Preview
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
ER
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
DOCKET NO.:
FIRSTKEY MORTGAGE, LLC
Plaintiff,
Vv.
VICTOR THOMAS, STACY B. THOMAS
Defendants,
COMPLAINT FOR DECLARATORY JUDGMENT
INTRODUCTION
The Plaintiff seeks a declaratory judgment pursuant to G.L. c. 231A §§ 1-9 and/or
equitable reformation to correct the legal description of a deed and mortgage to conform to a
subdivision plan. The Plaintiff, First Key Mortgage, LLC (“First Key”) is the holder of a mortgage
encumbering 35 Dunreath Street, Roxbury (Boston), MA 02119 (the “Property”). Due to
inadvertence and mistake, the legal description of the Property in the mortgage and in the deed
preceding it, is incorrect. To remove a cloud on title due to the incorrect legal description, the
Plaintiff requests that this Court reform the Deed and Mortgage to contain the correct legal
description of the Property.
PARTIES
The Plaintiff, First Key Mortgage, LLC is a foreign limited liability company with a
mailing address of c/o Select Portfolio Servicing, Inc., 3217 South Decker Lake Drive, Salt
Lake City, UT 84119.
The Defendant, Victor Thomas is a Massachusetts resident with a last known address of 35
Dunreath Street, Roxbury (Boston), MA 02119.
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
The Defendant, Stacy B. Thomas is a Massachusetts resident with a last known address of
35 Dunreath Street, Roxbury (Boston), MA 02119.
FACTS
On or about September 14, 2001, Victor Thomas and Stacy B. Thomas (“Borrowers”)
acquired title to the Property by quitclaim deed recorded with the Suffolk County Registry
of Deeds (“Registry”) at Book 27313, Page 156 in the (the “Deed”). A true and accurate
copy of the Deed is attached as Exhibit A.
5 The legal description of the Property in the Deed is as follows:
The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury,
numbered 35 Dunreath Street in the present numbering, being lot 3 on a subdivision plan made by
C.H.W. Wood Co., C.E., dated April 14, 1909, recorded with Book 3358, Page 301, and bounded
and described as follows:
NORTHWESTERLY by Dunreath Street, forty-five (45) feet;
SOUTHWESTERLY by land now or formerly of the Way Estate, being lot 13 as shown
on a plan recorded with Suffolk Deeds at end of Book 1672, eighty
and 48/100 (80.48) feet;
SOUTHEASTERLY by land now or late of Whalen, forty-five and 15/100 (45.15) feet;
and
NORTHEASTERLY by Lot A on said first mentioned plan, seventy-six and 13/100
(76.14) feet.
Containing 3524 square feet of land. More or less. Said Premises are conveyed subject to and with
the benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar
as the same may be in force and applicable.
Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons
recorded with the Suffolk Registry of Deeds Book 24233, Page 86. See Suffolk Probate OOP2021.
(emphasis added).
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
The legal description of the Property in the Deed is incorrect, as the subject Property is
described as Lot B and not Lot 3 of the subdivision plan. A true copy of the subdivision
plan referred to and incorporated into the Deed, is attached as Exhibit B.
On September 18, 2006, Borrowers granted a Mortgage encumbering the Property to Bank
of America, N.A. as recorded with the Registry at Book 40620, Page 333 (the “Mortgage”).
A true and accurate redacted copy of the Mortgage is attached as Exhibit C.
On December 11, 2020, Bank of America, N.A. assigned the Mortgage to Mortgage
Electronic Registration Systems (“MERS”) by assignment recorded with the Registry at
Book 64456, Page 85. A true and accurate copy is attached as Exhibit D.
On December 4, 2023, MERS assigned the Mortgage to Plaintiff by assignment recorded
with the Registry at Book 69703, Page 51. A true and accurate copy is attached as Exhibit
E
10. The Mortgage describes the Property as:
Being the same property conveyed and described in a Deed recorded among the
land records of the County set forth above:
Deed recorded in Book 27313, Page 156.
See Exhibit C at page 2.
11 The Mortgage contains no other legal description of the Property, other than incorporating
the Deed.
12. FirstKey’s mortgage loan has not been satisfied.
COUNT I- DECLARATORY JUDGMENT
13 First Key restates and realleges the allegations set forth in paragraphs 1 through 12 of the
complaint as though fully set forth herein.
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
14 Due to inadvertence and/or mistake, the Deed and Mortgage contain an incomplete and/or
inaccurate legal description of the Property.
15 The incorrect legal description of the Property in the Deed and Mortgage represents a cloud
on title that, if not corrected, adversely affects FirstKey’s security interest in the Property.
