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SJC-11756

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,

1 vs.

FITCHBURG CAPITAL, LLC, & others.

2

Suffolk. January 5, 2015. - April 15, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause.

Real Property, Mortgage. Limitations, Statute of.

Practice, Civil, Summary judgment, Statute of limitations. 

Statute, Retroactive application, Construction. Due 

Process of Law, Retroactive application of statute, Statute 

of limitations. Constitutional Law, Contract clause.

Civil action commenced in the Land Court Department on July 

2, 2012. 

A motion for partial summary judgment was heard by Robert 

B. Foster, J., and entry of separate and final judgment was 

ordered by him. 

 

1 Of Ameriquest Mortgage Securities, Inc., Asset-backed 

Pass-through Certificates, Series 2004-R11 under the Pooling and 

Service Agreement dated as of December 1, 2004.

2 Lee Bourque; Federal National Mortgage Association; and 

John Burdick, trustee of the bankruptcy estate of Bernard 

Saulnier.
2

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Jeffrey T. Angley (Robert K. Hopkins with him) for 

Fitchburg Capital, LLC.

Jeffrey B. Loeb for the plaintiff.

Thomas O. Moriarty, for Real Estate Bar Association for 

Massachusetts, Inc., & another, amici curiae, submitted a brief.

Philip F. Coppinger, for Ry-Co International, Ltd., amicus 

curiae, submitted a brief.

HINES, J. Under a 2006 amendment to the so-called 

"obsolete mortgage" statute, a mortgage becomes unenforceable 

after a certain number of years: a mortgage in which the term 

or maturity date is stated becomes unenforceable five years 

after the expiration of the term and a mortgage in which the 

term or maturity date is not stated becomes unenforceable 

thirty-five years after recording.3 G. L. c. 260, § 33, as 

amended by St. 2006, c. 63, § 6. The defendant Fitchburg 

Capital, LLC (Fitchburg), foreclosed on two mortgages at a time 

when both mortgages would be unenforceable under the amended 

statute if the five-year statute of limitations was applicable. 

In this appeal, we interpret the amended statute to determine 

whether a mortgage stating only the term or maturity date of the 

underlying debt is a "mortgage in which the term or maturity 

date of the mortgage is stated" under G. L. c. 260, § 33, and 

 

3 The limitations periods may be extended by recording an 

extension or an affidavit or acknowledgment of nonpayment. 

G. L. c. 260, §§ 33-34.
3

whether the retroactive application of § 33 to mortgages 

recorded before the effective date of the amendment is 

constitutional.

The plaintiff, Deutsche Bank National Trust Company, as 

trustee of Ameriquest Mortgage Securities, Inc., Asset-backed 

Pass-through Certificates, Series 2004-R11 under the Pooling and 

Servicing Agreement dated as of December 1, 2004 (Deutsche 

Bank), filed a motion for partial summary judgment seeking a 

declaration that the mortgages are discharged under the obsolete 

mortgage statute and the foreclosure auction conducted on the 

property securing those mortgages is null and void.

4 In a wellreasoned opinion, a Land Court judge granted partial summary 

judgment for Deutsche Bank, concluding that reference in the 

mortgages to the term of the underlying debt was sufficient to 

state the "term or maturity date of the mortgage"; that the 

mortgages became obsolete pursuant to G. L. c. 260, § 33; and,

 

