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SJC-11756

         DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,1   vs.
                  FITCHBURG CAPITAL, LLC, & others.2



            Suffolk.    January 5, 2015. - April 15, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.



Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause.
     Real Property, Mortgage. Limitations, Statute of.
     Practice, Civil, Summary judgment, Statute of limitations.
     Statute, Retroactive application, Construction. Due
     Process of Law, Retroactive application of statute, Statute
     of limitations. Constitutional Law, Contract clause.



     Civil action commenced in the Land Court Department on July
2, 2012.

     A motion for partial summary judgment was heard by Robert
B. Foster, J., and entry of separate and final judgment was
ordered by him.


     1
       Of Ameriquest Mortgage Securities, Inc., Asset-backed
Pass-through Certificates, Series 2004-R11 under the Pooling and
Service Agreement dated as of December 1, 2004.
     2
       Lee Bourque; Federal National Mortgage Association; and
John Burdick, trustee of the bankruptcy estate of Bernard
Saulnier.
                                                                   2


     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Jeffrey T. Angley (Robert K. Hopkins with him) for
Fitchburg Capital, LLC.
     Jeffrey B. Loeb for the plaintiff.
     Thomas O. Moriarty, for Real Estate Bar Association for
Massachusetts, Inc., & another, amici curiae, submitted a brief.
     Philip F. Coppinger, for Ry-Co International, Ltd., amicus
curiae, submitted a brief.


     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.3   G. L. c. 260, § 33, as

amended by St. 2006, c. 63, § 6.   The defendant Fitchburg

Capital, LLC (Fitchburg), foreclosed on two mortgages at a time

when both mortgages would be unenforceable under the amended

statute if the five-year statute of limitations was applicable.

In this appeal, we interpret the amended statute to determine

whether a mortgage stating only the term or maturity date of the

underlying debt is a "mortgage in which the term or maturity

date of the mortgage is stated" under G. L. c. 260, § 33, and


     3
       The limitations periods may be extended by recording an
extension or an affidavit or acknowledgment of nonpayment.
G. L. c. 260, §§ 33-34.
                                                                    3


whether the retroactive application of § 33 to mortgages

recorded before the effective date of the amendment is

constitutional.

     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.4   In a well-

reasoned opinion, a Land Court judge granted partial summary

judgment for Deutsche Bank, concluding that reference in the

mortgages to the term of the underlying debt was sufficient to

state the "term or maturity date of the mortgage"; that the

mortgages became obsolete pursuant to G. L. c. 260, § 33; and,

     4
       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), also
sought summary judgment on its equitable subrogation claim,
arguing that the mortgages held by Fitchburg Capital, LLC
(Fitchburg), should be equitably subordinated to the mortgage
held by Deutsche Bank because the Fitchburg mortgages were
junior liens when granted and that the priority liens were paid
off from proceeds from loans from Deutsche Bank's predecessors
in title. Because of his conclusion that the mortgages were
discharged, the judge did not reach Deutsche Bank's equitable
subrogation claim. We affirm and therefore decline to reach
Deutsche Bank's equitable subrogation claim.
                                                                    4


therefore, that the foreclosure sale conducted by Fitchburg was

null and void.    The judge rejected Fitchburg's constitutional

challenge to the statute.    We transferred Fitchburg's appeal to

this court on our own motion and now affirm.5

     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);6 and (2) a mortgage

dated December 16, 2002, from Lee Bourque to Bourque Development




     5
       We acknowledge the amicus brief submitted by Real Estate
Bar Association for Massachusetts, Inc., and Abstract Club; and
by Ry-Co International, Ltd.
     6
       The Christiano mortgage states, "Lee Bourque . . .
grant[s] to John Christiano . . . with mortgage covenants, to
secure the payment of $9,722.00 . . . in one year with twenty
percent interest per annum, payable in one year . . . , as
provided in the promissory note of even date, the [property]."
                                                                     5


Corp., recorded December 18, 2002 (BDC mortgage).7    There is no

evidence that any party recorded an extension for either

mortgage, an acknowledgement or affidavit that either of the

mortgages was not satisfied, or a discharge of either mortgage.

The original mortgagee assigned the BDC mortgage to Fitchburg by

agreement dated March 19, 2010.     The Christiano mortgage was

assigned to Fitchburg on August 5, 2011, by the then-current

holder and prior assignee, the estate of Jack Rosenblit.

     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.



