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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT Civil Action Mo. 96-0036
V & M MANAGEMENT. INC. AND ALPHONSE MOURAD
JUDITH MORIARTY AND
MARIO NICOSIA AS TRUSTEES OF
L & N FIRST MORTGAGE REALTY
BEFORE: Justice Charles T. Spurlock Suffolk Superior Courthouse Boston, Massachusetts
January 5, 1996
TRACEY L. GOODMAN Certified Court Reporter South Boston, Massachusetts 02127 (617) 269-2393
Michael Altman, Esquire Rubin and Rudman,
50 Rowes Wharf, Boston, MA 02110
for the Plaintiffs
John J. Rosenberg, Esquire Epstein, Becker and Green, P.C. 75 State Street Boston. MA 02109
for the Defendants
Gizefit cease. Redirect Recross
Number Description Page
Friday. January S. 1996
THE CLERK: This is Civil Action 96-0036, V & M Management versus Moriarty. All parties please identify yourself for the court record.
MR. ROSENBERG: Good afternoon. Your Honor, John Rosenberg appearing on behalf of the defendants in opposition to the motion.
MR. ALTMAN: Michael Altman, Your Honor, I represent the plaintiff.
THE COURT I have a letter from -- who is John J. Rosenberg?
ROSENBERG: That's me. Your Honor.
THE COURT: That's understandable.
MR.ROSENBERG: That's me as along as that's acceptable to The Court; otherwise, I'd be happy to --
THE COURT: You indicate that this is -- I received this letter today. This is third time or the second time that this case has been before this court.
MR.ROSENBERG: It's the second time the case -- well, it's the second time the motion for injunctive relief has been before this court. It was aso before the Federal Court. Judge Lopez permitted my clients to foreclose on the subject property on November 29th in response to a motion to enjoin it in the context of those proceedings.
Several weeks later, the same plaintiffs taking the position that this case -- the case before Judge Lopez had somehow been removed to the Federal Court with some consolidated cases. One of which had been removed went to Judge Keating and sought a motion for preliminary injunction to enjoin the foreclosure same exact relief.
Now.-in another forum last Friday, we had a two hour hearing before Judge Keating who denied the motion on the merits, said that whatever had been removed before him had been removed solely for purposes of delay by the plaintiffs to delay proceedings here and he sent everything back. But in doing that, Your Honor, and I was there, he specifically ruled on the merits of the motion. And I have for The Court and would present to The Court, a certified copy of Judge Keating's ruling which we obtained today after I was informed by my brother counsel that they were going to tell The Court that Judge Keating really hadn't ruled on the motion.
After he told me that, I had my associate go to The Court and see what we could find because they were going to mislead The Court which they've done repeatedly.
If The Court looks, and if I could read it while you do so it's on the record: "On the findings and conclusions stated on the record at the hearing this date, including findings that plaintiff has completely failed to proffer evidence showing any likelihood of succeeding on the merits of this action, as to issues relevant to any injunctive relief, has failed to show any likelihood of irreparable harm in the absence of preliminary injunction, has failed to show a balance of hardship in plaintiff's favor and has failed to show that the public interest would be better served by ordering injunctive relief than by declining to do so and including the supplemental findings stated orally on the record and for the additional reasons stated orally at the hearing, it is ordered that the Third-Party plaintiff's motion." and that is these people. Your Honor, V & M Management, Inc., "for preliminary injunction is denied."
Now, we've put before you in other papers,
excerpts from the brief that these same people filed before the Federal Court after losing before Judge Lopez. And they include the same identical absurd argument that's being raised here today.
Your Honor, in sixteen or seventeen years of doing this, I view this as the most abusive litigation tactic I have ever seen. Judge Lopez said "You can foreclose." They go to a Federal Court who says, "I'm not enjoining the foreclosure." And the first business day after that, they don't go back to the action pending here because there's been a ruling in it. They *file --
THE COURT: What is the action pending?
