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No 12-320-03 - SNOWDEN, et al. v. CHASE MANHATTAN MORTGAGE CORP., et al. - Full-text reviews

SNOWDEN, et al. v. CHASE MANHATTAN MORTGAGE CORP. This is a class suit in which the claimants (Snowdens) claim that the respondent Chase Manhattan Mortgage Company (Chase) and the corporate official have infringed the Act through dishonest and misleading actions and practice.

Claimants acknowledge that they were in arrears with their mortgage and that they promptly receive notification that Chase intends to enforce its right to sell and enforce its home in 1028 Main Street, Athol, Massachusetts. Claimants allege that the Respondents infringed the Act by failing to defer an auctions of their home because they provided proof that the Respondents found a willing and strong financial purchaser who subscribed to a listing form for the real estate at a cost that would have resulted in full settlement of the Respondents' obligations under the Memorandum.

Claimants demand a statement of their legal position and damage, which includes the allocation of legal costs. 1 ] Defendant Chase has filed a motion for summation under Mass. P. 56 on the ground that they are eligible for legal assistance on the ground that (1) the claimants were in arrears and (2) Chase respected the laws on the exercising of the right to sell under a mortgage.

Snowdens granted a mortgage on the 1208 Main St. Athol, Massachusetts site to Sherwood Mortgage Group Inc. on or about October 29, 1999. Sherwood transferred the grade and mortgage on October 29, 1999 to First Union Mortgage Corporation, which transferred the grade and mortgage on July 31, 2000 to Chase.

Due to the non-payment of Snowdens, the mortgage was in arrears. Chase initiated enforcement action on 4 October 2002 and finally planned a forced sales on 19 December 2002. In good time, the claimants were informed that the security right over real property creditor planned to exert its sales force within the framework of the mortgage through a tender.

Claimants immediately took action to defend their interests and prevent enforcement by using the service of a realtor, Godin Estate, to resell the house. Ms Snowden approached Chase's lawyer on 18 December 2002, the eve of the sale, explaining that she had a purchaser for the deed.

It was at this point that Mrs Snowden asked for the sale to be delayed while she was securing the purchaser. At the end of the date, December 18, 2002, the Snowdens fax a copy of an offering to buy the plaintiff's house for $155,000 (signed by the potential purchaser and the plaintiffs) to Chase's lawyer and to Chase at the lawyer's option.

Refer to Annex 7 to the applicants' affidavits. 2 ] The bid was backed by a security deposited by the potential purchaser in an escrow account and there was no possibility of funding. Lynn M. Snowden telephoned the lawyer's office which represents the respondent belatedly to acknowledge reception of the facsimile and was advised that an acceptance of the bid alone was not enough and that evidence that the purchaser was actually in a position to acquire the real estate was necessary.

Another facsimile was sent to the lawyer's office stating that the potential buyer's home purchaser had been granted a mortgage credit of an amount to allow him to make the transaction. Chase and its lawyers "reviewed" the bid and the application to defer the sales for several several weeks on 19 December 2002[3] and resolved to continue the planned public tender this evening.

Mr Snowden applied again for a relocation at the moment and place of the sale so that his purchaser could shut down the site; this application was again rejected. Compulsory sale took place on 19 December 2002 at 15:00 and the real estate was auctioned off to the highest bidding Mel Thomas.

Thereafter, the potential purchaser found by the claimants narrowed his bid to $140,000. Following the rejection of the plaintiff's application for a temporary restraining order, ownership was transferred to Mel Thomas by way of a levy of execution on 14 February 2003. Claimants claim compensation for the $155,000 difference between the initial tender bid and the $140,000 change in tender bid.

The standard for summarizing judgement. It is appropriate to give a summative judgement if there is no real question on an essential fact and the agitating Party is legally bound. Where the facts at issue are present, they are consistent with the summative ruling only if they have a substantial influence on the case.

"In the event that the mobile part finds that there is no tribal matter, the opponent of the application must reply and submit facts specifically proving the presence of a real question of substantive fact in order to reject the application for a summative decision. Seizure proceedings on the basis of debt certificates are particularly suitable for deciding on an application for an expedited procedure.

It is also our legal requirement that, if necessary, a "summary judgment" may be issued against the person relocating. The obligation of the mortgage holder to act in good faith, care and fairness. 377, 382-83 (1994), the Supreme Court found that "the Act regulating the liability of a mortgage holder to a mortgage creditor in the execution of a right to sell is relatively simple.

Mortgage creditors must act in good faith and take due care to safeguard the interests of the mortgage holder. A mortgage holder's obligation is more demanding when he becomes the acquirer of the real estate. If one of the parties entrusted with the sales mandate also tries to become a customer, it shall be obliged to act as the strongest trustee and with the greatest care to safeguard the client's legal interests.

In accordance with these demands, the security right over real property creditor is obliged to "achieve the highest possible price" for the real estate (quotations and in-house offers are omitted). 493, 496 (1935), "[t]he mortgage creditor is a fiduciary for the good of all interested people. 243, 247 (1916)("The respondent in exercising the right of resale was obliged to exert the greatest possible good faith to protect the right of the proprietor of the right of resale...").

"Where a mortgage is foreclosed, even in the event of a real delay, with malicious intent to the disadvantage of the mortgage debtor, a claim is lied...". In contrast to the Williams, supra case, where the mortgage creditor was negotiated at the last moment on conditions that would not have resulted in a full repayment for the mortgage creditor, the claimants here had a purchaser who was willing to make about $60,000 over the repayment capital charge, which would have resulted in a full repayment of the amount due to the mortgage creditor, plus the charges, and provided some resources for the claimants.

