PENNYMAC LOAN SERVICES, LLC v. PETER NATSIOS, Trustee, & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1210
PENNYMAC LOAN SERVICES, LLC
vs.
PETER NATSIOS, trustee, 1 & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Land Court judge granted the plaintiff's motion for
summary judgment in a quiet title action on one of two issues
submitted, and declared that the plaintiff had a valid mortgage
on all four adjacent lots comprising the property at issue,
despite a typographical error in part of the mortgage's property
description referring to only one of the four lots. Defendant
Peter Natsios, in his role as trustee of the 173 Kingsley Road
Realty Trust (trustee), appeals, claiming that the intent of the
parties to the mortgage was a disputed fact that should have
been resolved at trial. We affirm.
1 Of the 173 Kingsley Road Hull Realty Trust.
2 Therese Marcel and Pilgrim Investors, LLC. Neither of those
defendants has participated in this appeal.
Background. The material, undisputed facts are as follows.
In 2002, Therese Marcel purchased a residential property located
at 173 Kingsley Road in Hull. The recorded deed (2002 deed)
conveyed to Marcel lots 222, 223, 224, and 225, as labeled in a
previously recorded plan of the area.
In September 2009, Marcel took out a new loan on her
property to refinance two existing loans, both of which were
secured by mortgages encumbering all four lots. In connection
with the new loan, she granted a mortgage to a nominee of Bank
of America, N.A. (2009 mortgage), which was later assigned to
the plaintiff, PennyMac Loan Services, LLC (PennyMac). The
mortgaged property was identified as "173 Kingsley Road, Hull"
and described in an attached property description as: "All that
parcel of land in township of Hull, Plymouth County . . . being
shown as lots 225 through 225 inclusive being more fully
described by deed in book 22171, page 187, filed on 05/30/2002"
(emphasis added). The deed referenced in the description is the
2002 deed to Marcel.
PennyMac foreclosed on the 2009 mortgage in 2018. After
selling the property to itself at auction, PennyMac entered into
a purchase and sale agreement with the trustee. In 2019,
apparently having learned of the potential discrepancy between
the 2009 mortgage and the 2002 deed, the trustee paid $1,000 to
Marcel for a quitclaim deed purporting to convey lots 222, 223,
2
and 224. The trustee then cancelled his purchase and sale
agreement with PennyMac.
In response, PennyMac brought this suit seeking, among
other remedies, either a declaration that the 2009 mortgage, as
written, encumbered all four lots, or reformation of the 2009
mortgage based on the mutual mistake of the parties. The judge
ordered summary judgment for PennyMac on the former claim and
dismissed the reformation claim as moot. 3
Discussion. We review the judge's grant of summary
judgment de novo to determine whether the undisputed material
facts, when viewed in the light most favorable to the trustee,
entitle PennyMac to judgment as a matter of law. See Miller v.
Cotter, 448 Mass. 671, 676 (2007); Augat, Inc. v. Liberty Mut.
Ins. Co., 410 Mass. 117, 120 (1991). In this case, we agree
with the judge that PennyMac was entitled to summary judgment
based on the language of the 2009 mortgage alone.
"The basic principle governing the interpretation of deeds
is that their meaning, derived from the presumed intent of the
grantor, is to be ascertained from the words used in the written
instrument, construed when necessary in the light of the
3 The judge ruled against PennyMac on the second issue submitted,
concluding that PennyMac's 2018 foreclosure was ineffective
because the notice of sale's property description did not put
potential purchasers sufficiently on notice that all four lots
were to be auctioned. PennyMac has not cross-appealed from that
portion of the judgment.
3
attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct.
175, 179 (1998). Interpretation of a deed or similar conveyance
presents an issue of law appropriate for summary judgment when,
looking at the conveyance as a whole, the intent of the parties
may be ascertained. See Sullivan v. O'Connor, 81 Mass. App. Ct.
200, 204-205 (2012).