4 Deutsche Bank National Trust Company, as trustee of 

Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through 

Certificates, Series 2004-R11 under the Pooling and Servicing 

Agreement dated as of December 1, 2004 (Deutsche Bank), also 

sought summary judgment on its equitable subrogation claim, 

arguing that the mortgages held by Fitchburg Capital, LLC 

(Fitchburg), should be equitably subordinated to the mortgage 

held by Deutsche Bank because the Fitchburg mortgages were 

junior liens when granted and that the priority liens were paid 

off from proceeds from loans from Deutsche Bank's predecessors 

in title. Because of his conclusion that the mortgages were 

discharged, the judge did not reach Deutsche Bank's equitable 

subrogation claim. We affirm and therefore decline to reach 

Deutsche Bank's equitable subrogation claim.
4

therefore, that the foreclosure sale conducted by Fitchburg was 

null and void. The judge rejected Fitchburg's constitutional 

challenge to the statute. We transferred Fitchburg's appeal to 

this court on our own motion and now affirm.5

1. Background. The following facts, viewed in the light 

most favorable to the nonmoving party, are drawn from the 

summary judgment record. On or about April 30, 2012, Fitchburg 

conducted a foreclosure auction purporting to sell a property 

located at 11 Nutting Street, Fitchburg (property). Lee 

Bourque, a defendant, held record title to the property at all 

relevant times.

At the time of the purported foreclosure sale, Fitchburg 

held two mortgages secured by the property: (1) a mortgage 

dated April 13, 1999, from Lee Bourque to John Christiano, 

recorded May 14, 1999 (Christiano mortgage);

6 and (2) a mortgage 

dated December 16, 2002, from Lee Bourque to Bourque Development 

 

5 We acknowledge the amicus brief submitted by Real Estate 

Bar Association for Massachusetts, Inc., and Abstract Club; and 

by Ry-Co International, Ltd.

6 The Christiano mortgage states, "Lee Bourque . . . 

grant[s] to John Christiano . . . with mortgage covenants, to 

secure the payment of $9,722.00 . . . in one year with twenty 

percent interest per annum, payable in one year . . . , as 

provided in the promissory note of even date, the [property]."
5

Corp., recorded December 18, 2002 (BDC mortgage).7 There is no 

evidence that any party recorded an extension for either 

mortgage, an acknowledgement or affidavit that either of the 

mortgages was not satisfied, or a discharge of either mortgage. 

The original mortgagee assigned the BDC mortgage to Fitchburg by 

agreement dated March 19, 2010. The Christiano mortgage was 

assigned to Fitchburg on August 5, 2011, by the then-current 

holder and prior assignee, the estate of Jack Rosenblit.

The obligation underlying the Christiano mortgage is a note 

dated April 13, 1999, with a maturity date of May 1, 2000. The 

only obligation indicated in the record as underlying the BDC 

mortgage is a note dated December 16, 2002, with a maturity date 

of December 31, 2003. Fitchburg asserts that the maturity date 

of the loan underlying the BDC mortgage was extended to December 

1, 2007, but the agreement extending the note was never 

recorded.

 

7 The BDC mortgage states:

"Lee Bourque . . . the 'Mortgagor' . . . HEREBY GRANTS to 

Bourque Development Corporation . . . with MORTGAGE 

COVENANTS, to secure the payment of . . . $88,958.65 . . .

with interest thereon, as provided in the Mortgagor's note 

of even date, . . . and all other debts, covenants and 

agreements of or by the Mortgagor to or for the benefit of 

the Mortgagee now existing or hereafter accruing while this 

mortgage is still undischarged of record, [the property and 

other properties not at issue here]. Mortgagor has 

promised to pay the debt under this note in full not later 

than December 31, 2003."
6

Deutsche Bank holds a mortgage dated September 10, 2004, 

granted by Lee Bourque to Ameriquest Mortgage Company and 

recorded October 1, 2004 (Ameriquest mortgage). The mortgage 

was assigned to Deutsche Bank by agreement dated March 5, 2007.

