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COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT
DEPARTMENT OF THE
TRIAL COURT
CIVIL ACTION
NO. 2173CV00074
ANTONIA V. ALVES,
Plaintiff
Vv.
ELLIOT SCHNEIDER, et al.,
Defendants
MOTION OF THE DEFENDANTS FOR AN INTERDEPARTMENTAL JUDICIAL
ASSIGNMENT
Defendants Elliot Schneider and Motorcade, LLC (collectively “Schneider”) request that
this Court request an interdepartmental judicial assignment to the Land Court per
Konstantopoulos v. Town of Whately, 384 Mass. 123, 129 (1981). As grounds for this Motion,
Schneider states as follows:
Plaintiff filed the above captioned action on January 21, 2021. Plaintiff’s action
includes various counts concerning title to registered land located at 17 Travers Street, N.
Dartmouth, MA (the “Property”). Since the Property is registered land, the Superior
Court does not have jurisdiction to hear this matter and the Land Court has exclusive
jurisdiction pursuant to G.L. c. 185, s. 1(al/2). See Johnson v. Christ Apostle Church, 96
Mass. App. Ct. 699 (2019); Feinzig v. Ficksman, 42 Mass. App. Ct. 113, 115-116 (1997).
Unfortunately, neither Plaintiff, nor Defendants, brought the Superior Court’s lack of
jurisdiction to the attention of the Court until now through this request for transfer.
This matter involves Plaintiff’s claim that she entered into a purchase and sale
agreement with Defendant Paylee, LLC and provided a deposit of $100,000.00 to George
Hodge. She is seeking rescission of the conveyance of the Property from Paylee, LLC to
Motorcade, LLC as a fraudulent conveyance (Count I); Fraud as to all Defendants (Count
II); Conversion as to all Defendants (Count III); Breach of Contract as to Paylee, LLC
(Count (IV); Unjust Enrichment as to all Defendants (Count V); Specific Performance
(Count VI); and a Lis Pendens (Count VII).
The Plaintiff was granted a lis pendens, the parties conducted discovery, and
Schneider and Motorcade brought a motion for summary judgment. On December 27,
2021, the Court, Judge Jackie Cowin, Issued a Memorandum & Order dismissing all
counts against Schneider and Motorcade, LLC except Count V for unjust enrichment.
Plaintiff still has pending counts against the Defendants Lezan Hodge, Paylee, LLC, and
the Estate of George Hodge.
Despite not having any legal interest in the Property, Plaintiff and her family have
lived in the Property since May/June 2020 rent free. Plaintiff does not have a lease and
has not offered to pay the legal owner, Motorcade, LLC, for use and occupancy.
Schneider is the manager of Motorcade, which has filed two summary process actions in
the Housing Court, both of which have been dismissed pending the final resolution of the
Superior Court Action.
Pursuant to Superior Court Rule 9A, Motorcade and Schneider have recently
served a motion for speedy trial, as Schneider is 77 years old and is a cancer survivor.
The Court allowed this motion, and a conference is currently scheduled for April 25,
2022.
Motorcade and Schneider have also served a Motion For Reconsideration of the
Trial Court’s Order that kept Plaintiff’s unjust enrichment claim alive and Schneider
expects to file the Motion For Reconsideration on April 14, 2022.
In addition, Motorcade has served a Motion To File A Counterclaim for Summary
Process and damages for use and occupancy and unjust enrichment. However, the Land
Court does not have jurisdiction for a Summary Process Action. See Bank Of New York
Mellon v. Cairns, 2018 WL 4903056, holding that the Land Court is a court of limited
jurisdiction without jurisdiction over summary process actions.
By letter dated April 4, 2022, Schneider requested Chief Justice of the Trial Court
Justice Jeffrey Locke to grant the interdepartmental transfer. On April 11, 2022,
Schneider’s counsel received the attached email (Ex. 1) advising Schneider that it would
take no action on the request for interdepartmental transfer and that it should first seek an
order from the justice of the Trial Court.
Schneider’s request that Judge Cowin or the current justice in the Superior Court
be appointed to the Land Court will promote the efficient use of judicial resources, and
will promote judicial economy as Judge Cowin is familiar with facts in this case as she
heard and ruled on Schneider’s Motion for Summary Judgment. However, because the
Superior Court did not have jurisdiction over this case because of the registered land
issue, it would be a waste of the parties’ resources and the court’s if the issues already
decided would have to be relitigated. In Sor v. Lim, 100 Mass. App. Ct. 1106
(2021)(unpublished decision 2021 WL 3729641), the Appeals Court vacated the Superior
Court judgment which did not have jurisdiction because it involved registered land, but
suggested that the trial judge not dismiss the case but “rather ask the [chief justice of the
trial court] pursuant to G.L. c. 211B,s. 9, to transfer the case, the judge, or both to the
appropriate court.” Citing ROBT Ltd. Partnership v. Katin, 431 Mass. 601, 608 (2000).
