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COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
SUPERIOR COURT DEPARTMENT
BRISTOL COUNTY, ss
ANTONIA V. ALVES,
Plaintiff,
) DOCKET NO.: 2173CV00074
VS. )
BRISTOL SS SUPERIOR COURT
ESTATE OF GEORGE ELVIS HODGE,
FILED
PAYLEE, LLC, LEZAN HODGE,
MOTORCADE, LLC, AND APR 1 4 2021
ELLIOT SCHNEIDER,
MARC J SANTOS. ESQ.
Defendants CLERK/MAGISTRATE
PLAINTIFF ANTONIA V. ALVES’ OPPOSITION TO DEFENDANTS, ELLIOT
SCHNEIDER, AND MOTORCADE, LLC’S SPECIAL MOTION TO DISMISS
PURSUANT TOG. L, C. 184 15
Plaintiff, Antonia Alves, (“Alves”) hereby opposes the Special Motion to Dismiss filed
by Defendants Elliot Schneider (“Schneider”) and Motorcade, LLC (“Motorcade”). In support
of her position, Alves states as follows:
Plaintiffs Verified Complaint states meritorious claims for relief. Defendants’ Special
Motion to Dismiss, filed under the lis pendens statute, G. L. c. 184, § 15 (c), raises a number of
legal arguments as to the merits of certain claims made by the Plaintiff. However, the Special
Motion to Dismiss does not address the central issue at this stage of the litigation. In particular,
Defendants’ Motion fails to establish that Alves’ claim to a property interest in 17 Travers
Street in Dartmouth (“the Property”) is frivolous because it is: (1) devoid of any reasonable
factual support; (2) devoid of any arguable basis in law; or (3) subject to dismissal based upon
a valid legal defense such as the statute of frauds.
Facts
1 Plaintiff Antonia Alves (“Alves”) and Defendant Paylee, LLC (“Paylee”) signed
a Purchase and Sales Agreement for the property at 17 Travers Street (the “Property”). At the
time, Alves paid Paylee a One Hundred Thousand ($100,000) Dollar deposit toward the
purchase price.
2. Alves and Paylee verbally agreed to extend the Purchase and Sales Agreement
through the end of October. The extension was required because Paylee had failed to timely
complete promised work at the Property.
3 To expedite the transaction and acting in reliance on the verbal extensions,
Alves paid for materials needed to complete the required work; Alves and her husband
completed some of the work at the Property; and Alves moved her family into the Property.
4. Defendant Eliot Schneider (“Schneider”) knew that Alves and Paylee had a
pending Purchase and Sales Agreement for the Property.
5 Despite this fact, on October 9, 2020, while George Hodge (“George”) was
laying on his deathbed (Mr. Hodge passed away the following day from cancer), Schneider
traveled to meet with George’s daughter Lezan Hodge (“Lezan”) to induce her to sign a One
($1.00) Deed transferring the Property to his corporation Motorcade, LLC.
6 In so doing, Schneider and Motorcade encouraged Paylee to breach Paylee’s
Purchase and Sales Agreement with Alves, knowingly denying Alves the benefit of that
Agreement.
7. On October 9, 2020, Lezan signed a One ($1.00) Deed transferring the Property
from Paylee to Motorcade who currently holds title to the Property.
Plaintiff's Response to Facts alleged in Defendants’ Motion which are
Dispute or which require further Discovery
8 Alves has no knowledge as to whether Lezan or George Hodge signed the
Purchase and Sales Agreement on behalf of Paylee. But, Alves believed that Paylee had
committed to the transaction as evidenced by Alves paying a One Hundred Thousand
($100,000) Deposit in connection with the Agreement.
9 Alves has no knowledge as to whether Lezan or George signed and deposited.
the One Hundred Thousand ($100,000) Dollar deposit check that Alves provided to Paylee in
connection with the Purchase and Sales Agreement.
10. Alves was not privy to emails between George Hodge and his attorney. Alves
never saw a Purchase and Sales Agreement calling for a purchase price of Three Hundred
Sixty-Three Thousand ($363,000) Dollars.
11. Alves had been approved for the purchase price loan, subject to the work being
completed on the Property, and Alves was scheduling the closing for October 20, 2020 when
she learned that Lezan had transferred the property to Motorcade.
Summary of Argument
To prevail on their Special Motion to Dismiss, Defendants must prove that Alves’ lis
pendens is frivolous because it is: (1) devoid of any reasonable factual support; (2) devoid of
any arguable basis in law; or (3) subject to dismissal based upon a valid legal defense such as
the statute of frauds.
