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40,
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT
DEPARTMENT OF THE
TRIAL COURT
BRISTOL,SS SUPERIOR COURT
FILED CIVIL ACTION
NO. 2173CV00074
NOV 17 2022 |
LAND COURT 22SBQ02173 09-001
JENNIFER A. SULLIVAN, ESQALVES
CLERK / MAGISTRATE
ANTONIA V. ALVES,
Plaintiff
JOINT PRETRIAL MEMORANDUM
Vv.
ELLIOT SCHNEIDER, et al.,
Defendants
AGREED FACTS
1 Plaintiff, Antonia Alves, currently lives at 17 Travers Street, Dartmouth, MA. She
is married to Third Party Defendant, Goncalo Lima.
2.Defendant Lezan Hodge (“Lezan”) is the owner of Paylee , LLC (“Paylee”) and
sole manager of Paylee. Lezan is the daughter of George Hodge.
3. Defendant Elliot Schneider (“Schneider”) is the sole member and manager of
Defendant Motorcade, LLC (“Motorcade”), one of the other defendants in this action.
Motorcade is a Massachusetts limited liability company formed in April 2019.
4. Schneider is the manager of Signature Lending LLC (“Signature Lending”),
which has been lending on asset-based loans since approximately 2013.
Il. STATEMENT OF THE PARTIES
Alves and Lima Statement of the Case
In April 2020, after discussions with an ailing George Hodge, Defendant Eliot
Schneider through his corporation Signature Lending, LLC, provided a high interest
short term loan to Paylee, LLC, an entity controlled by George Hodge and owned by
Mr. Hodge’s daughter Lezan Hodge. The majority of the loaned funds were used to
purchase the property at 17 Travers Street in Dartmouth, Massachusetts. Some of the
funds were used to pay the lender a significant origination fee. The remainder of the
loaned funds were made available to rehabilitate the property.
In June 2020, Plaintiff, Antonia Alves entered inte an-agrecment with Paylee,
LLC to purchase the Travers Street property. As part of the transaction, Ms. Alves
agreed: (i) to pay a $100,000 deposit which would be used to rehabilitate the property
and to construct a nine hundred (900°) square foot addition to the house; and (ii) to
provide labor and to contribute her husband Goncalo Lima’s labor toward the
rehabilitation and construction project.
Between June and October 2020, Ms. Alves and Mr. Lima used the deposit that
they had paid and they personally provided labor and management for the project
increasing the value of the Travers Street property from a dilapidated house worth
Two Hundred Eight Thousand ($208,000) Dollars to a larger and complete home
worth Three Hundred Seventy-Five Thousand ($375,000) Dollars.
By early October, Mr. Hodge’s cancer had advanced. At that time, it was clear
that he would die within a matter of days. During this period, Ms. Alves spoke with
Mr. Schneider and informed him of her pending Purchase and Sales Agreement and
her significant investment of time and money into the property and the improved
condition of the larger Travers Street home.
Rather than acknowledge and address Ms. Alves’ contractual rights and
contribution to the property, Mr. Schneider prepared a deed and he asked that Lezan
Hodge transfer the improved Travers Street property to Motorcade, LLC, another
entity owned by Mr. Schneider for the nominal price of One Hundred ($100) Dollars
and for the excusal of the existing Promissory Note.
On October 9, 2020, the day before her father died, Lezan Hodge signed and
delivered the deed to Mr. Schneider. At the time, Mr. Schneider accepted the deed,
he was unjustly enriched. When he accepted the deed, Mr. Schneider knew that Ms.
Alves work and money had substantially increased the value of the Travers Street
property to an amount significantly more than the amount due to Mr. Schneider under
the Promissory Note. Today, Motorcade, LLC owns the substantially improved and
larger Travers Street home which is worth Four Hundred Sixty-Five Thousand
($465,000) Dollars ~ an amount which is more than One Hundred Fifty Thousand
($150,000) Dollars greater than the amount he was owed on the Promissory Note.
The primary determination in a case of unjust enrichment is whether the
enrichment was unjust. Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 644
(2013). “Considerations of equity and morality play a large part” when determining
unjust enrichment. Salamon, 394 Mass. at 859. “A plaintiff asserting a claim for
unjust enrichment must establish not only that the defendant received a benefit, but
also that such a benefit was unjust, ‘a quality that turns on the reasonable expectations
of the parties.” Metropolitan Life Ins. Co., 464 Mass. at 644, citing Global Investors
Agent Corp. v. National Fire Ins. Co., 76 Mass.App.Ct. 812, 826, quoting Community
Builders, Inc. v. Indian Motorcycle Assocs., Inc., 44 Mass.App.Ct. 537, 560 (1998).
The injustice of the enrichment or detriment equates with the defeat of someone’s
reasonable expectations. Salamon, 394 Mass. at 859.
In the present litigation, Plaintiff had a reasonable expectation that she would
benefit from her investment and hard work when she acquired the property from
George Hodge after her One Hundred Thousand ($100,000) Dollar deposit was used
to rehabilitate and to build an addition onto the Travers Street Property. She had this
expectation based on the representations made by Mr. Hodge and the signed Purchase
and Sales Agreement. They were further reasonably based since she paid the
promised deposit, bought materials, paid subcontractors, and worked on the Property
wither her husband to complete the project.
Defendant Elliot Schneider was aware of the improvements being made to the
property during the relevant period. By early October, Mr. Schneider knew that the
cash influx and the work of Ms. Alves and Mr. Lima led to the Travers Street
property increasing in value to an amount substantially more than the amount due on
the Promissory Note. By preparing the deed and inducing Paylee to breach its
contract with Ms. Alves — and most significantly by knowingly accepting title to the
substantially improved and larger house — presently worth Four Hundred Sixty-Five
Thousand ($465,000) Dollars for a much lower price — the excusal of a Promissory
Note worth slightly more than Three Hundred Thousand ($300,000) Dollars — Eliot
Schneider and Motorcade, LLC were unjustly enriched.
