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CGMMONWEALTH OF MASSACHUSETTS
V & M MANAGEMENT, INC. and ALPHONSE MOURAD,
Plaintiffs
vs.
MARIO NICOSIA and JUDITH MORIARITY, INDIVIDUALLY, and as TRUSTEES OF THE L & N FIRST MORTGAGE REALTY TRUST, Defendants
ORDER
After hearing on plaintiff's Motion for Preliminary Injunction, it is hereby ORDERED.
1. Defendant may complete advertising of the proposed foreclosure;
2. Defendant is preliminarily emoined from holding the foreclosure sale on September 28, 1995 and is ordered to postpone th^ actual sale until further order of the Court;
3. This case is hereby TRANSFERRED to Suffolk County to be consolidated for all purposes with other existing related cases, i.e. Suffolk Superior Court C.A. #89-6500E and Suffolk Superior Court C.A. #90-5433D.
Dated: sept 15 1995
By the Court,
Catherine A. White Justice, Superior Court
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss.
TRIAL COURT DEPARTMENT SUPERIOR CO;,
CIvil Action No. 95-5267
V & M MANAGEMENT, INC., and
ALPHONSE MOURAD,
Plaintiffs
vs.
MARIO NICOSIA and JUDITH MORIARTY, INDIVIDUALLY, and as TRUSTEES OF THE L & N FIRST MORTGAGE REALTY TRUST, Defendants
PARTIES
1. The Plaintiff, V & M Management, Inc., is a corporation duly established under the laws of Massachusetts with a principal place of business in Watertown, Middlesex County, Massachusetts.
2. The Plaintiff, Alphonse Mourad, is a natural person with a usual place of residence in Watertown, Middlesex County, Massachusetts.
3. The Plaintiff, Alphonse Mourad, is the President and Treasurer of V & M Management, Inc.
4. The Defendant, Mario Nicosia, is a natural person and a duly appointed trustee of the L & N First Mortgage Realty Trust, with a usual place of business in Boston, Suffolk County, Massachusetts.
5. The Defendant, Judith Moriarty, is a natural person and a duly appointed trustee of the L & N First Mortgage Realty Trust, with a usual place of business in Boston, Suffolk County, Massachusetts.
FACTS
6. The Defendants are currently the holders by assignment of six notes ("Notes"), as set forth below, issued jointly by the Plaintiffs, V & M Management, Inc. and Alphonse Mourad (see copies of notes attached hereto as Exhibit "A"):
Date of Loan Amt. of Loan Interest Rate
a) 12/21/84 $50,000 24% p/ annum p/month,
60% p/annum thereafter
b) 3/29/85 $50,000 Prime Rate +7% or 18%
whichever is greater
c) 5/9/85 $55,000 24% p/annum
d) 8/14/85 $60,000 24% p/annum
e) 1/23/85 $25,000 24% p/annum
f) 3/18/86 $15,500 24% p/annum
Total...$255,000.00
7. Since 1989, the Plaintiff, V & M Management, Inc., has made interest payments of $614,000.00 on the Notes to the Defendants, and predecessor trustees.
8. The Defendants are violating the Massachusetts Criminal Usury Statute as the Notes allow the Defendants to charge, take, and receive, interest and expenses, directly or indirectly, the aggregate of which exceed an amount greater than twenty percent annum...
9. The Defendants assert that the Plaintiffs present payoff for the Notes, after crediting the Plaintiffs past payments, are in the approximate total sum of $1,208,500.00, exclusive of fees and expenses. See Exhibit "B".
10. The Defendants have scheduled a foreclosure auction for September 28, 1995, at 10:00 am, against property owned by the Plaintiff, V & M Management, Inc., commonly known as Mandela Apartments, located in Roxbury, Suffolk County, Massachusetts ("Property"). See copy of notice of sale attached hereto as Exhibit "C".
11. The Defendants are foreclosing on the Property, pursuant to the note dated March 29, 1985 in the original amount of $50,000.00, (see paragraph 7 (b)).
12. The Property is a 276 unit federally subsidized housing complex, which provides affordable section 8 housing for minority low income families, consisting currently of approximately 1,500 people, which subsidized housing will be terminated if the Defendants foreclose on the Property.