MR. ROSENBERG: The action pending here, we put the relevant papers before you including Judge Lopez's ruling, is pending here at Civil Action Number 95-5243 precisely the same parties. Your Honor,v & M Management, Inc. and Alphonse Mourad against Mario Nicosia and Judith Noriarty.
We actually, I believe, we were in D Session, coincidentally on November 29th, in the other Room 419, where there was a one hour hearing on their motion for an injunction where we were seeking to dissolve that and go ahead with the foreclosure which Judge Lopez allowed.
At the risk of being repetitive. Judge Lopez said it was okay. Judge Keating in explicit rulings finding absolutely no basis for injunctive relief denied the identical request. And they have the temerity to come back and try to fool you by filing a new action where they don't even mention, Your Honor, any of the other things that happened. I mean it's shocking. It just should be denied.
THE COURT: Excuse me. Can I ask you how this is different from these other cases that you --
MR. ALTMAN: Sure, Judge. I think they're -- I'm just entering this case now for the first time and haven't been involved in those other actions. And I gather the name calling and the rhetoric comes out of the prior litigation. And I'm thankful that I've had no part of that.
The present case raises --
THE COURT: Well, do you know anything about the other cases?
MR. ALTMAN: I have conferred with prior counsel, yes. Your Honor.
THE COURT: So how is this different than the other cases?
MR. ALTMAN: There's really only one case, other case, the case before Judge Lopez. The case before Judge Lopez raised issues about whether or not a number of notes, including this note, violated the State Usury Statutes, violated 93(a). There was some question that the interest rate that his client was charging in some of the notes was 100%, and other notes were 60% And there were questions about proper filing through the AG's office and so forth. And that was the issue.
And let me just tell you how this present case arises. The plaintiff in this case came to me --
THE COURT: It's still the same note, isn't it?
MR. ALTMAN: I'm sorry?
THE COURT: It's still the same note that they're foreclosing on, isn't it?
MR. ALTMAN: Well, if I could just give a little -- yes, that note is mentioned in the prior case. But let me just tell you how this case comes here. If I could just beg your indulgence --
THE COURT: I know somebody went down to the clerk's office and filed a complaint.
MR. ALTMAN: That's true. So, what happened is, approximately a week ago, the client came in my office; and I looked at the note for the first time and read it carefully. And the note, itself, is attached to the complaint.
THE COURT: And you read it more carefully than the other lawyers involved?
MR. ALTMAN: Well, I just I read it. And I looked at it carefully, and I read what it said. And basically, the note is a $50,000 note with no principal paid until after installment payments of interest are made at the end of a year.
So it's $50,000. It's an 181 note which means the payments are about $750 a month; and at the end of a year. it's due.
Now, what happened here was, when you look carefully at the note, a penalty of 31 that is referred to. applies only to the interest installments. It says explicitly, and I'll go back through this because I'm only answering The Court's specific question. The 361, 31 monthly interest, only applies only to interest.
So, I went back, and I asked the accountant, I said, "Can you do some calculations here of the amounts paid, issues not litigated before, not involved in any other case, can you look at the interest and the penalties?"
And I had the accountant prepare a complete computation based upon what I think is the appropriate reading of the note, which is in the complaint, which is roughly that there was $76,000 in interest due in this $50,000 note and a little over a $1,000 due.
And I said to my client, and this is just last week or a couple days ago, I think it was January 2nd. I said. "Here's the calculation the accountant has done. You owe $13,000 and odd dollars on this note. My view to you is, pay the note, pay that off. I think that's the right calculation."
And so, just a few days ago on January 2nd, he paid the note. And I sent the $13,000 to the defendants, and I said, "Here's the $13,000." And I told them our calculations and they disagree. They say that on this $50.000 note, there's $345,000 in interest owed. So, they interpret the note differently than we do.
