COMMENTS

Lien Times in Massachusetts: Tenancy by the Entirety After Coraccio v. Lowell Five Cents Savings Bank

  Introduction

One day while reading the newspaper, Massachusetts resident Nancy Coraccio discovered that a local bank was foreclosing on her home and principal residence.⁽¹⁾ Investigating further, she learned that her husband, without her knowledge or consent, had secured a second mortgage on the property they held as tenants by the entirety.⁽²⁾ When he failed to pay the note, the bank moved to foreclose in Land Court against the property under statutory and common law authority.⁽³⁾

The common law form of tenancy by the entirety has roots of ancient origin.⁽⁴⁾ It is a particular type of joint tenancy,⁽⁵⁾ which only married couples may own.⁽⁶⁾ Its distinguishing characteristic is an indestructible survivorship right which neither spouse can unilaterally sever or destroy.⁽⁷⁾ At common law, however, the husband was entitled to manage, control, and possess the couple's estate during the marriage.⁽⁸⁾ Furthermore, he could alienate his rights, thus subjecting the property to the reach of creditors.⁽⁹⁾ In contrast, his wife's only interest in the estate was her survivorship right to the whole property were he to predecease her.⁽¹⁰⁾

The Married Women's Property Acts of the mid- to late-nineteenth century were passed by many states to equalize the rights and privileges of husbands and wives in specific property interests, including tenancies by the entirety.⁽¹¹⁾ In nine jurisdictions, however, courts interpreted the Acts as abolishing this form of ownership,⁽¹²⁾ reasoning that tenancies by the entirety were incompatible with the spirit of the wife's emancipation.⁽¹³⁾ Thus, the right to hold property as tenants by the entirety in these jurisdictions no longer existed.⁽¹⁴⁾

Of the approximately twenty states recognizing tenancies by the entirety thereafter,⁽¹⁵⁾ only Massachusetts, Michigan, and North Carolina have brought into modern times the tenancy's ancient husband-oriented form.⁽¹⁶⁾ In view of the inequality of spousal rights under the estate, however, the Massachusetts Legislature, in 1980, amended General Laws chapter 209, section 1,⁽¹⁷⁾ in an attempt to equalize the rights of husbands and wives in entirety properties.⁽¹⁸⁾

Against this background, the Supreme Judicial Court of Massachusetts (SJC) took, on its own initiative, the appeal in Coraccio v. Lowell Five Cents Savings Bank.⁽¹⁹⁾ The appeal challenged the lower court's denial of a declaration regarding the statute's legal effect on the second mortgage and the meaning of chapter 209, section 1.⁽²⁰⁾ Granting Nancy Coraccio's request for declaratory relief, the SJC considered the following issue: "[U]nder G. L. 209, § 1, [is] a [second] mortgage of property held by the entirety, granted by one spouse without the other's knowledge [or consent] . . . a valid encumbrance [?]"⁽²¹⁾ In view of the express language of chapter 209, section 1, and applicable common law characteristics of the estate,⁽²²⁾ the court followed the rule set out in the Court of Appeals of New York case, V.R.W., Inc. v. Klein.⁽²³⁾ The SJC held that:

"[T]here is nothing in [our State's] law that prevents one of the co-owners [of property held by the entirety] from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other."⁽²⁴⁾

The court declared that "G.L. c. 209, § 1, does not require the consent of both spouses before a mortgage may encumber the property, and that the bank, if it foreclosed, could acquire Stephen Coraccio's interest in the property, namely a right wholly defeasible should the plaintiff, the nondebtor spouse, survive him."⁽²⁵⁾

This Comment examines the Coraccio case and its effect on Massachusetts tenancies by the entirety created thereafter.⁽²⁶⁾ Part II explores the origins and characteristics of the ancient common law estate, the emergence of the modern estate through varying judicial interpretations of the Married Women's Property Acts, and the feudal legacy of male dominion dominating Massachusetts property law for nearly one hundred years.⁽²⁷⁾ Part III focuses on the facts, procedural history, issues, the parties' arguments, and the holding and reasoning of the Coraccio court.⁽²⁸⁾ Part IV considers the practical implications of the Coraccio decision, with a view of those questions that remain unanswered.⁽²⁹⁾ It also provides an analysis of the opinion in light of several relevant considerations.⁽³⁰⁾ These considerations include the meaning and impact of equal spousal consent and control under the statute,⁽³¹⁾ the court's adoption of the New York rule over the majority position,⁽³²⁾ and public policy tensions between the competing interests of family property protection and creditors' rights.⁽³³⁾ Part V concludes with recommendations for legislative amendments to chapter 209, section 1.⁽³⁴⁾

  Tenancy by the Entirety: The Ancient Estate at Law

A.  Historical Background

In 1066, a small but bloody battle was waged at Hastings in England.⁽³⁵⁾ The victor, William of Normandy, now known as William the Conqueror, became the ruling monarch and created an English feudal

system of land-holdings that had a profound impact on the development of British law and the American legal system which was derived from it.⁽³⁶⁾

In early feudal society, land equalled wealth and power,⁽³⁷⁾ and as king, William "owned" all the land in England.⁽³⁸⁾ He awarded large land tracts to his loyal backers, but his largess was not in the form of a complete divestiture.⁽³⁹⁾ Instead, he maintained ownership while the recipients became tenants who "were said to hold `of' him."<sup>(40)</sup> This holding "`of'" him was called "tenure."⁽⁴¹⁾ Tenure permitted the tenants to occupy, use, and possess the land as though they were absolute owners, although it did not give title to the tenants.⁽⁴²⁾ From the concept of tenure, a complicated property system emerged, with the King's tenants, now known as lords, acquiring tenants of their own.⁽⁴³⁾ Their tenants, in turn, distributed land through tenancies which trickled down to include even the lowest strata of society.⁽⁴⁴⁾

A tenant compensated his overlord by rendering services⁽⁴⁵⁾ and incidents of many kinds.⁽⁴⁶⁾ Initially, he might have furnished troops or worked the lord's land.⁽⁴⁷⁾ Later, as feudalism waned, tenants most often paid fixed amounts of money in lieu of personal service requirements.⁽⁴⁸⁾

The roots of tenancy by the entirety in American law originate from the English system of feudal land tenures.⁽⁴⁹⁾ When an estate was co-owned, as in the entirety, and one of the co-owners died, the law required that the entire estate pass to the survivor.⁽⁵⁰⁾ This survivorship requirement had the effect of maintaining the feudal imperative against dividing obligations to the overlord among several tenants.⁽⁵¹⁾ It also allowed the overlord to determine who was in possession of his land, thus making it easier for him to collect services and incidents during critical times.⁽⁵²⁾

B.  Characteristics of the Common Law Form

Tenancy by the entirety is a common law form of concurrent property ownership⁽⁵³⁾ which only husbands and wives can hold.⁽⁵⁴⁾ Of the four ancient types of concurrent ownership that originally existed,⁽⁵⁵⁾ only joint tenancies and tenancies by the entirety had a right of survivorship.⁽⁵⁶⁾ While both joint tenancies and tenancies by the entirety required the four unities for their formation,⁽⁵⁷⁾ a tenancy by the entirety was distinguished by an indestructible survivorship right.⁽⁵⁸⁾ A joint tenant could destroy the joint tenancy by inter vivos conveyance of his or her fractional interest⁽⁵⁹⁾ or by an action for partition.⁽⁶⁰⁾ By comparison, neither husband nor wife in a tenancy by the entirety could dispose of or partition any part of the estate without the other's consent.⁽⁶¹⁾ Thus, transfer of title to a husband and wife by the entirety was a transfer to a legal unity with husband and wife regarded as one person.⁽⁶²⁾ Neither spouse had a divided, individual share in the estate;⁽⁶³⁾ rather, the couple held an interest in the whole property, generally vested at the time of conveyance.⁽⁶⁴⁾ In addition, a tenancy by the entirety could be terminated only by divorce,⁽⁶⁵⁾ death of either party,⁽⁶⁶⁾ or consensual transfer of title.⁽⁶⁷⁾

The property interests of spouses owning by the entirety, however, were far from equal.⁽⁶⁸⁾ The rights created by the tenancy were shaped by the common law principle of male dominion inherent in the concept of marital unity.⁽⁶⁹⁾ While the common law treated unmarried men and women unequally,⁽⁷⁰⁾ the property rights of a married woman were disabled to a much greater degree than those of her unmarried sisters.⁽⁷¹⁾ From the moment a woman married, her legal rights in property changed drastically.⁽⁷²⁾ She suffered from "a complete legal blackout termed coverture."⁽⁷³⁾ Her status merged in her husband,⁽⁷⁴⁾ and he held the rights of both and could act for both.⁽⁷⁵⁾ Thus, "[m]an and wife were one and the one was male."⁽⁷⁶⁾

An additional incident of marriage was the husband's acquisition of the freehold estate of jure uxoris.⁽⁷⁷⁾ Under the doctrine of jure uxoris, marriage gave to the husband an absolute gift of all the personalty his wife owned prior to the marriage.⁽⁷⁸⁾ Personalty later acquired by the wife during the marriage automatically belonged to him as well.⁽⁷⁹⁾ The husband also acquired the right of complete dominion and control over all real property obtained during the marriage as well as that property solely owned by his wife prior to the marriage.⁽⁸⁰⁾ Thus, the ancient estate gave the husband the following exclusive legal prerogatives: He could occupy the principal and use the income of the entire estate; he could manage, control, and possess the property and the income deriving from it; he could use the estate as a basis of credit, subjecting his possessory and survivorship interests to attachment for his singular debts during the marriage; and he alone could represent the estate during litigation.⁽⁸¹⁾ In contrast, his wife's sole interest was a contingent survivorship right to the whole estate were she to outlive her husband.⁽⁸²⁾

C.  Spousal Rights and the Modern Estate

1.  The Married Women's Property Acts

A movement to free married women from their social and economic dependency resulted in the passage of the Married Women's Property Acts by most state legislatures during the mid- to late-nineteenth century.⁽⁸³⁾ These acts set the stage for further legislation granting married women full dominion and control over their own property, contractual freedom, and the right to sue and the status to be sued.⁽⁸⁴⁾ Eventually, the disabilities a woman suffered when married were substantially removed.⁽⁸⁵⁾

State courts reached divergent conclusions concerning the impact of the Acts on the entirety estate.⁽⁸⁶⁾ These conclusions can be broken down into a number of categories.⁽⁸⁷⁾ Nine states ruled that tenancies by the entirety had been destroyed.⁽⁸⁸⁾ The courts in these jurisdictions reasoned that this form of property ownership could not exist apart from the common law principle of male dominion and was, therefore, inconsistent with the emancipation of the wife under the Acts.⁽⁸⁹⁾

Of the states holding that the entirety estate still existed, seventeen declared a change in form equalizing spousal rights, privileges, powers, and immunities, but to varying degrees.⁽⁹⁰⁾ At one end of the equality scale were those states that increased the woman's rights to the level of her husband's.⁽⁹¹⁾ The spouses held property as if they were joint tenants or tenants in common, with neither party able to sever the estate in disregard of the other's survivorship interest.⁽⁹²⁾ In essence, the wife became a free agent over her undivided one-half interest in the property.⁽⁹³⁾

In contrast to the above position, the majority of states within this category reduced the husband's rights.⁽⁹⁴⁾ In these jurisdictions, the modern estate had homestead-like similarities.⁽⁹⁵⁾ Neither husband nor wife could exclude the other from occupying the property, nor could either independently alienate any part of the principal or income.⁽⁹⁶⁾ Additionally, the estate could not be attached for the separate debts of either spouse, as the right of separate credit was unavailable.⁽⁹⁷⁾ Moreover, neither party could affect the interest of the other without notice.⁽⁹⁸⁾ Finally, upon the death of a co-owner, the entire estate passed to the surviving spouse.⁽⁹⁹⁾

At the far end of the spectrum was the minority view that the entirety estate remained unchanged at common law.⁽¹⁰⁰⁾ Thus, the ancient characteristics of the estate, with absolute control vested in the husband, continued into modern times.⁽¹⁰¹⁾ Massachusetts was among the three states interpreting the effect of the Acts in this way.⁽¹⁰²⁾

D.  The Massachusetts Legacy of Male Dominion

1.  The Case of Pray v. Stebbins

The 1886 case of Pray v. Stebbins⁽¹⁰³⁾ held that the inequality between marital partners as tenants by the entirety was unchanged by the Married Women's Property Acts.⁽¹⁰⁴⁾ This decision affected the development of Massachusetts marital property law for almost one hundred years.⁽¹⁰⁵⁾

At issue in Pray was the question of whether property by the entirety, leased by the husband to another, was binding on his wife.⁽¹⁰⁶⁾ The plaintiff claimed a right to the property which the husband had leased to him, while the defendant, a tenant of the co-owning wife, already possessed it.⁽¹⁰⁷⁾ Chief Justice Field held that the husband had the right to make the lease and that it bound his wife (and her tenant) during the marriage.⁽¹⁰⁸⁾ In a two-pronged holding, it was declared that: 1) the Massachusetts Married Women's Property Act did not apply to tenancies by the entirety, and 2) spousal rights in the estate were still controlled by the common law.⁽¹⁰⁹⁾

The Chief Justice reasoned that because the statute only referred to the "sole and separate property of the wife,"⁽¹¹⁰⁾ the legislature could not have intended that it be applied to an entirety property where the husband and wife held one interest which could not be separated.⁽¹¹¹⁾ To hold otherwise would allow each spouse to convey the entire estate as though each owned the whole property individually or permit each spouse to sever his or her interest so that the property could be conveyed as though they held it jointly or as tenants in common.⁽¹¹²⁾

Thus, the court held that the common law determined spousal rights under the estate.⁽¹¹³⁾ By that law, neither party, during their joint lives, could convey the property and bind the other or defeat the right of survivorship.⁽¹¹⁴⁾ Apart from this restriction, however, the husband had the right to manage, possess, and control the estate as if it were his own.⁽¹¹⁵⁾ Additionally, he continued to be vested with the rights he received in the real property of his wife,⁽¹¹⁶⁾ whether she owned it in "fee simple, fee tail, or for life."⁽¹¹⁷⁾

2.  Massachusetts Tenancy by the Entirety Prior to the Passage of Massachusetts General Laws Chapter 209, § 1

Prior to the passage of the amended statute, rights in Massachusetts tenancies by the entirety were predominantly shaped by the common law.⁽¹¹⁸⁾ When the legislature amended the law governing entirety estates by enacting chapter 209, section 1, it intended that the changes apply only to those tenancies created after February 11, 1980.⁽¹¹⁹⁾ Thus, tenancies created prior to this date are still controlled today by the old common law.⁽¹²⁰⁾

In 1980, in addition to the characteristics of the estate announced under Pray,⁽¹²¹⁾ a Massachusetts tenancy by the entirety continued to be an estate held by a husband and wife as though they were one person.⁽¹²²⁾ The husband had the right to exclusively possess⁽¹²³⁾ and control the estate⁽¹²⁴⁾ and all income deriving from it.⁽¹²⁵⁾ Because the husband held complete possessory rights in the estate, he alone could alienate the worth of his interest, and creditors could attach it.⁽¹²⁶⁾ Furthermore, under Raptes v. Pappas,⁽¹²⁷⁾ a creditor of a debtor husband could move for possession or sale of the husband's interest in the estate, dispossessing the couple for as long as the debtor husband lived.⁽¹²⁸⁾ The buyer held title subject to the wife's survivorship interest; however, were she to outlive her husband, the buyer's interest would be defeated.⁽¹²⁹⁾ Were she to predecease her husband, the buyer could move against the full title held by the debtor husband.⁽¹³⁰⁾ Thus, the survivorship right of husband or wife to the whole entirety estate upon the death of the other was indestructible and could not be defeated without mutual consent.⁽¹³¹⁾

In contrast to the husband's rights, a wife's sole right in the entirety estate, a contingent survivorship interest in the property,⁽¹³²⁾ while vesting at the time of conveyance,⁽¹³³⁾ had no possessory value.⁽¹³⁴⁾ As a result, she could not alienate her interest without her husband's consent in writing.⁽¹³⁵⁾ For the same reason, the wife's creditors were unable to reach the interest to satisfy any of the wife's debt.⁽¹³⁶⁾

  Coraccio v. Lowell Five Cents Savings Bank

A.  The Facts

In 1984, plaintiff Nancy Coraccio individually purchased a property at 43 Hall Road in Chelmsford, Massachusetts.⁽¹³⁷⁾ One year later, she tried to secure a mortgage on the property from the defendant, Lowell Five Cents Savings Bank (Lowell Five).⁽¹³⁸⁾ At Lowell Five's insistence and as a condition to receiving the mortgage, she conveyed the property to herself and to her husband, Stephen Coraccio, as tenants by the entirety,⁽¹³⁹⁾ and the mortgage was granted.

