Posts tagged "Trust"

Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, et al. (Lawyers Weekly No. 10-014-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12327   Trustees of the Cambridge Point Condominium Trust  vs.  Cambridge Point, LLC, & others.[1]       Middlesex.     October 5, 2017. – January 19, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Condominiums, By-laws, Management, Common area.  Real Property, Condominium.  Public Policy.       Civil action commenced in the Superior Court Department on April 3, 2014.   A motion for partial summary judgment was heard by Rosalind H. Miller, J.; a motion for reconsideration was considered by her; and motions to dismiss were heard by Peter B. Krupp, J.   The Supreme Judicial Court granted an application for direct appellate review.     Edmund A. Allcock for the plaintiffs. John F. Gleavy for CDI Commercial Development, Inc., & another. David Aleksic, for Frank Fodera & another, was present but did not argue. David T. Keenan, for Anahid Mardiros, was present but did not argue. Henry A. Goodman & Ellen A. Shapiro, for Community Associations Institute, amicus curiae, submitted a brief. Cailin M. Burke, Julie B. Heinzelman, Diane R. Rubin, Thomas O. Moriarty, & Kimberly A. Bielan, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.     GANTS, C.J.  In this action, a condominium trust’s board of trustees has filed suit against the developers of the condominium for damages arising from various design and construction defects in the condominium’s common areas and facilities.  The condominium bylaws, however, provide that the trustees cannot bring any litigation involving the common areas and facilities against anyone other than a unit owner unless they first obtain the consent of at least eighty per cent of the unit owners.  The issue on appeal is whether this bylaw provision is void, either because it violates the Condominium Act (act), G. L. c. 183A, or because it contravenes public policy.  We conclude that it is void because it contravenes public policy.[2] Background.  In 2007, Cambridge Point, LLC, as the declarant of a predominantly residential forty-two-unit condominium in Cambridge, filed in the Middlesex South District registry of deeds a master deed, a declaration of trust, and the bylaws of the Cambridge Point Condominium Trust (trust).  The trust’s board of trustees (trustees) is responsible for administering the affairs of the trust.  Among the powers and duties committed to the trustees is the authority under § 1(o) of […]

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Posted by Massachusetts Legal Resources - January 19, 2018 at 11:29 pm

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Harris Acquisition Trust, et al. v. Botwinik, et al. (Lawyers Weekly No. 09-059-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-01214-BLS1 HARRIS ACQUISITION TRUST1 & others2 vs. DAN BOTWINIK & another3 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS This case presents a dispute between two investors regarding a real estate opportunity in Maine. Plaintiff, Jeffrey S. Baker, alleges various wrongdoings by defendant, Dan Botwinik. In his First Amended Complaint (FAC), Baker asserts relief under twelve (12) separate counts. The counts include claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, intentional and negligent misrepresentation, violation of G.L. c. 93A, negligence and conversion. Defendants move to dismiss under Mass. R. Civ. P. 12(b)(6) only two of those counts: Counts VII (violation of Chapter 93A) and VIII (negligence). For the reasons stated below, defendants’ motion to dismiss will be allowed, in part, and denied, in part. BACKGROUND The facts as revealed by the FAC, and the documents attached to the FAC, are as follows. 1 By its trustee Jeffrey S. Baker. 2 Salem Real Estate Investment, LLC; First Day Realty Trust, by its trustee Jeffrey S. Baker; and Jeffrey S. Baker. 3 Cougar Capital Management, Inc. Botwinik is engaged in the business of real estate investment, acquisition, and management related to commercial real estate throughout New England. Botwinik is the founder and principal of defendant, Cougar Capital Management, Inc., through which Botwinik operates. Cougar is, essentially, the alter ego of Botwinik, so the two defendants will be referred to collectively as “Botwinik” in this memorandum unless more specificity is required. Botwinik seeks investors to provide capital for real estate acquisition and development. In the spring of 2016, Botwinik had a contract to acquire a residential apartment building located at 25 Hartford Street, Rumford, Maine (Property). The Property was formerly a hotel. During April and May of 2016, Botwinik had numerous telephone conferences and meetings in Boston4 with Baker regarding a potential acquisition of the Property. Initially, Botwinik sought a $ 200,000 investment from Baker to assist in the acquisition of the Property. In exchange, Baker would receive equity in the project. Botwinik provided a written offering memorandum to Baker, which represented returns of up to 17% per annum on the investment. Botwinik also represented that he would secure additional financing to provide the remaining funds necessary for acquisition and construction. Baker represented that he had the financing lined up. Finally, Botwinik represented that he had the experience and expertise to develop the property. Baker agreed to invest $ 200,000 in the project in reliance upon Botwinik’s representations. Botwinik formed Maine Coon Management, LLC (MCM) to be the vehicle to hold title to the Property. The membership interests of […]