So, the question The Court -- so here's what I had -- I had a choice whether to do one of two
12 things. The one case that's pending in State Court because it was removed to Federal Court, and apparently, it was sent back, and there's four cases that are attached to it involving HOD and involving the BRA and a whole host of other parties, I had to make a decision myself.
These are issues never litigated. Couldn't have been litigated in the time because we just paid off the note according to my interpretation of the note. Do I start one clean case that focuses on the issue? Should the note be construed as I say or as Mr. Rosenberg says? I don't want to get involved with the HUD Third-Party complaint, the BRA issues, the Usury Statutes. In fact, I mean, I think I would recommend that the issues pertaining to the Usury Statute; I'm going to recommend to prior counsel that that be dismissed.
So, anyway, there's a clean issue. It's never been presented in any pleading to any court. It is whether or not the payment that has been tendered is full payment under the note, and we're hoping The Court will agree that the calculations, which I've submitted to The Court, which are attached to both the clients affidavit, as well as, the accountant's affidavit, and there's a summary of the interest computation as Tab "C" to the memorandum will satisfy to The Court that there has been full payment, so that the foreclosure that is scheduled for next Tuesday shouldn't take place.
My brother chooses words carefully. He said that the remedy sought was sought in other courts. The remedy sought was sought in other courts a preliminary injunction. But they were litigating issues about whether in the prior state case whether there was a violation of the Usury Statute. And that was before full payment was made. And they were litigating in Federal Court whether this monster case, which had four parts to it, whether or not the part involving the V & M and Nicosia, because there are all these other parties in all these other cases, whether that was properly removed to Federal Court.
So, Judge Keating said there was no likelihood of success on the merits because he decided, I'm advised by other counsel, and I have an affidavit if The Court wants to see it, but I'm advised by counsel that Judge Keating basically decided that the case was properly litigable in State Court. And indeed, attached to the papers submitted
by my brother is a copy of the docket sheet by Judge Keating in which the final order, which he didn't read this part to the judge, to this court it says, "Dismissal without prejudice."
So, I mean, basically, the judge said, "I'm dismissing it without prejudice. I'm denying your preliminary injunction because it doesn't belong here" and sent the other case back, the other case involving different issues back to State Court.
So, I'm sorry that's a long answer I haven't fully argued my position. But the short answer is, this is a different issue, full payment rendered. There's no other pleading that raises that issue and we're here for the first time, and I'd like to walk you through the note if The Court will permit it.
THE COURT: No, because I read the papers this morning when I came in.
MR. ALTMAN: Nell, you haven't read the papers that I submitted. Your Honor.
THE COURT: You didn't submit anything this morning?
MR. ALTMAN: I submitted the complaint and I submitted a memorandum with some affidavits this
THE COURT: Who gave me the mortgage?
MR. ALTMAN: The mortgage that was given to you is something I just got. At approximately 12 o'clock today opposing counsel served that on me.
MR. ROSENBERG: Thoae are papers that are already on file by his clients in this court and by my clients.
THE COURT: Excuse me. Excuse me, I didn't ask anyone anything.
MR. ALTMAN: And they submit a different mortgage than the one that we say is being foreclosed on. And I was a little bit late getting up here because I was going through the record and digging out documents from '-I mean Mr. Rosenberg had --
THE COURT: Is this the complaint that you filed?
MR. ALTMAM: May I look at it. Your Honor?
THE COURT: What is attached to that complaint?
MR. ALTMAM: A copy of the note.
THE COURT: And what else? Is an assignment of the note there?
MR. ALTMAN". There's the mortgage. There's
I, Tracey L. Goodman, Certified Verbatim Reporter, do hereby certify that the foregoing pages 1 -15 represent a true and accurate record of the proceedings held concerning the aforementioned matter before Justice Charles T. Spurlock on January 5, 1996 to the best of my knowledge, skill and ability.
Tracey L. Goodman
THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE CERTIFYING REPORTER.