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(4)
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss. SUPERIOR COURT DEPT
OF THE TRIAL COURT
DOCKET NO 2YUTECVOOOS*}
ance
ERICA HILLIAN and LEANNE THE COWMMONWE Ti en een 2
RAMSDELL, Co-PERSONAL i MASSACHUSET)TIS ,
pr SHIRE S.S. SUP!
REPRESENTATIVES of the ERIOR COURT
ESTATE OF KENNETH RAMSDELL,
Plaintiffs
Vv
4
(Ae. Seat
ROCKET MORTGAGE, LLC, _
Defendant
PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
INTRODUCTION
The Plaintiffs, Erica Hillian and Leanne Ramsdell seek
preliminary injunctive relief to prevent the immediate and
irreparable harm that will result by the foreclosure of a
mortgage on the premises located at 20 Swamp Road Lanesboro,
Massachusetts (“Premises”) Defendant Rocket Mortgage, LLC is
the holder of the mortgage given by Kenneth Ramsdell on or about
January 19, 2021 and which is recorded in the Northern
Berkshire District Registry of Deeds in Book 1743, Page 978
(“Mortgage”)
The Plaintiffs listed the Premises for sale and have a
Purchase & Sale Agreement with a bona fide third-party
purchaser. The initial closing date was set for May 31, 2024
Me
However, the Plaintiffs were not able to obtain a “License to
Sell the Real Estate from the Berkshire Probate.& Family Court
on or before May 31, 2024. Upon discussion with the Berkshire
Probate & Family Court, the Plaintiffs’ attorneys realized that
a publication of Notice in the Berkshire Eagle was required in
order for their Amended Petition for Probate to be allowed which
was a necessary prerequisite for the allowance of their Petition
for Sale of Real Estate.
The Plaintiffs’ attorney published the required Citation on
their Amended Petition for Probate on June 7, 2024, which was in
advance of the return date, June 18, 2024, listed on the
Citation. The Plaintiffs’ attorney then contacted the Attorney
Sharon Fewell whose firm represents Rocket Mortgage, LLC and
requested a postponement of the sale in order to allow time for
the Probate Court’s allowance of the Amended Petition for
Probate and Petition for Sale of Real Estate. In accordance
with Attorney Fewell’s request, the Plaintiffs’ attorneys
emailed a formal request to Attorney Fewell to postpone the sale
until June 30, 2024 with a copy of the Purchase & Sale Agreement
on June 11, 2024.
The Plaintiffs’ attorneys submitted the required paperwork
to the Berkshire Probate & Family Court on Tuesday, June 18,
2024 seeking approval of the Amended Petition for Probate and
the Petition for Sale of Real Estate. Both Petitions have been
allowed by the Probate Court.
Upon a follow-up phone call with Attorney Fewell and
receipt of email dated June 18, 2024, Rocket Mortgage LLC has
requested more documentation and has not assented to a
continuance. The Plaintiffs learned of a mold issue upon a
walk-through by buyers on June 19, 2024 after which the buyers
have indicated they do not want to buy the Premises with mold.
The Plaintiffs did request a Reinstatement figure from the
Defendant on June 19, 2024; however, the Defendant has not
provided one as of the close of business on June 20, 2024. The
Plaintiffs purpose in reinstating the mortgage arrears is to
allow them an opportunity to remedy the mold and sell the
Premises at private sale, thereby realizing some equity to the
benefit of the Estate.
ARGUMENT
In evaluating a motion for preliminary injunction, a court
will generally consider four factors:
1 the likelihood of the movant's success on the merits;
2. the threat of irreparable harm to the moving party in
the absence of relief;
3 the balance between that harm and the harm that the
relief would cause to the other litigants; and
4. the public interest.
Green Book Int'l Corp. Vv Inunity Corp., 2 F.Supp.2d 112, 124
(D. Mass. 1998).
