Fassas v. First Bank & Trust Co. of Chelmsford

• Citation: 233 N.E.2d 924,353 Mass. 628
• Parties: Peter G. FASSAS et al. v. FIRST BANK AND TRUST COMPANY OF CHELMSFORD.
• Decision Date: 06 February 1968
• Court: United States State Supreme Judicial Court of Massachusetts

Page 924

233 N.E.2d 924

353 Mass. 628

Peter G. FASSAS et al. v. FIRST BANK AND TRUST COMPANY OF CHELMSFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 1967.

Decided Feb. 6, 1968.

George P. Jeffreys, Lowell, for plaintiffs.

Joseph P. Donahue, Jr., Lowell, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This bill in equity seeks a declaration, inter alia, that two mortgages on two parcels of real estate owned by the plaintiffs are null and void and that foreclosure proceedings under these mortgages are likewise null and void. The plaintiffs allege that the mortgages were obtained by fraud, and that the defendant failed to comply with the requirements of G.L. c. 140, §§ 90A to 90D, in the drawing of the mortgages and note and in the foreclosure proceedings. The defendant filed an answer and also filed a plea in bar stating that the issues in the case had been tried in another suit between the same parties and 'that all such causes as between the parties are res judicata.' The trial judge allowed the plea in bar, and a final decree was entered dismissing the bill. From this decree the plaintiffs appealed.

The plaintiffs' pleading in the suit referred to in the plea in bar was captioned, 'Bill to Restrain Mortgagee Foreclosure.' It alleged fraud, duress, and lack of consideration in the giving of the note and the mortgages, and that no notice was given of the foreclosure proceedings. In that suit they sought to enjoin the foreclosure of the mortgages, and, apparently, to declare the mortgages void. After a hearing on the merits, a final decree was entered dismissing the bill. No specific findings were made.

In the instant case the only arguable new matter set forth in the bill is the allegation of the defendant's noncompliance with G.L. c. 140, §§ 90A to 90D. Those statutory provisions regulate the maximum interest rate on certain home mortgages, require notice of interest rates charged and of foreclosure proceedings, require the giving of receipts for payments made, and specify the effects of noncompliance. ¹ It is the plaintiffs' contention that an attack upon the validity of the foreclosures was not litigated at the first trial, nor was it within the scope of the pleadings. They argue that the allegations are not substantially identical in the two suits and that the defence of res judicata does not apply.

'The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, or agreement, and seeks redress for the same wrong.' Mackintosh v. Chambers, 285 Mass. 594, 596, 190 N.E. 38, 39. Here, it appears that all the facts relating to possible noncompliance with G.L. c. 140, §§ 90A to 90D, were known to the plaintiffs at the time of the prior suit. Moreover, the pleadings in that suit included an attack on the foreclosures, so it appears that the plaintiffs' present theory could have been litigated in that case. However, while the pleadings are an indication of what was rendered res judicata by...