In 1987, Stephen Coraccio obtained a second mortgage on the same property for $10,000.00 from the same bank without Nancy Coraccio's knowledge, consent, or signature.⁽¹⁴⁰⁾ Lowell Five did not give her a mortgage disclosure statement⁽¹⁴¹⁾ to sign and failed to inform her "of the three day notice of rescission."⁽¹⁴²⁾ Defendant Attorney James A. Hall handled the closing or the recording duties or both⁽¹⁴³⁾ and the mortgage was later discharged.⁽¹⁴⁴⁾

A year and a half later, Stephen Coraccio obtained another mortgage on the same property from Lowell Five, this time in the amount of $65,000.00.⁽¹⁴⁵⁾ Once again, he did so without Nancy Coraccio's knowledge, consent, or signature.⁽¹⁴⁶⁾ Again, Lowell Five did not provide her with a mortgage disclosure statement to sign, nor did it inform her of "the three day notice of rescission."⁽¹⁴⁷⁾ As in the earlier transactions, Attorney Hall handled the closing or the recording duties or both.⁽¹⁴⁸⁾

In January, 1989, Lowell Five moved to foreclose on the property.⁽¹⁴⁹⁾ Attorney Hall represented Lowell Five in this matter.⁽¹⁵⁰⁾ No notice of foreclosure was given to Nancy Coraccio.⁽¹⁵¹⁾ She learned of the proceeding and of the existence of the unilaterally created mortgage only by reading about them in the newspaper.⁽¹⁵²⁾

B.  The Claim

Nancy Coraccio filed an action in the Superior Court against Lowell Five and its attorney,⁽¹⁵³⁾ claiming that the second mortgage was improperly accepted as security without her knowledge or consent.⁽¹⁵⁴⁾ Nancy Coraccio's complaint contained four counts of wrongdoing against Lowell Five and one against the attorney.⁽¹⁵⁵⁾ The counts against Lowell Five included claims for negligent processing and closing of a loan,⁽¹⁵⁶⁾ breach of an implied covenant of good faith and fair dealing,⁽¹⁵⁷⁾ intentional interference with a privileged relationship,⁽¹⁵⁸⁾ and violation of Massachusetts General Laws chapter 93A.⁽¹⁵⁹⁾ The attorney was charged with negligence.⁽¹⁶⁰⁾ Nancy Coraccio also sought a two-part declaration that under Massachusetts General Laws chapter 209, section 1: 1) defendant Lowell Five could not foreclose on the property and 2) the mortgage taken by the defendant bank was invalid.⁽¹⁶¹⁾ In the alternative, she argued that if the court were to find the mortgage valid, a declaration should be made as to the extent of the encumbrance upon the title.⁽¹⁶²⁾

C.  Procedure

Pursuant to Massachusetts Rules of Civil Procedure 12(b)(1) and (6),⁽¹⁶³⁾ Lowell Five moved to dismiss Nancy Coraccio's complaint as to all counts, arguing that since she was not a party to the second mortgage, she lacked standing to assert any claims arising from it.⁽¹⁶⁴⁾ While not specifying the grounds, a Superior Court judge granted Lowell Five's motion.⁽¹⁶⁵⁾ A timely appeal was filed, but it failed to include the dismissal of the count against Lowell Five's attorney.⁽¹⁶⁶⁾ The SJC took the case on its own initiative.⁽¹⁶⁷⁾ It affirmed that part of the Superior Court judgment which had dismissed Nancy Coraccio's statutory and common law claims,⁽¹⁶⁸⁾ but held that she had the right to a declaratory judgment clarifying the nature of her interest under chapter 209, section 1.⁽¹⁶⁹⁾

D.  The Opinion of the Court

The Coraccio opinion was written by Chief Justice Liacos.⁽¹⁷⁰⁾ The court first reviewed the motion to dismiss, accepting all facts and reasonable inferences in a light most favorable to Coraccio.⁽¹⁷¹⁾ Noting that the radical relief of dismissal is granted to a defendant only when the plaintiff does not allege sufficient facts entitling her to any relief,⁽¹⁷²⁾ the court first addressed the denial of Nancy Coraccio's request for a declaration under Massachusetts General Laws chapter 231A, section 1.⁽¹⁷³⁾ According to the court, by arguing that property in which she held an undivided one-half interest as a tenant by the entirety had been wrongly encumbered, Nancy Coraccio had "set forth" an "actual controversy" as required by the statute.⁽¹⁷⁴⁾ She was, therefore, entitled to a declaration of the parties' rights in relation to the second mortgage.⁽¹⁷⁵⁾ The issue before the court was whether "a [second] mortgage of property held by the entirety, granted by one spouse without the other's knowledge, can be a valid encumbrance" under Massachusetts General Laws chapter 209, section 1.⁽¹⁷⁶⁾

1.  The Meaning and Legal Effect of Massachusetts General Laws Chapter 209, § 1

a.  Nancy Coraccio's Arguments

Nancy Coraccio argued that Lowell Five had violated several of her rights as a co-owner in property held by the entirety.⁽¹⁷⁷⁾ First, she claimed that Lowell Five had "deprived her of her right to exercise equal control and management of the property," a right expressly created by the legislature.⁽¹⁷⁸⁾ Specifically, she had been denied the right to prevent the execution of the second mortgage, or to at least negotiate its terms.⁽¹⁷⁹⁾ Furthermore, she maintained that her capacity to raise capital by obtaining a second mortgage of her own had been diminished by virtue of the $65,000.00 equity reduction (the amount of Stephen Coraccio's second mortgage).⁽¹⁸⁰⁾

Second, under the meaning of chapter 209, section 1, Nancy Coraccio claimed that she had been deprived of the "`rents, products, income or profits' [available] from the property."⁽¹⁸¹⁾ Based on her premise that a mortgage is a customary way to accelerate future profits derived from appreciated property, she argued that she had lost the rights to possess and control her share of the profit,⁽¹⁸²⁾ regardless of the second mortgage's effect on her survivorship interest.⁽¹⁸³⁾

Third, she asserted that because a tenancy by the entirety is "a unity of title in [the] husband and wife[,] equal right to control" under the statute could not mean a "separate right to control."⁽¹⁸⁴⁾ In addition, she claimed, equality under the statute "[was] not [to be] achieved through indiscriminate imposition of inequalities."⁽¹⁸⁵⁾ She further argued that merely because either party was able to "race to the bank" to secure a second mortgage without the other's knowledge or consent did not mean that no harm could be done to the unaware spouse.⁽¹⁸⁶⁾ Equality, she maintained, required that each spouse was to have notice that "the race ha[d] begun."⁽¹⁸⁷⁾ This could best be achieved by requiring mutual consent to a second mortgage.⁽¹⁸⁸⁾

Finally, noting the scarcity of case law interpreting the statute,⁽¹⁸⁹⁾ Nancy Coraccio distinguished her position from Peebles v. Minnis,⁽¹⁹⁰⁾ a Massachusetts decision interpreting the effect of chapter 209, section 1 on entirety properties.⁽¹⁹¹⁾ In Peebles, the attachment of a marital residence had been sought as security in a tort action by the wife's judgment creditors.⁽¹⁹²⁾ The court held that the express language of chapter 209, section 1 exempted a principal residence of the nondebtor spouse held by the entirety from seizure or execution, but did not prevent a potential judgment creditor from attaching it.⁽¹⁹³⁾ The court reasoned that to preclude attachment would extend the protection provided by the statute.⁽¹⁹⁴⁾ Although chapter 209, section 1 was enacted to protect the nondebtor spouse's right to possess the principal residence, the court noted that this right was unchanged by the attachment of the debtor spouse's interest in the property.⁽¹⁹⁵⁾ Finally, the court found that the attachment served as a "security device" by which a creditor's interest in the property is protected,⁽¹⁹⁶⁾ and that an attachment would allow a creditor to establish the priority of its interests in the marital home as against other claims.⁽¹⁹⁷⁾

Nancy Coraccio argued that her case was distinguishable from Peebles.⁽¹⁹⁸⁾ She argued that Peebles had litigated the effect of the third sentence of Massachusetts General Laws chapter 209, section 1.⁽¹⁹⁹⁾ She claimed that her case, in contrast, contested the meaning of the second sentence of the statute.⁽²⁰⁰⁾ Also, she argued, the encumbrance in Peebles had been sought by the plaintiffs in a tort action against the wife⁽²⁰¹⁾ while no such purpose had existed in Nancy Coraccio's situation.⁽²⁰²⁾ Furthermore, she noted, the attaching party in Peebles had not created the need for attachment, as they had simply been innocent victims of an automobile accident which had been caused by defendant Peebles.⁽²⁰³⁾ Nancy Coraccio, however, maintained that Lowell Five's own voluntary act of lending Stephen Coraccio $65,000.00 had been the cause of the encumbrance.⁽²⁰⁴⁾

b.  Lowell Five's Arguments

Lowell Five argued that Nancy Coraccio had no claim under chapter 209, section 1, for two main reasons.⁽²⁰⁵⁾ First, since Lowell Five had no contractual relationship with Nancy Coraccio when it granted the second mortgage to her husband, it argued that there had existed no contractual duty to her by which she could support any of her allegations.⁽²⁰⁶⁾ According to Lowell Five, therefore, her claims were insufficient.⁽²⁰⁷⁾ Second, it was noted by Lowell Five, because her possessory and survivorship rights as a tenant by the entirety had remained unchanged by the second mortgage, Nancy Coraccio had suffered no injury and, therefore, lacked standing to sue.⁽²⁰⁸⁾ Lowell Five maintained that only those parties who had suffered, or were in danger of suffering, a legal harm had the right to bring a claim for relief.⁽²⁰⁹⁾

Arguing affirmatively on its own behalf, Lowell Five claimed that Stephen Coraccio's encumbrance had been valid under Drury v. Abdallah,⁽²¹⁰⁾ a case in which the court had found that chapter 209, section 1, permitted either spouse to convey his or her interest in the entirety estate, subject to the other spouse's survivorship right.⁽²¹¹⁾ Since Nancy Coraccio's survivorship interest had been left intact by the second mortgage, Lowell Five argued that the encumbrance was permissible, and thus valid, under Drury.⁽²¹²⁾

Lowell Five further argued that the SJC had also decided in Peebles that the purpose behind chapter 209, section 1, was to "safeguard the nondebtor spouse's right to continued possession of his principle residence."⁽²¹³⁾ Lowell Five noted that since a security device, like an attachment, does not harm that right, it is valid under the statute.⁽²¹⁴⁾ To hold otherwise, Lowell Five maintained, would deny creditors the opportunity to prioritize their interests.⁽²¹⁵⁾

Finally, Lowell Five cited the United States District Court case, Shammas v. Merchants National Bank,⁽²¹⁶⁾ a case in which the court had noted that a bank could not legally require a spousal guarantee on a loan sought by a creditworthy individual.⁽²¹⁷⁾ While a bank has the discretionary right to seek a spouse's signature on a unilateral loan when creditworthiness is at issue, the court in Shammas found that a spousal guarantee could not be mandated on the loan merely because it was secured by property held by the entirety.⁽²¹⁸⁾

c.  The Court's Holding

The Coraccio court noted that chapter 209, section 1 applied only to a tenancy by the entirety created after February 11, 1980.⁽²¹⁹⁾ It reviewed the common law incidents of the tenancy at the time the statute had been amended,⁽²²⁰⁾ noting the legal effect of its express language on the estate.⁽²²¹⁾ The court stated that under General Laws chapter 209, section 1 and the new tenancy, a woman had the same rights as her husband in the estate.⁽²²²⁾ "Whatever the husband could do at common law, [his] . . . wife now may do as well."⁽²²³⁾ While either spouse could encumber his or her interest in the estate, the statute "clearly preclude[d] the seizure of the principal residence of the spouses," except where there was a joint debt or the debt was for necessaries.⁽²²⁴⁾ The old rule in Raptes, therefore, allowing a creditor to move for possession and claim rights to the debtor husband's present interest, was modified in Coraccio.⁽²²⁵⁾

The Coraccio court noted, however, that the characteristics of the estate remained unchanged.⁽²²⁶⁾ That is, the court stated that while each spouse now had equal access to the "rents, products, income or profits" derived from an entirety property and to equal "control, management and possession" of the estate, he or she did not get an "equal one-half interest in the property."⁽²²⁷⁾ Rather, the nature of the interest remained a unitary one, with each spouse guaranteed "an equal right to the whole."⁽²²⁸⁾

Moreover, the court found that each spouse still had an indestructible survivorship right in the "inseverable" estate which could not be partitioned voluntarily.⁽²²⁹⁾ Furthermore, the court said, the principal residence was immune from seizure by the creditors of either spouse without both spouses' signatures.⁽²³⁰⁾ Thus, neither spouse could independently convey or encumber the whole property because of the other's survivorship interest.⁽²³¹⁾ Nonetheless, chapter 209, section 1 still permitted either spouse to validly convey or encumber his or her interest in the property.⁽²³²⁾ While the court acknowledged Coraccio's argument that some states required mutual spousal consent for the granting of a valid mortgage, it noted that these states generally had statutes expressly mandating their joinder.⁽²³³⁾

The court turned to V.R.W., Inc. v. Klein,⁽²³⁴⁾ a case decided by the Court of Appeals of New York, for the appropriate rule.⁽²³⁵⁾ Klein had considered whether a divorce between marital partners affected a mortgagee's rights in tenancy by the entirety property subject to foreclosure.⁽²³⁶⁾ The husband in Klein had taken a second mortgage on the entirety property during the marriage without his wife's signature.⁽²³⁷⁾ When he defaulted, the mortgagee moved to foreclose.⁽²³⁸⁾ In acknowledging that nothing in New York law prevented the transaction, the Klein court found that the second mortgage was permissible so long as it did not bind the entire property or disable his nonconsenting wife's survivorship interest.⁽²³⁹⁾

The SJC adopted the rule stated in Klein and held:

"[T]here is nothing in [our State's] law that prevents one of the co-owners [of property held by the entirety] from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other."⁽²⁴⁰⁾

The court declared, therefore, that "G.L. c. 209, § 1, does not require the consent of both spouses before a mortgage may encumber the property, and that the bank, if it foreclosed, could acquire Stephen Coraccio's interest in the property, namely a right wholly defeasible should the plaintiff, the nondebtor spouse, survive him."⁽²⁴¹⁾

2.  The Dismissal of Coraccio's Common Law and Statutory Claims

Because the court found that Stephen Coraccio could legally grant a unilateral mortgage, it determined that Lowell Five could legally take it, barring a special duty owed to his wife.⁽²⁴²⁾ Nancy Coraccio argued that her relationship with Lowell Five, formed by the granting of the first mortgage, had created a common law duty to her which precluded the second mortgage.⁽²⁴³⁾ By granting the second mortgage on a unitary title without her knowledge or consent, Lowell Five, she claimed, had abridged her property rights and interests.⁽²⁴⁴⁾ Additionally, according to Nancy Coraccio, Lowell Five had violated her express rights under the statute, thereby precluding dismissal of her claim.⁽²⁴⁵⁾

Nancy Coraccio further argued that by way of the first mortgage contract to which she had been a party, Lowell Five had breached its implied covenant of good faith and fair dealing.⁽²⁴⁶⁾ She asserted that the covenant, implicit in all contracts, precluded Lowell Five from doing "`anything which [would] have the effect of destroying or injuring [her] right . . . to receive the fruits of the contract.'"⁽²⁴⁷⁾ Under the mortgage contract, Nancy Coraccio had agreed to a specific mortgage amount in return for conveying the property--at Lowell Five's insistence--to herself and to her husband as tenants by the entirety.⁽²⁴⁸⁾ She further noted that she had agreed to repay the note and to maintain the value of the security.⁽²⁴⁹⁾ Implicit in this contract, Nancy Coraccio maintained, were two additional covenants.⁽²⁵⁰⁾ The first required Lowell Five not to encumber the property further without her consent; the second required that both Lowell Five and the mortgagors would inform each other about any action affecting the property and each spouse's interest in it.⁽²⁵¹⁾

Lowell Five countered that, because its contractual relationship in taking the second mortgage had been with Stephen Coraccio alone, it had no duty to Nancy Coraccio under common or statutory law, and, therefore, her allegations were unsupported.⁽²⁵²⁾ Lowell Five further argued that Nancy Coraccio had provided no case law in support of her negligence claim under the statute⁽²⁵³⁾ and also lacked case support for the negligent processing and closing of a mortgage claim.⁽²⁵⁴⁾

Nancy Coraccio argued that under Massachusetts General Laws chapter 93A, section 9(1), "`any person [injured by another person's unfair or deceptive act or practice]'" has legal recourse.⁽²⁵⁵⁾ Conceding that no appellate court had ruled on the statute's application to facts similar to those at bar, she argued that the holding in Anthony's Pier Four, Inc. v. HBC Associates⁽²⁵⁶⁾ should apply.⁽²⁵⁷⁾ This holding stated that unfair and deceptive actions which breached the implied covenant of good faith and fair dealing were automatic violations of chapter 93A.⁽²⁵⁸⁾

Lowell Five argued that "[i]mplied covenants of good faith and fair dealing exist [only]` . . . as [sic] between the parties . . . ' to a contract."⁽²⁵⁹⁾ As to the second mortgage, the covenant existed only between Lowell Five and Stephen Coraccio, creating no duty to Nancy Coraccio.⁽²⁶⁰⁾ Lowell Five also maintained that its conduct had been reasonable and well within the bounds of chapter 93A.⁽²⁶¹⁾ It supported this position by citing a recent regulation which precluded lenders like Lowell Five from requiring a wife's signature on her husband's mortgage.⁽²⁶²⁾ Under this regulation, a bank has the discretion to decide if a spouse's signature on a mortgage of an entirety property is necessary.⁽²⁶³⁾

a.  The Court's Response

The court summarily decided that Nancy Coraccio had failed to show that the first mortgage created a duty in Lowell Five to reject the second mortgage, either under common law or by statute.⁽²⁶⁴⁾ The claim against Lowell Five, therefore, that it had been negligent in accepting the second mortgage, had been properly dismissed.⁽²⁶⁵⁾ As to the common law breach of the implied covenant of good faith and fair dealing, the court dismissed Nancy Coraccio's arguments as without merit, noting that she had offered no case law to support her allegations.⁽²⁶⁶⁾ Finally, in view of the legality of Lowell Five's actions, the court found that Nancy Coraccio had failed to allege a set of facts which would constitute a violation of Massachusetts General Laws chapter 93A.⁽²⁶⁷⁾

  Analysis of the Case

A.  Lien Times: The Nature and Limits of Massachusetts Tenancy by the Entirety After Coraccio

After Coraccio was decided, one commentator noted that, while the legal effect of chapter 209, section 1 on entirety properties is "open to interpretation" in certain instances,⁽²⁶⁸⁾ "at least a few long-standing questions about the nature and limits of tenancy by the entirety in Massachusetts [have been resolved]."⁽²⁶⁹⁾ One significant resolution, he said, is the confirmation of a spouse's right to independently encumber his or her interest in the property, thus allowing a valid second mortgage by one tenant alone.⁽²⁷⁰⁾ Another commentator noted that, as a result, each spouse now has an added source of "security and lending power" through the right of individual alienation.⁽²⁷¹⁾ The statute simultaneously offers protection, however, to the "innocent" nondebtor spouse, whose principal residence is insulated from the claims of a debtor spouse's creditors,⁽²⁷²⁾ so long as the marriage continues⁽²⁷³⁾ and the property remains the principal residence of the nondebtor spouse.⁽²⁷⁴⁾

