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14-P-597                                                Appeals Court

         PHILIP L. GODUTI, trustee, 1   vs.    CITY OF WORCESTER.


                               No. 14-P-597.

            Suffolk.       January 12, 2015. - May 13, 2015.

            Present:     Fecteau, Wolohojian, & Massing, JJ.

Moot Question. Practice, Civil, Moot case, Summary
     judgment. Real Property, Foreclosure of tax title, Record
     title. Mortgage, Foreclosure. Municipal Corporations, Tax
     title property. Taxation, Real estate tax: tax taking.



     Civil action commenced in the Land Court Department on
September 29, 2011.

     The case was heard by Keith C. Long, J., on motions for
summary judgment.


     Michael J. Markoff for the plaintiff.
     Karen A. Meyer, Assistant City Solicitor, for the
defendant.


     FECTEAU, J.       Philip L. Goduti appeals from the allowance of

summary judgment against him by a judge of the Land Court in his

declaratory judgment action regarding the legality of the city


     1
         Of the Pension Nominee Trust.
                                                                     2


of Worcester's (city) tax assessment for the years 2006 through

2011 on a property located at 2 Gambier Avenue, Worcester

(property).    He first contends that the city was not authorized,

under G. L. c. 59, § 11, to assess taxes to his mortgagor, who

failed to pay the taxes, but was required, instead, to assess

taxes during those years only to him, the purported record owner

of the property following his foreclosure by entry pursuant to

G. L. c. 244, § 1.    Second, Goduti argues that the judge

incorrectly determined, especially at the summary judgment

stage, that he had waived his foreclosure.     While we need not

reach his arguments because this case has become moot, we reject

his contentions nevertheless.

     1.     Background.   The property in question was first

acquired by Sandra and James Dunn, husband and wife, in 1973.

In 1989, Goduti became a mortgagee of the property behind two

others. 2   While remaining current on the first two mortgages, the

Dunns fell behind on their mortgage payments to Goduti.

Utilizing the foreclosure by entry procedure of G. L. c. 244,

§ 1, Goduti recorded a certificate of entry in the registry of

deeds on October 9, 1996, thereby signaling his intent to

foreclose.    During the three-year period after Goduti filed his

certificate of entry, after which foreclosure would be completed

     2
       Both mortgages senior to Goduti's were in existence
through 2004, when one of the mortgages was discharged. The
other mortgage was discharged in 2011.
                                                                     3


and his title would ripen, he accepted regular payments from the

Dunns; Goduti disputes that those payments were applied to the

mortgage, claiming that they were for use or occupation of the

property.    When the Dunns divorced in 2004, the property was

conveyed, via a quitclaim deed, to Ms. Dunn alone, and the same

was recorded in the registry of deeds.

     The city had been assessing real estate (and other) taxes

to the Dunns but, after the 2004 deed was recorded, it assessed

only Ms. Dunn.    She stopped paying taxes in the fiscal year 2006

and, as a result, the city issued an instrument of taking in

2007.    Ms. Dunn continued to occupy the house until 2011, when

she conveyed title to Goduti via a "confirmatory deed," and

Goduti then immediately conveyed the property to Michele A.

Bouffard, 3 who remains the current owner; Bouffard, in turn,

granted Goduti a mortgage.    Apparently, as part of the

transaction between Goduti and Bouffard, Goduti agreed to pay

any tax debt owed to the city for the fiscal years 2006 through

2011.

     Procedurally, Goduti (along with Bouffard) initiated this

declaratory judgment action in September, 2011, against the

city, challenging the validity of the tax assessments from 2006

through 2011.    While the instant case was pending, the city


     3
       There is some inconsistency in the spelling of her name in
the record appendix.
                                                                     4


filed a complaint (foreclosure complaint) in February, 2012,

seeking to foreclose the right to redemption following its 2007

taking of the property for unpaid taxes for the fiscal year

2006. 4   The judge, in September, 2012, denied Goduti's motion to

consolidate the two cases, but ordered that they proceed

simultaneously. 5

      In February, 2014, the judge allowed the city's summary

judgment motion in the instant declaratory judgment action filed

by Goduti, determining that Goduti had waived his right to

foreclosure and, therefore, that he was not the owner of the

property from the years 2006 through 2011.    As a result, the

judge determined, the city had validly taxed Ms. Dunn during

those years, based on the 2004 quitclaim deed from Mr. Dunn to

Ms. Dunn.    Concomitantly, and in the related case, the judge

determined that the 2007 tax taking was valid, and ordered that,

if payment of the full tax debt was made within thirty days, the


      4
       Although the city filed its tax taking in 2007 after Ms.
Dunn failed to pay taxes in fiscal year 2006, Ms. Dunn also
failed to pay through fiscal year 2011. Under G. L. c. 60,
§ 61, the city needed to take the property only once; all
subsequent unpaid taxes after fiscal year 2006 were also due
under the 2007 taking.
      5
       The judge ruled, in part, that "[a]lthough these cases
arise from the same underlying factual situation, tax lien and
miscellaneous cases have different procedures and remedies that
weigh against consolidation. The court will, however,
coordinate the two cases so they proceed simultaneously with
events scheduled together and discovery taken in one case fully
applicable in the other."
                                                                     5


