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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 21-2017B
) e-filed 09/30/2021
SEAFAN REALTY TRUST, LLC,
KATHRYN WHEATON, MANAGER, AND
KATHRYN WEHATON, INDIVIDUAL RB
Plaintiff,
Vv.
3C TCP, LLC, TOUCHSTONE CAPITAL
PARTNERS COMMERCIAL FUNDING, LLC
THOMAS F. MEADE, MANAGER
Defendant.
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ EMERGENCY MOTION FOR EXTENSION OF THE
PRELIMINARY RESTRAINING ORDER
NOW COME the Defendants in the above-captioned matter and hereby offer the
following Memorandum of Law in Opposition to Plaintiff's Emergency Motion for Extension of
the Preliminary Restraining Order issued September 9, 2021, which provided a preliminary
injunction until October 1, 2021 with the note, “Plaintiff should anticipate no further extensions. »
This is the third separate Superior Court action filed by Kathryn Wheaton to delay and disrupt
the valid ownership rights of 3C TCP LLC to the properties at 67 Lawrence and 61-63 Lawrence
Ave. Plaintiffs’ requests for judicial relief in this action must be denied because they are
baseless, even accepting the assertion that this new lender could potentially follow through with
the term sheet provided, the funds loaned do not exceed the payments owed to Defendants and
third-party liens on the property. Further, principals of collateral estoppel bar relief.
1. FACTS
1 This is the third Superior Court action filed by Plaintiff against Defendants seeking
judicial relief in the form of extensions to repay the sums due under the note held by
3C TCP, LLC, the first two actions having been dismissed with prejudice. Plaintiff,
through counsel at Mintz Levin, also raised the same claims in an attempt to receive
injunctive relief in a Housing Court action, which was denied.
On July 9, 2021, Plaintiffs and 3C TCP LLC entered into a Settlement Agreement,
requiring Plaintiffs to pay 3C TCP LLC the amount of $880,000.00 by September 3,
2021 in consideration of the promise of 3C TCP LLC to rescind the recorded
Foreclosure Deed on 67 Lawrence Avenue if payment was received in clear funds by
that date. The Settlement Agreement was negotiated with benefit of counsel and
Plaintiffs had competent advice from Mintz Levin when signing the Settlement
Agreement. Plaintiffs confirmed in their Complaint that they failed to comply with
the terms of the Settlement Agreement.
Because Plaintiffs failed to comply with the Settlement Agreement, Plaintiffs have
released Defendants from “any and all debts, actions, causes of action, suits,
accounts, covenants, contracts, omissions, liens, controversies, agreements, damages,
and any and all claims, sums of money, demands and liabilities whatsoever of every
name and nature, both in law and equity, known or unknown,” effective September 4,
2021. See executed Conditional Release as Exhibit C of the Settlement Agreement.
Contrary to the allegation in Paragraph 5 of Plaintiffs’ motion for extended TRO,
Plaintiffs would not be made “homeless” by not extending the TRO. With assistance
of counsel, Plaintiffs negotiated a period of continued occupancy in the premises
through December 3, 2021 if Plaintiffs failed to comply with their promise to pay
Defendants $880,000 by September 3, 2021, as set forth in Paragraph 6 of the
Settlement Agreement.
Although Plaintiffs alleged in their Complaint they have “succeeded in obtaining a
Commitment Lender from a refinance letter” by September 24, 2021, the so-called
commitment lender refused to loan funds to Plaintiffs as set forth in Plaintiffs’
Emergency Motion for TRO extension.
Plaintiffs enclosed a new “term sheet” dated September 22, 2021 with their motion
for TRO extension, with various conditions outstanding, including an appraisal. The
term sheet states that it is being made “To Assist You in The Refinancing Of Your
Investment Property,” which conflicts with Plaintiffs’ allegation at Paragraphs 5 and
8 of their motion for extension that the properties are their “home”. As set forth in
the Affidavit of Thomas Meade, the type of lender on the term sheet would not give a
loan based on a borrower’s residence.
The new “term sheet” sets forth a loan amount of $1,237,500 and conditions approval
on receipt of an appraisal. However, three junior liens are on the properties behind 3C
TCP’s interest, which add up to $1,653,999 when combined with the purchase price
of $880,000 in the Settlement Agreement. The three liens are attached and
demonstrate that even if Plaintiffs were able to obtain $1,237,500, the amount would
be insufficient for lender to obtain a first lien position on the properties.
a Mortgage to Catch Enterprises recorded July 17, 2019 in the amount of $400,000,
in the Suffolk County Registry of Deeds at Book 61434, Page 247 (the mortgage
is dated before the 3C TCP mortgage on 61-63 Lawrence but is a junior lien
because it was recorded after Ms. Wheaton’s mortgage to 3C TCP).
Attachment recorded March 24, 2020 against Ms. Wheaton and Seafan in the
amount of $329,999, in the Suffolk County Registry of Deeds at Book 62724,
Page 305.
Attachment recorded November 5, 2020 against Ms. Wheaton in the amount of
$44,000, in the Suffolk County Registry of Deeds at Book 64121, Page 177.
The properties have a market value of less than $1,237,500 and the “term sheet” is
conditioned on an appraisal that will be less than the claimed loan amount. See
Affidavit of Thomas Meade.
3C TCP LLC has owned the 67 Lawrence Property since January 30, 2020, but Ms.
Wheaton continually blocked access to the property, and 3C TCP, LLC filed a
Complaint for Entry to 67 Lawrence Property on November 20, 2020 in the Eastern
Division Housing Court, Docket 20H84CV000551. Ms. Wheaton and Seafan filed a
motion for preliminary injunction in that case seeking an order prohibiting 3C from
interfering with her attempts to refinance, and the Housing Court judge denied the
Motion for Preliminary Injunction filed by Ms. Wheaton and Seafan on June 29,
2021. Specifically, the judge found that Ms. Wheaton and Seafan “failed to
substantiate any factual basis for their claims that they had pending offers of
financing that had been denied because of, or that were subject to forbearance while
waiting for, the requested documentation” from 3C TCP, LLC.
I. ARGUMENT
a. Plaintiffs’ Complaint is Barred by Res Judicata
This is the fourth legal proceeding in which Plaintiffs raise their claims and basis for relief,
and Plaintiffs’ attempt at judicial relief must be denied. Plaintiffs are barred from bringing this
action under the doctrine of res judicata. See Korn v. Paul Revere Life Ins. Co., 83 Mass. App.
Ct. 432, 436 (2013) (under “the doctrine of claim preclusion, a final judgment forecloses
successive litigation of the very same claim, whether or not relitigation of the claim raises the
same issues as the earlier suit. Issue preclusion, in contrast, bars successive litigation of an issue
of fact or law actually litigated and resolved in a valid court determination essential to the prior
judgment, even if the issue recurs in the context of a different claim. These two doctrines protect
against the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and
foster [ ] reliance on judicial action by minimizing the possibility of inconsistent decisions.”)
(citations and internal quotation marks omitted). Defendants will be filing a Motion to Dismiss.
Defendants respectfully request that this Court deny Plaintiffs’ motion for injunctive relief.
b. Ifthis Court Considers Plaintiff’s Motion to Continue the Temporary Injunction.
Plaintiff Has Not Demonstrated Any Basis for Continuing Injunctive Relief
In order to obtain injunctive relief, the moving party must show that without the
requested relief, he is likely to suffer a loss of rights that cannot be vindicated should he prevail
after a full hearing on the merits. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609
(1980). The Court evaluates the moving party’s claim of injury and chance of success on the
merits and balances risk to the moving party from failure to issue the injunction against the risk
of harm to the non-moving party. Id. at 112. Plaintiffs have no likelihood of success on the
merits of her Complaint because there are no causes of action raised thereby that could entitle
them to relief or judgment in her favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 626
(2008) (complaint must allege facts sufficient to support claim that could entitle plaintiff to
relief). Plaintiffs admitted that they entered into the Settlement Agreement obligating them to
pay Defendants the amount of $880,000 by September 3, 2021. (Complaint j 4 and its Exhibit).
