Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-093-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION 13-02347-BLS1 SIEW-MEY TAM & another1 1 Mary Jane Raymond 2 d/b/a The Schochet Companies 3 Richard Henken, Peter Lewis, and David Flad 4 The individual defendants are alleged to be statutorily liable for FMC’sWage Act violations. 5 The defendants have also filed a separate motion for summary judgment on the claims asserted by Tam. That motion remains pendingand is not addressed in this Memorandum of Decision. vs. FEDERAL MANAGEMENT CO., INC.2 & others3 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF MARY JANE RAYMOND Plaintiffs Siew-Mey Tam and Mary Jane Raymond were formerly employed by Federal Management Co., Inc. (FMC) as property managers. Following the termination oftheiremployment, they brought this action against FMC, Richard Henken, David Flad, and Peter Lewis4alleging that they were misclassified as exempt employees under G.L. c. 151, § 1A and FMC failed to pay them for overtime hours worked. The case is presently before the Court on the defendants’ motion for summary judgment dismissingthe claims assertedagainst themby Raymond.5 For the following reasons, the motion is ALLOWED. BACKGROUND The following facts are undisputed. FMC is a professional management company located in Braintree, Massachusetts. The 2 company manages commercial, retail, and residential properties, including low and moderate subsidized housing projects. One of the properties FMC manages is Weldon House, a 105-unit, low income apartment building in Greenfield, Massachusetts. From February 14, 1990 to March 3, 2011, Raymond worked at Weldon House as a property manager. FMC classifiedand paid Raymond as a salaried, exempt employee. She received a fixed weekly salary regardless of the number of hours that she worked during any week.FMC terminated Raymond’s employment on March 3, 2011. In June 2013, Tam, anotherFMCproperty manager whoworked at a different property andhad also beenterminated, filed a complaint in Superior Court alleging violationsof G. L. c. 151, §1A, the statute governing overtimepay. She brought her claimon behalf of herself and all similarly situated FMC property managers. More than a year later, the Court allowed a motion to substitute Tam’s complaintwith another complaint. The substitute complaint added Raymond as anamedplaintiff. Itwaspledfifteen counts:seven counts asserted claims on behalf ofTam and a putative class of similarly situated plaintiffsand eight counts were individual claims asserted by Raymond. In response, the defendants fileda motion to dismiss the complaint, which wasallowed in part and denied in part,in June 2015. The Court granted the motion as to Counts III-VIII and X-XIV but denied it as to Counts I, II, IX, and XV. Following that order, Raymond’s remaining claimsare her individual claims for overtime and wages under G. L. c. 151, § 1A and G. L. c. 149, § 148 (Counts I […]
Federal National Mortgage Association v. Gordon, et al. (Lawyers Weekly No. 11-060-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-441 Appeals Court FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. HEATHER GORDON & another.[1] No. 15-P-441. Suffolk. March 8, 2016. – May 17, 2017. Present: Hanlon, Sullivan, & Massing, JJ. Trespass. Real Property, Trespass, Mortgage, Lease. Mortgage, Foreclosure. Landlord and Tenant, Control of premises. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Practice, Civil, Summary judgment, Summary process. Civil action commenced in the City of Boston Division of the Housing Court Department on June 24, 2013. The case was heard by MaryLou Muirhead, J., on a motion for summary judgment. Thomas B. Vawter for the defendants. Danielle C. Gaudreau (Thomas J. Santolucito also present) for the plaintiff. HANLON, J. The defendants in this trespass action, Heather Gordon and her granddaughter, Kaire Holman, challenge the validity of a judgment for possession entered by the Housing Court in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on its motion for summary judgment. Fannie Mae claims ownership, through foreclosure, of the residential condominium at issue, known as Unit 2 at 7 Valentine Street, in the Roxbury section of Boston (the property). Gordon claims that she and Holman occupy the property pursuant to a lease from Carolyn Grant, who held record title to the condominium as a joint tenant with Gilbert R. Emery prior to the foreclosure. The lease on which Gordon and Holman rely, however, is dated after both (i) the date of the foreclosure, and (ii) the date on which Fannie Mae began a summary process action against Emery, Grant, and another occupant[2] to obtain possession of the property. When Fannie Mae learned that Gordon and others had moved into the property as ostensible lessees, Fannie Mae brought a new action (separate from the summary process case) for common law trespass, which is the case now before us.[3] After review, we reverse the final judgment, holding as follows: (i) the Housing Court has jurisdiction pursuant to G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching of Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288 (1992) (Dime Savings), with respect to whether G. L. c. 184, § 18, bars trespass actions by postforeclosure owners against tenants with actual possession, applies with equal force in the circumstances of this case; and (iii) the summary judgment record does […]