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Posted by Massachusetts Legal Resources - January 5, 2018 at 11:11 pm

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). 2 This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants. Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled […]

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Posted by Massachusetts Legal Resources - December 7, 2017 at 9:30 pm

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Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)

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   16-P-1711                                       Appeals Court   MONIKA M. RESSLER  vs.  DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & others.[2]     No. 16-P-1711.   Dukes.     October 4, 2017. – December 1, 2017.   Present:  Agnes, Sacks, & Lemire, JJ.     Mortgage, Foreclosure, Assignment.  Real Property, Mortgage.  Assignment.  Trust, Trustee’s authority.  Practice, Civil, Motion to dismiss, Attorney’s fees, Frivolous action.       Civil action commenced in the Superior Court Department on July 7, 2016.   A motion to dismiss was heard by Mitchell H. Kaplan, J.     Glenn F. Russell, Jr., for the plaintiff. Robert M. Mendillo for Deutsche Bank Trust Company Americas & another. Grace C. Ross, pro se, amicus curiae, submitted a brief.     SACKS, J.  The plaintiff Monika M. Ressler (the borrower) appeals a Superior Court judgment dismissing her complaint for declaratory and other relief based on her claim that the defendant Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in violation of a governing pooling and service agreement, making its foreclosure on her mortgage invalid.  Because the borrower’s various arguments are either squarely barred by precedent or border on the frivolous, we affirm.  Although we deny Deutsche Bank’s request that, as a sanction for a frivolous appeal, we award attorney’s fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court’s authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals.[3] Background.  We review the sufficiency of the borrower’s complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in her favor.  Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).  “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.”  Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).  In doing so, we consider, among other things, exhibits attached to the complaint.  Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In 2006 the borrower took a $ 500,000 mortgage loan from Lendia, Inc. (the lender), giving the lender a promissory note for that amount and a mortgage on her property in West Tisbury to secure […]

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Posted by Massachusetts Legal Resources - December 1, 2017 at 6:49 pm

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-034-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION FOR RECONSIDERATION OR CLARIFICATION On July 13, 2017, the parties were before this Court on the Plaintiffs’ Motion to Compel Discovery and the Defendants’ Motion for a Protective Order. Defendants argued that the discovery sought was beyond the scope of what was at issue in this lawsuit and that the plaintiffs’ requests were unduly burdensome and amounted to harassment. This Court denied the motion from the bench, with only a brief explanation of its reasons by way of a margin note. Plaintiffs now move to reconsider and/or clarify this Court’s earlier ruling. Although initially skeptical of this request, this Court is now convinced that clarification is indeed required. Although plaintiffs are not entitled to the broad discovery they had originally sought (which was unnecessary and unduly burdensome), this Court was wrong to deny any discovery sought by their Motion to Compel. It is also apparent that the parties may have interpreted that earlier order almost as if it were a dispositive motion and that the discovery ruling meant that certain parts of plaintiffs’ Complaint were not properly before this Court. This Court did not anticipate or intend that and now wishes to correct that misimpression. The 2 Motion to Reconsider is therefore ALLOWED, with the following offered by way of explanation. This is an action seeking to enforce a Conservation Restriction (CR) imposed on real property located in Duxbury, Massachusetts (the Premises). The parties to the CR are the plaintiffs Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the defendant Cedar Hill Retreat Center Inc., (Cedar Hill). In its Amended Complaint, 1 Wildlands Trust alleges that Cedar Hill is engaging in “commercial revenue generating activities…as well as other activities that are violative of the Conservation Restriction.” ¶ 7 of Amended Complaint; see also ¶48-50. In its Motion for a Protective Order (and again in opposing the Motion to Reconsider), Cedar Hill took the position that Wildlands Trust’s ability to complain of Cedar Hill’s activities on the Premises is far narrower – that is, that it is limited to a single event in September 8, 2012 when there was a wedding reception on the Premises. This did not involve a complaint that the Premises were being used to generate revenue. In denying the plaintiffs’ Motion to Compel, this Court was of the view that a single violation was enough to entitle the plaintiffs to the equitable relief they sought, so that discovery that went beyond the September […]

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Posted by Massachusetts Legal Resources - November 4, 2017 at 4:56 am

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Rockland Trust Company v. Langone (Lawyers Weekly No. 10-098-17)

