Preview
COMMONWEALTH OF MASSACHUSETTS
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MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.
NATIONSTAR MORTGAGE LLC. 17-2658
Plaintiff, FILED
INTHEC! OF TE
Vv.
CLERK OF COURTS,
4 FORTHE COME-TY CF 8 PDLESEX
' SEP 07 2017
GARY C. BEANE, KARA LYNN BEANE, ) ‘
and MONNICK SUPPLY COMPANY.
INC., a/k/a MONNICK SUPPLY
)
)
ia OO,
IT cere a
Defendants. )
VERIFIED COMPLAINT TO QUIET TITLE AND REFORM MORTGAGE
Introduction
This is an action for declaratory judgment pursuant to M.G.L. ch. 231A in which
Plaintiff Nationstar Mortgage LLC seeks reformation of a mortgage granted to Plaintiff's
predecessor-in-interest by Defendant Gary C. Beane upon property located at 427
Sudbury Street, Marlborough, Massachusetts. At the time the mortgage was granted.
record title to the subject property was held by Defendants Gary C. Beane and Kara Lynn
Beane (collectively, the “Beane Defendants”) as tenants by the entirety. Despite this,
only Defendant Gary C. Beane appears on the mortgage granted in connection with the
Beane Defendants’ refinance of the property. The mortgage has been assigned to
Plaintiff. Plaintiff seeks to reform the mortgage and/or deed to reflect its claim that both
Plaintiff's predecessor-in-interest and.the Beane Defendants intended the subject!
mortgage to operate as a valid first lien on the entire subject property. Additionally, and
in the alternative, Plaintiff seeks to be equitably subrogated to the position of record
formerly held by the mortgage paid off and discharged as a result of the refinancing
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Parties, Jurisdiction, and Venue
Plaintiff Nationstar Mortgage, LLC (“Plaintiff or “Nationstar”) is a Delaware
limited liability company, with a usual place of business at 8950 Cypress. Waters
Blvd., Coppell, Texas 75019. Nationstar is duly registered with the Secretary. of
the Commonwealth as a foreign LLC doing business in Massachusetts.
Nationstar holds a senior mortgage encumbering encumbering the real property
located at 427 Sudbury Street, Marlborough, Massachusetts 01752 (the
“Mortgaged Property”).
Upon information and belief, Defendant Gary C. Beane is an individual residing
at the Mortgaged Property.
Upon information and belief, Defendant Kara Lynn Beane is an individual
residing at the Mortgaged Property.
Upon information and belief, Defendant Monnick Supply Company, Inc. a.k.a
Monnick Supply (“Monnick Supply”) is a Massachusetts corporation with a place
of business at 759 Waverly Street, Framingham, Massachusetts 01702. Monnick
Supply recorded a Writ of Attachment and Execution on Money Judgment
impacting the Mortgaged Property (the “Monnick Attachment”).
Jurisdiction
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This Court has jurisdiction over this matter pursuant to Mass. Gen. L. ch. 212 § 4.
Jurisdiction is properly before this Court pursuant to Mass. Gen. L. ch. 223A §§
2, 3. Upon information and belief, the Beane Defendants are domiciled in
Middlesex County, Massachusetts. The property that is the subject of this action,
and the subject of Monnick Attachment, is located in Middlesex ‘County,
Massachusetts.
Venue is proper in this Court pursuant to Mass. Gen. L. c. 223 §1.
Facts
On or about January 16, 2004, by deed recorded with the Middlesex: County
(Southern District) Registry of Deeds (“Middlesex Registry”) in Book 41788,
Page 345, Defendant Gary C. Beane took title to the land and buildings situated
thereon at the Mortgaged Property. A true and accurate copy of this deed is
attached hereto as Exhibit A.
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On or about January 21, 2004, by deed recorded at the Middlesex Registry in
Book 41814, Page 187 (the “Deed”), Defendant Gary C. Beane conveyed the
Mortgaged Property to himself and Defendant Kara Lynn Beane, as tenants by the
entirety. A true and accurate copy of the Deed is attached hereto as Exhibit B.