16 First Key has no adequate remedy at law.
17. First Keys’s rights, status, and legal responsibilities will be adversely and irreparably
affected if the Court does not enter declaratory judgment to be recorded in the Suffolk
County Registry of Deeds, reforming the Deed and Mortgage to include the correct lot
number of the Property in the legal description.
COUNT II -E UITABLE REFORMATION/MUTUAL M! KE
18 First Key restates and realleges the allegations in paragraphs | through 17 of this complaint.
19. First Key has no adequate remedy at law and a balance of the equities favor the relief it
seeks.
20. The Borrowers intended to acquire and grant a mortgage the property 35 Dunreath Street,
Roxbury (Boston), MA 02119 as more accurately described as Lot B on the subdivision
plan dated April 14, 1909 and recorded with the Registry at Book 3358, Page 301.
21 As a result of a mutual mistake, the legal description of the Property in the Deed and
Mortgage, is incorrect.
22. The incomplete and/or inaccurate legal description in the Deed and Mortgage creates a
cloud on title that impairs FirstKey’s security interest in the Property.
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
WHEREFORE, the Plaintiff, First Key Mortgage, LLC., respectfully requests that this
Honorable Court:
A. Enter a judgment or Order reforming the legal descriptions of the Deed and Mortgage,
nuc pro tunc from the date of such documents, to read as follows:
The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury,
numbered 35 Dunreath Street in the present numbering, being lot B on a subdivision plan made
by C.H.W. Wood Co., C.E., dated April 14, 1909, recorded with Book 3358, Page 301, and
bounded and described as follows:
NORTHWESTERLY by Dunreath Street, forty-five (45) feet;
SOUTHWESTERLY by land now or formerly of the Way Estate, being lot 13 as shown
ona plan recorded with Suffolk Deeds at end of Book 1672, eighty
and 48/100 (80.48) feet;
SOUTHEASTERLY by land now or late of Whalen, forty-five and 15/100 (45.15) feet;
and
NORTHEASTERLY by Lot A on said first mentioned plan, seventy-six and 13/100
(76.14) feet.
Containing 3524 square feet of land. More or less. Said Premises are conveyed subject to and with
the benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar
as the same may be in force and applicable.
Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons
recorded with the Suffolk Registry of Deeds Book 24233, Page 86. See Suffolk Probate OOP2021;
B. Grant such other and further relief as the Court deems just, equitable, and proper.
Respectfully submitted,
FIRST KEY MORTGAGE, LLC
By its attorneys,
/s/ Lucas P. Marchifrazier
Lucas P. Marchifrazier, Esq.
BBO No.: 709435
Harmon Law Offices, PC
150 California Street
Newton, MA 02458
(617) 558-8445
Dated: January 22, 2024 Imarchifrazier@harmonlaw.com
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
Please Note:
The Decuments Appended Hereto Have Been Redacted
To Prevent Any Possible Disclosure of Personal and Private Information
Any Document Marked As A True And Correct Copy
Has Also Been Redacted For This Purpose
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
Exhibit A
Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
pc
27313 156 608
Deed
\
i> We, Ferba H. Lofton of Springfield, Missouri, Francis Bridges of Boston, Massachusetts and Maude
L. Simmons, of Boston, Massschusetts in consideration of One Hundred Thousand and 00/100 Dollars
{$100,000.00 ) Dollars grant to VictorT. Thomas and Stacey B. Thomas husband and wife as tenants
by the entirety of 38 Dunreath Street, Roxbury, Massschusetts 02119 with QUITCLAIM
COVENANTS
‘The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury, numbered 35
Dunreath Street in the present numbering, being Lot 3 on a subdivision plan made by C.H.WV. Wood Co.,
se CEE, dated April 14, 1909, recorded with Book 3358, Page 301, and bounded and described as follows:
NORTHWESTERLY by Dunreath Street, forty-five (45) feet;
v
SOUTHWESTERLY by land now or formerly of the Way Estate, being Lot 13 as shown
ona plan recorded with Suffolk Deeds at end of Book 1672, cighty
and 48/100 (80.48) feet;
SOUTHEASTERLY by land now or tate of Whalen, forty-five and 15/100 (45.15) feet;
NORTHEASTERLY by Lot A on said first-mentioned plan, seventy-six and 13/100
(76.13) feet.
Containing 3524 square feet of land, more or less. Said premises are conveyed subject to and with the
benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar as the
same may be in force and epplicable.
Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons,
Reasrded pith
w fhe Suffolk Registry of Deeds Book 24233, Page 86, SEF Samrece
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Date Filed 1/23/2024 10:10 AM
Superior Court - Suffolk
Docket Number
Exhibit C
Date Filed 1/23/2024 10:10 AM Bk: 40620 Pg: 333
Superior Court - Suffolk
Docket Number
*
REDACTED
\ After Recording Return To:
REEL
Thomas, Victor T
ae ae
Record and Return Tot
Fiserv Lending Solutions
27 Inwood Road
RO ICKY HILL T O6067
aes
Loan Number: eheng STEERS
Property Address: 35 DUNREATH STREET Bk: 40620 Pg: 333 Doe: MTG
ROXBURY, MASSACHUSETTS 02119 Page: Toft4 10/25/2006 02:45 PM
{Space Above This Line For Recoreing Data
MORTGAGE
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in Sections
10, 12,
17, 19 and 20. Cenain rules regardinthe
g usage of words used in this document are also provided in Section 15.
{A) “Security Instrament* means this document, which is dated SEPTEMBER 18 1 2006 , together
with all Riders to this document.
(B) “Borrower* is VICTOR T THOMAS, STACEY B THOMAS
Attested hereto
Borrower is the mortgagor under this Security Instrument,
({C) "Lender"is Bank of America, NA
Lenderisa National
rancis M. Roache
Banking Association
and existing under the laws of THE UNITED STATES OF AMERICA
Register of Deeaeized
Lender's address is 100 North Tryon Street, Charlotte, North Carolina
28255
Lender is the mortgagee under this Security Instrument.
(D) "Note" means the promissory note signed by Borrower and dated SEPTEMBER 18, 2006
The Note states that Borrower owes Lender ONE HUNDRED FORTY-NINE THOUSAND ONE
HUNDRED THREE AND 79/100 Dollars U.S. $ 149,103.79
plus interest. Borrower has promisedto pay this debt in regular Periodic Payments and to pay )
the debt in full not later
than SEPTEMBER 22, 2031
(B) “Property” means the property that is described below under the heading
“Transfer of Rights in the Property.”
{F) "Loan" means the debt evidenced by the Note, plus interest, any prepaym: ent charges and late charges due under
the Note, and all sums due under this Security Instrument, plus interest.
(G) "Riders" means all Riders to this ‘Security Instrument that are execut
itedby Borrower. The following Riders are
to be executed by Borrower |check box as applicable]:
(1) Adjustable Rate Rider (C1) Condominium Rider ([] Second Home Rider
[Balloon Rider ([) Planned Unit Development Rider (2) Biweekly Payment Rider
K] 1-4 Family Rider {] Home Improvement Rider [2] Revocable Trust Rider
[7] Other(s) [Specify]
MSSAGHUSETTS SECOND LIEN MORTGAGE
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(H) “Applicable Law" meansail controlling applicable federal, state and local statutes, regulations, ordinances
and
administrative rules and orders (that have the effect of la Ww) as well as all applicable final, non-appeal
able judicial
opinions,
() "Community Association Dues, Fees, and Assessments" means all dues, fees,
assessinents and other charges
that are imposed on Borrower or the Property by a condominium association, hot meowners association or similar
organization.
Q) “Electronic Funds Transfer” means any transfer of funds, other than a transaction originated by check,
draft,
or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument,
computer, or
Magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an
account. Such term
includes, but is not limited to, point-of-saic transfers, automated teller machine
‘transactions, transfers initiated by
telephone, wire transfers, and automated clearinghouse transfers.
(K) Reserved.
@) “Miscellaneous Proceeds" means any compensation, settlement, award of dainages,
or proceeds paid by any
third party (other than insurance proceeds paid under the coverages described in Section 5)
for: (i) damage to, or
destruction of, the Property; (ii) condemnation or other taking of all or any part of the Proper ty; (iii) conveyance in
lieu of condemnation: or (iv) misrepresentations of, or omissions ac
to, the value and/or condition of the Property.
(M) Reserved.
(N) “Periodic Payment” means the regularly scheduled amount due for principal and interest under the Note.
(O) "RESPA” means the Real Estate Settlement Procedures Act ‘12 U.S.C. 601 et seq.) and ils implement
ing
regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from
time to time, or any additional or
successor legislation or regulation that governs the same subject matter,
As used in this Security Instrument,
“RESPA" refers to all requirements and restrictions that are imposed in regard toa “federally related mortgage loan”
even if the Loan does not qualify as a “federally related mortgage toan" under RESPA.