Coraccio also confirms the indestructible nature of the survivorship right inherent in Massachusetts entirety property.⁽²⁷⁵⁾ When one tenant by the entirety dies, the other is automatically vested with complete ownership of the property.⁽²⁷⁶⁾ Moreover, should a nondebtor spouse predecease a debtor spouse, only then can an attaching creditor move against the debtor's interest "which will have blossomed into a complete title."⁽²⁷⁷⁾ On the other hand, should a nondebtor spouse survive a debtor spouse, his or her superior survivorship interest will defeat the attaching creditor's claim.⁽²⁷⁸⁾

Since Coraccio allows a tenant by the entirety the right to unilaterally mortgage his or her interest in the estate,⁽²⁷⁹⁾ it would follow that, after foreclosure, a unilateral mortgage gives the mortgagee a lien only on the interest of the granting spouse.⁽²⁸⁰⁾ The Coraccio holding clearly precludes the mortgagee, however, from acquiring possession or title in the property during the life of the tenancy.⁽²⁸¹⁾ Yet, the court did not describe the nature of the interest a purchaser upon foreclosure would obtain in the property, or how and under what conditions a purchaser could collect on the interest.⁽²⁸²⁾ Thus, the answers to these important questions are open to interpretation.⁽²⁸³⁾ For example, if after foreclosure, title to the principle residence does not pass (because the nondebtor spouse is still alive and living in the residence), a purchaser would only obtain that which was mortgaged--the debtor spouse's interest.⁽²⁸⁴⁾ Yet, if the debtor spouse's interest is a title interest, it is not a complete title, because complete title can only be conveyed by both spouses.⁽²⁸⁵⁾ Perhaps the court meant that the purchaser's interest upon foreclosure is more like an "immature right" or a "mere expectancy of acquisition of title."⁽²⁸⁶⁾

One post-Coraccio decision, In re Hull,⁽²⁸⁷⁾ partially clarifies the ambiguity of the interest issue by offering some discussion of the interest's mutable nature in light of changing circumstances affecting the parties.⁽²⁸⁸⁾ In In re Hull, the court allowed a wife's divorce settlement to include an entirety property which had been encumbered following default of a loan her husband had unilaterally secured on the property during the marriage without her knowledge or consent.⁽²⁸⁹⁾ Pursuant to a nisi divorce judgment,⁽²⁹⁰⁾ the court ordered the husband to convey his interest to his wife, subject to the bank's encumbrance which had attached to it.⁽²⁹¹⁾ The wife appealed the judgment, claiming that the bank had no interest in the property.⁽²⁹²⁾ She argued that when her husband had granted the unilateral mortgage, he merely had an "expectancy interest" in the estate, subject to her right of survivorship to the whole.⁽²⁹³⁾ This "expectancy," she claimed, was the only interest transferred to the bank at the time the mortgage had been executed.⁽²⁹⁴⁾ She further claimed that this interest had "never ripened" into anything more because the "expectancy" was destroyed by the nisi judgment, thereby granting full title of the property to her.⁽²⁹⁵⁾

Citing Coraccio, the In re Hull court upheld⁽²⁹⁶⁾ the validity of the second mortgage under Massachusetts General Laws chapter 209, section 1.⁽²⁹⁷⁾ The court drew heavily from the rationale used in Klein, finding that the valid mortgage had granted the bank a contingent interest in the husband's property rights at the time the mortgage had been given.⁽²⁹⁸⁾ The rights of the bank in these interests had not been fixed at that point, however.⁽²⁹⁹⁾ Rather, just as the spousal rights and interests in a tenancy change if one dies or the couple divorces,⁽³⁰⁰⁾ so too do the rights and interests of the mortgagee "transmute" corresponding with these events.⁽³⁰¹⁾ In Coraccio, when full title to the property had been transferred to the wife under the nisi divorce settlement, the transfer did not defeat the mortgagee's rights in the property.⁽³⁰²⁾ Instead, although the wife held full fee, she did so with the mortgagee's rights attached to the title interest she had received from her husband.⁽³⁰³⁾

While the Coraccio court expressed no view on spousal or creditor rights in an entirety property that was not the principal residence, some speculation also exists that a mortgagee can foreclose on all interests in such property.⁽³⁰⁴⁾ Assuming that a foreclosure purchaser would acquire the mortgagee's rights, he or she could potentially possess the property, share in its rents or profits, and possibly acquire title to the mortgagor's interest if the mortgaged property is something other than the nondebtor spouse's principal residence.⁽³⁰⁵⁾

B.  The Nature and Meaning of Equality Under Massachusetts General Laws Chapter 209, § 1

After Coraccio, one writer declared that "[a]lthough far from perfect, the new tenancy by the entirety law has taken us further into the 20th century and moved us closer to adopting the proposition that all people are created equal."⁽³⁰⁶⁾ One can hardly argue with this assessment. That the old form of the tenancy had survived Fifth and Fourteenth Amendment attacks,⁽³⁰⁷⁾ and repeated legislative attempts to abolish it,⁽³⁰⁸⁾ signaled the need to reform chapter 209, section 1.⁽³⁰⁹⁾ Whether the legislature designed the best possible statute given the apparent policy goal--the desire to create true equality between husband and wife--is arguable in light of other available options.⁽³¹⁰⁾

Generally, there are four ways to cure discriminatory property statutes in order to create parity of interest under the law.⁽³¹¹⁾ Of these four ways, Massachusetts law-makers could have chosen a dual-management approach for the use and control of tenancy by the entirety properties.⁽³¹²⁾ A dual-management approach would have required that both spouses consent to transactions affecting spousal interests under the estate, including a transaction like a second mortgage.⁽³¹³⁾

Such an approach was taken by the North Carolina legislature when it amended its husband-oriented common law tenancy by the entirety in 1982.⁽³¹⁴⁾ Citing, as did the Massachusetts legislature,⁽³¹⁵⁾ the need to equalize the rights of husbands and wives in entireties properties,⁽³¹⁶⁾ the North Carolina law-makers rewrote their statute to read in relevant part: "A husband and wife shall have an equal right to the control, use, possession, rents, income, and profits of real property held by them in tenancy by the entirety. Neither spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner encumber any property so held without the written joinder of the other spouse." ⁽³¹⁷⁾In contrast to the language of chapter 209, section 1,⁽³¹⁸⁾ the express provisions of the North Carolina statute offer both spouses more protection against the improvident financial transactions of a nondisclosing partner.⁽³¹⁹⁾

In keeping with the North Carolina position, Nancy Coraccio essentially made a dual-management argument in asserting the invalidity of the second mortgage.⁽³²⁰⁾ She argued that under the "equal right to manage, possess, and control" clause of chapter 209, section 1, the "equal right to control does not mean a separate right to control,"⁽³²¹⁾ since the unitary nature of spousal rights under the estate did not provide a separate interest that could be "sold, disposed of, or encumbered [by one spouse] without the assent of the other."⁽³²²⁾ Nancy Coraccio claimed that, as a result of the unilateral encumbrance, her property interest had been abridged.⁽³²³⁾ Citing several jurisdictions where the husband and wife were jointly entitled,⁽³²⁴⁾ she further argued that since it had been obtained without her consent, the second mortgage was invalid.⁽³²⁵⁾ Thus, Nancy Coraccio urged the court to adopt the position that the consent of both spouses must be required on a transaction like the second mortgage which had been granted by her husband.⁽³²⁶⁾

In response to Nancy Coraccio's argument, the SJC bowed to the express language of chapter 209, section 1 in interpreting the nature of spousal rights under the statute.⁽³²⁷⁾ The court noted that the language of chapter 209, section 1, unlike the statutes of other states cited in Nancy Coraccio's brief, contained no provision requiring consent by the nondebtor spouse to the creation of a mortgage.⁽³²⁸⁾ By summarily deciding this issue, however, the court missed the opportunity to evaluate whether the rights and interests of both spouses in the principal residence had been adequately protected in fact.⁽³²⁹⁾

One of the greatest concerns flowing from the equality of spousal rights in an estate held by the entirety, particularly as it relates to the principal residence,⁽³³⁰⁾ is the degree to which one spouse may alienate or encumber the property in light of the nondebtor spouse's interests in it.⁽³³¹⁾ A majority of jurisdictions have held that, as a general rule, neither tenant by the entirety may alienate⁽³³²⁾ the property individually,⁽³³³⁾ and that creditors of one spouse may not reach the property.⁽³³⁴⁾ It appears that the granting of a unilateral mortgage, as in Coraccio, is similarly disfavored,⁽³³⁵⁾ but the remedies provided by the various jurisdictions resist classification, perhaps because many factors influence a court's decision.⁽³³⁶⁾ One obvious factor a court must consider is the presence of state entirety statutes requiring joinder of the spouses in a transaction.⁽³³⁷⁾ For example, in Central National Bank of Cleveland v. Fitzwilliam,⁽³³⁸⁾ the Supreme Court of Ohio precluded foreclosure on a debtor husband's delinquent debt.⁽³³⁹⁾ It reasoned that Ohio Revised Code, section 5302.17 established an estate by the entirety according to its common law form, whereby neither spouse could "convey, bind, encumber, sever or otherwise alienate the property" without the other's consent.⁽³⁴⁰⁾

Sometimes additional state statutes influence a court's judgment as well.⁽³⁴¹⁾ In Bellow Falls Trust Co. v. Gibbs,⁽³⁴²⁾ the Supreme Court of Vermont found that under Vermont Statutes Annotated, title 27, section 141(b) and title 1, section 175,⁽³⁴³⁾ neither party in a tenancy by the entirety could "dispose[] of or encumber[]" the property.⁽³⁴⁴⁾ As a result, the husband's unilateral mortgage was "ineffective to bind the property to the subsequent debt."⁽³⁴⁵⁾

Where the nature of the common law property interest held by tenants by the entirety is a unity of title, it may also preclude an individual encumbrance by one spouse alone.⁽³⁴⁶⁾ Such was the case in Colorado National Bank v. Miles,⁽³⁴⁷⁾ in which the Supreme Court of Wyoming invalidated two unilateral mortgages, citing the "indivisibility" of spousal interests in the property.⁽³⁴⁸⁾ The court found that this indivisibility precluded the mortgages because it "`must logically extend to every part of the estate including the rents, income and profits thereof.'"⁽³⁴⁹⁾

Even when tenants by the entirety hold a unity of title, however, a different judgment may be rendered.⁽³⁵⁰⁾ For example, in Mitchell v. Wilmington Trust Co.,⁽³⁵¹⁾ the Delaware Court of Chancery validated a unilateral mortgage made by the husband, but upon default of the payments, precluded the ensuing lien from impacting the spouses' present interests in the property.⁽³⁵²⁾ The lien was "inchoate";⁽³⁵³⁾ it did not vest in any way while the tenancy continued, and was, as such, not actionable by creditors during the spouses' joint life.⁽³⁵⁴⁾ Moreover, the lien could be "diminished in priority" by valid mortgages later taken by both spouses.⁽³⁵⁵⁾ Absent fraud, the lien could even be defeated by a subsequent joint conveyance made prior to either spouse's death or the couple's divorce.⁽³⁵⁶⁾

At times, the facts and circumstances surrounding a mortgage transaction raise several sub-issues which a court must address before rendering judgment.⁽³⁵⁷⁾ In Beneficial Mortgage Co. of Indiana v. Powers,⁽³⁵⁸⁾ this proposition was illustrated. In Beneficial, a husband, on four separate occasions, made unilateral encumbrances on a tenancy by the entirety property, forging his wife's name on the mortgage documents.⁽³⁵⁹⁾ When he defaulted, the bank moved to foreclose but was denied this remedy by the lower court.⁽³⁶⁰⁾ In affirming the denial of the bank's foreclosure action, the Court of Appeals of Indiana considered several relevant issues.⁽³⁶¹⁾ These issues included: whether his wife knew about or otherwise ratified her husband's unilateral mortgages in any way;⁽³⁶²⁾ whether an agency relationship existed between the husband and wife, thereby allowing the husband to represent her interests in the transactions;⁽³⁶³⁾ whether his wife had benefitted from the mortgages;⁽³⁶⁴⁾ whether the mortgagee's branch manager "knew or should have known" from the husband's behavior that the wife did not sign the required documents;⁽³⁶⁵⁾ and whether the bank manager tried to confirm the wife's participation in the mortgage in view of his opportunity to do so.⁽³⁶⁶⁾

Finding sufficient evidence to show that the debtor's wife neither knew about, nor ratified the second mortgage, nor authorized an agency,⁽³⁶⁷⁾ the Beneficial court also found that no benefit had accrued to her from the transactions.⁽³⁶⁸⁾ Furthermore, in light of the husband's behavior and the bank's opportunity to investigate, the court determined that Beneficial had been the proximate cause of its own losses.⁽³⁶⁹⁾ Accordingly, the court held that the bank had no recourse in a court of equity.⁽³⁷⁰⁾ That is, it did not act in good faith in a commercial transaction; it came before the law with unclean hands; and it assumed the risk of loss under the circumstances.⁽³⁷¹⁾

Applying the facts of Coraccio to the above analyses, it is arguable that Nancy Coraccio would have obtained a more satisfying judgment in other jurisdictions than she did in Massachusetts.⁽³⁷²⁾ Regardless of chapter 209, section 1's silence as to joinder, she would likely prevail under the Colorado National Bank unity of title theory, since she held a similar interest in her tenancy.⁽³⁷³⁾ Even if the unilateral mortgage were found to be valid, however, the property interests that she claimed had been damaged would have been more protected under Mitchell.⁽³⁷⁴⁾ Because nothing in the facts of the case suggests that Nancy Coraccio knew about or ratified the contested mortgage, benefitted from it in any way, or authorized her husband to represent her interests in it, it is likely that the lien would have been invalidated under Beneficial.⁽³⁷⁵⁾

When the SJC followed the rule set out in Klein,⁽³⁷⁶⁾ it sided with the minority of states which have historically granted tenants by the entirety greater use of their interests in the estate.⁽³⁷⁷⁾ In turn, creditors in these states have enjoyed a corresponding increase in their right to execute against an individual spouse's interests.⁽³⁷⁸⁾ Although the Coraccio court expressly adopted the Klein rule, the court was silent as to why it believed that Klein represented the "sounder view."⁽³⁷⁹⁾ Some insight might be derived from Klein itself as to the nature of spousal equality in the New York tenancy by the entirety.⁽³⁸⁰⁾ The Court of Appeals of New York noted that since the 1849 enactment of its Married Women's Act,⁽³⁸¹⁾ both tenants by the entirety were equally entitled to possess the property and to demand that profits be shared.⁽³⁸²⁾ These features of the New York tenancy were similar to tenancies in common.⁽³⁸³⁾ Thus, while under New York law, an individual tenant by the entirety could not convey the entire property, he or she could freely mortgage, sell, or encumber his or her interest in it--much like a tenant in common--subject only to the other spouse's continuing rights.⁽³⁸⁴⁾

As a separate and final matter, the full measure of spousal equality, as determined by Coraccio, under chapter 209, section 1, is undermined by the fact that in many marriages, there is still significant disparity in earning power between husbands and wives.⁽³⁸⁵⁾ Statistics regarding average weekly salaries for husbands and wives from 1983-1993 show that while women are earning more than ever, the average wife's salary is only 70.2% of the average husband's salary.⁽³⁸⁶⁾ Statistics also indicate that earning power between men and women varies widely according to race,⁽³⁸⁷⁾ age,⁽³⁸⁸⁾ education,⁽³⁸⁹⁾ and occupation.⁽³⁹⁰⁾ To hold, as did the Coraccio court, that women can now do what men could always do in regard to encumbering the estate, is not necessarily correct.⁽³⁹¹⁾ Because the right to encumber an entirety property through an individually secured mortgage requires financial resources, a bank will not take a mortgage unless the mortgagor is qualified.⁽³⁹²⁾ Thus, a husband or wife with limited income will be disadvantaged in the execution of this right.⁽³⁹³⁾ To the degree that one partner has significantly greater access to financial resources, he or she will enjoy greater benefits under the statute.⁽³⁹⁴⁾

C.  Public Policy Considerations: The Tension Between Family Property Protection and Creditor Rights

Under Massachusetts General Laws chapter 209, section 1, the principal residence is exempt from execution by creditors.⁽³⁹⁵⁾ In what can be characterized as the legislature's "principal residence exemption,"⁽³⁹⁶⁾ the statute allows attachment but not seizure or possession of the debtor spouse's interest in the property, so long as it remains the principal residence of the nondebtor spouse and the marriage continues.⁽³⁹⁷⁾ Yet, the statute appears to protect only the principal residence, which is usually the family home.⁽³⁹⁸⁾

One policy argument for protecting the family home was stated in Sawada v. Endo,⁽³⁹⁹⁾ a case in which the Supreme Court of Hawaii did not allow judgment creditors of the husband to execute against his interest in a tenancy by the entirety.⁽⁴⁰⁰⁾ The Sawada court was unpersuaded by the argument that creditors would be unfairly treated if denied a remedy.⁽⁴⁰¹⁾ From a strict public policy view, the court noted that "[t]he interest in family solidarity retains some influence upon the institution [of tenancy by the entirety]."⁽⁴⁰²⁾ Not only does it protect a spouse from the inconvenience of administrating a decedent's estate, but it protects the estate itself.⁽⁴⁰³⁾ When a family can afford to buy a home, it is often its most important asset, used for the benefit and support of all family members.⁽⁴⁰⁴⁾ The security in the marital property can be used, for example, to procure loans for educational expenses or to meet unforeseen family emergencies.⁽⁴⁰⁵⁾

The Sawada court found that creditors were not entitled to special treatment for two reasons.⁽⁴⁰⁶⁾ First, if the debt occurred prior to the formation of the tenancy, "`the property was not a basis of credit.'"<sup>(407)</sup> Second, if the debt arose after the estate had already come into existence, the creditor presumably had notice of its status, "`which limited his [or her] right to reach the property.'"⁽⁴⁰⁸⁾ Furthermore, the court noted that a creditor, before granting credit, could always insist that the property be subjected to collection.⁽⁴⁰⁹⁾

Regardless of the Sawada position, advocates of creditor rights under the old entirety estate should be heartened by at least some of the new rules announced in Coraccio.⁽⁴¹⁰⁾ Prior to the enactment of Massachusetts General Laws chapter 209, section 1, a couple could hold all of its property as tenants by the entirety, unrestricted as to type or amount.⁽⁴¹¹⁾ Therefore, they had "unlimited protection" from the reach of creditors.⁽⁴¹²⁾ Arguing that the old rules favored the "preservation of property interests over commercial use," one commentator urged a financial limit on this "debtor's exemption," determined by the family's requirements "for a home and support."⁽⁴¹³⁾ The new statute comes very close to doing just that by protecting only a family's primary residence, the presumption being that other kinds of property held in this manner are now reachable.⁽⁴¹⁴⁾

It also appears that the policy of "preservation of property interests over commercial use" has been weakened by Coraccio.⁽⁴¹⁵⁾ The decision gives either tenant a right to unilaterally mortgage his or her interest in an entirety property, granting the mortgagee a valid lien should default occur.⁽⁴¹⁶⁾ Under Coraccio, the mortgagee could secure a lien on the debtor's interest, although subject to the survivorship right.⁽⁴¹⁷⁾ Again, since the statute appears to apply only to a principal residence, other kinds of property may presumably be subject to execution.⁽⁴¹⁸⁾

Critics of the entirety estate advocate the use of other laws to "protect a certain economic base for family life."⁽⁴¹⁹⁾ These laws provide homestead exemptions, a right of a surviving spouse to take a forced share of the decedent's estate, family allowances, and property exempt from execution.⁽⁴²⁰⁾ The homestead exemption⁽⁴²¹⁾ is most often cited as the more appropriate way to safeguard the family home.⁽⁴²²⁾ Critics concede, however, that the amount protected from execution has, in the past, been unrealistically small.⁽⁴²³⁾

The Massachusetts Homestead Act⁽⁴²⁴⁾ was passed in 1851 for the sole purpose of protecting the family home.⁽⁴²⁵⁾ Under the homestead exemption,⁽⁴²⁶⁾ homeowners, including tenants by the entirety, may now exempt up to $100,000.00 from attachment and levy by creditors.⁽⁴²⁷⁾ In order to benefit from the protection provided by this law, however, a resident must take affirmative steps to declare his or her intention.⁽⁴²⁸⁾ Under chapter 209, section 1, the principal residence of the nondebtor spouse is automatically protected.⁽⁴²⁹⁾

Although declaring a homestead is not costly or complicated, few Massachusetts residents do so.⁽⁴³⁰⁾ The present exemption, however, is significant, despite today's real estate market.⁽⁴³¹⁾ Because protection of entirety properties has been narrowed under chapter 209, section 1, the homestead exemption should be considered an important means of protection for those couples that obtained property in the entirety after February, 1980.⁽⁴³²⁾ Whether it should replace the tenancy by the entirety altogether, however, is beyond the reach of this discussion.