The legal question is not whether any individual claim initiated by Alves is strong or
will ultimately prevail. The proper legal question is whether Alves has stated a claim for an
interest in real property; and whether (or not) the action which forms the basis of the issuance
of the lis pendens is frivolous.
The Verified Complaint states a valid claim for a breach of the Alves — Paylee Purchase
and Sales Agreement for the Property. Defendants were aware of the Alves-Paylee Purchase
and Sales Agreement. Despite this fact, on October 9, 2020, while Lezan’s father lay on his
deathbed, Schneider induced Lezan to breach the Purchase and Sales Agreement by executing a
One ($1.00) deed from, Paylee to Motorcade. In these circumstances, Alves has stated a viable
claim that she has an interest in the Property. Moreover, as the current title holder of the
Property, Defendant Motorcade is a necessary party to Alves’ claim for Specific Performance.
In these circumstances, Defendants’ Special Motion to Dismiss should be denied.
The Motion to Dismiss addresses a number of legal issues that will ultimately be
resolved at atrial. But, the Motion avoids the essential legal question which is whether (or not)
the Verified Complaint states a claim that affects the title to real property and whether the
Verified Complaint is frivolous because it is not backed by “reasonable factual support,” and
“arguable basis at law.” G. L. c. 184, § 15 (c).
Although the Motion to Dismiss is captioned as a Motion to Dismiss under G. L. c. 184,
§ 15 (c), Defendants’ Motion does not direct the Court to the central question set forth above.
Rather than meeting the exacting standard of the lis pendens statute, the Motion pivots and asks
the Court to focus on the merits of certain claims employing the Summary Judgment standard.
The purpose of the Special Motion to Dismiss under the lis pendens statute is to determine
whether the lis pendens should be released. The statute was not intended to serve as an end
around the litigation process for a Defendant seeking to dismiss certain claims before discovery
has begun. It was designed to determine whether or not the lis pendens should remain in place.
In essence, Defendants’ Motion to Dismiss seeks to remove Defendants Motorcade and
Schneider from the case by directing all responsibility upon Paylee, George’s Estate, and
Lezan, all of whom are also liable under the Verified Complaint. In so doing, Motorcade and
Schneider acknowledge that the Verified Complaint is not frivolous. Since the Verified
Complaint against George, Lezan and Paylee seeks specific performance of the Purchase and
Sales Agreement, the Special Motion to Dismiss and release the lis pendens should be denied.
To the extent that the Motion to Dismiss is based, in part, on an unsubstantiated
allegation that the relevant Purchase and Sales Agreement is a forgery, it should be denied
because there are material facts in dispute regarding this issue. Moreover, this contention
ignores the direct evidence to the contrary set forth in the Verified Complaint.
Scheider and Motorcade contend that they are entitled to own the Property because, on
October 9, 2020, they pressured Lezan into executing a deed to the Property to Motorcade. At
the time, Schneider knew that the execution of the deed by Lezan would constitute a breach of
the Alves-Paylee Purchase and Sales Agreement. A fair review of the record permits an
inference that Schneider approached Lezan as her father was dying and used a predatory
Promissory Note as a sword to convince Lezan to ignore her legal obligation to Alves and,
instead, to convey the property to Motorcade. This type of business practice should not be t
encouraged by the Courts.
The Defendants’ Motion to Dismiss raises many factual issues that are in dispute but it
does not establish that Plaintiff's claim to an interest in the Property is in any way frivolous.
As such, the lis pendens has been appropriately recorded and the Defendants? Motion to
Dismiss should be denied.
1, The Verified Complaint is not frivolous; it is well supported by factual allegations
and Massachusetts law.
The Defendants assert in their Motion to Dismiss that the Purchase and Sales
Agreement had lapsed at the time Paylee conveyed the Property to Motorcade. However, the
Verified Complaint solidly alleges that, although Purchase and Sales Agreement had not been
formally extended, the parties had an oral agreement to continue the closing beyond September
2, 2020. See Verified Complaint {f[ 22, 25-27. The Verified Complaint also alleges that the
verbal agreement to continue the closing date was affirmed and reaffirmed by the parties words
and actions. See id. On or about October 2, 2020, Lezan agreed to reimburse Plaintiff at the
closing, for out of pocket expenses that Alves had incurred for improvements to the Property.
