Citadel Realty, LLC v. Endeavor Capital North, LLC, et al. (Lawyers Weekly No. 11-033-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-735 Appeals Court CITADEL REALTY, LLC vs. ENDEAVOR CAPITAL NORTH, LLC, & others.[1] No. 16-P-735. Suffolk. November 7, 2017. – March 19, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Practice, Civil, Interlocutory appeal, Motion to dismiss, Declaratory proceeding. Lis Pendens. Declaratory Relief. Mortgage, Foreclosure, Discharge. Notice, Foreclosure of mortgage. Real Property, Mortgage. Civil action commenced in the Superior Court Department on January 29, 2016. A special motion to dismiss was heard by William F. Sullivan, J. Jonas A. Jacobson for the plaintiff. Scott K. DeMello (Rosemary A. Traini also present) for the defendants. WENDLANDT, J. This appeal presents occasion to clarify the scope of this court’s review of an interlocutory order denying a special motion to dismiss brought pursuant to G. L. c. 184, § 15, the lis pendens statute. Here, the defendants sought to dismiss the entire action, including (1) one claim supporting the memorandum of lis pendens and affecting title, and (2) other claims that were not the basis for the lis pendens. We hold that our review is limited to those portions of the interlocutory order supporting the memorandum of lis pendens. Citadel Realty, LLC (Citadel), filed a complaint in the Superior Court against the defendants, seeking to void the foreclosure sale of Citadel’s real property in the Dorchester section of Boston (property). In addition, Citadel sought damages and reformation of the underlying mortgages. Following the filing of its verified amended complaint, Citadel filed a motion for approval of a memorandum of lis pendens, pursuant to G. L. c. 184, § 15(b), which was allowed. The defendants filed a motion opposing the approval of the memorandum of lis pendens and seeking to dismiss the complaint, which was, in part, a special motion to dismiss pursuant to G. L. c. 184, § 15(c). The motion was denied. The defendants filed the present interlocutory appeal from the denial of their motion to dismiss, purporting to appeal the motion judge’s decision declining to dismiss both the claim supporting the lis pendens and affecting title, and the claims that did not support the lis pendens. Background. We set forth the facts from the verified pleadings and affidavits that were before the judge. G. L. c. 184, § 15(c). In 2011, Mario Lozano approached Endeavor Capital, LLC (Endeavor),[2] seeking a loan in connection with the property. […]
Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-044-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civ. No. 2015-3599-BLS2 ASHLEY SCHIEFER, COLLEEN McPHERSON, ELIZABETH BURNHAM, and REBECCA SHAAL, for themselves and on behalf of all others similarly situated, Plaintiffs vs. BAIN CAPITAL, LP, f/k/a BAIN CAPITAL, LLC, Defendant MEMORANDUM OF DECISION AND ORDER ON ASHLEY SCHIEFER’S APPLICATION FOR PRE-JUDGMENT INTEREST On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment (the Offer) made by defendant Bain Capital LP (Bain). The Offer included $ 80,000, reasonable attorney’s fees and costs, and prejudgment interest as determined by the Court. This Court has already made a determination as to the attorney’s fees. This Memorandum addresses the question of prejudgment interest. Although both parties agree as to the applicable rate (twelve percent), they disagree as to the date from which interest should be calculated. Section 6C applies to actions like this one based on contractual obligations. By its terms, the statute provides that that interest accrues ““from the date of the breach or demand,” provided that such date can be determined. If the date of the breach or demand is not established, interest accrues “from the date of the commencement of the action.” The purpose of Section 6C is to “compensate a damaged party for the loss of use or unlawful detention of money.” Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841 (1986), quoting Perkins School for the Blind v. Rate Setting Comm’n, 383 Mass. 825, 835 (1981). Although Section 6C “commands a 2 ministerial act, its sole or primary purpose was not to provide administrative ease” but to ensure that the person wrongfully deprived of the use of money is “made whole for his loss.” Sterilite, 396 Mass. at 841-842. Thus, even if there are multiple breaches so as require different calculations, the Court should engage in that analysis in keeping with that statutory purpose. Id. Plaintiff argues that the dates of defendant’s breaches are “established” within the meaning of Section 6C because the Offer pays Schiefer on her breach of contract claim, and a breach of that contract occurred at the end of each pay period when Bain failed to compensate her for overtime — — a point in time that is easily ascertained and is undisputed. Schiefer worked 72 pay periods during her employment at Bain. If the $ 80,000 Offer is apportioned equally over those pay periods, $ 1,111 should be apportioned to each pay period, with interest calculated from that date. In a chart attached as Exhibit A to her Application, plaintiff explains how those calculations amount to a total of $ 60,813.09 in prejudgment interest. Bain […]
Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-036-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civ. No. 2015-3599 BLS 2 ASHLEY SCHIEFER, COLLEEN MCPHERSON, ELIZABETH BURNHAM, and REBECCA SHAAL on behalf of themselves and all others similarly situated, Plaintiffs vs. BAIN CAPITAL, LP, f/k/a BAIN CAPITAL, LLC , Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF ASHLEY SCHIEFER’S APPLICATION FOR ATTORNEY’S FEES On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action suit alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment made by defendant Bain Capital LP (Bain). In addition to an $ 80,000 payment to Schiefer, the Offer of Judgment provided for “reasonable costs and attorney’s fees” together with interest “as awarded by the Court.” Schiefer now asks that this Court award her attorney’s fees and costs in the amount of $ 125,488.13. 1 The defendant asks that I reduce the award to $ 26,225.50. After careful review of the materials submitted in support of the application, this Court allows fees and costs in the amount requested by plaintiff. The Amended Complaint asserts both common law claims and statutory ones. Bain first argues that it should not have to pay any attorney’s fees since, after the Offer of Judgment was extended, Schiefer took the position that she was waiving her statutory claim because of a 1 The application originally requested $ 122,788.13. Counsel filed a $ 2,700 supplement to that request for work performed in connection with the hearing on the application. 2 statute of limitations problem, proceeding instead on a common law theory of breach of contract. Certainly, had Schiefer prevailed on her common law claim after trial, she would not have been entitled to recover her litigation expenses. But the Offer expressly included an award of fees, and attached no conditions to that except that the fees be reasonable. In a supplemental pleading filed after the hearing on this Motion, Bain appears to suggest that it was misled about the basis of Schiefer’s claims. But Bain had to have known about the statute of limitations problem. Moreover, Schiefer’s answers to interrogatories about the damages she was seeking describe damages that are of the type that would be recoverable on a common law claim, not on the statutory claim. In short, there was no unfair surprise. This Court also is not persuaded that counsel had some obligation to segregate out what work was spent on Schiefer’s common law claim and what work was attributable to her statutory claim. As plaintiff spells out in her Reply Memorandum, Scheifer’s breach of contract claim was based on the same core of facts as her statutory claim and indeed required that she prove she was “eligible” for overtime – […]
Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)
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 SJC-11756 DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] vs. FITCHBURG CAPITAL, LLC, & others.[2] Suffolk. January 5, 2015. – April 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause. Real Property, Mortgage. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations. Statute, Retroactive application, Construction. Due Process of Law, Retroactive application of statute, Statute of limitations. Constitutional Law, Contract clause. Civil action commenced in the Land Court Department on July 2, 2012. A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey T. Angley (Robert K. Hopkins with him) for Fitchburg Capital, LLC. Jeffrey B. Loeb for the plaintiff. Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief. HINES, J. Under a 2006 amendment to the so-called “obsolete mortgage” statute, a mortgage becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.[3] G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable. In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a “mortgage in which the term or maturity date of the mortgage is stated” under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional. The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are […]
Sullivan, et al. v. Kondaur Capital Corporation (Lawyers Weekly No. 11-039-14)