  Conclusion

If Coraccio truly signals "the modern direction of the tenancy by the entirety,"⁽⁴³³⁾ the question remains: Do we want to go in this direction? On the one hand, Coraccio's principal residence exemption represents a balanced approach to mediating spousal and creditor rights in entirety properties. By this exemption, it appears that only the principal residence is protected from a creditor's reach. Thus, it seems that creditors may now reach other types of properties held by the entirety. In this regard, the decision considered the competing interests of the parties and provided an equitable remedy to an old problem.

On the other hand, Coraccio did not provide a similar equitable result for both spouses. When the court found that notice and consent to a unilateral mortgage was not required under chapter 209, section 1, it adopted an `equal is equal' formula to spousal rights as represented by the New York rule.⁽⁴³⁴⁾ As in the minority jurisdictions, that which a Massachusetts husband can do with his interests in a tenancy by the entirety, his wife can now do as well.⁽⁴³⁵⁾ On its face, this seems like a sound proposition. The Coraccio decision, however, is problematic in several respects.

One such problem concerns the SJC's failure to consider whether mutual spousal notice and consent were required by the underlying common law unitary (not separate) nature of a Massachusetts entirety interest which both spouses shared, and that the court itself upheld in the declaratory judgment.⁽⁴³⁶⁾ Instead, the SJC noted the absence of an express statutory joinder requirement despite the fact that nothing in the statute's express language conflicted with the unitary interest theory.⁽⁴³⁷⁾ Although it appears that the SJC was strictly construing the statute, the court offered little rationale for its position, perhaps having been constrained by the near absence of statutory construction arguments offered in the record⁽⁴³⁸⁾ and on appeal.⁽⁴³⁹⁾

Another problem with the decision concerns the issue of injury and standing, and whether Nancy Coraccio truly suffered harm when her husband unilaterally encumbered $65,000.00 of their home's equity. She could still have lived in the house, according to Lowell Five, and her survivorship right would have remained intact.⁽⁴⁴⁰⁾ But her injury should not have been measured against those two interests alone. A look at chapter 209, section 1's express language--"[a] husband and wife shall be equally entitled to the rents, products, and income, or profits and to the control, management and possession of the property"⁽⁴⁴¹⁾--suggests that her right to manage and control was harmed.

Specifically, following her husband's unilateral mortgage, Nancy Coraccio would be impaired in her right to fully use the true value of her equity in the home as security for future loans. Because her property was encumbered by both joint and unilateral mortgages, a lender would then be reluctant to loan her money on her interest at or even near a standard loan-to-equity⁽⁴⁴²⁾ ratio. A lender would realize that the market value of the property, and thus its value at auction, could diminish in the future, creating the possibility that funds would not be available to repay this additional note.⁽⁴⁴³⁾ Because a lender might also presume that a subsequent mortgage given by Nancy Coraccio would be tertiary in position, it would be willing to loan her less than it would have had her husband not posted his interest as security first.

In addition, because of her husband's unilateral act, Nancy Coraccio's opportunity to create a joint second mortgage with her husband was lost. Even if she were to use her own interest as security for her own unilateral mortgage, she would find the value of her interest additionally reduced because of the possibility of defeasance. She could predecease her husband, an event that would leave the lender completely unsecured.⁽⁴⁴⁴⁾ Due to this risk, the amount of money she could raise with her own interest would be greatly reduced. Thus, a unilateral mortgage, like Stephen Coraccio's, would significantly impair Nancy Coraccio's "full and free exercise of ownership,"⁽⁴⁴⁵⁾ and diminish the commercial value of her equitable interest in the marketplace.

Of course, the requirement of joinder to make a valid mortgage implies a spousal veto power that, in itself, restrains one spouse's free exercise of his or her ownership rights. But when this restraint is applied to only one asset, the family home, principles of public policy and equity apply.

If the tenancy by the entirety has any continuing relevance today, it is in the enduring policy position that the family home should be protected. The Sawada court was correct when it noted that for the majority of couples, the home is their major asset and can be used for a variety of purposes which benefit the entire family.⁽⁴⁴⁶⁾ It is a source of economic and emotional security, particularly when minor children are involved. Moreover, marriage today is a partnership requiring the collaborative efforts of both spouses, not only to buy the home, but to maintain it as the heart and center of the family. When the maximum value and use of the equity in a tenancy by the entirety is preserved (by precluding unilateral mortgaging), greater borrowing power is available to both spouses jointly to finance family expenditures. The Coraccio decision disregarded this public policy concern.

To fully safeguard the family home, Massachusetts lawmakers should incorporate into chapter 209, section 1, the salient language of General Statutes of North Carolina, section 39-13.6. As noted previously, the relevant language reads: "Neither spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner encumber the property so held without written joinder of the other spouse."⁽⁴⁴⁷⁾ The remedy that would flow from a violation of an express joinder provision should be that of Mitchell,⁽⁴⁴⁸⁾ Colorado National Bank,⁽⁴⁴⁹⁾ or Beneficial.⁽⁴⁵⁰⁾ In those decisions, the courts ruled in favor of the aggrieved spouse who had no agency relationship with the other, did not know about or ratify the contested mortgage, did not benefit from it in any way, or whose mortgagee did not act with due diligence when circumstances so warranted.

As a final point, lawyers must counsel their clients about the legal effect of chapter 209, section 1 with regard to their rights and interests as tenants by the entirety. This disclosure would put spouses on notice that what happened in Coraccio could happen to them.⁽⁴⁵¹⁾ Married couples could then make more informed, fact-based decisions--much like informed legal consent--about how to hold marital property according to their own values, needs, and ideas of equality. For these couples, it would come as no surprise, as it would for uninformed tenants by the entirety, that a lien like Stephen Coraccio's could come so close to home.

Janet D. Ritsko^*

1. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 147, 612 N.E.2d 650, 652 (1993). Nancy Coraccio was prepared to prove that she had received no notice of the foreclosure action and was unaware of any foreclosure notices sent to her husband. Appellant's Brief at 3 n.2, Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 612 N.E.2d 650 (1993) (No. 92-P-0175).

2. Coraccio, 415 Mass. at 147, 612 N.E.2d at 652.

3. Id. Nancy Coraccio sought a declaration of the legal effect of 1979 Mass. Acts ch. 727 (codified at Mass. Gen. L. ch. 209, § 1 (1987)) on the validity of the encumbrance and on the corresponding rights of the parties. Id. at 146, 612 N.E.2d at 652. Prior to the amendment of the statute, the common law had allowed foreclosure by a creditor of the debtor husband. Raptes v. Pappas, 259 Mass. 37, 38-39, 155 N.E. 787, 787 (1927). The creditor could dispossess the spouses and take possession of the estate, subject, however, to the wife's survivorship interest in it. Id. at 39, 155 N.E. at 787-88.

The bank in Coraccio gave notice of the foreclosure proceeding by newspaper publication. Appellant's Brief at 1, Coraccio (No. 92-P-0175). In August 1989, the bank sought and won an ex parte attachment on the property. Id. at 4 n.3.

4. 4A Richard R. Powell & Patrick J. Rohan, Powell on Real Property ¶ 599 (1993).

5. 4 Thompson on Real Property, Thomas Edition § 33.06(b) (David A. Thomas ed., 1994).

6. Jon W. Bruce & James W. Ely, Jr., Cases and Materials on Modern Property Law 289 (3d ed. 1994); see also 4A Powell & Rohan, supra note 4, ¶ 621.

7. Charles Donahue, Jr. et al., Property 531 (3d ed. 1993); see also 4A Powell & Rohan, supra note 4, ¶ 622[1].

8. See 4A Powell & Rohan, supra note 4, ¶ 622[2].

9. See Donahue et al., supra note 7, at 439. "Alienation" is the conveyance or transfer of title to real property "from one person to another." Black's Law Dictionary 72 (6th ed. 1990). In real property law, "title" is the formal right to own property whereby the owner has just possession of it. Id. at 1485. The "right of possession" in property includes the right to exert control over it so as to exclude others from any present occupation. Id. at 1325.

10. Sawada v. Endo, 561 P.2d 1291, 1295 (Haw. 1977).

11. John D. Johnston, Jr., Sex & Property: The Common Law Tradition, the Law School Curriculum, and Developments Toward Equality, 47 N.Y.U. L. Rev. 1033, 1061 (1972); see also 4A Powell & Rohan, supra note 4, ¶ 622[2].

12. Oval A. Phipps, Tenancy by the Entireties, 25 Temp. L.Q. 24, 29 (1951). These states included Alabama, Colorado, Illinois, Iowa, Maine, Minnesota, New Hampshire, South Carolina, and Wisconsin. Id.

13. Id. at 28.

14. Id. at 28-29. In these jurisdictions, married couples could generally hold property as tenants in common or in a form of ownership called "joint tenancy with a right of survivorship." Id.

15. These states included Arkansas, Delaware, District of Columbia, Florida, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming. See Phipps, supra note 12, at 46-57 for a chart outlining the chief characteristics of the estate following each jurisdiction's interpretation of its Married Women's Property Act on the tenancy.

16. West v. First Agric. Bank, 382 Mass. 534, 542 n.14, 419 N.E.2d 262, 267 n.14 (1981) (citing Phipps, supra note 12, at 29-31). Today the legal characteristics of the tenancy vary widely among the states, often leaving its status uncertain and resistant to generalization. See 4A Powell & Rohan, supra note 4, ¶ 620[4]. Presently, authorities differ in the number of states which recognize the tenancy. One such authority suggests that it exists in approximately 25 states and the District of Columbia, yet concedes that because of obscure or conflicting statutes in other jurisdictions, some form of tenancy by the entirety statute exists in as many as 37 states. 4A id. Another authority cites 25 jurisdictions as recognizing the tenancy. 4 Thompson, supra note 5, § 33.06(e). Still another authority cites at least 21 jurisdictions as recognizing the tenancy. Donahue et al., supra note 7, at 532. Currently, only 13 states have abolished the tenancy by judicial pronouncement or statutory amendment. 4A Powell & Rohan, supra note 4, ¶ 620[4] & n.96. These states include California, Connecticut, Iowa, Maine, Minnesota, Nevada, New Hampshire, New Mexico, North Dakota, South Dakota, Washington, West Virginia, and Wisconsin. 4A id. Other states have either obscure legislation regarding the tenancy (Arizona, Georgia, Kansas, Nebraska, Utah), conflicting judicial or statutory law (Alabama, Colorado, Illinois, South Carolina), or no known position (Idaho, Louisiana, Texas). 4A id. ¶ 620[4] & nn.95 & 97-98. The more inclusive list of those states with some form of entirety statute is as follows: Alaska, Arkansas, Delaware, District of Columbia, Florida, Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming. 4A id. ¶ 620[4]. For citations to state statutes concerning the tenancy, see 4A id. ¶ 620[4], at 52-4 nn.10, 12-13 & 15-16, 52-5 nn.22-23, 25-26 & 28, 52-6 nn.31-32, 36-37, 40 & 42, 52-7 nn.45 & 47-49, 52-8 nn.53, 55, 57-58 & 60, 52-9 nn.65, 67, 69 & 71-72, 52-10 nn.74, 77, 79 & 81-82, 52-11 nn.85 & 87, 52-12 n.92; see also 4 Thompson, supra note 5, § 33.06(e) n.81.

17. Mass. Gen. L. ch. 209, § 1 (1987).

18. Coraccio, 415 Mass. at 150, 612 N.E.2d at 653-54 (citing chapter 727 of the Acts of 1979 codified at Mass. Gen. L. ch. 209, § 1. The chapter was entitled: AN ACT EQUALIZING THE RIGHTS OF HUSBAND AND WIFE IN PROPERTY HELD AS TENANTS BY THE ENTIRETY. The statute reads:

The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if such person were sole. A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety.

The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.Mass. Gen. L. ch. 209, § 1 (1987).

19. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652.

20. Id., 612 N.E.2d at 651-52.

21. Id. at 148, 612 N.E.2d at 652.

22. Id. at 152, 612 N.E.2d at 654.

23. V.R.W., Inc. v. Klein, 503 N.E.2d 496 (N.Y. 1986). The Klein court reaffirmed the well-established rule that a unilateral encumbrance made by one spouse alone cannot bind the entire property in disregard of the survivorship right of the nonconsenting spouse. Id. at 498. Yet, the court found that there was nothing in its law to preclude a unilateral encumbrance by one tenant of his or her interest only. Id. at 499.

24. Coraccio, 415 Mass. at 152, 612 N.E.2d at 655 (alterations in original) (quoting Klein, 503 N.E.2d at 499).

25. Id. at 152, 612 N.E.2d at 655.

26. See infra parts III, IV.

27. See infra notes 35-136.

28. See infra notes 137-267.

29. See infra notes 268-305.

30. See infra notes 269-432.

31. See infra notes 306-29, 385-94.

32. See infra notes 330-84.

33. See infra notes 395-432.

34. See infra notes 433-51.

35. Bruce & Ely, supra note 6, at 247.

36. Id. Although Saxon, Scottish, and Welsh law had substantially dealt with marital property rights prior to 1066, the new system introduced by the Normans essentially replaced the old one. Johnston, supra note 11, at 1044. Even today, these early events continue to influence property law in every American jurisdiction. Bruce & Ely, supra note 6, at 247. Ironically, England abandoned many of the archaic legal principles that emerged from this period during the reforms of the late-19th to early-20th centuries. Id. at 248.

37. Bruce & Ely, supra note 6, at 249.

38. Kenelm Edward Digby, An Introduction to the History of the Law of Real Property 34 (London, Macmillan, 2d ed. 1876).

39. Bruce & Ely, supra note 6, at 249. He distributed approximately three-quarters of the land in England to his backers, a task made easier because much of the land-holding Anglo-Saxon-Danish aristocracy had been killed in the battle. Id. at 248.

40. Id. at 249. The relationship was more like a contract for a tenured position than a sale of land. Sheldon F. Kurtz & Herbert Hovenkamp, Cases and Materials on American Property Law 211 (2d ed. 1993).

41. Bruce & Ely, supra note 6, at 249; see also Kurtz & Hovenkamp, supra note 40, at 210.

42. Bruce & Ely, supra note 6, at 249. Without title, the tenant could not independently sell the land or pass it by will. Kurtz & Hovenkamp, supra note 40, at 214. The possession of the land which the tenant enjoyed was called "seisin." Id.

43. Bruce & Ely, supra note 6, at 249; see also Digby, supra note 38, at 34-43.

44. Bruce & Ely, supra note 6, at 249. "Subinfeudation" is a transaction by which "a grantee of land was admitted to hold it as tenant of the grantor." Kurtz & Hovenkamp, supra note 40, at 211. It continued until 1290, at which time the Statute Quia Emptores was passed. Bruce & Ely, supra note 6, at 249 n.2. This statute prohibited the granting of smaller estates from those estates held of the overlord in fee simple. Id. Thereafter, free substitution was allowed. Id. (citing 3 W. Holdsworth, A History of English Law 80-81 (1926)). Free substitution was the tenant's right to put another in his place. Kurtz & Hovenkamp, supra note 40, at 217.

45. Digby, supra note 38, at 38. Various services were required of the tenants. Id. For example, some tenants became tenants in chivalry, bound to military service. Id. at 39. Other tenants acquired the tenure of suit and service by which they attended the lord's court. Id. at 38. Still other tenants, particularly those who were less affluent, provided agricultural service on the lord's property. Id.

46. Kurtz & Hovenkamp, supra note 40, at 215-17. Incidents were analogous to a tax paid by a tenant to the overlord for certain rights and privileges. Bruce & Ely, supra note 6, at 249. The most important incidents were: (1) relief--a kind of inheritance tax; (2) aids--contributions made to the overlord during emergency situations; (3) escheat--forfeiture of the land should the tenant be found guilty of a felony or die with no heirs; (4) wardship--the overlord's right to the income derived from land inherited by a deceased tenant's minor heirs; and (5) marriage--the overlord's right to arrange a ward's marriage and to receive financial benefits from it. Id. at 249-50 n.3. Most incidents were eliminated when the Stuart Monarchy returned to power in 1660. Id. at 250.