None of the older cases cited by Defendant in this Memorandum are governing in
these circumstances. Those cases do not involve a short-term high interest lender
taking a deed from a dying man for substantially less than the actual value of a larger
and much improved house that had been completed by a Plaintiff who had a contract
to purchase the property and who had invested more than One Hundred Forty
Thousand ($140,000) Dollars in time and money to improve and complete the house
in anticipation of purchasing the property.
In Salamon v. Terra, 394 Mass. 857 (1985), a Plaintiff who had improved the
property of the Defendant failed to fulfill his obligations under the Purchase and Sales
Agreement that he had with the Defendant. Since that Plaintiff was directly
responsible for his failure to acquire the improved property, the Court determined that
he could not subsequently seek reimbursement from the Defendant for work that he
voluntarily and partially completed at the property. In contrast, the Plaintiff here did
not breach any agreement. In fact, she fulfilled all of her obligations — ultimately
resulting in the Defendant benefitting from the ownership of a completed, improved
and enlarged home worth One Hundred Fifty Thousand ($150,000) Dollars more than
the amount that the lender was owed by the borrower and leaving the Plaintiff Ms.
Alves with a loss of more than One Hundred Forty Thousand ($140,000) Dollars.
This is the classic case for quantum meruit damages, where there is "unjust
enrichment of one party, and unjust detriment to the other party.” Salamon, 394 Mass.
at 859.
Defendant suggests that dicta in another case Robinson v. Hathaway, 277 Mass 82
(1931), a case which has not been favorably cited by any Massachusetts appellate
court in ninety (90) years, is binding in these circumstances. This Court should not
be persuaded by this argument since Robinson is clearly distinguishable. Unlike
R obinson, the case at bar involves a mortgage holder who was unjustly enriched by
acquiring a substantially improved property for an amount that was significantly
below market value — all to the direct and unjust detriment of a Plaintiff who received
no compensation for her investment and work valued at more than One Hundred
Forty Thousand ($140,000) Dollars. There was no evidence of the unjust gain and
unjust loss in Robinson.
Defendants Elliot Schneider and Motorcade LLC’s Statement of the Case
Elliot Schneider and Motorcade LLC state that they have no liability to plaintiff
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for unjust enrichment. Plaintiff's claim for unjust enrichment fails even if she
performed work or provided building supplies at 17 Travers Street, N. Dartmouth,
MA, (the “Property”). Plaintiffs unjust enrichment claim fails as a matter of law
based upon precedent of LaChance v. Rigoli, 325 Mass. 425 (1950); Robinson v.
Hathaway, 277 Mass. 82, 86 (1931); and Salamon v. Terra, 394 Mass. 857, 861-62
(1985).
The law in Massachusetts is clear that a laborer is not entitled to compensation on the
basis of a claim for unjust enrichment where the laborer is hired by one party and another
party receives the benefit of the labor. In LaChance v. Rigoli, 325 Mass. 425, 427
(1950), the plaintiff, a builder, expected to be paid by the tenants of the land, but not
by the owner of the land. The Supreme Judicial Court held that the landowner was
not liable. The present situation is analogous to one where a landowner has
contracted to have a building erected on his land, and his contractor has employed a
subcontractor to perform part of the work. On the failure of the contractor to pay the
subcontractor, the latter may not recover against the landowner. Farquhar v. Brown,
132 Mass. 340. The contracting party must look for payment to the one to whom
credit was extended when the work was done, that is, the one who was expected to
pay and who in fact expected to pay or as a reasonable man should have expected to
pay. See Restatement: Restitution, § 110; Anderson v. Fuller, 18 Pick. 572;
Massachusetts General Hospital v. Fairbanks, 129 Mass. 78, 81; Maynard v. Fabyan,
267 Mass. 312. There is no legal presumption arising from ownership that the owner
of the fee is liable for repairs on his buildings, Tripp v. Hathaway, 15 Pick. 47, 48,
and one cannot, merely by erecting a house on the land of another, compel him to pay
for it, even if the land is benefited by the erection of the structure. O'Conner v.
Hurley, 147 Mass. 145. La Chance v. Rigoli, 325 Mass. 425, 427 (1950).
Directly on point is the case of Robinson v. Hathaway, 277 Mass. 82, 86 (1931). In
Robinson, a mortgagee was not liable as a matter of law for work performed by a
laborer when the mortgagee took ownership of the Property. The mortgagee “did not
request the plaintiff to furnish labor and materials or permit him to go forward in the
belief that the defendant knew he was furnishing them and was intending to pay for
them. A mortgagee or grantee simply by accepting a conveyance is not rendered
liable for unpaid labor and materials wrought into the real estate conveyed to him,
although he may know the premises have a value greater in consequence of them.
See Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 123 N. E. 391,4 A.
L. R. 680.” Robinson, 277 Mass. at 86.
Here, Schneider and Motorcade had no knowledge that Alves had a secret agreement
with George Hodge that she would supply labor and materials and in exchange she would
receive a reduced price for the Property. App. 81. Alves claims that she told Schneider about
her work at the Property after Hodge died. App. 25, Alves’ Dep. p. 100. She also did not tell
Schneider that she did work that she was not compensated for. App. 26, Alves’ Dep. p. 101.
Attached as Ex. 2.
Even if Schneider had known that Alves was working on the renovation of the Property,
she would not be entitled to damages for unjust enrichment. In Salmon v. Terra, 394 Mass.
857 (1985), a builder entered into a purchase and sale agreement with the owner of the land.
The builder intended to sell the lots and pay the owner out of the proceeds. The builder
started construction and partially completed two houses. The builder was unable to complete
the construction of the houses because he failed to obtain financing or to find purchasers. The
builder sued the landowner on the basis of unjust enrichment. The Supreme Judicial Court
upheld the Appellate Division’s ruling that the builder was not entitled to a judgment based
on unjust enrichment. The SJC wrote: “There was no agreement that the defendant would
pay for unfinished (or finished) houses on his land in the event that the plaintiff was unable to
fulfil his contractual obligations.” Jd. at 860. Thus, as a matter of law, Alve’s claim for unjust
enrichment fails.
