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17
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, E-FILED 10/18/2021 (CD)
V.
3CTCP, LLC, TOUCHSTONE CAPITAL
PARTNERS COMMERCIAL FUNDING, LLC
THOMAS F. MEADE, MANAGER
Defendant.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Now come the Defendants in the captioned action, pursuant to Mass. R. Civ. P. 12(b)(6), to
dismiss the subject proceeding for failure to state a claim. As grounds therefore, the Defendants state
that Plaintiffs do not set out any distinguishable claim of action and even acknowledge that they are
obligated to pay-off the debt owed to Defendant, 3C TCP, LLC.
WHEREFORE, for the foregoing reasons and those in Defendant’s Memorandum of Law in
support of its Motion to Dismiss the Complaint submitted herewith, this Motion to Dismiss should be
allowed for failure to state a claim upon which relief can be granted.
Respectfully submitted,
3C TCP, LLC, et. al
By their 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
Dated: September 30, 2021 (781) 848-9790 fax
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 WHEATON, INDIVIDUAL
Plaintiffs,
E-FILED 10/18/2021 (CD)
Vv.
3CTCP, LLC, TOUCHSTONE CAPITAL
PARTNERS COMMERCIAL FUNDING, LLC
THOMAS F. MEADE, MANAGER
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS
NOW COME the Defendants in the above-captioned action and hereby respectfully
submits this Memorandum of Law in Support of its Motion to Dismiss pursuant to Mass. R. Civ.
P. 12(b)(6). As grounds therefor, the Defendants state that Plaintiffs have failed to state a claim
upon which relief can be granted and therefore Plaintiffs’ Complaint must be dismissed.
I Factual Background
Plaintiffs brought this action to interfere with valid exercise of the power of sale rights
provided in mortgages from Seafan Realty Trust, LLC and Kathryn Wheaton held by 3C TCP,
LLC. Plaintiff admits that Seafan Realty Trust, LLC is obligated to repay 3C TCP, LLC for sums
loaned. (Complaint { 1). Plaintiffs admit that they executed a Settlement Agreement with 3C
TCP, dated July 9, 2021, in which Defendants agreed to forbear exercise of their rights,
including selling the three-family property they have owned pursuant to a recorded Foreclosure
Deed since January 2020 and recording the Foreclosure Deed for the adjacent lot. (Complaint 4
and Exhibit). Plaintiffs also admit that they failed to comply with the terms of the Settlement
Agreement. (Complaint { 6).
The Settlement Agreement attached to the Complaint, negotiated by Plaintiffs’ counsel at
Mintz Levin and fully executed by Plaintiffs while represented by such counsel, lays out the
documents setting for the parties respective rights and obligations: (1) that certain mortgage note
modification agreement, dated February 26, 2019 (the “Mortgage Note”), by which 3C TCP
made a commercial mortgage loan of $700,000 (the “Mortgage Loan”) to Seafan on the three-
family residential house located at 67 Lawrence Avenue, Boston, MA (“67 Lawrence”); (2) that
certain mortgage granted by Seafan to 3C LENDING LLC as of January 12, 2018, and recorded
with the Suffolk County Registry of Deeds (the “Registry”) at Book 59065, Page 122,
subsequently assigned to 3C TCP by assignment recorded with said Registry at Book 60787,
Page 161 and by a Mortgage Modification Agreement dated February 26, 2019, recorded in the
Registry at Book 60788, Page 205 (the “67 Lawrence Mortgage”); (3) Ms. Wheaton’s personal
guarantee of the repayment of the Mortgage Loan (the “Wheaton Personal Guarantee”); (4) Ariel
Schmidt’s personal guarantee of the repayment of the Mortgage Loan (the “Schmidt Personal
Guarantee”); (5) that certain guarantee mortgage on the land located at 61-63 Lawrence Avenue,
Boston, MA (“61-63 Lawrence”) recorded in the Registry at Book 60788, Page 227 (the “61-63
Lawrence Guarantee Mortgage”) (collectively the “Loan Documents”); (6) the foreclosure
auction of 67 Lawrence held December 16, 2020 by 3C TCP pursuant to 3C TCP’s statutory
power of sale and providing statutory notices thereof; (7) that certain Memorandum of Sale of 67
Lawrence, dated December 6, 2019 and the related Assignment of Bid for Value to Ms. Wheaton
and/or her assignee, dated December 17, 2019 (the “67 Lawrence Memorandum of Sale”); (8)
default by the high bidder and assignee of rights under the 67 Lawrence Memorandum of Sale as
set forth in the Notice of Default dated January 13, 2020; (9) that certain Foreclosure Deed dated
January 30, 2020, recorded at the Suffolk County Registry of Deeds in Book 62482, Page 137 on
January 31, 2020 (the “67 Lawrence Foreclosure Deed”); (10) the foreclosure auction of 61-63
Lawrence held December 16, 2020 by 3C TCP pursuant to 3C TCP’s statutory power of sale and
providing statutory notices thereof; (11) that certain Memorandum of Sale of 61-63 Lawrence to
Ms. Wheaton and/or her assignee, dated December 16, 2020 (the “61-63 Lawrence
Memorandum of Sale”); and (12) default by Ms. Wheaton under the 61-63 Lawrence
Memorandum of Sale as set forth in the Notice of Default dated April 1, 2021.