On April 20, 2011, Lee Bourque filed a Chapter 13 petition 

for bankruptcy, which was later converted to Chapter 7. During 

bankruptcy proceedings, the parties discussed the relative 

priority of the mortgages and Deutsche Bank's counsel 

represented to Fitchburg's counsel that Fitchburg's mortgages 

held first and second priority on the property and that Deutsche 

Bank's mortgage was third priority. On September 26, 2011, 

Deutsche Bank filed a motion for relief from automatic stay to 

allow it to commence foreclosure proceedings, which acknowledged 

Fitchburg's first and second priority positions. Fitchburg did 

not oppose the motion, and asserts that it did not oppose 

because of the acknowledgment in the motion and conversation 

with Deutsche Bank's counsel in which the counsel recognized 

Fitchburg's first and second priority positions. On October 24, 

2011, Fitchburg filed a motion for relief from automatic stay to 

allow it to commence foreclosure proceedings, which was granted 

on February 21, 2012. Fitchburg conducted an auction purporting 

to foreclose on the property on April 30, 2012. Fitchburg was 

the high bidder at the auction and recorded a foreclosure deed 

purporting to grant fee simple title to itself on that date.
7

2. Statutory background. The obsolete mortgage statute 

was enacted in 1957 to create a statute of limitations on 

foreclosures against mortgages that had been recorded for fifty 

years or more, unless either an extension or a document 

asserting nonsatisfaction of the mortgage was recorded in the 

ten years preceding the end of the fifty-year period. G. L. 

c. 260, § 33, inserted by St. 1957, c. 370. In 2006, the 

statute was amended to create two different limitations periods, 

one for any "mortgage in which the term or maturity date of the 

mortgage is stated" and one for any "mortgage in which no term 

of the mortgage is stated." G. L. c. 260, § 33, as amended by 

St. 2006, c. 63, § 6. The limitations period for stated term 

mortgages is five years after expiration of the term or maturity 

date, and the limitations period for nonstated term mortgages is 

thirty-five years from the recording of the mortgage.

8 Id. The 

 

8 General Laws c. 260, § 33, as amended by St. 2006, c. 63, 

§ 6, provides as follows:

"A power of sale in any mortgage of real estate shall not 

be exercised and an entry shall not be made nor possession 

taken nor proceeding begun for foreclosure of any such 

mortgage after the expiration of, in the case of a mortgage 

in which no term of the mortgage is stated, [thirty-five] 

years from the recording of the mortgage or, in the case of 

a mortgage in which the term or maturity date of the 

mortgage is stated, [five] years from the expiration of the 

term or from the maturity date, unless an extension of the 

mortgage, or an acknowledgment or affidavit that the 

mortgage is not satisfied, is recorded before the 

expiration of such period. In case an extension of the

mortgage or the acknowledgment or affidavit is so recorded,
8

amended statute allows enforcement of the mortgage if an 

extension or a document asserting nonsatisfaction of the 

mortgage had been recorded, but reduced the ten-year period in 

the prior statute to five years. Id. The amended statute also 

became self-executing so that any mortgage rendered obsolete by 

the terms of the statute is discharged without further legal 

action. Id.

3. Standard of review. We review a grant of summary 

judgment de novo. Twomey v. Middleborough, 468 Mass. 260, 267 

(2014), citing Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 

214, 215 (2003). "Summary judgment is appropriate where there 

are no genuine issues of material fact and the moving party is 

entitled to judgment as a matter of law." Twomey, supra, citing 

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 

 

the period shall continue until [five] years shall have

elapsed during which there is not recorded any further 

extension of the mortgage or acknowledgment or affidavit 

that the mortgage is not satisfied. The period shall not 

be extended by reason of non-residence or disability of any 

person interested in the mortgage or the real estate, or by 

any partial payment, agreement, extension, acknowledgment, 

affidavit or other action not meeting the requirements of 

this section and [G. L. c. 260, §§] 34 and 35. Upon the 

expiration of the period provided herein, the mortgage 

shall be considered discharged for all purposes without the 

necessity of further action by the owner of the equity of 

redemption or any other persons having an interest in the 

mortgaged property and, in the case of registered land, 

upon the payment of the fee for the recording of a 

discharge, the mortgage shall be marked as discharged on 

the relevant memorandum of encumbrances in the same manner 

as for any other mortgage duly discharged."
9

(1991). Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 

(2002).