The Verified Complaint also solidly alleges that, contrary to the assertions of the Defendants in
their Motion to Dismiss, the Alves’ lender was on track to finance the sale. See id. 124. The
postponement of the Closing was not due Alves’ failure. The postponement was needed
because Paylee had not’been completed work at the property. See id. {J 19-22.
The Verified Complaint states that Alves and Paylee had an oral agreement to extend
the closing date. An oral agreement with regard to a real estate contract “may be specifically
enforced notwithstanding failure to comply with the Statute of Frauds if it is established that
the party seeking enforcement, in reasonable reliance on the contract and on the continuing
assent of the party against whom enforcement is sought, has so changed his position that
injustice can be avoided only by specific enforcement.” Hickey v. Green, 14 Mass.App.Ct. 671,
673 (1982), quoting from Restatement (Second) of Contracts § 129 (1981). “A plaintiff's
detrimental reliance on, or part performance of, an oral agreement to convey property may
estop the defendant from pleading the Statute of Frauds as a defense.” Nessralla v. Peck, 403
Mass. 757, 761-762 (1989). “Specific performance under this rule may be warranted where the
party seeking relief suffers ‘the infliction of an unjust and unconscientious injury and loss.’
Glass v. Hulbert, 102 Mass. 24, 36 (1869).” Jd.
Alves’ Verified Complaint alleges that, in reliance on Paylee’s promise to convey the
property, Alves paid a $100,000 deposit, Alves spent time and money to make improvements to
the property; see id. {J 25-27, and Alves moved into the property with her husband and eleven
(11) year-old daughter. See id. {{] 8, 49. Under Massachusetts law, Plaintiff’s actions in
detrimental reliance on an oral agreement to continue a closing date, bring the agreement
within the Statute of Frauds, or at a minimum create a triable issue as to whether (or not) the
Statute of Frauds has been satisfied. Schneider’s assertion that the Purchase and Sales
Agreement had expired as a matter of law is not correct.
Defendants also allege that Lezan did not sign the Purchase and Sales Agreement. If
this is true, it was not known to Alves. Moreover, whether Lezan signed the Purchas and Sales
Agreement or whether it was signed by George acting as her agent or acting with actual or
apparent authority presents a question of fact that cannot be resolved at this stage of the
litigation.
The Defendants’ assertion that there is no evidence that Alves could have paid for the
Property is without merit. The Verified Complaint alleges, and provides a text message from
the lender stating the closing could be set for October 20, 2020. See Verified Complaint, 24,
and ex. 6.
The threshold determination for endorsement of a lis pendens under G. L.c. 184, § 15 is
whether the proceeding “affects the title to real property or the use and occupation thereof or
the buildings thereon.” /d., see also Wolfe v. Gormally, 440 Mass. 699, 706 (2004). The
fundamental purpose of the statute is to “ensure that a prospective third-party transferee can,
with the exercise of reasonable prudence, acquire information relevant to a decision whether to
consummate the transaction.” Wolfe, 440 Mass. at 706, quoting Debral Realty, Inc. v.
DiChiara, 383 Mass, 559, 562 (1981). “The judge’s discretion in this regard is limited: ‘once
the judge determines that the subject matter of the action concerns an interest in real estate[,] . .
. the allowance or denial of a memorandum of lis pendens hinges on the nature of the claim, not
the merits thereof.” DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 905 (2016).” Ferguson v.
Maxim, 96 Mass. App. Ct. 385, 388-389 (2019).
The Defendants bear the burden of establishing that Alves’ claim supporting
endorsement of the lis pendens, is frivolous. “In the context of a special motion to dismiss
pursuant to § 15 (c), the burden is on the defendant to demonstrate, by a preponderance of the
evidence, that the plaintiff's claim is completely lacking in ‘reasonable factual support +2. 0F
. any arguable basis in law.”” Ferguson, 96 Mass. App. Ct. at 390. The Special Motion to
Dismiss is not a route to an expedited Rule 56 Motion. The purpose of the statute is to
determine early in the litigation process whether (or not) the underlying claim which forms the
basis for the lis pendens is frivolous. In this case, Defendants cannot meet this heavy burden.
Alves paid $100,000 of consideration toward a valid agreement to purchase the
Property. In reliance on that agreement, Alves made improvements to the Property and Alves
moved into the Property with her husband and child. While the agreement was pending and
Alves was in the process of scheduling the closing, Schneider induced Paylee to convey the
Property to Motorcade, which full knowledge that Alves had agreement to sell.the property to
Alves.
