2009 Mass.App.Div. 116 (2009), 09-ADMS-10005, Capital One Bank v. Newhall

Docket Nº:09-ADMS-10005.
Citation:2009 Mass.App.Div. 116
Opinion Judge:GRECO, P.J.
Party Name:CAPITAL ONE BANK v. Dianne F. NEWHALL.
Attorney:Donald W. Seeley, Jr., Esq., Law Off. of Gary H. Kreppel, P.C., Framingham, MA, for plaintiff. Dianne F. Newhall, Malden, MA, pro se.
Judge Panel:Present: Greco, P.J., Coven & Swan, JJ.
Case Date:June 24, 2009
Court:Massachusetts Appellate Division
 
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Page 116

2009 Mass.App.Div. 116 (2009)

CAPITAL ONE BANK

v.

Dianne F. NEWHALL.

No. 09-ADMS-10005.

Massachusetts Appellate Division, District Court Department, Northern District.

June 24, 2009

Heard May 22, 2009.

In the Malden Division, Docket No. 0850-CV-1087, Johnson, J.

Donald W. Seeley, Jr., Esq., Law Off. of Gary H. Kreppel, P.C., Framingham, MA, for plaintiff.

Dianne F. Newhall, Malden, MA, pro se.

Present: Greco, P.J., Coven & Swan, JJ.

OPINION

GRECO, P.J.

This garden-variety collection case brought by a bank to recover payment of a credit card debt has been litigated for almost three years by way of two separate complaints. Despite the fact that a judgment entered for Capital One Bank (" Bank" ) by agreement in May of 2007, the Bank now comes before us on its appeal of the dismissal of its two complaints to recover payment for the same debt.

On May 12, 2006, the Bank filed a complaint against Dianne Newhall (" Newhall" ) seeking to collect the balance due on a credit card it had issued. A year later, the Bank and Newhall entered into an agreement that judgment be entered for the Bank in the amount of the card balance ($7,026.19), plus costs. There was no award for prejudgment interest. A month later, Newhall filed a motion for relief from that judgment on the ground that a lien by the Bank remained on her property. In response to that motion, the trial court ruled that the agreement for judgment continued in effect, but that the agreement would " be vacated unless the [Bank] first takes the necessary action to remove the post judgment lien by August 1, 2007 obtained subsequent to the filing of the agreement." In so ruling, the court noted that the " filing of the lien [was] contrary to the terms of the agreement" for judgment.

The record before us reflects action taken by the Bank to remove the lien. On July 20, 2007, the office of the Bank's attorney sent a " Discharge of Seizure" to the Middlesex County Deputy Sheriff " to be signed ... so that it can be recorded at the ... Middlesex County Registry of Deeds." Three days later, counsel notified Newhall that " when [counsel] receive[d] the signed discharge from the sheriff's office, [the office would] copy [her] on the documents that [it would] ultimately file with the registry for recording." There was no activity in the case until February 25, 2008, when...

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