10. As shown in Exhibit B, the Deed granted title to the Beane Defendants as tenants
by the entirety.
11 On or about August 2, 2004, the Beane Defendants granted a first mortgage on the
Mortgaged Property to Mortgage Electronic Registration Systems, Inc. (“MERS”)
as nominee for Gateway Funding Diversified Mortgage Services, LP (“Gateway”)
in the amount of $333,700.00 recorded at the Middlesex Registry in Book 43457
Page 280 (the “Gateway Mortgage”). A true and accurate copy of the Gateway
Mortgage is attached hereto as Exhibit C i
12 Thereafter, in connection with a refinance of the Mortgaged Property, on. Loetober
11, 2006, Defendant Gary C. Beane granted a first mortgage on the Mortgaged
Property to MERS as nominee for Plaintiff in connection with a loan advanced to
the Beane Defendants in the amount of $326,000.00 (the “Subject Mortgage”),
order to refinance and discharge the prior Gateway Mortgage. The Subject
Mortgage was recorded at the Middlesex Registry in Book 48336, Page 53. A
true and accurate copy of the Subject Mortgage is attached hereto as Exhibit D.
13 During the closing associated with the Subject Mortgage, Plaintiff paid off the
prior mortgage held by Gateway, and previously granted by both Beane
Defendants, in total amount of $328,205.56. See the U.S. Department of Housing
and Urban Development Settlement Statement, attached hereto as Exhibit E
14. Contrary to what the parties intended, the Subject Mortgage listed only Gary C.
Beane as “Borrower” and not both Gary C. Beane and Kara Lynn Beane, thereby
only encumbering a partial interest in the Mortgaged Property. The! parties,
however, intended that the Subject Mortgage encumber the entire, subject
property. This intention is evidenced, at least, by the fact that the mortgage
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proceeds were used specifically to discharge the prior debts of both Gary C. and
Kara Lynn Beane, as shown in Exhibit E.
15 Through error or other mistake the Subject Mortgage does not encumber the
entire Mortgaged Property as intended, either by including Kara Lynn Beane on
the mortgage or by title being held exclusively in Gary C. Beane’s name.
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16 On April 22, 2016, the Subject Mortgage was assigned to Plaintiff Nationstar as
evidenced in the Assignment of Mortgage recorded with the Middlesex South
Registry ini Book 67192, Page 237. A true and accurate copy of the Assignment
is attached hereto as Exhibit F.
pn
17. On or about June 9, 2015, Monnick Supply caused a Writ of Attachment
I
impacting the Mortgaged Property to be recorded at the Middlesex Registry in
Book 65505, Page 579 (the “Attachment”). On or about December 29, 2015
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Monnick Supply caused an Execution on Money Judgment to be recorded at the
Middlesex Registry in Book 66598, Page 555 (the “Execution”). True and
accurate copies of the Attachment and Execution are attached hereto as Exhibit G.
18 Plaintiff's rights are impaired by virtue of the chain of title which purports to
show that the Subject Mortgage does not encumber the entire Mortgaged
Property, contrary to what the parties intended.
19. Without reformation Plaintiff will unfairly remain in the position of having paid
off Defendant Kara Lynn Beane’s previous mortgage debt with the proceeds from
the Subject Mortgage without Defendant Kara Lynn Beane’s interest presently
being secured. As it currently stands Defendant Kara Lynn Beane incurred no
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debt — no liability at all — to gain a valuable interest in the Mortgaged Property.
COUNT I
Declaratory Judgmen:
20. Plaintiffs repeat and incorporate by reference the allegations set forth in
paragraphs 1 through 19 above as if set forth fully herein
21 A real and justiciable controversy exists between the parties concerning their
respective rights in the Mortgaged Property.