4. Limitations period applicable to Fitchburg's 

foreclosure under obsolete mortgage statute. The judge allowed 

partial summary judgment in favor of Deutsche Bank after 

concluding that Fitchburg's purported foreclosure was void 

because the BDC and Christiano mortgages had been discharged as 

a matter of law before foreclosure.9 Although neither mortgage 

expressly contained the "term or maturity date" of the mortgage 

itself, the judge reasoned that "the dates and terms [of the 

underlying debt] set forth in the Christiano Mortgage and the 

BDC Mortgage are statements of 'the term or maturity date of the 

mortgage' that make these two mortgages subject to the five-year 

period." We agree.

We answer the question presented by applying well-settled 

rules of statutory construction. When the meaning of a statute 

is at issue, "[w]e begin with the canon of statutory 

construction that the primary source of insight into the intent 

of the Legislature is the language of the statute." 

 

9 We assume without deciding that Fitchburg invoked its 

rights under both the BDC and Christiano mortgages. The 

foreclosure deed recorded by Fitchburg stated that it foreclosed 

on the property under the powers granted to it by the BDC 

mortgage and "every other power." The resolution of this 

question is not pertinent to the issue on appeal because both 

the BDC mortgage and the Christiano mortgage were discharged as 

a matter of law prior to Fitchburg's purported foreclosure.
10

International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 

(1983). The language is interpreted in accordance with its 

plain meaning, and if the language is clear and unambiguous, it 

is conclusive as to the intent of the Legislature. Commissioner 

of Correction v. Superior Ct. Dep't of the Trial Court, 446 

Mass. 123, 124 (2006), citing Commonwealth v. Clerk-Magistrate 

of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 

355-356 (2003).

When interpreting the phrase, "mortgage in which the term 

or maturity date of the mortgage is stated," that triggers the 

five-year statute of limitations, "[w]ords and phrases shall be 

construed according to the common and approved usage of the 

language." G. L. c. 4, § 6, Third. According to Black's Law 

Dictionary 478, 1163 (10th ed. 2014), "maturity date" means 

"[t]he date when a debt falls due, such as a debt on a 

promissory note or bond," and "mortgage" means "[a] conveyance 

of title to property that is given as security for the payment 

of a debt or performance of a duty and that will become void 

upon payment or performance according to the stipulated terms." 

Thus, the common meaning of the "maturity date of the mortgage" 

is the date on which the underlying debt is due because a 

mortgage derives its vitality from the debt that it secures.

This definition comports with the treatment of mortgages

under our common-law principles. Although a mortgage and a note 
11

are separate entities in Massachusetts that can be split, it has 

long been recognized that "a mortgage ultimately depends on the 

underlying debt for its enforceability." Eaton v. Federal Nat'l 

Mtge. Ass'n, 462 Mass. 569, 576, 578 n.11 (2012), citing Crowley

v. Adams, 226 Mass. 582, 585 (1917), Wolcott v. Winchester, 15 

Gray 461 (1860), and Howe v. Wilder, 11 Gray 267, 269-270 

(1858). By its nature, a mortgage does not mature distinctly 

from the debts or obligations that it secures. See Eaton, supra

at 577-578 ("the basic nature of a mortgage [is] security for an 

underlying mortgage note"); Barnes v. Lee Sav. Bank, 340 Mass. 

87, 90 (1959) ("The debt having been extinguished, a bond or 

mortgage given as security for the debt is necessarily 

discharged"). Accordingly, a mortgage is a device for providing 

security for a loan, but it does not generally have a binding 

effect that survives its underlying obligation.10 See Piea 

Realty Co. v. Papuzynski, 342 Mass. 240, 246 (1961), quoting 

Pineo v. White, 320 Mass. 487, 489 (1946) (unless other 

equitable considerations apply, "payment of the mortgage note . 