Moreover, 3C TCP LLC is under no obligation to rescind the recorded Foreclosure Deed
because Plaintiffs have failed to comply with the terms of the Settlement Agreement that
required a payment in good, clear funds of $880,000 on or before September 3, 2021. Although
Plaintiffs alleged they have “succeeded in obtaining a Commitment Lender from a refinance
letter” by September 24, 2021, the so-called commitment lender is not willing to loan any funds
to Plaintiffs as of September 28, 2021, as set forth in Plaintiffs’ motion for TRO extension. 3C
TCP LLC has owned the property at 67 Lawrence Avenue by recorded Foreclosure Deed since
January 2020, and the high bidder (Ms. Wheaton) at the December 16, 2020 foreclosure auction
for 61-63 Lawrence defaulted such that 3C TCP LLC has right to record a Foreclosure Deed to
itself for the high bid price of $150,000. Defendants respectfully request that this Court dismiss
Plaintiffs’ Complaint with prejudice and award attorney fees for defending this action.
Il. Legal Standard
A motion to dismiss for failure to state a claim is appropriate when as here “the
allegations in the Complaint clearly demonstrate that the Plaintiff's claim is legally insufficient.”
Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748 (2006).
When evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the
Court accepts as true all of the factual allegations of the complaint and draws all reasonable
inferences from the complaint in favor of the Plaintiff. Nader _v. Citron, 372 Mass. 96, 98
(1977), abrogated on other grounds, Iannacchino, et al v. Ford Motor Co., et al, 451 Mass. 623
(2008). To survive a motion to dismiss, a complaint must set forth the basis for the Plaintiffs
entitlement to relief with “more than labels and conclusions”. Iannacchino, 451 Mass. at 636
quoting Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555 (2007). While factual allegations
need not be detailed, they “must be enough to raise a right to relief above the speculative level...
[based] on the assumption that all allegations in the complaint are true even if doubtful in
fact.)...” Id. At the pleading stage, Mass.R.Civ.P. 12(b)(6) requires that the complaint set forth
“factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief.”
Id. (quoting Bell Atlantic, 550 U.S. at 557). The Plaintiffs have failed to meet this standard.
In evaluating a motion pursuant to Mass.R.Civ.P. 12 (b)(6), “We take into consideration
the allegations in the complaint, although matters of public record, orders, items appearing in the
record of the case, and exhibits attached to the complaint also may be taken into account”.
Schaer v. Brandis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000) quoting SA C.A. Wright &
AR. Miller, Federal Practice and Procedure Civil 2d §1357 at 299 (1990).
Til. Argument
Although Plaintiffs have asserted that they has a written commitment to pay Defendants
in full for the sums owed to them, before the end of September 2021, she has since asked for a
further extension and acknowledged that the so-called lender on the first term sheet has
withdrawn any offer to loan. (Complaint 4). Plaintiffs have not alleged any facts on which
Defendant acted in violation of the contractual relationship created by the Settlement Agreement
that by its terms ended September 3, 2021. Santos v. U.S. Bank Nat’] Assn’, 89 Mass. App. Ct.
687, 701-702 (2016). Defendants have not taken any action on the properties since September 3,
2021 in accordance with the injunction issued by this Court prohibiting Defendants from taking
further action against the properties at issue through October 1, 2021.
Accepting all allegations in the Complaint as true for purposes of this motion, there are
no causes of action raised thereby. See Iannacchino, et al v. Ford Motor Co., et al, 451 Mass.
623 (2008). Plaintiffs admit that they failed to meet the negotiated steps required under the
Settlement Agreement. 3C TCP LLC has owned the property at 67 Lawrence Avenue since
January 2020, and 3C TCP LLC is under no obligation to rescind the recorded Foreclosure Deed
because Plaintiffs have failed to comply with the Settlement Agreement that required a payment
in good, clear funds of $880,000 on or before September 3, 2021.
Wherefore, based upon the foregoing, Plaintiffs’ Complaint must be dismissed.