47. Bruce & Ely, supra note 6, at 248.

48. Id.

49. Fernande R. V. Duffly, The Effect of the State Equal Rights Amendment on Tenancy by the Entirety, 64 Mass. L. Rev. 205, 206 (1979).

50. Id.

51. Richard R. Huber, Creditors' Rights in Tenancies by the Entireties, 1 B.C. Indus. & Com. L. Rev. 197, 198 n.4 (1960).

52. Bruce & Ely, supra note 6, at 250-51.

53. 4A Powell & Rohan, supra note 4, ¶ 599. Concurrent property ownership occurs when two or more people own or possess property at the same time. 4A id. Both real property and personalty may be held in this way. Bruce & Ely, supra note 6, at 287. In contrast, when property is held by one person alone, he or she holds it in severalty. 4 Thompson, supra note 5, § 33.01.

54. Bruce & Ely, supra note 6, at 289.

55. The four types of concurrent ownership are tenancy in common, joint tenancy, tenancy by the entirety, and coparcenary. 4A Powell & Rohan, supra note 4, ¶ 599. A tenancy in common is formed when two or more owners concurrently hold interests to similar or varying degrees in the same real or personal property. Bruce & Ely, supra note 6, at 287. Each tenant receives an undivided possessory interest in the whole property, subject to the other co-tenant's rights. Id. Interests in a tenancy in common are transferrable. Id. When one of the tenants dies, the property interest passes to either his or her heirs or devisees. Id. Coparcenary, an obsolete form of ownership, was an estate which arose from descent to two or more persons (usually women in the absence of male issue), inheriting to the same or varying degrees. Duffly, supra note 49, at 206 n.9. Each owner possessed a distinct estate, and enjoyed the right to possess and alienate her share. Id.

56. Duffly, supra note 49, at 206.

57. These were the unities of time, title, interest, and possession. David L. Higgs, Comment, Tenancy by the Entirety in Illinois: A Reexamination, 180 S. Ill. U. L.J. 83 (1980). A tenancy by the entirety was regarded as a special type of joint tenancy. 4 Thompson, supra note 5, § 33.06(b). Like a joint tenancy, a tenancy by the entirety required "one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession." 4 id. (quoting 2 William Blackstone, Commentaries *180). A fifth unity, the unity of marriage, was also required to create a tenancy by the entirety, but was not required to form a joint tenancy. 4 id.

58. Higgs, supra note 57, at 86.

59. Id. at 85. An inter vivos transfer is a transfer of property during the owner's lifetime, distinguished from a testamentary transfer where the property passes at death. Black's Law Dictionary 821 (6th ed. 1990).

60. Higgs, supra note 57, at 85 n.10. A partition action divides the lands of the joint tenants so that they hold them in severalty. Id. This action creates a tenancy in common. Id.

61. Id. at 86.

62. 4 Thompson, supra note 5, § 33.05, at 100; see also Phipps, supra note 12, at 24.

63. Phipps, supra note 12, at 24-25. The spouses were said to hold the property "per tout and non per my (by the whole and not by the half)." Higgs, supra note 57, at 87.

64. Higgs, supra note 57, at 86.

65. 4A Powell & Rohan, supra note 4, ¶ 624[5]. Most often a divorce or annulment ends a tenancy by the entirety, converting it into a tenancy in common, with the former spouses each receiving an undivided one-half interest. 4A id. See generally Bernatavicius v. Bernatavicius, 259 Mass. 486, 156 N.E. 685 (1927).

66. 4A Powell & Rohan, supra note 4, ¶ 624[2]. When one spouse dies, the survivor is vested with a fee simple interest in the property. 4A id.

67. 4A id. ¶ 624[1]. A joint conveyance from both spouses to a third person terminates the tenancy. 4A id. See generally Mt. Washington Co-op Bank v. Benard, 289 Mass. 498, 194 N.E. 839 (1935). Additionally, in some jurisdictions, a deed executed from one spouse to the other severs the tenancy (by merger) when that clearly is the intent. 4A Powell & Rohan, supra note 4, ¶ 624[1]. See generally Hale v. Hale, 332 Mass. 329, 125 N.E.2d 142 (1955).

68. Duffly, supra note 49, at 207.

69. Id. at 206-07.

By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband . . . .

. . . .

But, though our law in general considers man and wife as one person, yet, there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. And therefore all deeds executed, and acts done by her, during her coverture, are void . . . .1 William Blackstone, Commentaries *442, 444 (footnote omitted), cited in Duffly, supra note 49, at 207 n.13. For a discussion of the genesis of male dominion in tenancies by the entirety, see Johnston, supra note 11, at 1046-52.

70. Johnston, supra note 11, at 1045. Early English inheritance laws concerning real property favored males over females. Id. at 1045 n.32.

71. Id. at 1045. Single women could own, manage, and transfer property, enjoy the income it produced, and sue and be sued. Id.

72. Id.

73. Phipps, supra note 12, at 24. When a woman married, her legal rights were consolidated into those of her husband, "under whose wing, protection, and cover she perform[ed] everything . . . and her condition during her marriage [was] called her coverture." Bruce & Ely, supra note 6, at 329.

74. 4 Thompson, supra note 5, § 33.05, at 100, § 33.06(b).

75. Higgs, supra note 57, at 87-88.

76. Phipps, supra note 12, at 24. The fictional legal unity of husband and wife had been challenged as an illogical enigma, even in earlier times. "In Charles Dickens' Oliver Twist, Mr. Bumble is advised: `the law supposes that your wife acts under your direction.' Whereupon Mr. Bumble exclaimed: `If the law supposes that, . . . the law is a[n] . . . idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience . . . .'" Bruce & Ely, supra note 6, at 330 n.1 (quoting Charles Dickens, Oliver Twist 403 (Bantam Books 1981) (1867)).

77. Higgs, supra note 57, at 87. "A `freehold estate' is a right of title to land." Black's Law Dictionary 655 (6th ed. 1990). Jure uxoris is the term given to the "bundle of rights" a husband acquired in his wife's property. Bruce & Ely, supra note 6, at 330.

78. Johnston, supra note 11, at 1045. As an exception to the rule, a wife was allowed to keep paraphernalia and pin money. Id. at 1045 n.33. Personalty is "[p]ersonal property; movable property; chattels; property that is not attached to real estate." Black's Law Dictionary 1114 (6th ed. 1990).

79. Johnston, supra note 11, at 1045.

80. Phipps, supra note 12, at 24. Jure uxoris, however, did not give the husband title to any real property owned by his wife prior to the marriage. Bruce & Ely, supra note 6, at 330. The wife retained title to previously owned property, but the husband received all rights and privileges attending ownership, regardless of whether his wife was given the property, inherited it, or obtained it through her own labor. Id. Since the legal effect of jure uxoris operated only during the married couple's joint life, the husband received an additional interest, called curtesy, in his wife's real property were she to predecease him. Id. Curtesy gave a husband a life estate in all freehold property owned by his wife, vesting when a live child was born to the marriage. Id. In turn, a wife received a one-third life estate in the land of her deceased husband, called a dower interest. Id. at 331. Unlike curtesy, the doctrine of dower did not necessitate the birth of a live child. Id. Today the doctrines of curtesy and dower have been largely replaced. Id. Some states have statutes whereby a surviving spouse may take a 1/3 or 1/2 interest in the decedent spouse's estate. Id.

81. Phipps, supra note 12, at 25. To escape the harshness of the common law, equitable devices such as trust arrangements and premarital agreements were developed and used by land-owning fathers to exclude a daughter's property from her husband's sole control during her marriage. George L. Haskins, The Estate by the Marital Right, 97 U. Pa. L. Rev. 345, 350-51 (1949). Equitable devices were generally available to the monied classes who had property to convey and the financial resources to access the courts of equity. Phipps, supra note 12, at 26-27; see also Johnston, supra note 11, at 1052-56.

82. Sawada v. Endo, 561 P.2d 1291, 1295 (Haw. 1977).

83. Richard H. Chused, Married Women's Property Law: 1800-1850, 71 Geo. L.J. 1359, 1361 (1983). This movement was not a highly endorsed and coordinated campaign to substitute equality for male supremacy within marriage. Johnston, supra note 11, at 1061-62. Rather, it was a slow and often heavily resisted process resulting in piecemeal legislation concerning specific aspects of coverture and their attending disabilities on the wife. Id. Beginning in 1835, legislatures generally passed the Acts in three waves of activity. Chused, supra, at 1398. During the 1840's, the first set of statutes was passed primarily for the purpose of freeing married women from their husband's debts. Id. The second set of statutes, passed from the 1840's until after the Civil War, created separate estates for married women. Id. Following the Civil War, a third set of statutes emerged which protected married women's earnings from the legal disabilities of marriage. Id.

84. Chused, supra note 83, at 1398-1412.

85. Id.

86. Phipps, supra note 12, at 27. In an exhaustive search regarding the status of the tenancy by the entirety following the enactment of the Married Women's Property Acts, Dean Phipps categorized his much-referenced findings in chart form. See id. at 46-57.

87. Id. at 28.

88. Id. at 28-29. These states included Alabama, Colorado, Illinois, Iowa, Maine, Minnesota, New Hampshire, South Carolina, and Wisconsin. Id.

89. Id. at 28.

90. Id. at 31-32.

91. Phipps, supra note 12, at 31. These states were Arkansas, New Jersey, New York, and Oregon. Id. at 34.

92. Id. at 34. Each spouse was entitled to own a one-half interest in the property in addition to one-half of the income it produced. Johnston, supra note 11, at 1086. Correspondingly, individual creditors could attach these interests. Id.

93. Phipps, supra note 12, at 31.

94. Id. at 32. This group included Delaware, District of Columbia, Florida, Indiana, Maryland, Missouri, Pennsylvania, Rhode Island, Vermont, Virginia, and Wyoming. Id.

95. Id. at 34.

96. Id.

97. Id.

98. Phipps, supra note 12, at 35.

99. Id. Kentucky and Tennessee held views similar to the majority position except that spousal survivorship rights were reachable by creditors. Id. at 34-35.

100. Id. at 33.

101. West v. First Agric. Bank, 382 Mass. 534, 542 n.14, 419 N.E.2d 262, 267 n.14 (1981).

102. Phipps, supra note 12, at 29-30. The other two states were Michigan and North Carolina. Id.

103. Pray v. Stebbins, 141 Mass. 219, 4 N.E. 824 (1886).

104. Id. at 222, 4 N.E. at 826. The statute in effect at the time of the conveyance in Pray was 1857 Mass. Acts ch. 249, § 1 (now codified as Mass. Gen. Laws Ann. ch. 209, § 1 (1987)):

The property, both real and personal, which any woman, who may now be married in this Commonwealth, may now own as her sole and separate property, and the rents, issues, profits and proceeds thereof, and any real or personal property which shall hereafter come to her by descent, devise, or bequest, or the gift of any person except her husband, shall remain her sole and separate property notwithstanding her marriage, and not be subject to the disposal of her husband, or liable for his debts.Mary Ann Glendon, Tenancy by the Entirety in Massachusetts, 59 Mass. L.Q. 53, 54 n.4 (1974-75) (quoting 1857 Mass. Acts ch. 249, § 1 (1857)).

105. Duffly, supra note 49, at 207.

106. Pray, 141 Mass. at 220, 4 N.E. at 824.

107. Id.; see also Duffly, supra note 49, at 207 n.16.

108. Duffly, supra note 49, at 208; see also Pray, 141 Mass. at 224, 4 N.E. at 827.

109. Duffly, supra note 49, at 208; see also Pray, 141 Mass. at 222-23, 4 N.E. at 826. It has been suggested that in order to reach this conclusion, the Chief Justice viewed the common law concept of male dominion in marriage as central to the common law form of marital property, the tenancy by the entirety. Duffly, supra note 49, at 209.

110. Duffly, supra note 49, at 208.

111. Id. at 208; see also Pray, 141 Mass. at 223, 4 N.E. at 826. Chief Justice Field noted that the husband and wife held the property "per tout et non per my [or] as one person, and not as joint tenants or tenants in common." Pray, 141 Mass. at 221, 4 N.E. at 825. Therefore, the right of partition (dividing the estate into two interests) was unavailable to either spouse by law. Id.

112. Duffly, supra note 49, at 208; Pray, 141 Mass. at 222-23, 4 N.E. at 825-26. Statutes in effect at the time favored the formation of tenancies by the entirety for husbands and wives, not joint tenancies or tenancies in common. Duffly, supra note 49, at 208. The Chief Justice reasoned that if the Acts applied to tenancies by the entirety, then a wife would hold title to property as if "sole." See Pray, 141 Mass. at 222-23, 4 N.E. at 825-26. As a result, she and her husband would be tenants in common, a status not allowed by law. Id.

113. Pray, 141 Mass. at 223, 4 N.E. at 826.

114. Id. at 223-24, 4 N.E. at 826 (citing Pierce v. Chace, 108 Mass. 254, 258 (1871)).

115. Id. at 224, 4 N.E. at 826.

116. Id., 4 N.E. at 826-27.

117. Id., 4 N.E. at 827. At the top of the feudal hierarchy, freehold estates were most desirable, being held only by free men. Bruce & Ely, supra note 6, at 250-51. Freehold estates included fee simple, fee tail, and life estates. Id. A fee simple is an estate in land. Id. "Typically [the] words `fee simple' standing alone create" a fee simple absolute, "an estate limited absolutely to a person and his or her heirs and assigns forever without limitation or condition." Black's Law Dictionary 615 (6th ed. 1990). In contrast, a fee tail is an estate with a fixed line of "inheritance given to a man and the heirs of his body" or to "certain classes of particular heirs." Black's Law Dictionary 616 (6th ed. 1990). A life estate is one limited in duration "to the life of the party holding it, or some other person." Black's Law Dictionary 924 (6th ed. 1990).

118. Harold Lavien & Judy K. Mencher, The Eclipse of Massachusetts Tenancy by the Entirety and a Reappraisal of Homestead as they Relate to Bankruptcy, 67 Mass. L. Rev. 170, 174 (1982). There are, however, important statutory restraints and allowances concerning the tenancy. Under Mass. Gen. L. ch. 184, § 7 (1991), the presumption that spouses hold property as tenants by the entirety was abolished. Today there is more than one option available to married persons. See Mass. Gen. L. ch. 184, § 7 (1991). The statute reads in relevant part:

A conveyance or devise of land to . . . husband and wife . . . shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants . . . . A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety.

A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety.Mass. Gen. L. ch. 184, § 7 (1991). Another relevant Massachusetts statute reads as follows:

Real estate, including any interest therein, may be transferred by a person to himself jointly with another person in the same manner in which it might be transferred by him to another person, and a conveyance of real estate by a person to himself and his spouse as tenants by the entirety shall create a tenancy by the entirety.Mass. Gen. L. ch. 184, § 8 (1991). Additionally, neither party can voluntarily partition the tenancy. Mass. Gen. L. ch. 241, § 1 (1988) ("Any person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption, shall be entitled to have partition . . . .").

Massachusetts law further allows holders of pre-chapter 209, § 1 tenancies to elect to have their estate be subject to the provisions of chapter 209, § 1. The statute, enacted in 1989, states that: "Tenants by the entirety holding under a deed dated prior to February eleventh, nineteen hundred and eighty may elect to have their tenancy treated as being subject to the provisions of chapter seven hundred and twenty-seven of the acts of nineteen hundred and seventy-nine . . . ." Mass. Gen. L. ch. 209, § 1A (Supp. 1995).

119. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150, 612 N.E.2d 650, 653-54 (1993).

120. Lavien & Mencher, supra note 118, at 174. For this reason, the old law is still extremely relevant. Id.; see also supra note 118 and accompanying text; Somerset Sav. Bank v. Goldberg, 166 B.R. 776 (Bankr. D. Mass. 1994), a post-Coraccio decision addressing retroactive application of Mass. Gen. L. ch. 209, §§ 1-1A. For a discussion of a case addressing the constitutionality of retroactive application of the statute prior to the enactment of chapter 209, § 1A, see infra note 219 and accompanying text.

121. See supra notes 113-17 and accompanying text.

122. Licker v. Gluskin, 265 Mass. 403, 404, 164 N.E. 613, 614 (1929) (noting that the nature of the tenancy is founded on the premise of the unity of husband and wife). In Licker, the judgment creditor of a wife moved to sell the wife's interest in land held by the entirety. Id. At issue was whether a wife's creditor could attach and sell her interest in an entirety property during the joint lives of the couple. Id. The court found that the law was settled in this regard; a wife could not convey the property without her husband's written consent, and, therefore, her interest could not be subject to attachment, levy, or sale. Id. at 407, 164 N.E. at 615.

123. Voight v. Voight, 252 Mass. 582, 583, 147 N.E. 887, 887 (1925) ("[T]he right of possession during the joint lives of the husband and wife is in the husband.").

124. Pineo v. White, 320 Mass. 487, 490-91, 70 N.E.2d 294, 297 (1946). In Pineo, the court considered the issue of whether a wife alone could validly discharge a mortgage on property she held with her husband as a tenant by the entirety. Id. at 491, 70 N.E.2d at 297. The court held that the discharge of the mortgage by the wife alone was an "insufficient" release, because unlike the husband's ability to enjoy ownership privileges during marriage, her rights to similar enjoyment lay dormant. Id.

125. Id. at 490, 70 N.E.2d at 297 ("[The] husband has the right to the rents and profits.").

126. Licker, 265 Mass. at 406-07, 164 N.E. at 615.

127. Raptes v. Pappas, 259 Mass. 37, 155 N.E. 787 (1927).

128. Id. at 38-39, 155 N.E. at 787. In Raptes, the defendant, Vassilios Cheros (also named William Pappas), failed to pay a promissory note owed to the plaintiff. Id. at 38, 155 N.E. at 787. The plaintiff obtained a judgment against Pappas. Id. To satisfy the judgment, the sheriff sold at a public auction the right, title, and interest to a property Pappas owned as a tenant by the entirety. Id. The SJC affirmed the lower court's decision, holding that the purchaser was entitled to possession of the premises and to all interests which Pappas held in the property, including the possibility of full title should Pappas' wife die before him. Id. at 38-39, 155 N.E. at 787-88.