(P) “Successor in Interest of Borrower" means any party that has taken title to the Property, whether or
not that
party has assumed Borrower's obligations under the Note and/or this Security Instrument
.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's c ovenants and agreements
under this Security
Instrument and the Note. For this purpose, Borrower does hereby mort; gage, grant and conveyto Lender
and Lender's
successors and assigns, with power of sale, the following described property located in
the
COUNTY of SUFFOLK
[Type of Recording Jurisdiction} [Name of Recording Jurisdiction}
SCENT re 7s Mma Att cee
oF.
Being the same property conveyed and described in a Deed
recorded among the land records of the County set forth above:
Deed recorded in BOOK R72 1D _ pace LIG
THIS SECURITY INSTRUMENT TI. S SUBORDINATE TO AN EXISTING
LIEN ( ) OF RECORD. FIRST
which currently has the address of 35 DUNREATH STREET
[Street]
ROXBURY » Massachusetts 02119 ("Property Address"):
[city] [Zip Code}
MISSACHUSETTS SECOND LIEN MORTGAGE
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TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions
shall also be
covered by this Security Instrument. All of the foregoing is referred ‘0 in this Security Instrument as the
“Property.”
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right
to mortgage. grant and convey the Property and that the Property is unencumbered, except for encumbrance
s of
record. Borrower warrants and will defend generally the title to the Property against all claims
and demands, subject
to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants
with
limited variations by jurisdiction to constitute a uniform security instrament covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Payment of Principal, Interest, Prepayment Charges, and Late Charges. Borrower shall pay when due
the principal of, and interest on, the debt evidenced by the Note and any prepayment charges
and late charges due
under the Note. Payments due under the Note and this Security Instrument shallbe made in U.S. currency. However,
ifany check or other instrument received by Lender as payment under the Note or this Security
Instrument is returned.
to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and
this Security
Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money
order; (c)
certified check, bank check, treasurer's check orcashier’s: check, provided any such check is drawn upon
ant institution
whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at such
other
location as may be designated by Lender in accordance with the notice provisions in Section 14. Lender
may return
any payment or partial payment if the payment or partial payments are insufficient to bring the
Loan current. Lender
may accept any payment or partial payment insufficient to bring the Loan current, without waiver
of any rights
hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but
Lender is not
obligated to apply such payments at the time such payments are aces] ed. If each Periodic Payment is applied as of
its scheduled due date, then Lender need not pay interest on unapplicd funds. Lender may hold such unapplied funds
until Borrower makes payment to bring the Loan current. If Borrower docs not do so within
a reasonable period of
time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such
funds will be
applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset
or claim
which Borrower might have now or in the future against Lender shall relieve Borrower from making
payments due
under the Note and this Security Instrument or performing the covenants and agreements secured by this Security
Instrument.
2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments
accepted and applied by Lender shall be applied in the following order of priority; (a) interest due under
the Note:
and (b) principal due under the Note. Such payments shall be applicd to cach Periodic Payment in the
order in which
it became duc, Any remaining amounts shall be applicd first to late charges, second to any other amounts duc under
this Security Instrument, and then to reduce the principal balance of the Note.
If Lender receives a payment from Borrower for a delinquem Periodic Payment which includes a sufficient
amount to pay any late charge due, the payment may be applied to the delinquent payment and the late
charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to
the
repayment of the Periodic Payments if, and to the extent that, each payment can be paid in full, To the extent that
any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may
be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges and
then
as described in the Note.
Any application of payments. insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note
shall not extend or postpone the due date, or change the amount, of the Periodic Payments,
3. Reserved.
4. Charges; Liens. Borrower shall perform all of Borrower's obligations under any mortgage, deed
of trast
or other security instrument that is a tien having priority over this Security Instrument. Borrower shall pay all
taxes,
MASSAGHUSETTS ‘SECOND LIEN MORTGAGE
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assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security
Instrument, leaschold payments or ground rents on the Property, ifary, and Community Association Dues, Fees, and
Assessments, if any.
Except for a lien Borrower disclosed to Lender in Borrower's application or in any title report Lender obtained,
Borrower shall promptly discharge any lien which has priority over this Security Instrument uniess Borrower: (a)
agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so
Jong as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement
of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those
Proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the licn an
agreement satisfactory to Lender subordinating the lien to this Security Instrument. [f Lender determines that any part
of the Property is subject to a licn which can attain priority over this Security Instrument, Lender may give Borrower
a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien
of take one or more of the actions set forth above in this Section 4.
Lender may require Borrower to pay a one-time charge for a re-tl estate tax verification and/or reporting service
used by Lender in connection with this Loan.
