Cormier v. Murray

• Court: Massachusetts Appeals Court
• Decided: September 7, 2023
• Docket: AC 22-P-102
• Status: Published

Opinion

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22-P-102 Appeals Court

PHILIP A. CORMIER & another1 vs. DANIEL W. MURRAY.

No. 22-P-102.

Worcester. December 9, 2022. – September 7, 2023.

Present: Rubin, Massing, & D'Angelo, JJ.

Attorney at Law, Approval of title to real estate, Negligence. Negligence, Attorney at law. Practice, Civil, Summary judgment. Real Property, Certificate of title, Encumbrance. Negligence, Causation.

Civil action commenced in the Superior Court Department on July 22, 2020.

The case was heard by Susan E. Sullivan, J., on a motion for summary judgment.

Henry J. Lane for the plaintiffs. Jennifer Cooper Sheehan for the defendant.

RUBIN, J. This is an action alleging negligence and

violation of G. L. c. 93, § 70, brought by the plaintiffs,

Philip A. Cormier and his daughter, Angelique M. Cormier

1 Angelique M. Cormier. 2

(collectively, the Cormiers),2 against the defendant, attorney

Daniel W. Murray. The Cormiers are the purchasers and

mortgagors of a piece of residential lakeside property in

Leicester, Massachusetts. Murray is the closing attorney

retained by the mortgagee, Home Point Financial Corporation

(HPFC). The Cormiers allege that Murray failed to comply with

the requirements of G. L. c. 93, § 70, when he prepared the

statutorily required certificate of title for the property they

purchased, that he was negligent in preparing that certificate,

and that his negligence and violation of the statute caused them

damages. A judge of the Superior Court allowed Murray's motion

for summary judgment, and the Cormiers have appealed. We now

vacate the summary judgment and remand for further proceedings.

1. Background. The property at issue was listed for sale

on or about April 26, 2017. After the Cormiers and the seller

agreed to the terms of purchase, Philip applied for a mortgage

with HPFC. Murray was retained by HPFC to serve as the closing

attorney.

Under G. L. c. 93, § 70, where a loan will be secured by a

purchase money first mortgage on real estate improved with a

dwelling designed to be occupied by not more than four families

and that will be occupied in whole or in part by the mortgagor,

2 Where the Cormiers have the same last name, we refer to them by their first names when referring to them individually. 3

"an attorney acting for or on behalf of the mortgagee shall

render a certification of title to the mortgaged premises to the

mortgagor and to the mortgagee. For the purposes of this

section, said certification shall include a title examination

which covers a period of at least fifty years with the earliest

instrument being a warranty or quitclaim deed." The statute

further provides that "[t]he certification shall include a

statement that at the time of recording the said mortgage, the

mortgagor holds good and sufficient record title to the

mortgaged premises free from all encumbrances, and shall

enumerate exceptions thereto." G. L. c. 93, § 70. Finally, the

statute states that "[t]he term record title, as used herein,

shall mean the records of the registry of deeds or registry

district in which the mortgaged premises lie and relevant

records of registries of probate." Id.

Because this is an appeal from the allowance of a motion

for summary judgment, our review is de novo and we take all

facts in the summary judgment record, and all reasonable

inferences that may be drawn therefrom, in the light most

favorable to the nonmoving party, here, the Cormiers. See

Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372,

376 (2019). Viewing it in that light, the summary judgment

record established that Murray undertook what purported to be a

title search of the subject property. He examined at the 4

registry of deeds only those recorded documents indexed by the

property. On the basis of that search, he prepared a

certificate of title, certifying that upon the recording of the

mortgage, Philip would "hold good and sufficient record title to

the mortgaged premises free from all encumbrances except said

mortgage."3 The certificate of title recited that Murray's

"examination of title cover[ed] a period of at least fifty years

and was confined to the records of the [r]egistry [d]istrict or

the [r]egistry of [d]eeds in which the mortgaged premises lie

and to relevant records of [r]egistries of [p]robate."

In fact, the property was encumbered by a betterment, with

a due and payable balance at the time of the sale of $23,931.42

that was recorded at the registry of deeds. See Rousseau v.

Mesite, 355 Mass. 567, 571 (1969) (betterment assessments are

encumbrances). The Cedar Meadow Lake Watershed District had

recorded a betterment assessment lien on May 23, 2013. It was

indexed under the name of the then-owner of the property, who

3 Although both Philip and Angelique were named on and signed the mortgage, dated July 27, 2017, the date of closing, the certificate of title, also dated that date, named only Philip as the mortgagor. We note that Philip alone signed the initial application for a loan, and that the note, also of the same date as the closing, named Philip as the only borrower and was signed only by him. Neither party suggests that Angelique stands in any different position from Philip, and, while expressing no opinion on the question, we assume for purposes of this decision that that is correct. 5

later sold the property to the Cormiers, rather than under the

property itself.

Because Murray failed to search for records at the registry

of deeds by the names of the owners of the property, searching

instead only by the property, he did not discover this recorded

encumbrance, and thus he incorrectly issued a certificate of

title that asserted that the mortgagor held good and sufficient

record title free of any encumbrances.

Murray did attach to the certificate of title a municipal

lien certificate. That lien certificate indicated that all real

estate taxes were paid on the subject property. At the bottom

right hand of the municipal lien certificate was a notation that

read, "Please call the [a]ssessor at 508-892-7001 for final

betterment payoff. Uncommitted betterment balance is

$23931.42."