Although it is undisputed that the claimants neglected to make multiple mortgage repayments and Chase therefore had a statutory right to use its right to sell, the Act demands that it "exercise extreme fidelity", Taylor, 233 Mass. 247, and take due care to safeguard the interests of the defaulter homeowner.

101, 103 (1938) (A mortgage debtor has a ground for a tortious act against the mortgage creditor despite the presence of a delay when a levy of execution is executed by negligence or in bad faith); Fenton v. Torrey, 133 Mass. 138, 139 (1882) (Anyone who commits to exercising the right to sell in a mortgage must act in good faith and with due consideration to the interests of the principal).

The security right over real property creditor cannot protect himself in such situations "by literally observing the provisions resulting from the provisions of the authorisation. 353, 357 (1874), the security right over real property creditor had known before the auctions ('1') that a purchaser had been found for the real estate by the claimants, ('2') that the potential purchaser had entered into a legal obligation to buy the real estate, ('3') that the purchaser had not made the bid on the basis that he would ensure the funding,

4 ) that the purchaser had a firm obligation to sell his own house to another party who had obtained the finance, and 5 ) that the purchaser was willing to make a payment for the plaintiff's house which would lead to full repayment of all the amount due to the security right holder, plus his expenses, under the grade and mortgage.

In addition, under the conditions of the forced sales by a forced sales procedure set up by the security right owner, anyone who would buy the real estate at an auction had 30 working days after the date of the sales to settle the remainder of the sales proceeds. Thus, the security right holder was prepared to allow a fair amount of money to anyone who purchased the house at an auction to buy it, but was not prepared to prolong a fair amount of money to the claimants, the rightful owner of the real estate, who had won a purchaser for it at a normal commercial value.

However, the real estate lien creditor's view that he nevertheless had the right to continue the auctions and to resell the real estate in such conditions because the claimants were previously in arrears is to increase adherence to the formality necessary to perform the contractually agreed authority to purchase the mortgage on the trust commitment he owe to the real estate lien creditor and the requirement of fundamental equity.

In other respects, homeownership is a key contributor to the well-being of our municipalities, such as the paying of land tax by house owners and the stable nature of residential properties in neighbourhoods. It is a case in which a household which had its own house with a mortgage suffers the financial havoc of losing a spouse's job and being unable to afford the mortgage.

Claimants took prudent action to ensure a buyer for their home at a commercial interest so that they could fully repay the mortgage creditor and get back the capital they had deserved during the times they were owning the real estate and paid the mortgage. Claimants did not ask Chase to change the mortgage or bill conditions or to agree to a reduced interest charge payable, but merely to defer the enforcement sales for a fair amount of money and further consider a deal that would have resulted in enough money to repay the amount due on the bill and fully refund the mortgage creditor's expenses, while the extended amount available to the extended household can be used for another home.

By refusing to defer the enforcement sales, the respondent was acting in breach of an obligation which it owe to the claimants and which led them to damage. However, the CFI does not come to that finding by ignoring or reducing Chase's legitimate interest in the protection of the securities for its credit or by finally reclaiming all the monies due under the promissory notes, inclusive of debt recovery charges.

There' s nothing in the file in front of me that indicates that Chase incurred a cash drain by delaying the sell. However, a delay in the auctions would have provided a suitable occasion for the claimants to maximise their returns on home sales. As a result of these facts, the respondent Chase has not fulfilled its duty to act with the highest degree of good faith and due care to safeguard the interests of the claimants.

Even though the claimants have not filed a counterclaim for expedited trial, the tribunal is free to make a judgement on the claimants' question of liabilities in such circumstance. Building on this, the respondent Chase, as lien holder, did not fulfil his obligation due to the claimants by not delaying the sale by tender in order to sensibly examine a legal tender for the sale of the real estate and thus achieve the highest possible bid for the real estate.

On the above grounds, it is hereby ORDERED and CONDEMNED that, although the Respondent may have satisfied Chase's legal requirements regarding the sealing off of immovable properties mortgage, Chase is not liable for any damages arising out of or in connection with the use of such properties, that it did not defer the sale by public sale in order to allow further investigation of the potential buyer's viability received from the claimants, that it failed to fulfil its obligation to act in good faith, that it failed to fulfil its obligation of loyalty to the claimants to obtain the highest possible prize for the immovable and that it constitutes an improper or misleading act or conduct contrary to G.

Therefore, Chase's application for a summative ruling is dismissed and a summative ruling on G.L. c. 84A, 9 against Chase's liabilities is permitted only against Chase with respect to the claimants. This case should be settled for an evaluation of the damage, as well as an allocation of legal costs, against the respondent Chase.

The applicants also filed injunctions claims which were rejected at an early phase of the procedure. To sell the plaintiffs' house at such a cost would have resulted in a full mortgage payout to the mortgage creditor, leaving up to $50,000 to be used by the claimants as a down pay on another plot of land.

3 ] There is no proof of the type of examination carried out by the respondent, and accordingly I will not make any assumption about it. Claimants claim that Mr. Thomas was "the highest seeming offeror with a price of allegedly one buck over the mortgage credit. At 31 December 2002 there were no records of the sale by sale or the mortgage letter in the Worcester register of documents.

" Joint declaration by the applicants, paragraph 20-21. There is no proof that claimants intentionally delayed their attempts to find a willing purchaser; in fact, there is no proof of the parties' actions from the moment of defaulted performance to the announcement of enforcement. Therefore, I consider that both sides were acting in good faith, at least until the date on which the respondent was requested to defer the sales.

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