Bank of N.Y. Mellon Trust Co. v. Novak

On December 29, 2009, the plaintiff commenced this action under the Servicemembers Civil Relief Act (the Act) against Lawrence P. Novak. Novak, acting pro se, filed two motions requesting a stay of the proceedings in support of which he asserted claims concerning the validity of the loan and the foreclosure, but did not claim protection under the Act. In denying the second motion, the Land Court judge stated:

“This is the defendant's second request for a stay. Defendant is obviously aware of pendency of this servicemembers action, filed December 29, 2009. Nothing in the motion raises any issue cognizable in this type of action, which concerns only defendant's entitlement to protection under the Servicemembers Civil Relief Act, something defendant does not claim. Beaton v. Land Court, 367 Mass 385, 388 (1995). Case to proceed to judgment.”
Shortly thereafter, a judgment for entry and sale entered, and this appeal ensued.

The judgment in this case serves to establish that Novak is not entitled to the protections of the Act. Because Novak never has contended that he is a member of the military service, there is no basis for disturbing the judgment. As no other steps with regard to foreclosure are at issue at this juncture, we decline to address Novak's remaining arguments which either have no place in proceedings under the Act or do not rise to the level of proper appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

Judgment affirmed.
-------- Notes:

Formerly known as Bank of New York Trust Company, as successor to J.P. Morgan Chase Bank, formerly known as JPMorgan Chase Bank.