Shane v. Winter Hill Federal Savings & Loan Ass'n
Shane v. Winter Hill Federal Savings & Loan Ass'n
Opinion of the Court
The novel question presented by this case is whether an agreement between the mortgagor of a parcel of land and the first mortgagee to increase the rate of interest on the mortgage is binding on the second mortgagee and consequently on the plaintiffs, as nominees of the second mortgagee and assignees of its rights and interests concerning this matter. The agreement to raise the interest rate was made without notice to the second mortgagee and was subsequent to both the giving of the second mortgage, and the execution of a written agreement between the first and second mortgagees assuring the junior lienor certain rights to notice and certain opportunities to cure defaults.
On April 27, 1983, the plaintiffs filed a complaint in the Superior Court seeking a declaration, pursuant to G. L. c. 231A (1984 ed.), that the rate of interest on the mortgage held by the defendant first mortgagee is 9.75%, the original interest rate of the first mortgage, rather than 11%, the interest rate later agreed to by the mortgagor and the defendant. The plaintiffs also sought money damages in an amount representing a refund of all interest payments made to the defendant above the original rate of 9.75%. After the judge denied the plaintiffs’ motion for summary judgment, the parties jointly submitted a statement of agreed facts and a schedule of “agreed to exhibits. ” No testimony was given at trial and no evidence was submitted beyond the documentary exhibits stipulated to by the parties.
The relevant facts are as follows. In April, 1977, Richard E. Ross, as trustee of Turnpike Realty Trust (mortgagor), executed a $450,000 mortgage note and deed to the defendant,
In April, 1982, the plaintiffs, as Debral’s nominees, purchased the Canton property subject to the first mortgage of the defendant. Shortly thereafter, Debral assigned to the plaintiffs all claims against the defendant regarding the increase in the interest rate. As of June 11, 1984, the account was fully up to date.
The plaintiffs proceed on two theories to support their contention that the increase in the monthly interest rate did not bind Debral, and thus does not bind them as nominees and assignees of Debral’s rights. First, they argue that the agree
1. Contract claim. The relevant portions of the agreement between the defendant and Debral provide:
“[The defendant] does hereby agree that prior to taking any action to accelerate the maturity of the indebtedness evidenced by the above described note or to enforce collection thereof by foreclosure of the lien of the mortgage securing the same, [the defendant] will give [Debral] written notice ... of any default with respect to said note and mortgage and will allow [Debral] the right ... to cure such default.
“[The defendant] does further agree that it will make no future advances under the aforesaid note and mortgage, to the mortgagee [sic] or his successors in title other than those permitted pursuant to the provisions of [G. L. c. 183, § 28A], which advances are made for the purposes of protecting the [defendant’s] rights under said mortgage, without first obtaining the consent of Debral Realty, Inc.”
The judge ruled that, as no action was taken to accelerate the maturity of the indebtedness or to foreclose the lien, notice to Debral was not mandated by the first clause quoted. Similarly, he ruled that the notice of and consent to future advances required by the second clause quoted was inapplicable, as the defendant at no time paid any additional money to the mortgagor. We agree.
The plaintiffs’ primary contention is that the phrase “prior to taking any action to accelerate ... or to enforce collection
It is, of course, true that the intent of the parties is a significant factor in the interpretation of a contract. We have said that a contract should be construed to give it effect as a rational business instrument and in a manner which will carry out the intent of the parties. McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264 (1962). “Justice, common sense and the probable intention of the parties are guides to constmction of a written instrument.” Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964), and cases cited. New England Found. Co. v. Commonwealth, 327 Mass. 587, 596 (1951). The plaintiffs’ version of the parties’ intent is, however, not suggested by the agreement. The agreement does not, as it might, provide simply that the defendant must give Debral written notice of any default and allow Debral the right to cure. Instead, the defendant’s obligation to give notice of “any default” is carefully modified by the phrase “prior to taking any action to accelerate the maturity ... or to enforce collection ... by foreclosure.” Thus, an affirmative decision by the defendant actually to take action to accelerate or to foreclose is necessary in order to trigger the defendant’s obligation to give notice and opportunity to cure. The defendant, however, decided to forgo any such action in exchange for raising the interest rate. The defendant, then, was not “taking . . . action” in the sense intended by the
The language of the letter of agreement is specific and well defined. While it plainly does operate to give Debral substantial opportunities to protect its security, such opportunities are limited, since the right to notice and cure is circumscribed, being triggered by specified events. The agreement suggests that the parties intended that Debral’s right to protect its security should obtain only under certain conditions. “[T]he words themselves remain the most important evidence of intention.” Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973), quoting National City Bank v. Goess, 130 F.2d 376, 380 (2d Cir. 1942). By reading “any action to accelerate” as broadly as the plaintiffs urge, we would convert the agreement from one granting a limited right to notice into one which would have obligated the defendant to give Debral notice whenever the defendant notified the mortgagor of a default. As this would vitiate the language of the first clause quoted, we decline to adopt the plaintiffs’ interpretation. See McMahon v. Monarch Life Ins. Co., supra (a contract is to be construed to give reasonable effect to each of its provisions, if possible).