Having all claims addressed by a single judge promotes the speedy disposition of
all claims and will promote a more efficient use of both the parties’ and the trial court’s
resources. See Seville Condominium Trust v. Seville on Boston Harbor, LLC, 2018 Mass.
LCR LEXIS 212 Addendum (Order of Transfer and Assignment ordering transfer of Land
Court action to Superior Court, with Superior Court justice to sit as a Land Court justice
to preside over Petition to Partition).
WHEREFORE, Defendants requests that this Court request an interdepartmental
transfer to permit the Superior Court to act as a Land Court justice so that the judgment
can affect registered land. Alternatively, Schneider requests that the case be transferred to
the Land Court and that the Land Court justice be permitted to act as a Superior Court
justice so that a summary process action can be had in the same proceedings.
Respectfully submitted,
Defendants ELLIOT SCHNEIDER,
MOTORCADE, LLC
By their attorney,
/s/ John B. Harkavy
John 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: April 11, 2022
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon the attorneys of record
by email on April 11, 2021.
/s/ John B. Harkavy
John B. Harkavy, Esquire
From rian T Mulcahy brian.mulcahy@jud.state.ma.us
Subject: Ives v. Schneider, Bristol Superior Court, No. 2173C\V00074 EXHIBIT
Dat pril 11, 2022 at 11:39 AM
arkavy@harkavylaw.net
Cc: jmarkey@msmw-law.com, steve@newbedfordlegal.net
Dear Attorney Harkavay,
This correspondence is in regard to your request for an interdepartmental judicial
assignment of the above-referenced action dated April 4, 2022.
Please be advised that it is the long-standing practice of this office to accept requests of
this nature only from a justice of the Trial Court based on said justice’s determination that
the case presents a serious jurisdictional issue within the meaning of the court’s holding
in Konstantopoulos v. Whately, 384 Mass. 123, 129 (1981) or from the Chief Justices of
the departments involved in the assignment.
In regard to Trial Court Rule XII, Requests for Interdepartmental Judicial Assignment,
please note that said rule only applies when there are two or more related actions
pending in different departments of the Trial Court.
Based on the foregoing, this office will take no action in regard to your request.
Sincerely,
Brian Mulcahy, Esq.
Executive Office of the Trial Court
Two Center Plaza, RM 540
Boston, MA 02108
Preview
COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2173CV00074 ANTONIA V. ALVES, Plaintiff Vv. ELLIOT SCHNEIDER, et al., Defendants MOTION OF THE DEFENDANTS FOR AN INTERDEPARTMENTAL JUDICIAL ASSIGNMENT Defendants Elliot Schneider and Motorcade, LLC (collectively “Schneider”) request that this Court request an interdepartmental judicial assignment to the Land Court per Konstantopoulos v. Town of Whately, 384 Mass. 123, 129 (1981). As grounds for this Motion, Schneider states as follows: Plaintiff filed the above captioned action on January 21, 2021. Plaintiff’s action includes various counts concerning title to registered land located at 17 Travers Street, N. Dartmouth, MA (the “Property”). Since the Property is registered land, the Superior Court does not have jurisdiction to hear this matter and the Land Court has exclusive jurisdiction pursuant to G.L. c. 185, s. 1(al/2). See Johnson v. Christ Apostle Church, 96 Mass. App. Ct. 699 (2019); Feinzig v. Ficksman, 42 Mass. App. Ct. 113, 115-116 (1997). Unfortunately, neither Plaintiff, nor Defendants, brought the Superior Court’s lack of jurisdiction to the attention of the Court until now through this request for transfer. This matter involves Plaintiff’s claim that she entered into a purchase and sale agreement with Defendant Paylee, LLC and provided a deposit of $100,000.00 to George Hodge. She is seeking rescission of the conveyance of the Property from Paylee, LLC to Motorcade, LLC as a fraudulent conveyance (Count I); Fraud as to all Defendants (Count II); Conversion as to all Defendants (Count III); Breach of Contract as to Paylee, LLC (Count (IV); Unjust Enrichment as to all Defendants (Count V); Specific Performance (Count VI); and a Lis Pendens (Count VII). The Plaintiff was granted a lis pendens, the parties conducted discovery, and Schneider and Motorcade brought a motion for summary judgment. On December 27, 2021, the Court, Judge Jackie Cowin, Issued a Memorandum & Order dismissing all counts against Schneider and Motorcade, LLC except Count V for unjust enrichment. Plaintiff still has pending counts against the Defendants Lezan Hodge, Paylee, LLC, and the Estate of George Hodge. Despite not having any legal interest in the Property, Plaintiff and her family have lived in the Property since May/June 2020 rent free. Plaintiff does not have a lease and has not offered to pay the legal owner, Motorcade, LLC, for use and occupancy. Schneider is the manager of