IV. Conclusion
Defendants respectfully move this Court to dismiss all claims against them in Plaintiffs’
Complaint and award Defendants all expenses and costs including reasonable attorneys’ fees.
Respectfully submitted,
3C TCP, LLC, et. al, Defendants,
By their 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
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17 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, E-FILED 10/18/2021 (CD) V. 3CTCP, LLC, TOUCHSTONE CAPITAL PARTNERS COMMERCIAL FUNDING, LLC THOMAS F. MEADE, MANAGER Defendant. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Now come the Defendants in the captioned action, pursuant to Mass. R. Civ. P. 12(b)(6), to dismiss the subject proceeding for failure to state a claim. As grounds therefore, the Defendants state that Plaintiffs do not set out any distinguishable claim of action and even acknowledge that they are obligated to pay-off the debt owed to Defendant, 3C TCP, LLC. WHEREFORE, for the foregoing reasons and those in Defendant’s Memorandum of Law in support of its Motion to Dismiss the Complaint submitted herewith, this Motion to Dismiss should be allowed for failure to state a claim upon which relief can be granted. Respectfully submitted, 3C TCP, LLC, et. al By their 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 Dated: September 30, 2021 (781) 848-9790 fax 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 WHEATON, INDIVIDUAL Plaintiffs, E-FILED 10/18/2021 (CD) Vv. 3CTCP, LLC, TOUCHSTONE CAPITAL PARTNERS COMMERCIAL FUNDING, LLC THOMAS F. MEADE, MANAGER Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS NOW COME the Defendants in the above-captioned action and hereby respectfully submits this Memorandum of Law in Support of its Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6). As grounds therefor, the Defendants state that Plaintiffs have failed to state a claim upon which relief can be granted and therefore Plaintiffs’ Complaint must be dismissed. I Factual Background Plaintiffs brought this action to interfere with valid exercise of the power of sale rights provided in mortgages from Seafan Realty Trust, LLC and Kathryn Wheaton held by 3C TCP, LLC. Plaintiff admits that Seafan Realty Trust, LLC is obligated to repay 3C TCP, LLC for sums loaned. (Complaint { 1). Plaintiffs admit that they executed a Settlement Agreement with 3C TCP, dated July 9, 2021, in which Defendants agreed to forbear exercise of their rights, including selling the three-family property they have owned pursuant to a recorded Foreclosure Deed since January 2020 and recording the Foreclosure Deed for the adjacent lot. (Complaint 4 and Exhibit). Plaintiffs also admit that they failed to comply with the terms of the Settlement Agreement. (Complaint { 6). The Settlement Agreement attached to the Complaint, negotiated by Plaintiffs’ counsel at Mintz Levin and fully executed by Plaintiffs while represented by such counsel, lays out the documents setting for the parties respective rights and obligations: (1) that certain mortgage note modification agreement, dated February 26, 2019 (the “Mortgage Note”), by which 3C TCP made a commercial mortgage loan of $700,000 (the “Mortgage Loan”) to Seafan on the three- family residential house located at 67 Lawrence Avenue, Boston, MA (“67 Lawrence”); (2) that certain mortgage granted by Seafan to 3C LENDING LLC as of January 12, 2018, and recorded with the Suffolk County Registry of Deeds (the “Registry”) at Book 59065, Page 122, subsequently assigned to 3C TCP by assignment recorded with said Registry at Book 60787, Page 161 and by a Mortgage Modification Agreement dated February 26, 2019, recorded in the Registry at Book 60788, Page 205 (the “67 Lawrence Mortgage”); (3) Ms. Wheaton’s personal guarantee of the repayment of the Mortgage Loan (the “Wheaton Personal Guarantee”); (4) Ariel Schmidt’s personal guarantee of the repayment of the Mortgage Loan (the “Schmidt Personal Guarantee”); (5) that certain guarantee mortgage on the land located at 61-63 Lawrence Avenue, Boston, MA (“61-63 Lawrence”) recorded in the Registry at Book 60788, Page 227 (the “61-63 Lawrence Guarantee Mortgage”) (collectively the “Loan Documents”); (6) the foreclosure auction of 67 Lawrence held December 16, 2020 by 3C TCP pursuant to 3C TCP’s statutory power of sale and providing statutory notices thereof; (7) that certain Memorandum of Sale of 67 Lawrence, dated December 6, 2019 and the related Assignment of Bid for Value to Ms. Wheaton and/or her assignee, dated December 17, 2019 (the “67 Lawrence Memorandum of Sale”); (8) default by the high bidder and assignee of rights under the 67 Lawrence Memorandum of Sale as set forth in the Notice of Default dated January 13, 2020; (9) that certain Foreclosure Deed dated January 30, 2020, recorded at the Suffolk County Registry of Deeds in Book 62482, Page 137 on January 31, 2020 (the “67 Lawrence Foreclosure Deed”); (10) the foreclosure auction of 61-63 