While no one factor has been held to be determinative, when
asked to grant a preliminary injunction, the judge initially
evaluates in combination the moving party's claim of injury and
chance of success on the merits. If the judge is convinced that
failure to issue the injunction would subject the moving party
to a substantial risk of irreparable harm, the judge must then
balance this risk against any similar risk of irreparable harm
which granting the injunction would create for the opposing
party. What matters as to each party is not the raw amount of
irreparable harm the party might conceivably suffer, but rather
the risk of such harm in light of the party's chance of success
on the merits. Only where the balance between these risks cuts
in favor of the moving party may a preliminary injunction
properly issue. Packaging Industries Group, Inc. Vv Cheney, 380
Mass. 609, 617 (1980).
A The Plaintiffs are likely to succeed on the merits.
The Plaintiffs have the right to cure the default and the
Defendant has not provided an arrears amount necessary to cure
the claimed default. A request to the Defendant’s attorneys for
an amount to pay only has
arrears been made by email on
Wednesday, June 19, 2024. The Plaintiffs have the right to
reinstate the Mortgage for the purpose of stopping the
foreclosure sale so that they can remedy the mold issue and sell
the Premises at private sale. The Plaintiffs, upon sale, have
the ability to satisfy the entire indebtedness and realize net
sale proceeds for the benefit of the Estate. The Defendant’s
failure to provide a Reinstatement figure shall deprive the
Plaintiffs of the opportunity to sell the Premises through a
private sale.
The Plaintiffs claim that the Defendant is not acting in
good faith in delaying the foreclosure sale as requested. The
Defendant failed to act timely in processing the request, which
was initially made by email on June 11, 2024. The Defendant did
not respond, despite the urgency of the request, until the
Plaintiffs’ attorneys contact the Defendant’s attorney on June
18, 2024 at which time the Defendant made a request for proof of
funds by the buyer. The Plaintiffs have no access to the
requested information and such information is not necessary or
reasonable to grant the request. The Defendant, without any
reasonable basis, has essentially denied the request. The
presence of mold has put any private sale on hold as the buyer
will not purchase the Premises in their present condition.
The Plaintiffs claim is that the Defendant is not acting in
good faith and engaging in unfair and deceptive acts or
practices which are prohibited under c.93A.
B The Plaintiff will suffer irreparable harm in the absence
of injunctive relief.
The Plaintiffs will suffer irreparable harm if their
request for a preliminary injunction is not granted as they will
lose the Premises by foreclosure sale. Once the Premises are
sold and the title is conveyed pursuant thereto, the Plaintiffs
will be unable to “unwind” the transaction. If the Plaintiffs
are allowed to sell the premises through this private sale, the
Estate will obtain sale proceeds after the payoff of the
mortgage loan to the Defendant. A remedy of monetary damages is
not adequate to compensate Plaintiffs for the irreparable injury
they will suffer, the loss of a sale of the premises. The law
recognizes the remedy of specific performance in regard to real
estate which is unique and monetary damages are not adequate to
protect a party’s interest therein.
Cc Balance of Hardship.
The Defendants will suffer no harm if the requested
preliminary injunction is granted. The Defendants will continue
to maintain a security interest in the Plaintiff’s Premises and
can foreclose on same at a later date, albeit, within a month,
in the event that the Plaintiffs are unable to cure the alleged
default.
CONCLUSION
For all of the above reasons, this Court should enter an
order preliminarily enjoining the Defendant from foreclosing the
Mortgage on the Premises.
By their attorneys,
Dated: Juen 20, 2024
/s/Kenneth P. Ferris
Kenneth P. Ferris, Esq
BBO No. 556627
HASHIM & SPINOLA
82 Wendell Avenue
Pittsfield, MA 01201
Tel. (413) 499-1304
kferris@hashsimspinola com
/s/Mark T. Brennan
Mark T. Brennan, Esq.