Finally, the plaintiffs contend that the agreement to increase the interest rate constituted a future advance. They argue that such an advance would violate the second quoted clause of the letter of agreement because Debral’s prior consent was not obtained. If the words of a contract are unambiguous they must be construed in their usual and ordinary sense. Save-Mor Supermarkets, Inc. v. Shelly Detective Serv., Inc., 359 Mass. 221, 225-226 (1971), and cases cited. The words “future advances” and “advances”
2. Common law claim. There is no doubt that by agreement the mortgagor and the defendant could bind themselves to an increased monthly interest rate. See Barry v. General Mortgage & Loan Corp., 254 Mass. 282, 287 (1926); Ellis v. Sullivan, 241 Mass. 60, 63-64 (1922), and cases cited; Strong v. Stoneham Co-op. Bank, 2 Mass. App. Ct. 828 (1974). Here, however, the question is whether such an interest rate agreement may bind Debral, as second mortgagee, where the defendant was aware of this junior interest, and where the agreement was subsequent to Debral’s mortgage. Compare Strong v. Stoneham Co-op. Bank, supra at 829. The rule in this circumstance, as correctly recognized by the judge, is that such a later modification of the mortgage by a senior mortgagee
The judge ruled that there was “no sound basis for any contention that the greater rate prejudiced Debral’s rights or diminished its security interest as it existed at the time the second mortgage was executed.” We hold that the better reasoned view is to the contrary. The agreement between the mortgagor and the defendant operated to obligate Debral to pay a greater sum per month in order to cure the mortgagor’s default. Although this fact alone may not suffice to demonstrate an impairment of Debral’s security,
So ordered.
This fact does not appear in the record or in the judge’s rulings and order. Rather, the plaintiffs’ attorney offered this information without opposition at oral argument before this court.
The agreement itself provides, in part: “In consideration of [the defendant’s] not making demand for the entire balance due on our loan . . . , we agree to an increase in the interest rate from 9.75% to 11.00%. No other terms or conditions of the existing note or mortgage are [affected] by this extension agreement.”
Debral’s payments were made under protest and without prejudice to its right to challenge the increased interest rate.
The term “advances” is defined as “[m]oneys paid before or in advance of the proper time of payment; money or commodities furnished on credit;
The record is bare of any evidence regarding the value of the Canton property during the time the mortgagor, and later Debral or the plaintiffs, paid the $657 a month increase as a result of the raised interest rate. It is mere speculation that this increase impaired Debral’s security, without some indication that the property’s value has remained constant or has been reduced. If in fact the property’s value has risen, the value of Debral’s equity may have actually increased due to the increased value of the real estate. See Schwartz, 13 Ann. Survey Mass. Law 2, 6 (1966).
The clause provides in full: “At the option of the Association, on a loan which is delinquent by reason of the non-payment of any sum due the Association there may be charged an additional rate of interest, but such additional charge shall not exceed a per annum rate of one per cent of the unpaid balance of the loan for the period of delinquency.”
Reference
- Full Case Name
- Richard Shane, trustee, & another v. Winter Hill Federal Savings and Loan Association
- Cited By
- 1 case
- Status
- Published