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Date: 08-13-2015

Case Style: Murphy v. Wachovia Bank of Delaware, N.A.

Case Number: No. 13-P-1943

Judge: Dennis J. Curran

Court: Massachusetts Supreme Court

Plaintiff's Attorney: David M. Bizar

Defendant's Attorney: John C. Elstad

Description: This case concerns the proper distribution of
surplus funds after a foreclosure sale initiated and conducted
by the holder of a second mortgage. After a jury-waived trial,
1 Of the bankruptcy estate of Nigel Thorpe.
2 John A. Dunnery, in his capacity as vice-president of Wachovia Bank.
a judge of the Superior Court ruled that defendant Wachovia Bank
of Delaware, N.A. (Wachovia), erroneously distributed surplus
funds to the holder of the first mortgage, Wells Fargo Bank,
N.A. (Wells Fargo), instead of to the mortgagor, Nigel Thorpe.
The judge therefore ordered Wachovia to pay $178,626.61, plus
interest and costs, to the plaintiff, Harold B. Murphy, as
trustee of the bankruptcy estate of Thorpe (trustee). On
appeal, Wachovia argues that it was entitled to disburse the
funds to Wells Fargo, but even if it was not, it had valid
equitable defenses to the trustee's claims.3 For the reasons
that follow, we affirm.
Background. We summarize the judge's findings,
supplemented by additional undisputed facts.4 Prior to the
foreclosure sale, Thorpe was the owner of residential property
in Wilmington. The property was encumbered by two mortgages: a
first mortgage dated March 23, 1999, held by Wells Fargo, and a
second mortgage, dated July 26, 2000, held by Wachovia.
In March, 2006, Thorpe defaulted on the payment obligations
secured by the second mortgage, and Wachovia exercised its
3 Wachovia informed us that, as of March 20, 2010, it merged into and became a part of Wells Fargo. The merger is irrelevant to the issues presented.
4 Wachovia does not challenge the judge's findings, and most of the facts presented were stipulated.
statutory power of sale to foreclose on the property.5 The
notice of sale to Thorpe and to any potential buyers provided
that "[b]y virtue and in execution of the Power of Sale
contained in [the second mortgage], . . . [t]hese premises will
be sold and conveyed subject to . . . all unpaid . . . liens or
existing encumbrances of record which are in force and are
applicable, having priority over said mortgage."
On July 25, 2006, Wachovia conducted a foreclosure auction.
At that time, the outstanding debt secured by the Wachovia
mortgage was $130,000, and the outstanding debt secured by the
Wells Fargo mortgage was slightly more than $178,000. The
Coniston Group, Inc. (Coniston), submitted a winning bid of
$420,000, and transmitted a $10,000 deposit to Wachovia's
attorney. Coniston's bid was substantially lower than the
appraised value of the property, which was between $610,000 and
$690,000, and did not include an amount to discharge the Wells
Fargo mortgage.
The sale closed on August 25, 2006, with Coniston's
attorney acting as settlement agent.6 Wachovia received
5 At that time, Thorpe also was in default on the loan payments secured by the first mortgage. One week after Wachovia initiated foreclosure, Wells Fargo commenced its own separate foreclosure proceeding, but this process was never completed.
6 Wachovia does not contend that the role played by Coniston's attorney in the closing relieved Wachovia, as the
$231,373.79, which exceeded by $64,502.96 the amount needed to
satisfy the second mortgage debt plus Wachovia's costs of
foreclosure. In addition, Coniston's $10,000 deposit remained
in the possession of Wachovia's attorney. Although Wells Fargo
was not a party to the foreclosure proceedings, it received
