HINES, J.
Under a 2006 amendment to the so-called "obsolete mortgage" statute, a mortgage becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.
The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are discharged under the obsolete mortgage statute and the foreclosure auction conducted on the property securing those mortgages is null and void.
1. Background. The following facts, viewed in the light most favorable to the nonmoving party, are drawn from the summary judgment record. On or about April 30, 2012, Fitchburg conducted a foreclosure auction purporting to sell a property located at 11 Nutting Street, Fitchburg (property). Lee Bourque, a defendant, held record title to the property at all relevant times.
At the time of the purported foreclosure sale, Fitchburg held two mortgages secured by the property: (1) a mortgage dated April 13, 1999, from Lee Bourque to John Christiano, recorded May 14, 1999 (Christiano mortgage);
The obligation underlying the Christiano mortgage is a note dated April 13, 1999, with a maturity date of May 1, 2000. The only obligation indicated in the record as underlying the BDC mortgage is a note dated December 16, 2002, with a maturity date of December 31, 2003. Fitchburg asserts that the maturity date of the loan underlying the BDC mortgage was extended to December 1, 2007, but the agreement extending the note was never recorded.
Deutsche Bank holds a mortgage dated September 10, 2004, granted by Lee Bourque to Ameriquest Mortgage Company and recorded October 1, 2004 (Ameriquest mortgage). The mortgage was assigned to Deutsche Bank by agreement dated March 5, 2007.
On April 20, 2011, Lee Bourque filed a Chapter 13 petition for bankruptcy, which was later converted to Chapter 7. During bankruptcy proceedings, the parties discussed the relative priority of the mortgages and Deutsche Bank's counsel represented to Fitchburg's counsel that Fitchburg's mortgages held first and second priority on the property and that Deutsche Bank's mortgage was third priority. On September 26, 2011, Deutsche Bank filed a motion for relief from automatic stay to allow it to commence foreclosure proceedings, which acknowledged Fitchburg's first and second priority positions. Fitchburg did not oppose the motion, and asserts that it did not oppose because of the acknowledgment in the motion and conversation with Deutsche Bank's counsel in which the counsel recognized Fitchburg's first and second priority positions. On October 24, 2011, Fitchburg filed a motion for relief from automatic stay to allow it to commence foreclosure proceedings, which was granted on February 21, 2012. Fitchburg conducted an auction purporting to foreclose on the property on April 30, 2012. Fitchburg was the high bidder at the auction and recorded a foreclosure deed purporting to grant fee simple title to itself on that date.
2. Statutory background. The obsolete mortgage statute was enacted in 1957 to create a statute of limitations on foreclosures against mortgages that had been recorded for fifty years or more, unless either an extension or a document asserting nonsatisfaction
3. Standard of review. We review a grant of summary judgment
4. Limitations period applicable to Fitchburg's foreclosure under obsolete mortgage statute. The judge allowed partial summary judgment in favor of Deutsche Bank after concluding that Fitchburg's purported foreclosure was void because the BDC and Christiano mortgages had been discharged as a matter of law before foreclosure.
We answer the question presented by applying well-settled rules of statutory construction. When the meaning of a statute is at issue, "[w]e begin with the canon of statutory construction that the primary source of insight into the intent of the Legislature is the language of the statute." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). The language is interpreted in accordance with its plain meaning, and if the language is clear and unambiguous, it is conclusive as to the intent of the Legislature. Commissioner of Correction v. Superior Ct. Dep't of the Trial Court, 446 Mass. 123, 124 (2006), citing Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 355-356 (2003).
When interpreting the phrase, "mortgage in which the term or maturity date of the mortgage is stated," that triggers the five-year statute of limitations, "[w]ords and phrases shall be construed
This definition comports with the treatment of mortgages under our common-law principles. Although a mortgage and a note are separate entities in Massachusetts that can be split, it has long been recognized that "a mortgage ultimately depends on the underlying debt for its enforceability." Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 576, 578 n.11 (2012), citing Crowley v. Adams, 226 Mass. 582, 585 (1917), Wolcott v. Winchester, 15 Gray 461 (1860), and Howe v. Wilder, 11 Gray 267, 269-270 (1858). By its nature, a mortgage does not mature distinctly from the debts or obligations that it secures. See Eaton, supra at 577-578 ("the basic nature of a mortgage [is] security for an underlying mortgage note"); Barnes v. Lee Sav. Bank, 340 Mass. 87, 90 (1959) ("The debt having been extinguished, a bond or mortgage given as security for the debt is necessarily discharged"). Accordingly, a mortgage is a device for providing security for a loan, but it does not generally have a binding effect that survives its underlying obligation.
The flaw in Fitchburg's argument is the misconception that considering the maturity date of the note to be the maturity date of the mortgage requires the note and the mortgage to lose any independent properties. The question, rather, is whether the term or maturity date of the underlying obligation is commonly understood as the term or maturity date of the mortgage when that date is stated on the face of the mortgage. To this question, the definition in § 35 is unhelpful. Not only is the definition inclusive instead of limiting, it only sets forth the types of security applicable to the obsolete mortgage statute; it does not define the particularities of a mortgage's provisions. See G. L. c. 260, §§ 33-35. Moreover, we noted in Eaton that the "essential nature and purpose of a mortgage [i]s security for a debt." Eaton, 462 Mass. at 584. As noted above, because the scope of a mortgage is necessarily tied to the reach of the underlying obligation, considering the term or maturity date of the underlying obligation to be the term or maturity date of the mortgage comports with the common-law understanding of the words "mortgage" and "note." See Barnes, 340 Mass. at 90.
