Preview
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
HAMPDEN, SS. SUPERIOR COURT
CIVIL ACTION NO.
22 0266
KEITH DIXSON, as Guardian for NELL
DIXSON,
Plaintiff,
MEMORANDUM OF LAW IN
WILMINGTON SAVINGS FUND HAMPCEN Co. SUPPORT OF PLAINTIFFS
SOCIETY, FSB, as Owner Trustee for SUPERIOR Gourt EMERGENCY MOTIONS FOR
CASCADE FUNDING MORTGAGE D ISSUANCE OF PRELIMINARY
TRUST HB2 INJUNCTION AND MEMORANDUM
MAY 0-6 202;
OF LIS PENDENS
and
&
CLERK OF COURTS
HAROLD P. DIXSON,
Defendants
I. Introduction
The Plaintiff, Keith Dixson, as Guardian for Nell Dixson, has filed a Verified Complaint
against the Defendants, Wilmington Savings Fund Society, FSB, as Owner Trustee for Cascade
Funding Mortgage Trust HB2 (“Wilmington”), and Harold P. Dixson. The Verified Complaint
seeks, in pertinent part, to have a note and mortgage burdening property owned by Nell Dixson
declared invalid, and any and all attempts to foreclose on that mortgage immediately, temporarily,
and permanently enjoined. Wilmington has scheduled a foreclosure auction forMay 18, 2022.
Plaintiff now brings two Emergency Motions relative to the matter: (1) a Motion for Preliminary
Injunction, pursuant to Mass. R. Civ. P. 65; and (2) a Motion for Memorandum of Lis Pendens,
pursuant to M.G.L. c. 184, § 15(b).
IL. Facts!
Nell Dixson (“Nell”)? is the sole record owner and occupant of real property located at 5
Garvey Drive, Springfield, Massachusetts (“Property”). Verified Complaint (“VC”) 5-9, 49.
Nell has been adjudicated incompetent by the Hampden County Probate and Family Court, and
her son, Keith Dixson (“Keith”), was appointed her legal guardian and conservator on May 24,
2019. VE 1-2.
Keith is one of five children of Nell and her late husband, Livie Dixson (“Livie”): Ronnie
Dixson, Keith Dixson, Sanford Dixson, Sarann Dixson, and Harold Dixson (“Ronnie,” “Keith,”
“Sanford,” “Sarann,” and “Harold”). VC 97. Nell and Livie purchased the Property in 1971. VC
{|8. They lived there together as a married couple until Livie’s passing on December 25, 2001.
VC ¥ 11. All five children lived at the Property at different points in time, and Nell resided there
until Harold removed her to a nursing home, against her will, in 2017. VC 49-11, 36.
Harold lived at the Property with Nell until 2002. VC 410. As of 2002, Nell was reeling
after the recent deaths of Livie and her oldest son, Ronnie, which occurred in the span of four
months. VC 419. After these deaths, Nell entered a deep depression, and her health and mental
condition declined steadily, rapidly, and irreversibly. VC 19-20. From this point forward, people
interacting with Nell would notice frequent mental confusion on Nell’s part. Id. Also from this
point forward (if not sooner), Harold began taking great financial advantage of his proximity to
Nell and their trusting mother-son relationship. See VC { 17, 30, 40, 49, 55.
! Plaintiff incorporates by reference his.entire Verified Complaint. He provides herein a summary of the most pertinent
facts only.
? As multiple parties share a last name, first names are used for ease of reference. No disrespect or informality is
intended thereby.
The situation was opportune for him to do so. Prior to Livie’s death, for the forty-eight
(48) years of Livie and Nell’s marriage, Livie managed most to all of the couple’s financial matters
(such as budgeting, bank accounts, retirement funds ,investments, and mortgages or other loans).
VC 4 13. As of Livie’s death, Nell was left to manage these affairs herself for the first time. She
found herself unable to do so, and asked her son Keith to assist. From then on, so long as Nell
lived at the Property, Keith and his brother Sanford paid all major related bills known to them,
including taxes, insurance, and maintenance. VC 14-15. After Livie’s death, Nell’s sole asset
was the Property, and her sole income was under $1,000.00 per month in social security payments.
VC 416, 18.
