Cormier v. Murray ( 2023 )

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22-P-102 Appeals Court
PHILIP A. CORMIER & another1 vs. DANIEL W. MURRAY.
No. 22-P-102.
Worcester. December 9, 2022. – September 7, 2023.
Present: Rubin, Massing, & D'Angelo, JJ.
Attorney at Law, Approval of title to real estate, Negligence.
Negligence, Attorney at law. Practice, Civil, Summary
judgment. Real Property, Certificate of title,
Encumbrance. Negligence, Causation.
Civil action commenced in the Superior Court Department on
July 22, 2020.
The case was heard by Susan E. Sullivan, J., on a motion
for summary judgment.
Henry J. Lane for the plaintiffs.
Jennifer Cooper Sheehan for the defendant.
RUBIN, J. This is an action alleging negligence and
violation of G. L. c. 93, § 70, brought by the plaintiffs,
Philip A. Cormier and his daughter, Angelique M. Cormier
1 Angelique M. Cormier.
2
(collectively, the Cormiers),2 against the defendant, attorney
Daniel W. Murray. The Cormiers are the purchasers and
mortgagors of a piece of residential lakeside property in
Leicester, Massachusetts. Murray is the closing attorney
retained by the mortgagee, Home Point Financial Corporation
(HPFC). The Cormiers allege that Murray failed to comply with
the requirements of G. L. c. 93, § 70, when he prepared the
statutorily required certificate of title for the property they
purchased, that he was negligent in preparing that certificate,
and that his negligence and violation of the statute caused them
damages. A judge of the Superior Court allowed Murray's motion
for summary judgment, and the Cormiers have appealed. We now
vacate the summary judgment and remand for further proceedings.
1. Background. The property at issue was listed for sale
on or about April 26, 2017. After the Cormiers and the seller
agreed to the terms of purchase, Philip applied for a mortgage
with HPFC. Murray was retained by HPFC to serve as the closing
attorney.
Under G. L. c. 93, § 70, where a loan will be secured by a
purchase money first mortgage on real estate improved with a
dwelling designed to be occupied by not more than four families
and that will be occupied in whole or in part by the mortgagor,
2 Where the Cormiers have the same last name, we refer to
them by their first names when referring to them individually.
3
"an attorney acting for or on behalf of the mortgagee shall
render a certification of title to the mortgaged premises to the
mortgagor and to the mortgagee. For the purposes of this
section, said certification shall include a title examination
which covers a period of at least fifty years with the earliest
instrument being a warranty or quitclaim deed." The statute
further provides that "[t]he certification shall include a
statement that at the time of recording the said mortgage, the
mortgagor holds good and sufficient record title to the
mortgaged premises free from all encumbrances, and shall
enumerate exceptions thereto." G. L. c. 93, § 70. Finally, the
statute states that "[t]he term record title, as used herein,
shall mean the records of the registry of deeds or registry
district in which the mortgaged premises lie and relevant
records of registries of probate." Id.
Because this is an appeal from the allowance of a motion
for summary judgment, our review is de novo and we take all
facts in the summary judgment record, and all reasonable
inferences that may be drawn therefrom, in the light most
favorable to the nonmoving party, here, the Cormiers. See
Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372,
376 (2019). Viewing it in that light, the summary judgment
record established that Murray undertook what purported to be a
title search of the subject property. He examined at the
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registry of deeds only those recorded documents indexed by the
property. On the basis of that search, he prepared a
certificate of title, certifying that upon the recording of the
mortgage, Philip would "hold good and sufficient record title to
the mortgaged premises free from all encumbrances except said
mortgage."3 The certificate of title recited that Murray's
"examination of title cover[ed] a period of at least fifty years
and was confined to the records of the [r]egistry [d]istrict or
the [r]egistry of [d]eeds in which the mortgaged premises lie
and to relevant records of [r]egistries of [p]robate."
In fact, the property was encumbered by a betterment, with
a due and payable balance at the time of the sale of $23,931.42
that was recorded at the registry of deeds. See Rousseau v.
Mesite, 355 Mass. 567, 571 (1969) (betterment assessments are
encumbrances). The Cedar Meadow Lake Watershed District had
recorded a betterment assessment lien on May 23, 2013. It was
indexed under the name of the then-owner of the property, who
3 Although both Philip and Angelique were named on and
signed the mortgage, dated July 27, 2017, the date of closing,
the certificate of title, also dated that date, named only
Philip as the mortgagor. We note that Philip alone signed the
initial application for a loan, and that the note, also of the
same date as the closing, named Philip as the only borrower and
was signed only by him. Neither party suggests that Angelique
stands in any different position from Philip, and, while
expressing no opinion on the question, we assume for purposes of
this decision that that is correct.
5
later sold the property to the Cormiers, rather than under the
property itself.
Because Murray failed to search for records at the registry
of deeds by the names of the owners of the property, searching
instead only by the property, he did not discover this recorded
encumbrance, and thus he incorrectly issued a certificate of
title that asserted that the mortgagor held good and sufficient
record title free of any encumbrances.
Murray did attach to the certificate of title a municipal
lien certificate. That lien certificate indicated that all real
estate taxes were paid on the subject property. At the bottom
right hand of the municipal lien certificate was a notation that
read, "Please call the [a]ssessor at 508-892-7001 for final
betterment payoff. Uncommitted betterment balance is
$23931.42."