Plaintiffs assert that 8 weeks to close is unreasonably, but Plaintiffs were represented by counsel
at all times during the negotiation and voluntarily and knowingly agreed to the September 3,
2021 deadline. On August 30, 2021, counsel for Plaintiffs asserted that Plaintiffs intended to pay
Defendants by September 3, 2021 and never gave any indication of the so-called unreasonable
timeframe. Plaintiffs have no admitted that they lender they relied on to assert they could pay
Defendants on September 24, 2021 has since refused to loan Plaintiffs any money. Plaintiffs do
not even set out any claims for relief besides a request for judicial modification of a thoroughly
negotiated contract between parties both represented by counsel on the basis that they did not
have enough time to fulfil the negotiated contract.
Harm to Defendants continues to accrue with each continuation date and absolute lack of
payment toward the outstanding deficiency remaining after foreclosure of the 67 Lawrence
Property. Furthermore, Defendants have been unable to sell the 67 Lawrence Property to recoup
funds unpaid from the loan due to the Settlement Agreement. Defendants are now entitled to
record the foreclosure deed for the 61-63 Lawrence Avenue Property and convey each or both
properties as they deem appropriate. Plaintiffs have no basis on which to prevail on the merits
after trial, their continued allegations of a pending refinance are unfounded and completely
undocumented, risk of harm to Defendants continues to grow, and Plaintiffs’ request for
continued injunction must be denied. Packaging Industries Group, Inc., supra.
Til. CONCLUSION
WHEREFORE, based on the foregoing, the Plaintiffs have failed to meet the standards to
continue injunctive relief and the Defendants, 3C TCP, LLC, Touchstone Capital Partners
Commercial Funding, LLC and Thomas F. Meade, Manager, respectfully requests that this Court
deny Plaintiffs the equitable relief requested.
Respectfully submitted,
Defendants, 3C TCP, LLC, et al
By its attorneys,
/s/ Kimberly Kroha
PAUL N. BARBADORO, ESQ. (BBO #028850)
PaulB@bbb-lawfirm.com
KIMBERLY KROHA, ESQ. (BBO #687468)
KimberlyK @bbb-lawfirm.com
Baker, Braverman & Barbadoro, P.C.
300 Crown Colony Drive, Suite 500
Quincy, MA 02169-0904
(781) 848-9610 tel
(781) 848-9790 fax
Dated: September 30, 2021 www.bbb-lawfirm.com
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 21-2017B
)
SEAFAN REALTY TRUST, LLC, )
KATHRYN WHEATON, MANAGER, AND
KATHRYN WEHATON, INDIVIDUAL
Plaintiff,
Vv
3CTCP, LLC, TOUCHSTONE CAPITAL
PARTNERS COMMERCIAL FUNDING, LLC
THOMAS F. MEADE, MANAGER
Defendant.
AFFIDAVIT OF THOMAS MEADE
I, Thomas Meade, of Norfolk County, Massachusetts, being duly sworn, depose and say:
1 Tam the Manager of TCP Commercial Funding LLC, which is the Manager of
Defendant, 3C TCP, LLC (“3C TCP”). As Manager of TCP Commercial Funding LLC, the
Manager of 3C TCP, I am familiar with 3C TCP’s business records and the way that they are
maintained in the ordinary course of 3C TCP’s business.
2. Based on my personal knowledge and my review of those records, I have
knowledge of the note and mortgage between 3C TCP and Seafan Realty Trust, LLC
(“Seafan”) the guarantees by Plaintiff, Kathryn Wheaton, and Ariel Schmidt, of such loan
obligations, and the subsequent foreclosures and settlement discussions.
3 Plaintiffs were represented by counsel Attorney Kelly Frey, Member at Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., while negotiating the Settlement Agreement.
4 Attorney Frey drafted the Settlement Agreement for Plaintiffs, wherein Plaintiffs
agreed to pay $880,000 by September 3, 2021 and, on receipt of such funds, 3C TCP LLC would
rescind the Foreclosure Deed, discharge the mortgages and release Plaintiffs from further
liability. If good funds equal to $880,000 were not received by September 3, 2021, Plaintiffs
released Defendants from any all claims with respect to the two foreclosure auctions and
underlying loan documents and agreed to vacate by December 3, 2021.
5 Plaintiffs failed to pay $880,000 on or before September 3, 2021.
6 Plaintiffs never made a scheduled interest payment on the loan to Defendants, and
Plaintiffs have admitted in court that mortgage payments dating back to June and July 2019 have
not been paid (Complaint, Docket No. 19-2701 C).
7 Plaintiffs have not paid Defendants any funds since February 22, 2021, when
Plaintiffs delivered a check to the offices of counsel to Defendants with a note on the check that
payment was being made in consideration of an extension to close as high bidder on the
foreclosure auction for 61-63 Lawrence Avenue, and, because the extension was not agreed
upon, the check was not deposited.
8 In August 2019, Kathryn Wheaton asserted under oath that she obtained “written
approval of a refinance loan which shall repay Defendant 3CTCP, LLC in full, in approximately
one month, by the end of September, 2019.” (Docket No. 19-2701 C).
9 Plaintiffs have been endeavoring to get a refinance loan since before the foreclosure
auction of the primary collateral, a 3-family property at 67 Lawrence Avenue in December 2019.
No actual closing date has ever been set, and no title agent or refinance lender counsel has ever
contacted Defendants for a payoff statement.
10. Ms. Wheaton signed an affidavit when she obtained the underlying loan that the
three-family property at 67 Lawrence was vacant and the funds would be used for construction
and renovation purposes.
11. My business is described as private money lending, and I am familiar with
reasonable terms offered by private money lenders.
12. The “term sheet” attached to Plaintiffs’ motion filed September 29, 2021 was
made by a private money lender that only loans funds for investment purposes, and the lender
would not loan funds for property used as a borrower’s residence. This is stated multiple times
on the lender’s website and description of loan programs.
13. Plaintiff cannot credibly claim that a commercial purpose loan is the source of the
payment due under the settlement agreement, while also claiming tenancy at the property as
support for the request for injunction.
14. The “term sheet” attached to Plaintiffs’ motion filed September 29, 2021 states
that the loan amount would be $1,237,500 but was conditioned on receiving an appraisal.
15. The market value of the properties known as 61-63 Lawrence Avenue and 67
Lawrence Avenue is not more than one million dollars.
16. Private money lenders such as the lender shown on the “term sheet” typically do
not loan more than a 70% loan to value.
17. Accordingly, the highest loan that could reasonably be received by Plaintiffs on
the property would be approximately $700,000, and the loaned funds would be insufficient for
lender to have a first lien position on the property.
18. Private lenders such as the lender shown on the term sheet would not take a
second lien position unless the value far exceeded the amount of both liens combined.
19. 3C TCP has not filed any eviction actions concerning the Property and 3C TCP
promised not to file any such eviction actions until at least December 3, 2021.