129. Id. at 39, 155 N.E. at 787.

130. Id.

131. West v. First Agric. Bank, 382 Mass. 534, 536 n.4, 419 N.E.2d 262, 264 n.4 (1981). See infra note 219 and accompanying text for a discussion of West.

132. Licker, 265 Mass. at 406, 164 N.E. at 615 (noting that if the wife were to survive her husband, "she would have been entitled to the property absolutely").

133. Id. at 405, 164 N.E. at 614 ("The title of both the husband and wife . . . arises out of the instrument . . . by virtue of which they [hold] the estate.").

134. Id. at 406, 164 N.E. at 615 (noting that during a married couple's life, the husband has the right of exclusive possession of the property).

135. Id. at 407, 164 N.E. at 615.

136. Id. The Licker court noted that Mass. Gen. L. ch. 236, § 1 (1986) (allowing attachment of a debtor's interest in property) offered no relief because under the estate during coverture, a wife's interest was not actionable. Licker, 265 Mass. at 407, 164 N.E. at 615. The court also reasoned that a creditor could not attach and sell a wife's interest when she could not, under the common law, sell it herself. Id. Furthermore, since a wife had no present rights in the property except a contingent survivorship interest which was not alienable during her lifetime, she held nothing from which a creditor could seek relief. Glendon, supra note 104, at 56.

137. Record, Plaintiff's Amended Complaint at 4a, Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 612 N.E.2d 650 (1993) (No. 92-P-0175) [hereinafter Amended Complaint]. The Coraccio court took the facts as alleged in the Complaint as true. Coraccio, 415 Mass. at 147, 612 N.E.2d at 652.

138. Amended Complaint, supra note 137, at 4a.

139. Id. The Coraccios agreed that Stephen Coraccio would re-convey the property to his wife at a later date. Id. On January 17, 1989, six months after the first conveyance, Stephen Coraccio deeded back his interest in the property to Nancy Coraccio. Id. The transaction was never recorded, however. Record, Brief in Support of Defendant's Motion to Dismiss at 14a, Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 612 N.E.2d at 650 (1993) (No. 92-P-0175) [hereinafter Defendant's Motion].

140. Amended Complaint, supra note 137, at 4a.

141. Id. at 5a. The Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2604(b) (1994), "requires that mortgage applicants receive three types of settlement disclosures when applying for a `federally-related mortgage loan.'" Kenneth F. Hall, Mortgage Loan Disclosure Handbook § 7.1 (1993). These disclosures include a guide relating to settlement costs, a good faith estimate of costs, and a "final statement of settlement." Id.

142. Amended Complaint, supra note 137, at 5a. "A three day notice of rescission" is a required waiting period lenders must provide consumers before finalizing a financial transaction. Elwin Griffith, Truth in Lending--Rescission and Disclosure Issues in Closed-End Credit, 17 Nova L. Rev. 1253, 1259 (1993).

143. Amended Complaint, supra note 137, at 5a.

144. Coraccio, 415 Mass. at 147, 612 N.E.2d at 652.

145. Amended Complaint, supra note 137, at 5a.

146. Id.

147. Id.

148. Id.

149. Id. Lowell Five attached the property to secure Stephen Coraccio's indebtedness. Appellee's Brief at 2, Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 612 N.E.2d 650 (1993) (No. 92-P-0175). The Superior Court subsequently released the attachment upon Nancy Coraccio's request. Id.

150. Amended Complaint, supra note 137, at 5a.

151. Appellant's Brief at 3 n.2 Coraccio (No. 92-P-0175). On or about January 4, 1989, "the Lowell Five sent Stephen Coraccio proper notice [of default] and initiated proceedings on the mortgaged interest." Defendant's Motion, supra note 139, at 13a-14a.

152. Coraccio, 415 Mass. at 147, 612 N.E.2d at 652.

153. Amended Complaint, supra note 137, at 1a.

154. Id. at 3a-10a.

155. Id. at 5a-10a.

156. Id. at 5a (alleging that the bank "knew or should have known" that title to the property was held by the Coraccios as tenants by the entirety).

157. Id. at 8a (alleging that because Nancy Coraccio had a contractual relationship with Lowell Five arising out of the first mortgage, Lowell Five violated the implied covenant of good faith and fair dealing by failing to inform her of Stephen Coraccio's loan applications and by granting him two unilateral mortgages).

158. Amended Complaint, supra note 137, at 8a-9a (alleging that Lowell Five "knew or should have known" that granting a second mortgage to Stephen Coraccio alone would create "unreasonable strain on and tortuous [sic] interference with the privileged relationship of Husband and Wife").

159. Id. at 9a (alleging that Lowell Five acted unfairly and deceptively toward Nancy Coraccio, thus violating the "implied warranty of good faith and fair dealing").

160. Id. at 6a-7a (alleging that Defendant Attorney Hall failed to obtain Nancy Coraccio's signature on the mortgages, and upon foreclosure of the property, did not give her notice of the action).

161. Id. at 10a; see also Coraccio, 415 Mass. at 148, 612 N.E.2d at 651-52; Appellant's Brief at 11, Coraccio (No. 92-P-0175).

162. Amended Complaint, supra note 137, at 10a.

163. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652; see also Defendant's Motion, supra note 139, at 13a. Massachusetts Rule of Civil Procedure 12(b)(1) allows dismissal of an action for lack of jurisdiction over the subject matter while 12(b)(6) allows dismissal of an action for failure to state a claim upon which relief can be granted. Mass. R. Civ. P. 12(b)(1), (6).

164. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652; see also Defendant's Motion, supra note 139, at 16a.

165. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652.

166. Id. at 146 n.1, 612 N.E.2d at 651 n.1. Since Nancy Coraccio did not appeal the dismissal of the count against Attorney Hall, Hall was not a party to the appeal. Id. In his motion to dismiss brought in the lower court, Attorney Hall relied on the case of Page v. Frazier, 388 Mass. 55, 445 N.E.2d 148 (1983) where the SJC held that "a mortgagor . . . cannot sue a bank's attorney for negligence . . . where there [was] no attorney-client relationship." Appellee's Brief at 5, Coraccio (92-P-0175). Nancy Coraccio did not discuss the intentional interference count against Lowell Five on appeal. Coraccio, 415 Mass. at 146 n.1, 612 N.E.2d at 651 n.1. The court, therefore, treated it as waived. Id.

167. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652.

168. Id. Nancy Coraccio also argued that her claim was similar to the tort of disparagement. Appellant's Brief at 10-11, Coraccio (No. 92-P-0175). The tort of disparagement is described as follows:

One who publishes a false statement harmful to the interest of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.Restatement (Second) of Torts § 623A (1976). Moreover, under § 624 of the

Restatement:

The rules on liability for the publication of an injurious falsehood stated in § 623A apply to the publication of a false statement disparaging another's property rights in land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other's interests in the property.Id. § 624. Nancy Coraccio also cited Gerard v. Dickerson, 76 Eng. Rep. 903 (1590), a case in which the defendant falsely claimed that he held rights to a lease on the plaintiff's property, thus discouraging others from leasing it. Appellant's Brief at 10-11, Coraccio (No. 92-P-0175). Nancy Coraccio argued that once her husband's encumbrance was recorded on the property, others would be similarly discouraged from loaning money to her. Id. at 11. The SJC ruled that Nancy Coraccio could not raise this claim for the first time on appeal and thus did not address the issue. Coraccio, 415 Mass. at 146 n.1, 612 N.E.2d at 651 n.1.

169. Coraccio, 415 Mass. at 146, 612 N.E.2d at 652.

170. Id. at 145, 612 N.E.2d at 651.

171. Id. at 147, 612 N.E.2d at 652 (citing Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870, 872 (1977)).

172. Id. (citing Spence v. Boston Edison Co., 390 Mass. 604, 615, 459 N.E.2d 80, 87 (1983)).

173. Id. at 146-47, 612 N.E.2d at 651-52; see also Mass. Gen. L. ch. 231A, § 1 (1986) which reads:

The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings . . . .Mass. Gen. L. ch. 231A, § 1 (1986).

174. Coraccio, 415 Mass. at 148 n.3, 612 N.E.2d at 652 n.3.

175. Id. at 148, 612 N.E.2d at 652. The court found that the motion judge should have granted the declaration concerning the parties' rights in the second mortgage instead of dismissing the request. Id. (citing Gleason v. Galvin, 374 Mass. 574, 577, 373 N.E.2d 357, 359 (1978)).

176. Id.

177. Appellant's Brief at 11-13, Coraccio (No. 92-P-0175).

178. Id. Nancy Coraccio asserted that the Legislature intended to equalize the rights of both spouses to control a tenancy by the entirety by modifying the husband's common law right of exclusive control. Id. at 12 (citing West v. First Agric. Bank, 382 Mass. 534, 543, 419 N.E.2d 262, 267 (1981)).

179. Id. at 12-13.

180. Id. Instead, Nancy Coraccio argued that she incurred legal expense in defending against Lowell Five's attachment of her property, prosecuting a bill to clear title. Id.

181. Id. at 13 (quoting Mass. Gen. L. ch. 209, § 1 (1987)).

182. Appellant's Brief at 13-14, Coraccio (No. 92-P-0175). Nancy Coraccio claimed that when Stephen Coraccio was granted the second mortgage, he alone was given the proceeds in violation of her statutory right to have and control that part which represented a profit derived from the appreciated value of the property. Id. at 14.

183. Id. at 15. Coraccio argued that under Mass. Gen. L. ch. 209, § 1 (1987), she had more than possessory and survivorship interests in the property. Id. Rather, she claimed that the statute gave her an equal right to control and manage the property and to share equally in any profits obtained from it. Id. She further asserted that these rights were available to both tenants while alive. Id.

184. Record, Plaintiff's Opposition to Defendant's Motion to Dismiss Amended Complaint at 21a, Coraccio (No. 92-P-0175) [hereinafter Plaintiff's Opposition].

185. Appellant's Brief at 14, Coraccio (92-P-0175) (quoting Shelly v. Kramer, 334 U.S. 1, 22 (1948)).

186. Id.

187. Id.

188. Id. at 14, 15.

189. Plaintiff's Opposition, supra note 184, at 21a. According to Nancy Coraccio, the case presented an issue of first impression. Appellant's Brief at 5, Coraccio (92-P-0175).

190. Peebles v. Minnis, 402 Mass. 282, 521 N.E.2d 1372 (1988).

191. Appellant's Brief at 15-16, Coraccio (92-P-0175).

192. Peebles, 402 Mass. at 283, 521 N.E.2d at 1372.

193. Id. at 283, 521 N.E.2d at 1373.

194. Id. The court stated that "`[a]ll real and personal property liable to be taken on execution' is subject to attachment." Id. at 283, 521 N.E.2d at 1372 (alteration in original) (quoting Mass. Gen. L. ch. 223, § 42 (1985)).

195. Id. at 283, 521 N.E.2d at 1373. In support of its position to allow the attachment, the court reasoned that the property could be subject to execution at a future date, i.e., in the event that the nondebtor spouse were to predecease the debtor spouse or the couple were to divorce. Id.

196. Id. (citing Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 484-86, 233 N.E.2d 29, 30 (1968)).

197. Peebles, 402 Mass. at 283, 521 N.E.2d at 1373.

198. Appellant's Brief at 16, Coraccio (92-P-0175).

199. Id. (citing Mass. Gen. L. ch. 209, § 1 (1987)). "`The interest of a debtor spouse . . . shall not be subject to seizure or execution . . . so long as such property is the principal residence of the nondebtor spouse.'" Id. (quoting Mass. Gen. L. ch. 209, § 1 (1987)); see also Peebles, 462 Mass. at 283, 521 N.E.2d at 1373.

200. Appellant's Brief at 16, Coraccio (92-P-0175) (stating that each spouse is "`equally . . . [entitled] to the products, . . . and profits, . . . and to the control, management and possession'" of the entirety property (quoting Mass. Gen. L. ch. 209, § 1 (1987))).

201. Id.

202. Id.

203. Id.

204. Id. See infra notes 357-71 and accompanying text for a discussion of one court's finding that a bank was the proximate cause of its losses.

205. Appellee's Brief at 4-6, Coraccio (92-P-0175).

206. Id. at 4.

207. Id.; see also supra notes 155-60 and accompanying text.

208. Appellee's Brief at 6, Coraccio (92-P-0175). "`Standing to sue' means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Black's Law Dictionary 1405 (6th ed. 1990).

209. Appellee's Brief at 9, Coraccio (92-P-0175) (citing Doe v. The Governor, 381 Mass. 702, 704, 412 N.E.2d 325, 326 (1980) (quoting Kaplan v. Bowker, 333 Mass. 455, 459, 131 N.E.2d 372, 374 (1956))).

210. Drury v. Abdallah, 46 B.R. 718, 719 (Bankr. D. Mass. 1984).

211. Appellee's Brief at 6, Coraccio (92-P-0175).

212. Id. (citing Drury, 46 B.R. at 718). In Drury, a trustee in bankruptcy sought to sell the debtor husband's property interest held in a tenancy by the entirety after the husband used it as security for a note and then defaulted. Drury, 46 B.R. at 719. Prior to the sale, the husband died, leaving his wife as sole survivor of the property. Id. The trustee applied to the bankruptcy court to sell the tenancy, claiming that it belonged to the bankrupt estate. Id. The bankruptcy court denied the application. Id. At issue in the appeal was whether an entirety property co-owned by a debtor husband could be sold in bankruptcy when the husband died before the sale and his wife survived him. Id. The court held that the property could not be sold. Id. The court reasoned that when the debtor died prior to the sale, his interest "expired, evaporated, dissolved." Id. (citing 1979 Mass. Acts ch. 727, now codified at Mass. Gen. L. ch. 209, § 1 (1987)). Full title to the property immediately passed to the wife through her survivorship right, free from creditors' claims. Id. To arrive at this conclusion, the court applied the preemptive mandates of the Federal Bankruptcy Code, mainly relying on 11 U.S.C. § 363(h). Drury, 46 B.R. at 719-20. Under § 363(h), a trustee in bankruptcy may sell both debtor and nondebtor interests in the same property if certain conditions are met. Drury, 46 B.R. at 719-20. One such condition in § 363(h)(3) allows a sale when "the benefit to the estate . . . outweighs the detriment, if any, to such co-owners." Drury, 46 B.R. at 719-20. The Drury court found that when the husband died prior to the sale, the wife's survivorship interest in the entirety property automatically granted her full title to the estate. Id. (citing Mass. Gen. L. ch. 209, § 1 (1987)). In view of this result, the court determined that the remaining value to the bankrupt estate was zero. Id. Since § 363(h)(3) could not be satisfied under this analysis, the court did not allow the sale of the property. Drury, 46 B.R. at 719-20.

213. Appellee's Brief at 6, Coraccio (92-P-0175) (citing Peebles, 402 Mass. at 283, 521 N.E.2d at 1373)).

214. Id.

215. Id.

216. Shammas v. Merchants Nat'l Bank, No. CIV.A.90-12217-N, 1990 WL 354452 (D. Mass. Nov. 9, 1990).

217. Appellee's Brief at 6, Coraccio (92-P0175) (citing Shammas, 1990 WL 354452 at *4 (citing Anderson v. United Fin. Co., 666 F.2d 1274, 1277 (9th Cir. 1982))).

218. Appellee's Brief at 7, Coraccio (92-P-0175) (citing Shammas, 1990 WL 354452 at *4).

219. Coraccio, 415 Mass. at 150, 612 N.E.2d at 653-54 (citing West v. First Agric. Bank, 382 Mass. at 550-52, 419 N.E.2d at 271-72 (determining that chapter 209, § 1 could only be applied prospectively)). For those tenancies created before this date, the common law controlled. West, 382 Mass. at 550-52, 419 N.E.2d at 271-72. The West court consolidated two cases in which the constitutionality of pre-1980 tenancies by the entirety had been challenged under the amended statute. Id. at 535, 419 N.E.2d at 263. The court declined to equalize the rights of spouses under the old tenancy noting the formidable problem of selecting among the many forms equalization has taken among the states. Id. at 550, 419 N.E.2d at 271. Furthermore, noting the lack of express legislative intent concerning retroactive application of the statute, the court determined that the legislature itself should decide the fate of pre-1980 tenancies. Id. at 550-51, 419 N.E.2d at 271-72.

220. Coraccio, 415 Mass. at 148-50, 612 N.E.2d at 652-54; see also supra notes 105-36 and accompanying text.

221. Coraccio, 415 Mass. at 150-52, 612 N.E.2d at 653-55.

222. Id. at 151, 612 N.E.2d at 654.

223. Id.

224. Id. The court expressed no view regarding spousal rights in a property which is not the principal residence. Id. at 152 n.9, 612 N.E.2d at 655 n.9. Seizure is "[t]he act of taking possession of property . . . for a violation of law or by virtue of an execution of a judgment." Black's Law Dictionary 1359 (6th ed. 1990). It is performed by an officer of the law by authority of a written judicial order issued by a competent court allowing the property to be taken into custody and sold. Id.

225. Coraccio, 415 Mass. at 151, 612 N.E.2d at 654 (citing Raptes v. Pappas, 259 Mass. 37, 38-39, 155 N.E. 787, 787 (1927)); see also supra notes 127-31 and accompanying text.

226. Coraccio, 415 Mass. at 151, 612 N.E.2d at 654.

227. Id.

228. Id.

229. Id. (citing In re Abdallah, 39 B.R. 384, 387 (Bankr. D. Mass.), remanded sub nom. Drury v. Abdallah, 46 B.R. 718 (Bankr. D. Mass. 1984), appeal dismissed, 778 F.2d 75 (1st Cir. 1985), cert. denied, 476 U.S. 1116 (1986)).

230. Id. While the parties agreed that foreclosure proceedings on the principal residence were pending in Land Court, the SJC ruled that paragraph two of the statute prohibited the bank from moving on any interest it had in the home. Id. at 152 n.9, 612 N.E.2d at 655 n.9 (citing Peebles, 402 Mass. at 282, 521 N.E.2d at 1372).

231. Coraccio, 415 Mass. at 152 n.9, 612 N.E.2d at 655 n.9 (citing Drury, 46 B.R. at 719).

232. Id. at 152, 612 N.E.2d at 654 (emphasis added).

233. Id. (citing Mitchell v. Wilmington Trust Co., 449 A.2d 1055 (Del. Ch. 1982); Central Nat'l Bank v. Fitzwilliam, 465 N.E.2d 408 (Ohio 1984); Bellows Falls Trust Co. v. Gibbs, 534 A.2d 210 (Vt. 1987)).