Viewing the evidence in the light most favorable to the
Cormiers, it can be inferred from the certificate of title that
Murray either did not see or did not understand this notation to
indicate an encumbrance on the property in the form of a due and
payable betterment in that amount. The certificate of title he
prepared, after stating that the title was free from all
encumbrances except the new mortgage, asserted that the title
was "further subject to the following matters which are
specifically excluded from this certification of title." The
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third matter listed was, "Such taxes, assessments or municipal
charges that may be due and payable and not shown on the
attached copy of the [c]ertificate of [m]unicipal [l]iens. The
[c]ertificate of [m]unicipal [l]iens indicates that real estate
taxes on the property have been paid through 9/30/2017."
(Emphasis added.)
This was a statement that the property was not encumbered
by any taxes, assessments, or municipal charges not shown on the
certificate of title but shown on the municipal lien
certificate; it was an express statement that, in addition to
any encumbrances listed on the certificate of title, only those
due and payable assessments not shown on the certificate of
title might encumber the property. Further, in indicating that
real estate taxes shown on the municipal lien certificate had
been paid, it reasonably could have been read to imply that that
was the only relevant information to be found on the municipal
lien certificate.
According to his affidavit, at the closing, Murray went
over the certificate of title with the Cormiers. At his
deposition, Philip asserted under oath that he could not recall
whether or not he saw the certificate of title at closing.
2. Discussion. a. Violation of G. L. c. 93, § 70, and
negligence. It is undisputed that Murray was not counsel for
the Cormiers; he was the closing attorney, retained by HPFC, the
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lender. Nonetheless, G. L. c. 93, § 70, imposed an obligation
on him with respect to the Cormiers.4 He was required under the
statute, for the benefit of the mortgagor, to complete "a title
examination," and he owed a duty to certify only if it were true
in light of "the records of the registry of deeds or registry
district in which the mortgaged premises lie and relevant
records of registries of probate," that when the mortgage was
recorded, the mortgagor would "hold[] good and sufficient record
title to the mortgaged premises free from all encumbrances."
G. L. c. 93, § 70.
With respect to recording, G. L. c. 184, § 25, provides
that "[n]o instrument shall be deemed recorded in due course
unless so recorded . . . as to be indexed in the grantor index
under the name of the owner of record of the real estate
affected at the time of the recording." In light of this, we
cannot say, as a matter of law, that a title search limited to
examining those record documents indexed by the property rather
4 The statute implicitly provides a cause of action for the
mortgagor as well as the mortgagee, and states that "[t]he
liability of any attorney rendering such certification shall be
limited to the amount of the consideration shown on the deed
with respect to the mortgagor, and shall be limited to the
original principal amount secured by the mortgage with respect
to the mortgagee." G. L. c. 93, § 70. The statute also states
that the attorney's willful noncompliance with the certification
requirement "shall constitute an unfair or deceptive act or
practice" under G. L. c. 93A. Id. The Cormiers did not allege
a c. 93A claim; they contend that Murray's faulty certification
was negligent rather than willful.
8
than by the names of the owners complies with the statute or is
not negligent. And, because the certificate of title did not
mention the betterment as an encumbrance on the title, or even
exclude it from the certificate, even though it was an
encumbrance on the title that was of record, the certificate of
title in this case was in error and did not comply with the
statute.
b. Causation. Murray argues that even if he failed to
comply with the statute or acted in a negligent manner, summary
judgment was still appropriate because, even viewed in the light
most favorable to the Cormiers, the record cannot support a
finding of fact that the erroneous certificate of title caused
the Cormiers injury. We disagree and conclude that there is at
least a genuine issue of material fact with respect to
causation.
Although Philip stated during his deposition that he could
not recall whether he had seen the certificate of title, it is
Murray's testimony that he went over the certificate of title
with the Cormiers. Given the myriad papers that a closing
attorney reviews with a purchaser of residential real estate in
a very short period of time, see e.g., Real Estate Bar Ass'n for
Mass. v. National Real Estate Info. Servs., 459 Mass. 512, 529
n.31 (2011), it is unsurprising that Philip would have no
specific recollection of hearing that the record title to the
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property he was purchasing was good, sufficient, and
unencumbered. That does not mean he would not have noticed if
he had been told that it was encumbered by a $23,931.42
betterment that he would be obligated to pay. There is thus at
least a genuine issue of material fact how the Cormiers would
have reacted if Murray had discovered the recorded betterment,
included it on the certificate of title, and informed the
Cormiers of it at closing.
Murray also points to several places where the word
betterment appeared in documents that were or might have been
reviewed by the Cormiers. The listing for the property on the
Multiple Listing Service (MLS), a database of residential
properties used by real estate brokers to list properties,
stated that the buyer would "assume outstanding betterment from
lake association settlement." The seller rejected the Cormiers'
first offer, responding with a counteroffer that was identical
except for the addition of language stating the buyer
"acknowledges lake betterment transfers at closing." And the
purchase and sale agreement said that the buyer was "to assume
any and all [s]upplemental [w]ater [d]istrict [t]ax and
betterments."
None of these statements, however, asserted that there was
any particular or any specific amount due on any outstanding
betterment, and, indeed, the one of the most consequence,
10
included in the binding purchase and sale agreement, may be read
as a generic statement that the new owners will be obligated to
pay any betterments that may arise. Thus, even given these
statements, there is a genuine issue of material fact for the
jury about whether the erroneous certificate of title prepared
by Murray caused the Cormiers damage.
3. Conclusion. The summary judgment entered in favor of
the defendant is vacated, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.