     7
         The BDC mortgage states:

     "Lee Bourque . . . the 'Mortgagor' . . . HEREBY GRANTS to
     Bourque Development Corporation . . . with MORTGAGE
     COVENANTS, to secure the payment of . . . $88,958.65 . . .
     with interest thereon, as provided in the Mortgagor's note
     of even date, . . . and 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, [the property and
     other properties not at issue here]. Mortgagor has
     promised to pay the debt under this note in full not later
     than December 31, 2003."
                                                                     6


    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.
                                                                        7


     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 of the mortgage was recorded in the

ten years preceding the end of the fifty-year period.     G. L.

c. 260, § 33, inserted by St. 1957, c. 370.    In 2006, the

statute was amended to create two different limitations periods,

one for any "mortgage in which the term or maturity date of the

mortgage is stated" and one for any "mortgage in which no term

of the mortgage is stated."   G. L. c. 260, § 33, as amended by

St. 2006, c. 63, § 6.   The limitations period for stated term

mortgages is five years after expiration of the term or maturity

date, and the limitations period for nonstated term mortgages is

thirty-five years from the recording of the mortgage.8    Id.     The


     8
       General Laws c. 260, § 33, as amended by St. 2006, c. 63,
§ 6, provides as follows:

     "A power of sale in any mortgage of real estate shall not
     be exercised and an entry shall not be made nor possession
     taken nor proceeding begun for foreclosure of any such
     mortgage after the expiration of, in the case of a mortgage
     in which no term of the mortgage is stated, [thirty-five]
     years from the recording of the mortgage or, in the case of
     a mortgage in which the term or maturity date of the
     mortgage is stated, [five] years from the expiration of the
     term or from the maturity date, unless an extension of the
     mortgage, or an acknowledgment or affidavit that the
     mortgage is not satisfied, is recorded before the
     expiration of such period. In case an extension of the
     mortgage or the acknowledgment or affidavit is so recorded,
                                                                     8


amended statute allows enforcement of the mortgage if an

extension or a document asserting nonsatisfaction of the

mortgage had been recorded, but reduced the ten-year period in

the prior statute to five years.    Id.   The amended statute also

became self-executing so that any mortgage rendered obsolete by

the terms of the statute is discharged without further legal

action.   Id.

    3.    Standard of review.   We review a grant of summary

judgment de novo.    Twomey v. Middleborough, 468 Mass. 260, 267

(2014), citing Ritter v. Massachusetts Cas. Ins. Co., 439 Mass.

214, 215 (2003).    "Summary judgment is appropriate where there

are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law."    Twomey, supra, citing

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716



    the period shall continue until [five] years shall have
    elapsed during which there is not recorded any further
    extension of the mortgage or acknowledgment or affidavit
    that the mortgage is not satisfied. The period shall not
    be extended by reason of non-residence or disability of any
    person interested in the mortgage or the real estate, or by
    any partial payment, agreement, extension, acknowledgment,
    affidavit or other action not meeting the requirements of
    this section and [G. L. c. 260, §§] 34 and 35. Upon the
    expiration of the period provided herein, the mortgage
    shall be considered discharged for all purposes without the
    necessity of further action by the owner of the equity of
    redemption or any other persons having an interest in the
    mortgaged property and, in the case of registered land,
    upon the payment of the fee for the recording of a
    discharge, the mortgage shall be marked as discharged on
    the relevant memorandum of encumbrances in the same manner
    as for any other mortgage duly discharged."
                                                                    9


(1991).    Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002).

     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.9   Although neither mortgage

expressly contained the "term or maturity date" of the mortgage

itself, the judge reasoned that "the dates and terms [of the

underlying debt] set forth in the Christiano Mortgage and the

BDC Mortgage are statements of 'the term or maturity date of the

mortgage' that make these two mortgages subject to the five-year

period."   We agree.

     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."


     9
       We assume without deciding that Fitchburg invoked its
rights under both the BDC and Christiano mortgages. The
foreclosure deed recorded by Fitchburg stated that it foreclosed
on the property under the powers granted to it by the BDC
mortgage and "every other power." The resolution of this
question is not pertinent to the issue on appeal because both
the BDC mortgage and the Christiano mortgage were discharged as
a matter of law prior to Fitchburg's purported foreclosure.
                                                                  10


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 according to the common and approved usage of the

language."   G. L. c. 4, § 6, Third.   According to Black's Law

Dictionary 478, 1163 (10th ed. 2014), "maturity date" means

"[t]he date when a debt falls due, such as a debt on a

promissory note or bond," and "mortgage" means "[a] conveyance

of title to property that is given as security for the payment

of a debt or performance of a duty and that will become void

upon payment or performance according to the stipulated terms."