. . terminates the interests of the mortgagee without any formal 

 

10 "Equitable considerations . . . may affect the questions 

whether mortgage security has been discharged or (if discharged) 

will be reinstated and whether, by subrogation or upon analogous 

principles, it still remains available to a mortgage creditor." 

Piea Realty Co. v. Papuzynski, 342 Mass. 240, 246, 250 (1961) 

(remanding for consideration whether principles of unjust 

enrichment or other equitable considerations should reestablish 

mortgage otherwise discharged by parties).
12

. . . discharge and revests the legal title in the mortgagor"). 

Therefore, the judge's interpretation of the statute corresponds 

to the plain meaning of the language chosen by the Legislature.

Fitchburg argues that the judge's interpretation conflicts 

with the language of the statute by citing the definition of 

"mortgage" provided in G. L. c. 260, § 35. Under this 

provision, a "mortgage," for the purposes of the obsolete 

mortgage statute, "includes any deed of trust or other 

conveyance made for the purpose of securing performance of a 

debt or obligation." G. L. c. 260, § 35. Fitchburg argues that 

the definition in § 35 requires that the applicable maturity 

date be tied directly to the mortgage and not to the underlying 

obligation. Fitchburg also cites language in Eaton, 462 Mass. 

at 575, "A real estate mortgage in Massachusetts has two 

distinct but related aspects: it is a transfer of legal title 

to the mortgage property, and it serves as security for an 

underlying note or other obligation," to support its argument 

that the maturity date of the note may not be exported to the 

mortgage because a mortgage and a note each have separate legal 

significance in Massachusetts. Fitchburg's argument is 

unavailing for several reasons.

The flaw in Fitchburg's argument is the misconception that 

considering the maturity date of the note to be the maturity 

date of the mortgage requires the note and the mortgage to lose 
13

any independent properties. The question, rather, is whether 

the term or maturity date of the underlying obligation is 

commonly understood as the term or maturity date of the mortgage 

when that date is stated on the face of the mortgage. To this 

question, the definition in § 35 is unhelpful. Not only is the 

definition inclusive instead of limiting, it only sets forth the 

types of security applicable to the obsolete mortgage statute; 

it does not define the particularities of a mortgage's 

provisions. See G. L. c. 260, §§ 33-35. Moreover, we noted in 

Eaton that the "essential nature and purpose of a mortgage [i]s 

security for a debt." Eaton, 462 Mass. at 584. As noted above, 

because the scope of a mortgage is necessarily tied to the reach 

of the underlying obligation, considering the term or maturity 

date of the underlying obligation to be the term or maturity 

date of the mortgage comports with the common-law understanding 

of the words "mortgage" and "note." See Barnes, 340 Mass. at 

90.

Fitchburg also argues that the judge's interpretation was 

erroneous because the title of the act modifying the statute, 

"An Act providing remedies to consumers for clearing title after 

payoff of mortgages," signifies that the Legislature only 

intended the five-year limitations period to apply to mortgages 

where the underlying obligations have been paid in full. 

St. 2006, c. 63. The title of the act, however, is ineffective
14

to modify the language of the statute because that language is 

clear. "Although we have recognized that the title of an act or 

statutory provision may be helpful in clarifying ambiguity, 

. . . or identifying the act's 'proper limitations,' . . . the 

title may not replace or limit otherwise clear language in the 

act itself" (citations omitted). Olmstead v. Department of 

Telecommunications & Cable, 466 Mass. 582, 589 n.12 (2013). 

Because the ordinary meaning of "term or maturity date of the 

mortgage" is clear based on common usage of that language, the 

title of the act cannot control. American Family Life Assur. 

Co. v. Commissioner of Ins., 388 Mass. 468, 474, cert. denied, 

464 U.S. 850 (1983) ("title of an act cannot control the plain 

provisions of the act"). Even if we took the title into 

account, the language of the title comports with the common 

usage of mortgage and note. The Legislature chose the words, 

"after payoff of mortgages," for the title. However, a mortgage 

cannot be paid off; only its underlying obligation can be paid 

off. Accordingly, the Legislature referred to the mortgage in 

the title as possessing characteristics of underlying 

obligations similar to the phrase, "maturity date of the 

mortgage," used in the statute.