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‑706 Appeals Court JOSEPH L. SULLIVAN & another[1] vs. KONDAUR CAPITAL CORPORATION. No. 13‑P‑706. Suffolk. February 4, 2014. ‑ April 16, 2014. Present: Kafker, Green, & Sullivan, JJ. Mortgage, Assignment, Foreclosure. Practice, Civil, Motion to dismiss, Standing. Real Property, Mortgage, Registered land, Certificate of title. Assignment. Agency, Scope of authority or employment. Corporation, Officers and agents. Land Court. Civil action commenced in the Superior Court Department on March 8, 2010. After transfer to the Land Court Department, a motion to dismiss was heard by Harry M. Grossman, J. Rockwell P. Ludden for the plaintiffs. David M. Rosen for the defendant. GREEN, J. In this appeal, the plaintiffs, Joseph L. and Mary R. Sullivan (Sullivans), challenge the title of the defendant, Kondaur Capital Corporation (Kondaur), to the Sullivans’ former residence, based on their contention that Kondaur did not hold a valid interest in the mortgage it foreclosed on the property in October, 2009. A judge of the Land Court allowed Kondaur’s motion to dismiss the Sullivans’ amended verified complaint, and thereafter denied (on grounds of futility) the Sullivans’ motion to further amend their complaint. Though several of the Sullivans’ challenges are without merit, we conclude that the complaint sufficiently stated a claim that Kondaur’s title to the mortgage was defective at the time of the foreclosure, and reverse the judgment. Background. We draw the following factual background from the allegations in the Sullivans’ verified amended complaint. On or about August 16, 2004, the Sullivans acquired title to property located at 98 Wild Hunter Road in Dennis (property). The property is registered land, and upon registration of the deed conveying the property to them, certificate of title no. 174074 issued in their names, evidencing their title. On January 11, 2006, the Sullivans executed a mortgage (mortgage), conveying the property to Mortgage Electronic Registration Systems, Inc. (MERS), “solely as nominee for [WMC Mortgage Corp. (WMC)] and [WMC’s] successors and assigns,” to secure payment of a promissory note the Sullivans executed in favor of WMC. The mortgage thereafter was duly filed for registration with the Barnstable registry district of the Land Court. By instrument dated May 21, 2008 (first assignment), MERS purported to assign the mortgage to Saxon Mortgage Services, Inc. (Saxon). Thereafter, by instrument dated February 12, 2009 (second assignment), Saxon […]
Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)
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 12‑P‑1429 Appeals Court MELLO CONSTRUCTION, INC., vs. DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol. June 4, 2013. ‑ December 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Public Works, General contractor. License. Governmental Immunity. Damages. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on July 25, 2007. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant. GRAHAM, J. The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1] We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background. From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2] In October, 2004, Mello submitted its annual application for certification. See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15. On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3] See G. L. c. 149, § 44D(4). As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations. See ibid. On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons: (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4] Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5] See ibid. In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6] On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]
Brigade Leverage Capital Structures Fund Ltd., et al. v. PIMCO Income Strategy Fund, et al. (Lawyers Weekly No. 10-167-13)