22. Pursuant to M.G.L. Chapter 231A et seq., the Court is authorized to makeja
binding declaration as to the parties’ respective rights in the Mortgaged Property
and as to any other party claiming a right, title or interest therein.
23, Plaintiff is entitled to a judicial declaration that the Subject Mortgage is a valid
encumbrance on both Gary C. Beane and Kara Lynn Beane’s interests and first
mortgage on the entire Mortgaged Property as the parties intended.
COUNT II
Reformation of Mortgag
24. Plaintiffs repeat and incorporate by reference the allegations set forth in
paragraphs | through 23 above as if set forth fully herein.
25 The Subject Mortgage, while intending to be a valid first mortgage on the/entire
Mortgaged Property, only includes Defendant Gary C. Beane’s interest.
26. Both parties intended the Subject Mortgage to be a valid first mortgage of the
entire Mortgaged Property, yet the existing Subject Mortgage is inefiective to
accomplish the intentions of the parties due to the mistaken listing of Gary|C.
Beane as the sole borrower on the Subject Mortgage. As a result, equity should
reform the Subject Mortgage to conform it with the parties’ actual intentions that
a valid first mortgage on the entire Mortgaged Property be effectuated. |
27. Defendants Gary C. and Kara Lynn Beane utilized the proceeds from the Subject
Mortgage to pay off their prior mortgage and debt, yet the Subject Mortgage only
encumbers Defendant Gary C. Beane’s interest.
28 Specifically, Plaintiff requests that the Court reform the Subject Mortgage'so that
Defendant Kara Lynn Beane is listed on the face of the Subject Mortgage as a
borrower and signs the Subject Mortgage.
29 Without reformation of the Subject Mortgage, Defendants Gary C. and Kara Lynn
Beane will be unjustly enriched and will avoid their full mortgage obligations
without consequence.
COUNT III
(Reformation of Deed)
30. Plaintiffs repeat and incorporate by reference the allegations set forth in
paragraphs 1 through 29 above as if set forth fully herein.
31 The Deed granted title to the Defendants Gary C. Beane and Kara Lynn Beane as
tenants by the entirety, whereas the Subject Mortgage encumbering the
Mortgaged Property only lists Defendant Gary C. Beane as a borrower. i
32 In the alternative to reformation of the Subject Mortgage, Plaintiff requests that
the Court reform the Deed so that Kara Lynn Beane transfers her interest to Gary
C. Beane in order to perfect Plaintiff's interest in the entire Mortgaged Property.
33, Without reformation of the Deed, Defendants are unjustly enriched as they will
avoid their full mortgage obligations without consequence.
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COUNT IV
(Equitable Subrogation)
34 Plaintiffs repeat and incorporate by reference the allegations set forth in
paragraphs 1 through 33 above as if set forth fully herein.
35 During the closing associated with the Subject Mortgage, Plaintiff's predecessor-
in-interest paid off and discharged the Gateway Mortgage in the total amount of
$328,205.56.
36. Plaintiff's predecessor-in-interest did not act as a volunteer and was not primarily
liable for the debt it paid off.
Cn
37 Defendants Gary C. and Kara Lynn Beane benefited from the disbursement of the
loan proceeds above and neither party has changed their position or suffered
prejudice in reliance on the satisfaction of the Gateway Mortgage. Moreoyer,
subrogation would not work any injustice to the rights of the Defendants or other
junior lien holders. |
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38 Since the payoff transaction, Defendants have defaulted on the Subject Mortgage
39 In the alternative to reformation of the Subject Mortgage, Plaintiff is entitled to be
equitably subrogated to the position of record formerly held by the Gateway
Mortgage arid as to any other person claiming an interest in the Mortgaged
Property.