BBO No. 564103
54 North
Street, Suite 301
Pittsfield, MA 01201
Tel. (413) 499-1022
mark@brennanlawoffices .~com
CERTIFICATE OF SERVICE
I,
Kenneth P. Ferris, Esq., hereby certify that on this
20th day
of Juen, 2024, I sent a copy of this Motion, By
electronic mail, on the Defendant’s attorneys as follows:
Thomas Balboni @ tbalboni@kordeassociates.com
Sharon Fewell,Esq @ sfewell@kordeassociates.com
/s/Kenneth P. Ferris
Kenneth P. Ferris, Esq
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(4) COMMONWEALTH OF MASSACHUSETTS BERKSHIRE, ss. SUPERIOR COURT DEPT OF THE TRIAL COURT DOCKET NO 2YUTECVOOOS*} ance ERICA HILLIAN and LEANNE THE COWMMONWE Ti en een 2 RAMSDELL, Co-PERSONAL i MASSACHUSET)TIS , pr SHIRE S.S. SUP! REPRESENTATIVES of the ERIOR COURT ESTATE OF KENNETH RAMSDELL, Plaintiffs Vv 4 (Ae. Seat ROCKET MORTGAGE, LLC, _ Defendant PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION INTRODUCTION The Plaintiffs, Erica Hillian and Leanne Ramsdell seek preliminary injunctive relief to prevent the immediate and irreparable harm that will result by the foreclosure of a mortgage on the premises located at 20 Swamp Road Lanesboro, Massachusetts (“Premises”) Defendant Rocket Mortgage, LLC is the holder of the mortgage given by Kenneth Ramsdell on or about January 19, 2021 and which is recorded in the Northern Berkshire District Registry of Deeds in Book 1743, Page 978 (“Mortgage”) The Plaintiffs listed the Premises for sale and have a Purchase & Sale Agreement with a bona fide third-party purchaser. The initial closing date was set for May 31, 2024 Me However, the Plaintiffs were not able to obtain a “License to Sell the Real Estate from the Berkshire Probate.& Family Court on or before May 31, 2024. Upon discussion with the Berkshire Probate & Family Court, the Plaintiffs’ attorneys realized that a publication of Notice in the Berkshire Eagle was required in order for their Amended Petition for Probate to be allowed which was a necessary prerequisite for the allowance of their Petition for Sale of Real Estate. The Plaintiffs’ attorney published the required Citation on their Amended Petition for Probate on June 7, 2024, which was in advance of the return date, June 18, 2024, listed on the Citation. The Plaintiffs’ attorney then contacted the Attorney Sharon Fewell whose firm represents Rocket Mortgage, LLC and requested a postponement of the sale in order to allow time for the Probate Court’s allowance of the Amended Petition for Probate and Petition for Sale of Real Estate. In accordance with Attorney Fewell’s request, the Plaintiffs’ attorneys emailed a formal request to Attorney Fewell to postpone the sale until June 30, 2024 with a copy of the Purchase & Sale Agreement on June 11, 2024. The Plaintiffs’ attorneys submitted the required paperwork to the Berkshire Probate & Family Court on Tuesday, June 18, 2024 seeking approval of the Amended Petition for Probate and the Petition for Sale of Real Estate. Both Petitions have been allowed by the Probate Court. Upon a follow-up phone call with Attorney Fewell and receipt of email dated June 18, 2024, Rocket Mortgage LLC has requested more documentation and has not assented to a continuance. The Plaintiffs learned of a mold issue upon a walk-through by buyers on June 19, 2024 after which the buyers have indicated they do not want to buy the Premises with mold. The Plaintiffs did request a Reinstatement figure from the Defendant on June 19, 2024; however, the Defendant has not provided one as of the close of business on June 20, 2024. The Plaintiffs purpose in reinstating the mortgage arrears is to allow them an opportunity to remedy the mold and sell the Premises at private sale, thereby realizing some equity to the benefit of the Estate. ARGUMENT In evaluating a motion for preliminary injunction, a court will generally consider four factors: 1 the likelihood of the movant's success on the merits; 2. the threat of irreparable harm to the moving party in the absence of relief; 3 the balance between that harm and the harm that the relief would cause to the other litigants; and 