property would be redeemed but, if not, the right to redemption

would be foreclosed.    Immediately thereafter, in the related

case, Goduti stipulated to the amount of the tax debt and paid

it in full.    In light of Goduti's actions, the city withdrew its

foreclosure complaint.    Goduti appealed from the final judgment

in the instant declaratory judgment action. 6

     2.    Mootness.   When Goduti paid the tax debt in full and

redeemed, and the city discharged its tax lien, there ceased to

be a case or controversy between Goduti and the city regarding

taxes owed for the fiscal years 2006 through 2011.      See,

e.g., Flint v. Commissioner of Pub. Welfare, 412 Mass. 416,

418-419 (1992) (where plaintiffs challenged entitlement to

certain benefits under State program, but program was eliminated

during pendency of action, no actual controversy continued to

exist).    Therefore, this case is moot. 7   We recognize that Goduti

may have felt compelled to pay the debt in the related case to

avoid foreclosure but, had he intended to preserve his rights in

the instant case, there were steps he could have taken to

     6
         Bouffard did not appeal.
     7
       Goduti argues that the action is not moot because, if we
were to determine that the judge erred in entering summary
judgment, and he were to ultimately prevail below upon remand
and further proceedings, the city would presumably credit the
amount that he paid for the years 2006 through 2011 toward
future taxes owed on the property. This argument ignores the
very point it seeks to address: whether this court can and
should address the merits of this case in light of the fact that
he paid the tax debt at issue.
                                                                      6


signify his continuing intent to contest the assessment but

avoid foreclosure on the property, including paying the tax debt

under protest in the related case, or filing a motion to stay

judgment in that case pending the instant appeal.    The record

shows no such signs, however.    Instead, a fair reading of the

documents that led to the disposition of the tax lien action is

consistent with a global settlement agreement encompassing

Goduti's acceptance of the outcome in the instant case.    In any

event, even if we were to decide the merits of the case, we

would be unpersuaded that the summary judgment was decided in

error.

     3.   Merits.    "We review a grant of summary judgment de novo

to determine 'whether, viewing the evidence in the light most

favorable to the nonmoving party, . . . the moving party is

entitled to a judgment as a matter of law."     Go-Best Assets Ltd.

v. Citizens Bank of Mass., 463 Mass. 50, 54 (2012), quoting

from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012).    See

Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).    Summary

judgment is appropriate where there is no genuine issue as to

any material fact.     Ng Bros. Constr., Inc. v. Cranney, 436 Mass.

638, 643 (2002).    Issues involving statutory interpretation are

questions of law for the court to decide and can appropriately

be resolved by summary judgment.    See Annese Elec. Servs., Inc.

v. Newton, 431 Mass. 763, 764 n.2 (2000).
                                                                    7


     We first reject Goduti's contention that G. L. c. 59, § 11,

requires that a municipality assess taxes only to the record

owner.   As the court in Boston v. Quincy Mkt. Cold Storage &

Warehouse Co., 312 Mass. 638, 644-645 (1942), made clear, the

statute allows a municipality to assess taxes to the owner in

fact even if he is not the person appearing of record to be the

owner of the property at issue.    See Springfield v. Schaffer, 12

Mass. App. Ct. 277, 278-279 (1981).

     Assuming arguendo that the statute permits a view that

restricts the city's assessment of taxes only to the record

owner, a view to which we do not subscribe, we discern no error

in the city's assessment to Ms. Dunn.   Under Massachusetts law,

municipalities are only required to exercise "reasonable

diligence" in determining "the owner of real estate from records

in the county's registry of deeds and registry of probate"; what

constitutes reasonable diligence "varies with the

circumstances."   Lamontagne v. Knightly, 30 Mass. App. Ct. 647,

653 (1991) (quotations omitted).   Here, a record search would

have revealed the 2004 quitclaim deed from Mr. Dunn to Ms. Dunn.

While it also would have revealed Goduti's 1996 certificate of

entry, that certificate alone, as further explained, infra, did

not in itself signify that Goduti was the record owner.    Goduti

has cited no case law for the proposition that a mortgagee

becomes record owner of a property either when he records a
                                                                     8


certificate of entry, or three years after that entry in the

absence of further action, and we have found no support for that

proposition.

     Moreover, the Dunns (and then Ms. Dunn alone) continued to

pay the taxes assessed to them long after Goduti recorded the

certificate of entry in 1996, and after the three-year holding

period passed.    Goduti made no attempt over the years to correct

what he now asserts was an invalid assessment, and only asserted

his instant argument once it became clear that he would be

responsible, pursuant to his 2011 agreement with Bouffard, for

the tax debt. 8   See Robertson v. Plymouth, 18 Mass. App. Ct. 592,

596-597 (1984) (quotation omitted) (court, when faced with

challenge to city's diligence in determining record owner of

property, may consider that "validity of the tax title[] is put

into question long after the event" by party who could have, but

did not, previously complain).    Therefore, it cannot be said

that the city acted unreasonably in continuing to assess taxes

to the Dunns, who occupied the property, had paid and continued

to pay the taxes, and appeared of record to be the title owners

both before and after the filing of the certificate of entry in

1996.