Furthermore, Alves claims that $150,753 was spent to fix up the property. Included in
that amount is $10,810 for labor by her husband, Mr. Lima. All of the expenditures that
Alves intends to introduce are prior to Motorcade taking ownership of the property. More
importantly, Signature Lending lent George Hodge $150,000.00 to renovate the property.
Thus, it is more likely than not that George Hodge used the loan from Signature Lending to
pay for the renovations of the property.
Motorcade is also entitled to summary process and damages for use and occupancy as
Alves and her husband, Mr. Lima, third party defendant, have lived at the premises rent free.
II. AGREED SUGGESTED STATEMENT TO THE JURY
Plaintiff, Antonia Alves, claims that Elliot Schneider and Motorcade LLC have been
unjustly enriched as a result of work that she and her husband, Goncalo Lima, performed and
contributions they made to rehabilitate a house at 17 Travers Street in North Dartmouth,
Massachusetts. At the time that they performed the work and contributed to the project, they
were doing so under the direction and with the approval of George Hodge.
In April 2020, before Ms. Alves and Mr. Lima started to work on the property, a limited
liability company owned by Mr. Schneider, Signature Lending LLC, had conversations about the
property with George Hodge and then made a loan to Paylee LLC, an entity owned by Defendant
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Lezan Hodge. Lezan is the daughter of George Hodge, a developer who had an ongoing
borrowing / lending relationship with Mr. Schneider. In 2020, Mr. Hodge, Lezan Hodge, and
Paylee LLC borrowed money from Signature Lending to purchase and renovate the Travers
Street property. When. Signature Lending LLC lent the money to Paylee, LLC, it placed a first
mortgage on the Travers Street property.
In 2020, Mr. Hodge had cancer. Mr. Hodge’s health began to quickly deteriorate in
September 2020. In early October, the day before Mr. Hodge died, Lezan Hodge met with Mr.
Schneider at her request, and delivered a deed which transferred the ownership of the improved
Travers Street Property to Motorcade, LLC, another entity owned by Mr. Schneider. On the
same day, Lezan Hodge delivered several other deeds to Mr. Schneider to transfer other
properties for which his LLC held mortgages. Ms. Alves alleges that Mr. Schneider knew that
she had a Purchase and Sales Agreement to acquire the Travers Street property and that Mr.
Schneider was unjustly enriched when he accepted the deed with knowledge that Ms. Alves’
financial investment and her labor and her husband’s labor had made the Travers Street Property
worth substantially more than the amount owed on the Promissory Note. Mr. Schneider denies
knowing that Ms. Alves had a contract to purchase the Travers Street property, and that she had
given Mr. Hodge a deposit for the purchase of the Travers Street property.
Defendants Schneider and Signature Lending deny that they are liable to Plaintiff, Alves,
for unjust enrichment.
Alves and her husband, Mr. Lima have been living at the Travers Street property since
June 2020. They have not paid any rent to Motorcade. Plaintiff-in-Counterclaim Motorcade
LLC is claiming that Alves and Lima are liable to Motorcade for the fair use and occupancy of
the Travers Street property during the period since Motorcade acquired the Travers Street
property in October 2020. Alves and Lima deny that they owe Motorcade LLC any money for
use and occupancy in these circumstances.
IV.SIGNIFICANT LEGAL ISSUES 1
A. Schneider and Motorcade will request that the jury be instructed that they have no
liability for the alleged breach of contract for the sale of the property, fraud,
conversion, civil conspiracy, fraudulent conveyance, and that they have no liability
for the loss of the $100,000.00 deposit. These issues have already been decided in
favor of Schneider and Motorcade. They are entitled to a limiting instruction. See +
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Mass. Guide To Evidence, s. 105 “When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.” To allow the jury to consider these issues would be
extremely prejudicial against Schneider and Motorcade and have no legal relevance
to the issue of unjust enrichment. See Mass. Guide to Evidence, Section 403
(“Relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading the
jury, being unnecessarily time consuming, or needless presentation of cumulative
evidence.”)
Plaintiff agrees that the jury should be clearly instructed that the only claim pending against
Schneider and Motorcade is the Unjust Enrichment claim. Plaintiff trusts that the Court is capable of
clearly expressing which claims exist against each Defendant without confusing the jury.
B. Defendants object to Plaintiff's éxpert witness, an appraiser, Joseph Almeida. First, the
expert was never referenced in answers to interrogatories. This is an example of
continuing gamesmanship as the report was not provided until November 16, 2022
even though it is dated September 23, 2022.
Second, his opinion is based upon hearsay, namely conversations with Plaintiff
and various tradespeople.
Third, the report makes no sense as he values the property at the same date of
October 8, 2020 at $208,000 and $385,000. He never saw the property in October
2020 as his report indicates he examined the property on August 26, 2022. His
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opinion also ignores that Alves had a purchase and sales agreement for $300,000. He
also ignores that the property was initially to be sold for $365,000.
He then opines that the current value of the property as of August 27,2002 is
$465,000. This current figure has no relevance to the case at hand.
Fourth, there is no evidence whatsoever, that the increase in value of $208,000 to
$385,000 is based upon the work provided by Alves or her husband, Lima. Thus, it
would only serve to confuse a jury.
Defendants will move to have a Lanigan hearing prior to Mr. Almeida being allowed to
testify.
Plaintiff's Response
Plaintiff respectfully suggests that her expert Joseph Almeida’s testimony is both
competent and relevant to establish the amount of Plaintiff's Unjust Enrichment
claim. Plaintiff has provided Defendant very detailed expert appraisal reports signed
by the expert which support the expert’s opinions as to the value of Travers Street —
both before and after the renovations for which Plaintiff claims credit.