Lawrence held December 16, 2020 by 3C TCP pursuant to 3C TCP’s statutory power of sale and providing statutory notices thereof; (11) that certain Memorandum of Sale of 61-63 Lawrence to Ms. Wheaton and/or her assignee, dated December 16, 2020 (the “61-63 Lawrence Memorandum of Sale”); and (12) default by Ms. Wheaton under the 61-63 Lawrence Memorandum of Sale as set forth in the Notice of Default dated April 1, 2021. Moreover, 3C TCP LLC is under no obligation to rescind the recorded Foreclosure Deed because Plaintiffs have failed to comply with the terms of the Settlement Agreement that required a payment in good, clear funds of $880,000 on or before September 3, 2021. Although Plaintiffs alleged they have “succeeded in obtaining a Commitment Lender from a refinance letter” by September 24, 2021, the so-called commitment lender is not willing to loan any funds to Plaintiffs as of September 28, 2021, as set forth in Plaintiffs’ motion for TRO extension. 3C TCP LLC has owned the property at 67 Lawrence Avenue by recorded Foreclosure Deed since January 2020, and the high bidder (Ms. Wheaton) at the December 16, 2020 foreclosure auction for 61-63 Lawrence defaulted such that 3C TCP LLC has right to record a Foreclosure Deed to itself for the high bid price of $150,000. Defendants respectfully request that this Court dismiss Plaintiffs’ Complaint with prejudice and award attorney fees for defending this action. Il. Legal Standard A motion to dismiss for failure to state a claim is appropriate when as here “the allegations in the Complaint clearly demonstrate that the Plaintiff's claim is legally insufficient.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748 (2006). When evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court accepts as true all of the factual allegations of the complaint and draws all reasonable inferences from the complaint in favor of the Plaintiff. Nader _v. Citron, 372 Mass. 96, 98 (1977), abrogated on other grounds, Iannacchino, et al v. Ford Motor Co., et al, 451 Mass. 623 (2008). To survive a motion to dismiss, a complaint must set forth the basis for the Plaintiffs entitlement to relief with “more than labels and conclusions”. Iannacchino, 451 Mass. at 636 quoting Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555 (2007). While factual allegations need not be detailed, they “must be enough to raise a right to relief above the speculative level... [based] on the assumption that all allegations in the complaint are true even if doubtful in fact.)...” Id. At the pleading stage, Mass.R.Civ.P. 12(b)(6) requires that the complaint set forth “factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief.” Id. (quoting Bell Atlantic, 550 U.S. at 557). The Plaintiffs have failed to meet this standard. In evaluating a motion pursuant to Mass.R.Civ.P. 12 (b)(6), “We take into consideration the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint also may be taken into account”. Schaer v. Brandis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000) quoting SA C.A. Wright & AR. Miller, Federal Practice and Procedure Civil 2d §1357 at 299 (1990). Til. Argument Although Plaintiffs have asserted that they has a written commitment to pay Defendants in full for the sums owed to them, before the end of September 2021, she has since asked for a further extension and acknowledged that the so-called lender on the first term sheet has withdrawn any offer to loan. (Complaint 4). Plaintiffs have not alleged any facts on which Defendant acted in violation of the contractual relationship created by the Settlement Agreement that by its terms ended September 3, 2021. Santos v. U.S. Bank Nat’] Assn’, 89 Mass. App. Ct. 687, 701-702 (2016). Defendants have not taken any action on the properties since September 3, 2021 in accordance with the injunction issued by this Court prohibiting Defendants from taking further action against the properties at issue through October 1, 2021. Accepting all allegations in the Complaint as true for purposes of this motion, there are no causes of action raised thereby. See Iannacchino, et al v. Ford Motor Co., et al, 451 Mass. 623 (2008). Plaintiffs admit that they failed to meet the negotiated steps required under the Settlement Agreement. 3C TCP LLC has owned the property at 67 Lawrence Avenue since January 2020, and 3C TCP LLC is under no obligation to rescind the recorded Foreclosure Deed because Plaintiffs have failed to comply with the Settlement Agreement that required a payment in good, clear funds of $880,000 on or before September 3, 2021. Wherefore, based upon the foregoing, Plaintiffs’ Complaint must be dismissed. IV. Conclusion Defendants respectfully move this Court to dismiss all claims against them in Plaintiffs’ Complaint and award Defendants all expenses and costs including reasonable attorneys’ fees. Respectfully submitted, 3C TCP, LLC, et. al, Defendants, By their 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