Federal National Mortgage Association v. Marroquin, et al. (Lawyers Weekly No. 10-074-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12139 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. ELVITRIA M. MARROQUIN & others.[1] Essex. January 9, 2017. – May 11, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Notice, Foreclosure of mortgage. Summary process. Complaint filed in the Northeast Division of the Housing Court Department on June 18, 2012. The case was heard by David D. Kerman, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Cody J. Cocanig for the plaintiff. Dayne Lee (Eloise P. Lawrence also present) for Elvitria M. Marroquin. Joshua T. Gutierrez, Daniel D. Bahls, & Andrew S. Webman, for Lewis R. Fleischner & another, amici curiae, submitted a brief. GANTS, C.J. In Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 227, 232 (2015), we held that a foreclosure by statutory power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless the notice of default strictly complies with paragraph 22 of the standard mortgage, which informs the mortgagor of, among other things, the action required to cure the default, and the right of the mortgagor to bring a court action to challenge the existence of a default or to present any defense to acceleration and foreclosure. We applied this holding to the parties in Pinti but concluded that our decision “should be given prospective effect only.” Id. at 243. We therefore declared that the decision “will apply to mortgage foreclosure sales of properties that are the subject of a mortgage containing paragraph 22 or its equivalent and for which the notice of default required by paragraph 22 is sent after the date of this opinion,” which was issued on July 17, 2015. Id. We did not reach the question whether our holding should be applied to any case pending in the trial court or on appeal. Id. at 243 n.25. We reach that question here, and conclude that the Pinti decision applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17, 2015. Because we conclude that the defendants timely and fairly raised this issue in the Housing Court before that date, and because the notice of default did not strictly […]
Tam, et al. v. Federal Management Co., Inc., et al. (Lawyers Weekly No. 12-154-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2013-2347 BLS 1 SIEW-MEY TAM, on behalf of herself and others similarly situated, and MARY JANE RAYMOND vs. FEDERAL MANAGEMENT CO., INC., RICHARD HENKEN, DAVID FLAD AND PETER LEWIS MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR DECERTIFICATION OF CLASS ACTION On December 16, 2015, this court (Brieger, J.) allowed a motion to certify a class of current and former employees of Federal Management Co., Inc. (“Federal”) alleging the failure of Federal to pay them for overtime hours worked. The class of employees certified was “all current and former Property Managers” employed by Federal from January 1, 2005, to the present.1 The Court carefully reviewed each of the prerequisites for class certification under Mass. R. Civ. P. 23 and found that they were satisfied. Among other findings, the Court concluded that on the pre-discovery record plaintiffs, Siew-Mey Tam and Mary Jane Raymond, were adequate representatives of a class of approximately 40 current or former property 1 Memorandum of Decision and Order on Plaintiffs’ Motion to Certify a Class (“Class Cert Order”). The Class Cert Order did not expressly address the dates inclusive for the putative class. Instead, the court stated that plaintiffs’ motion for class certification is “ALLOWED.” In plaintiffs’ motion for class certification, the time period for the class sought by plaintiffs was “March 1, 2000, to the present.” However, in plaintiffs’ Opposition to the present motion for decertification, plaintiffs assert that the certified class time period is from “January 1, 2005, to the present.” Opposition, p. 2. Accordingly, I adopt plaintiffs’ assertion and find that the presently certified class period is from January 1, 2005 to the present. 1 managers. Defendants took an interlocutory appeal of the class certification order. The Appeals Court affirmed. Following the certification, discovery by both sides ensued, including the depositions of the named plaintiffs. Federal, and the individual defendants, now move to decertify the class based, principally, on the ground that discovery has shown that Tam and Raymond are not adequate class representatives. Defendants also take the opportunity to ask the Court to re-visit all of the other criteria for class certification. For the reasons stated below, the motion will be allowed. BACKGROUND In the Class Cert Order, Judge Brieger noted that the facts of this case are relatively straightforward and undisputed. Federal manages seventeen residential, commercial and retail properties, providing building operations, financial administration, leasing and regulatory compliance services. For each property Federal employs a property manager who may have anywhere from two to seventeen employees reporting to her/him. Raymond was employed by Federal as a property manager from February 1990 to March 2011. Tam was employed by Federal as a property manager […]