As to the timing of the disclosure, Defendant has not been prejudiced. Months
before the trial, Defendant has detailed reports signed by the expert which can be
used to challenge / cross examine Plaintiff's licensed and credentialed expert
regarding the manner in which he undertook his work in this case. Plaintiff will
respond to any Lanigan filing made by the Defendant.
Further, Plaintiff has no objection to Defendant providing a counter-expert
designation on the valuation issue prior to trial.
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V.WITNESSES
ALVES AND LIMA WITNESSES
Antonia Alves, 17 Travers Street, North Dartmouth, MA
Goncalo Lima, 17 Travers Street, North Dartmouth, MA
Diane Hodge, 10 Everett Street, Dartmouth, MA
Lezan Hodge, 48 Pine Street, Rochester, MA
Eliot Schneider, 55 Amy Brown Road, Mashpee, MA
Jason Andrade, 2100 Phillips Road, Apt. 14, New Bedford, MA
Dave Sousa, 150 Woodcock Road, Dartmouth, MA
Gary Nichols, 22 Thomas Hill Road, Acushnet, MA
Nelson Cardoza, 95R South Main Street, Acushnet, MA.
Joe Almeida, 163 Sharp Street, Dartmouth, MA
Derek Fletcher, 2 Appaloosa Lane, Mattapoisett, MA
Manny Medeiros, 1015 Meadow Street, New Bedford, MA
SCHNEIDER AND MOTORCADE’S WITNESSES
Elliot Schneider, 55 Amy Brown Road, Mashpee, MA
Antonia Alves, 17 Travers Street, N. Dartmouth, MA
Goncalo Lima, 17 Travers Street, N. Dartmouth, MA
Lezan Hodge, 48 Pine Street, Rochester, MA
Defendants reserve the right to call any witnesses listed by the Plaintiff or Third Party
Defendant.
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VI. EXPERT WITNESSES
Alves and Lima’s Expert Witnesses
Joseph Almeida, Almeida Valuation Services, P.O. Box 6451, New Bedford, MA
Mr. Almeida is a Licensed Massachusetts Real Estate Agent and a Licensed Real Estate
Appraiser. Mr. Almeida has thirty (30) years of experience valuing property for local and state
agencies and for private clients. (See Exhibit 1, Curriculum Vitae). The majority of Mr.
Almeida’s work has been in Bristol County and in Southeastern Massachusetts.
Mr. Almeida is familiar with the real property located at 17 Travers Street, North
Dartmouth, Massachusetts, which is the property at issue in this action. Mr. Almeida is very
familiar with the market conditions in Dartmouth, Massachusetts. He conducted research to
determine the value of the Travers Street property both before and after the addition and
rehabilitation work and improvements were completed at the Travers Street property by Ms.
Alves and her husband.
Based upon his research and professional experience, Mr. Almeida has formed opinions
as to value and he is expected to testify that the addition and the improvements made to the
Travers Street property substantially increased the value of the property. As of the time Mr.
Schneider accepted the deed in October 2020, it is Mr. Almeida’s opinion that the improvements
to the property increased the value of the property by One Hundred Seventy-Seven Thousand
($177,000) Dollars. Further, Mr. Almeida estimates that the current market value of the Travers
Street property is Four Hundred Sixty-Five Thousand ($465,000) Dollars. (See Exhibit B,
Almeida Appraisals)
Schneider and Motorcade Expert Witnesses
Ken Leonard, Cape Cod Ken Real Estate, LLC, 3 Salt Kettle Lane, Sandwich, MA.
1. Mr. Leonard is a Massachusetts licensed real estate broker and agent. He was a real estate
agent at Kalstar in Sandwich Ma. 02563 for a little over five years. He is now currently the
owner and broker of record for Cape Cod Ken real estate and has been for approximately
three years.
He has nine years’ experience and knowledge of working with buyers, sellers, and renters in
the real estate field. He has the same experience and expertise regarding real estate values and
rentals in Bristol County, Massachusetts, and he is familiar with the current real estate rental
market in Bristol County and Dartmouth, Massachusetts.
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3. He is familiar with the real property located at 17 Travers Street, Dartmouth, Massachusetts
02747, which constitutes the subject matter of this action. This property contains a single-
family home with 916 square feet and 3 bedrooms and 1 bathroom.
Based upon his professional experience of determining reasonable rental and property values
in the geographical area of the subject property, it is his opinion that a reasonable monthly use
and occupancy for the property located at 17 Travers Street, Dartmouth, Massachusetts is $
2,200. A copyof Mr. Leonard’s affidavit is attached as Ex. 3.
VIL. ESTIMATED LENGTH OF TRIAL
The parties estimate that the trial will take two — three days if the issues are restricted to the claims
of Alves against Schneider and Motorcade. If the Plaintiff proceeds against Lezan Hodge,
Paylee, LLC and the Estate of George Hodge, the parties estimate a trial of three— five days.
VIEL ITEMIZATION OF DAMAGES
Alves’ Damages
Motorcade owes Alves either: (i) One Hundred Seventy-Seven Thousand ($177,000)
which is the increase in the value of the Travers Street property as a result of their
contributions at the property; or (ii) One Hundred Fifty-Five Thousand ($155,000)
Dollars which is the difference between the value of the consideration paid for the
property when the Promissory Note was excused and the current value of the improved
property.
Motorcade’s damages through October 2022
Alves and her husband owe Motorcade $2,200.00 per month since October 2020 for use
and occupancy.
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IX. CERTIFICATION OF CONFERENCE
The parties confirmed that they have conferred and discussed the possibility of
settlement and the amenability of the case to mediation or other forms of alternate dispute
resolution.
Plaintiff Antonia Alves
Third Party Defendant Goncalo Lima
By Their Attorney
Snailne
. Markey, Jr., Esq.
