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COMMONWEALTH
NOTIFY
OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
Civil No. 2384CV02060
SHITAL PATEL, CHIRAG PATEL, TUSHAR PATEL, SANJAY PATEL,
SHAMIN PATEL, and ANAND PATEL
Vv.
NILESH PATEL
DECISION AND ORDER ON PLAINTIFFS’
MOTION FOR REAL ESTATE ATTACHMENT
Plaintiffs brought this action seeking to recover more than $4 million in funds they allege
Defendant Nilesh Patel (“Defendant”) fraudulently induced them to lend him based on knowing
and material misrepresentations he made concerned the alleged purposes of the loans.
By Order dated September 25, 2023 (Dkt. 14), the Court (Budreau, J.) granted Plaintiffs’ motion
for a preliminary injunction and enjoined Defendant “from transferring, encumbering or
concealing assets which would reduce the balance or value below $4,072,000.00 from any
account(s) in which Nilesh Patel has any legal or equitable interest held with TD Ameritrade,
Inc.” subject only to exceptions permitting Defendant to pay his family’s reasonable and
ordinary living expenses and his reasonable attorneys’ fees to defend against this action. The
following day, the Court issued an Order (Dkt. 15) granting Plaintiffs’ Motion for Trustee
Process, which sought to attach all funds held by TD Ameritrade on behalfof Defendant. The
Court issued the foregoing orders after expressly finding — based on submissions made to the
Court on or before that date — that Plaintiffs have a “high likelihood of succeeding on the merits
of all their claims including the contract and fraud claims.” Jd.
Subsequent to the Court’s issuance of these twin orders, Plaintiffs learned that Defendant had
minimal funds in his TD Ameritrade accounts. Upon making that discovery, Plaintiffs filed the
instant motion, which seeks a writ of attachment against real property owned by Defendant,
including but not limited to property located at 17 Granny Smith Lane, Woburn, Massachusetts
01801 (the “Woburn Property”).
Defendant opposes Plaintiffs’ motion for real estate attachment, asserting that: (a) he committed
no acts of fraud and does not owe Plaintiffs “the money they are demanding”; (b) he and his wife
own the Woburn Property as tenants by the entirety; and (c) he and his wife filed a Declaration
of Homestead with respect to the Woburn Property in April 2014, prior to the events at issue in
this litigation.
Following notice to Defendant and a hearing that his representative attended, the Court finds that
the evidence submitted by the parties to date establishes a reasonable likelihood that Plaintiffs
will secure a judgment against Defendant in an amount equal to or greater than $3.73 million,!
and that there has been no showing of liability insurance available to satisfy that judgment. The
specific facts demonstrating Plaintiffs’ likelihood of obtaining a judgment in that amount are
summarized in Judge Budreau’s September 25, 2023 Order on Plaintiffs’ Motion for Preliminary
Injunction (Dkt. 14) and need not be repeated here. The Court accordingly ALLOWS Plaintiffs’
motion for real estate attachment in the amount of $3.73 million, subject to two limitations.
First, if the Woburn Property is, in fact, held by Defendant and his spouse as tenants by the
entirety, the interest of Defendant’s spouse in that property shall not be subject to seizure or
execution by Plaintiffs so long as the property is the spouse’s principal residence. See, e.g.,
Peebles v. Minnis, 402 Mass. 282, 283 (1988) (existence of tenancy by the entirety protects
nondebtor spouse’s principal residence from seizure or execution, but not from attachment).”
Second, if Defendant and his spouse did, in fact, file a Declaration of Homestead on the Woburn
Property in 2014, the amount of the homestead estate shall be exempt from the attachment.
Thus, the attachment shall serve to provide security to Plaintiffs only to the extent a sale of the
Woburn Property or other triggering event results in available funds over and above the amount
protected by the statutory homestead estate. See Pittsfield Bank v. Howk, 86 Mass. 347, 350
(1862) (creditor entitled only to residue remaining after deduction of homestead amount from
value of land); cf Hartog, Baer & Hand, A.P.C. v. Clarke, 99 Mass. App. Ct. 460, 463-64 (2021)
(ruling that creditor’s action in levying on and then suspending an execution on defendant’s
property did not violate the Massachusetts Homestead Act).
