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Goduti v. City of Worcester

Appeals Court of Massachusetts, Suffolk

May 13, 2015

Philip L. Goduti, trustee, [1]
v.
City of Worcester

Argued: January 12, 2015.

Civil action commenced in the Land Court Department on September 29, 2011.

The case was heard by Keith C. Long, J., on motions for summary judgment.

Michael J. Markoff for the plaintiff.

Karen A. Meyer, Assistant City Solicitor, for the defendant.

Present: Fecteau, Wolohojian, & Massing, JJ.

OPINION

[31 N.E.3d 71] Fecteau, J.

Philip L. Goduti appeals from the allowance of summary judgment against him by a judge of the Land Court in his declaratory judgment action regarding the legality of the tax assessment by the city of Worcester (city) for the years 2006 through 2011 on a property located at 2 Gambier Avenue, Worcester (property). He first contends that the city was not authorized, under G. L. c. 59, § 11, to assess taxes to his mortgagor, who

Page 356

failed to pay the taxes, but was required, instead, to assess taxes during those years only to him, the purported record owner of the property following his foreclosure by entry pursuant to G. L. c. 244, § 1. Second, Goduti argues that the judge incorrectly determined, especially at the summary judgment stage, that he had waived his foreclosure. While we need not reach his arguments because this case has become moot, we reject his contentions nevertheless.

1. Background.

The property in question was first acquired by Sandra and James Dunn, wife and husband, in 1973. In 1989, Goduti became a mortgagee of the property behind two others.[2] While remaining current on the first two mortgages, the Dunns fell behind on their mortgage payments to Goduti. Utilizing the foreclosure by entry procedure of G. L. c. 244, § 1, Goduti recorded a certificate of entry in the registry of deeds on October 9, 1996, thereby signaling his intent to foreclose. During the three-year period after Goduti filed his certificate of entry, after which foreclosure would be completed and his title would ripen, he accepted regular payments from the Dunns; Goduti disputes that those payments were applied to the mortgage, claiming that they were for use or occupation of the property. When the Dunns divorced in 2004, the property was conveyed, via a quitclaim deed, to Ms. Dunn alone, and the same was recorded in the registry of deeds.

The city had been assessing real estate (and other) taxes to the Dunns but, after the 2004 deed was recorded, it assessed only Ms. Dunn. She stopped paying taxes in the fiscal year 2006, and as a result, the city issued an instrument of taking in 2007. [31 N.E.3d 72] Ms. Dunn continued to occupy the house until 2011, when she conveyed title to Goduti via a " confirmatory deed," and Goduti then immediately conveyed the property to Michele A. Bouffard,[3] who remains the current owner; Bouffard, in turn, granted Goduti a mortgage. Apparently, as part of the transaction between Goduti and Bouffard, Goduti agreed to pay any tax debt owed to the city for the fiscal years 2006 through 2011.

Procedurally, Goduti (along with Bouffard) initiated this declaratory judgment action in September, 2011, against the city, challenging the validity ...


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