Hull v. Attleboro Sav. Bank

• Citation: 596 N.E.2d 358,33 Mass.App.Ct. 18
• Decision Date: 22 July 1992
• Docket Number: No. 91-P-567,91-P-567
• Parties: Michael T. HULL v. ATTLEBORO SAVINGS BANK et al. 1 (and a companion case).
• Court: Appeals Court of Massachusetts

Page 358

596 N.E.2d 358

33 Mass.App.Ct. 18

Michael T. HULL v. ATTLEBORO SAVINGS BANK et al. ¹ (and a companion case).

No. 91-P-567.

Appeals Court of Massachusetts Bristol.

Argued Jan. 6, 1992.

Decided July 22, 1992.

Ronald F. Kehoe, Boston, for plaintiff.

Stephen D. Clapp, North Attleboro, for Attleboro Sav. Bank.

Lawrence F. Heffernan, Boston, for Edward J. Casey et al.

Before WARNER, C.J., and ARMSTRONG and IRELAND, JJ.

WARNER, Chief Justice.

This is the consolidation of separate appeals and cross-appeals arising from two actions filed by the plaintiff against the same parties. Both actions stem from the 1982 foreclosure of a mortgage on a former residence owned by the plaintiff in Attleboro. We recite first the long procedural history of the cases.

The mortgagee, Attleboro Savings Bank (bank), commenced foreclosure proceedings after the plaintiff had failed to make mortgage payments for approximately two years. The bank conducted its foreclosure proceedings under two independent methods concurrently. First, the bank proceeded to foreclose by entry and possession in accordance with G.L. c. 244, § 1-2. ² The bank made entry, took possession of the property on August 25, 1982, and duly recorded a certificate of its entry in the Bristol County northern district registry of deeds. Second, the bank proceeded to foreclose by exercise of the power of sale contained in the plaintiff's mortgage deed in accordance with G.L. c. 244, §§ 14-15. ³ The foreclosure sale took place on October 13, 1982.

The plaintiff filed his first action in the Superior Court, no. 19703, on April 16, 1985. In this action, he challenged the bank's foreclosure by sale and sought to set aside the foreclosure and subsequent sales of the property. He did not challenge the bank's foreclosure by entry and possession in this action, nor did he seek to redeem the property in the event that the foreclosure by sale was set aside. ⁴ This action has been actively litigated by the parties since April, 1985, when the plaintiff served his complaint on the bank and subsequent purchasers.

In February, 1986, a Superior Court judge granted the bank's and subsequent purchasers' motions for summary judgment, and the plaintiff appealed. This court upheld the grant of summary judgment in all but one aspect, the plaintiff's claim that the bank had failed to comply with the provisions of G.L. c. 244, § 14, requiring notice by mail to him. Hull v. Attleboro Sav. Bank, 25 Mass.App.Ct. 960, 519 N.E.2d 775, cert. denied, 488 U.S. 856, 109 S.Ct. 145, 102 L.Ed.2d 117 (1988). On remand, the plaintiff amended his complaint (in detail which we later explain) and both parties conducted further discovery and filed additional affidavits and documentary evidence. After hearing on the defendants' renewed motions for summary judgment, judgment was again entered for the defendants. The plaintiff appeals from this second dismissal.

The plaintiff filed his second action in the Superior Court, no. 20499, on August 26, 1985, exactly three years after the bank made entry and took possession of the subject property. In this action, the plaintiff for the first time challenged the validity of the bank's entry onto the property for purposes of foreclosure by entry and possession and sought to redeem the property in accordance with G.L. c. 244, § 18.

During the more than a year and a half after this action was filed, the plaintiff did not serve process on the defendants, nor did he do anything further to prosecute the case. The action was dismissed on March 30, 1987, without prejudice, apparently on the court's own motion, for failure to prosecute. Three years after filing, on August 22, 1988, the plaintiff made inquiry to determine the status of the case and was told that it had been dismissed. He immediately moved to vacate the judgment of dismissal. This motion was allowed on August 24, 1988. On the same date, the court also allowed the plaintiff's motion to amend the complaint.

The plaintiff did not serve process on either the bank or the subsequent purchasers following the revival of the action. On October 5, 1988, the bank moved to dismiss the complaint for failure to effect timely service of process in accordance with Mass.R.Civ.P. 4(j), as amended, 402 Mass. 1401 (1988), and 41(b)(2), 365 Mass. 804 (1974). On October 17, 1988, the plaintiff filed an opposition to the bank's motion to dismiss, claiming that the bank had not made out its claim of prejudice resulting from the delay in the service of process or the delay in prosecution of the case. The plaintiff finally served the summons and complaint on the bank and the subsequent purchasers on November 25, 1988, three years and three months after the action had been filed. On June 22, 1989, after hearing, a Superior Court judge found "no prejudice shown by the delay" and denied the bank's motion to dismiss.