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‑11289 BRIGADE LEVERAGED CAPITAL STRUCTURES FUND LTD. & another[1] vs. PIMCO INCOME STRATEGY FUND & another.[2] Suffolk. May 6, 2013. ‑ September 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Business Trust. Trust, Business trust. Corporation, By‑laws, Stockholder, Board of directors. Contract. Words, “On at least an annual basis.” Civil action commenced in the Superior Court Department on December 1, 2011. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John C. Ertman, of New York (C. Thomas Brown with him) for the defendants. Joseph S. Allerhand, of New York (Patrick J. O’Toole, Jr., with him) for the plaintiffs. The following submitted briefs for amici curiae: Peter H. Mixon, of California, for California Public Employees’ Retirement System. Jeff Mahoney, of the District of Columbia, for Council of Institutional Investors. Jesse M. Fried, pro se. GANTS, J. Under Section 10.2 of the bylaws of the defendants, PIMCO Income Strategy Fund and PIMCO Income Strategy Fund II (collectively, “Funds” or “defendants”), “regular meetings of the Shareholders for the election of Trustees . . . shall be held, so long as Common Shares are listed for trading on the New York Stock Exchange, on at least an annual basis.” The issue on appeal is the meaning of “on at least an annual basis.” The plaintiffs, Brigade Leveraged Capital Structures Fund Ltd. and Brigade Capital Management, LLC (collectively, “Brigade” or “plaintiffs”), contend that the bylaws require that an annual meeting of shareholders of each of the Funds be held in or within twelve months of the last annual shareholder meeting. The defendants contend that the bylaws require only that one annual shareholders’ meeting be held each fiscal year for each of the Funds. We conclude that “on at least an annual basis” means that an annual shareholders’ meeting for each of the Funds must be held no later than one year and thirty days (395 days) after the last annual shareholders’ meeting. Background. The defendant Funds are closed-end investment companies registered under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-5(a)(1)(2) (2006), that are organized as Massachusetts business trusts under G. L. c. 182. […]
Cannonball Fund, Ltd., et al. v. Dutchess Capital Management, LLC, et al. (Lawyers Weekly No. 11-094-13)
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 12‑P‑876 Appeals Court CANNONBALL FUND, LTD., & others[1] vs. DUTCHESS CAPITAL MANAGEMENT, LLC, & others.[2] No. 12‑P‑876. Suffolk. January 17, 2013. ‑ August 2, 2013. Present: Cypher, Rubin, & Wolohojian, JJ. Limitations, Statute of. Practice, Civil, Statute of limitations, Dismissal, Standing. Jurisdiction, Personal, Long‑arm statute, Nonresident. Corporation, Derivative action. Fiduciary. Partnership, Fiduciary duty. Negligence, Causation. Due Process of Law, Jurisdiction over nonresident. Contract, Implied covenant of good faith and fair dealing, Performance and breach. Civil action commenced in the Superior Court Department on June 21, 2011. Motions to dismiss were heard by Judith Fabricant, J. John F. Hagan, Jr., of Illinois, for the plaintiffs. Sanford F. Remz for Sullivan Bille, P.C. Matthew Iverson for Dutchess Capital Management, LLC, & others. WOLOHOJIAN, J. This is the second suit brought individually and derivatively by investors in two “feeder” hedge funds against those who controlled or were involved in the operation of the feeder and master funds[3] and a related entity, against one feeder fund’s accounting firm, and against the administrator of both feeder funds. The plaintiffs previously filed a substantially similar case in the Delaware Court of Chancery. After four of the defendants moved to dismiss the Delaware claims for lack of personal jurisdiction, the plaintiffs voluntarily dismissed the Delaware suit in its entirety. Almost eight months later, the plaintiffs then filed this case in the Superior Court. The primary issue on appeal is whether the plaintiffs are entitled to the benefit of the Massachusetts savings statute, G. L. c. 260, § 32, which permits claims that were timely when originally filed to be refiled (despite the subsequent running of the limitations period) within one year after being dismissed “for any matter of form.” We conclude that voluntary dismissals are not per se excluded from the scope of the savings statute. We also conclude, however, that the record does not establish that all the claims dismissed in the Delaware action were dismissed for a matter of form. Those claims that were not dismissed for a matter of form were properly dismissed by the Superior Court judge as untimely. Those claims for which a sufficient question of fact was raised in the Superior Court, at least at the pleading stage, as to whether they were voluntarily dismissed in the Delaware action […]
Categories: News Tags: 1109413, Cannonball, Capital, Dutchess, Fund, Lawyers, Ltd., Management, Weekly
Mayor Announces $1.8 Billion Capital Plan