Furthermore, although our conclusion yields a workable 

result and thus ends our inquiry, review of the entire act that 

modifies the obsolete mortgage statute would not provide a 
15

contrary result. Thurdin v. SEI Boston, LLC, 452 Mass. 436, 454 

(2008), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701, 

704 (1984) ("When the use of the ordinary meaning of a term 

yields a workable result, there is no need to resort to 

extrinsic aids such as legislative history"). The revisions to 

the obsolete mortgage statute were contained within an act 

comprising nine sections and affecting multiple statutes.

11 

Although the title references mortgages "after payoff," review 

of the entire act demonstrates an over-all scheme to streamline 

conveyancing and provide remedies to clear title blemished by 

mortgages in various levels of standing, including mortgages 

whose obligations have been satisfied, St. 2006, c. 63, §§ 2-4; 

mortgages granted by mortgagors who have been in possession of 

the secured property for a specified period without recognizing

the mortgage as valid, St. 2006, c. 63, § 5; and mortgages that 

have become obsolete, St. 2006, c. 63, §§ 6-7.

12 Accordingly, 

 

11 A search of legislative history has not produced any 

detailed official purpose of St. 2006, c. 63 (act), or its 

various sections.

12 Sections 2, 3, and 4 of the act expanded the statutes 

regulating mortgage discharges, G. L. c. 183, §§ 54B, 54C, 54D, 

and 55, and provided specific timeframes in which a discharge 

must be recorded after payoff. Sections 4A and 4B of the act 

updated the disclosures required during the mortgage application 

process by amending G. L. c. 184, § 17B, and repealing §§ 17C

and 17D. Section 5 of the act amended the statute governing 

actions to quiet title, G. L. c. 240, § 15, and provides 

additional avenues for discharging a mortgage when the 

underlying obligation has been satisfied or when a mortgagor 
16

although the Legislature used the words "after payoff" in the 

title of the act, it is clear from review of the entire act that 

the Legislature did not intend to limit all changes in the act 

to affect only mortgages where the underlying obligations had 

been paid off or satisfied.

In that regard, Fitchburg does not argue that applicability 

of the revised limitations period for mortgages in which the 

term is not stated depends on satisfaction of the underlying 

obligations. The obsolete mortgage statute created a 

limitations period for bringing foreclosure actions against 

mortgages. G. L. c. 260, § 33. Under the amendment, the 

statute requires the holder of a mortgage to foreclose on the 

mortgage, record a document asserting nonsatisfaction, or record 

an extension before the mortgage has been on record for thirtyfive years or before the secured debt is overdue by five years 

(and the due date is stated on the face of the mortgage). See 

St. 2006, c. 63, § 6. The statute has never been interpreted to 

require satisfaction of a mortgage's underlying obligations 

before the mortgage becomes unenforceable. Conversely, the 

statute provides a mortgagee options to preserve its rights 

under a mortgage that has not been satisfied by recording an 

acknowledgment or affidavit asserting nonsatisfaction, or by 

 

claims that the mortgage is invalid and that claim is not 

contested.
17

recording an extension of term. G. L. c. 260, § 33, as amended

by St. 2006, c. 63, § 6. Discharge under the obsolete mortgage 

statute has never rested on satisfaction of a mortgage's 

underlying obligations, and we decline to adopt a contrary

position today.

Determining that the term or maturity date of an underlying 

obligation, when stated on the face of the mortgage, can become 

the term or maturity date of the mortgage does not end our 

inquiry. We must still review the actual language used in the 

Christiano and BDC mortgages. The BDC mortgage states, 

"Mortgagor has promised to pay the debt under this note in full 

not later than December 31, 2003," and the Christiano mortgage, 

dated April 13, 1999, states that the mortgage is granted to 

"secure the payment of $9,722.00 . . . in one year with twenty 

percent interest per annum, payable in one year . . . as 

provided in the promissory note of even date." Based on the 

reasoning above, we read the quoted language in each mortgage to 

state the term or maturity date of that mortgage, making each 

subject to the five-year statute of limitations.

