George Maroun, Sr. & a .
Deutsche Bank National Trust Company
Argued September 18, 2014
Paul A. Petrillo, of Salem, by brief and orally, for the plaintiffs.
Hinshaw & Culbertson LLP, of Boston, Massachusetts ( Marissa I. Delinks and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
The plaintiffs, George Maroun, Sr. (husband) and Edith Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank National Trust Company (bank), from foreclosing on property owned by the wife. The Superior Court ( McHugh, J.) denied the plaintiffs' summary judgment motion and granted the bank's cross-motion for summary judgment. The plaintiffs appeal, and we affirm.
The following facts are drawn from the trial court's order or are otherwise undisputed on the record before us. Prior to 1991, the plaintiffs owned property in Salem (the property) together. In 1991, the husband executed a deed (1991 deed) that conveyed his interest in the property to the wife. Ten years later, in 2001, the husband executed a notarized affidavit (2001 affidavit), which stated that at the time he executed the 1991 deed he was married to the wife and that, " through accident, inadvertence or mistake, the deed did not state that [he] released [his] homestead rights." The husband purportedly made the 2001 affidavit " to correct said omission." The affidavit referenced only the 1991 deed, and the correction did not purport to relate to any specific mortgage on the property. The affidavit was filed with the Rockingham County Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on the property (2001 mortgage), which stated: " I, George C. Maroun, husband of mortgagor, hereby waive all rights of homestead and other interests herein." In 2002, the husband and wife executed another mortgage on the property (2002 mortgage) that included the same language waiving the husband's homestead right and other interests in the property.
In 2006, the wife, alone, executed both a promissory note and a mortgage on the property (2006 mortgage), which are the subject of this litigation. The mortgage document erroneously states that the wife is a single woman. Although the mortgage document also states, " Borrower [wife], and Borrower's spouse, if any, release all rights of homestead ... and ... other interests in the Property," the husband did not sign the note or the mortgage document. In 2009, the mortgage was assigned to the bank. The bank took no action to address the status of the husband's homestead right.
In 2008, the wife filed an individual Chapter 13 bankruptcy petition that listed the property as an asset on the required schedule of real property. In 2010, the wife filed amended schedules of assets with the bankruptcy court in her bankruptcy case that asserted that the husband possessed a homestead right in the property and that the husband's claim had a higher priority than the 2006 mortgage. When the wife ultimately emerged from bankruptcy protection, she was required to pay some prepetition arrearage amounts secured by the 2006 mortgage and to make certain ongoing payments on the debt. Following her discharge, the wife did not cure her arrears, and the bank sought to foreclose upon the property.
The plaintiffs filed a petition for injunctive relief in the superior court, arguing that the husband's homestead right has priority over the 2006 mortgage debt, and requesting a permanent injunction against the bank's foreclosure sale of the property. The parties agreed that there were no disputed issues of material fact, and each moved for summary judgment. The trial court granted the bank's motion for summary judgment and denied the plaintiffs' motion.
On appeal, the plaintiffs argue that the trial court erroneously concluded that the husband waived or released his homestead rights with respect to the 2006 mortgage. The plaintiffs also contend that the trial court erred by not finding that, pursuant to the doctrines of res judicata and collateral estoppel, the bank is estopped from foreclosing on the husband's homestead rights based upon rulings in the wife's bankruptcy case. Finally, despite the trial ...