Shawmut Bank, N.A. v. Duffy

3 Mass. L. Rptr. 350
CourtMassachusetts Superior Court
DecidedMarch 2, 1995
DocketNo. 93-4327
StatusPublished

This text of 3 Mass. L. Rptr. 350 (Shawmut Bank, N.A. v. Duffy) 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
Shawmut Bank, N.A. v. Duffy, 3 Mass. L. Rptr. 350 (Mass. Ct. App. 1995).

Opinion

Whitehead, J.

Plaintiff Shawmut Bank, N.A. (“Shawmut”) seeks recovery against defendants James P. Duffy (“Duffy”) and John D. Doucette (“Doucette”), on four promissory notes. In addition to the remaining outstanding balances due on the notes, Shawmut seeks accrued interest, costs, expenses of collection, and attorney’s fees. Shawmut has moved for summary judgment pursuant to Mass.R.Civ. P. 56(c).

BACKGROUND

On December 18, 1986, Duffy and Doucette executed two demand promissory notes.2 The first note was in the amount of $158,000.00, and was secured by a mortgage on property located at 779-781 Westford Street, Lowell, Massachusetts. The second note was in the amount of $205,000.00, and was secured by a mortgage on property located at 199-201 Wilder Street, Lowell, Massachusetts. The initial interest rate on each note was 10.25%. Beginning on June 10, 1988, and at the end of each successive twelve month period thereafter, the interest rates were to be adjusted to 2% per annum over the bank’s average prime rate for the previous twelve month period. Each mortgage provided at ¶11:

If the mortgagee shall become involved in any action or course of conduct with respect to the premises ... in order to protect its interest therein, including without limitation: the mortgagee’s commencement and prosecution of foreclosure proceedings .. . The mortgagee’s entering the premises care and management thereof.. . The mortgager shall reimburse the mortgagee for all charges, costs and expenses incurred by the mortgagee in connection therewith, including without limitation attorney’s fees . . .

Duffy and Doucette ultimately defaulted on their obligations under the notes.3

On January 27,1992, Duffy and Doucette executed two additional interest-free promissory notes to bring the prior loans current. The first additional note was in the amount of $12,305.76, payable in full two (2) years from date. The second additional note was in the amount of $15,511.00, also payable in full two (2) years from date. Each additional promissory note provided:

The undersigned agree [sic] to pay to the holder hereof, on demand, all expenses of every kind, including reasonable attorneys’ fees which the holder may incur in the enforcement and collection of this note, or of any of the rights of the holder hereunder, or any of its rights contained in the mortgage given as security for this note.

In consideration of Duffy’s and Doucette’s agreement to execute the additional notes, Shawmut reduced the interest rate on the original notes from 10.25% and 2.0% over prime, to 8.5% per annum.4 As with the original notes, Duffy and Doucette were unable to meet their obligations under the new promissory notes.

By letters dated November 25, 1992, Shawmut, through its attorney Annmarie Roark (“Roark”), in[351]*351formed Duffy and Doucette of their default under all of the notes and demanded payment of the outstanding balances then due. Duffy and Doucette did not make payment.

On December 9, 1992, Complaints to Foreclose the mortgages were filed with the Massachusetts Land Court (Nos. 187-247 and 187-248). On December 10, 1992, the Land Court issued Orders of Notice with respect to the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. Copies of the Orders of Notice were recorded with the Middlesex County (Northern District) Registry of Deeds on December 23,1992, in Book 6276, Pages 38 and 39, published in the Lowell Sun not less than twenty-one (21) days before the return date, served upon defendants via deputy sheriff, and sent to each defendant by certified mail, return receipt requested, not less than fourteen (14) days before the return date.

Returns on the Orders of Notice were made to the Land Court on January 15, 1993. Judgment was entered on February 2, 1993, authorizing Shawmut to make entry and foreclose the mortgages.

By letters dated March 15, 1993, Roark notified Duffy and Doucette of Shawmut’s intention to foreclose on the mortgages and sell 779-781 Westford Street and 199-201 Wilder Street. Roark also notified defendants of their potential liability for any deficiency, should the foreclosure sale proceeds be insufficient to extinguish the outstanding debts.

The foreclosure proceedings were conducted by the Jumpp Company, Inc., real estate appraisers and auctioneers. During the weeks beginning March 19, March 26, and April 2, 1993, a notice entitled “Mortgagee’s Sale of Real Estate” was published in the Lowell Sun. Promotional advertising appeared in the Boston Herald on April 4, 1993, and in the Lowell Sun on April 4, 7, and 11, 1993.

The foreclosure sales were held on April 16, 1993 at 10:00 a.m. and 11:00 a.m. There were seven qualified bidders present at each sale. The property located at 779-781 Westford Street sold for $41,000.00, and the property located at 199-201 Wilder Street sold for $44,000.00.

As of May 18, 1993, the outstanding balance due and payable on the $158,000.00 note was $120,103.24, with interest accruing at the rate of $25.99 per diem. As of May 18, 1993, the outstanding balance due and payable on the $205,000.00 note was $165,537.75, with interest accruing at the rate of $35.89 per diem. The amounts due on the additional promissory notes were $12,305.76 and $15,511.64.

DISCUSSION

I. Summary Judgment Standard

Summary judgment shall be granted where there are no genuine issues as to any material fact in dispute and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, “and [further,] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). “Acomplete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex v. Catrett, 477 U.S. 317, 322 (1986).

II. The Promissory Notes

Shawmut is entitled to summary judgment on its claims under the promissory notes. It has produced verified copies of all four promissory notes, and there is no dispute that Duffy and Doucette executed the notes and defaulted on same. Having produced the notes, and established the genuineness of the signatures, Shawmut cast on Duffy and Doucette the burden of establishing a defense. See G.L. c. 106, §3-307(2); Coupounas v. Madden, 401 Mass. 125, 129 (1987); Guinness Import Co. v. DeStefano, 25 Mass.App.Ct. 366 (1988). To defeat summary judgment, Duffy and Doucette must, by proper affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Guinness, supra at 367. See Mass.R.Civ. P. 56(c). They have not done so.5

Duffy and Doucette agree that as a general rule, a fiduciary relationship does not arise out of a lender-borrower relationship.

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