Although Keith and Sanford were paying the major bills, Harold was ‘the child most
physically proximate to their mother, Nell, and she depended on Harold for transportation to and
from church (and similar help). VC 429. From 2002 forward, Harold began using Nell’s social
security payments and other funds for his own benefit. Keith did not have access to Nell’s accounts
to discover this until far later. VC 4] 17, 37-40. Harold later took further advantage of Nell, taking
out a life insurance policy with her funds with himself as sole beneficiary, and fostering the
fraudulent reverse mortgage transaction occasioning the Verified Complaint. VC { 37-60. In
general, as Nell’s condition got worse, Harold’s predation of her assets likewise increased.
Nell began to drastically decline as early as December 2021. VC 419-20. By 2005, family
members and others interacting with Nell had increasingly noticed Nell’s accelerating mental
deterioration and inability to handle her own affairs. VC § 23. In 2008, Keith learned Nell had
been diagnosed with dementia. From that point forward, Nell’s dementia steadily. intensified and
worsened. VC { 25-26. Both before and after the formal diagnosis, people had regularly observed
that Nell was confused, forgetful, disoriented, and otherwise in an obviously weakened mental
condition. VC 427.
By 2013, Nell’s condition had deteriorated to the point that she could not comprehend
financial matters or any issues related to her assets (as well as suffering from other cognitive
issues). VC {[ 28. Her condition was obvious to third parties. Despite this, in August 2013, at
Harold’s behest, Nell purportedly participated in a Home Equity Conversion Mortgage counseling
session with a credit agency located out of Agawam. VC 4141-43. According to a certificate issued
by the agency, the counseling session was just over a half-hour long and took place by telephone.
Although Harold was on the title to the Property at the time (as a result of three, different back-
and-forth record transfers between Nell and he and Nell as joint tenants), his name did not appear
on the certificate or counseling records. VC 30, 45. Due to her mental state, Nell could not have
understood the complex topics allegedly discussed with her in this session. VC 4 47.
After the counseling, Nell purportedly went ahead and obtained a $98,208.00 loan from
Wilmington’s predecessor in interest, secured by a Home Equity Conversion Mortgage
(commonly referred to as a “reverse mortgage”) on the Property. VC 449. On that day, Harold
deeded all his interest in the Property to Nell. Id. No legal counsel was involved in any of these
transactions. VC § 50. Nell had no real financial need for the loan. VC 53. Of the $68,450.87
in loan proceeds remaining after closing costs available for Nell’s benefit (“Loan Proceeds”), all
of the proceeds went—with Wilmington’s predecessor’s full knowledge—to Harold’s individual
bank account by direct wire transfer. VC 9 54-55. Nell never received any benefit whatsoever
from the loan proceeds. VC 56.
At the time Wilmington’s predecessor closed on the loan and mortgage transactions, it
would have had the following sources of information that would have readily indicated that
something was not right:
(1) Had it dealt directly with Nell, real observation of her behavior, confusion, and lack of
any understanding of the transaction;
(2) Record notice of Harold’s continued back-and-forth deeded interests in the Property,
the most recent of which conveniently discarded only to enable the loan;
(3) The lack of any legal counsel;
(4) The highly abnormal designation of all funds going to a third party, without
explanation, which third party had previously been an owner of the property, and could
(presumably) have obtained their own conventional financing;
(5) Inconsistent signatures on documents; and
(6) Absence of any power of attorney or other proof or indication funds disbursed to Harold
were intended for, or would actually accrue to, the benefit of the person entering into
the note and granting the mortgage.
YC 4 30, 41-57. In any event, even if this information had not been available and readily
observable, Nell simply did not have the mental capacity to at all understand the nature of any
aspect of the transaction. To this day, Nell has no knowledge of the specifics of the transaction,
VC 931, 33, 56-57, 60.
Eventually, the note (allegedly) and mortgage (as of record) passed to Wilmington. VC 4
58-59. Wilmington now seeks to foreclose on the Property, and has scheduled an auction sale for
May 18, 2022. VC 4] 64-65.
IDL. Argument
A. This Court should issue a preliminary injunction, given Plaintiff's likelihood of success
on the merits and the grave risk of irreparable harm absent injunction.
To obtain the requested injunction, Keith “must show ‘(1) a likelihood of success on the
merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of
[Keith’s] likelihood of success on the merits, the risk of irreparable harm to [Nell] outweighs the
potential harm to [Wilmington] in granting the injunction.” King v. Shank, 92 Mass. App. Ct.
837, 839 (2018), quoting Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217,
219 (2001). On the above facts, an injunction is warranted here. At this early stage, the Court can
conclude that Keith has at least a reasonable likelihood of success on the merits. In light of any
likelihood of success on the merits, the grave harm faced by Nell is compelling. The Property is
her sole asset, and the center of her family’s life in Springfield for the last 50-plus years. It is
where she built a home and raised children. It is the legacy she has to pass on to her children.
