First Colonial Bank

Full title: FIRST COLONIAL BANK FOR SAVINGS vs. ROBERT H. BERGERON, others

Court: Appeals Court of Massachusetts. Essex

Date published: Feb 14, 1995

Facts

The holder of a junior lien was entitled to enforce the lien against surplus proceeds of a foreclosure sale of real estate, and where the surplus proceeds were less than the amount of the junior lien, the former owners never acquired any property interest within the meaning of the provisions of 11 U.S.C. § 552 (a), as a result of their filing for and being discharged from bankruptcy before the foreclosure sale. [137-138] The provisions of G.L.C. 183, § 21, regarding foreclosure sales of real estate, do not terminate equitable liens in the surplus proceeds as may be held by junior mortgagees [138], nor do the provisions of G.L.c. 183, § 27, negate a junior lienor’s right to the surplus as a “successor” or “assignee” [138]. A party to a civil action could not object to the substitution of the real party in interest for a named defendant for the first time on appeal. [138-139] In a civil action, the judge correctly decided a motion for summary judgment based on the pleadings and memoranda of law.

Issue

Court Judgment

Finally, there is no merit to the argument of the Bergerons that summary judgment was improper because Ford was substituted for Ford Motor Credit Company as a party defendant and the judge decided the motion without the benefit of an affidavit from Ford. The Bergerons failed to object to the substitution in the trial court and cannot complain at this juncture. Moreover, it would appear that Ford was the real party in interest. See Mass.R.Civ.P. 17(a), 365 Mass. 763 (1974). Nor did the trial judge err in deciding the case based on the pleadings and memoranda of law. A motion for summary judgment is not required to be accompanied by an affidavit. Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974).

Judgment affirmed. 

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