This action was stayed by the assent of all parties pending the entry of judgment in no. 19703. All parties recognized that judgment in favor of the bank and subsequent purchasers in no. 19703 would render no. 20499 moot, since valid foreclosure by power of sale forever cuts off a mortgagor's right of redemption. See G.L. c. 244, § 18. No. 20499 was dismissed as moot following summary judgment in favor of the defendants in no. 19703.

The plaintiff appeals from the dismissal of cases no. 19703 and no. 20499. The bank and the individual defendants cross-appeal from the trial judge's denial of the bank's motion to dismiss no. 20499 for failure to effect timely service of process in accordance with rules 4(j) and 41(b)(2).

1. No. 19703. In Hull v. Attleboro Sav. Bank, 25 Mass.App.Ct. 960, 519 N.E.2d 775 (1988), we upheld the grant of summary judgment for the defendants in this case on all questions except for that involving compliance by the bank with the notice provisions contained in G.L. c. 244, § 14, ⁵ as to which we said there was a material issue of fact whether the bank sent mail notice to the plaintiff. Id. at 963, 519 N.E.2d 775. We directed further proceedings on the notice issue only and for consideration of the allowance of the plaintiff's pending motion to amend his complaint by adding a claim under G.L. c. 93A on account of the bank's alleged failure properly to send notice to the plaintiff. Ibid.

Following remand, a Superior Court judge allowed the plaintiff's motion to amend to add the claim pursuant to G.L. c. 93A. The judge also allowed, however, amendments essentially restating allegations as to the plaintiff's mental condition which had been resolved by our decision in 25 Mass.App.Ct. at 961-962. Later, a second Superior Court judge properly struck those allegations. ⁶ See Peterson v. Hopson, 306 Mass. 597, 601-605, 29 N.E.2d 140 (1940); Serody v. Serody, 19 Mass.App.Ct. 411, 412, 474 N.E.2d 1171 (1985). Cf. Jones v. Wayland, 380 Mass. 110, 114 n. 9, 402 N.E.2d 63 (1980). It is of no moment whether the amended complaint (assuming it was effectively served) was answered, as "[f]ailure to file an answer does not preclude success on a timely motion for summary judgment." Jones v. Wayland, supra at 114 n. 8, 402 N.E.2d 63.

On consideration of the materials submitted by the parties, the second Superior Court judge entered a new summary judgment for the defendants after necessarily deciding that there had been sufficient notice to the plaintiff of the foreclosure sale and, consequently, that there had been no violation of c. 93A. There was no error in the entry of summary judgment for the reason, if no other, that the materials before the judge show that the plaintiff had actual notice of the foreclosure sale.

The bank received the following letter (emphasis supplied), signed by the plaintiff, one or two days after its date, October 6, 1982.

"Mr. William Smith

Attleborough Savings Bank

Mortgage Department

16 Park Street

Attleboro, Massachusetts 02703

RE: FORECLOSURE SALE

246 TIFFANY STREET

ATTLEBORO, MASSACHUSETTS 02703

Dear Mr. Smith:

Pursuant to our recent telephone conversation relative to the above-subject locus, I have enclosed a proposed advertisement for your consideration for publication concerning the sale.

I hereby authorize this proposal or one similar in nature to appear in local newspapers and, further, acknowledge that this expense is an ordinary expense incurred pursuant to the statutory power of sale contained in the mortgage.

Thank you for your attention and courtesies in this matter.

Very truly yours,

/s/ Michael T. Hull

Michael T. Hull"

At the top of the enclosure appeared the following:

"By Order of:

Attleborough Savings Bank

Valuable Land and Buildings

to be sold on

October 13, 1982 at 9:30 A.M.

on the premises

246 Tiffany Street Attleboro, Mass." (emphasis supplied).

There followed a more particular description of the property and abbreviated terms of sale than had already appeared in the local newspaper, where the third publication pursuant to G.L. c. 244, § 14, had been completed on September 23, 1982. ⁷ The date, time and place of the proposed foreclosure sale were precisely those set in the advertisement and in the mailed notice to the plaintiff which had been returned as undelivered. Moreover, the cash and balance of payment terms in the proposed advertisement were exactly the same as those in the two formal notices.

There is no real issue of fact as to the plaintiff's signature on the October 6, 1982, letter. See Angelini v. OMD Corp., 410 Mass. 653, 655, 575 N.E.2d 41 (1991). A bank officer, familiar with the plaintiff's signature, identified it as such. In an affidavit, the plaintiff says the signature "appears to be mine." That he also denies preparing the letter and enclosure, having caused them to be prepared, or having any present recollection of seeing or signing them is to no avail. One who signs a writing that is designed to serve as a legal document, as this and its enclosure were, is presumed to know its contents. ⁸ See Connecticut Jr....