937 N.E.2d 977
Mass. App. Ct.2010Background
- Property at 207-211 Main Street, Northampton, with six residential and two commercial units; Baldev Singh purchased the property in 1974 and lived there.
- In 2000 Singh borrowed from Florence Savings Bank, secured by a mortgage and an assignment of rents; Singh defaulted in 2004 and reportedly owes over $1 million.
- 207-211 Main Street, LLC (the lender) acquired the mortgage rights and an assignment of rents and recorded a certificate of entry on February 17, 2005.
- LLC possessed the property, maintained it, paid taxes and utilities, collected rents, and sought to foreclose; Singh remained in occupancy but did not pay rent.
- In 2009 a Superior Court judge ruled that foreclosure by entry was completed; Singh challenged, arguing an unsuccessful 2005 Housing Court eviction interrupted peaceable possession and required a new certificate of entry.
- The Superior Court and on appeal the issue was whether the 2005 eviction action interrupted peaceable possession or whether the three-year period since 2005 continued, leading to extinguishment of Singh’s right of redemption and transfer of full title to the LLC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does an unsuccessful eviction interrupt peaceable possession for foreclosure by entry? | Singh: 2005 eviction interrupted peaceable possession, requiring a new certificate. | LLC: possession remained peaceable; no new certificate required. | No; 2005 eviction did not interrupt peaceable possession. |
| Does the three-year peaceable possession clock restart after an interruption? | Singh: clock restarted due to interruption. | LLC: clock continued; no restart. | Clock did not restart; peaceable possession continued. |
| Did the LLC's possession constitute peaceable possession under G. L. c. 244, §§ 1-2 from the date of recording? | Singh: interruption prevented completion of foreclosure by entry. | LLC: possession since 2005 remained peaceable. | Yes; peaceable possession was maintained. |
| Has Singh’s right of redemption been extinguished and has LLC acquired full title? | Singh sought to block eviction and invalidate foreclosure. | LLC’s foreclosure by entry completed; redemption extinguished. | Redemption extinguished; LLC acquired full title. |
Key Cases Cited
- Thompson v. Kenyon, 100 Mass. 108 (Mass. 1868) (definition of peaceable entry and its sufficiency)
- Worcester v. Bennett, 310 Mass. 400 (Mass. 1941) (peaceable possession after entry may satisfy statute)
- Joyner v. Lenox Sav. Bank, 322 Mass. 46 (Mass. 1947) (possession in foreclosure context and implied tenure under mortgagee)
- Bennett v. Conant, 10 Cush. 163 (Mass. 1852) (requirement to act of ownership to interrupt peaceable possession)
- Cunningham v. Davis, 175 Mass. 213 (Mass. 1900) (mortgagor’s occupancy as tenant at sufferance during foreclosure)