Preview
FS
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT
DEPARTMENT OF THE
TRIAL COURT
CIVIL ACTION
NO. 2173CV00074
ANTONIA V. ALVES,
Plaintiff BRISTOL. SS SUPERIOR COURT
FILED
¥.
FEB 2 4 2021
ELLIOT SCHNEIDER, et al., MARC J SANTOS, ESQ.
CLERK/MAGISTRATE
Defendants
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS ELLIOT
SCHNEIDER AND MOTORCADE, LLC’S OPPOSITION TO PLAINTIFF’S
MOTION FOR ENTRY OF A LIS PENDENS
I. INTRODUCTION
The Defendants, Elliot Schneider (“Schneider”) and Motorcade LLC
(“Motorcade”) submit their Memorandum of Law in support of their opposition to
Plaintiff's Motion For Entry Of A Lis Pendens.. Defendants recognize the steep hurdle
that they face at this stage of the litigation in opposing the endorsement of a lis pendens
as Plaintiff's Verified Complaint alleges an interest in real property known as 17 Travers
Street, North Dartmouth, MA. However, Defendants state that the Court should deny the
entry of lis pendens because the Verified Complaint contains serious omissions as stated’
below.
Tl, MATERIAL OMMISSION OF FACTS!
1 The Verified Complaint lists the plaintiff's address as 17 Travers Street, North
Dartmouth, MA, the address of the property (“Property”) at issue in this litigation. The
Verified Complaint does not state when the plaintiff started living at the Property or why
she is living at the Property. In fact, plaintiff is a squatter on the Property and is the
subject of a pending eviction action.
4. The Verified Complaint Ex. 1 is a Purchase and Sale Agreement (“P&S”) for the
Property. The P&S contains a signature for Paylee LLC (“Paylee”), the seller, that is
supposedly the manager of Paylee’s signature. In fact, that is not her signature and was.
was actually signed by Lezan Hodge’s late father, George Hodge (“George”).
5. George had no ownership interest in Paylee and was. not authorized to sign Lezan
Hodge’s name.
6. Even more disturbing, plaintiff knew that Lezan Hodge did not sign the P&S and that
George actually signed the P&S. Plaintiff saw George sign her name on the P&S at a law
firm, Sullivan, Williams & Quintin located in New Bedford, MA.
7. Even if Lezan Hodge had signed the P&S, the Verified Complaint fails to reference
that the closing for the Property was scheduled for June 1, 2020 and financing of
$200,000 had to be obtained by May 28, 2020. This is material because the date the P&S
is signed is June 16, 2020. In other words, the time for closing had already passed when
‘ Defendants anticipate providing factual support for all facts stated herein via affidavit or
deposition testimony. They have not yet had the opportunity to procure the same.
2
the P&S was supposedly signed by Lezan Hodge. Moreover, the P&S contains a “time is
of the essence” clause.
8. The Verified Complaint also does not state that plaintiff ever received financing of
$208,000, so it is doubtful that she could have closed on the Property.
9. Ex. 2 to the Verified Complaint is the $100,000 deposit given to Paylee. Again, the
endorsement of the deposit check is not Lezan Hodge’s and appears to be her father’s
signature.
11. The Verified Complaint fails to reference that there is a first mortgage on the Property
that predates the transfer of the Property from Paylee to Motorcade. The first mortgage is
dated April 7, 2020 and duly recorded in the registry of deeds.
12. Motorcade is an entity owned by the first mortgagee, Signature Lending LLC, on the
Property. Paylee gave the Property to Motorcade as a deed in lieu when Paylee could not
pay its obligation under a Commercial Balloon Note that became due on October 7, 2020.
Il. ARGUMENT
A.A “Time Is Of The Essence” Clause Obviated Seller’s Obligation To Convey
The P&S is invalid as a matter of law because the time for conveyance passed
The time for performance under the P&S was June 1, 2020. Ex. 1. “Under
Massachusetts law, parties will be held to the deadlines they have imposed upon
themselves when they agree in writing that time is to be of the essence. McCarthy v.
