IAG Federal Credit Union v. Fripp

10 Mass. L. Rptr. 652
CourtMassachusetts Superior Court
DecidedOctober 27, 1999
DocketNo. 9700213
StatusPublished

This text of 10 Mass. L. Rptr. 652 (IAG Federal Credit Union v. Fripp) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
IAG Federal Credit Union v. Fripp, 10 Mass. L. Rptr. 652 (Mass. Ct. App. 1999).

Opinion

Gershengorn, J.

Plaintiff, IAG Federal Credit Union (“IAG”), brings this action, claiming a mortgage deficiency from the foreclosure sale of property owned by defendants, James N. Fripp and E. Anne Fripp. IAG secured default judgments against defendants for failure to file an answer and obtained an execution of those judgments.

Defendants now move to vacate the default judgments on the grounds that IAG improperly served them with the amended complaint and that they received notice of certain hearings after the hearing dates or not at all. For the reasons stated below, defendants’ motion is denied.

BACKGROUND

On May 6, 1988, defendants bought property located at 5 Sussex Street, Boston, Massachusetts, for $30,000. Defendants borrowed $75,000 from Progressive Consumers Federal Credit Union “Progressive”), $30,000 for the purchase of the house and $45,000 for repairs. Progressive agreed to advance the $45,000 for repairs in three installments provided it approved the defendants’ choice of a contractor. Defendants executed and delivered a promissory note for $75,000 plus interest to Progressive secured by a first mortgage on the 5 Sussex Street properly and a second mortgage on 69 Coleman Street, Boston, Massachusetts, where defendants were then living.

Progressive thereafter approved Bay State Masonry Company (“Bay State”) as defendants’ contractor and advanced the initial installment to defendants. Defendants requested that Progressive not advance the second installment because they were unsatisfied with Bay State’s performance. Progressive, however, advanced a second installment. After much discussion and the City of Boston’s declaration that 5 Sussex Street was uninhabitable, the parties agreed to terminate Bay State’s services and hire another contractor. Defendants, at this time, were current with their mortgage payments.

Defendants hired attorney, Diane Wilkerson (“Ms. Wilkerson”), the now senator, who met with Progressive on numerous occasions regarding 5 Sussex Street. Defendants informed Progressive that they were ceasing their mortgage payments pending resolution of the issues regarding the completion of 5 Sussex Street.

In 1991, Progressive went into receivership. Progressive initiated foreclosure proceedings on 5 Sussex Street and 69 Coleman Street; however, the foreclosure sale only included 5 Sussex Street, not 69 Coleman Street. Progressive bought 5 Sussex Street for $49,000 in June 1992.2 Defendants claim that Progressive then informed them that no further monies were owed.

On January 31, 1994, the National Credit Union Administration liquidated Progressive and assigned defendants’ note to plaintiff, IAG Federal Credit Union (“IAG”). On January 13, 1997,3 IAG filed a complaint against James Fripp.4 IAG claimed that defendants owed it the amount of the mortgage deficiency resulting from the foreclosure sale of 69 Coleman Street.5 IAG thereafter, on January 21, 1997, amended the complaint to add Anne Fripp as a defendant. On February 7, 1997, service of the amended complaint was returned, stating that both defendants had been served at their last and usual address, 69 Coleman Street, on January 31, 1997.

[653]*653Although defendants had not lived at 69 Coleman Street for seven years, a resident there received the amended complaint and informed Anne Fripp that mail had been left at 69 Coleman Street.6 Anne Fripp obtained the amended complaint and notified her husband, James Fripp. Defendants allege that they contacted IAG and informed them that they owed no money and that they no longer lived at 69 Coleman Street and were living apart. Defendants claim that they gave IAG their respective addresses.

The Court does not credit defendants’ affidavits, which only state “upon information and belief’ that they informed IAG of their respective addresses. John Todisco, Jr. (“Todisco”), the attorney for IAG, on the other hand, has filed an affidavit stating that at no time did defendants inform him that 69 Coleman Street was not their correct address. The Court credits Todisco’s testimony by way of affidavit, particularly in light of the continued notification of court filings and orders sent to 69 Coleman Street, at least three of which were admittedly received by defendants, and defendants’ responses, through attorney Elsa M. Diaz-Alonso (“Alonso”), to documents sent to that address. Moreover, defendants failed to notify the Court of their new addresses.

On March 20, 1997, IAG filed a request for default against James Fripp for failure to answer. The Court allowed the default and sent notices on March 21, 1997 to 69 Coleman Street. Thereafter, on March 26, 1997, Alonso sent Todisco a letter, requesting certain documents and confirming a conversation they had that day during which Todisco agreed to a two week extension for Alonso to file an answer.7 Alonso stressed that defendants wanted to avoid litigation. On April 15, 1997, Todisco provided Alonso with the documents she requested. Todisco sent Alonso another letter on May 21, 1997, noting that he received no reply to his April 15 th letter and that she should either offer settlement or file an answer by June 1, 1997, or he would move to default defendants.

On June 17, 1997, IAG requested a default against Anne Fripp for failure to answer, which the Court allowed. Notice of the default was sent to Anne Fripp at 69 Coleman Street.

A hearing for the assessment of damages was scheduled for October 2, 1997 and then rescheduled for October 28, 1997. On October 28, 1997, a damages hearing was held, and IAG requested that a default judgment be entered against James Fripp and Anne Fripp in the amount of $55,442.00 plus attorneys fees. Neither defendants nor Alonso appeared at the hearing. The Court entered the default judgment against James and Anne Fripp in the requested amount.8

On October 29, 1997, Alonso contacted Todisco, who informed her that she should take some action on behalf of defendants. Subsequently, Alonso notified Todisco, by letter dated November 5, 1997, that she received no notice of the hearing held on October 28 and that she, thus, intended to move for a rehearing. On December 2, 1997, Todisco, via letter, once again suggested Alonso take action, specifically request a rehearing, which he would not oppose.

On April 22, 1998, the Court entered a corrected default judgment. On May 4, 1998, execution of the default judgments were issued against both defendants. Subsequently, on October 20, 1998, the then resident of 69 Coleman Street notified James Fripp that a court notice was left at 69 Coleman Street. That notice stated that IAG received judgment and execution against defendants for the mortgage deficiency of 69 Coleman Street.

On December 3, 1998, IAG instituted supplementary process proceedings against defendants in District Court. Notice of a hearing was sent to defendants at 69 Coleman Street. James Fripp received that notice in late December from the then resident. On January 14, 1999, defendants appeared at the supplemental process hearing with a motion to dismiss and/or stay supplemental proceedings. Ultimately, the supplemental process was postponed.

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Bluebook (online)
10 Mass. L. Rptr. 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iag-federal-credit-union-v-fripp-masssuperct-1999.