The mayor last week announced a plan to invest $ 1.8 billion over the next five years in capital projects across the city, including $ 1.6 million for a new park near Spaulding Rehabilitation Hospital in the Charlestown Navy Yard. At a press conference held Friday, May 17 outside the recently opened hospital, Mayor Thomas Menino discussed some of the 341 projects included in the city’s five-year capital plan for fiscal years 2014-2018—projects that will improve and maintain the city’s roads, buildings, technology and play spaces. The five-year capital plan will “create 460 construction jobs in FY2014” and will “transform city neighborhoods, learning, recreation and streets,” according to a press release from the mayor’s office. “Our city draws its strength from its neighborhoods, and this year’s capital plan will make our neighborhoods better for all of the families that live in our city,” Menino said. “The park here at Spaulding reflects my commitment to build a city that works for all of our people, not just some of our people.” The new Charlestown park will accommodate children and adults of all abilities. The plan includes $ 196 million in new project authorizations in 2014, including $ 100 million for city parks. Some of the projects highlighted in the five-year plan include: • A $ 6.5 million overhaul of the playing fields at West Roxbury High School Complex; • The reopening of Flaherty Pool in Roslindale this summer ($ 5.6 million) and soon-to-begin construction on Draper Pool in West Roxbury ($ 3.75 million); • A $ 15 million investment over three years to support Boston Public Schools’ new student assignment plan; • ($ 20.5 million for the construction of a new school at 585 Commercial St. in the North End to serve downtown area families and children, starting in the fall of 2016; • A $ 18.6 million expansion of the Eliot School in the North End; • $ 16 million for design and initial construction on a transformed Central Library in Copley Square, with new children’s and teen spaces and opening up of the Johnson Building to the street by replacing granite with glass; • Repairs to nearly 500,000 sq. ft. of sidewalk across the city, improvements to more than 1,500 pedestrian ramps to bring them up to ADA compliance and resurfacing of more than 20 miles of roadway; • Improvements to Upham’s Corner ($ 4.2 million) and Central Square ($ 6 million), with construction to begin in FY2014; • And $ 1 million for Boston’s first-ever “youth budget,” created by and for the city’s youth. The mayor’s full five-year capital plan and other budget documents can be viewed online […]
Premier Capital, LLC v. KMZ, Inc. (Lawyers Weekly No. 10-033-13)
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‑11136 PREMIER CAPITAL, LLC vs. KMZ, INC. Hampden. November 6, 2012. ‑ March 7, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Limitations, Statute of. Negotiable Instruments, Note. Contract, Under seal. Statute, Retroactive application. Corporation, Corporate successor liability. Uniform Commercial Code, Payment on negotiable instrument. Civil action commenced in the Superior Court Department on July 3, 2007. The case was heard by Constance M. Sweeney, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas J. Morrissey for the plaintiff. Carolyn L. McCaffrey for the defendant. DUFFLY, J. Premier Capital, LLC (Premier), is in the business of debt acquisition, management, and collection. Premier filed an action in the Superior Court on July 3, 2007, alleging that it is the current holder of a sealed promissory note (note) from Max Zeller Furs, Inc. (Zeller), executed on September 10, 1987, and that KMZ, Inc. (KMZ), is liable on the note as the successor in interest. KMZ and Premier filed cross motions for summary judgment. A Superior Court judge allowed KMZ’s motion on the ground that Premier’s complaint was not timely filed. Nonetheless, the judge also denied Premier’s cross motion after concluding that there was a genuine issue of material fact whether KMZ is a successor in interest to Zeller. Premier appealed, and we transferred this case here on our own motion in order to decide whether the six-year statute of limitations set forth in art. 3 of the Uniform Commercial Code (UCC), G. L. c. 106, § 3-118, governs an action on a sealed promissory note. We conclude that G. L. c. 106, § 3-118, does apply, but only to causes of action accruing after its enactment in 1998. Consequently, because Premier’s cause of action accrued before G. L. c. 106, § 3-118, was enacted, and the note upon which Premier filed suit was executed under seal, Premier timely commenced its action against KMZ under the twenty-year statute of limitations governing actions on contracts under seal, G. L. c. 260, § 1. Therefore, KMZ’s motion for summary judgment should have been denied. We conclude also that Premier’s motion for summary judgment was denied properly. Premier maintained that the undisputed facts in the summary judgment record establish that KMZ is the successor in interest to Zeller, […]