Thus, the common meaning of the "maturity date of the mortgage"

is the date on which the underlying debt is due because a

mortgage derives its vitality from the debt that it secures.

    This definition comports with the treatment of mortgages

under our common-law principles.   Although a mortgage and a note
                                                                  11


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.10   See Piea

Realty Co. v. Papuzynski, 342 Mass. 240, 246 (1961), quoting

Pineo v. White, 320 Mass. 487, 489 (1946) (unless other

equitable considerations apply, "payment of the mortgage note .

. . terminates the interests of the mortgagee without any formal


     10
       "Equitable considerations . . . may affect the questions
whether mortgage security has been discharged or (if discharged)
will be reinstated and whether, by subrogation or upon analogous
principles, it still remains available to a mortgage creditor."
Piea Realty Co. v. Papuzynski, 342 Mass. 240, 246, 250 (1961)
(remanding for consideration whether principles of unjust
enrichment or other equitable considerations should reestablish
mortgage otherwise discharged by parties).
                                                                    12


. . . discharge and revests the legal title in the mortgagor").

Therefore, the judge's interpretation of the statute corresponds

to the plain meaning of the language chosen by the Legislature.

    Fitchburg argues that the judge's interpretation conflicts

with the language of the statute by citing the definition of

"mortgage" provided in G. L. c. 260, § 35.     Under this

provision, a "mortgage," for the purposes of the obsolete

mortgage statute, "includes any deed of trust or other

conveyance made for the purpose of securing performance of a

debt or obligation."   G. L. c. 260, § 35.    Fitchburg argues that

the definition in § 35 requires that the applicable maturity

date be tied directly to the mortgage and not to the underlying

obligation.   Fitchburg also cites language in Eaton, 462 Mass.

at 575, "A real estate mortgage in Massachusetts has two

distinct but related aspects:     it is a transfer of legal title

to the mortgage property, and it serves as security for an

underlying note or other obligation," to support its argument

that the maturity date of the note may not be exported to the

mortgage because a mortgage and a note each have separate legal

significance in Massachusetts.    Fitchburg's argument is

unavailing for several reasons.

    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
                                                                     13


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 the act, however, is ineffective
                                                                   14


to modify the language of the statute because that language is

clear.    "Although we have recognized that the title of an act or

statutory provision may be helpful in clarifying ambiguity,

. . . or identifying the act's 'proper limitations,' . . . the

title may not replace or limit otherwise clear language in the

act itself" (citations omitted).    Olmstead v. Department of

Telecommunications & Cable, 466 Mass. 582, 589 n.12 (2013).

Because the ordinary meaning of "term or maturity date of the

mortgage" is clear based on common usage of that language, the

title of the act cannot control.    American Family Life Assur.

Co. v. Commissioner of Ins., 388 Mass. 468, 474, cert. denied,

464 U.S. 850 (1983) ("title of an act cannot control the plain

provisions of the act").    Even if we took the title into

account, the language of the title comports with the common

usage of mortgage and note.    The Legislature chose the words,

"after payoff of mortgages," for the title.    However, a mortgage

cannot be paid off; only its underlying obligation can be paid

off.    Accordingly, the Legislature referred to the mortgage in

the title as possessing characteristics of underlying

obligations similar to the phrase, "maturity date of the

mortgage," used in the statute.

       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
                                                                   15


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.11

Although the title references mortgages "after payoff," review

of the entire act demonstrates an over-all scheme to streamline

conveyancing and provide remedies to clear title blemished by

mortgages in various levels of standing, including mortgages

whose obligations have been satisfied, St. 2006, c. 63, §§ 2-4;

mortgages granted by mortgagors who have been in possession of

the secured property for a specified period without recognizing

the mortgage as valid, St. 2006, c. 63, § 5; and mortgages that

have become obsolete, St. 2006, c. 63, §§ 6-7.12   Accordingly,


     11
       A search of legislative history has not produced any
detailed official purpose of St. 2006, c. 63 (act), or its
various sections.
     12
       Sections 2, 3, and 4 of the act expanded the statutes
regulating mortgage discharges, G. L. c. 183, §§ 54B, 54C, 54D,
and 55, and provided specific timeframes in which a discharge
must be recorded after payoff. Sections 4A and 4B of the act
updated the disclosures required during the mortgage application
process by amending G. L. c. 184, § 17B, and repealing §§ 17C
and 17D. Section 5 of the act amended the statute governing
actions to quiet title, G. L. c. 240, § 15, and provides
additional avenues for discharging a mortgage when the
underlying obligation has been satisfied or when a mortgagor
                                                                        16


although the Legislature used the words "after payoff" in the

title of the act, it is clear from review of the entire act that

the Legislature did not intend to limit all changes in the act

to affect only mortgages where the underlying obligations had

been paid off or satisfied.