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REQUESTED RELIEF
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WHEREFORE, Plaintiff respectfully requests that the Court:
1 enter judgment in its favor on Count I of this Complaint and declare that the
Subject Mortgage is a valid encumbrance and first mortgage on the Mortgaged
Property, nunc pro tunc, to be effective as of the original date of recording;
enter judgment in its favor on Count II of this Complaint and reform the Subject
Mortgage so that Kara Lynn Beane is listed and signs as a borrower so as to
effectuate what the parties intended, nunc pro tunc, to be effective as of the
original date of recording;
in the alternative to Count II, eriter judgment in its favor on Count III of this
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Complaint and reform the Deed so that Gary C. Beane is identified as the sole
owner of the Mortgaged Property, nunc pro tunc, to be effective as of the original
date of the Mortgage;
in the alternative to reformation, enter judgment in its favor on Count IV of this
Complaint and equitably subrogate Plaintiff to the position of record formerly
held by the Gateway Mortgage and as to any other person claiming an interest in
the Mortgaged Property; and
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grant such other relief as is appropriate and just.
fe yO
NATIONSTAR MORTGAGE LLC
By its attorneys,
STEVENSON McKENNA & CALLANAN LLP
Dated: September"], 2017 4S ftp
Alan E. McKenna, Esq. (BBO 644556)
Benjamin D. Stevenson, Esq. (BBO 638121)
350 Lincoln Street, Suite 2400 '
Hingham, MA 02043 1
(781) 740-1115 |
amckenna@smcattorneys.com
bstevenson@smcattorneys.com
VERIFICATION
Uithelle, Gil but w fesictand Srapeln
NATIONSTAR MORTGAGE LLC, hereby certify under the pains and penalties of
perjury that I have reviewed the foregoing Verified Complaint, the factual allegations
contained therein are true, and no known material facts have been omitted therefrom.
Dated alas A017) By: snwh bee
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Print Name: Michele Sil (act
Title: Asse: Seere me
I
er, 2858 Trial Court of Massachusetts
CIVIL ACTION COVER SHEET The Superior C ‘ourt
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PLAINTIFF(S): NATIONSTAR MORTGAGE LLC COUNTY
Middlesex
ADDRESS: 8950 Cypress Waters Blvd., Coppell, Texas 75019
DEFENDANT(S): GARYC. BEANE; KARA LYNN BEANE;
MONNICK SUPPLY COMPANY, INC., AIK/A MONNICK SUPPLY
ATTORNEY: ‘Alan E. McKenna / Benjamin D. Stevenson
ADDRESS: ‘Stevenson
McKenna & Callanan LLP ADDRESS:
360 Lincoin Street, Suite 2400
Hingham, MA 02043
BBO: 644556 / 638121
TYPE OF ACTION AND TRACK DESIGNATION (see reverse side)
CODE NO. TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN MADE?
co3 DISPUTE CONCERNING TITLE F Cyves NO.
“if “Other” please describe:
‘STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, § 3A —
The following is a full, itemized and detailed statement of the facts on which the undersigned plaintiffor Plaintiff coun:
|this form, disregard double or treble damage claims; indicate single damages only.
odo ine mone
=
pen For
cE at
(attach additional sheets as necessary) ‘ ERK OR eeU ED
C
\ poR THE
pil
|A. Documented medical expenses to date:
1. Total hospital expenses
ep O7
2. Total doctor expenses
3. Total chiropractic expenses foLSet
4. Total physical therapy expenses
5. Total other expenses (describe below)
f “Subtotal (A):
|B. Documented lost wages and compensation to date
IC. Documented property damages to dated
D. Reasonably anticipated future medical and hospital expenses
IE. Reasonably anticipated lost wages
F. Other documented items of damages (describe below)
IG. Briefly describe plaintiffs injury, including the nature and extentof injury:
TOTAL (A-F):$
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{attach additional sheets as necessary)
Provide a detailed description of ctaims(s):
TOTAL: $
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Signature of Attorney/Pro Se Plaintiff: LAE LbPo vate: 7/5 C7
IRELATED ACTIONS: Please provide the case number, case name, ‘ansounty of any related actions pending in the SuperiorCourt/
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CERTIFICATION PURSUANT TO SJC RULE 1:18
| hereby certify that | have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC
Rule 1:18) requiring that | provide my clients with information about court-connected dispute resolution services and discuss with them the
ladvantages and disadvantages of the various methods of dispute resolution.