$178,626.61, the amount required to discharge the first
mortgage. Wells Fargo obtained this disbursement even though
both the contract of sale and the foreclosure deed contained
provisions stating that the property was being conveyed "subject
to all outstanding . . . liens." The end result was that both
the first and second mortgages were paid off, Coniston took the
property free and clear of the first mortgage despite the terms
of the sale, and Wachovia received funds that exceeded the
combined mortgage debt and costs of foreclosure.
In a letter dated January 23, 2007, Thorpe demanded of
Wachovia payment of all surplus foreclosure proceeds, including
the amount disbursed to Wells Fargo. By means of two payments
($64,502.96 on March 12, 2007, and $10,000 on March 16, 2007),
Wachovia transmitted to Thorpe the excess funds it had received
and retained. Thorpe's further claim, that Wachovia wrongly
foreclosing mortgagee, of the responsibility to make a proper disbursement of the surplus funds. See G. L. c. 183, 27.
paid off the Wells Fargo mortgage and, therefore, owed him an
additional $178,626.61, remained unresolved.7
While these events were taking place, Thorpe and his wife
were engaged in divorce proceedings in the Middlesex Division of
the Probate and Family Court Department. Throughout the divorce
proceedings, which were not concluded until June, 2007,8 Thorpe
never disclosed his claims against Wachovia or the fact that, in
March of 2007, Wachovia had paid him $74,502.96.
In January, 2008, Thorpe filed a voluntary petition under
Chapter 7 of the United States Bankruptcy Code and a schedule of
assets and liabilities. Thorpe again failed to disclose both
the $74,502.96 that he had received from Wachovia, and his
additional claim against Wachovia for $178,626.61. Ultimately,
the trustee determined that there were no nonexempt assets
available for distribution to creditors. As a result, in April
of 2008, a judge of the United States Bankruptcy Court for the
District of Massachusetts discharged Thorpe's scheduled
liabilities, totaling $888,000, and closed the case.
7 Both parties acknowledged at oral argument that the payments to Thorpe in March, 2007, were not in full satisfaction and release of Thorpe's claims against Wachovia.
8 The judgment of divorce nisi did not become final until June 13, 2007.
On May 29, 2008, Thorpe commenced the present action in the
Superior Court; however, because he had failed to disclose his
claims against Wachovia during the bankruptcy proceedings, a
judge later determined that he was not the true owner of the
claims and could not enforce them.9 The judge ordered Thorpe to
notify the Bankruptcy Court and the trustee, and, on August 17,
2011, the trustee was allowed to be substituted as the
By the time of trial, various theories of recovery had been
rejected on summary judgment, and the only live issue was
whether Wachovia had deprived Thorpe of his legal right to the
funds disbursed to Wells Fargo, in violation of G. L. c. 183,
27, and the terms of the mortgage. After a bench trial based
largely on stipulated facts, the trial judge concluded that
Wachovia had been required to disburse the surplus to Thorpe,
and that Wachovia's equitable defenses, which were based upon
Thorpe's misrepresentations in the divorce and bankruptcy cases,
were not an impediment to the trustee's claims on behalf of
9 See Jeffrey v. Desmond, 70 F.3d 183, 186 n.3 (1st Cir. 1995) ("[B]y operation of 11 U.S.C. 554[c] and [d], any asset not properly scheduled remains property of the bankrupt estate, and the debtor loses all rights to enforce it in his own name").

