Monthly Archives

November 2017

Mass. Appeals Court Rebuffs Mortgagee’s Novel Bid For Equitable Subrogation

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In its decision yesterday in Wells Fargo Bank v. Comeau (pdf), the Massachusetts Appeals Court rejected the plaintiff mortgagee’s attempt to use the doctrine of equitable subrogation in a novel way:  to impose on a surviving wife the obligation to pay a note signed by her late husband where the wife had not signed either the note or the mortgage.

The boiled down facts are as follows.  Husband and wife owned a home as tenants by the entirety.  In 2003 the property was mortgaged to a local bank.  Husband alone signed the note; husband and wife signed the mortgage.  In 2005 husband refinanced with a different bank.  This time husband alone signed both the note and mortgage.  In 2008 husband died, leaving a balance due on the note.  Wells Fargo, successor of the refinancing bank, did not assert a claim against husband’s estate before the statute of limitations expired.  Instead Wells Fargo sued wife, claiming its mortgage should be equitably subrogated to the position

When is a park constitutionally protected parkland? Mass. SJC re-examines test under Article 97

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In a decision of interest to municipalities, conservation groups, and land use experts, the Massachusetts Supreme Judicial Court (SJC) recently decided that a public playground in the City of Westfield is parkland protected by Article 97 of the Amendments of the Massachusetts Constitution.  Art. 97 provides, in part, that property “taken or acquired” for conservation purposes “shall not be used for other purposes” without approval by a two-thirds vote of each branch of the state legislature.  In Smith v. City of Westfield, the SJC expanded the reach of Art. 97 by concluding that municipal parkland may be protected even without a recorded restriction, provided the land has been dedicated as a public park.

The case concerned the Cross Street Playground in Westfield, a 5.3 acre parcel that is home to two baseball fields and a playground.  It has been a public playground for more than 60 years.  In 1979, Westfield received a grant from the federal government under the Land and Water