ISignature of Attorney of Record: De Ss Jbl 004/27
Preview
COMMONWEALTH OF MASSACHUSETTS | 1 MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. NATIONSTAR MORTGAGE LLC. 17-2658 Plaintiff, FILED INTHEC! OF TE Vv. CLERK OF COURTS, 4 FORTHE COME-TY CF 8 PDLESEX ' SEP 07 2017 GARY C. BEANE, KARA LYNN BEANE, ) ‘ and MONNICK SUPPLY COMPANY. INC., a/k/a MONNICK SUPPLY ) ) ia OO, IT cere a Defendants. ) VERIFIED COMPLAINT TO QUIET TITLE AND REFORM MORTGAGE Introduction This is an action for declaratory judgment pursuant to M.G.L. ch. 231A in which Plaintiff Nationstar Mortgage LLC seeks reformation of a mortgage granted to Plaintiff's predecessor-in-interest by Defendant Gary C. Beane upon property located at 427 Sudbury Street, Marlborough, Massachusetts. At the time the mortgage was granted. record title to the subject property was held by Defendants Gary C. Beane and Kara Lynn Beane (collectively, the “Beane Defendants”) as tenants by the entirety. Despite this, only Defendant Gary C. Beane appears on the mortgage granted in connection with the Beane Defendants’ refinance of the property. The mortgage has been assigned to Plaintiff. Plaintiff seeks to reform the mortgage and/or deed to reflect its claim that both Plaintiff's predecessor-in-interest and.the Beane Defendants intended the subject! mortgage to operate as a valid first lien on the entire subject property. Additionally, and in the alternative, Plaintiff seeks to be equitably subrogated to the position of record formerly held by the mortgage paid off and discharged as a result of the refinancing | Parties, Jurisdiction, and Venue Plaintiff Nationstar Mortgage, LLC (“Plaintiff or “Nationstar”) is a Delaware limited liability company, with a usual place of business at 8950 Cypress. Waters Blvd., Coppell, Texas 75019. Nationstar is duly registered with the Secretary. of the Commonwealth as a foreign LLC doing business in Massachusetts. Nationstar holds a senior mortgage encumbering encumbering the real property located at 427 Sudbury Street, Marlborough, Massachusetts 01752 (the “Mortgaged Property”). Upon information and belief, Defendant Gary C. Beane is an individual residing at the Mortgaged Property. Upon information and belief, Defendant Kara Lynn Beane is an individual residing at the Mortgaged Property. Upon information and belief, Defendant Monnick Supply Company, Inc. a.k.a Monnick Supply (“Monnick Supply”) is a Massachusetts corporation with a place of business at 759 Waverly Street, Framingham, Massachusetts 01702. Monnick Supply recorded a Writ of Attachment and Execution on Money Judgment impacting the Mortgaged Property (the “Monnick Attachment”). Jurisdiction | This Court has jurisdiction over this matter pursuant to Mass. Gen. L. ch. 212 § 4. Jurisdiction is properly before this Court pursuant to Mass. Gen. L. ch. 223A §§ 2, 3. Upon information and belief, the Beane Defendants are domiciled in Middlesex County, Massachusetts. The property that is the subject of this action, and the subject of Monnick Attachment, is located in Middlesex ‘County, Massachusetts. Venue is proper in this Court pursuant to Mass. Gen. L. c. 223 §1. Facts On or about January 16, 2004, by deed recorded with the Middlesex: County (Southern District) Registry of Deeds (“Middlesex Registry”) in Book 41788, Page 345, Defendant Gary C. Beane took title to the land and buildings situated thereon at the Mortgaged Property. A true and accurate copy of this deed is attached hereto as Exhibit A. | | pe On or about January 21, 2004, by deed recorded at the Middlesex Registry in Book 41814, Page 187 (the “Deed”), Defendant Gary C. Beane conveyed the Mortgaged Property to himself and Defendant Kara Lynn Beane, as tenants by the entirety. A true and accurate copy of the Deed is attached hereto as Exhibit B. 10. As shown in Exhibit B, the Deed granted title to the Beane Defendants as tenants by the entirety. 