In her Prayers for Relief, Alves has asked this Court to order Specific Performance of
her agreement with Paylee. In these circumstances, the Plaintiff's action cannot be deemed
frivolous. It is supported by sufficient factual allegations made in the Verified Complaint, and it
is supported by Massachusetts law. This is precisely the type of case for which the lis pendens
statute was legislated to apply to because “it affects the title to real property [and] the use and
occupation thereof or the buildings thereon.” G. L. c. 184, § 15. The Special Motion to
Dismiss should be denied.
2. The Defendant’s special motion to dismiss fails to meet its burden under G. L. c.
184, § 15 (©).
As stated above, a Special Motion to Dismiss under G, L. c. 184, § 15 (c) is not an
avenue for an expedited Rule 56 Motion for Summary Judgment. Under section 15 (c), the
preponderance of the evidence standard applies not to the question of liability, but rather to the
question of whether the underlying claim is frivolous. Judicial endorsement of a memorandum
of lis pendens under G. L. c. 184, § 15 (a) does not require a finding by the court before which
the claim is pending as to the claim’s likelihood of success. See Wolfe, 440 Mass. at 706.
The Plaintiff's unjust enrichment claim cites the improvements she made to the
property, and the $100,000 deposit. It claims that the “Defendants have received money, real
property, and other value under such circumstances that in equity and good conscience it
should be returned to the Plaintiff.” Verified Complaint, [{ 69-76, see also 17 Mass. Prac.,
Prima Facie Case, § 5.1 (5" ed.), citing Suncook Mills v. United States, 44 F. Supp. 744 (D.
Mass. 1942), and other cases cited. The Defendants in their Special Motion to Dismiss do not
claim—nor could they—that the Plaintiff's unjust enrichment claim is frivolous. Instead, they
claim that they “are entitled to summary judgment on Count V.” _
In October 2020, Schneider’s corporation and Alves were both owed financial
obligations by Paylee. Alves had a contractual right to purchase the Property. Schneider had a
tight to collect money under a Promissory Note that was secure by a mortgage. Rather than
seeking to collect the money owed from Paylee, Schneider convinced Lezan to breach the
Purchase and Sales Agreement with Alves and.to sign a deed to the Property to Motorcade
enriching himself and his corporation at the expense of Alves.
As to Count II of the Veritied Complaint for Fraud and Deceit, Schneider and
Motorcade concede in their memorandum that Plaintiff has a valid claim for redress against
Paylee, George’s Estate and Lezan. They argue that this specific claim should not be made
against them.
Schneider was aware of Plaintiff’s agreement with Paylee to buy the Property. Schneider knew
that Alves was planning to close on the Property. Because Schneider took titlé to the property
for Motorcade, knowing that Alves had a Purchase and Sales Agreement that was scheduled to
close on the property within a few days, he may be held jointly and severally liable for the
deceit which originated with Paylee and concluded with the concerted actions of Schneider,
Motorcade, Paylee and Lezan. Alves’ claim for fraud and deceit count is not frivolous.
With regard to Count I of the Verified Complaint, the Defendants are incorrect in their
assertion that Alves is not a creditor. Under G. L. c. 109A, § 2 a creditor is defined as “a person
who has a claim.” A claim is defined as “a right to payment, whether or not the right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured.” Jd. Plaintiff has multiple claims under this
definition. Defendants’ assertion that they are not liable under the G. L. c. 109A, § 6, fails to
10
pay heed to the entire section of the statute cited, specifically that “the debtor was insolvent at
that time or the debtor became insolvent as a result of the transfer or obligation.” id, It appears
that the moving Defendants actively sought conveyance of the Property while George was on
his death bed, fearing that George’s Estate would be insolvent. Schneider preferred to shift the
risk of a claim against an insolvent estate to Alves. In these circumstances, Alves’ fraudulent
transfer claim is not frivolous.
Conclusion
In short, Defendants’ Special Motion to Dismiss, under the lis pendens statute, G. L. c.
184, § 15 (c) should be denied because Alves’ action states a viable claim for an interest in the
Property. Defendants have not met their substantial burden of proving that Alves’ claim to an
interest in the Property is frivolous. ~
Mrs. Alves’ prayer for relief as to the Property is well founded in fact and law and her
claims are properly before this Court. The Motion to Dismiss should be denied.
Respectfully submitted,
Antonia Alves,
by her attorneys,
ros.