    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



claims that the mortgage is invalid and that claim is not
contested.
                                                                   17


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

percent interest per annum, payable in one year . . . as

provided in the promissory note of even date."     Based on the

reasoning above, we read the quoted language in each mortgage to

state the term or maturity date of that mortgage, making each

subject to the five-year statute of limitations.

    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
                                                                   18


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,13 Fitchburg does not assert

the presence of any debts incurred after the date of the BDC

mortgage that would have been secured under its dragnet clause,

and thus possibly extend the term of the mortgage beyond the

term of the original note.   Without holding that a dragnet


     13
       The mortgagor, Lee Bourque, is the brother of the
principal of Bourque Development Corporation and of Fitchburg,
Paul Bourque. Paul, through his company, made a series of loans
to his brother to be used in real estate development activities.
These loans culminated in the BDC mortgage.
                                                                  19


clause may never extend the term or maturity date of a mortgage,

we conclude that the dragnet clause here did not extend the term

of the BDC mortgage or take that mortgage out of the realm of

mortgages in which the term is stated.14

     5.   Constitutionality of retroactive application of

limitations period.   After determining that the Christiano and

BDC mortgages were discharged under the obsolete mortgage

statute, the judge rejected Fitchburg's constitutional challenge

to the retroactive application of the shortened statute of

limitations, reasoning that there were no constitutional

infirmities where the Legislature allowed sufficient time after

enacting St. 2006, c. 63, § 6, for affected parties to bring a

foreclosure and where G. L. c. 260, § 33, as amended, does not

totally abrogate existing property rights.   Fitchburg argues

that, assuming we agree that the judge correctly interpreted the

obsolete mortgage statute, we must reverse because the

application of the statute in this case violates due process and


     14
       Under Massachusetts case law, the dragnet clause would
only have provided security for new debt incurred before the
presence of an intervening lien. Debral Realty, Inc. v.
Marlborough Coop. Bank, 48 Mass. App. Ct. 92, 94 (1999). In
this case, the next lien following the BDC mortgage was incurred
April 13, 2004. Accordingly, even if the dragnet clause were
operative to extend the term of the mortgage separate from the
term of the original note, the dragnet clause would only extend
the mortgage's maturity date from December 31, 2003, to April
13, 2004, and the five-year statute of limitations would still
have expired before Fitchburg's purported foreclosure sale on
April 30, 2012.
                                                                    20


contracts clause protections under the Massachusetts and Federal

Constitutions.    In that connection, Fitchburg argues that

retroactive application of the five-year limitations period to

the BDC and Christiano mortgages is unreasonable and

unconstitutional.

    "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
                                                                   21


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 date of the operative section until October 1, 2006.15

St. 2006, c. 63, §§ 6, 9.   Accordingly, the Legislature

determined that five and one-half months was a reasonable time

for mortgagees to enforce their rights under mortgages that

would be deemed obsolete under the revised statute or to record

one of the other documents permitted by statute to preserve the

mortgagee's rights.16   G. L. c. 260, §§ 33-34.   We have

considered shorter periods of time before the effective date of

a shortened statute of limitations to be reasonable.    See, e.g.,

Cunningham v. Commonwealth, 278 Mass. 343, 346 (1932); Mulvey v.

Boston, 197 Mass. 178, 183-185 (1908) (thirty days).    See also

Evans v. Building Inspector of Peabody, 5 Mass. App. Ct. 805,

805-806 (1977) (ninety days).




     15
       The Legislature provided an additional extension for
enforceability of mortgages affected by §§ 5 and 6 of the act,
where the term would expire during the one year following the
effective date, so that those mortgages would be enforceable
through October 1, 2007. St. 2006, c. 63, § 8.
     16
       As previously noted, a mortgagee may record an extension
or affidavit or acknowledgment that the underlying obligation
has not been satisfied in order to extend the time before a
mortgage is deemed obsolete under G. L. c. 260, § 33.
                                                                    22


    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
                                                                23


directives does not make the statute unconstitutional.   Cioffi,

supra.

    6.   Conclusion.   The order allowing in part Deutsche Bank's

motion for partial summary judgment is affirmed.

                                    So ordered.