11 On or about August 2, 2004, the Beane Defendants granted a first mortgage on the Mortgaged Property to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Gateway Funding Diversified Mortgage Services, LP (“Gateway”) in the amount of $333,700.00 recorded at the Middlesex Registry in Book 43457 Page 280 (the “Gateway Mortgage”). A true and accurate copy of the Gateway Mortgage is attached hereto as Exhibit C i 12 Thereafter, in connection with a refinance of the Mortgaged Property, on. Loetober 11, 2006, Defendant Gary C. Beane granted a first mortgage on the Mortgaged Property to MERS as nominee for Plaintiff in connection with a loan advanced to the Beane Defendants in the amount of $326,000.00 (the “Subject Mortgage”), order to refinance and discharge the prior Gateway Mortgage. The Subject Mortgage was recorded at the Middlesex Registry in Book 48336, Page 53. A true and accurate copy of the Subject Mortgage is attached hereto as Exhibit D. 13 During the closing associated with the Subject Mortgage, Plaintiff paid off the prior mortgage held by Gateway, and previously granted by both Beane Defendants, in total amount of $328,205.56. See the U.S. Department of Housing and Urban Development Settlement Statement, attached hereto as Exhibit E 14. Contrary to what the parties intended, the Subject Mortgage listed only Gary C. Beane as “Borrower” and not both Gary C. Beane and Kara Lynn Beane, thereby only encumbering a partial interest in the Mortgaged Property. The! parties, however, intended that the Subject Mortgage encumber the entire, subject property. This intention is evidenced, at least, by the fact that the mortgage | proceeds were used specifically to discharge the prior debts of both Gary C. and Kara Lynn Beane, as shown in Exhibit E. 15 Through error or other mistake the Subject Mortgage does not encumber the entire Mortgaged Property as intended, either by including Kara Lynn Beane on the mortgage or by title being held exclusively in Gary C. Beane’s name. | 16 On April 22, 2016, the Subject Mortgage was assigned to Plaintiff Nationstar as evidenced in the Assignment of Mortgage recorded with the Middlesex South Registry ini Book 67192, Page 237. A true and accurate copy of the Assignment is attached hereto as Exhibit F. pn 17. On or about June 9, 2015, Monnick Supply caused a Writ of Attachment I impacting the Mortgaged Property to be recorded at the Middlesex Registry in Book 65505, Page 579 (the “Attachment”). On or about December 29, 2015 | Monnick Supply caused an Execution on Money Judgment to be recorded at the Middlesex Registry in Book 66598, Page 555 (the “Execution”). True and accurate copies of the Attachment and Execution are attached hereto as Exhibit G. 18 Plaintiff's rights are impaired by virtue of the chain of title which purports to show that the Subject Mortgage does not encumber the entire Mortgaged Property, contrary to what the parties intended. 19. Without reformation Plaintiff will unfairly remain in the position of having paid off Defendant Kara Lynn Beane’s previous mortgage debt with the proceeds from the Subject Mortgage without Defendant Kara Lynn Beane’s interest presently being secured. As it currently stands Defendant Kara Lynn Beane incurred no | debt — no liability at all — to gain a valuable interest in the Mortgaged Property. COUNT I Declaratory Judgmen: 20. Plaintiffs repeat and incorporate by reference the allegations set forth in paragraphs 1 through 19 above as if set forth fully herein 21 A real and justiciable controversy exists between the parties concerning their respective rights in the Mortgaged Property. 22. Pursuant to M.G.L. Chapter 231A et seq., the Court is authorized to makeja binding declaration as to the parties’ respective rights in the Mortgaged Property and as to any other party claiming a right, title or interest therein. 