It is well settled that reference to a deed in a conveyance
has "the same effect as if the entire description in that deed
had been copied into each conveyance" unless the copied
description would be "inconsistent" with a more particular grant
in the conveyance. Abbott v. Frazier, 240 Mass. 586, 593
(1922). See Coogan v. Burling Mills, 124 Mass. 390, 393 (1878)
("[A]ll the deeds referred to must be taken into account in
determining what is conveyed"); Foss v. Crisp, 20 Pick. 121,
123-124 (1838). See also In re Adams, 462 B.R. 1, 5 n.28
(Bankr. D. Mass. 2011), citing Abbott, supra. In each of those
cases, a conveyance described land both in particular terms and
by reference to a deed that described additional land; those
descriptions were treated as not inconsistent, and the
additional land was held to be included in the conveyance. See
4
Abbott, supra at 593-594; Coogan, supra at 392-393; Foss, supra;
Adams, supra. 4
Here, we agree with the judge that the 2009 mortgage's
reference to the 2002 deed is properly read to encumber all four
lots conveyed in that deed. The purported encumbrance of "lots
225 through 225 inclusive" in the 2009 mortgage's property
description, although more specific than the grant in the
referenced deed, is nevertheless not "inconsistent" with that
deed, Abbott, 240 Mass. at 593, where no language in the
property description excludes lots 222, 223, and 224. See
Adams, 462 B.R. at 5 ("Although the [d]eed's property
description enlarges the [m]ortgage's property description
. . ., the descriptions are not inconsistent, because both can
be given effect at the same time -- they are not mutually
exclusive"). Moreover, where the grant states that the
mortgaged parcel was "more fully described" by the 2002 deed, we
think it evident that the reference was "used in order to make
sure that the whole estate of the grantors was covered."
4 On appeal, the trustee cites In re Benton, 563 B.R. 113, 124
(Bankr. D. Mass. 2017) for the proposition that where a deed
incorporates a recorded plan, the plan will control if
inconsistent with the deed. Passing over whether the case
stands for such a proposition, we note that the trustee does not
point to, nor do we see, any inconsistency between the 2009
mortgage (whether interpreted to encumber one lot or four) and
the plan that it references, which depicts all four lots along
with hundreds of others.
5
Coogan, 124 Mass. at 393. See Foss, 20 Pick. at 124 (where
particular description omitted metes and bounds but deed
"referred to the records for the certainty of the description of
that part of the granted premises, . . . the reference [was] to
be considered as included in the conveyance").
Further, although the phrase "lots 225 through 225
inclusive" plainly includes some error, the phrase itself tells
us that that error is most likely in one of the lot numbers.
The phrase as a whole indicates that more than one lot was
intended (because otherwise the plural "lots" and the words
"through" and inclusive" would make no sense) and that more than
two lots were intended (because otherwise the description would
have said "lots X and Y" instead of using the words "through"
and "inclusive"). 5 That the mortgaged property description's
phrase "lots 225 through 225 inclusive" contains an error that
requires some interpretation does not render the entire property
description ambiguous. Examination of the description as a
whole, including the deed it references, allowed the judge, and
5 We are unpersuaded by the trustee's argument that the 2009
mortgage may reasonably be interpreted to refer merely to a
single "parcel." To be sure, the 2002 deed, while describing
lots 224 and 225 by their metes and bounds and by reference to a
recorded plan, also refers to them as "Parcel 1," and it
similarly refers to lots 222 and 223 as "Parcel 2." But the
2009 mortgage makes no reference to parcels one and two; instead
it refers to "lots . . . more fully described by" the 2002 deed
(emphasis added).
6
allows us, to determine that the mortgage encumbers all four
lots.
The trustee nevertheless contends that the judge
erroneously granted summary judgment where there was a factual
dispute remaining (based on the 2019 quitclaim deed and a later
affidavit signed by Marcel) over whether the reference to "lots
225 through 225 inclusive" in the 2009 mortgage was a mutual
mistake of the parties. If reformation of the mortgage were
necessary to resolve the interpretive problem in the
description, PennyMac would have been required to show mutual
mistake. As discussed, however, reformation of the mortgage was
unnecessary, because the intent of the parties may be
ascertained by examining the mortgage document and the deed that
it incorporates.
Judgment affirmed.
By the Court (Milkey, Blake &
Sacks, JJ. 6),
Clerk
Entered: October 5, 2023.
6 The panelists are listed in order of seniority.
7