And, as a result of the fraudulent activities of one child, it is at risk of being ripped away from her
due to a mortgage and note that she had no capacity to agree to. The fact that Wilmington faces
no irreparable harm—as the Property will remain sitting there, ready to satisfy the note as secured
by the mortgage if they are in fact valid—is likewise compelling. The Court should issue the
injunction.
L Keith will likely succeed on the merits.
First, as to the merits, Keith’s complaint avers facts giving rise to several separate grounds
on which the note and mortgage might fail. In general, any defense that would render the
underlying note contract void renders the entire transaction—including the mortgage interest—
void as well. See, e.g., Baker v. Collins, 91 Mass. 253 (1864) (discussing illegality defense). First
and foremost of these contract defenses here is Nell’s longstanding, well-documented lack of
capacity, which had existed for at least 5 years before giving the mortgage interest in question.
Massachusetts courts have long held notes and mortgages void where the contracting grantor
lacked capacity. See Sutcliffe v. Heatley, 232 Mass. 231, 232-233 (1919) (“[A]n inability to realize
the true purport of the matter at hand is equivalent to mental incapacity. When this is established
then a contract is voidable. It is no defense that the other party acted fairly and without knowledge
of the want of mental faculty .... A decree is to be entered perpetually enjoining the defendant
from foreclosing the mortgage, declaring [it] and note void and ordering the defendant to make,
execute and deliver to the plaintiff a discharge”); Brigham v. Fayerweather, 144 Mass. 48 (1887).
Keith can prove Nell’s incapacity to contract as of 2013 on either of two theories. One is
the traditional “cognitive test:” whether the person contracting “was of unsound mind, and
incapable of understanding and deciding upon the terms of the contract.” Sparrow v. Demonico,
461 Mass. 322, 328 (2012) (quotation omitted). Here, Keith will introduce medical records and
other evidence clearly showing that Nell could not have understood the complex transaction at
issue in 2013. Nell was unable to handle even basic household finance management alone as early
as 2002. She thereafter declined, ultimately being clinically diagnosed with dementia in 2008—
five whole years (each filled with increasing decline) prior to the 2013 transactions at issue.
Second, Keith can demonstrate Nell’s incapacity under the “modern test:” contracts are also
voidable where “by reason of mental . . . defect, [the person] is unable to act in a reasonable manner
in relation to the transaction and the other party has reason to know of [their] condition.” Id. at
329 (quotation omitted). If not totally unable to understand the transaction, Nell at least would
have had severe difficulty acting reasonably. Wilmington’s predecessors had reason to know this,
given her age, the lack of any funds going to her benefit, and—if they interacted with her
whatsoever—her conduct and obvious, outward signs of dementia.
Capacity is not the only defense to the contract. Another is the readily apparent red flags
and telltale signs of fraud and undue influence, which Wilmington’s predecessors ought to have
(or, quite possibly, did) recognize. “It is well settled . . . that an instrument procured by undue
influence is voidable by the person who was unduly influenced.” Howe v. Palmer, 80 Mass. App.
Ct. 736, 742 (2011) (ruling that possible innocence of one party to deed procured by undue
influence did not mean deed was valid). Here, Keith has a strong likelihood of demonstrating
undue influence. He will readily prove (1) Nell was in a significantly weakened mental state, if
not totally incompetent, and even before that state, had no real ability or know-how in managing
finances and assets; (2) Harold had ready and persistent access to Nell and her finances; (3) Harold
in fact exercised influence over Nell, pressuring her into multiple transactions regarding the
Property, and taking her money for his own use regularly; and (4) the reverse mortgage transaction
was a highly unnatural disposition of the Property, that operated to (a) deprive it of all equity, (b)
provide Nell no benefit of the equity, (c) provide all benefit of the equity, without any reasonable
explanation, to Harold alone, instead of any of Nell’s other expansive, loving, living family, and
(d) in a manner that basically guaranteed the eventual foreclosure of the Property, given Nell’s
accelerating decline and Harold’s decision to place her in a nursing home. See and cf Howe, 80
Mass. App. Ct. at 741 (elements of undue influence are (1) unnatural disposition (2) by a person
susceptible to undue influence to the advantage of (3) someone with the opportunity to exercise
undue influence (4) who in fact used that opportunity to procure the disposition). The claim is
supported by the fact that Harold executed a highly similar transaction, taking out an insurance
policy on Nell’s life with himself as sole beneficiary (a transaction later stricken and altered by the
Probate and Family Court; see VC { 40).
