Bartlett v. Smith

Massachusetts Appeals Court

Bartlett v. Smith

406 N.E.2d 414, 10 Mass. App. Ct. 820, 1980 Mass. App. LEXIS 1216

CourtMassachusetts Appeals Court

DecidedJune 30, 1980

StatusPublished

Cited by1 cases

This text of 406 N.E.2d 414 (Bartlett v. Smith) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bartlett v. Smith, 406 N.E.2d 414, 10 Mass. App. Ct. 820, 1980 Mass. App. LEXIS 1216 (Mass. Ct. App. 1980).

Pincite

Opinion

The defendant is appealing from that part of a judgment entered in the Superior Court denying his claim for counsel fees and expenses incurred in the present action to enjoin foreclosure and to redeem and discharge the mortgage and in two of three prior related actions¹ in which he and the plaintiffs were involved.

Pursuant to G. L. c. 231, § 6G, a single justice of this court has previously heard and ruled on the two earlier cases (Nos. 38190 & 38465). As no question of the propriety of those orders is before us, we need not discuss either of them any further.

As to the instant case (No. 39095), we agree with the reasoning and determination of the Superior Court judge that this “action . . . was occasioned ... by the improper [refusal] of the mortgagee [defendant] to accept the proper tender by the mortgagor [plaintiffs] of the mortgage indebtedness,” and as such, the legal fees and costs of these proceedings are not collectible as part of the mortgage indebtedness. See Bangs v. Fallon, 179 Mass. 77, 85 (1901); Leventhal v. Krinsky, 325 Mass. 336, 341 (1950). Under the provisions of the mortgage note, the defendant was entitled only to the fees and costs arising out of and incidental to the foreclosure action. See id. at 343.

Neither party is to have costs of appeal. Mass.R.A.P. 26(a), 365 Mass. 873 (1974).

Judgment affirmed.

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The defendant is appealing from that part of a judgment entered in the Superior Court denying his claim for counsel fees and expenses incurred in the present action to enjoin foreclosure and to redeem and discharge the mortgage and in two of three prior related actions¹ in which he and the plaintiffs were involved.

Pursuant to G. L. c. 231, § 6G, a single justice of this court has previously heard and ruled on the two earlier cases (Nos. 38190 & 38465). As no question of the propriety of those orders is before us, we need not discuss either of them any further.

As to the instant case (No. 39095), we agree with the reasoning and determination of the Superior Court judge that this “action . . . was occasioned ... by the improper [refusal] of the mortgagee [defendant] to accept the proper tender by the mortgagor [plaintiffs] of the mortgage indebtedness,” and as such, the legal fees and costs of these proceedings are not collectible as part of the mortgage indebtedness. See Bangs v. Fallon, 179 Mass. 77, 85 (1901); Leventhal v. Krinsky, 325 Mass. 336, 341 (1950). Under the provisions of the mortgage note, the defendant was entitled only to the fees and costs arising out of and incidental to the foreclosure action. See id. at 343.

Neither party is to have costs of appeal. Mass.R.A.P. 26(a), 365 Mass. 873 (1974).

Judgment affirmed.

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Bluebook (online)

406 N.E.2d 414, 10 Mass. App. Ct. 820, 1980 Mass. App. LEXIS 1216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartlett-v-smith-massappct-1980.

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