Dy,
M “a
50 Hi
H
JR., (BB 633540)
New Bedford, MA 02740
(508) 993-9711
jmarkey@msmw-law.com
Dated: April 9, 2021
11
a
CERTIFICATE OF SERVICE
I John A. Markey, Jr., hereby certify that a true and accurate copyof the foregoing
document was served via email and first class mail, postage prepaid on this 9th day of|
April, 2021 upon counsel of record below:
For the Defendants:
John B. Harkavy, Esq.
Law Office of John B. Harkavy
89 Woodside Avenue
Wellesley, MA 02482
Dated: April 9, 2021
12
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a\D4 COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT SUPERIOR COURT DEPARTMENT BRISTOL COUNTY, ss ANTONIA V. ALVES, Plaintiff, ) DOCKET NO.: 2173CV00074 VS. ) BRISTOL SS SUPERIOR COURT ESTATE OF GEORGE ELVIS HODGE, FILED PAYLEE, LLC, LEZAN HODGE, MOTORCADE, LLC, AND APR 1 4 2021 ELLIOT SCHNEIDER, MARC J SANTOS. ESQ. Defendants CLERK/MAGISTRATE PLAINTIFF ANTONIA V. ALVES’ OPPOSITION TO DEFENDANTS, ELLIOT SCHNEIDER, AND MOTORCADE, LLC’S SPECIAL MOTION TO DISMISS PURSUANT TOG. L, C. 184 15 Plaintiff, Antonia Alves, (“Alves”) hereby opposes the Special Motion to Dismiss filed by Defendants Elliot Schneider (“Schneider”) and Motorcade, LLC (“Motorcade”). In support of her position, Alves states as follows: Plaintiffs Verified Complaint states meritorious claims for relief. Defendants’ Special Motion to Dismiss, filed under the lis pendens statute, G. L. c. 184, § 15 (c), raises a number of legal arguments as to the merits of certain claims made by the Plaintiff. However, the Special Motion to Dismiss does not address the central issue at this stage of the litigation. In particular, Defendants’ Motion fails to establish that Alves’ claim to a property interest in 17 Travers Street in Dartmouth (“the Property”) is frivolous because it is: (1) devoid of any reasonable factual support; (2) devoid of any arguable basis in law; or (3) subject to dismissal based upon a valid legal defense such as the statute of frauds. Facts 1 Plaintiff Antonia Alves (“Alves”) and Defendant Paylee, LLC (“Paylee”) signed a Purchase and Sales Agreement for the property at 17 Travers Street (the “Property”). At the time, Alves paid Paylee a One Hundred Thousand ($100,000) Dollar deposit toward the purchase price. 2. Alves and Paylee verbally agreed to extend the Purchase and Sales Agreement through the end of October. The extension was required because Paylee had failed to timely complete promised work at the Property. 3 To expedite the transaction and acting in reliance on the verbal extensions, Alves paid for materials needed to complete the required work; Alves and her husband completed some of the work at the Property; and Alves moved her family into the Property. 4. Defendant Eliot Schneider (“Schneider”) knew that Alves and Paylee had a pending Purchase and Sales Agreement for the Property. 5 Despite this fact, on October 9, 2020, while George Hodge (“George”) was laying on his deathbed (Mr. Hodge passed away the following day from cancer), Schneider traveled to meet with George’s daughter Lezan Hodge (“Lezan”) to induce her to sign a One ($1.00) Deed transferring the Property to his corporation Motorcade, LLC. 6 In so doing, Schneider and Motorcade encouraged Paylee to breach Paylee’s Purchase and Sales Agreement with Alves, knowingly denying Alves the benefit of that Agreement. 7. On October 9, 2020, Lezan signed a One ($1.00) Deed transferring the Property from Paylee to Motorcade who currently holds title to the Property. Plaintiff's Response to Facts alleged in Defendants’ Motion which are Dispute or which require further Discovery 8 Alves has no knowledge as to whether Lezan or George Hodge signed the Purchase and Sales Agreement on behalf of Paylee. But, Alves believed that Paylee had committed to the transaction as evidenced by Alves paying a One Hundred Thousand ($100,000) Deposit in connection with the Agreement. 9 Alves has no knowledge as to whether Lezan or George signed and deposited. the One Hundred Thousand ($100,000) Dollar deposit check that Alves provided to Paylee in connection with the Purchase and Sales Agreement. 10. Alves was not privy to emails between George Hodge and his attorney. Alves never saw a Purchase and Sales Agreement calling for a purchase price of Three Hundred Sixty-Three Thousand ($363,000) Dollars. 