Signed under the pains and penalties of perjury this 30th day of September, 2021.
ao,
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T HOMAS MEADE 4
Bk: 61434 Pg: 247
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Bh: 61434
2018 00057934
Pg: 247 Page: 1 of 8
MORTGAGE AND SECURITY AGREEMENT Recorded: 07/17/2019 12:30 PM
ATTEST:Stephen J. Muiphy, Register
Date: FEBRUARY 01, 2018 Suffolk County Registry of Deeds
KATHRYN A. WHEATON, an unmarried individual, having a mailing address at 63
Lawrence Avenue, Boston, MA (“Mortgagor”) being the owner of real property located and
identified as 61-63 Lawrence Avenue, Boston, MA, for consideration received and obligation to,
hereby grants to CATCH ENTERPRISES, having a mailing address at P.O.Box 190671, Boston,
MA (“Mortgagee”) with Mortgage Covenants, to secure an obligation of a loan total of $400,000.00
(Four Hundred Thousand Dollars), payable as provided in Mortgagor’s Promissory Note (the “Note”
or the “Note dated February 1, 2018”), to secure the performance of all covenants and agreements
contained herein and in the Note, having a Maturity Date of July 30, 2019, and to secure the payment
and performance of all other debts, covenants and agreements of or by Mortgagor to or for the benefit
of Mortgagee now existing while this mortgage is still undischarged, the land in Suffolk County,
Massachusetts all as described in the Exhibit A attached hereto, together with any and all
improvements now or hereafter situated thereon known and numbered as 61-63 Lawrence Avenue,
Boston, MA 02121 (“the subject property”).
All fixtures, now or at any time hereafter attached to or used in any way in connection with
the premises described in Exhibit A hereto or intended for such use, so attached, and whether now
owned or hereafter acquired,
Mortgagor covenants and agrees that, as of the execution hereof and upon the subsequent
acquisition of such Collateral, Mortgagor shall:
(a) provide Mortgagee with a precise inventory of the same, as and when required by
Mortgagee;
(b) provide Mortgagee with such other assurances as it may require to establish Mortgagee’s
security interest in such Collateral; and
(c) execute, deliver and cause to be recorded and filed from time to time, without notice or
demand, and at the Mortgagor’s sole cost and expense, continuances and such other instruments
as will maintain Mortgagee’s security in such Collateral, and in the event of default hereunder
Mortgagor hereby grants Mortgagee free power and authority as attorney irrevocable of
Mortgagor to execute, deliver and record and/or file such instruments.
Said land, building(s), improvements and Collateral are hereinafter referred to as the
“Premises”. Mortgagor covenants and agrees with Mortgagee:
(1) to perform all of the covenants and agreements contained in the Note and in all other
documents or instruments executed by Mortgagor in connection herewith;
(2) to pay at least ten (10) days prior to the last date on which the same may be paid
without penalty or interest, all taxes, charges for water, sewer and other municipal services, and
assessments, whether or not assessed against Mortgagor, if applicable or related in any way to the
After Recordation, Deliver Original to: Catch Enterprises, P.O.Box 190671, Boston, MA.
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Bk: 61434 Pg: 248
Premises, or any interest in the Premises of Mortgagor, Mortgagee or any other person or
organization, or the debt, obligations or performance secured hereby, or the disbursement or
application of the proceeds therefrom, excluding, however, any income or corporation excise tax
of Mortgagee; IF APPLICABLE, to pay to Mortgagee on each day that payments are required by
the terms of the Note, in addition to the payments of principal provided in the Note, a sum
determined by Mortgagee to be sufficient to provide in the aggregate a fund adequate to pay such
taxes, charges and assessments at least ten (10) days before the same become delinquent, and, in
addition, to pay to Mortgagee on demand any balance from time to time determined by Mortgagee
to be necessary to pay in full said taxes, charges and assessments at least ten (10) days before the
date when they become due and payable. Such sums shall not bear interest and may by
commingled with the general assets of Mortgagee; Mortgage shall not be required to account for
any profits resulting from its use thereof, and such sums may be applied by Mortgagee to the
payment of such taxes, charges and assessments or any other obligation of Mortgagor hereunder.
Mortgagor shall furnish after request to Mortgagee any or all copy of tax bill(s) relating to the
Premises at least fifteen (15) days before such taxes shall be due and payable. Mortgagor grants to
Mortgagee in the event of a default hereunder full power and authority as attorney irrevocable of
Mortgagor to apply for and prosecute claims for the abatement of taxes and to collect and endorse
any checks issued on account of Mortgagor and to retain and apply the same to the debt or other
obligation secured hereby;
(3) to carry with respect to the Premises and its use such insurance as Mortgagee may from
time to time require and as may from time to time be required by an applicable Federal, State or
local law or regulation, including, without limitation, the following:
(a) Casualty Insurance against loss or damage to the Premises on a comprehensive all risk
basis which shall not exclude fire, extended coverage, vandalism and flood, in an amount
not less than $1,000,000.;
(b) Rent Insurance against rent or similar loss of income in an amount not less than 100%
of the expected annual rental income from the Premises under, if any, all leases and
occupancy agreements then in effect;
(c) Comprehensive General Liability Insurance for claims arising from bodily injury,
personal injury and property damage occurring upon, in or about the Premises on an
occurrence basis with combined single limit coverage of not less than $1,000,000.;
(d) Flood Insurance if the Premises or any portion thereof is located in a federally
designated flood hazard area as established by the National Flood Insurance Act of 1968, as
amended by the Flood Disaster Protection Act of 1973, in an amount equal to the lesser of
(i) all amounts outstanding pursuant to the Note and (ii) the maximum amount of such
insurance as is available. Said flood insurance policy, if any, shall name Mortgage as loss
payee thereunder. :
And evidence of all such insurance (with evidence of payment of premiums thereon
satisfactory to Mortgagee) so required to be maintained, together with any other insurance
with respect to the Premises maintained by Mortgagor, shall be deposited with, and, except
for public liability coverage and any other coverage Mortgagee may determine shall not be
payable to it in case of loss, shall be payable in case of loss to Mortgagee to the extent of
Mortgagor’s obligation to Mortgagee; all renewals or replacements of such insurance from
time to time in force together with evidence of payment of premiums thereon satisfactory to
Mortgagee shall be delivered to Mortgagee at least twenty (20) days before the expiration
4)
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Bk: 61434 Pg: 253
covenants, conditions or agreements in any instrument given in connection with the Note and debt
secured hereby, or in any other mortgage, debt or obligation of or from Mortgagor to Mortgagee
remaining uncured after the expiration of any applicable grace periods; or if any involuntary
proceedings shall be commenced against Mortgagor or any general partner or trustee of Mortgagor, if
any, under any chapter of any federal Bankruptcy Code or other law relating to bankruptcy,
bankruptcy reorganization, insolvency or relief of debtors, and such petition or proceeding is not
dismissed within thirty (30) days from the date on which it is filed or instituted; or if Mortgagor
becomes insolvent or is unable to pay its debts as they become due, or (B) any guarantor of
Mortgagor’s obligations or any endorsers of the Note shall:
(a) die;
(b) and if other than a natural person liquidate, terminate or dissolve or merge or consolidate
with another entity, or vote or attempt to rescind, revoke, terminate this Mortgage, Note, or any
other agreement, guarantee executed to the benefit of the Mortgagee;
(c) file or institute a petition (or have filed or instituted against any guarantor or endorser a
petition which is not dismissed within thirty (30) days) under any chapter of the Federal
Bankruptcy Code or any other proceeding under any law relating to bankruptcy, bankruptcy
reorganization, insolvency or relief of debtors, or consent to an assignment, composition or
similar arrangement for the benefit of creditors, or consent to appointment of a receiver for any
of the property, of such guarantor or endorses; or
(@) become insolvent or unable to pay debts when due;
then, at the option of Mortgagee, the entire debt secured hereby, together with all prepayment charges
to which Mortgagee would be entitled under the Note or by law if the‘Note were prepaid in full, shall
be due and payable, and Mortgagee shall have the Statutory Power of Sale as hereinafter provided.