TY & HALSH, LLC
“Wharf
New Bedford, MA 02740
(508) 993-9711
jmarkey@markeywalshlaw.com
Defendants Elliot Schneider and Motorcade,
LLC and Motorcade, LLC and Third Party
Plaintiff, Motorcade, LLC
By Their Attorney
/s/ John B. Harkavy
John Harkavy, Esq (BBO #5419000)
Law Office of John B. Harkavy
89 Woodside Avenue
Wellesley, MA 02482
Telephone: (617) 510-2121
Facsimile: (615) 490-0653
Email: jharkavy@harkavylaw.net
November 17, 2022
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40, COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT BRISTOL,SS SUPERIOR COURT FILED CIVIL ACTION NO. 2173CV00074 NOV 17 2022 | LAND COURT 22SBQ02173 09-001 JENNIFER A. SULLIVAN, ESQALVES CLERK / MAGISTRATE ANTONIA V. ALVES, Plaintiff JOINT PRETRIAL MEMORANDUM Vv. ELLIOT SCHNEIDER, et al., Defendants AGREED FACTS 1 Plaintiff, Antonia Alves, currently lives at 17 Travers Street, Dartmouth, MA. She is married to Third Party Defendant, Goncalo Lima. 2.Defendant Lezan Hodge (“Lezan”) is the owner of Paylee , LLC (“Paylee”) and sole manager of Paylee. Lezan is the daughter of George Hodge. 3. Defendant Elliot Schneider (“Schneider”) is the sole member and manager of Defendant Motorcade, LLC (“Motorcade”), one of the other defendants in this action. Motorcade is a Massachusetts limited liability company formed in April 2019. 4. Schneider is the manager of Signature Lending LLC (“Signature Lending”), which has been lending on asset-based loans since approximately 2013. Il. STATEMENT OF THE PARTIES Alves and Lima Statement of the Case In April 2020, after discussions with an ailing George Hodge, Defendant Eliot Schneider through his corporation Signature Lending, LLC, provided a high interest short term loan to Paylee, LLC, an entity controlled by George Hodge and owned by Mr. Hodge’s daughter Lezan Hodge. The majority of the loaned funds were used to purchase the property at 17 Travers Street in Dartmouth, Massachusetts. Some of the funds were used to pay the lender a significant origination fee. The remainder of the loaned funds were made available to rehabilitate the property. In June 2020, Plaintiff, Antonia Alves entered inte an-agrecment with Paylee, LLC to purchase the Travers Street property. As part of the transaction, Ms. Alves agreed: (i) to pay a $100,000 deposit which would be used to rehabilitate the property and to construct a nine hundred (900°) square foot addition to the house; and (ii) to provide labor and to contribute her husband Goncalo Lima’s labor toward the rehabilitation and construction project. Between June and October 2020, Ms. Alves and Mr. Lima used the deposit that they had paid and they personally provided labor and management for the project increasing the value of the Travers Street property from a dilapidated house worth Two Hundred Eight Thousand ($208,000) Dollars to a larger and complete home worth Three Hundred Seventy-Five Thousand ($375,000) Dollars. By early October, Mr. Hodge’s cancer had advanced. At that time, it was clear that he would die within a matter of days. During this period, Ms. Alves spoke with Mr. Schneider and informed him of her pending Purchase and Sales Agreement and her significant investment of time and money into the property and the improved condition of the larger Travers Street home. Rather than acknowledge and address Ms. Alves’ contractual rights and contribution to the property, Mr. Schneider prepared a deed and he asked that Lezan Hodge transfer the improved Travers Street property to Motorcade, LLC, another entity owned by Mr. Schneider for the nominal price of One Hundred ($100) Dollars and for the excusal of the existing Promissory Note. On October 9, 2020, the day before her father died, Lezan Hodge signed and delivered the deed to Mr. Schneider. At the time, Mr. Schneider accepted the deed, he was unjustly enriched. When he accepted the deed, Mr. Schneider knew that Ms. Alves work and money had substantially increased the value of the Travers Street property to an amount significantly more than the amount due to Mr. Schneider under the Promissory Note. Today, Motorcade, LLC owns the substantially improved and larger Travers Street home which is worth Four Hundred Sixty-Five Thousand ($465,000) Dollars ~ an amount which is more than One Hundred Fifty Thousand ($150,000) Dollars greater than the amount he was owed on the Promissory Note. The primary determination in a case of unjust enrichment is whether the enrichment was unjust. Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013). “Considerations of equity and morality play a large part” when determining unjust enrichment. Salamon, 394 Mass. at 859. “A plaintiff asserting a claim for unjust enrichment must establish not only that the defendant received a benefit, but also that such a benefit was unjust, ‘a quality that turns on the reasonable expectations of the parties.” Metropolitan Life Ins. Co., 464 Mass. at 644, citing Global Investors Agent Corp. v. National Fire Ins. Co., 76 Mass.App.Ct. 812, 826, quoting Community Builders, Inc. v. Indian Motorcycle Assocs., Inc., 44 Mass.App.Ct. 537, 560 (1998). The injustice of the enrichment or detriment equates with the defeat of someone’s reasonable expectations. Salamon, 394 Mass. at 859. In the present litigation, Plaintiff had a reasonable expectation that she would benefit from her investment and hard work when she acquired the property from George Hodge after her One Hundred Thousand ($100,000) Dollar deposit was used to rehabilitate and to build an addition onto the Travers Street Property. She had this expectation based on the representations made by Mr. Hodge and the signed Purchase and Sales Agreement. They were further reasonably based since she paid the promised deposit, bought materials, paid subcontractors, and worked on the Property wither her husband to complete the project. Defendant Elliot Schneider was aware of the improvements being made to the property during the relevant period. By early October, Mr. Schneider knew that the cash influx and the work of Ms. Alves and Mr. Lima led to the Travers Street property increasing in value to an amount substantially more than the amount due on the Promissory Note. By preparing the deed and inducing Paylee to breach its contract with Ms. Alves — and most significantly by knowingly accepting title to the substantially improved and larger house — presently worth Four Hundred Sixty-Five Thousand ($465,000) Dollars