Tobin, 429 Mass. 84, 88 (1999).; Vickery v. Walton, 26 Mass. App. Ct. 1030, 1031
(1989), The deadline is a condition subsequent, and if the condition subsequent is not
met (Le, an executed P & S agreement), or waived, then the parties' obligations to each
other are extinguished. MeCarthy v. Tobin, supra; Owen v. Kessler, 56 Mass. App. Ct.
466, 469 (2002). Thus, Paylee’s obligation to sell the Property was extinguished after
June 1, 2020.
B. Paylee Has No Obligation To Sell Because Its Signature On The P&S Is A
Forgery And Plaintiff Was Aware Of The Forgery
Where the P&S is void because of a forgery, a forgery which the plaintiff knew
about, the Verified Complaint is frivolous and subject to dismissal.
C. The Statute of Frauds Is An Absolute Defense Due To The Forged
Signature On The P&S
Since the signature of Paylee on the P&S is a forgery, there is no writing that
satisfies the Statute of Frauds, G. L. c. 259, s. 1.2
D. There Is No Evidence That Plaintiff Had The Financial Ability To Proceed
The P&S provided a deadline of May 28, 2020 to receive financing, Ex. 1. The
Verified Complaint does not aver that. plaintiff had the financial wherewithal to pay the
remaining amount of money due to the seller, Paylee,to complete the transaction.
2 GL. c. 259, § 1, providing in pertinent part that:
[nJo action shall be brought: ... Upon a contract for the sale of lands, tenements or
hereditaments or of any interest in or concerning them ... Unless the promise, contract or
agreement upon which such action is brought, or some: memorandum or note thereof, is in
writing and signed by the party to be charged therewith or by some person thereunto
lawfully authorized
ae
IV. CONCLUSION
For the reasons stated herein, the Defendants Elliot Schneider and Motorcade LLC
request that the Court deny Plaintiff's request for the entry of a lis pendens.
Respectfully submitted,
Defendants, .
ELLIOT SCHNEIDER and MOTORCADE, LLCQ
By pe
Jobn B. Harkavy, Esq. BBO No. 541900
Law Office of John B. Harkavy
89 Woodside Avenue
Wellesley, MA 02482
Tel: 617 510-2121
jharkavy@harkavylaw.net
Date: February 24 , 2021
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon the attorneys of
record by email on_24 _, 2021.
as
Preview
FS COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2173CV00074 ANTONIA V. ALVES, Plaintiff BRISTOL. SS SUPERIOR COURT FILED ¥. FEB 2 4 2021 ELLIOT SCHNEIDER, et al., MARC J SANTOS, ESQ. CLERK/MAGISTRATE Defendants MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS ELLIOT SCHNEIDER AND MOTORCADE, LLC’S OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY OF A LIS PENDENS I. INTRODUCTION The Defendants, Elliot Schneider (“Schneider”) and Motorcade LLC (“Motorcade”) submit their Memorandum of Law in support of their opposition to Plaintiff's Motion For Entry Of A Lis Pendens.. Defendants recognize the steep hurdle that they face at this stage of the litigation in opposing the endorsement of a lis pendens as Plaintiff's Verified Complaint alleges an interest in real property known as 17 Travers Street, North Dartmouth, MA. However, Defendants state that the Court should deny the entry of lis pendens because the Verified Complaint contains serious omissions as stated’ below. Tl, MATERIAL OMMISSION OF FACTS! 1 The Verified Complaint lists the plaintiff's address as 17 Travers Street, North Dartmouth, MA, the address of the property (“Property”) at issue in this litigation. The Verified Complaint does not state when the plaintiff started living at the Property or why she is living at the Property. In fact, plaintiff is a squatter on the Property and is the subject of a pending eviction action. 4. The Verified Complaint Ex. 1 is a Purchase and Sale Agreement (“P&S”) for the Property. The P&S contains a signature for Paylee LLC (“Paylee”), the seller, that is supposedly the manager of Paylee’s signature. In fact, that is not her signature and was. was actually signed by Lezan Hodge’s late father, George Hodge (“George”). 