5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the
Property insured against loss by fire, hazards included within the term “extended coverage," and any other hazards
including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be
maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender
requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier providing
the insurance shall be chosen by Borrower subject to Lender's rightto disapprove Borrower's choice, which right shall
notbe exercised unreasonably. Lender may require Borrower to pay. in connection with this Loan, either: {aja one-
time charge for flood zone determination, certification and tracking services; or {b) a one-time charge for flood zone
determination and certification services and subsequent charges eachi tine temappings or similar changes occur which
reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of
any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone
determination resulting from an objection by Borrower.
If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at
Lender's option and Borrower's expense, Lender is under no obligstion to purchase any particular type or amount
of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's
equity in the Property, or the contents of the Property, against any risk, hazard of liability and might provide greater
of lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so
obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed
by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These
amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest,
upon notice from Lender to Borrower requesting payment.
All insurance policies required by Lender and renewals of such policies shall be subject to Lendor's right to
disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagec and/or as an.
additional loss payee. Lender shall have the right to hold thc policics and renewal certificates, If Lender tequires,
Borrower shall promptly give to Lender ali receipts of paid premiums and renewal notices. If Borrower obtains any
form of insurance coverage, not otherwise required by Len
Preview
Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number ER COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT DOCKET NO.: FIRSTKEY MORTGAGE, LLC Plaintiff, Vv. VICTOR THOMAS, STACY B. THOMAS Defendants, COMPLAINT FOR DECLARATORY JUDGMENT INTRODUCTION The Plaintiff seeks a declaratory judgment pursuant to G.L. c. 231A §§ 1-9 and/or equitable reformation to correct the legal description of a deed and mortgage to conform to a subdivision plan. The Plaintiff, First Key Mortgage, LLC (“First Key”) is the holder of a mortgage encumbering 35 Dunreath Street, Roxbury (Boston), MA 02119 (the “Property”). Due to inadvertence and mistake, the legal description of the Property in the mortgage and in the deed preceding it, is incorrect. To remove a cloud on title due to the incorrect legal description, the Plaintiff requests that this Court reform the Deed and Mortgage to contain the correct legal description of the Property. PARTIES The Plaintiff, First Key Mortgage, LLC is a foreign limited liability company with a mailing address of c/o Select Portfolio Servicing, Inc., 3217 South Decker Lake Drive, Salt Lake City, UT 84119. The Defendant, Victor Thomas is a Massachusetts resident with a last known address of 35 Dunreath Street, Roxbury (Boston), MA 02119. Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number The Defendant, Stacy B. Thomas is a Massachusetts resident with a last known address of 35 Dunreath Street, Roxbury (Boston), MA 02119. FACTS On or about September 14, 2001, Victor Thomas and Stacy B. Thomas (“Borrowers”) acquired title to the Property by quitclaim deed recorded with the Suffolk County Registry of Deeds (“Registry”) at Book 27313, Page 156 in the (the “Deed”). A true and accurate copy of the Deed is attached as Exhibit A. 5 The legal description of the Property in the Deed is as follows: The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury, numbered 35 Dunreath Street in the present numbering, being lot 3 on a subdivision plan made by C.H.W. Wood Co., C.E., dated April 14, 1909, recorded with Book 3358, Page 301, and bounded and described as follows: NORTHWESTERLY by Dunreath Street, forty-five (45) feet; SOUTHWESTERLY by land now or formerly of the Way Estate, being lot 13 as shown on a plan recorded with Suffolk Deeds at end of Book 1672, eighty and 48/100 (80.48) feet; SOUTHEASTERLY by land now or late of Whalen, forty-five and 15/100 (45.15) feet; and NORTHEASTERLY by Lot A on said first mentioned plan, seventy-six and 13/100 (76.14) feet. Containing 3524 square feet of land. More or less. Said Premises are conveyed subject to and with the benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar as the same may be in force and applicable. Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons recorded with the Suffolk Registry of Deeds Book 24233, Page 86. See Suffolk Probate OOP2021. (emphasis added). Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number The legal description of the Property in the Deed is incorrect, as the subject Property is described as Lot B and not Lot 3 of the subdivision plan. A true copy of the subdivision plan referred to and incorporated into the Deed, is attached as Exhibit B. On September 18, 2006, Borrowers granted a Mortgage encumbering the Property to Bank of America, N.A. as recorded with the Registry at Book 40620, Page 333 (the “Mortgage”). A true and accurate redacted copy of the Mortgage is attached as Exhibit C. On December 11, 2020, Bank of America, N.A. assigned the Mortgage to Mortgage Electronic Registration Systems (“MERS”) by assignment recorded with the Registry at Book 64456, Page 85. A true and accurate copy is attached as Exhibit D. On December 4, 2023, MERS assigned the Mortgage to Plaintiff by assignment recorded with the Registry at Book 69703, Page 51. A true and accurate copy is attached as Exhibit E 10. The Mortgage describes the Property as: Being the same property conveyed and described in a Deed recorded among the land records of the County set forth above: Deed recorded in Book 27313, Page 156. See Exhibit C at page 2. 11 The Mortgage contains no other legal description of the Property, other than incorporating the Deed. 12. FirstKey’s mortgage loan has not been satisfied. COUNT I- DECLARATORY JUDGMENT 13 First Key restates and realleges the allegations set forth in paragraphs 1 through 12 of the complaint as though fully set forth herein. Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number 14 Due to inadvertence and/or mistake, the Deed and Mortgage contain an incomplete and/or inaccurate legal description of the Property. 15 The incorrect legal description of the Property in the Deed and Mortgage represents a cloud on title that, if not corrected, adversely affects FirstKey’s security interest in the Property. 16 First Key has no adequate remedy at law. 17. First Keys’s rights, status, and legal responsibilities will be adversely and irreparably affected if the Court does not enter declaratory judgment to be recorded in the Suffolk County Registry of Deeds, reforming the Deed and Mortgage to include the correct lot number of the Property in the legal description. COUNT II -E UITABLE REFORMATION/MUTUAL M! KE 18 First Key restates and realleges the allegations in paragraphs | through 17 of this complaint. 19. First Key has no adequate remedy at law and a balance of the equities favor the relief it seeks. 20. The Borrowers intended to acquire and grant a mortgage the property 35 Dunreath Street, Roxbury (Boston), MA 02119 as more accurately described as Lot B on the subdivision plan dated April 14, 1909 and recorded with the Registry at Book 3358, Page 301. 21 As a result of a mutual mistake, the legal description of the Property in the Deed and Mortgage, is incorrect. 22. The incomplete and/or inaccurate legal description in the Deed and Mortgage creates a cloud on title that impairs FirstKey’s security interest in the Property. Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number WHEREFORE, the Plaintiff, First Key Mortgage, LLC., respectfully requests that this Honorable Court: A. Enter a judgment or Order reforming the legal descriptions of the Deed and Mortgage, nuc pro tunc from the date of such documents, to read as follows: The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury, numbered 35 Dunreath Street in the present numbering, being lot B on a subdivision plan made by C.H.W. Wood Co., C.E., dated April 14, 1909, recorded with Book 3358, Page 301, and bounded and described as follows: NORTHWESTERLY by Dunreath Street, forty-five (45) feet; SOUTHWESTERLY by land now or formerly of the Way Estate, being lot 13 as shown ona plan recorded with Suffolk Deeds at end of Book 1672, eighty and 48/100 (80.48) feet; SOUTHEASTERLY by land now or late of Whalen, forty-five and 15/100 (45.15) feet; and NORTHEASTERLY by Lot A on said first mentioned plan, seventy-six and 13/100 (76.14) feet. Containing 3524 square feet of land. More or less. Said Premises are conveyed subject to and with the benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar as the same may be in force and applicable. Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons recorded with the Suffolk Registry of Deeds Book 24233, Page 86. See Suffolk Probate OOP2021; B. Grant such other and further relief as the Court deems just, equitable, and proper. Respectfully submitted, FIRST KEY MORTGAGE, LLC By its attorneys, /s/ Lucas P. Marchifrazier Lucas P. Marchifrazier, Esq. BBO No.: 709435 Harmon Law Offices, PC 150 California Street Newton, MA 02458 (617) 558-8445 Dated: January 22, 2024 Imarchifrazier@harmonlaw.com Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number Please Note: The Decuments Appended Hereto Have Been Redacted To Prevent Any Possible Disclosure of Personal and Private Information Any Document Marked As A True And Correct Copy Has Also Been Redacted For This Purpose Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number Exhibit A Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number pc 27313 156 608 Deed \ i> We, Ferba H. Lofton of Springfield, Missouri, Francis Bridges of Boston, Massachusetts and Maude L. Simmons, of Boston, Massschusetts in consideration of One Hundred Thousand and 00/100 Dollars {$100,000.00 ) Dollars grant to VictorT. Thomas and Stacey B. Thomas husband and wife as tenants by the entirety of 38 Dunreath Street, Roxbury, Massschusetts 02119 with QUITCLAIM COVENANTS ‘The land in that part of Boston, Suffolk County, Massachusetts, formerly called Roxbury, numbered 35 Dunreath Street in the present numbering, being Lot 3 on a subdivision plan made by