These are not the only possible theories on which the note and mortgage might be voided
implicated by the Verified Complaint. They are, however, two grounds on which Keith has a
strong likelihood of success. The Court must consider this likelihood of success in weighing the
harms.
ii. The balance of harms weighs heavily in Nell's favor.
Afier considering Keith’s likelihood of success on the merits, the Court must evaluate the
respective risk of irreparable harm presented to each party in light of those merits. A party only
suffers irreparable harm where that party is damaged in a way that cannot be remedied upon final
judgment in the case. Packaging Industries Group. Inc. v. Cheney, 380 Mass. 609, 617 n.11
(1980). As a matter of law, deprivation of a right to possession and use of real property is
irreparable harm, because money damages cannot compensate that loss of right. See Chesarone v.
P: inewood Builders, Inc., 345 Mass. 236, 241 (1962) (concerning ongoing trespass); Cadigan v.
Brown, 120 Mass. 493 (concerning use of easements). This is exactly the reason that specific
performance is granted in claims for breach of contract for sale of land: money damages generally
cannot remedy depriving an interest in land, because all "real property is unique.” McCarthy, 429
Mass. at 89.
If Keith prevails on the merits of his claim, Nell will be entitled to continued ownership,
possession, and free disposition of her Property as she sees fit. Absent an injunction, Nell’s vested,
half-century-old interest in her family home will be ripped from her by auction sale. The nature
and degree of this irreparable harm is clear, and no amount of money can remedy it. This is a
grave risk of irreparable harm, especially in light of the merits of Keith’s claims. See Cheney, 380
Mass. at 617 (“What matters as to each party is not the raw amount of irreparable harm . . . but
rather the risk of such harm in light of the party's chances of success on the merits”).
The Court must next weigh Nell’s extreme risk against that, if any, of Wilmington. There
is little risk of any harm whatsoever to Wilmington. At worst, the requested injunctive relief
requires them to wait to foreclose upon the Property by sale until it is determined that the mortgage
and note are valid. Wilmington will not lose any rights, property-based or otherwise.> Critically,
Wilmington’s mortgage will remain securing its repayment of the note unless and until Keith
obtains final judgment declaring them void. If Wilmington ultimately prevails in this action, it
can sell the Property and recoup its funds. As Wilmington has no risk of irreparable harm if the
injunction is issued, and Nell might lose all without one, in view of the strong merits of Keith’s
claim, this Court must grant Keith and Nell the requested relief.
B. Plaintiff is entitled to issuance of a Memorandum of Lis Pendens as a matter of law.
Keith is entitled to issuance of a Memorandum of Lis Pendens. This relief is mandatory.
M.G.L. c. 184, § 15(b), provides that this Court shall, upon motion ofa party, issue a Memorandum
of Lis Pendens following filing of a Verified Complaint whenever it determines that “the subject
matter of the action constitutes a claim ofa right to title to real property.” This requirement is met
here.
No party can reasonably dispute that Count I of the Verified Complaint—which seeks a
declaration that a mortgage currently burdening the Property’s title as a matter of record is invalid,
leaving title to the Property free
and clear—is a claim “of a right to title to real property.” Id. No
more is required. “With the mandate that the judge ‘shall’ find and endorse, § 15 gives little
discretion . . . once the judge determines that the subject matter concerns an interest in real estate.”
3 A mortgage does not give any possessory interest in the Property—only the ability to foreclose upon the mortgage’s
terms.
10
Sutherland v. Aolean Development Corp., 399 Mass. 36, 40 (1987). For this reason, the Court
must endorse the Memorandum of Lis Pendens filed herewith.
IV. Conclusion
By filing its Verified Complaint, Keith has complied with the technical requirements of
M.GLL. c. 184, § 15(b). The contents of that Verified Complaint readily establish that the statute’s
substantive standard, requiring only a claim that impacts title to real property, has been met as
well. Further, the substance of the Verified Complaint makes clear that Keith brings at least two
strong claims for voiding of the note and mortgage, which, considered in conjunction with the
extreme risk of irreparable harm to Nell, and the lack of any irreparable harm to Wilmington,
compel issuance of injunctive relief preserving the status quo as to the Property during the
pendency of this litigation.
WHEREFORE, Keith Dixson, on behalf of his ward (and mother) Nell Dixson, respectfully
requests that this Honorable Court issue the appropriate injunctive relief and endorse the
Memorandum of Lis Pendens, as requested.