Thorpe's creditors.10 Judgment entered for the trustee, and
Wachovia's appeal ensued.
Discussion. 1. Disbursement of surplus funds. Wachovia
does not challenge the judge's findings; it claims only that the
judge erroneously ruled that the excess funds should not have
been disbursed to Wells Fargo. We review the judge's legal
conclusions de novo. See, e.g., Martin v. Simmons Properties,
LLC, 467 Mass. 1, 8 (2014).
"Generally, a mortgagee must give a mortgagor any surplus
generated at a foreclosure sale." Duclersaint v. Federal Natl.
Mort. Assn., 427 Mass. 809, 811 (1998), citing G. L. c. 183,
27.11 See Goldman v. Damon, 272 Mass. 302, 305 (1930). Here,
Wachovia offers two alternative justifications for departing
from this general rule. The first is that the language in the
power of sale clause of the second mortgage expanded the
universe of those entitled to receive the surplus to include
the first mortgagee, Wells Fargo; the second is that Wells Fargo
10 At oral argument, we were informed that one of those creditors is Thorpe's ex-wife.
11 The statute reads: "The holder of a mortgage of real estate, or his representatives, out of the money arising from a sale under the power of sale shall be entitled to retain all sums then secured by the mortgage, . . . including all costs, charges or expenses incurred or sustained by him or them . . ., rendering the surplus, if any, to the mortgagor, or his heirs, successors or assigns, unless otherwise stated in the mortgage." G. L. c. 183, 27.
was required to be treated as a successor or assignee of Thorpe.
Neither justification is sound.
a. Power of sale clause. The power of sale clause in the
second mortgage provides in relevant part: "The proceeds of the
sale shall be applied in the following order: (a) to all
reasonable costs and expenses of the sale, including reasonable
attorneys' fees and costs of title evidence; (b) to all sums
secured by this Mortgage; and (c) the excess, if any, to the
person or persons legally entitled thereto" (emphasis supplied).
According to Wachovia, Wells Fargo was "legally entitled" to the
surplus funds because its interest was superior to Thorpe's and
attached not only to the property but also to the proceeds of
any sale.
It is firmly established, however, that a buyer at a
foreclosure sale initiated by a junior mortgagee takes the land
subject to any senior mortgage or lien. See G. L. c. 244,
14;12 Dearnaley v. Chase, 136 Mass. 288, 289 (1884) ("[The
12 This statute provides in relevant part: "A notice of sale . . . published in accordance with the power in the mortgage and with this chapter, together with such other or further notice, if any, as is required by the mortgage, shall be a sufficient notice of the sale; and the premises shall be deemed to have been sold and the deed thereunder shall convey the premises, subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the mortgage, whether or not reference to such restrictions, easements, improvements, liens or encumbrances is
junior mortgagee] had a right to sell what was conveyed to him
by his mortgage, which was the land subject to the prior
mortgage"); Antonellis v. Weinstein, 258 Mass. 323, 326 (1927)
("It is plain that the [junior mortgagee's] sale in the present
case could not legally include prior mortgages"); Marshall v.
Francis, 332 Mass. 282, 285 (1955) (foreclosure by junior
mortgagee had no effect on senior mortgagee). See also Osborne,
Mortgages 323, at 674 (2d ed. 1970) ("A junior mortgagee's
security is the property subject to prior encumbrances").
Accordingly, "[t]he bids made at [a foreclosure] sale must be
for that which is to be sold and for that alone; that is to say,
the bids must be for the value of the interest in the estate
which will pass under the foreclosure deed. If there are prior
mortgages, these cannot be sold, and their amount ought not to
be included in the bids." Brooks v. Bennett, 277 Mass. 8, 16
As the judge found, the admonition in Brooks v. Bennett was
heeded here: the notice of sale specified that the property
would be sold subject to prior liens; consistent with that
understanding, Coniston's bid of $420,000 was substantially less
made in the deed; provided, however, that no purchaser at the sale shall be bound to complete the purchase if there are encumbrances, other than those named in the mortgage and included in the notice of sale, which are not stated at the sale and included in the auctioneer's contract with the purchaser" (emphasis supplied). G. L. c. 244, 14.
than the appraised value of the property and, as the judge
found, did not include an amount to discharge the Wells Fargo
mortgage; the transaction concluded with a foreclosure deed
setting forth $420,000 as the consideration for the interests
that passed under the foreclosure deed; and that deed expressly
stated that those interests were subject to outstanding liens.
In these circumstances, where Coniston took the property subject
to the Wells Fargo mortgage, Wells Fargo was not "legally
entitled" to a distribution of surplus funds.13
b. Successor or assignee. There is "well established case
law that recognizes an equitable lien in the surplus proceeds of
a foreclosure sale in junior mortgagees" (emphasis supplied).
First Colonial Bank for Sav. v. Bergeron, 38 Mass. App. Ct. 136,
138 (1995), citing Dennett v. Perkins, 214 Mass. 449, 451
13 Citing Chute v. Cronin, 273 Mass. 471 (1930), Wachovia also argues that even if Wells Fargo was not legally entitled to the payment, it would be inequitable to hold Wachovia liable for the mistake. However, Chute is significantly different from the present case. In Chute, a second mortgagee foreclosed, made the winning bid, and paid off both his own and the first mortgage, thereby taking the property free of liens. Id. at 473-474. The Supreme Judicial Court held that the mortgagor's bankruptcy trustee was not entitled to recover from the foreclosing mortgagee the surplus over the amount of the second mortgage. Id. at 474. As the court later explained in Brooks v. Bennett, supra at 16-17, central to its decision in Chute was that the successful bid was made and intended to absorb the debt secured by the first mortgage as well as the debt secured by the mortgage being foreclosed, and that no one had been misled. That was not the case here.