for a much lower price — the excusal of a Promissory Note worth slightly more than Three Hundred Thousand ($300,000) Dollars — Eliot Schneider and Motorcade, LLC were unjustly enriched. None of the older cases cited by Defendant in this Memorandum are governing in these circumstances. Those cases do not involve a short-term high interest lender taking a deed from a dying man for substantially less than the actual value of a larger and much improved house that had been completed by a Plaintiff who had a contract to purchase the property and who had invested more than One Hundred Forty Thousand ($140,000) Dollars in time and money to improve and complete the house in anticipation of purchasing the property. In Salamon v. Terra, 394 Mass. 857 (1985), a Plaintiff who had improved the property of the Defendant failed to fulfill his obligations under the Purchase and Sales Agreement that he had with the Defendant. Since that Plaintiff was directly responsible for his failure to acquire the improved property, the Court determined that he could not subsequently seek reimbursement from the Defendant for work that he voluntarily and partially completed at the property. In contrast, the Plaintiff here did not breach any agreement. In fact, she fulfilled all of her obligations — ultimately resulting in the Defendant benefitting from the ownership of a completed, improved and enlarged home worth One Hundred Fifty Thousand ($150,000) Dollars more than the amount that the lender was owed by the borrower and leaving the Plaintiff Ms. Alves with a loss of more than One Hundred Forty Thousand ($140,000) Dollars. This is the classic case for quantum meruit damages, where there is "unjust enrichment of one party, and unjust detriment to the other party.” Salamon, 394 Mass. at 859. Defendant suggests that dicta in another case Robinson v. Hathaway, 277 Mass 82 (1931), a case which has not been favorably cited by any Massachusetts appellate court in ninety (90) years, is binding in these circumstances. This Court should not be persuaded by this argument since Robinson is clearly distinguishable. Unlike R obinson, the case at bar involves a mortgage holder who was unjustly enriched by acquiring a substantially improved property for an amount that was significantly below market value — all to the direct and unjust detriment of a Plaintiff who received no compensation for her investment and work valued at more than One Hundred Forty Thousand ($140,000) Dollars. There was no evidence of the unjust gain and unjust loss in Robinson. Defendants Elliot Schneider and Motorcade LLC’s Statement of the Case Elliot Schneider and Motorcade LLC state that they have no liability to plaintiff t for unjust enrichment. Plaintiff's claim for unjust enrichment fails even if she performed work or provided building supplies at 17 Travers Street, N. Dartmouth, MA, (the “Property”). Plaintiffs unjust enrichment claim fails as a matter of law based upon precedent of LaChance v. Rigoli, 325 Mass. 425 (1950); Robinson v. Hathaway, 277 Mass. 82, 86 (1931); and Salamon v. Terra, 394 Mass. 857, 861-62 (1985). The law in Massachusetts is clear that a laborer is not entitled to compensation on the basis of a claim for unjust enrichment where the laborer is hired by one party and another party receives the benefit of the labor. In LaChance v. Rigoli, 325 Mass. 425, 427 (1950), the plaintiff, a builder, expected to be paid by the tenants of the land, but not by the owner of the land. The Supreme Judicial Court held that the landowner was not liable. The present situation is analogous to one where a landowner has contracted to have a building erected on his land, and his contractor has employed a subcontractor to perform part of the work. On the failure of the contractor to pay the subcontractor, the latter may not recover against the landowner. Farquhar v. Brown, 132 Mass. 340. The contracting party must look for payment to the one to whom credit was extended when the work was done, that is, the one who was expected to pay and who in fact expected to pay or as a reasonable man should have expected to pay. See Restatement: Restitution, § 110; Anderson v. Fuller, 18 Pick. 572; Massachusetts General Hospital v. Fairbanks, 129 Mass. 78, 81; Maynard v. Fabyan, 267 Mass. 312. There is no legal presumption arising from ownership that the owner of the fee is liable for repairs on his buildings, Tripp v. Hathaway, 15 Pick. 47, 48, and one cannot, merely by erecting a house on the land of another, compel him to pay for it, even if the land is benefited by the erection of the structure. O'Conner v. Hurley, 147 Mass. 145. La Chance v. Rigoli, 325 Mass. 425, 427 (1950). Directly on point is the case of Robinson v. Hathaway, 277 Mass. 82, 86 (1931). In Robinson, a mortgagee was not liable as a matter of law for work performed by a laborer when the mortgagee took ownership of the Property. The mortgagee “did not request the plaintiff to furnish labor and materials or permit him to go forward in the belief that the defendant knew he was furnishing them and was intending to pay for them. A mortgagee or grantee simply by accepting a conveyance is not rendered liable for unpaid labor and materials wrought into the real estate conveyed to him, although he may know the premises have a value greater in consequence of them. See Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 123 N. E. 391,4 A. L. R. 680.” Robinson, 277 Mass. at 86. Here, Schneider and Motorcade had no knowledge that Alves had a secret agreement with George Hodge that she would supply labor and materials and in exchange she would receive a reduced price for the Property. App. 81. Alves claims that she told Schneider about her work at the Property after Hodge died. App. 25, Alves’ Dep. p. 100. She also did not tell Schneider that she did work that she was not compensated for. App. 26, Alves’ Dep. p. 101. Attached as Ex. 2. Even if Schneider had known that Alves was working on the renovation of the Property, she would not be entitled to damages for unjust enrichment. In Salmon v. Terra, 394 Mass. 857 (1985), a builder entered into a purchase and sale agreement with the owner of the land. The builder intended to sell the lots and pay the owner out of the proceeds. The builder started construction and partially completed two houses. The builder was unable to complete the construction of the houses because he failed to obtain