Fitchburg also argues that the judge's interpretation was erroneous because the title of the act modifying the statute, "An Act providing remedies to consumers for clearing title after payoff of mortgages," signifies that the Legislature only intended the five-year limitations period to apply to mortgages where the underlying obligations have been paid in full. St. 2006, c. 63. The title of
Furthermore, although our conclusion yields a workable result and thus ends our inquiry, review of the entire act that modifies the obsolete mortgage statute would not provide a contrary result. Thurdin v. SEI Boston, LLC, 452 Mass. 436, 454 (2008), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984) ("When the use of the ordinary meaning of a term yields a workable result, there is no need to resort to extrinsic aids such as legislative history"). The revisions to the obsolete mortgage statute were contained within an act comprising nine sections and affecting multiple statutes.
In that regard, Fitchburg does not argue that applicability of the revised limitations period for mortgages in which the term is not stated depends on satisfaction of the underlying obligations. The obsolete mortgage statute created a limitations period for bringing foreclosure actions against mortgages. G. L. c. 260, § 33. Under the amendment, the statute requires the holder of a mortgage to foreclose on the mortgage, record a document asserting nonsatisfaction, or record an extension before the mortgage has been on record for thirty-five years or before the secured debt is overdue by five years (and the due date is stated on the face of the mortgage). See St. 2006, c. 63, § 6. The statute has never been interpreted to require satisfaction of a mortgage's underlying obligations before the mortgage becomes unenforceable. Conversely, the statute provides a mortgagee options to preserve its rights under a mortgage that has not been satisfied by recording an acknowledgment or affidavit asserting nonsatisfaction, or by recording an extension of term. G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. Discharge under the obsolete mortgage statute has never rested on satisfaction of a mortgage's underlying obligations, and we decline to adopt a contrary position today.
Determining that the term or maturity date of an underlying obligation, when stated on the face of the mortgage, can become the term or maturity date of the mortgage does not end our inquiry. We must still review the actual language used in the Christiano and BDC mortgages. The BDC mortgage states, "Mortgagor has promised to pay the debt under this note in full not later than December 31, 2003," and the Christiano mortgage, dated April 13, 1999, states that the mortgage is granted to "secure the payment of $9,722.00 ... in one year with twenty
Beyond the language quoted above, the BDC mortgage also contains a dragnet clause, in which "all other debts, covenants and agreements of or by the Mortgagor to or for the benefit of the Mortgagee now existing or hereafter accruing while this mortgage is still undischarged of record" become secured by the mortgage in addition to the original underlying obligation. Dragnet clauses are mortgage provisions that provide security for future advances and "are usually held valid in Massachusetts, at least where such advances are made prior to the intervention of other liens." Everett Credit Union v. Allied Ambulance Servs., Inc., 12 Mass.App.Ct. 343, 346 (1981), citing Barnard v. Moore, 8 Allen 273, 274 (1864). Fitchburg argues that the presence of the dragnet clause indicates that the parties intended the BDC mortgage to outlive the underlying note for an indefinite duration. This argument, however, conflicts with the nature of a mortgage as being tied to the life of its underlying obligations. See Piea Realty Co., 342 Mass. at 246; Barnes, 340 Mass. at 90. Although Fitchburg asserts a pattern of frequent lending between the original mortgagee of the BDC mortgage and the mortgagor that culminated in the creation of the BDC mortgage,
5. Constitutionality of retroactive application of limitations
"There are constitutional limitations on the Legislature's power to enact retroactive statutes — in brief, such statutes must `meet the test of "reasonableness."'" Anderson v. BNY Mellon, N.A., 463 Mass. 299, 307 (2012), quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189 (1978). "A statute is presumed to be constitutional and every rational presumption in favor of the statute's validity is made." Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 193 (2004), citing Leibovich v. Antonellis, 410 Mass. 568, 577 (1991). The challenging party bears the burden to prove that the statute is irrational in its application. Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 788 (2008). Where the applicable statute is one affecting a limitations period, a "shortened statute of limitations may be applied to causes of action already accrued `if sufficient time be allowed, between the passing of the act and the time fixed for the limitation, to afford a full and ample time to all persons, having such causes of action, to commence their suits.'" Cioffi v. Guenther, 374 Mass. 1, 3 (1977), quoting Loring v. Alline, 9 Cush. 68, 71 (1851).
Here, the act revising the obsolete mortgage statute was approved April 13, 2006, and the Legislature extended the effective
We conclude that the period of five and one-half months provided by the Legislature is reasonable in light of the fact that a mortgagee is provided other options under the statute, other than commencing foreclosure, to extend its rights under a mortgage. "What shall be considered a reasonable time must be settled by the judgment of the Legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice." Mulvey, 197 Mass. at 183, quoting Wilson v. Iseminger, 185 U.S. 55, 63 (1902). Fitchburg contends that the statute is a denial of justice as it applies to its mortgages, both commercial in nature, with unsatisfied underlying obligations and an unrecorded extension agreement. While this contention has some force, it should be addressed to the Legislature, because the time allotted by the Legislature for mortgagees to preserve their rights makes retroactive application of the 2006 amendment constitutional. See Cioffi, 374 Mass. at 4. There is no denial of justice in this case because Fitchburg was entitled to record an extension or an affidavit or acknowledgment that the underlying obligation had not been satisfied in order to extend the time before its mortgages were deemed obsolete under G. L. c. 260, § 33. Fitchburg's failure to follow these clear directives does not make the statute unconstitutional. Cioffi, supra.
So ordered.