Federal National Mortgage Association v. Rego, et al. (Lawyers Weekly No. 10-069-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11927 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO & another.[1] Essex. November 3, 2015. – May 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Summary Process, Appeal. Mortgage, Foreclosure. Real Property, Mortgage. Practice, Civil, Summary process, Counterclaim and cross-claim. Consumer Protection Act, Unfair act or practice. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on August 31, 2012. Motions for partial summary judgment were heard by Timothy F. Sullivan, J., and a motion to dismiss counterclaims was also heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Weinhold for the defendants. Richard E. Briansky for the plaintiff. Thomas J. Santolucito & Danielle C. Gaudreau, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Daniel Bahls & Amanda Winalski, for Community Legal Aid, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, Federal National Mortgage Association (Fannie Mae), filed a complaint for summary process in the Housing Court to establish its right to possession of a house that had been owned by Edward M. Rego and Emanuela R. Rego (Regos) that Fannie Mae purchased at a foreclosure sale. In response, the Regos argued that the foreclosure sale conducted by the bank that held the mortgage on the property, GMAC Mortgage, LLC (GMAC), was void because GMAC’s attorneys had not been authorized by a prior writing to undertake the actions set forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an equitable defense and counterclaims pursuant to G. L. c. 93A. A Housing Court judge allowed Fannie Mae’s motion for summary judgment “as to possession only,” and scheduled a bench trial on the Regos’ counterclaims under G. L. c. 93A. Thereafter, Fannie Mae moved to dismiss the counterclaims for lack of subject matter jurisdiction; that motion was allowed. Final judgment for possession entered in favor of Fannie Mae, and the Regos appealed. We transferred the case to this court on our own motion. We are confronted with two issues in this appeal.[2] First, we consider the meaning of the language in § 14, authorizing “the attorney duly authorized by a writing under seal” to perform acts required by the statutory power of […]
Shea v. Federal National Mortgage Association, et al. (Lawyers Weekly No. 11-012-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1630 Appeals Court PAUL SHEA vs. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.[1] No. 13-P-1630. February 18, 2015. Real Property, Mortgage. Assignment. Mortgage, Real estate, Assignment, Foreclosure. Practice, Civil, Motion to dismiss. At issue is whether a judge properly dismissed[2] the plaintiff’s claims[3] attacking the validity of a mortgage foreclosure to which Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), does not apply.[4] The plaintiff contends that the foreclosure was void because the mortgage was not validly assigned to OneWest Bank FSB (OneWest), the foreclosing mortgagee. He argues that the assignment was invalid because (1) the assignor never held the underlying note, and (2) the assignment was not specifically authorized by the owner of the debt.[5] We affirm.[6] Background.[7] The plaintiff (and another person who is not a party to this case) purchased the property at issue in April 2005. In 2007, as part of a refinancing of the property, the plaintiff granted a mortgage to IndyMac Bank, FSB (IndyMac) to secure a loan in the amount of $ 281,600. In pertinent part, the 2007 mortgage contained the following provisions. The mortgage defines IndyMac, which is the owner of the debt, as the “Lender.” The mortgage defines Mortgage Electronic Registration System, Inc. (MERS), as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument” (emphasis in original). A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the Lender. That section continues as follows: “Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . . . . . “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing […]
Tsarnaev Indicted on Federal Charges, Could Face Death Penalty
Dzhokar Tsarnaev, one of the men who allegedly killed four people and injured hundreds of others in the Boston marathon bombing and the days afterward, was indicted on 30 federal charges, including conspiracy to use weapon of mass destruction to cause deat South End Patch News
Tsarnaev Indicted on Federal Charges, Could Face Death Penalty
Dzhokar Tsarnaev, one of the men who allegedly killed four people and injured hundreds of others in the Boston marathon bombing and the days afterward, was indicted on 30 federal charges, including conspiracy to use weapon of mass destruction to cause deat South End Patch News
Tsarnaev Indicted on Federal Charges, Could Face Death Penalty
Dzhokhar Tsarnaev, one of the men who allegedly killed four people and injured hundreds of others in the Boston marathon bombing and the days afterward, was indicted on 30 federal charges, including conspiracy to use weapons of mass destruction, and he cou South End Patch News