financing or to find purchasers. The builder sued the landowner on the basis of unjust enrichment. The Supreme Judicial Court upheld the Appellate Division’s ruling that the builder was not entitled to a judgment based on unjust enrichment. The SJC wrote: “There was no agreement that the defendant would pay for unfinished (or finished) houses on his land in the event that the plaintiff was unable to fulfil his contractual obligations.” Jd. at 860. Thus, as a matter of law, Alve’s claim for unjust enrichment fails. Furthermore, Alves claims that $150,753 was spent to fix up the property. Included in that amount is $10,810 for labor by her husband, Mr. Lima. All of the expenditures that Alves intends to introduce are prior to Motorcade taking ownership of the property. More importantly, Signature Lending lent George Hodge $150,000.00 to renovate the property. Thus, it is more likely than not that George Hodge used the loan from Signature Lending to pay for the renovations of the property. Motorcade is also entitled to summary process and damages for use and occupancy as Alves and her husband, Mr. Lima, third party defendant, have lived at the premises rent free. II. AGREED SUGGESTED STATEMENT TO THE JURY Plaintiff, Antonia Alves, claims that Elliot Schneider and Motorcade LLC have been unjustly enriched as a result of work that she and her husband, Goncalo Lima, performed and contributions they made to rehabilitate a house at 17 Travers Street in North Dartmouth, Massachusetts. At the time that they performed the work and contributed to the project, they were doing so under the direction and with the approval of George Hodge. In April 2020, before Ms. Alves and Mr. Lima started to work on the property, a limited liability company owned by Mr. Schneider, Signature Lending LLC, had conversations about the property with George Hodge and then made a loan to Paylee LLC, an entity owned by Defendant 1 Lezan Hodge. Lezan is the daughter of George Hodge, a developer who had an ongoing borrowing / lending relationship with Mr. Schneider. In 2020, Mr. Hodge, Lezan Hodge, and Paylee LLC borrowed money from Signature Lending to purchase and renovate the Travers Street property. When. Signature Lending LLC lent the money to Paylee, LLC, it placed a first mortgage on the Travers Street property. In 2020, Mr. Hodge had cancer. Mr. Hodge’s health began to quickly deteriorate in September 2020. In early October, the day before Mr. Hodge died, Lezan Hodge met with Mr. Schneider at her request, and delivered a deed which transferred the ownership of the improved Travers Street Property to Motorcade, LLC, another entity owned by Mr. Schneider. On the same day, Lezan Hodge delivered several other deeds to Mr. Schneider to transfer other properties for which his LLC held mortgages. Ms. Alves alleges that Mr. Schneider knew that she had a Purchase and Sales Agreement to acquire the Travers Street property and that Mr. Schneider was unjustly enriched when he accepted the deed with knowledge that Ms. Alves’ financial investment and her labor and her husband’s labor had made the Travers Street Property worth substantially more than the amount owed on the Promissory Note. Mr. Schneider denies knowing that Ms. Alves had a contract to purchase the Travers Street property, and that she had given Mr. Hodge a deposit for the purchase of the Travers Street property. Defendants Schneider and Signature Lending deny that they are liable to Plaintiff, Alves, for unjust enrichment. Alves and her husband, Mr. Lima have been living at the Travers Street property since June 2020. They have not paid any rent to Motorcade. Plaintiff-in-Counterclaim Motorcade LLC is claiming that Alves and Lima are liable to Motorcade for the fair use and occupancy of the Travers Street property during the period since Motorcade acquired the Travers Street property in October 2020. Alves and Lima deny that they owe Motorcade LLC any money for use and occupancy in these circumstances. IV.SIGNIFICANT LEGAL ISSUES 1 A. Schneider and Motorcade will request that the jury be instructed that they have no liability for the alleged breach of contract for the sale of the property, fraud, conversion, civil conspiracy, fraudulent conveyance, and that they have no liability for the loss of the $100,000.00 deposit. These issues have already been decided in favor of Schneider and Motorcade. They are entitled to a limiting instruction. See + 10 Mass. Guide To Evidence, s. 105 “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” To allow the jury to consider these issues would be extremely prejudicial against Schneider and Motorcade and have no legal relevance to the issue of unjust enrichment. See Mass. Guide to Evidence, Section 403 (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence.”) Plaintiff agrees that the jury should be clearly instructed that the only claim pending against Schneider and Motorcade is the Unjust Enrichment claim. Plaintiff trusts that the Court is capable of clearly expressing which claims exist against each Defendant without confusing the jury. B. Defendants object to Plaintiff's éxpert witness, an appraiser, Joseph Almeida. First, the expert was never referenced in answers to interrogatories. This is an example of continuing gamesmanship as the report was not provided until November 16, 2022 even though it is dated September 23, 2022. Second, his opinion is based upon hearsay, namely conversations with Plaintiff and various tradespeople. Third, the report makes no sense as he values the property at the same date of October 8, 2020 at $208,000 and $385,000. He never saw the property in October 2020 as his report indicates he examined the property on August 26, 2022. His 11 opinion also ignores that Alves had a purchase and sales agreement for $300,000. He also ignores that the property was initially to be sold for $365,000. He then opines that the current value of the property as of August 27,2002 is $465,000. This current figure has no relevance to the case at hand. Fourth, there is no evidence whatsoever, that the increase in value of $208,000 to $385,000 is based upon the work provided by Alves or her husband, Lima. Thus, it would only serve to confuse a jury. Defendants will move to have a Lanigan hearing prior to Mr. Almeida being allowed to testify. Plaintiff's Response Plaintiff respectfully suggests that her expert Joseph Almeida’s testimony is both competent and relevant to establish the amount of Plaintiff's Unjust Enrichment claim. Plaintiff has provided Defendant very detailed expert appraisal reports signed by the expert which support the expert’s opinions as to the value of Travers Street — both before and after the renovations for which Plaintiff claims credit. As to the timing of the disclosure, Defendant has not been prejudiced. Months before the trial, Defendant has detailed reports signed by the expert which can be used to challenge / cross examine Plaintiff's licensed and credentialed expert regarding the manner in which he undertook his work in this case. Plaintiff will respond to any Lanigan filing made by the Defendant. Further, Plaintiff has no objection to Defendant providing a counter-expert designation on the valuation issue prior to trial. 