5. George had no ownership interest in Paylee and was. not authorized to sign Lezan Hodge’s name. 6. Even more disturbing, plaintiff knew that Lezan Hodge did not sign the P&S and that George actually signed the P&S. Plaintiff saw George sign her name on the P&S at a law firm, Sullivan, Williams & Quintin located in New Bedford, MA. 7. Even if Lezan Hodge had signed the P&S, the Verified Complaint fails to reference that the closing for the Property was scheduled for June 1, 2020 and financing of $200,000 had to be obtained by May 28, 2020. This is material because the date the P&S is signed is June 16, 2020. In other words, the time for closing had already passed when ‘ Defendants anticipate providing factual support for all facts stated herein via affidavit or deposition testimony. They have not yet had the opportunity to procure the same. 2 the P&S was supposedly signed by Lezan Hodge. Moreover, the P&S contains a “time is of the essence” clause. 8. The Verified Complaint also does not state that plaintiff ever received financing of $208,000, so it is doubtful that she could have closed on the Property. 9. Ex. 2 to the Verified Complaint is the $100,000 deposit given to Paylee. Again, the endorsement of the deposit check is not Lezan Hodge’s and appears to be her father’s signature. 11. The Verified Complaint fails to reference that there is a first mortgage on the Property that predates the transfer of the Property from Paylee to Motorcade. The first mortgage is dated April 7, 2020 and duly recorded in the registry of deeds. 12. Motorcade is an entity owned by the first mortgagee, Signature Lending LLC, on the Property. Paylee gave the Property to Motorcade as a deed in lieu when Paylee could not pay its obligation under a Commercial Balloon Note that became due on October 7, 2020. Il. ARGUMENT A.A “Time Is Of The Essence” Clause Obviated Seller’s Obligation To Convey The P&S is invalid as a matter of law because the time for conveyance passed The time for performance under the P&S was June 1, 2020. Ex. 1. “Under Massachusetts law, parties will be held to the deadlines they have imposed upon themselves when they agree in writing that time is to be of the essence. McCarthy v. Tobin, 429 Mass. 84, 88 (1999).; Vickery v. Walton, 26 Mass. App. Ct. 1030, 1031 (1989), The deadline is a condition subsequent, and if the condition subsequent is not met (Le, an executed P & S agreement), or waived, then the parties' obligations to each other are extinguished. MeCarthy v. Tobin, supra; Owen v. Kessler, 56 Mass. App. Ct. 466, 469 (2002). Thus, Paylee’s obligation to sell the Property was extinguished after June 1, 2020. B. Paylee Has No Obligation To Sell Because Its Signature On The P&S Is A Forgery And Plaintiff Was Aware Of The Forgery Where the P&S is void because of a forgery, a forgery which the plaintiff knew about, the Verified Complaint is frivolous and subject to dismissal. C. The Statute of Frauds Is An Absolute Defense Due To The Forged Signature On The P&S Since the signature of Paylee on the P&S is a forgery, there is no writing that satisfies the Statute of Frauds, G. L. c. 259, s. 1.2 D. There Is No Evidence That Plaintiff Had The Financial Ability To Proceed The P&S provided a deadline of May 28, 2020 to receive financing, Ex. 1. The Verified Complaint does not aver that. plaintiff had the financial wherewithal to pay the remaining amount of money due to the seller, Paylee,to complete the transaction. 2 GL. c. 259, § 1, providing in pertinent part that: [nJo action shall be brought: ... Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them ... Unless the promise, contract or agreement upon which such action is brought, or some: memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto lawfully authorized ae IV. CONCLUSION For the reasons stated herein, the Defendants Elliot Schneider and Motorcade LLC request that the Court deny Plaintiff's request for the entry of a lis pendens. Respectfully submitted, Defendants, . ELLIOT SCHNEIDER and MOTORCADE, LLCQ By pe Jobn B. Harkavy, Esq. BBO No. 541900 Law Office of John B. Harkavy 89 Woodside Avenue Wellesley, MA 02482 Tel: 617 510-2121 jharkavy@harkavylaw.net Date: February 24 , 2021 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served upon the attorneys of record by email on_24 _, 2021. as