The failure at any time of Mortgagee to exercise this option shall not constitute a waiver of the right
to exercise the right at any other time.
Whether or not for additional interest or other consideration paid or payable to Mortgagee, no
forbearance on the part of Mortgagee or extension of the time for the payment on the whole or any
part of the obligations secured hereby, whether oral or in writing, or any other indulgence given by
Mortgagee to Mortgagor or to any other party claiming any interest in or to the Premises, shall
operate to release or in any manner affect the original liability of Mortgagor, or the priority of this
Mortgage or to limit, prejudice or impair any right of Mortgagee, including without limitation, the
right to realize upon security, or any part thereof, for the obligations secured hereby or any of them,
notice of any such extension, forbearance or indulgence being hereby waived by Mortgagor and all
those claiming by, through or under Mortgagor; and no consent or waiver, express or implied, by
Mortgagee to or of any default by Mortgagor shall be construed as a consent or waiver to or of any
further default in the same or any other term, condition, covenant or provision of this Mortgage or of
the obligations secured hereby; in case redemption is had by the Mortgagor after foreclosure
proceedings have begun, the holder shall be entitled to collect all costs, charges and expenses incurred
up to the time of redemption.
This instrument is intended to also be a Security Agreement under the Uniform Commercial
Code (“U.C.C.”), The conveyance of the Collateral shall constitute a grant of U.C.C. Security Interest
therein and the recording of this instrument shall have all of the remedies of a secured party under the
U.C.C, as now in effect in The Commonwealth of Massachusetts, and such further remedies as may
from time to time hereafter be provided under Massachusetts law for a secured party. Mortgagee will
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Bk: 61434 Pg: 254
give to Mortgagor actual written notice by certified return receipt mail of no less than sixty days of
the time and place of any public sale of Collateral or of the time for which any private sale or other
intended disposition; provided, however, that if the provisions of the U.C.C. as adopted in
Massachusetts are applicable to any Collateral which is not sold in connection with or as part of the
Premises, or any part thereof, at one: or more foreclosure: sales, any notice: required: under such-
provisions shall be fully satisfied by the notice given in execution of the Statutory Power of Sale.
Expenses of retaking, holding, preparing for sale, selling and the like shall include the reasonable
attorneys’ fees and legal expenses of Mortgagee.
Mortgagor agrees that all rights of Mortgagee may be exercised together or separately and
further agrees that in exercising its Power of Sale, Mortgagee may sell the Collateral or any part
thereof either separately from, or together with, the real property, or any part thereof, all as
Mortgagee may in its sole discretion elect.
In case any provision of the Note, this Mortgage, or any instrument executed by any person or
organization in connection therewith shalt be found unenforceable or invalid for any reason, the
enforcement of any other provision shall be deemed modified to the extent necessary to be
enforceable or if such modification is not practicable, such provision shall be deemed deleted from
this Mortgage.
This Mortgage is upon the STATUTORY CONDITION and upon the further condition that all
covenants and agreements of Mortgagor in the Note, this Mortgage, al! other instruments executed in
connection therewith and in all other mortgages, debts and obligations of or from Mortgagor to or for
the benefit of Mortgagee shall be kept and fully performed, and upon any breach of the, same
Mortgagee shall have the STATUTORY POWER OF SALE and any other powers given by statute.
The word “Mortgagor” as used herein means Mortgagor named herein, whether one or several,
and also means any subsequent owner or owners of the equity of redemption of the Premises, and ail
of the covenants and agreement of Mortgagor herein contained shall be binding upon Mortgagor, its
heirs, executors, administrators, successors and assigns and shall be joint and several if more than one
person constitutes Mortgagor. The word “Mortgagee” as used herein means Mortgagee named herein
as the holder of this Mortgage.
This mortgage is executed, effective this Ist day of February, 2018 by the Mortgagor:
Mortgagor
-
- .
thryp Wheaton, Individual, Owne
By
Commonwealth of Massachusetts
February 1, 2018
Personally appeared the above named proved to me through satisfactory evidence which was driver’s license, to
be the person whose name is signed on the foregoing document and signed voluntarily for its stated purpose,
before me:
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Notary Public
"ABDIKARIM ALI
w
Notary Public My Commission Expires: wIAg Y_ 2e23
SACHUSETTS
SONMONWEALTH OF MAS Expires
mission
My ComMay 4, 2023
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Bk: 61434 Pg: 255
EXHIBIT A
Property Address: 61-63 Lawrence Avenue, Boston, MA
For title reference see deed recorded with the Suffolk County Registry of Deeds in Book 14805,
Page 134,
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SUPERIOR COURT DEPARTMENT
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Kketh mip A W hee Ton tc Seatend Qo! Fy , Defendant(s)
Teusty ULC.
WRIT OF ATTACHMENT
To the sheriffs of our several counties or their deputies:
We command you;to attach the goo e
of defendant
estat Ketheya, A wheeler
>of L pers cc AY" Duc esse i »to e value of $329,505, sa
(the amount authorized), as prayed for by plaintiff Ger terc&
of i Tor) no 4, Whose_attorney is. Ww ‘Mie ni Soolline
of 50 Congress Si Wile AYs , in an action brought by
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saidd plaintiff & gethe Piece é said defendant [eth yw A Whelan
in the Superior Court Department of the Trial Court for Suffolk
County, and make due return, -of this writ with your doings thereon.
Tie conplaat in ahs cade was fled on Novem bac 5 , ol
‘This attachment was, approved” Myce » 20 pomeaes
_, J., inthe amounoft $ 2, 39 a54
Witness, Judith Fabricant,- Esquire, at Boston, the Loth day of
in, the year of our Lori two thousand tesa
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Bk: 62724 Pg: 805 Page: 1 of 3
Recorded: 03/24/2020 11:16 AM Dla oapl Court .