23, Plaintiff is entitled to a judicial declaration that the Subject Mortgage is a valid encumbrance on both Gary C. Beane and Kara Lynn Beane’s interests and first mortgage on the entire Mortgaged Property as the parties intended. COUNT II Reformation of Mortgag 24. Plaintiffs repeat and incorporate by reference the allegations set forth in paragraphs | through 23 above as if set forth fully herein. 25 The Subject Mortgage, while intending to be a valid first mortgage on the/entire Mortgaged Property, only includes Defendant Gary C. Beane’s interest. 26. Both parties intended the Subject Mortgage to be a valid first mortgage of the entire Mortgaged Property, yet the existing Subject Mortgage is inefiective to accomplish the intentions of the parties due to the mistaken listing of Gary|C. Beane as the sole borrower on the Subject Mortgage. As a result, equity should reform the Subject Mortgage to conform it with the parties’ actual intentions that a valid first mortgage on the entire Mortgaged Property be effectuated. | 27. Defendants Gary C. and Kara Lynn Beane utilized the proceeds from the Subject Mortgage to pay off their prior mortgage and debt, yet the Subject Mortgage only encumbers Defendant Gary C. Beane’s interest. 28 Specifically, Plaintiff requests that the Court reform the Subject Mortgage'so that Defendant Kara Lynn Beane is listed on the face of the Subject Mortgage as a borrower and signs the Subject Mortgage. 29 Without reformation of the Subject Mortgage, Defendants Gary C. and Kara Lynn Beane will be unjustly enriched and will avoid their full mortgage obligations without consequence. COUNT III (Reformation of Deed) 30. Plaintiffs repeat and incorporate by reference the allegations set forth in paragraphs 1 through 29 above as if set forth fully herein. 31 The Deed granted title to the Defendants Gary C. Beane and Kara Lynn Beane as tenants by the entirety, whereas the Subject Mortgage encumbering the Mortgaged Property only lists Defendant Gary C. Beane as a borrower. i 32 In the alternative to reformation of the Subject Mortgage, Plaintiff requests that the Court reform the Deed so that Kara Lynn Beane transfers her interest to Gary C. Beane in order to perfect Plaintiff's interest in the entire Mortgaged Property. 33, Without reformation of the Deed, Defendants are unjustly enriched as they will avoid their full mortgage obligations without consequence. | COUNT IV (Equitable Subrogation) 34 Plaintiffs repeat and incorporate by reference the allegations set forth in paragraphs 1 through 33 above as if set forth fully herein. 35 During the closing associated with the Subject Mortgage, Plaintiff's predecessor- in-interest paid off and discharged the Gateway Mortgage in the total amount of $328,205.56. 36. Plaintiff's predecessor-in-interest did not act as a volunteer and was not primarily liable for the debt it paid off. Cn 37 Defendants Gary C. and Kara Lynn Beane benefited from the disbursement of the loan proceeds above and neither party has changed their position or suffered prejudice in reliance on the satisfaction of the Gateway Mortgage. Moreoyer, subrogation would not work any injustice to the rights of the Defendants or other junior lien holders. | i 38 Since the payoff transaction, Defendants have defaulted on the Subject Mortgage 39 In the alternative to reformation of the Subject Mortgage, Plaintiff is entitled to be equitably subrogated to the position of record formerly held by the Gateway Mortgage arid as to any other person claiming an interest in the Mortgaged Property. ! i REQUESTED RELIEF | WHEREFORE, Plaintiff respectfully requests that the Court: 1 enter judgment in its favor on Count I of this Complaint and declare that the Subject Mortgage is a valid encumbrance and first mortgage on the Mortgaged Property, nunc pro