Although Plaintiffs are correct that the Homestead Act contains an exception to homestead
protection in cases of fraud, the Act defines that exception as applying to “an execution issued
from a court of competent jurisdiction to enforce its judgment based upon fraud... .” See G.L.
c. 188, § 3(b)(6). Plaintiffs, as yet, have obtained no such judgment. Accordingly, the amount of
Defendant’s and his spouse’s homestead estate shall be exempt from the attachment granted by
* This amount is derived from the sum of the monies that Plaintiffs loaned to Defendant minus any
payments Defendant has made to Plaintiffs since receipt of those loans. The difference between the
amount set forth in this Order and the amount set forth in Judge Budreau’s September 25 and 26 Orders is
attributable to the stipulated dismissal of one of the original plaintiffs, Hetal Patel. In view of that
dismissal, the Court has deducted the funds that Defendant owed Hetal Patel from the total, thus reducing
the amount from $4,072,000.00 to $3,730,000.00. Finally, the latter sum includes no interest, thus
rendering irrelevant — for present purposes — Defendant’s contention that the interest rates specified in the
promissory notes he provided to Plaintiffs are usurious and cannot be enforced.
* Plaintiffs have not alleged any involvement by Defendant’s spouse in the financial transactions at issue
in this case.
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this Order unless and until the above-quoted statutory exception to homestead protection is
triggered, which would then permit execution by Plaintiffs on any judgment they obtain that is
based upon Defendant’s fraud.
Finally, the Court is unpersuaded by Defendant’s contention, made at the motion hearing, that
each individual Plaintiff must separately move for his own writ of attachment. The allegations of
Plaintiffs’ Verified Complaint, which they filed together after retaining common counsel, assert
that Plaintiffs were victimized by a unitary scheme that Defendant employed to ensnare all of
them. Defendant has cited no authority for the proposition that the victims of a common fraud
scheme may not collectively seek attachments, preliminary injunctions, or the other types of
prejudgment relief available to plaintiffs by statute, rule, or other applicable law
CONCLUSION AND ORDER
For the reasons set forth above, and in accordance with Mass. R. Civ. P. 4.1, the Court hereby
ORDERS that a writ of attachment shall issue in the amount of $3,730,000.00, subject to the
limitation that if Defendant filed a valid Declaration of Homestead on the Woburn Property, the
amount of the homestead estate shall be exempt from the attachment until and unless the
exception to homestead protection set forth in G.L. c. 188, § 3(b)(6) is triggered
Yd) Pt
SO ORDERED.
Michael J. Pi
Dated: June 11, 2024 Associate Ju: S|gr Superior Court
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4% COMMONWEALTH NOTIFY OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civil No. 2384CV02060 SHITAL PATEL, CHIRAG PATEL, TUSHAR PATEL, SANJAY PATEL, SHAMIN PATEL, and ANAND PATEL Vv. NILESH PATEL DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR REAL ESTATE ATTACHMENT Plaintiffs brought this action seeking to recover more than $4 million in funds they allege Defendant Nilesh Patel (“Defendant”) fraudulently induced them to lend him based on knowing and material misrepresentations he made concerned the alleged purposes of the loans. By Order dated September 25, 2023 (Dkt. 14), the Court (Budreau, J.) granted Plaintiffs’ motion for a preliminary injunction and enjoined Defendant “from transferring, encumbering or concealing assets which would reduce the balance or value below $4,072,000.00 from any account(s) in which Nilesh Patel has any legal or equitable interest held with TD Ameritrade, Inc.” subject only to exceptions permitting Defendant to pay his family’s reasonable and ordinary living expenses and his reasonable attorneys’ fees to defend against this action. The following day, the Court issued an Order (Dkt. 15) granting Plaintiffs’ Motion for Trustee Process, which sought to attach all funds held by TD Ameritrade on behalfof Defendant. The Court issued the foregoing orders after expressly finding — based on submissions made to the Court on or before that date — that Plaintiffs have a “high likelihood of succeeding on the merits of all their claims including the contract and fraud claims.” Jd. Subsequent to the Court’s issuance of these twin orders, Plaintiffs learned that Defendant had minimal funds in his TD Ameritrade accounts. Upon making that discovery, Plaintiffs filed the instant motion, which seeks a writ of attachment against real property owned by Defendant, including but not limited to property located at 17 Granny Smith Lane, Woburn, Massachusetts 01801 (the “Woburn Property”). Defendant opposes Plaintiffs’ motion for real estate attachment, asserting that: (a) he committed no acts of fraud and does not owe Plaintiffs “the money they are demanding”; (b) he and his wife own the