(1913), and Pilok v. Bednarski, 230 Mass. 56, 58 (1918). The
junior mortgagee is considered to be the mortgagor's successor
or assignee, and, hence, entitled to surplus proceeds under the
terms of G. L. c. 183, 27. Ibid. Although this principle has
never been extended to a senior mortgagee, Wachovia urges us to
apply it in this case. We decline to do so.
The equitable rationale for according a junior mortgagee
the status of successor or assignee is inapplicable to a senior
mortgagee. Unlike a junior mortgagee whose lien ordinarily will
be extinguished by a senior mortgagee's foreclosure,14 a senior
mortgagee needs no equitable lien to protect itself during the
foreclosure process. If the senior mortgagee is the foreclosing
party, it will be paid first; and, if a junior mortgagee is the
foreclosing party, the senior mortgage will remain attached to
the property. See Brooks v. Bennett, supra. If the buyer at a
foreclosure sale fails to pay off the remaining debt on the
senior mortgage, the senior mortgagee may foreclose.
Because Wells Fargo could expect that its mortgage would
remain with the property, it had no right to share in the
surplus funds of Wachovia's foreclosure. See Thomas v. Haines,
14 See Pehoviak v. Deutsche Bank Natl. Trust Co., 85 Mass. App. Ct. 56, 62-63 (2014) ("So long as timely and proper notice under G. L. c. 244, 14, is given to junior lienholders, these subsequent liens are extinguished with the foreclosure of a senior mortgage lien; however, the junior lienholders' debts are not discharged").
285 Mass. 90, 94 (1933) ("[P]rior mortgages and liens do not
carry a right in law or equity to any excess received in
foreclosure of a subsequent mortgage"); Spaulding v. Quincy
Trust Co., 313 Mass. 752, 753 (1943) (error to apply surplus to
reduction of previous mortgages, because "surplus stood in the
place of the equity of redemption previously existing, and
belonged to the devisees of [the original mortgagor]"); Eno &
Hovey, Real Estate Law 10.21, at 335 n.2 (4th ed. 2004)
("Encumbrances prior to the mortgage being foreclosed . . . are
not wiped out and have no right to share in the proceeds of the
sale"). See generally Restatement (Third) of Property
(Mortgages) 7.4 comment c (1997) ("Senior lienors have no lien
claim to junior foreclosure surplus").
2. Equitable defenses. Wachovia's remaining argument is
that even if it improperly distributed the excess funds, the
judge should have concluded that the trustee's claims are barred
by the doctrines of unclean hands and judicial estoppel. We
discern no error or abuse of discretion.
a. Unclean hands. The doctrine of unclean hands denies
equitable relief "to one tainted with the inequitableness or bad
faith relative to the matter in which [he] seeks relief."
Fidelity Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct.
195, 200 (1996), quoting from United States v. Perez-Torres, 15
F.3d 403, 407 (5th Cir. 1994). Here, it is questionable whether
the trustee is seeking equitable relief. Unlike the cases cited
by Wachovia, this is not an interpleader action requesting a
declaration as to the parties' rights prior to the disbursement
of the funds. See, e.g., National Lumber Co. v. Canton Inst.
for Sav., 56 Mass. App. Ct. 186, 188 (2002). Rather, the
trustee has asserted a claim for damages on account of breach of
the mortgage contract and violation of statutory foreclosure
procedures. See G. L. c. 244, 36, authorizing a mortgagor to
bring a civil action to recover surplus funds. See also Saggese
v. Kelley, 445 Mass. 434, 444 (2005) (unclean hands principle
"generally has no application to an action at law for breach of
But even if we were to view the claim as equitable in
nature, an unclean hands defense fails. The conduct at issue --
Thorpe's failure to disclose his interest in the surplus in his
divorce and bankruptcy cases -- is unconnected to Wachovia's
erroneous distribution of surplus funds and did not "directly
affect the claim being brought." Amerada Hess Corp. v.
Garabedian, 416 Mass. 149, 156 (1993), citing Flynn v. Haddad,
25 Mass. App. Ct. 496, 506 (1988). Furthermore, there is no
suggestion of any inequitable conduct on the part of the trustee
or the creditors whose interests he seeks to protect.
b. Judicial estoppel. Wachovia argues that the trustee is
judicially estopped by Thorpe's misconduct in his divorce
proceedings, i.e., his failure to disclose his claim to surplus
funds or his receipt of partial payment from Wachovia.15
"Judicial estoppel is an equitable doctrine that precludes a
party from asserting a position in one legal proceeding that is
contrary to a position it had previously asserted in another
proceeding." Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639
640 (2005) (citation omitted). Whether the doctrine should be
applied to particular facts is committed to the discretion of
the judge. See Sandman v. McGrath, 78 Mass. App. Ct. 800, 802
(2011). We defer to that discretion unless "we conclude the
judge made a clear error of judgment in weighing the factors
relevant to the decision, . . . such that the decision falls
outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Outcome: There was no abuse of discretion here. Neither the trustee
nor the creditors, who include Thorpe's ex-wife, took any
In the trial court, Wachovia also relied on Thorpe's failure to make such disclosure in the bankruptcy proceedings. Recognizing that there is a substantial body of Federal law holding that a trustee is not subject to the defense of judicial estoppel where the debtor has engaged in fraudulent conduct in a bankruptcy court, Wachovia no longer presses this point.
inconsistent positions or committed any wrongdoing. The judge
could conclude in his discretion that it would serve no
equitable purpose to preclude the trustee from recovering money
that Wachovia failed to distribute correctly.16

Judgment affirmed.

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