No. 980330BCommonwealth of Massachusetts Superior Court WORCESTER, SS
June 12, 1998
MEMORANDUM DATED JUNE 12, 1998
FREMONT-SMITH, J.
After hearing, plaintiff’s motion for summary judgment is denied.
Atlantic Savings Bank v. Metropolitan Bank, 9 Mass. App. Ct. 286 (1980), holds that a subsequent mortgage subordinates a prior homestead to the mortgage lien, id., 288, but does not hold that such a mortgage extinguishes the homestead as to all subsequent creditors. M.G.L.c. 188, § 7 provides that “an estate of homestead created under § 2 may be terminated during a lifetime of the owner by either of the following methods: — a deed conveying the property in which an estate of homestead exists . . . which does not specifically reserve said estate of homestead; or by (2) a release of the estate of the homestead . . .” The statute does not, however, state that a mortgage is to be deemed the equivalent of “a deed,” for this purpose.
To construe this language to extinguish a homestead vis a vis other than the mortgagee would effectively eliminate homestead protection as to all other subsequent creditors each time a homeowner refinanced or otherwise gave a mortgage on property. It is not reasonable to conclude that the legislature, by enacting Chapter 188, § 7, intended such a drastic result, and Atlantic Savings Bank does not so hold.
FREMONT-SMITH, J.