Woburn Property as tenants by the entirety; and (c) he and his wife filed a Declaration of Homestead with respect to the Woburn Property in April 2014, prior to the events at issue in this litigation. Following notice to Defendant and a hearing that his representative attended, the Court finds that the evidence submitted by the parties to date establishes a reasonable likelihood that Plaintiffs will secure a judgment against Defendant in an amount equal to or greater than $3.73 million,! and that there has been no showing of liability insurance available to satisfy that judgment. The specific facts demonstrating Plaintiffs’ likelihood of obtaining a judgment in that amount are summarized in Judge Budreau’s September 25, 2023 Order on Plaintiffs’ Motion for Preliminary Injunction (Dkt. 14) and need not be repeated here. The Court accordingly ALLOWS Plaintiffs’ motion for real estate attachment in the amount of $3.73 million, subject to two limitations. First, if the Woburn Property is, in fact, held by Defendant and his spouse as tenants by the entirety, the interest of Defendant’s spouse in that property shall not be subject to seizure or execution by Plaintiffs so long as the property is the spouse’s principal residence. See, e.g., Peebles v. Minnis, 402 Mass. 282, 283 (1988) (existence of tenancy by the entirety protects nondebtor spouse’s principal residence from seizure or execution, but not from attachment).” Second, if Defendant and his spouse did, in fact, file a Declaration of Homestead on the Woburn Property in 2014, the amount of the homestead estate shall be exempt from the attachment. Thus, the attachment shall serve to provide security to Plaintiffs only to the extent a sale of the Woburn Property or other triggering event results in available funds over and above the amount protected by the statutory homestead estate. See Pittsfield Bank v. Howk, 86 Mass. 347, 350 (1862) (creditor entitled only to residue remaining after deduction of homestead amount from value of land); cf Hartog, Baer & Hand, A.P.C. v. Clarke, 99 Mass. App. Ct. 460, 463-64 (2021) (ruling that creditor’s action in levying on and then suspending an execution on defendant’s property did not violate the Massachusetts Homestead Act). Although Plaintiffs are correct that the Homestead Act contains an exception to homestead protection in cases of fraud, the Act defines that exception as applying to “an execution issued from a court of competent jurisdiction to enforce its judgment based upon fraud... .” See G.L. c. 188, § 3(b)(6). Plaintiffs, as yet, have obtained no such judgment. Accordingly, the amount of Defendant’s and his spouse’s homestead estate shall be exempt from the attachment granted by * This amount is derived from the sum of the monies that Plaintiffs loaned to Defendant minus any payments Defendant has made to Plaintiffs since receipt of those loans. The difference between the amount set forth in this Order and the amount set forth in Judge Budreau’s September 25 and 26 Orders is attributable to the stipulated dismissal of one of the original plaintiffs, Hetal Patel. In view of that dismissal, the Court has deducted the funds that Defendant owed Hetal Patel from the total, thus reducing the amount from $4,072,000.00 to $3,730,000.00. Finally, the latter sum includes no interest, thus rendering irrelevant — for present purposes — Defendant’s contention that the interest rates specified in the promissory notes he provided to Plaintiffs are usurious and cannot be enforced. * Plaintiffs have not alleged any involvement by Defendant’s spouse in the financial transactions at issue in this case. - this Order unless and until the above-quoted statutory exception to homestead protection is triggered, which would then permit execution by Plaintiffs on any judgment they obtain that is based upon Defendant’s fraud. Finally, the Court is unpersuaded by Defendant’s contention, made at the motion hearing, that each individual Plaintiff must separately move for his own writ of attachment. The allegations of Plaintiffs’ Verified Complaint, which they filed together after retaining common counsel, assert that Plaintiffs were victimized by a unitary scheme that Defendant employed to ensnare all of them. Defendant has cited no authority for the proposition that the victims of a common fraud scheme may not collectively seek attachments, preliminary injunctions, or the other types of prejudgment relief available to plaintiffs by statute, rule, or other applicable law CONCLUSION AND ORDER For the reasons set forth above, and in accordance with Mass. R. Civ. P. 4.1, the Court hereby ORDERS that a writ of attachment shall issue in the amount of $3,730,000.00, subject to the limitation that if Defendant filed a valid Declaration of Homestead on the Woburn Property, the amount of the homestead estate shall be exempt from the attachment until and unless the exception to homestead protection set forth in G.L. c. 188, § 3(b)(6) is triggered Yd) Pt SO ORDERED. Michael J. Pi Dated: June 11, 2024 Associate Ju: S|gr Superior Court