234. V.R.W., Inc. v. Klein, 503 N.E.2d 496 (N.Y. 1986).

235. Coraccio, 415 Mass. at 152, 612 N.E.2d at 654-55.

236. Klein, 503 N.E.2d 496, 497.

237. Id.

238. Id.

239. Id. at 499.

240. Coraccio, 415 Mass. at 152, 612 N.E.2d at 654-55 (alterations in original) (quoting Klein, 503 N.E.2d at 499).

241. Id., 612 N.E.2d at 655.

242. Id. at 153, 612 N.E.2d at 655.

243. Coraccio, 415 Mass. at 153, 612 N.E.2d at 655; see also Appellant's Brief at 7, Coraccio (No. 92-P-0175).

244. Appellant's Brief at 6-7, Coraccio (92-P-0175).

245. Id. at 7 (citing Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 516, 167 N.E.2d 235, 242 (1929)).

246. Id. at 8 (citing Warner Ins. Co. v. Commissioner of Ins., 406 Mass. 354, 362 n.9, 548 N.E.2d 188, 191 n.9 (1990); Fortune v. National Cash Register Co., 373 Mass. 96, 104, 364 N.E.2d 1251, 1257 (1977); Kerrigan v. Boston, 361 Mass. 24, 33, 278 N.E.2d 387, 393 (1972)).

247. Coraccio, 415 Mass. at 153, 612 N.E.2d at 655 (quoting Fortune v. National Cash Register Co., 373 Mass. 96, 104, 364 N.E.2d 1251, 1257 (1977)).

248. Appellant's Brief at 8-9, Coraccio (92-P0175).

249. Id. at 9.

250. Id. at 9-10; see also Coraccio, 415 Mass. at 153, 612 N.E.2d at 655.

251. Appellant's Brief at 9-10, Coraccio (92-P0175) (citing Lavington v. Edgell, 512 N.Y.S.2d 817 (N.Y. App. Div. 1987)). In Lavington, the court held that the implied covenant of good faith and fair dealing inherent in a separation agreement between divorced partners was violated when the ex-wife allegedly purchased a cooperative apartment without informing her husband. Id. at 10 (citing Lavington, 512 N.Y.S.2d at 819). The Coraccio court stated that this case did not support Nancy Coraccio's claim that the first mortgage implicitly created a duty in Lowell Five not to accept her husband's mortgage. Coraccio, 415 Mass. at 153 n.11, 612 N.E.2d at 655 n.11 (citing Lavington, 512 N.Y.S.2d 817 (N.Y. App. Div. 1987)).

252. Appellee's Brief at 4, Coraccio (92-P-0175). This argument was applied to the allegations against Lowell Five for breach of implied covenants of good faith, intentional interference with a privileged relationship, and unfair and deceptive practices in processing and closing the mortgage. Id.

253. Id. at 5.

254. Id. at 4.

255. Appellant's Brief at 17, Coraccio (92-P0175) (alteration in original) (quoting Mass. Gen. L. ch. 93A, § 9(1) (1979)). The relevant section of the statute reads:

(1) Any person, other than a person entitled to bring action under section eleven of this chapter, who has been injured by another person's use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder or any person whose rights are affected by another person violating the provisions of clause (9) of section three of chapter one hundred and seventy-six D may bring an action in the superior court, or in the housing court as provided in section three of chapter one hundred eighty-five C whether by way of original complaint, counterclaim, cross-claim or third party action, for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.Mass. Gen. L. ch. 93A, § 9(1) (1979).

256. Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 583 N.E.2d 806 (1991).

257. Appellant's Brief at 18, Coraccio (92-P0175).

258. Id. "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." Mass. Gen. L. ch. 93A, § 2(a) (1991).

259. Appellee's Brief at 7, Coraccio (92-P-0175) (quoting Kerrigan v. Boston, 361 Mass. 24, 33, 278 N.E.2d 387, 393 (1972)).

260. Id.

261. Id. at 8.

262. Id. (citing 12 C.F.R. § 202, 7(d)(4)).

263. Id. (citing 12 C.F.R. § 202, 7(d)(4)).

264. Coraccio, 415 Mass. at 153, 612 N.E.2d at 655.

265. Id., 612 N.E.2d at 655.

266. Id. at 153-54, 612 N.E.2d at 655.

267. Id. at 154, 612 N.E.2d at 655.

268. Gordon H. Piper, Tenants by the Entirety after `Coraccio,' Mass. Law. Wkly., June 14, 1993, at 11.

269. Id.

270. Id.; see also Coraccio, 415 Mass. at 152, 612 N.E.2d at 654-55 ("[Chapter] 209, § 1, does not prohibit one spouse from encumbering his or her interest. . . .").

271. Mark A. Cohen, Bank May Foreclose on Jointly Owned Property, Mass. Law. Wkly., May 10, 1993 at 1 (quoting Philip S. Nyman, attorney representing the Lowell Five Cents Savings Bank in the Coraccio action).

272. Piper, supra note 268, at 11 (citing Mass. Gen. L. ch. 209, § 1). "The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse." Mass. Gen. L. ch. 209, § 1.

273. Piper, supra note 268, at 11. A subsequent divorce of the couple, however, would end the protection of the principal residence under Mass. Gen. L. ch. 209, § 1 (1987). Piper, supra note 268, at 11. Divorce destroys the unity of marriage necessary to create a tenancy by the entirety, so the tenancy can no longer exist. Bernatavicius v. Bernatavicius, 259 Mass. 486, 489, 156 N.E. 685, 686-87 (1927). Following divorce, former spouses hold the property as tenants in common. Id. at 490, 156 N.E. at 687. An attaching creditor, upon final judgment on the property, can possess the debtor's interest, becoming a tenant in common with the nondebtor spouse. Piper, supra note 268, at 11. The creditor can then seek partition of the property in the Probate Court under Mass. Gen. L. ch. 241, § 1 (1988). Piper, supra note 268, at 11. See supra note 118 for the wording of this statute.

274. Piper, supra note 268, at 11.

275. Id. "One spouse, acting alone, cannot convey or encumber the entire estate, because any conveyance or encumbrance remains subject to the other's survivorship right." Coraccio, 415 Mass. at 151, 612 N.E.2d at 654.

276. Piper, supra note 268, at 11.

277. Id. The survivorship right vests in each spouse at the time of conveyance of the property. When one spouse dies, the survivor comes into full title of the property. Id.

278. Id.

279. Id.

280. Id. In this regard, the Coraccio holding "goes beyond the involuntary attachment [of a principal residence] approved in Peebles." Id.

281. Piper, supra note 268, at 11. "[T]he bank, if it foreclosed, could acquire Stephen Coraccio's interest in the property, namely a right wholly defeasible should the plaintiff, the nondebtor spouse, survive him." Id.; see also Coraccio, 415 Mass. at 152 n.9, 612 N.E.2d at 655 n.9 (noting that paragraph two of Mass. Gen. L. ch. 209, § 1 precluded Lowell Five from executing on its acquired interests in the Coraccio residence). Additionally, it appears that following foreclosure (assuming the tenancy remains), the debtor spouse retains an equal right to possess the property along with the nondebtor spouse. Piper, supra note 268, at 11. This result suggests that "the equal right of possession as tenant[s] by the entirety is not a right that is mortgageable." Id.

282. Piper, supra note 268, at 11.

283. Id.

284. Id.

285. Id.

286. Id. The illusive quality of the bank's interest which it seeks to collect from the debtor is described in United States v. Hutcherson, 188 F.2d 326 (8th Cir. 1951). The Hutcherson court considered whether a tax lien could attach to the debtor spouse's interest in a tenancy by the entirety. Id. at 331. Holding that it could not, the court said: "[T]he individual interest of the husband or wife in an estate by the entirety is, like the rainbow in the sky or the morning fog rising from the valley, not such an estate as may be subjected to the grasp of an attaching creditor . . . ." Id.

287. In re Hull, 169 B.R. 4 (Bankr. D. Mass. 1994).

288. Id. at 6-8.

289. Id. at 5. Cf. Freda v. Commercial Trust Co. of New Jersey, 570 A.2d 409 (N.J. 1990) (holding that mortgage granted in debtor spouse's interest in entirety property remained as lien on that interest after post-divorce transfer of the interest made to former spouse).

290. A nisi judgment is a temporary decree which will become final unless some event changes it. Black's Law Dictionary 1047 (6th ed. 1990).

291. In re Hull, 169 B.R. at 5, 7.

292. Id. at 6.

293. Id.

294. Id.

295. Id. Because the transfer occurred prior to the actual divorce, the couple did not hold the property as tenants in common. Id.

296. In re Hull, 169 B.R. at 6.

297. Id. at 6-7 (citing Coraccio, 415 Mass. at 152, 612 N.E.2d at 655).

298. Id. at 7. The bank's "interest was, from the time of the granting of the mortgage through the [divorce] Judgment [sic] becoming absolute, an encumbrance conditioned on the reciprocal survivorship rights of [the parties]." Id. (citing Klein, 503 N.E.2d at 499).

299. Id.

300. See supra notes 273-74 and accompanying text.

301. In re Hull, 169 B.R. at 7. The court stated:

[I]nasmuch as we have long recognized that the nature of the property interests created by mortgages taken in these situations may be altered upon the occurrence of the specific `condition subsequent' of a spouse's death, (citation omitted), it follows that the mortgagee's interests may also be altered upon the occurrence of a divorce decree or . . . annulment issued after the mortgage was executed. The mortgagor's rights and obligations at the time of the mortgage conveyance were subject to change upon termination of the marriage; the interest conveyed to the mortgagor should be deemed similarly transmutable.Id. (quoting Klein, 503 N.E.2d at 501).

302. In re Hull, 169 B.R. at 7 ("[T]he divorce between the [parties] did not extinguish the Bank's mortgage interest; it extinguished the right of survivorship.").

303. Id. "Upon the divorce becoming absolute, the Bank's mortgage attached to an interest now transformed to a tenancy in common." Id.; see also Klein, 503 N.E.2d at 501.

304. Cohen, supra note 271, at 1. "[B]anks can now foreclose on mortgages given by one spouse, and even take possession and title as long as the property in question is not a principal place of residence." Id. (quoting Phillip S. Nyman, attorney representing Lowell Five in the Coraccio action).

305. Piper, supra note 268, at 11. The Coraccio court left unanswered several other relevant questions regarding the rights of the parties under an estate. Id. The court made no mention of whether a purchaser of foreclosed property would acquire the right to current profits such as rent under the Coraccio facts. Id. The answer to this question may be important when an entirety property is income-producing. Id. Also, the court failed to address whether a mortgagee may enter and possess a property when important mortgage covenants are being breached. Id. In a related issue, the question of whether one tenant by the entirety may assign rents remains unanswered. Id.

Title examiners will have their own problems under the Coraccio holding. William V. Hovey, Tenancies by the Entirety: Past and Present, Mass. Law. Wkly., Sept. 27, 1993, at 39. For example, can a title examiner accurately distinguish a primary residence from an investment property? Id. Because Mass. Gen. L. ch. 209, § 1 appears to protect only the principal residence of a nondebtor spouse from foreclosure, a property's status is particularly relevant to the resolution of a dispute. Hovey, supra, at 39.

306. Hovey, supra note 305, at 41.

307. D'Ercole v. D'Ercole, 407 F. Supp. 1377 (D. Mass. 1976). In D'Ercole, an estranged wife claimed that the common law tenancy "deprive[d] her of due process and equal protection of the law." Id. at 1379. During their contested divorce, the husband would not share the marital home with his wife in any way. Id. Moreover, he would not sell or rent the premises and split the proceeds with her. Id. The court conceded that the tenancy favored males over females. Id. at 1382. Yet, because she could freely choose among three forms of property ownership available to married couples, the court found that the common law tenancy was constitutionally permissible. Id. at 1383; see also Klein v. Mayo, 367 F. Supp. 583 (D. Mass. 1973), aff'd, 416 U.S. 953 (1974); West v. First Agric. Bank, 382 Mass. 534, 419 N.E.2d 262 (1981). But see Kirchberg v. Feenstra, 450 U.S. 455 (1981) (noting that the existence of an optional property provision is not a sufficient reason to reject a constitutional attack on male-biased property schemes).

308. Both the legislature and the judiciary recognized the need to change the common law incidents of tenancies by the entirety in view of the harsh and inequitable effects of the estate on women. Duffly, supra note 49, at 210.

309. Id. at 205 & n.4.

310. See infra note 311 and accompanying text.

311. Legislatures can remedially redraft discriminatory property statutes in the following ways: (1) allow each spouse independent control of community property so that either alone may grant a mortgage in it; (2) give the spouse who bought the property the right to manage (and mortgage) it, thus creating a sex-neutral system based on source of purchase funds; (3) permit each spouse to manage his or her half-interest in the property, a resulting encumbrance from a unilateral mortgage attaching to that interest only; or (4) require both spouses to dually manage the property, joinder being necessary for a valid mortgage. William A. Reppy, Jr., North Carolina's Tenancy by the Entirety Reform Legislation of 1982, 5 Campbell L. Rev. 1, 31-32 (1982).

312. See supra note 311 and accompanying text.

313. Reppy, supra note 311, at 32.

314. See infra notes 315-17 and accompanying text.

315. See supra note 18 and accompanying text.

316. Reppy, supra note 311, at 30-31.

317. N.C. Gen. Stat. § 39-13.6 (1984) (emphasis added).

318. See supra note 18 and accompanying text.

319. See infra notes 328-29 and accompanying text.

320. See infra notes 321-26 and accompanying text.

321. Plaintiff's Opposition, supra note 184, at 21a.

322. Id. (citing Bloomfield v. Brown, 25 A.2d 354 (R.I. 1942); 41 C.J.S. Husband & Wife § 34 (1991)).

323. See supra notes 177-83 and accompanying text.

324. Appellant's Brief at 19, Coraccio (92-P-0175).

325. Plaintiff's Opposition, supra note 184, at 21a.

326. Id. Nancy Coraccio also urged the court to interpret the statute according to its legislative purpose and intended remedy, namely the equalization of spousal rights by precluding the husband's sole control. Appellant's Brief at 12, Coraccio (92-P-0175) (citing Quincy City Hosp. v. Rate Setting Comm'n, 406 Mass. 431, 442, 548 N.E.2d 869, 878-79 (1990)).

327. Coraccio, 415 Mass. at 152, 612 N.E.2d at 654.

328. Id. It appears that the SJC followed the rule of statutory construction which states that a court cannot interpret a statute beyond its text. Carl Llewellyn, The Common Law Tradition, Deciding Appeals 522 (1960).

329. See infra notes 330-75 and accompanying text.

330. Sawada v. Endo, 561 P.2d 1291, 1296-97 (Haw. 1977). The home is often acquired by the joint efforts and resources of husband and wife, and, as such, the interests of each should be protected from the independent acts of one which could work to the other spouse's disadvantage. Duffly, supra note 49, at 211. "`When the husband and wife have thus together acquired an unincumbered [sic] title to real estate they have laid up treasures, where, without their concerted action, neither moth nor rust, nor thieves, nor creditors, nor anything else but death or tax gatherer can divest them.'" Id. at 211 n.44 (quoting Way v. Root, 140 N.W. 577, 580 (Mich. 1913)).

331. Johnston, supra note 11, at 1085.

332. See supra note 9 for a definition of "alienate."

333. See 4A Powell & Rohan, supra note 4, ¶ 620[4]. These states include Delaware (Citizens Sav. Bank v. Astrin, 61 A.2d 419 (Del. Super. Ct. 1948)); District of Columbia (Estate of Wall v. Preston, 440 F.2d 215 (D.C. Cir. 1971)); Florida (Hunt v. Covington, 200 So. 76 (Fla. 1941)); Hawaii (Sawada v. Endo, 561 P.2d 1291 (Haw. 1977)); Indiana (Myler v. Myler, 210 N.E.2d 446 (Ind. App. 1965)); Maryland (Watterson v. Edgerly, 388 A.2d 934 (Md. Ct. Spec. App. 1978)); Michigan (Cole v. Cardoza, 441 F.2d 1337 (6th Cir. 1971)); Missouri (Hanebrink v. Tower Grove Bank & Trust Co., 321 S.W.2d 524 (Mo. Ct. App. 1959)); North Carolina (Hodge v. Hodge, 183 S.E.2d 800 (N.C. Ct. App. 1971) cert. denied, 184 S.E.2d 884 (1971)); Pennsylvania (Stauffer v. Stauffer, 351 A.2d 236 (Pa. 1976)); Rhode Island (Cull v. Vadnais, 406 A.2d 1241 (R.I. 1979)); Vermont (Lowell v. Lowell, 419 A.2d 321 (Vt. 1980)); Virginia (In re Bishop, 482 F.2d 381 (4th Cir. 1973)); and Wyoming (Ward Terry and Co. v. Hensen, 297 P.2d 213 (Wyo. 1956)). The rationale for this position was expressed in In re Giant Portland Cement Co., 21 A.2d 697 (Del. Ch. 1941), a case in which the court voided a husband's unilateral transaction in entirety properties without his wife's consent. Id. The court in In re Giant Portland reasoned that "as between husband and wife, there is but one owner; and that is neither one or the other, but both together." Id. at 703 (citing Heitz v. Sayers, 121 A. 225 (Del. Super. Ct. 1923); Carlister v. Parker, 188 A. 67 (Del. Super. Ct. 1936); Davis v. Clark, 26 Ind. 424 (1866)).

334. 4A Powell & Rohan, supra note 4, ¶ 620[4]. There are two general rationales for holding this position. 4 Thompson, supra note 5, § 33.07(e). The first rationale is that both spouses must be indebted to the creditor before the property may be encumbered, in accordance with the fictional unity of the husband and wife as one person. 4 id. The second rationale holds that because both tenants have equal rights in the property, it is unfair to encumber the interests of one spouse with the debts of the other. 4 id. As the court in Fairclaw v. Forrest, 130 F.2d 829, 833 (D.C. Ct. App.), cert. denied, 318 U.S. 756 (1942) stated, the limitations of one spouse's ability to alienate or encumber are designed "to protect the rights of the other spouse, not to create a bulwark before the alienating one against his [or her] own improvidence. When he [or she] acquires full power over the property by survivorship he [or she] may do as he [or she] pleases with it."