Respectfully submitted,
Keith Dixson, as Guardian for Nell
Dixson, by his Attorney,
had
KS Hara, BBO No. 698768
Bacon Wilson, P.C.
57 Center Street
Northampton, MA 01060
Tel.: (413) 781.0560
Fax: (413) 739.7740
‘ohara@baconwilson.com
BBO No. 698768
Dated: May 6, 2022
ll
Preview
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPDEN, SS. SUPERIOR COURT CIVIL ACTION NO. 22 0266 KEITH DIXSON, as Guardian for NELL DIXSON, Plaintiff, MEMORANDUM OF LAW IN WILMINGTON SAVINGS FUND HAMPCEN Co. SUPPORT OF PLAINTIFFS SOCIETY, FSB, as Owner Trustee for SUPERIOR Gourt EMERGENCY MOTIONS FOR CASCADE FUNDING MORTGAGE D ISSUANCE OF PRELIMINARY TRUST HB2 INJUNCTION AND MEMORANDUM MAY 0-6 202; OF LIS PENDENS and & CLERK OF COURTS HAROLD P. DIXSON, Defendants I. Introduction The Plaintiff, Keith Dixson, as Guardian for Nell Dixson, has filed a Verified Complaint against the Defendants, Wilmington Savings Fund Society, FSB, as Owner Trustee for Cascade Funding Mortgage Trust HB2 (“Wilmington”), and Harold P. Dixson. The Verified Complaint seeks, in pertinent part, to have a note and mortgage burdening property owned by Nell Dixson declared invalid, and any and all attempts to foreclose on that mortgage immediately, temporarily, and permanently enjoined. Wilmington has scheduled a foreclosure auction forMay 18, 2022. Plaintiff now brings two Emergency Motions relative to the matter: (1) a Motion for Preliminary Injunction, pursuant to Mass. R. Civ. P. 65; and (2) a Motion for Memorandum of Lis Pendens, pursuant to M.G.L. c. 184, § 15(b). IL. Facts! Nell Dixson (“Nell”)? is the sole record owner and occupant of real property located at 5 Garvey Drive, Springfield, Massachusetts (“Property”). Verified Complaint (“VC”) 5-9, 49. Nell has been adjudicated incompetent by the Hampden County Probate and Family Court, and her son, Keith Dixson (“Keith”), was appointed her legal guardian and conservator on May 24, 2019. VE 1-2. Keith is one of five children of Nell and her late husband, Livie Dixson (“Livie”): Ronnie Dixson, Keith Dixson, Sanford Dixson, Sarann Dixson, and Harold Dixson (“Ronnie,” “Keith,” “Sanford,” “Sarann,” and “Harold”). VC 97. Nell and Livie purchased the Property in 1971. VC {|8. They lived there together as a married couple until Livie’s passing on December 25, 2001. VC ¥ 11. All five children lived at the Property at different points in time, and Nell resided there until Harold removed her to a nursing home, against her will, in 2017. VC 49-11, 36. Harold lived at the Property with Nell until 2002. VC 410. As of 2002, Nell was reeling after the recent deaths of Livie and her oldest son, Ronnie, which occurred in the span of four months. VC 419. After these deaths, Nell entered a deep depression, and her health and mental condition declined steadily, rapidly, and irreversibly. VC 19-20. From this point forward, people interacting with Nell would notice frequent mental confusion on Nell’s part. Id. Also from this point forward (if not sooner), Harold began taking great financial advantage of his proximity to Nell and their trusting mother-son relationship. See VC { 17, 30, 40, 49, 55. ! Plaintiff incorporates by reference his.entire Verified Complaint. He provides herein a summary of the most pertinent facts only. ? As multiple parties share a last name, first names are used for ease of reference. No disrespect or informality is intended thereby. The situation was opportune for him to do so. Prior to Livie’s death, for the forty-eight (48) years of Livie and Nell’s marriage, Livie managed most to all of the couple’s financial matters (such as budgeting, bank accounts, retirement funds ,investments, and mortgages or other loans). VC 4 13. As of Livie’s death, Nell was left to manage these affairs herself for the first time. She found herself unable to do so, and asked her son Keith to assist. From then on, so long as Nell lived at the Property, Keith and his brother Sanford paid all major related bills known to them, including taxes, insurance, and maintenance. VC 14-15. After Livie’s death, Nell’s sole asset was the Property, and her sole income was under $1,000.00 per month in social security payments. VC 416, 18. Although Keith and Sanford were paying the major bills, Harold was ‘the child most physically proximate to their mother, Nell, and she depended on Harold for transportation to and from church (and similar help). VC 429. From 2002 forward, Harold began using Nell’s social security payments and other funds for his own benefit. Keith did not have access to Nell’s accounts to discover this until far later. VC 4] 17, 37-40. Harold later took further advantage of Nell, taking out a life insurance policy with her funds with himself as sole beneficiary, and fostering the fraudulent reverse mortgage transaction occasioning the Verified Complaint. VC { 37-60. In general, as Nell’s condition got worse, Harold’s predation of her assets likewise increased. Nell began to drastically decline as early as December 2021. VC 419-20. By 2005, family members and others