11. Alves had been approved for the purchase price loan, subject to the work being completed on the Property, and Alves was scheduling the closing for October 20, 2020 when she learned that Lezan had transferred the property to Motorcade. Summary of Argument To prevail on their Special Motion to Dismiss, Defendants must prove that Alves’ lis pendens is frivolous because it is: (1) devoid of any reasonable factual support; (2) devoid of any arguable basis in law; or (3) subject to dismissal based upon a valid legal defense such as the statute of frauds. The legal question is not whether any individual claim initiated by Alves is strong or will ultimately prevail. The proper legal question is whether Alves has stated a claim for an interest in real property; and whether (or not) the action which forms the basis of the issuance of the lis pendens is frivolous. The Verified Complaint states a valid claim for a breach of the Alves — Paylee Purchase and Sales Agreement for the Property. Defendants were aware of the Alves-Paylee Purchase and Sales Agreement. Despite this fact, on October 9, 2020, while Lezan’s father lay on his deathbed, Schneider induced Lezan to breach the Purchase and Sales Agreement by executing a One ($1.00) deed from, Paylee to Motorcade. In these circumstances, Alves has stated a viable claim that she has an interest in the Property. Moreover, as the current title holder of the Property, Defendant Motorcade is a necessary party to Alves’ claim for Specific Performance. In these circumstances, Defendants’ Special Motion to Dismiss should be denied. The Motion to Dismiss addresses a number of legal issues that will ultimately be resolved at atrial. But, the Motion avoids the essential legal question which is whether (or not) the Verified Complaint states a claim that affects the title to real property and whether the Verified Complaint is frivolous because it is not backed by “reasonable factual support,” and “arguable basis at law.” G. L. c. 184, § 15 (c). Although the Motion to Dismiss is captioned as a Motion to Dismiss under G. L. c. 184, § 15 (c), Defendants’ Motion does not direct the Court to the central question set forth above. Rather than meeting the exacting standard of the lis pendens statute, the Motion pivots and asks the Court to focus on the merits of certain claims employing the Summary Judgment standard. The purpose of the Special Motion to Dismiss under the lis pendens statute is to determine whether the lis pendens should be released. The statute was not intended to serve as an end around the litigation process for a Defendant seeking to dismiss certain claims before discovery has begun. It was designed to determine whether or not the lis pendens should remain in place. In essence, Defendants’ Motion to Dismiss seeks to remove Defendants Motorcade and Schneider from the case by directing all responsibility upon Paylee, George’s Estate, and Lezan, all of whom are also liable under the Verified Complaint. In so doing, Motorcade and Schneider acknowledge that the Verified Complaint is not frivolous. Since the Verified Complaint against George, Lezan and Paylee seeks specific performance of the Purchase and Sales Agreement, the Special Motion to Dismiss and release the lis pendens should be denied. To the extent that the Motion to Dismiss is based, in part, on an unsubstantiated allegation that the relevant Purchase and Sales Agreement is a forgery, it should be denied because there are material facts in dispute regarding this issue. Moreover, this contention ignores the direct evidence to the contrary set forth in the Verified Complaint. Scheider and Motorcade contend that they are entitled to own the Property because, on October 9, 2020, they pressured Lezan into executing a deed to the Property to Motorcade. At the time, Schneider knew that the execution of the deed by Lezan would constitute a breach of the Alves-Paylee Purchase and Sales Agreement. A fair review of the record permits an inference that Schneider approached Lezan as her father was dying and used a predatory Promissory Note as a sword to convince Lezan to ignore her legal obligation to Alves and, instead, to convey the property to Motorcade. This type of business practice should not be t encouraged by the Courts. The Defendants’ Motion to Dismiss raises many factual issues that are in dispute but it does not establish that Plaintiff's claim to an interest in the Property is in any way frivolous. As such, the lis pendens has been appropriately recorded and the Defendants? Motion to Dismiss should be denied. 1, The Verified Complaint is not frivolous; it is well supported by factual allegations and Massachusetts law. The Defendants assert in their Motion to Dismiss that the Purchase and Sales Agreement had lapsed at the time Paylee conveyed the Property to Motorcade. However, the Verified Complaint solidly alleges that, although Purchase and Sales Agreement had not been formally extended, the parties had an oral agreement to continue the closing beyond September 2, 2020. See Verified Complaint {f[ 22, 25-27. The Verified Complaint also alleges that the verbal agreement to continue the closing date was affirmed and reaffirmed by the parties words and actions. See id. On or about October 2, 2020, Lezan agreed to reimburse Plaintiff at the closing, for out of pocket expenses that Alves had incurred for improvements to the