     8
       We note also that the record reveals no attempt by Goduti
to notify the city of his purported status as owner of record.
See G. L. c. 244, § 15A.
                                                                   9


     Second, and operating under a correct interpretation of

G. L. c. 59, § 11, the judge did not err in determining that

Goduti was not the owner in fact of the property at issue

because his title never ripened after he recorded the

certificate of entry in 1996.   By law, Goduti would not have

acquired title to the property until three years after recording

the certificate of entry.   Santiago v. Alba Mgmt., Inc., 77

Mass. App. Ct. 46, 50 (2010).   See Joyner v. Lenox Savs. Bank,

322 Mass. 46, 52 (1947); Beaton v. Land Ct., 367 Mass. 385, 393

(1975).   During that three-year period, a mortgagee may waive

his right to foreclosure by taking acts inconsistent with an

intent to foreclose, including by accepting a portion of the

mortgage debt or interest thereon.   See Trow v. Berry, 113 Mass.

139, 147 (1873) (evidence showed that "the real relation between

the parties was that of debtor and creditor, mortgagor and

mortgagee; and cannot be explained consistently with the right

of the mortgagee to hold the estate under the

foreclosure"); Joyner, supra at 53-54.   That is precisely what

happened here.

     Specifically, the judge properly determined that there was

no genuine dispute of material fact concerning whether Goduti

had waived his right to foreclosure by entry during the

three-year holding period by accepting payments from Ms. Dunn
                                                                   10


and applying them toward the mortgage or interest thereon. 9

Viewing the motion record in the light most favorable to Goduti,

ample evidence in the record showed that Goduti, during and

after the three-year period in which his title would have

ripened, accepted payments from Ms. Dunn and treated them as

payments toward the mortgage or interest thereon. 10

     Namely, correspondence between attorneys representing the

Dunns (and then Ms. Dunn) and Goduti (as well as Goduti himself,

an attorney) during the three-year holding period indicated a

mutual interest in reaching a settlement for at least a partial

pay-off of the mortgage.   There also was explicit confirmation,

including from Goduti himself, that such an agreement had been

reached.   Letters between the parties after the three-year

period also indicated an ongoing agreement whereby Ms. Dunn

would continue to make payments toward the mortgage in exchange

for Goduti not foreclosing on the property.   Additionally,

Goduti maintained ledgers tracking Ms. Dunn's payments to him,




     9
       We reject Goduti's argument that whether he waived
foreclosure was an issue that should have been reserved for the
jury. See Joyner, 322 Mass. at 54 ("there remains the question
whether some intentional act of the bank was as matter of law a
waiver or requires an inference of waiver") (emphasis supplied).
     10
       We also take note of a Land Court docket entry on July 8,
2013, that describes a conference with the judge during which
the parties expressed agreement "that these actions should be
decided on summary judgment."
                                                                    11


marking the payments as "interest received," thereby also

confirming the agreement reached.

     Moreover, Goduti's deposition testimony in the instant case

indicates that his intent during the three-year window was

inconsistent with an intent to foreclose. 11   We also note that

the judge was justified in essentially discounting Goduti's

affidavit -- in which he asserted that the payments from Ms.

Dunn during the three-year holding period were only for use and

occupation of the property -- in the face of the aforementioned

documentary evidence and his deposition testimony, given the

inconsistencies between them.    See Lyons v. Nutt, 436 Mass. 244,

249 (2002); Phinney v. Morgan, 39 Mass. App. Ct. 202, 207 (1995)

(party cannot defeat summary judgment by submitting affidavit

that contradicts its previous sworn statements).    For instance,

when asked during his deposition whether he remembered

initiating a foreclosure action in 1996, Goduti testified, "I

don't remember anything about it at all. . . . I just have no

present recollection of it."    This contradicts his affidavit

statements concerning his specific intent during that time

period, and only renders more reliable the aforementioned

documentary evidence, which was made contemporaneously to the

relevant events in this case.

     11
       For example, Goduti stated that the house was subject to
a superior mortgage, was not worth much, and Ms. Dunn was an
"old lady" on whom he was adverse to foreclose.
                                                                  12


     Finally, and read in context of the documentary evidence,

the undisputed facts clearly demonstrate, as matter of law, that

Goduti waived his right to foreclosure.   For example, Ms. Dunn

continued to occupy the property until 2011, Goduti made no

attempt to assert title following the recording of the Dunns'

2004 quitclaim deed, and Ms. Dunn herself conveyed title to

Goduti in 2011.

                                   Appeal dismissed.