interacting with Nell had increasingly noticed Nell’s accelerating mental deterioration and inability to handle her own affairs. VC § 23. In 2008, Keith learned Nell had been diagnosed with dementia. From that point forward, Nell’s dementia steadily. intensified and worsened. VC { 25-26. Both before and after the formal diagnosis, people had regularly observed that Nell was confused, forgetful, disoriented, and otherwise in an obviously weakened mental condition. VC 427. By 2013, Nell’s condition had deteriorated to the point that she could not comprehend financial matters or any issues related to her assets (as well as suffering from other cognitive issues). VC {[ 28. Her condition was obvious to third parties. Despite this, in August 2013, at Harold’s behest, Nell purportedly participated in a Home Equity Conversion Mortgage counseling session with a credit agency located out of Agawam. VC 4141-43. According to a certificate issued by the agency, the counseling session was just over a half-hour long and took place by telephone. Although Harold was on the title to the Property at the time (as a result of three, different back- and-forth record transfers between Nell and he and Nell as joint tenants), his name did not appear on the certificate or counseling records. VC 30, 45. Due to her mental state, Nell could not have understood the complex topics allegedly discussed with her in this session. VC 4 47. After the counseling, Nell purportedly went ahead and obtained a $98,208.00 loan from Wilmington’s predecessor in interest, secured by a Home Equity Conversion Mortgage (commonly referred to as a “reverse mortgage”) on the Property. VC 449. On that day, Harold deeded all his interest in the Property to Nell. Id. No legal counsel was involved in any of these transactions. VC § 50. Nell had no real financial need for the loan. VC 53. Of the $68,450.87 in loan proceeds remaining after closing costs available for Nell’s benefit (“Loan Proceeds”), all of the proceeds went—with Wilmington’s predecessor’s full knowledge—to Harold’s individual bank account by direct wire transfer. VC 9 54-55. Nell never received any benefit whatsoever from the loan proceeds. VC 56. At the time Wilmington’s predecessor closed on the loan and mortgage transactions, it would have had the following sources of information that would have readily indicated that something was not right: (1) Had it dealt directly with Nell, real observation of her behavior, confusion, and lack of any understanding of the transaction; (2) Record notice of Harold’s continued back-and-forth deeded interests in the Property, the most recent of which conveniently discarded only to enable the loan; (3) The lack of any legal counsel; (4) The highly abnormal designation of all funds going to a third party, without explanation, which third party had previously been an owner of the property, and could (presumably) have obtained their own conventional financing; (5) Inconsistent signatures on documents; and (6) Absence of any power of attorney or other proof or indication funds disbursed to Harold were intended for, or would actually accrue to, the benefit of the person entering into the note and granting the mortgage. YC 4 30, 41-57. In any event, even if this information had not been available and readily observable, Nell simply did not have the mental capacity to at all understand the nature of any aspect of the transaction. To this day, Nell has no knowledge of the specifics of the transaction, VC 931, 33, 56-57, 60. Eventually, the note (allegedly) and mortgage (as of record) passed to Wilmington. VC 4 58-59. Wilmington now seeks to foreclose on the Property, and has scheduled an auction sale for May 18, 2022. VC 4] 64-65. IDL. Argument A. This Court should issue a preliminary injunction, given Plaintiff's likelihood of success on the merits and the grave risk of irreparable harm absent injunction. To obtain the requested injunction, Keith “must show ‘(1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of [Keith’s] likelihood of success on the merits, the risk of irreparable harm to [Nell] outweighs the potential harm to [Wilmington] in granting the injunction.” King v. Shank, 92 Mass. App. Ct. 837, 839 (2018), quoting Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001). On the above facts, an injunction is warranted here. At this early stage, the Court can conclude that Keith has at least a reasonable likelihood of success on the merits. In light of any likelihood of success on the merits, the grave harm faced by Nell is compelling. The Property is her sole asset, and the center of her family’s life in Springfield for the last 50-plus years. It is where she built a home and raised children. It is the legacy she has to pass on to her children. And, as a result of the fraudulent activities of one child, it is at risk of being ripped away from her due to a mortgage and note that she had no capacity to agree to. The fact that Wilmington faces no irreparable harm—as the Property will remain sitting there, ready to