Property. The Verified Complaint also solidly alleges that, contrary to the assertions of the Defendants in their Motion to Dismiss, the Alves’ lender was on track to finance the sale. See id. 124. The postponement of the Closing was not due Alves’ failure. The postponement was needed because Paylee had not’been completed work at the property. See id. {J 19-22. The Verified Complaint states that Alves and Paylee had an oral agreement to extend the closing date. An oral agreement with regard to a real estate contract “may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.” Hickey v. Green, 14 Mass.App.Ct. 671, 673 (1982), quoting from Restatement (Second) of Contracts § 129 (1981). “A plaintiff's detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds as a defense.” Nessralla v. Peck, 403 Mass. 757, 761-762 (1989). “Specific performance under this rule may be warranted where the party seeking relief suffers ‘the infliction of an unjust and unconscientious injury and loss.’ Glass v. Hulbert, 102 Mass. 24, 36 (1869).” Jd. Alves’ Verified Complaint alleges that, in reliance on Paylee’s promise to convey the property, Alves paid a $100,000 deposit, Alves spent time and money to make improvements to the property; see id. {J 25-27, and Alves moved into the property with her husband and eleven (11) year-old daughter. See id. {{] 8, 49. Under Massachusetts law, Plaintiff’s actions in detrimental reliance on an oral agreement to continue a closing date, bring the agreement within the Statute of Frauds, or at a minimum create a triable issue as to whether (or not) the Statute of Frauds has been satisfied. Schneider’s assertion that the Purchase and Sales Agreement had expired as a matter of law is not correct. Defendants also allege that Lezan did not sign the Purchase and Sales Agreement. If this is true, it was not known to Alves. Moreover, whether Lezan signed the Purchas and Sales Agreement or whether it was signed by George acting as her agent or acting with actual or apparent authority presents a question of fact that cannot be resolved at this stage of the litigation. The Defendants’ assertion that there is no evidence that Alves could have paid for the Property is without merit. The Verified Complaint alleges, and provides a text message from the lender stating the closing could be set for October 20, 2020. See Verified Complaint, 24, and ex. 6. The threshold determination for endorsement of a lis pendens under G. L.c. 184, § 15 is whether the proceeding “affects the title to real property or the use and occupation thereof or the buildings thereon.” /d., see also Wolfe v. Gormally, 440 Mass. 699, 706 (2004). The fundamental purpose of the statute is to “ensure that a prospective third-party transferee can, with the exercise of reasonable prudence, acquire information relevant to a decision whether to consummate the transaction.” Wolfe, 440 Mass. at 706, quoting Debral Realty, Inc. v. DiChiara, 383 Mass, 559, 562 (1981). “The judge’s discretion in this regard is limited: ‘once the judge determines that the subject matter of the action concerns an interest in real estate[,] . . . the allowance or denial of a memorandum of lis pendens hinges on the nature of the claim, not the merits thereof.” DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 905 (2016).” Ferguson v. Maxim, 96 Mass. App. Ct. 385, 388-389 (2019). The Defendants bear the burden of establishing that Alves’ claim supporting endorsement of the lis pendens, is frivolous. “In the context of a special motion to dismiss pursuant to § 15 (c), the burden is on the defendant to demonstrate, by a preponderance of the evidence, that the plaintiff's claim is completely lacking in ‘reasonable factual support +2. 0F . any arguable basis in law.”” Ferguson, 96 Mass. App. Ct. at 390. The Special Motion to Dismiss is not a route to an expedited Rule 56 Motion. The purpose of the statute is to determine early in the litigation process whether (or not) the underlying claim which forms the basis for the lis pendens is frivolous. In this case, Defendants cannot meet this heavy burden. Alves paid $100,000 of consideration toward a valid agreement to purchase the Property. In reliance on that agreement, Alves made improvements to the Property and Alves moved into the Property with her husband and child. While the agreement was pending and Alves was in the process of scheduling the closing, Schneider induced Paylee to convey the Property to Motorcade, which full knowledge that Alves had agreement to sell.the property to Alves. In her Prayers for Relief, Alves has asked this Court to order Specific Performance of her agreement with Paylee. In these circumstances, the Plaintiff's action cannot be deemed frivolous. It is supported by sufficient factual allegations made in the Verified Complaint, and it is supported by Massachusetts law. This is precisely the type of case for which the lis pendens statute was legislated to apply to because “it affects the title to real property [and] the use and occupation thereof or the buildings thereon.” G. L. c. 184, § 15. The Special Motion to Dismiss should be denied. 