tunc, to be effective as of the original date of recording; enter judgment in its favor on Count II of this Complaint and reform the Subject Mortgage so that Kara Lynn Beane is listed and signs as a borrower so as to effectuate what the parties intended, nunc pro tunc, to be effective as of the original date of recording; in the alternative to Count II, eriter judgment in its favor on Count III of this I Complaint and reform the Deed so that Gary C. Beane is identified as the sole owner of the Mortgaged Property, nunc pro tunc, to be effective as of the original date of the Mortgage; in the alternative to reformation, enter judgment in its favor on Count IV of this Complaint and equitably subrogate Plaintiff to the position of record formerly held by the Gateway Mortgage and as to any other person claiming an interest in the Mortgaged Property; and 1 grant such other relief as is appropriate and just. fe yO NATIONSTAR MORTGAGE LLC By its attorneys, STEVENSON McKENNA & CALLANAN LLP Dated: September"], 2017 4S ftp Alan E. McKenna, Esq. (BBO 644556) Benjamin D. Stevenson, Esq. (BBO 638121) 350 Lincoln Street, Suite 2400 ' Hingham, MA 02043 1 (781) 740-1115 | amckenna@smcattorneys.com bstevenson@smcattorneys.com VERIFICATION Uithelle, Gil but w fesictand Srapeln NATIONSTAR MORTGAGE LLC, hereby certify under the pains and penalties of perjury that I have reviewed the foregoing Verified Complaint, the factual allegations contained therein are true, and no known material facts have been omitted therefrom. Dated alas A017) By: snwh bee | Print Name: Michele Sil (act Title: Asse: Seere me I er, 2858 Trial Court of Massachusetts CIVIL ACTION COVER SHEET The Superior C ‘ourt | PLAINTIFF(S): NATIONSTAR MORTGAGE LLC COUNTY Middlesex ADDRESS: 8950 Cypress Waters Blvd., Coppell, Texas 75019 DEFENDANT(S): GARYC. BEANE; KARA LYNN BEANE; MONNICK SUPPLY COMPANY, INC., AIK/A MONNICK SUPPLY ATTORNEY: ‘Alan E. McKenna / Benjamin D. Stevenson ADDRESS: ‘Stevenson McKenna & Callanan LLP ADDRESS: 360 Lincoin Street, Suite 2400 Hingham, MA 02043 BBO: 644556 / 638121 TYPE OF ACTION AND TRACK DESIGNATION (see reverse side) CODE NO. TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN MADE? co3 DISPUTE CONCERNING TITLE F Cyves NO. “if “Other” please describe: ‘STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, § 3A — The following is a full, itemized and detailed statement of the facts on which the undersigned plaintiffor Plaintiff coun: |this form, disregard double or treble damage claims; indicate single damages only. odo ine mone = pen For cE at (attach additional sheets as necessary) ‘ ERK OR eeU ED C \ poR THE pil |A. Documented medical expenses to date: 1. Total hospital expenses ep O7 2. Total doctor expenses 3. Total chiropractic expenses foLSet 4. Total physical therapy expenses 5. Total other expenses (describe below) f “Subtotal (A): |B. Documented lost wages and compensation to date IC. Documented property damages to dated D. Reasonably anticipated future medical and hospital expenses IE. Reasonably anticipated lost wages F. Other documented items of damages (describe below) IG. Briefly describe plaintiffs injury, including the nature and extentof injury: TOTAL (A-F):$ | {attach additional sheets as necessary) Provide a detailed description of ctaims(s): TOTAL: $ | Signature of Attorney/Pro Se Plaintiff: LAE LbPo vate: 7/5 C7 IRELATED ACTIONS: Please provide the case number, case name, ‘ansounty of any related actions pending in the SuperiorCourt/ ! CERTIFICATION PURSUANT TO SJC RULE 1:18 | hereby certify that | have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that | provide my clients with information about court-connected dispute resolution services and discuss with them the ladvantages and disadvantages of the various methods of dispute resolution. ISignature of Attorney of Record: De Ss Jbl 004/27