certificate of acknowledgement, witnesses, attestation, proof of execution, or time of execution, to recitals of consideration, residence, address, or date, to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation, such instrument and the record thereof shall notwithstanding any or all of such defects, irregularities and omissions, be effective for all purposes to the same extent as though the instrument and the record thereof had originally not been subject to the defect, irregularity or omission, unless within said period of ten years a proceeding is commenced on account of the defect, irregularity or omission, and notice thereof is duly recorded in said registry of deeds and indexed and noted on the margin thereof under the name of the signer of the instrument and, in the event of such proceeding, unless relief is thereby in due course granted."
There is no indication in this record that the Sheredys recorded with the registry of deeds the statutorily required statement of defect putting Old Colony on notice of a challenge to the validity of the assignment of mortgage during the ten year period beginning September 16, 2002, when the assignment was recorded. As a result, because the § 24 curative period expired without such recorded notice, the Sheredys' claim is time barred.
Summary judgment was therefore appropriate where this record shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). DuPont v. Commissioner of Correction, 448 Mass. 389, 397 (2007).
Judgment affirmed.
By the Court (Rapoza, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 26, 2015.