12 V.WITNESSES ALVES AND LIMA WITNESSES Antonia Alves, 17 Travers Street, North Dartmouth, MA Goncalo Lima, 17 Travers Street, North Dartmouth, MA Diane Hodge, 10 Everett Street, Dartmouth, MA Lezan Hodge, 48 Pine Street, Rochester, MA Eliot Schneider, 55 Amy Brown Road, Mashpee, MA Jason Andrade, 2100 Phillips Road, Apt. 14, New Bedford, MA Dave Sousa, 150 Woodcock Road, Dartmouth, MA Gary Nichols, 22 Thomas Hill Road, Acushnet, MA Nelson Cardoza, 95R South Main Street, Acushnet, MA. Joe Almeida, 163 Sharp Street, Dartmouth, MA Derek Fletcher, 2 Appaloosa Lane, Mattapoisett, MA Manny Medeiros, 1015 Meadow Street, New Bedford, MA SCHNEIDER AND MOTORCADE’S WITNESSES Elliot Schneider, 55 Amy Brown Road, Mashpee, MA Antonia Alves, 17 Travers Street, N. Dartmouth, MA Goncalo Lima, 17 Travers Street, N. Dartmouth, MA Lezan Hodge, 48 Pine Street, Rochester, MA Defendants reserve the right to call any witnesses listed by the Plaintiff or Third Party Defendant. 13 VI. EXPERT WITNESSES Alves and Lima’s Expert Witnesses Joseph Almeida, Almeida Valuation Services, P.O. Box 6451, New Bedford, MA Mr. Almeida is a Licensed Massachusetts Real Estate Agent and a Licensed Real Estate Appraiser. Mr. Almeida has thirty (30) years of experience valuing property for local and state agencies and for private clients. (See Exhibit 1, Curriculum Vitae). The majority of Mr. Almeida’s work has been in Bristol County and in Southeastern Massachusetts. Mr. Almeida is familiar with the real property located at 17 Travers Street, North Dartmouth, Massachusetts, which is the property at issue in this action. Mr. Almeida is very familiar with the market conditions in Dartmouth, Massachusetts. He conducted research to determine the value of the Travers Street property both before and after the addition and rehabilitation work and improvements were completed at the Travers Street property by Ms. Alves and her husband. Based upon his research and professional experience, Mr. Almeida has formed opinions as to value and he is expected to testify that the addition and the improvements made to the Travers Street property substantially increased the value of the property. As of the time Mr. Schneider accepted the deed in October 2020, it is Mr. Almeida’s opinion that the improvements to the property increased the value of the property by One Hundred Seventy-Seven Thousand ($177,000) Dollars. Further, Mr. Almeida estimates that the current market value of the Travers Street property is Four Hundred Sixty-Five Thousand ($465,000) Dollars. (See Exhibit B, Almeida Appraisals) Schneider and Motorcade Expert Witnesses Ken Leonard, Cape Cod Ken Real Estate, LLC, 3 Salt Kettle Lane, Sandwich, MA. 1. Mr. Leonard is a Massachusetts licensed real estate broker and agent. He was a real estate agent at Kalstar in Sandwich Ma. 02563 for a little over five years. He is now currently the owner and broker of record for Cape Cod Ken real estate and has been for approximately three years. He has nine years’ experience and knowledge of working with buyers, sellers, and renters in the real estate field. He has the same experience and expertise regarding real estate values and rentals in Bristol County, Massachusetts, and he is familiar with the current real estate rental market in Bristol County and Dartmouth, Massachusetts. 14 3. He is familiar with the real property located at 17 Travers Street, Dartmouth, Massachusetts 02747, which constitutes the subject matter of this action. This property contains a single- family home with 916 square feet and 3 bedrooms and 1 bathroom. Based upon his professional experience of determining reasonable rental and property values in the geographical area of the subject property, it is his opinion that a reasonable monthly use and occupancy for the property located at 17 Travers Street, Dartmouth, Massachusetts is $ 2,200. A copyof Mr. Leonard’s affidavit is attached as Ex. 3. VIL. ESTIMATED LENGTH OF TRIAL The parties estimate that the trial will take two — three days if the issues are restricted to the claims of Alves against Schneider and Motorcade. If the Plaintiff proceeds against Lezan Hodge, Paylee, LLC and the Estate of George Hodge, the parties estimate a trial of three— five days. VIEL ITEMIZATION OF DAMAGES Alves’ Damages Motorcade owes Alves either: (i) One Hundred Seventy-Seven Thousand ($177,000) which is the increase in the value of the Travers Street property as a result of their contributions at the property; or (ii) One Hundred Fifty-Five Thousand ($155,000) Dollars which is the difference between the value of the consideration paid for the property when the Promissory Note was excused and the current value of the improved property. Motorcade’s damages through October 2022 Alves and her husband owe Motorcade $2,200.00 per month since October 2020 for use and occupancy. 15 IX. CERTIFICATION OF CONFERENCE The parties confirmed that they have conferred and discussed the possibility of settlement and the amenability of the case to mediation or other forms of alternate dispute resolution. Plaintiff Antonia Alves Third Party Defendant Goncalo Lima By Their Attorney Snailne . Markey, Jr., Esq. TY & HALSH, LLC “Wharf New Bedford, MA 02740 (508) 993-9711 jmarkey@markeywalshlaw.com Defendants Elliot Schneider and Motorcade, LLC and Motorcade, LLC and Third Party Plaintiff, Motorcade, LLC By Their Attorney /s/ John B. Harkavy John Harkavy, Esq (BBO #5419000) Law Office of John B. Harkavy 89 Woodside Avenue Wellesley, MA 02482 Telephone: (617) 510-2121 Facsimile: (615) 490-0653 Email: jharkavy@harkavylaw.net November 17, 2022 16