HAROLD B. MURPHY, trustee,1
WACHOVIA BANK OF
DELAWARE, N.A., & another.2
Middlesex. November 12, 2014. – August 13, 2015.
Present: Kafker, Cohen, & Milkey, JJ.
COHEN, J. This case concerns the proper distribution of
surplus funds after a foreclosure sale initiated and conducted
by the holder of a second mortgage. After a jury-waived trial,
a judge of the Superior Court ruled that defendant Wachovia Bank
of Delaware, N.A. (Wachovia), erroneously distributed surplus
funds to the holder of the first mortgage, Wells Fargo Bank,
N.A. (Wells Fargo), instead of to the mortgagor, Nigel Thorpe.
The judge therefore ordered Wachovia to pay $178,626.61, plus
interest and costs, to the plaintiff, Harold B. Murphy, as
trustee of the bankruptcy estate of Thorpe (trustee). On
appeal, Wachovia argues that it was entitled to disburse the
funds to Wells Fargo, but even if it was not, it had valid
equitable defenses to the trustee’s claims.3 For the reasons
that follow, we affirm.