Clerk of er’
Sen
ATTEST:Stephen J. Murphy, Register
Suffolk County Registry of Deeds
i ‘This writ of attachment is issued pursuant to Rule 4.1 of the Massachusetts Rules of Civil Procedure. ©
Atuscopy Avene, (° Kae J neon
‘Form CIV. P. 12
‘Deputy Sherif Suffolk County
Agt aiew
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PROOF OF ATTACHMENT
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I certify and return that on 20___, I attached the property of the within-
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Preview
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 21-2017B ) e-filed 09/30/2021 SEAFAN REALTY TRUST, LLC, KATHRYN WHEATON, MANAGER, AND KATHRYN WEHATON, INDIVIDUAL RB Plaintiff, Vv. 3C TCP, LLC, TOUCHSTONE CAPITAL PARTNERS COMMERCIAL FUNDING, LLC THOMAS F. MEADE, MANAGER Defendant. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR EXTENSION OF THE PRELIMINARY RESTRAINING ORDER NOW COME the Defendants in the above-captioned matter and hereby offer the following Memorandum of Law in Opposition to Plaintiff's Emergency Motion for Extension of the Preliminary Restraining Order issued September 9, 2021, which provided a preliminary injunction until October 1, 2021 with the note, “Plaintiff should anticipate no further extensions. » This is the third separate Superior Court action filed by Kathryn Wheaton to delay and disrupt the valid ownership rights of 3C TCP LLC to the properties at 67 Lawrence and 61-63 Lawrence Ave. Plaintiffs’ requests for judicial relief in this action must be denied because they are baseless, even accepting the assertion that this new lender could potentially follow through with the term sheet provided, the funds loaned do not exceed the payments owed to Defendants and third-party liens on the property. Further, principals of collateral estoppel bar relief. 1. FACTS 1 This is the third Superior Court action filed by Plaintiff against Defendants seeking judicial relief in the form of extensions to repay the sums due under the note held by 3C TCP, LLC, the first two actions having been dismissed with prejudice. Plaintiff, through counsel at Mintz Levin, also raised the same claims in an attempt to receive injunctive relief in a Housing Court action, which was denied. On July 9, 2021, Plaintiffs and 3C TCP LLC entered into a Settlement Agreement, requiring Plaintiffs to pay 3C TCP LLC the amount of $880,000.00 by September 3, 2021 in consideration of the promise of 3C TCP LLC to rescind the recorded Foreclosure Deed on 67 Lawrence Avenue if payment was received in clear funds by that date. The Settlement Agreement was negotiated with benefit of counsel and Plaintiffs had competent advice from Mintz Levin when signing the Settlement Agreement. Plaintiffs confirmed in their Complaint that they failed to comply with the terms of the Settlement Agreement. Because Plaintiffs failed to comply with the Settlement Agreement, Plaintiffs have released Defendants from “any and all debts, actions, causes of action, suits, accounts, covenants, contracts, omissions, liens, controversies, agreements, damages, and any and all claims, sums of money, demands and liabilities whatsoever of every name and nature, both in law and equity, known or unknown,” effective September 4, 2021. See executed Conditional Release as Exhibit C of the Settlement Agreement. Contrary to the allegation in Paragraph 5 of Plaintiffs’ motion for extended TRO, Plaintiffs would not be made “homeless” by not extending the TRO. With assistance of counsel, Plaintiffs negotiated a period of continued occupancy in the premises through December 3, 2021 if Plaintiffs failed to comply with their promise to pay Defendants $880,000 by September 3, 2021, as set forth in Paragraph 6 of the Settlement Agreement. Although Plaintiffs alleged in their Complaint they have “succeeded in obtaining a Commitment Lender from a refinance letter” by September 24, 2021, the so-called commitment lender refused to loan funds to Plaintiffs as set forth in Plaintiffs’ Emergency Motion for TRO extension. Plaintiffs enclosed a new “term sheet” dated September 22, 2021 with their motion for TRO extension, with various conditions outstanding, including an appraisal. The term sheet states that it is being made “To Assist You in The Refinancing Of Your Investment Property,” which conflicts with Plaintiffs’ allegation at Paragraphs 5 and 8 of their motion for extension that the properties are their “home”. As set forth in the Affidavit of Thomas Meade, the type of lender on the term sheet would not give a loan based on a borrower’s residence. The new “term sheet” sets forth a loan amount of $1,237,500 and conditions approval on receipt of an appraisal. However, three junior liens are on the properties behind 3C TCP’s interest, which add up to $1,653,999 when combined with the purchase price of $880,000 in the Settlement Agreement. The three liens are attached and demonstrate that even if Plaintiffs were able to obtain $1,237,500, the amount would be insufficient for lender to obtain a first lien position on the properties. a Mortgage to Catch Enterprises recorded July 17, 2019 in the amount of $400,000, in the Suffolk County Registry of Deeds at Book 61434, Page 247 (the mortgage is dated before the 3C TCP mortgage on 61-63 Lawrence but is a junior lien because it was recorded after Ms. Wheaton’s mortgage to 3C TCP). Attachment recorded March 24, 2020 against Ms. Wheaton and Seafan in the amount of $329,999, in the Suffolk County Registry of Deeds at Book 62724, Page 305. Attachment recorded November 5, 2020 against Ms. Wheaton in the amount of $44,000, in the Suffolk County Registry of Deeds at Book 64121, Page 177. The properties have a market value of less than $1,237,500 and the “term sheet” is conditioned on an appraisal that will be less than the claimed loan amount. See Affidavit of Thomas Meade. 3C TCP LLC has owned the 67 Lawrence Property since January 30, 2020, but Ms. Wheaton continually blocked access to the property, and 3C TCP, LLC filed a Complaint for Entry to 67 Lawrence Property on November 20, 2020 in the Eastern Division Housing Court, Docket 20H84CV000551. Ms. Wheaton and Seafan filed a motion for preliminary injunction in that case seeking an order prohibiting 3C from interfering with her attempts to refinance, and the Housing Court judge denied the Motion for Preliminary Injunction filed by Ms. Wheaton and Seafan on June 29, 2021. Specifically, the judge found that Ms. Wheaton and Seafan “failed to substantiate any factual basis for their claims that they had pending offers of financing that had been denied because of, or that were subject to forbearance while waiting for, the requested documentation” from 3C TCP, LLC. I. ARGUMENT a. Plaintiffs’ Complaint is Barred by Res Judicata This is the fourth legal proceeding in which Plaintiffs raise their claims and basis for relief, and Plaintiffs’ attempt at judicial relief must be denied. Plaintiffs are barred from bringing this action under the doctrine of res judicata. See Korn v. Paul Revere Life Ins. Co., 83 Mass. App. Ct. 432, 436 (2013) (under “the doctrine of claim preclusion, a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit. Issue preclusion, in contrast, bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim. These two doctrines protect against the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foster [ ] reliance on judicial action by minimizing the possibility of inconsistent decisions.”) (citations and internal quotation marks omitted). Defendants will be filing a Motion to Dismiss. Defendants respectfully request that this Court deny Plaintiffs’ motion for injunctive relief. b. Ifthis Court Considers Plaintiff’s Motion to Continue the Temporary Injunction. Plaintiff Has Not Demonstrated Any Basis for Continuing Injunctive Relief In order to obtain injunctive relief, the moving party must show that without the requested relief, he is likely to suffer a loss of rights that cannot be vindicated should he prevail after a full hearing on the merits. Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609 (1980). The Court evaluates the moving party’s claim of injury and chance of success on the merits and balances risk to the moving party from failure to issue the injunction against the risk of harm to the non-moving party. Id. at 112. Plaintiffs have no likelihood of success on the merits of her Complaint because there are no causes of action raised thereby that could entitle them to relief or judgment in her favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 626 (2008) (complaint must allege facts sufficient to support claim that could entitle plaintiff to relief). Plaintiffs admitted that they entered into the Settlement Agreement obligating them to pay Defendants the amount of $880,000 by September 3, 2021. (Complaint j 4 and its Exhibit). Plaintiffs assert that 8 weeks to close is unreasonably, but Plaintiffs were represented by counsel at all times during the negotiation and voluntarily and knowingly agreed to the September 3, 2021 deadline. On August 30, 2021, counsel for Plaintiffs asserted that Plaintiffs intended to pay Defendants by September 3, 2021 and never gave any indication of the so-called unreasonable timeframe. Plaintiffs have no admitted that they lender they relied on to assert they could pay Defendants on September 24, 2021 has since refused to loan Plaintiffs any money. Plaintiffs do not even set out any claims for relief besides a request for judicial modification of a thoroughly negotiated contract between parties both represented by counsel on the basis that they did not have enough time to fulfil the negotiated contract. Harm to Defendants continues to accrue with each continuation date and absolute lack of payment toward the outstanding deficiency remaining after foreclosure of the 67 Lawrence Property. Furthermore, Defendants have been unable to sell the 67 Lawrence Property to recoup funds unpaid from the loan due to the Settlement Agreement. Defendants are now entitled to record the foreclosure deed for the 61-63 Lawrence Avenue Property and convey each or both properties as they deem appropriate. Plaintiffs have no basis on which to prevail on the merits after trial, their continued allegations of a pending refinance are unfounded and completely undocumented, risk of harm to Defendants continues to grow, and Plaintiffs’ request for continued injunction must be denied. Packaging Industries Group, Inc., supra. Til. CONCLUSION WHEREFORE, based on the foregoing, the Plaintiffs have failed to meet the standards to continue injunctive relief and the Defendants, 3C TCP, LLC, Touchstone Capital Partners Commercial Funding, LLC and Thomas F. Meade, Manager, respectfully requests that this Court deny Plaintiffs the equitable relief requested. Respectfully submitted, Defendants, 3C TCP, LLC, et al By its attorneys, /s/ Kimberly Kroha PAUL N. BARBADORO, ESQ. (BBO #028850) PaulB@bbb-lawfirm.com KIMBERLY KROHA, ESQ. (BBO #687468) KimberlyK @bbb-lawfirm.com Baker, Braverman & Barbadoro, P.C. 300 Crown Colony Drive, Suite 500 Quincy, MA 02169-0904 (781) 848-9610 tel (781) 848-9790 fax Dated: September 30, 2021 www.bbb-lawfirm.com COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 21-2017B ) SEAFAN REALTY TRUST, LLC, ) KATHRYN WHEATON, MANAGER, AND KATHRYN WEHATON, INDIVIDUAL Plaintiff, Vv 3CTCP, LLC, TOUCHSTONE CAPITAL PARTNERS COMMERCIAL FUNDING, LLC THOMAS F. MEADE, MANAGER Defendant. AFFIDAVIT OF THOMAS MEADE I, Thomas Meade, of Norfolk County, Massachusetts, being duly sworn, depose and say: 1 Tam the Manager of TCP Commercial Funding LLC, which is the Manager of Defendant, 3C TCP, LLC (“3C TCP”). As Manager of TCP Commercial Funding LLC, the Manager of 3C TCP, I am familiar with 3C TCP’s business records and the way that they are maintained in the ordinary course of 3C TCP’s business. 2. Based on my personal knowledge and my review of those records, I have knowledge of the note and mortgage between 3C TCP and Seafan Realty Trust, LLC (“Seafan”) the guarantees by Plaintiff, Kathryn Wheaton, and Ariel Schmidt, of such loan obligations, and the subsequent foreclosures and settlement discussions. 3 Plaintiffs were represented by counsel Attorney Kelly Frey, Member at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., while negotiating the Settlement Agreement. 4 Attorney Frey drafted the Settlement Agreement for Plaintiffs, wherein Plaintiffs agreed to pay $880,000 by September 3, 2021 and, on receipt of such funds, 3C TCP LLC would rescind the Foreclosure Deed, discharge the mortgages and release Plaintiffs from further liability. If good funds equal to $880,000 were not received by September 3, 2021, Plaintiffs released Defendants from any all claims with respect to the two foreclosure auctions and underlying loan documents and agreed to vacate by December 3, 2021. 5 Plaintiffs failed to pay $880,000 on or before September 3, 2021. 6 Plaintiffs never made a scheduled interest payment on the loan to Defendants, and Plaintiffs have admitted in court that mortgage payments dating back to June and July 2019 have not been paid (Complaint, Docket No. 19-2701 C). 7 Plaintiffs have not paid Defendants any funds since February 22, 2021, when Plaintiffs delivered a check to the offices of counsel to Defendants with a note on the check that payment was being made in consideration of an extension to close as high bidder on the foreclosure auction for 61-63 Lawrence Avenue, and, because the extension was not agreed upon, the check was not deposited. 8 In August 2019, Kathryn Wheaton asserted under oath that she obtained “written approval of a refinance loan which shall repay Defendant 3CTCP, LLC in full, in approximately one month, by the end of September, 2019.” (Docket No. 19-2701 C). 9 Plaintiffs have been endeavoring to get a refinance loan since before the foreclosure auction of the primary collateral, a 3-family property at 67 Lawrence Avenue in December 2019. No actual closing date has ever been set, and no title agent or refinance lender counsel has ever contacted Defendants for a payoff statement. 10. Ms. Wheaton signed an affidavit when she obtained the underlying loan that the three-family property at 67 Lawrence was vacant and the funds would be used for construction and renovation purposes. 11. My business is described as private money lending, and I am familiar with reasonable terms offered by private money lenders. 12. The “term sheet” attached to Plaintiffs’ motion filed September 29, 2021 was made by a private money lender that only loans funds for investment purposes, and the lender would not loan funds for property used as a borrower’s residence. This is stated multiple times on the lender’s website and description of loan programs. 13. Plaintiff cannot credibly claim that a commercial purpose loan is the source of the payment due under the settlement agreement, while also claiming tenancy at the property as support for the request for injunction. 14. The “term sheet” attached to Plaintiffs’ motion filed September 29, 2021 states that the loan amount would be $1,237,500 but was conditioned on receiving an appraisal. 15. The market value of the properties known as 61-63 Lawrence Avenue and 67 Lawrence Avenue is not more than one million dollars. 16. Private money lenders such as the lender shown on the “term sheet” typically do not loan more than a 70% loan to value. 17. Accordingly, the highest loan that could reasonably be received by Plaintiffs on the property would be approximately $700,000, and the loaned funds would be insufficient for lender to have a first lien position on the property. 18. Private lenders such as the lender shown on the term sheet would not take a second lien position unless the value far exceeded the amount of both liens combined. 19. 3C TCP has not filed any eviction actions concerning the Property and 3C TCP promised not to file any such eviction actions until at least December 3, 2021. Signed under the pains and penalties of perjury this 30th day of September, 2021. ao, —_ ~ , l T HOMAS MEADE 4 Bk: 61434 Pg: 247 - - -- l il | | i i | I Bh: 61434 2018 00057934 Pg: 247 Page: 1 of 8 MORTGAGE AND SECURITY AGREEMENT Recorded: 07/17/2019 12:30 PM ATTEST:Stephen J. Muiphy, Register Date: FEBRUARY 01, 2018 Suffolk County Registry of Deeds KATHRYN A. WHEATON, an unmarried individual, having a mailing address at 63 Lawrence Avenue, Boston, MA (“Mortgagor”) being the owner of real property located and identified as 61-63 Lawrence Avenue, Boston, MA, for consideration received and obligation to, hereby grants to CATCH ENTERPRISES, having a mailing address at P.O.Box 190671, Boston, MA (“Mortgagee”) with Mortgage Covenants, to secure an obligation of a loan total of $400,000.00 (Four Hundred Thousand Dollars), payable as provided in Mortgagor’s Promissory Note (the “Note” or the “Note dated February 1, 2018”), to secure the performance of all covenants and agreements contained herein and in the Note, having a Maturity Date of July 30, 2019, and to secure the payment and performance of all other debts, covenants and agreements of or by Mortgagor to or for the benefit of Mortgagee now existing while this mortgage is still undischarged, the land in Suffolk County, Massachusetts all as described in the Exhibit A attached hereto, together with any and all improvements now or hereafter situated thereon known and numbered as 