Beyond the language quoted above, the BDC mortgage also 

contains a dragnet clause, in which "all other debts, covenants 

and agreements of or by the Mortgagor to or for the benefit of 

the Mortgagee now existing or hereafter accruing while this 

mortgage is still undischarged of record" become secured by the 
18

mortgage in addition to the original underlying obligation. 

Dragnet clauses are mortgage provisions that provide security 

for future advances and "are usually held valid in 

Massachusetts, at least where such advances are made prior to 

the intervention of other liens." Everett Credit Union v. 

Allied Ambulance Servs., Inc., 12 Mass. App. Ct. 343, 346 

(1981), citing Barnard v. Moore, 8 Allen 273, 274 (1864). 

Fitchburg argues that the presence of the dragnet clause 

indicates that the parties intended the BDC mortgage to outlive 

the underlying note for an indefinite duration. This argument, 

however, conflicts with the nature of a mortgage as being tied 

to the life of its underlying obligations. See Piea Realty Co., 

342 Mass. at 246; Barnes, 340 Mass. at 90. Although Fitchburg 

asserts a pattern of frequent lending between the original 

mortgagee of the BDC mortgage and the mortgagor that culminated 

in the creation of the BDC mortgage,

13 Fitchburg does not assert 

the presence of any debts incurred after the date of the BDC

mortgage that would have been secured under its dragnet clause, 

and thus possibly extend the term of the mortgage beyond the 

term of the original note. Without holding that a dragnet 

 

13 The mortgagor, Lee Bourque, is the brother of the 

principal of Bourque Development Corporation and of Fitchburg, 

Paul Bourque. Paul, through his company, made a series of loans 

to his brother to be used in real estate development activities. 

These loans culminated in the BDC mortgage.
19

clause may never extend the term or maturity date of a mortgage, 

we conclude that the dragnet clause here did not extend the term 

of the BDC mortgage or take that mortgage out of the realm of 

mortgages in which the term is stated.

14

5. Constitutionality of retroactive application of 

limitations period. After determining that the Christiano and 

BDC mortgages were discharged under the obsolete mortgage 

statute, the judge rejected Fitchburg's constitutional challenge 

to the retroactive application of the shortened statute of 

limitations, reasoning that there were no constitutional 

infirmities where the Legislature allowed sufficient time after 

enacting St. 2006, c. 63, § 6, for affected parties to bring a 

foreclosure and where G. L. c. 260, § 33, as amended, does not 

totally abrogate existing property rights. Fitchburg argues

that, assuming we agree that the judge correctly interpreted the 

obsolete mortgage statute, we must reverse because the 

application of the statute in this case violates due process and 

 

14 Under Massachusetts case law, the dragnet clause would 

only have provided security for new debt incurred before the 

presence of an intervening lien. Debral Realty, Inc. v. 

Marlborough Coop. Bank, 48 Mass. App. Ct. 92, 94 (1999). In 

this case, the next lien following the BDC mortgage was incurred 

April 13, 2004. Accordingly, even if the dragnet clause were 

operative to extend the term of the mortgage separate from the 

term of the original note, the dragnet clause would only extend 

the mortgage's maturity date from December 31, 2003, to April 

13, 2004, and the five-year statute of limitations would still 

have expired before Fitchburg's purported foreclosure sale on 

April 30, 2012.
20

contracts clause protections under the Massachusetts and Federal 

Constitutions. In that connection, Fitchburg argues that 

retroactive application of the five-year limitations period to 

the BDC and Christiano mortgages is unreasonable and 

unconstitutional.