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-12129   ROCKLAND TRUST COMPANY  vs.  ROBERT J. LANGONE.       Suffolk.     February 7, 2017. – June 1, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Counterclaim and cross-claim, Motion to dismiss.  District Court, Jurisdiction, One-trial system.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 6, 2016.   The case was considered by Spina, J.     Jason W. Morgan for the plaintiff. Dana Alan Curhan for the defendant.     LOWY, J.  The question before us is whether, pursuant to G. L. c. 218, §§ 19 and 19A, a District Court judge may grant a plaintiff’s motion to dismiss a compulsory counterclaim under Mass R. Civ. P. 12 (b) (10), as appearing in 450 Mass. 1403 (2008), because the counterclaim is reasonably likely to result in the recovery of more than $ 25,000.  We conclude that the judge may not. Background.  The dispute between the parties stems from two promissory notes executed in 1984 and 1987 to Rockland Trust Company (Rockland) from the Aunyx Corporation, of which the defendant, Robert Langone, was a former officer and principal owner.  Alleging that Langone was a guarantor for the notes, Rockland sued Langone in the District Court in 2003, after Aunyx defaulted.  Langone filed counterclaims asserting damages of $ 6,500.  Initially, Rockland prevailed, but, for reasons not relevant here, the judgment was later vacated in 2014. Subsequently, Langone brought an additional counterclaim, asserting damages of $ 110,000.  Citing rule 12 (b) (10), and G. L. c. 218, §§ 19 and 19A (b), Rockland moved to dismiss the counterclaim[1] arguing that the District Court could not proceed with a counterclaim in excess of $ 25,000.[2]  The judge denied the motion, concluding that she had discretion to retain the case.  Rockland appealed to a single justice of the county court under G. L. c. 211, § 3, who denied its petition without a hearing.  Rockland appealed to the full court. “Because the issue raised relates to the efficient administration of justice in the trial courts, we have elected to decide the case under our power of general superintendence, G. L. c. 211, § 3, second par.”  Sperounes v. Farese, 449 Mass. 800, 802 (2007).  We affirm the single justice’s denial of Rockland’s […]

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Posted by Massachusetts Legal Resources - June 2, 2017 at 7:38 am

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Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]

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Posted by Massachusetts Legal Resources - February 15, 2017 at 3:12 am

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Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]

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Posted by Massachusetts Legal Resources - February 13, 2017 at 10:35 pm

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Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)

  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-12075   SANDRO TURRA  vs.  DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2]     January 30, 2017.     Mortgage, Foreclosure.  Notice, Foreclosure of mortgage.  Real Property, Mortgage.     The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property.  A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3]  The appeal raises a single issue:  whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void.  We conclude, as did the trial court judge, that it does not, and we therefore affirm.   Background.  On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4]  The lender was Homecomings Financial, LLC.  On August 12, 2010, MERS assigned the mortgage to Deutsche Bank.  Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage.  Deutsche Bank subsequently foreclosed on the home on January 15, 2013.  In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court.  Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed.   In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C.  See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez).  In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that   “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]

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Posted by Massachusetts Legal Resources - January 30, 2017 at 6:41 pm

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 12-174-16)

-1- COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Premises). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the land, defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the land and the Grantor of the Conservation Restriction. Plaintiffs allege that the Foundation made a $ 3 million gift to Ballou Channing in exchange for Ballou Channing’s agreement to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). The case is now before this Court on the defendants’ motions to dismiss pursuant to Mass. R. Civ. P. 12(b) (1) and Mass. R. Civ. P. 12(b)(6). Ballou Channing moves to dismiss all -2- counts asserted against it; Cedar Hill moves to dismiss some but not all of the counts against it. The motions raise difficult questions, some of which would benefit from discovery and cannot be decided at this early stages in the case. Still, there are certain claims that are not supported by the facts alleged in the Complaint or the applicable law, and which must therefore be dismissed, for reasons set forth below. BACKGROUND The Complaint contains the following allegations which, for purposes of these motions, are assumed to be true. The Foundation is a private charitable foundation created by John and Cynthia Reed. The Reeds are abutters to the Premises, which consists of 12.23 acres of land. Ballou Channing is a nonprofit religious corporation organized pursuant to Chapter 180 of the General Laws. Ballou Channing acquired the Premises in 1980 through a Deed of Gift that imposed certain restrictions on its use. Located on the Premises are a building and improvements that have historically been known as the Cedar Hill Retreat Center. Ballou Channing would periodically permit the center to be used by its member congregations. In 2007, the Reeds learned that the restrictions imposed on the Premises through the Deed of Gift were to expire within the next couple of years. Thee Reeds wished to preserve the Premises in conformity with those original restrictions; negotiations with Ballou Channing […]

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Posted by Massachusetts Legal Resources - December 31, 2016 at 8:49 am

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