satisfy the note as secured by the mortgage if they are in fact valid—is likewise compelling. The Court should issue the injunction. L Keith will likely succeed on the merits. First, as to the merits, Keith’s complaint avers facts giving rise to several separate grounds on which the note and mortgage might fail. In general, any defense that would render the underlying note contract void renders the entire transaction—including the mortgage interest— void as well. See, e.g., Baker v. Collins, 91 Mass. 253 (1864) (discussing illegality defense). First and foremost of these contract defenses here is Nell’s longstanding, well-documented lack of capacity, which had existed for at least 5 years before giving the mortgage interest in question. Massachusetts courts have long held notes and mortgages void where the contracting grantor lacked capacity. See Sutcliffe v. Heatley, 232 Mass. 231, 232-233 (1919) (“[A]n inability to realize the true purport of the matter at hand is equivalent to mental incapacity. When this is established then a contract is voidable. It is no defense that the other party acted fairly and without knowledge of the want of mental faculty .... A decree is to be entered perpetually enjoining the defendant from foreclosing the mortgage, declaring [it] and note void and ordering the defendant to make, execute and deliver to the plaintiff a discharge”); Brigham v. Fayerweather, 144 Mass. 48 (1887). Keith can prove Nell’s incapacity to contract as of 2013 on either of two theories. One is the traditional “cognitive test:” whether the person contracting “was of unsound mind, and incapable of understanding and deciding upon the terms of the contract.” Sparrow v. Demonico, 461 Mass. 322, 328 (2012) (quotation omitted). Here, Keith will introduce medical records and other evidence clearly showing that Nell could not have understood the complex transaction at issue in 2013. Nell was unable to handle even basic household finance management alone as early as 2002. She thereafter declined, ultimately being clinically diagnosed with dementia in 2008— five whole years (each filled with increasing decline) prior to the 2013 transactions at issue. Second, Keith can demonstrate Nell’s incapacity under the “modern test:” contracts are also voidable where “by reason of mental . . . defect, [the person] is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of [their] condition.” Id. at 329 (quotation omitted). If not totally unable to understand the transaction, Nell at least would have had severe difficulty acting reasonably. Wilmington’s predecessors had reason to know this, given her age, the lack of any funds going to her benefit, and—if they interacted with her whatsoever—her conduct and obvious, outward signs of dementia. Capacity is not the only defense to the contract. Another is the readily apparent red flags and telltale signs of fraud and undue influence, which Wilmington’s predecessors ought to have (or, quite possibly, did) recognize. “It is well settled . . . that an instrument procured by undue influence is voidable by the person who was unduly influenced.” Howe v. Palmer, 80 Mass. App. Ct. 736, 742 (2011) (ruling that possible innocence of one party to deed procured by undue influence did not mean deed was valid). Here, Keith has a strong likelihood of demonstrating undue influence. He will readily prove (1) Nell was in a significantly weakened mental state, if not totally incompetent, and even before that state, had no real ability or know-how in managing finances and assets; (2) Harold had ready and persistent access to Nell and her finances; (3) Harold in fact exercised influence over Nell, pressuring her into multiple transactions regarding the Property, and taking her money for his own use regularly; and (4) the reverse mortgage transaction was a highly unnatural disposition of the Property, that operated to (a) deprive it of all equity, (b) provide Nell no benefit of the equity, (c) provide all benefit of the equity, without any reasonable explanation, to Harold alone, instead of any of Nell’s other expansive, loving, living family, and (d) in a manner that basically guaranteed the eventual foreclosure of the Property, given Nell’s accelerating decline and Harold’s decision to place her in a nursing home. See and cf Howe, 80 Mass. App. Ct. at 741 (elements of undue influence are (1) unnatural disposition (2) by a person susceptible to undue influence to the advantage of (3) someone with the opportunity to exercise undue influence (4) who in fact used that opportunity to procure the disposition). The claim is supported by the fact that Harold executed a highly similar transaction, taking out an insurance policy on Nell’s life with himself as sole beneficiary (a transaction later stricken and altered by the Probate and Family Court; see VC { 40). These are not the only possible theories on which the note and mortgage might be voided implicated by the Verified Complaint. They are, however, two grounds on which Keith has a strong likelihood of