61-63 Lawrence Avenue, Boston, MA 02121 (“the subject property”). All fixtures, now or at any time hereafter attached to or used in any way in connection with the premises described in Exhibit A hereto or intended for such use, so attached, and whether now owned or hereafter acquired, Mortgagor covenants and agrees that, as of the execution hereof and upon the subsequent acquisition of such Collateral, Mortgagor shall: (a) provide Mortgagee with a precise inventory of the same, as and when required by Mortgagee; (b) provide Mortgagee with such other assurances as it may require to establish Mortgagee’s security interest in such Collateral; and (c) execute, deliver and cause to be recorded and filed from time to time, without notice or demand, and at the Mortgagor’s sole cost and expense, continuances and such other instruments as will maintain Mortgagee’s security in such Collateral, and in the event of default hereunder Mortgagor hereby grants Mortgagee free power and authority as attorney irrevocable of Mortgagor to execute, deliver and record and/or file such instruments. Said land, building(s), improvements and Collateral are hereinafter referred to as the “Premises”. Mortgagor covenants and agrees with Mortgagee: (1) to perform all of the covenants and agreements contained in the Note and in all other documents or instruments executed by Mortgagor in connection herewith; (2) to pay at least ten (10) days prior to the last date on which the same may be paid without penalty or interest, all taxes, charges for water, sewer and other municipal services, and assessments, whether or not assessed against Mortgagor, if applicable or related in any way to the After Recordation, Deliver Original to: Catch Enterprises, P.O.Box 190671, Boston, MA. qv ae Bk: 61434 Pg: 248 Premises, or any interest in the Premises of Mortgagor, Mortgagee or any other person or organization, or the debt, obligations or performance secured hereby, or the disbursement or application of the proceeds therefrom, excluding, however, any income or corporation excise tax of Mortgagee; IF APPLICABLE, to pay to Mortgagee on each day that payments are required by the terms of the Note, in addition to the payments of principal provided in the Note, a sum determined by Mortgagee to be sufficient to provide in the aggregate a fund adequate to pay such taxes, charges and assessments at least ten (10) days before the same become delinquent, and, in addition, to pay to Mortgagee on demand any balance from time to time determined by Mortgagee to be necessary to pay in full said taxes, charges and assessments at least ten (10) days before the date when they become due and payable. Such sums shall not bear interest and may by commingled with the general assets of Mortgagee; Mortgage shall not be required to account for any profits resulting from its use thereof, and such sums may be applied by Mortgagee to the payment of such taxes, charges and assessments or any other obligation of Mortgagor hereunder. Mortgagor shall furnish after request to Mortgagee any or all copy of tax bill(s) relating to the Premises at least fifteen (15) days before such taxes shall be due and payable. Mortgagor grants to Mortgagee in the event of a default hereunder full power and authority as attorney irrevocable of Mortgagor to apply for and prosecute claims for the abatement of taxes and to collect and endorse any checks issued on account of Mortgagor and to retain and apply the same to the debt or other obligation secured hereby; (3) to carry with respect to the Premises and its use such insurance as Mortgagee may from time to time require and as may from time to time be required by an applicable Federal, State or local law or regulation, including, without limitation, the following: (a) Casualty Insurance against loss or damage to the Premises on a comprehensive all risk basis which shall not exclude fire, extended coverage, vandalism and flood, in an amount not less than $1,000,000.; (b) Rent Insurance against rent or similar loss of income in an amount not less than 100% of the expected annual rental income from the Premises under, if any, all leases and occupancy agreements then in effect; (c) Comprehensive General Liability Insurance for claims arising from bodily injury, personal injury and property damage occurring upon, in or about the Premises on an occurrence basis with combined single limit coverage of not less than $1,000,000.; (d) Flood Insurance if the Premises or any portion thereof is located in a federally designated flood hazard area as established by the National Flood Insurance Act of 1968, as amended by the Flood Disaster Protection Act of 1973, in an amount equal to the lesser of (i) all amounts outstanding pursuant to the Note and (ii) the maximum amount of such insurance as is available. Said flood insurance policy, if any, shall name Mortgage as loss payee thereunder. : And evidence of all such insurance (with evidence of payment of premiums thereon satisfactory to Mortgagee) so required to be maintained, together with any other insurance with respect to the Premises maintained by Mortgagor, shall be deposited with, and, except for public liability coverage and any other coverage Mortgagee may determine shall not be payable to it in case of loss, shall be payable in case of loss to Mortgagee to the extent of Mortgagor’s obligation to Mortgagee; all renewals or replacements of such insurance from time to time in force together with evidence of payment of premiums thereon satisfactory to Mortgagee shall be delivered to Mortgagee at least twenty (20) days before the expiration 4) ee Bk: 61434 Pg: 253 covenants, conditions or agreements in any instrument given in connection with the Note and debt secured hereby, or in any other mortgage, debt or obligation of or from Mortgagor to Mortgagee remaining uncured after the expiration of any applicable grace periods; or if any involuntary proceedings shall be commenced against Mortgagor or any general partner or trustee of Mortgagor, if any, under any chapter of any federal Bankruptcy Code or other law relating to bankruptcy, bankruptcy reorganization, insolvency or relief of debtors, and such petition or proceeding is not dismissed within thirty (30) days from the date on which it is filed or instituted; or if Mortgagor becomes insolvent or is unable to pay its debts as they become due, or (B) any guarantor of Mortgagor’s obligations or any endorsers of the Note shall: (a) die; (b) and if other than a natural person liquidate, terminate or dissolve or merge or consolidate with another entity, or vote or attempt to rescind, revoke, terminate this Mortgage, Note, or any other agreement, guarantee executed to the benefit of the Mortgagee; (c) file or institute a petition (or have filed or instituted against any guarantor or endorser a petition which is not dismissed within thirty (30) days) under any chapter of the Federal Bankruptcy Code or any other proceeding under any law relating to bankruptcy, bankruptcy reorganization, insolvency or relief of debtors, or consent to an assignment, composition or similar arrangement for the benefit of creditors, or consent to appointment of a receiver for any of the property, of such guarantor or endorses; or (@) become insolvent or unable to pay debts when due; then, at the option of Mortgagee, the entire debt secured hereby, together with all prepayment charges to which Mortgagee would be entitled under the Note or by law if the‘Note were prepaid in full, shall be due and payable, and Mortgagee shall have the Statutory Power of Sale as hereinafter provided. The failure at any time of Mortgagee to exercise this option shall not constitute a waiver of the right to exercise the right at any other time. Whether or not for additional interest or other consideration paid or payable to Mortgagee, no forbearance on the part of Mortgagee or extension of the time for the payment on the whole or any part of the obligations secured hereby, whether oral or in writing, or any other indulgence given by Mortgagee to Mortgagor or to any other party claiming any interest in or to the Premises, shall operate to release or in any manner affect the original liability of Mortgagor, or the priority of this Mortgage or to limit, prejudice or impair any right of Mortgagee, including without limitation, the right to realize upon security, or any part thereof, for the obligations secured hereby or any of them, notice of any such extension, forbearance or indulgence being hereby waived by Mortgagor and all those claiming by, through or under Mortgagor; and no consent or waiver, express or implied, by Mortgagee to or of any default by Mortgagor shall be construed