"There are constitutional limitations on the Legislature's 

power to enact retroactive statutes -- in brief, such statutes 

must 'meet the test of "reasonableness."'" Anderson v. BNY 

Mellon, N.A., 463 Mass. 299, 307 (2012), quoting American Mfrs. 

Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189 

(1978). "A statute is presumed to be constitutional and every 

rational presumption in favor of the statute's validity is 

made." Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 193 

(2004), citing Leibovich v. Antonellis, 410 Mass. 568, 577 

(1991). The challenging party bears the burden to prove that 

the statute is irrational in its application. Doe, Sex Offender 

Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 

780, 788 (2008). Where the applicable statute is one affecting 

a limitations period, a "shortened statute of limitations may be 

applied to causes of action already accrued 'if sufficient time 

be allowed, between the passing of the act and the time fixed 

for the limitation, to afford a full and ample time to all 

persons, having such causes of action, to commence their 
21

suits.'" Cioffi v. Guenther, 374 Mass. 1, 3 (1977), quoting 

Loring v. Alline, 9 Cush. 68, 71 (1851).

Here, the act revising the obsolete mortgage statute was

approved April 13, 2006, and the Legislature extended the 

effective date of the operative section until October 1, 2006.15 

St. 2006, c. 63, §§ 6, 9. Accordingly, the Legislature 

determined that five and one-half months was a reasonable time 

for mortgagees to enforce their rights under mortgages that 

would be deemed obsolete under the revised statute or to record 

one of the other documents permitted by statute to preserve the 

mortgagee's rights.16 G. L. c. 260, §§ 33-34. We have 

considered shorter periods of time before the effective date of 

a shortened statute of limitations to be reasonable. See, e.g., 

Cunningham v. Commonwealth, 278 Mass. 343, 346 (1932); Mulvey v. 

Boston, 197 Mass. 178, 183-185 (1908) (thirty days). See also 

Evans v. Building Inspector of Peabody, 5 Mass. App. Ct. 805, 

805-806 (1977) (ninety days).

 

15 The Legislature provided an additional extension for 

enforceability of mortgages affected by §§ 5 and 6 of the act, 

where the term would expire during the one year following the 

effective date, so that those mortgages would be enforceable 

through October 1, 2007. St. 2006, c. 63, § 8.

16 As previously noted, a mortgagee may record an extension 

or affidavit or acknowledgment that the underlying obligation 

has not been satisfied in order to extend the time before a 

mortgage is deemed obsolete under G. L. c. 260, § 33.
22

We conclude that the period of five and one-half months 

provided by the Legislature is reasonable in light of the fact 

that a mortgagee is provided other options under the statute, 

other than commencing foreclosure, to extend its rights under a

mortgage. "What shall be considered a reasonable time must be 

settled by the judgment of the Legislature, and the courts will 

not inquire into the wisdom of its decision in establishing the 

period of legal bar, unless the time allowed is manifestly so 

insufficient that the statute becomes a denial of justice." 

Mulvey, 197 Mass. at 183, quoting Wilson v. Iseminger, 185 U.S. 

55, 63 (1902). Fitchburg contends that the statute is a denial 

of justice as it applies to its mortgages, both commercial in 

nature, with unsatisfied underlying obligations and an 

unrecorded extension agreement. While this contention has some 

force, it should be addressed to the Legislature, because the 

time allotted by the Legislature for mortgagees to preserve 

their rights makes retroactive application of the 2006 amendment 

constitutional. See Cioffi, 374 Mass. at 4. There is no denial 

of justice in this case because Fitchburg was entitled to record 

an extension or an affidavit or acknowledgment that the 

underlying obligation had not been satisfied in order to extend 

the time before its mortgages were deemed obsolete under G. L. 

c. 260, § 33. Fitchburg's failure to follow these clear 
23

directives does not make the statute unconstitutional. Cioffi, 

supra.

6. Conclusion. The order allowing in part Deutsche Bank's 

motion for partial summary judgment is affirmed.

So ordered.