Viewing the evidence in the light most favorable to the

Cormiers, it can be inferred from the certificate of title that

Murray either did not see or did not understand this notation to

indicate an encumbrance on the property in the form of a due and

payable betterment in that amount. The certificate of title he

prepared, after stating that the title was free from all

encumbrances except the new mortgage, asserted that the title

was "further subject to the following matters which are

specifically excluded from this certification of title." The 6

third matter listed was, "Such taxes, assessments or municipal

charges that may be due and payable and not shown on the

attached copy of the [c]ertificate of [m]unicipal [l]iens. The

[c]ertificate of [m]unicipal [l]iens indicates that real estate

taxes on the property have been paid through 9/30/2017."

(Emphasis added.)

This was a statement that the property was not encumbered

by any taxes, assessments, or municipal charges not shown on the

certificate of title but shown on the municipal lien

certificate; it was an express statement that, in addition to

any encumbrances listed on the certificate of title, only those

due and payable assessments not shown on the certificate of

title might encumber the property. Further, in indicating that

real estate taxes shown on the municipal lien certificate had

been paid, it reasonably could have been read to imply that that

was the only relevant information to be found on the municipal

lien certificate.

According to his affidavit, at the closing, Murray went

over the certificate of title with the Cormiers. At his

deposition, Philip asserted under oath that he could not recall

whether or not he saw the certificate of title at closing.

2. Discussion. a. Violation of G. L. c. 93, § 70, and

negligence. It is undisputed that Murray was not counsel for

the Cormiers; he was the closing attorney, retained by HPFC, the 7

lender. Nonetheless, G. L. c. 93, § 70, imposed an obligation

on him with respect to the Cormiers.4 He was required under the

statute, for the benefit of the mortgagor, to complete "a title

examination," and he owed a duty to certify only if it were true

in light of "the records of the registry of deeds or registry

records of registries of probate," that when the mortgage was

recorded, the mortgagor would "hold[] good and sufficient record

title to the mortgaged premises free from all encumbrances."

G. L. c. 93, § 70.

With respect to recording, G. L. c. 184, § 25, provides

that "[n]o instrument shall be deemed recorded in due course

unless so recorded . . . as to be indexed in the grantor index

under the name of the owner of record of the real estate

affected at the time of the recording." In light of this, we

cannot say, as a matter of law, that a title search limited to

examining those record documents indexed by the property rather

4 The statute implicitly provides a cause of action for the mortgagor as well as the mortgagee, and states that "[t]he liability of any attorney rendering such certification shall be limited to the amount of the consideration shown on the deed with respect to the mortgagor, and shall be limited to the original principal amount secured by the mortgage with respect to the mortgagee." G. L. c. 93, § 70. The statute also states that the attorney's willful noncompliance with the certification requirement "shall constitute an unfair or deceptive act or practice" under G. L. c. 93A. Id. The Cormiers did not allege a c. 93A claim; they contend that Murray's faulty certification was negligent rather than willful. 8

than by the names of the owners complies with the statute or is

not negligent. And, because the certificate of title did not

mention the betterment as an encumbrance on the title, or even

exclude it from the certificate, even though it was an

encumbrance on the title that was of record, the certificate of

title in this case was in error and did not comply with the

statute.

b. Causation. Murray argues that even if he failed to

comply with the statute or acted in a negligent manner, summary

judgment was still appropriate because, even viewed in the light

most favorable to the Cormiers, the record cannot support a

finding of fact that the erroneous certificate of title caused

the Cormiers injury. We disagree and conclude that there is at

least a genuine issue of material fact with respect to

causation.

Although Philip stated during his deposition that he could

not recall whether he had seen the certificate of title, it is

Murray's testimony that he went over the certificate of title

with the Cormiers. Given the myriad papers that a closing

attorney reviews with a purchaser of residential real estate in

a very short period of time, see e.g., Real Estate Bar Ass'n for

Mass. v. National Real Estate Info. Servs., 459 Mass. 512, 529

n.31 (2011), it is unsurprising that Philip would have no

specific recollection of hearing that the record title to the 9

property he was purchasing was good, sufficient, and

unencumbered. That does not mean he would not have noticed if

he had been told that it was encumbered by a $23,931.42

betterment that he would be obligated to pay. There is thus at

least a genuine issue of material fact how the Cormiers would

have reacted if Murray had discovered the recorded betterment,

included it on the certificate of title, and informed the

Cormiers of it at closing.

Murray also points to several places where the word

betterment appeared in documents that were or might have been

reviewed by the Cormiers. The listing for the property on the

Multiple Listing Service (MLS), a database of residential

properties used by real estate brokers to list properties,

stated that the buyer would "assume outstanding betterment from

lake association settlement." The seller rejected the Cormiers'

first offer, responding with a counteroffer that was identical

except for the addition of language stating the buyer

"acknowledges lake betterment transfers at closing." And the

purchase and sale agreement said that the buyer was "to assume

any and all [s]upplemental [w]ater [d]istrict [t]ax and

betterments."

None of these statements, however, asserted that there was

any particular or any specific amount due on any outstanding

betterment, and, indeed, the one of the most consequence, 10

included in the binding purchase and sale agreement, may be read

as a generic statement that the new owners will be obligated to

pay any betterments that may arise. Thus, even given these

statements, there is a genuine issue of material fact for the

jury about whether the erroneous certificate of title prepared

by Murray caused the Cormiers damage.

3. Conclusion. The summary judgment entered in favor of

the defendant is vacated, and the case is remanded for further

proceedings consistent with this opinion.

So ordered.