C.H.WV. Wood Co., se CEE, dated April 14, 1909, recorded with Book 3358, Page 301, and bounded and described as follows: NORTHWESTERLY by Dunreath Street, forty-five (45) feet; v SOUTHWESTERLY by land now or formerly of the Way Estate, being Lot 13 as shown ona plan recorded with Suffolk Deeds at end of Book 1672, cighty and 48/100 (80.48) feet; SOUTHEASTERLY by land now or tate of Whalen, forty-five and 15/100 (45.15) feet; NORTHEASTERLY by Lot A on said first-mentioned plan, seventy-six and 13/100 (76.13) feet. Containing 3524 square feet of land, more or less. Said premises are conveyed subject to and with the benefit of easements, restrictions, agreements and reservations of record, if any there be, insofar as the same may be in force and epplicable. Being the same premises conveyed to Ferba H. Lofton, Francis Bridges and Maude L. Simmons, Reasrded pith w fhe Suffolk Registry of Deeds Book 24233, Page 86, SEF Samrece oP Z Executed as a sted instrument this 14th day of September, 2001 ae a3 Se Rx Otel. amend 7 feancta Bridges 2S Maude L. Simmons ye % ~ aS E09 *) 78 t vs 09 Pa g 0 i 3 maples ‘bese SN s Co R Bg ¥ NS ex epoursnes momento ~ meer re PU sicarsometen y R g “EF OZ ip Peg B- X S wy OD eeee S a 4 Ee Se ez, oF 2. ete 9 s Ae LS Wf ZF se i hb ly pr A, Ly we nea a Date Filed 1/23/2024 10:10 AM Superior Court - Suffolk Docket Number Exhibit C Date Filed 1/23/2024 10:10 AM Bk: 40620 Pg: 333 Superior Court - Suffolk Docket Number * REDACTED \ After Recording Return To: REEL Thomas, Victor T ae ae Record and Return Tot Fiserv Lending Solutions 27 Inwood Road RO ICKY HILL T O6067 aes Loan Number: eheng STEERS Property Address: 35 DUNREATH STREET Bk: 40620 Pg: 333 Doe: MTG ROXBURY, MASSACHUSETTS 02119 Page: Toft4 10/25/2006 02:45 PM {Space Above This Line For Recoreing Data MORTGAGE DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 10, 12, 17, 19 and 20. Cenain rules regardinthe g usage of words used in this document are also provided in Section 15. {A) “Security Instrament* means this document, which is dated SEPTEMBER 18 1 2006 , together with all Riders to this document. (B) “Borrower* is VICTOR T THOMAS, STACEY B THOMAS Attested hereto Borrower is the mortgagor under this Security Instrument, ({C) "Lender"is Bank of America, NA Lenderisa National rancis M. Roache Banking Association and existing under the laws of THE UNITED STATES OF AMERICA Register of Deeaeized Lender's address is 100 North Tryon Street, Charlotte, North Carolina 28255 Lender is the mortgagee under this Security Instrument. (D) "Note" means the promissory note signed by Borrower and dated SEPTEMBER 18, 2006 The Note states that Borrower owes Lender ONE HUNDRED FORTY-NINE THOUSAND ONE HUNDRED THREE AND 79/100 Dollars U.S. $ 149,103.79 plus interest. Borrower has promisedto pay this debt in regular Periodic Payments and to pay ) the debt in full not later than SEPTEMBER 22, 2031 (B) “Property” means the property that is described below under the heading “Transfer of Rights in the Property.” {F) "Loan" means the debt evidenced by the Note, plus interest, any prepaym: ent charges and late charges due under the Note, and all sums due under this Security Instrument, plus interest. (G) "Riders" means all Riders to this ‘Security Instrument that are execut itedby Borrower. The following Riders are to be executed by Borrower |check box as applicable]: (1) Adjustable Rate Rider (C1) Condominium Rider ([] Second Home Rider [Balloon Rider ([) Planned Unit Development Rider (2) Biweekly Payment Rider K] 1-4 Family Rider {] Home Improvement Rider [2] Revocable Trust Rider [7] Other(s) [Specify] MSSAGHUSETTS SECOND LIEN MORTGAGE Page tof 11 Dockagie Carns ate 1302 com v Date Filed 1/23/2024 10:10 AM Bk: 40620 Pg: 334 Superior Court - Suffolk Docket Number (H) “Applicable Law" meansail controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of la Ww) as well as all applicable final, non-appeal able judicial opinions, () "Community Association Dues, Fees, and Assessments" means all dues, fees, assessinents and other charges that are imposed on Borrower or the Property by a condominium association, hot meowners association or similar organization. Q) “Electronic Funds Transfer” means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or Magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-saic transfers, automated teller machine ‘transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (K) Reserved. @) “Miscellaneous Proceeds" means any compensation, settlement, award of dainages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Proper ty; (iii) conveyance in lieu of condemnation: or (iv) misrepresentations of, or omissions ac to, the value and/or condition of the Property. (M) Reserved. (N) “Periodic Payment” means the regularly scheduled amount due for principal and interest under the Note. (O) "RESPA” means the Real Estate Settlement Procedures Act ‘12 U.S.C. 601 et seq.) and ils implement ing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the same subject matter, As used in this Security Instrument, “RESPA" refers to all requirements and restrictions that are imposed in regard toa “federally related mortgage loan” even if the Loan does not qualify as a “federally related mortgage toan" under RESPA. (P) “Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument . TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's c ovenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mort; gage, grant and conveyto Lender and Lender's successors and assigns, with power of sale, the following described property located in the COUNTY of SUFFOLK [Type of Recording Jurisdiction} [Name of Recording Jurisdiction} SCENT re 7s Mma Att cee oF. Being the same property conveyed and described in a Deed recorded among the land records of the County set forth above: Deed recorded in BOOK R72 1D _ pace LIG THIS SECURITY INSTRUMENT TI. S SUBORDINATE TO AN EXISTING LIEN ( ) OF RECORD. FIRST which currently has the address of 35 DUNREATH STREET [Street] ROXBURY » Massachusetts 02119 ("Property Address"): [city] [Zip Code} MISSACHUSETTS SECOND LIEN MORTGAGE Page 2 of 1t DocMagic eRormve BO 60-1362 com Date Filed 1/23/2024 10:10 AM Bk: 40620 Pg: 335 Superior Court - Suffolk Docket Number TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred ‘0 in this Security Instrument as the “Property.” BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage. grant and convey the Property and that the Property is unencumbered, except for encumbrance s of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrament covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal, Interest, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note. Payments due under the Note and this Security Instrument shallbe made in U.S. currency. However, ifany check or other instrument received by Lender as payment under the Note or this Security Instrument is returned. to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check orcashier’s: check, provided any such check is drawn upon ant institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 14. Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are aces] ed. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplicd funds. Lender may hold such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower docs not do so within a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted and applied by Lender shall be applied in the following order of priority; (a) interest due under the Note: and (b) principal due under the Note. Such payments shall be applicd to cach Periodic Payment in the order in which it became duc, Any remaining amounts shall be applicd first to late charges, second to any other amounts duc under this Security Instrument, and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower for a delinquem Periodic Payment which includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can be paid in full, To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges and then as described in the Note. Any application of payments. insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments, 3. Reserved. 4. Charges; Liens. Borrower shall perform all of Borrower's obligations under any mortgage, deed of trast or other security instrument that is a tien having priority over this Security Instrument. Borrower shall pay all taxes, MASSAGHUSETTS ‘SECOND LIEN MORTGAGE Page 3of It Docmagie EAamne 200.640.1962 COM Date Filed 1/23/2024 10:10 AM Bk: 40620 Pg: 336 Superior Court - Suffolk Docket Number assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security Instrument, leaschold payments or ground rents on the Property, ifary, and Community Association Dues, Fees, and Assessments, if any. Except for a lien Borrower disclosed to Lender in Borrower's application or in any title report Lender obtained, Borrower shall promptly discharge any lien which has priority over this Security Instrument uniess Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so Jong as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those Proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the licn an agreement satisfactory to Lender subordinating the lien to this Security Instrument. [f Lender determines that any part of the Property is subject to a licn which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien of take one or more of the actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge for a re-tl estate tax verification and/or reporting service used by Lender in connection with this Loan. 5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term “extended coverage," and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's rightto disapprove Borrower's choice, which right shall notbe exercised unreasonably. Lender may require Borrower to pay. in connection with this Loan, either: {aja one- time charge for flood zone determination, certification and tracking services; or {b) a one-time charge for flood zone determination and certification services and subsequent charges eachi tine temappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Borrower. If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense, Lender is under no obligstion to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk, hazard of liability and might provide greater of lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. All insurance policies required by Lender and renewals of such policies shall be subject to Lendor's right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagec and/or as an. additional loss payee. Lender shall have the right to hold thc policics and renewal certificates, If Lender tequires, Borrower shall promptly give to Lender ali receipts of paid premiums and renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Len