The Defendants that it will $50,000.00 is
informed the Plaintiff, V & M Management, Inc., cancel the foreclosure sale if the said paid off prior to auction, and the demanded
COUNT I - Imunctive Relief
14. The allegations of paragraphs 1-13 are hereby realleged and incorporated by reference herein.
15. The Plaintiffs contend that the payoff monies sought by the Defendants to cancel the foreclosure sale are illegal, invalid, outrageous and unconscionable.
16. The Plaintiffs are suffering injury to their reputation and continue to suffer a loss of reputation as a result of the Defendants advertisement of the foreclosure sale.
17. The Plaintiffs will be irreparably harmed if the foreclosure sale is held.
WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:
A. Issue a temporary Restraining Order enjoining the Defendants, and their agents or employees, from advertising, preparing or holding the foreclosure sale scheduled for September 28, 1995, at 10:00 am;
B. After a hearing, issue a preliminary injunction and a
agents or employees, from advertising, preparing or holding the foreclosure sale scheduled for September 28, 1995, at 10:00 am; and
C. Issue such other and further relief which this Court deems just and equitable.
COUNT II
18. The allegations of paragraphs 1-17 are hereby realleged and incorporated by reference herein.
19. The Defendants are illegally charging and receiving interest on monies from the Plaintiffs, which rate is in excess of twenty percent.
WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:
A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;
B. Invalidate and void the Notes;
C. Request that pursuant to M.G.L. c. 271, s. 49, the Attorney General's Office inspect the Notes and records maintained by the Defendants for purposes of filing a possible criminal proceeding;
D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and
E. Issue such other and further relief which this Court deems just and equitable.
COUNT III
20. The allegations of paragraphs 1-19 are hereby realleged and incorporated by reference herein.
21. M.G.L. c. 271, s. 49, the Criminal Usury Statute, provides in part that an individual may charge an interest rate in excess of twenty percent per annum, if the individual first provides notice of his intent to do the same, which notice is valid for a two year period.
22. Upon information and belief, the Defendants have failed since January 12, 1992 to notify the Attorney General's Office,
interest and expenses on monies from the Plaintiffs in excess of twenty percent. See copy of what is believed to be Defendants last notification to Attorney General's Office attached hereto as Exhibit "D".
WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:
A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;
B. Invalidate and void the Notes;
C. Request that pursuant to M.G.L. c. 271, s. 49, the Attorney Generates Office inspect the Notes and records maintained by the Defendants for purposes of filing a possible criminal proceeding;
D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and
E. Issue such other and further relief which this Court deems just and equitable.
COUNT IV
23. The allegations of paragraphs 1-22 are hereby realleged and incorporated by reference herein.
24. M.G.L. c. 271, s. 49, the Criminal Usury Statute, provides in part that an individual who charges an interest rate in excess of twenty percent per annum must maintain records for each such transaction, which records include the name and address of the borrower, the amount borrowed, the interest and expenses to be paid by the borrower, the date the loan is made and the date or dates on which any payment is due.
25. Upon information and belief, the Defendants have failed to maintain the statutorily required records for the Notes.
WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:
A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;
B. Invalidate and void the Notes;
C. Request that pursuant to M.G.L. c. 271, s. 49, the maintained by the Defendants for purposes of filing a possible criminal proceeding;
D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and
E. Issue such other and further relief which this Court deems just and equitable.
COUNT V
26. The allegations of paragraphs 1-25 are hereby realleged and incorporated by reference herein.
27. The Defendants breach(s) of the Criminal Usury Statute and commencement of a foreclosure action based upon an illegal Note, constitute false and deceptive acts and practices, which have caused damage to the Plaintiffs
WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:
A. Determine that the Defendants have violated M.G.L. c. 93A, Sect. 11;
B. Award the Plaintiffs double or treble damages for the Defendants actions in this matter;
C. Award the Plaintiffs their reasonable attorney fees and cost of this action; and
D. Issue such other and further relief which this Court deems just and equitable.
THE PLAINTIFFS DEMAND THEIR RIGHT TO A TRIAL BY JURY ON ALL ISSUES.
Dated: September 8, 1995
ALPHONSE MOURAD and V & M MANAGEMENT, INC. BY THEIR ATTORNEY
John F. White, Esq.
Offices of Lipman & White Billings Road
Quincy, MA 02171(617) 328-5600