4. the public interest. Green Book Int'l Corp. Vv Inunity Corp., 2 F.Supp.2d 112, 124 (D. Mass. 1998). While no one factor has been held to be determinative, when asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue. Packaging Industries Group, Inc. Vv Cheney, 380 Mass. 609, 617 (1980). A The Plaintiffs are likely to succeed on the merits. The Plaintiffs have the right to cure the default and the Defendant has not provided an arrears amount necessary to cure the claimed default. A request to the Defendant’s attorneys for an amount to pay only has arrears been made by email on Wednesday, June 19, 2024. The Plaintiffs have the right to reinstate the Mortgage for the purpose of stopping the foreclosure sale so that they can remedy the mold issue and sell the Premises at private sale. The Plaintiffs, upon sale, have the ability to satisfy the entire indebtedness and realize net sale proceeds for the benefit of the Estate. The Defendant’s failure to provide a Reinstatement figure shall deprive the Plaintiffs of the opportunity to sell the Premises through a private sale. The Plaintiffs claim that the Defendant is not acting in good faith in delaying the foreclosure sale as requested. The Defendant failed to act timely in processing the request, which was initially made by email on June 11, 2024. The Defendant did not respond, despite the urgency of the request, until the Plaintiffs’ attorneys contact the Defendant’s attorney on June 18, 2024 at which time the Defendant made a request for proof of funds by the buyer. The Plaintiffs have no access to the requested information and such information is not necessary or reasonable to grant the request. The Defendant, without any reasonable basis, has essentially denied the request. The presence of mold has put any private sale on hold as the buyer will not purchase the Premises in their present condition. The Plaintiffs claim is that the Defendant is not acting in good faith and engaging in unfair and deceptive acts or practices which are prohibited under c.93A. B The Plaintiff will suffer irreparable harm in the absence of injunctive relief. The Plaintiffs will suffer irreparable harm if their request for a preliminary injunction is not granted as they will lose the Premises by foreclosure sale. Once the Premises are sold and the title is conveyed pursuant thereto, the Plaintiffs will be unable to “unwind” the transaction. If the Plaintiffs are allowed to sell the premises through this private sale, the Estate will obtain sale proceeds after the payoff of the mortgage loan to the Defendant. A remedy of monetary damages is not adequate to compensate Plaintiffs for the irreparable injury they will suffer, the loss of a sale of the premises. The law recognizes the remedy of specific performance in regard to real estate which is unique and monetary damages are not adequate to protect a party’s interest therein. Cc Balance of Hardship. The Defendants will suffer no harm if the requested preliminary injunction is granted. The Defendants will continue to maintain a security interest in the Plaintiff’s Premises and can foreclose on same at a later date, albeit, within a month, in the event that the Plaintiffs are unable to cure the alleged default. CONCLUSION For all of the above reasons, this Court should enter an order preliminarily enjoining the Defendant from foreclosing the Mortgage on the Premises. By their attorneys, Dated: Juen 20, 2024 /s/Kenneth P. Ferris Kenneth P. Ferris, Esq BBO No. 556627 HASHIM & SPINOLA 82 Wendell Avenue Pittsfield, MA 01201 Tel. (413) 499-1304 kferris@hashsimspinola com /s/Mark T. Brennan Mark T. Brennan, Esq. BBO No. 564103 54 North Street, Suite 301 Pittsfield, MA 01201 Tel. (413) 499-1022 mark@brennanlawoffices .~com CERTIFICATE OF SERVICE I, Kenneth P. Ferris, Esq., hereby certify that on this 20th day of Juen, 2024, I sent a copy of this Motion, By electronic mail, on the Defendant’s attorneys as follows: Thomas Balboni @ tbalboni@kordeassociates.com Sharon Fewell,Esq @ sfewell@kordeassociates.com /s/Kenneth P. Ferris Kenneth P. Ferris, Esq