951 N.E.2d 999
Mass. App. Ct.2011Background
- Plaintiffs obtained and recorded a general attachment against all of McMenimen's right, title and interest in real estate in Hampshire County.
- McMenimen acquired the property on June 8, 2006 and granted a mortgage on it on the same date to MERS; neither deed nor mortgage was recorded until October 13, 2006.
- The attachment, recorded September 22, 2006, would have shown McMenimen as owner only if records were examined, despite the earlier transfer and mortgage.
- Plaintiffs sued for a determination that their attachment is superior to the unrecorded mortgage held by Specialty Mortgage.
- Lower court held the attachment subordinate to the mortgage because it predated recording and did not cover after-acquired property.
- Massachusetts courts held attachments can reach unrecorded interests and can take priority over unrecorded mortgages when properly created.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a general writ of attachment reaches unrecorded interests in land | Attachment language reaches both recorded and unrecorded interests. | Attachment must name record owner and may be limited by recording statutes. | Yes; general writ can reach unrecorded interests. |
| Whether attachment has priority over a prior unrecorded mortgage | Attachment takes status of purchaser for value and has priority under recording statute. | Unrecorded mortgage defeats attachment or is superior if recorded later. | Attachment prevails over prior unrecorded mortgage. |
| Whether a nominee trust or trust ownership affects attachment reach | Attachment should reach the trust beneficiary's interest via the record owner. | Trust form could shield property from attachment if not properly named. | Attachment reaches property; record owner is the trust; nominee status not collapseable. |
Key Cases Cited
- Shamrock, Inc. v. Federal Deposit Ins. Corp., 36 Mass. App. Ct. 162 (1994) (attachment may reach after-acquired interests by scope of writ)
- M’Mechan v. Griffing, 9 Pick. 537 (1830) (general attachment can encumber interests of owner)
- Taylor v. Mixter, 11 Pick. 341 (1831) (broad language of attachment binds land)
- Jones v. Mitchell, 158 Mass. 385 (1893) (absence of name on writ does not invalidate attachment ab initio)
- Woodward v. Sartwell, 129 Mass. 210 (1880) (attachment priority when status equals purchaser for value)
- Haynes v. Jones, 5 Met. 292 (1842) (conduit to pass title not attachable unless direct interest exists)