335. See infra notes 337-71 and accompanying text. The issue appears to be not as widely litigated as the alienation issue.

336. See infra notes 339-70 and accompanying text.

337. See infra notes 338-40 and accompanying text.

338. Central Nat'l Bank v. Fitzwilliam, 465 N.E.2d 408 (Ohio 1984) (superseded by statute as stated in In re Cline, 164 B.R. 592 (Bankr. S.D. Ohio 1994); see also infra note 340 and accompanying text.

339. Id. at 411.

340. Id. at 410-11. But see In re Cline, 164 B.R. 592, 594 (Bankr. S.D. Ohio 1994) (noting that while the creditor of one spouse holding an interest in a pre-1985 tenancy by the entirety could not reach his or her interest, the subsequent enactment of a new statutory survivorship tenancy created this remedy). In 1985, the Ohio Legislature enacted §§ 5302.20 and 5302.21 and amended § 5302.17 of the Ohio Revised Code. In re Cline, 164 B.R. at 594. Under § 5302.20(C)(4), a survivorship tenant's interest can be reached by his or her creditor. In re Cline, 164 B.R. at 594. After 1985, a tenancy by the entirety, like the one in Central Bank, could not be created in Ohio. Id. However, tenancies by the entirety created prior to 1985 are, due to legislative intent, controlled by the old law. Id.; see also McLean v. United States, 224 F. Supp. 726 (E.D. Mich. 1963).

341. See infra notes 342-45 and accompanying text.

342. Bellow Falls Trust Co. v. Gibbs, 534 A.2d 210 (Vt. 1987).

343. Id. at 211; see also Vt. Stat. Ann. tit. 27, § 141(b) (1989); Vt. Stat. Ann. tit. 1, § 175 (1989). Title 27, § 141(b) states that "[when] a mortgagee takes an accruing mortgage, the only debt which shall be secured thereby or become a lien upon the property . . . shall be the debt described in the mortgage." Vt. Stat. Ann. tit. 27, § 141(b) (1989); see also Vt. Stat. Ann. tit. 1, § 175 (1989) ("Words importing the singular number may extend and be applied to more than one person or thing; words importing the plural number may be applied as if singular and words importing the masculine may extend and be applied to persons of the feminine gender.").

344. Gibbs, 534 A.2d at 211 ("In Vermont, tenants by the entirety are viewed as being individually vested, under a legal fiction, with title to the whole estate." (citations omitted)).

345. Id.

346. See infra notes 347-49 and accompanying text; see also Steigler v. Insurance Co. of N. Am., 384 A.2d 398, 400 (Del. Super. Ct. 1978) ("[T]he interest of neither . . . can be sold, attached or liened `except by the joint act of both . . . .'" (quoting Heitz v. Sayers, 121 A. 225 (Del. Super Ct. 1923))); Arbesman v. Winer, 468 A.2d 633, 637 (Md. Ct. App. 1988) ("[N]either . . . may lease, dispose of or encumber land . . . without the consent of the other."); Murray v. Sullivan, 376 So. 2d 886, 889 (Fla. Dist. Ct. App. 1979) (noting that spouses are vested "as one person, [and] neither spouse can sell, forfeit, or encumber any part . . . without the consent of the other").

347. Colorado Nat'l Bank v. Miles, 711 P.2d 390 (Wyo. 1985).

348. Id. at 395. In Colorado Nat'l Bank, the husband alone took out mortgages on residential and service station properties, both of which were held by the entirety. Id. at 392. He did so without his wife's consent. Id. at 394. Evidence showed that his wife had not signed the mortgages, ratified them in any way, or intended that her husband act as her agent during the transactions. Id. at 395.

349. Id. at 393 (quoting Ward Terry & Co. v. Hensen, 297 P.2d 213, 219-20 (Wyo. 1956)); see also Talbot v. United States, 850 F. Supp. 969 (D. Wyo. 1994) (holding that a federal tax lien could never attach since neither spouse had an independent interest). The United States Supreme Court has not ruled on the issue of "whether a federal tax lien based upon the failure of one spouse to pay taxes attaches to property held by both spouses as tenants by the entireties." Id. at 974. The Court did address a similar issue regarding a homestead estate in United States v. Rodgers, 461 U.S. 677 (1983). In allowing the lien, the five-justice majority distinguished the homestead form of property holding from a tenancy by the entirety. Rodgers, 461 U.S. at 702-03 n.31. The Court found, under homestead principles, that each spouse (rather than neither) had an independent interest to which a lien might attach. Id.

350. See infra notes 351-56 and accompanying text.

351. Mitchell v. Wilmington Trust Co., 449 A.2d 1055 (Del. Ch. 1982).

352. Id. at 1058. In Mitchell, a husband executed a mortgage to Wilmington Trust Company to secure a note of $18,000. Id. at 1056. He brought a woman other than his wife to the bank to execute the documents. Id. When the loan became delinquent, Mrs. Mitchell, the wife, received notice from the bank informing her of the situation. Id. She, in turn, informed the bank of the forgery. Id.

353. Inchoate means "[i]mperfect; partial; unfinished; begun, but not completed." Black's Law Dictionary 761 (6th ed. 1990).

354. Mitchell, 449 A.2d at 1058-59.

355. Id. at 1059.

356. Id.

357. See infra notes 358-71 and accompanying text.

358. Beneficial Mortgage Co. of Indiana v. Powers, 550 N.E.2d 793 (Ind. Ct. App. 1990).

359. Id. at 794.

360. Id. at 795.

361. Id. at 796.

362. Id. Ratification is defined as "`the adoption of that which was done for and in the name of another without authority.'" Id. (quoting State ex rel. Guaranty Bldg. & Loan Co. v. Wiley, 196 N.E. 153, 154 (Ind. Ct. App. 1935)). "A principal's knowledge of all material facts is indispensable to ratification of an agent's unauthorized acts." Allegheny Mut. Casualty Co. v. Franklin, 513 N.E.2d 658, 659 (Ind. App. Dist. 1987). A ratification cannot occur unless the act was performed for or on behalf of another person. Beneficial, 550 N.E.2d at 796 (citing Bryan v. Pommert, 37 N.E.2d 720 (Ind. Ct. App. 1941)). A ratification may occur through silence or acceptance of another's unauthorized act. Id. (citing Wright v. State, 363 N.E.2d 1221 (Ind. 1977)). In the instant case, the court found that there was insufficient evidence to prove that the wife had ratified the mortgages. Id.

363. Beneficial, 550 N.E.2d at 796. An agency relationship is "between two persons, by agreement or otherwise, where one (the agent) may act on behalf of the other (the principal) and bind the principal by words or actions." Black's Law Dictionary 62 (6th ed. 1990). Agency, however, is not required for ratification to occur. Beneficial, 550 N.E.2d at 796; see also Zukowski v. Dunton, 650 F.2d 30 (4th Cir. 1981) (noting that agency is not necessarily established by the marital relationship but can be supported by other facts and circumstances); DeCoatsworth v. Jones, 607 A.2d 1094, 1099-1100 (Pa. Super. Ct. 1992) (holding that presumption exists that either spouse in a tenancy by the entirety can act for both without authorization so long as the action benefits both and was done in good faith); Leonard v. Counts, 272 S.E.2d 190 (Va. 1980) (holding that presumption of agency exists in tenancy by the entirety); Austin & Bass Builders, Inc., v. Lewis, 359 S.W.2d 711 (Mo. 1962) (holding that husband may be charged as his wife's agent if it can be shown that wife empowered him to act on her behalf or if she otherwise ratifies his actions).

364. Beneficial, 550 N.E.2d at 796. No evidence was presented in the lower court to show any extravagant spending by the wife as a result of the unauthorized transaction. Id.; see also Miller v. Benjamin Coal Co., 625 A.2d 66 (Pa. Super. Ct. 1993) (holding that either spouse can contract for improvements to entirety property so long as the contract benefits both); Murray v. Sullivan, 376 So. 2d 886 (Fla. Dist. Ct. App. 1979) (holding that alienation may be made by one spouse with authority given to act as agent so long as there is clear and convincing evidence that the transfer does not negatively affect the interest of the other spouse).

365. Beneficial, 550 N.E.2d at 796-97. On four separate occasions, the husband alone sought additional mortgages on the property, each time making excuses for his wife's absence. Id. at 797. The bank allowed him to take the mortgage documents home so that his wife could sign them. Id. Each time the husband returned with the documents allegedly signed by his wife and acknowledged by a notary. Id. In view of the suspiciousness of the husband's behavior, the court determined that the bank could have investigated the situations which had caused the loss and, therefore, had assumed the risk of such loss. Id. at 798.

366. Id. at 797. The bank had four opportunities to find out whether the wife had consented to the additional mortgages, yet the bank made no such inquiries. Id.

367. Id. at 795-96.

368. Id. at 796.

369. Id. at 797.

370. Beneficial, 550 N.E.2d at 797.

371. Id.

372. See supra notes 338-71 and accompanying text.

373. See supra notes 346-49.

374. See supra notes 351-56.

375. See supra notes 358-71. Under Massachusetts law, "the `mere relation[ship] of husband and wife is not sufficient to show that one spouse is acting as the agent of another.'" Fennell v. Wyzik, 12 Mass. App. Ct. 909, 910, 422 N.E.2d 1387, 1389 (1981) (alteration in original) (quoting DelBianco v. Boston Edison Co., 338 Mass. 657, 659, 156 N.E.2d 683, 686 (1959)).

376. See supra notes 240-41 and accompanying text.

377. See supra notes 91-93 and accompanying text.

378. Klein, 503 N.E.2d at 499. New York law permits creditors of one spouse to execute on that spouse's interest. Id. He or she "steps into the shoes of" the debtor spouse, becoming a tenant in common with the nondebtor tenant. Id. The rights of creditors are essentially those of the debtor, the rights of "shared possession and ownership subject to the original cotenants' reciprocal rights of survivorship." Id.

379. Coraccio, 415 Mass. at 152, 612 N.E.2d at 654.

380. See infra notes 381-84 and accompanying text.

381. Klein, 503 N.E.2d at 493; see also Law of Apr. 7, 1848, ch. 200, §§ 1, 2, New York Laws 307 (now codified at N.Y. Dom. Rel. Law, § 50 (1979)):

The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of the husband; but shall be her sole and separate property as if she were a single female except so far as the same be liable for the debts of her husband heretofore contracted.

Id.

382. Klein, 503 N.E.2d at 498; see also Hiles v. Fisher, 39 N.E. 337 (N.Y. 1895).

383. Klein, 503 N.E.2d at 498.

384. Id. at 499; see also Freda v. Commercial Trust Co. of N.J., 570 A.2d 409 (N.J. 1990); King v. Greene, 153 A.2d 49 (N.J. 1959); Sanderson v. Heffington, 757 P.2d 866 (Or. Ct. App. 1988).

385. U.S. Department of Commerce, Statistical Abstract of the U.S. 429, chart 655 (114th ed. 1994).

386. Id.

387. Id.

388. Id. at 474, chart 725.

389. Id.

390. U.S. Department of Commerce, supra note 385, at 429, chart 665.

391. See supra notes 385-90 and accompanying text; see also infra note 392 and accompanying text.

392. George E. Osborne et al. Real Estate Finance Law 646 (1979). As part of the process of underwriting a mortgage, a lender evaluates several factors in determining the risk of nonpayment or loss. Id. Factors include the credit history of the borrower in addition to his or her employment and income. Id.

393. See infra note 394 and accompanying text.

394. This argument was made in criticism of the Texas community property scheme which had allowed sex-neutral management of marital property according to source (who paid for it). So long as husbands had more earnings than wives, husbands enjoyed more benefits under the Texas system. Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 946-48 (1971).

395. Lavien & Mencher, supra note 118, at 175.

396. Id.

397. Id.

398. Id.

399. Sawada v. Endo, 561 P.2d 1291 (Haw. 1977).

400. Id. at 1297.

401. Id. at 1296.

402. Id. at 1297 (second alteration in original) (citing Fairclaw v. Forrest, 130 F.2d 829, 833 (D.C. Cir.), cert. denied, 318 U.S. 756 (1942)).

403. Id.

404. Sawada, 561 P.2d at 1297.

405. Id.

406. Id. at 1296 (citing Hurd v. Hughes, 109 A. 418 (Del. Ch. 1920)).

407. Id. (quoting Hughes, 109 A. at 420).

408. Id. at 1296-97 (quoting Hughes, 109 A. at 420).

409. Sawada, 561 P.2d at 1297.

410. See infra notes 411-18 and accompanying text.

411. Glendon, supra note 104, at 60.

412. Huber, supra note 51, at 206. Professor Huber categorized the rights of creditors and spouses in a tenancy by the entirety according to four rules: the common law rule, the all interests reachable rule, the no interests reachable rule, and the right of survivorship rule. See id. at 200-05.

413. Id.

414. See supra notes 304-05 and accompanying text.

415. See supra notes 270-71 and accompanying text.

416. See supra notes 270, 280 and accompanying text.

417. See supra notes 279-81 and accompanying text.

418. See supra notes 272, 304-05 and accompanying text.

419. Glendon, supra note 104, at 61.

420. Id.

421. The homestead exemption is a statutory right to exempt a designated amount of the value of a principal residence from execution by creditors. Lavien & Mencher, supra note 118, at 176-77.

422. Huber, supra note 51, at 207.

423. Lavien & Mencher, supra note 118, at 176-77.

424. Mass. Gen. L. ch. 188, § 1 (Supp. 1995).

425. Barry R. LaCasse & Daniel A. Guglielmo, Is Homesteading of Land in Trust Under Attack?, Mass. Law. Wkly., Apr. 25, 1994, Real Estate, at 4.

426. Mass. Gen. L. ch. 188, § 1 (Supp. 1995) reads:

An estate of homestead to the extent of one hundred thousand dollars in the land and buildings may be acquired pursuant to this chapter by an owner or owners of a home or one or all who rightfully possess the premise by lease or otherwise and who occupy or intend to occupy said home as a principal residence. Said estate shall be exempt from the laws of conveyance, descent, devise, attachment, levy on execution and sale for payment of debts or legacies except in the following cases:

(1) sale for taxes;

(2) for a debt contracted prior to the acquisition of said estate of homestead;

(3) for a debt contracted for the purchase of said home;

(4) upon an execution issued from the probate court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of the spouse or minor child;

(5) where buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand.

For the purposes of this chapter, an owner of a home shall include a sole owner, joint tenant, tenant by the entirety or tenant in common; provided, that only one owner may acquire an estate of homestead in any such home for the benefit of . . . [the] family; and provided further, that an estate of homestead may be acquired on only one principal residence for the benefit of a family. For the purposes of this chapter, the word "family" shall include either a parent and child or children, a husband and wife and their children, if any, or a sole owner. It is not clear if the $100,000.00 exemption applies to the value of the estate or to the equity in it. LaCasse & Guglielmo, supra note 425, Real Estate, at 7 n.3. For people sixty-two years old or older or disabled, the exemption increases to $200,000.00. Id. The Massachusetts Senate recently approved two bills to expand the homestead exemption. Id. Under Senate bill 756, persons fifty-five and older would qualify for the $200,000.00 exemption, while Senate bill 757 would increase the exemption to $200,000.00 for everyone. LaCasse & Guglielmo, supra note 425, Real Estate, at 7 n.3 (citing Mass. Gen. L. ch. 188, § 1 (Supp. 1995)).

427. LaCasse & Guglielmo, supra note 425, Real Estate, at 4.

428. Id.

429. See supra note 272 and accompanying text.

430. LaCasse & Guglielmo, supra note 425, Real Estate, at 4. A person may declare a homestead for the cost of its drafting and a filing fee of $10.30. Id.

431. Lavien & Mencher, supra note 118, at 177.

432. Id. at 182.

433. 4 Thompson, supra note 5, § 37.06(a).

434. See supra notes 234-40 and accompanying text.

435. See supra notes 222-23, 376-77 and accompanying text.

436. Coraccio, 415 Mass. at 151, 612 N.E.2d at 654; see also supra text accompanying note 228.

437. Coraccio, 415 Mass. at 152, 612 N.E.2d at 654; see also supra notes 18, 184 and accompanying text.

438. See generally Record, Coraccio (No. 92-P-0175).

439. See generally Appellant's Brief, Coraccio (No. 92-P-0175); Appellee's Brief, Coraccio (No. 92-P-0175).

440. See supra note 208 and accompanying text.

441. Mass. Gen. L. ch. 209, § 1.

442. Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law § 11.2 (3d ed. 1994). "`Equity'" is the "excess value above the mortgage debt." Id. The loan-to-equity ratio is an important indicator of the risk of default. Id.

443. Id. At foreclosure, debts are paid according to order of priority. Id. § 7.31.

444. See supra notes 275-78.

445. Cole v. Cardoza, 441 F.2d 1337, 1343-44 (6th Cir. 1971). The Cardoza court found that a tax lien attached to a tenancy by the entirety property and recorded on public land records was analogous to a cloud upon title. Id. The lien would make a purchaser or mortgagee reluctant to buy or finance the property. Id. at 1343. As a result, the Cardoza court held that if the lien had the slightest tendency to stand in the way of the nondebtor spouse's "full and free exercise of ownership," it should be nullified. Id. at 1343-44.

446. See supra notes 405-05 and accompanying text.

447. N.C. Gen. Stat. § 39-13.6 (1984) (emphasis added). See supra notes 314-19 and accompanying text.

448. See supra notes 351-56 and accompanying text.

449. See supra notes 347-49 and accompanying text.

450. See supra notes 358-71 and accompanying text.

451. According to William Hovey:

Although most married buyers acquire title to their homes as tenants by the entirety and understand that such form of ownership has a survivorship feature, I am not convinced that they are aware of all--or even most--of the ramifications of being such tenants. Moreover, since I have been remiss in explaining to my purchasing clients what this form of ownership really means, I will take this opportunity to atone for this sin by submitting herewith a summary suitable for handing out to prospective tenants by the entirety at or before the next residential closing.Hovey, supra note 305, at 39.

* To my husband, Alan, whose understanding and support made the journey of law school possible. And to my children, Nathan and Aliza, whose light, love, and laughter eased the way.