Motorcade, which has filed two summary process actions in the Housing Court, both of which have been dismissed pending the final resolution of the Superior Court Action. Pursuant to Superior Court Rule 9A, Motorcade and Schneider have recently served a motion for speedy trial, as Schneider is 77 years old and is a cancer survivor. The Court allowed this motion, and a conference is currently scheduled for April 25, 2022. Motorcade and Schneider have also served a Motion For Reconsideration of the Trial Court’s Order that kept Plaintiff’s unjust enrichment claim alive and Schneider expects to file the Motion For Reconsideration on April 14, 2022. In addition, Motorcade has served a Motion To File A Counterclaim for Summary Process and damages for use and occupancy and unjust enrichment. However, the Land Court does not have jurisdiction for a Summary Process Action. See Bank Of New York Mellon v. Cairns, 2018 WL 4903056, holding that the Land Court is a court of limited jurisdiction without jurisdiction over summary process actions. By letter dated April 4, 2022, Schneider requested Chief Justice of the Trial Court Justice Jeffrey Locke to grant the interdepartmental transfer. On April 11, 2022, Schneider’s counsel received the attached email (Ex. 1) advising Schneider that it would take no action on the request for interdepartmental transfer and that it should first seek an order from the justice of the Trial Court. Schneider’s request that Judge Cowin or the current justice in the Superior Court be appointed to the Land Court will promote the efficient use of judicial resources, and will promote judicial economy as Judge Cowin is familiar with facts in this case as she heard and ruled on Schneider’s Motion for Summary Judgment. However, because the Superior Court did not have jurisdiction over this case because of the registered land issue, it would be a waste of the parties’ resources and the court’s if the issues already decided would have to be relitigated. In Sor v. Lim, 100 Mass. App. Ct. 1106 (2021)(unpublished decision 2021 WL 3729641), the Appeals Court vacated the Superior Court judgment which did not have jurisdiction because it involved registered land, but suggested that the trial judge not dismiss the case but “rather ask the [chief justice of the trial court] pursuant to G.L. c. 211B,s. 9, to transfer the case, the judge, or both to the appropriate court.” Citing ROBT Ltd. Partnership v. Katin, 431 Mass. 601, 608 (2000). Having all claims addressed by a single judge promotes the speedy disposition of all claims and will promote a more efficient use of both the parties’ and the trial court’s resources. See Seville Condominium Trust v. Seville on Boston Harbor, LLC, 2018 Mass. LCR LEXIS 212 Addendum (Order of Transfer and Assignment ordering transfer of Land Court action to Superior Court, with Superior Court justice to sit as a Land Court justice to preside over Petition to Partition). WHEREFORE, Defendants requests that this Court request an interdepartmental transfer to permit the Superior Court to act as a Land Court justice so that the judgment can affect registered land. Alternatively, Schneider requests that the case be transferred to the Land Court and that the Land Court justice be permitted to act as a Superior Court justice so that a summary process action can be had in the same proceedings. Respectfully submitted, Defendants ELLIOT SCHNEIDER, MOTORCADE, LLC By their attorney, /s/ John B. Harkavy John 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: April 11, 2022 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served upon the attorneys of record by email on April 11, 2021. /s/ John B. Harkavy John B. Harkavy, Esquire From rian T Mulcahy brian.mulcahy@jud.state.ma.us Subject: Ives v. Schneider, Bristol Superior Court, No. 2173C\V00074 EXHIBIT Dat pril 11, 2022 at 11:39 AM arkavy@harkavylaw.net Cc: jmarkey@msmw-law.com, steve@newbedfordlegal.net Dear Attorney Harkavay, This correspondence is in regard to your request for an interdepartmental judicial assignment of the above-referenced action dated April 4, 2022. Please be advised that it is the long-standing practice of this office to accept requests of this nature only from a justice of the Trial Court based on said justice’s determination that the case presents a serious jurisdictional issue within the meaning of the court’s holding in Konstantopoulos v. Whately, 384 Mass. 123, 129 (1981) or from the Chief Justices of the departments involved in the assignment. In regard to Trial Court Rule XII, Requests for Interdepartmental Judicial Assignment, please note that said rule only applies when there are two or more related actions pending in different departments of the Trial Court. Based on the foregoing, this office will take no action in regard to your request. Sincerely, Brian Mulcahy, Esq. Executive Office of the Trial Court Two Center Plaza, RM 540 Boston, MA 02108