2. The Defendant’s special motion to dismiss fails to meet its burden under G. L. c. 184, § 15 (©). As stated above, a Special Motion to Dismiss under G, L. c. 184, § 15 (c) is not an avenue for an expedited Rule 56 Motion for Summary Judgment. Under section 15 (c), the preponderance of the evidence standard applies not to the question of liability, but rather to the question of whether the underlying claim is frivolous. Judicial endorsement of a memorandum of lis pendens under G. L. c. 184, § 15 (a) does not require a finding by the court before which the claim is pending as to the claim’s likelihood of success. See Wolfe, 440 Mass. at 706. The Plaintiff's unjust enrichment claim cites the improvements she made to the property, and the $100,000 deposit. It claims that the “Defendants have received money, real property, and other value under such circumstances that in equity and good conscience it should be returned to the Plaintiff.” Verified Complaint, [{ 69-76, see also 17 Mass. Prac., Prima Facie Case, § 5.1 (5" ed.), citing Suncook Mills v. United States, 44 F. Supp. 744 (D. Mass. 1942), and other cases cited. The Defendants in their Special Motion to Dismiss do not claim—nor could they—that the Plaintiff's unjust enrichment claim is frivolous. Instead, they claim that they “are entitled to summary judgment on Count V.” _ In October 2020, Schneider’s corporation and Alves were both owed financial obligations by Paylee. Alves had a contractual right to purchase the Property. Schneider had a tight to collect money under a Promissory Note that was secure by a mortgage. Rather than seeking to collect the money owed from Paylee, Schneider convinced Lezan to breach the Purchase and Sales Agreement with Alves and.to sign a deed to the Property to Motorcade enriching himself and his corporation at the expense of Alves. As to Count II of the Veritied Complaint for Fraud and Deceit, Schneider and Motorcade concede in their memorandum that Plaintiff has a valid claim for redress against Paylee, George’s Estate and Lezan. They argue that this specific claim should not be made against them. Schneider was aware of Plaintiff’s agreement with Paylee to buy the Property. Schneider knew that Alves was planning to close on the Property. Because Schneider took titlé to the property for Motorcade, knowing that Alves had a Purchase and Sales Agreement that was scheduled to close on the property within a few days, he may be held jointly and severally liable for the deceit which originated with Paylee and concluded with the concerted actions of Schneider, Motorcade, Paylee and Lezan. Alves’ claim for fraud and deceit count is not frivolous. With regard to Count I of the Verified Complaint, the Defendants are incorrect in their assertion that Alves is not a creditor. Under G. L. c. 109A, § 2 a creditor is defined as “a person who has a claim.” A claim is defined as “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Jd. Plaintiff has multiple claims under this definition. Defendants’ assertion that they are not liable under the G. L. c. 109A, § 6, fails to 10 pay heed to the entire section of the statute cited, specifically that “the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” id, It appears that the moving Defendants actively sought conveyance of the Property while George was on his death bed, fearing that George’s Estate would be insolvent. Schneider preferred to shift the risk of a claim against an insolvent estate to Alves. In these circumstances, Alves’ fraudulent transfer claim is not frivolous. Conclusion In short, Defendants’ Special Motion to Dismiss, under the lis pendens statute, G. L. c. 184, § 15 (c) should be denied because Alves’ action states a viable claim for an interest in the Property. Defendants have not met their substantial burden of proving that Alves’ claim to an interest in the Property is frivolous. ~ Mrs. Alves’ prayer for relief as to the Property is well founded in fact and law and her claims are properly before this Court. The Motion to Dismiss should be denied. Respectfully submitted, Antonia Alves, by her attorneys, ros. Dy, M “a 50 Hi H JR., (BB 633540) New Bedford, MA 02740 (508) 993-9711 jmarkey@msmw-law.com Dated: April 9, 2021 11 a CERTIFICATE OF SERVICE I John A. Markey, Jr., hereby certify that a true and accurate copyof the foregoing document was served via email and first class mail, postage prepaid on this 9th day of| April, 2021 upon counsel of record below: For the Defendants: John B. Harkavy, Esq. Law Office of John B. Harkavy 89 Woodside Avenue Wellesley, MA 02482 Dated: April 9, 2021 12