as a consent or waiver to or of any further default in the same or any other term, condition, covenant or provision of this Mortgage or of the obligations secured hereby; in case redemption is had by the Mortgagor after foreclosure proceedings have begun, the holder shall be entitled to collect all costs, charges and expenses incurred up to the time of redemption. This instrument is intended to also be a Security Agreement under the Uniform Commercial Code (“U.C.C.”), The conveyance of the Collateral shall constitute a grant of U.C.C. Security Interest therein and the recording of this instrument shall have all of the remedies of a secured party under the U.C.C, as now in effect in The Commonwealth of Massachusetts, and such further remedies as may from time to time hereafter be provided under Massachusetts law for a secured party. Mortgagee will mH - ~ - I Bk: 61434 Pg: 254 give to Mortgagor actual written notice by certified return receipt mail of no less than sixty days of the time and place of any public sale of Collateral or of the time for which any private sale or other intended disposition; provided, however, that if the provisions of the U.C.C. as adopted in Massachusetts are applicable to any Collateral which is not sold in connection with or as part of the Premises, or any part thereof, at one: or more foreclosure: sales, any notice: required: under such- provisions shall be fully satisfied by the notice given in execution of the Statutory Power of Sale. Expenses of retaking, holding, preparing for sale, selling and the like shall include the reasonable attorneys’ fees and legal expenses of Mortgagee. Mortgagor agrees that all rights of Mortgagee may be exercised together or separately and further agrees that in exercising its Power of Sale, Mortgagee may sell the Collateral or any part thereof either separately from, or together with, the real property, or any part thereof, all as Mortgagee may in its sole discretion elect. In case any provision of the Note, this Mortgage, or any instrument executed by any person or organization in connection therewith shalt be found unenforceable or invalid for any reason, the enforcement of any other provision shall be deemed modified to the extent necessary to be enforceable or if such modification is not practicable, such provision shall be deemed deleted from this Mortgage. This Mortgage is upon the STATUTORY CONDITION and upon the further condition that all covenants and agreements of Mortgagor in the Note, this Mortgage, al! other instruments executed in connection therewith and in all other mortgages, debts and obligations of or from Mortgagor to or for the benefit of Mortgagee shall be kept and fully performed, and upon any breach of the, same Mortgagee shall have the STATUTORY POWER OF SALE and any other powers given by statute. The word “Mortgagor” as used herein means Mortgagor named herein, whether one or several, and also means any subsequent owner or owners of the equity of redemption of the Premises, and ail of the covenants and agreement of Mortgagor herein contained shall be binding upon Mortgagor, its heirs, executors, administrators, successors and assigns and shall be joint and several if more than one person constitutes Mortgagor. The word “Mortgagee” as used herein means Mortgagee named herein as the holder of this Mortgage. This mortgage is executed, effective this Ist day of February, 2018 by the Mortgagor: Mortgagor - - . thryp Wheaton, Individual, Owne By Commonwealth of Massachusetts February 1, 2018 Personally appeared the above named proved to me through satisfactory evidence which was driver’s license, to be the person whose name is signed on the foregoing document and signed voluntarily for its stated purpose, before me: - L, Notary Public "ABDIKARIM ALI w Notary Public My Commission Expires: wIAg Y_ 2e23 SACHUSETTS SONMONWEALTH OF MAS Expires mission My ComMay 4, 2023 aq ee Bk: 61434 Pg: 255 EXHIBIT A Property Address: 61-63 Lawrence Avenue, Boston, MA For title reference see deed recorded with the Suffolk County Registry of Deeds in Book 14805, Page 134, Ab ae OD,SUFFOLK, 5s Commonwealth of Massachusetts Ay % EROS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT No AEF Rey 03504 Reed, Geet g LieQ cl pbelle, LLC Plaintiff(s) Vv, Kketh mip A W hee Ton tc Seatend Qo! Fy , Defendant(s) Teusty ULC. WRIT OF ATTACHMENT To the sheriffs of our several counties or their deputies: We command you;to attach the goo e of defendant estat Ketheya, A wheeler >of L pers cc AY" Duc esse i »to e value of $329,505, sa (the amount authorized), as prayed for by plaintiff Ger terc& of i Tor) no 4, Whose_attorney is. Ww ‘Mie ni Soolline of 50 Congress Si Wile AYs , in an action brought by X saidd plaintiff & gethe Piece é said defendant [eth yw A Whelan in the Superior Court Department of the Trial Court for Suffolk County, and make due return, -of this writ with your doings thereon. Tie conplaat in ahs cade was fled on Novem bac 5 , ol ‘This attachment was, approved” Myce » 20 pomeaes _, J., inthe amounoft $ 2, 39 a54 Witness, Judith Fabricant,- Esquire, at Boston, the Loth day of in, the year of our Lori two thousand tesa it vAtl | | I Bk: 62724 Pg: 805 Page: 1 of 3 Recorded: 03/24/2020 11:16 AM Dla oapl Court . Clerk of er’ Sen ATTEST:Stephen J. Murphy, Register Suffolk County Registry of Deeds i ‘This writ of attachment is issued pursuant to Rule 4.1 of the Massachusetts Rules of Civil Procedure. © Atuscopy Avene, (° Kae J neon ‘Form CIV. P. 12 ‘Deputy Sherif Suffolk County Agt aiew 4) PROOF OF ATTACHMENT ~ , I certify and return that on 20___, I attached the property of the within- named defendant in the following manner: Dated:. » 20 PROOF OF SERVICE 1 further certify and return that on 20 |, Lserved a copy of the within writ of attachment on the within-named defendant, in the following manner: Dated: 20 Ty date) Afier notes, filing and hoaung apy prove 's given to Deputy Sheriff to make ol: ee nt in common form « frit at A & PSE Oe te Cou in oury “sia (iY) Au ap ) me ES ge < od te OOo % Boi Vyageane iS Ye, ay —_— we Suffolk, SS. Boston March 18, 2020 I this day at 9:05 a.m. attached all the right, title and interest that the within named Kathryn A. Wheaton attachment). has in and to any and all real estate in the County of Suffolk (not exempt by law from Bp hme Ap em Deputy Sheriff Suffolk Deputy Sheriffs 132 Portland Street Boston, MA 02114 4 ae Le Cee 64021 Pg: P et? oy a Ui Bh: 64 2020 79097459 (UK lasgachusetts Recorded: wr 1: Tote SUFFOLK, Ss ATTEST:Ste, hen05¢co 20 on 24 8 PM OSTON MUNICIPAL Court DEPARTMENT Suffolk Count J. Murphy, F THE TRIAL CouRT FOR CIVIL BUSINESS raglan y Registry of Dew ‘ENTRAL DIVISION, CivILNO. 2991¢v000726 Alfred L. Johnson - Plaintiff — a ~ ~ ~ WRIT OF ATTACHMENT Kathryn—A-.--Wheaton--——- ~ 4 De! A Wrwan_ A true copy Attost: a y Kanto " To the Sheriffs of our several Counties or their Deputies, or a Constable sage ae Deputy Sheriff Suffolk County of any City or Town within the Commonwealth: WE COMMAND yov to attach the goods or estate of Defendant Kathryn A. Wheaton of —67-TaWEeNnte-AVes7-Dorchesters—Ma © the value of $441,000.00 (the amount authorized), as prayed for by Plaintiff__Alfred L Johnson soe of 98 Fairmont St . Dorchester, MA whose attorney is William F...Spallina. of .50 Congress St., Suite 745, Boston,jin MA an action brought by said Plaintiff __Alfred—L.—_Johnagson against Defendant Kathryn—As Wheaton in the Boston Municipal Court Department of the Trial Court for Civil Business, Central Division, and make due return of this writ with your doings thereon. The complaint in this case was filed on April 24 von 2020 This attachment was approved on .OCtOber 20 +20 » by Sum vit J, in the amount of $-44,000_00, Witness, ROBERTO RONQUILLO, JR.. Esq. at Boston, the. day of Uctober 20 .20_. Date. LOMO RODD nt Dent fp i After notice, and hearing, permission to appoint a keeper over attached property of the defendant CLERK / MAGISTRATE % LH OPO 22 to wit: Date eT | aurcace.. Avenue. (after ex parte approval) (description of property) After notice and hearing, permission is hereby given tomake an attachment loctetat OY eceleske _ MA of the real estate of the defendant in i is he ‘County in the sum of $ ... einen ene Justice Se ene wre Justice = —= oer BMC-CV-002 WRIT OF ATTACHMENT ee Bk: 64121 Pg: 178 % folk, $8, Boston November 5, 2020 Lthis day. at 9:45 a.m, attached all the right, title and interest that the within named Post Kathey ‘A. Wheaton has: ‘and to any and all real estate in the County of Suffolk (not exempt by law from attachment) , Ad A prince A WAAL Deputy Sheriff bic: 1 Abia, Last Wath te Hansa 4 ‘ Suffotk Deputy Sheriffs 132'Portland Street Boston, MA 02114