success. The Court must consider this likelihood of success in weighing the harms. ii. The balance of harms weighs heavily in Nell's favor. Afier considering Keith’s likelihood of success on the merits, the Court must evaluate the respective risk of irreparable harm presented to each party in light of those merits. A party only suffers irreparable harm where that party is damaged in a way that cannot be remedied upon final judgment in the case. Packaging Industries Group. Inc. v. Cheney, 380 Mass. 609, 617 n.11 (1980). As a matter of law, deprivation of a right to possession and use of real property is irreparable harm, because money damages cannot compensate that loss of right. See Chesarone v. P: inewood Builders, Inc., 345 Mass. 236, 241 (1962) (concerning ongoing trespass); Cadigan v. Brown, 120 Mass. 493 (concerning use of easements). This is exactly the reason that specific performance is granted in claims for breach of contract for sale of land: money damages generally cannot remedy depriving an interest in land, because all "real property is unique.” McCarthy, 429 Mass. at 89. If Keith prevails on the merits of his claim, Nell will be entitled to continued ownership, possession, and free disposition of her Property as she sees fit. Absent an injunction, Nell’s vested, half-century-old interest in her family home will be ripped from her by auction sale. The nature and degree of this irreparable harm is clear, and no amount of money can remedy it. This is a grave risk of irreparable harm, especially in light of the merits of Keith’s claims. See Cheney, 380 Mass. at 617 (“What matters as to each party is not the raw amount of irreparable harm . . . but rather the risk of such harm in light of the party's chances of success on the merits”). The Court must next weigh Nell’s extreme risk against that, if any, of Wilmington. There is little risk of any harm whatsoever to Wilmington. At worst, the requested injunctive relief requires them to wait to foreclose upon the Property by sale until it is determined that the mortgage and note are valid. Wilmington will not lose any rights, property-based or otherwise.> Critically, Wilmington’s mortgage will remain securing its repayment of the note unless and until Keith obtains final judgment declaring them void. If Wilmington ultimately prevails in this action, it can sell the Property and recoup its funds. As Wilmington has no risk of irreparable harm if the injunction is issued, and Nell might lose all without one, in view of the strong merits of Keith’s claim, this Court must grant Keith and Nell the requested relief. B. Plaintiff is entitled to issuance of a Memorandum of Lis Pendens as a matter of law. Keith is entitled to issuance of a Memorandum of Lis Pendens. This relief is mandatory. M.G.L. c. 184, § 15(b), provides that this Court shall, upon motion ofa party, issue a Memorandum of Lis Pendens following filing of a Verified Complaint whenever it determines that “the subject matter of the action constitutes a claim ofa right to title to real property.” This requirement is met here. No party can reasonably dispute that Count I of the Verified Complaint—which seeks a declaration that a mortgage currently burdening the Property’s title as a matter of record is invalid, leaving title to the Property free and clear—is a claim “of a right to title to real property.” Id. No more is required. “With the mandate that the judge ‘shall’ find and endorse, § 15 gives little discretion . . . once the judge determines that the subject matter concerns an interest in real estate.” 3 A mortgage does not give any possessory interest in the Property—only the ability to foreclose upon the mortgage’s terms. 10 Sutherland v. Aolean Development Corp., 399 Mass. 36, 40 (1987). For this reason, the Court must endorse the Memorandum of Lis Pendens filed herewith. IV. Conclusion By filing its Verified Complaint, Keith has complied with the technical requirements of M.GLL. c. 184, § 15(b). The contents of that Verified Complaint readily establish that the statute’s substantive standard, requiring only a claim that impacts title to real property, has been met as well. Further, the substance of the Verified Complaint makes clear that Keith brings at least two strong claims for voiding of the note and mortgage, which, considered in conjunction with the extreme risk of irreparable harm to Nell, and the lack of any irreparable harm to Wilmington, compel issuance of injunctive relief preserving the status quo as to the Property during the pendency of this litigation. WHEREFORE, Keith Dixson, on behalf of his ward (and mother) Nell Dixson, respectfully requests that this Honorable Court issue the appropriate injunctive relief and endorse the Memorandum of Lis Pendens, as requested. Respectfully submitted, Keith Dixson, as Guardian for Nell Dixson, by his Attorney, had KS Hara, BBO No. 698768 Bacon Wilson, P.C. 57 Center Street Northampton, MA 01060 Tel.: (413) 781.0560 Fax: (413) 739.7740 ‘ohara@baconwilson.com BBO No. 698768 Dated: May 6, 2022 ll