Motion,Ex Parte: The Lowell Five Cent Savings Bank vs. Yenoh Corporation et al

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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS: SUPERIOR COURT DEPARTMENT
. DOCKET NO: 1681CV0282

LOWELL FIVE CENT SAVINGS BANK.
Plaintiff

VS

FRANK M. POLAK, INDIVIDUALLY,
AND AS TRUSTEE OF FMP REALTY TRUST
AND YENOH CORPORATION

Defendants

Pied! Fanvay & OOS F

and
. AaohCleY.

pt A-TUCARD SELF STORAGE LLC AND ‘

| TUCARD LLC

| Reach-and-Apply Defendants)

Smee

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MOTION OF REACH-AND-APPLY DEFENDANTS
TO VACATE JUDGMENT DATED OCTOBER 26, 2018

Now come the Reach-and-Apply Defendants, Tucard LLC and A-Tucard Self Storage LLC
(herein after Reach-and-Apply Defendants), and pursuant to Mass.R.Civ.P. 60(a) petitions this

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_Court to vacate the Judgment entered on the Docket on October 26, 2018 in that the same was

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entered in error given the pendency of the Reach-and-Apply Defendants’ Motion to Dismiss the

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Verified Complaint due to the Plaintiff's failure to perfect service. As a further basis of such

Motion, the Reach-and-Apply Defendants state as follows!:

e This is an action wherein the Plaintiff, Lowell Five Cent Savings Bank (the “Bank”),
alleged a default in payment by the Defendants’ on a certain Promissory Note.

[-2-19 AdLoWeD> H. ker

The Bank filed this action on February 1, 2016 and shortly thereafter acquired an Injunction ©
whieh in pertinent part prohibited the individual defendant, Frank M. Polak, from
transferring his membership interests in the Reach-and-Apply Defendants which are both
limited liability companies.

' The Reach-and-Apply Defendants incorporate by reference the material filed in connection with its Motion to
Dismiss Verified Complaint which is filed herewith. .* Neither Reach-and-Apply Defendants were ever served with a Summons or Complaint.

* The Reach-and-Apply Defendants did not learn of these proceedings until they received a
copy of the Notice from the Clerk’s office advising of its scheduling a Final Pre-Trial
. Conference on December 4, 2018.

s ' Thereafter-the Reach-and-Apply Defendants retained counsel and upon review of the file
confirmed that there was no evidence of their being served.

* Upon learning of such procedural defect, counsel for the Reach-and-Apply Defendants
filed a Notice of Limited Appearance on their behalf with the notation that it was done so
with the specific intention of filing a Notice to Dismiss. Such Notices were docketed on
October 9, 2018. .

« Thereafter counsel for the Reach-and-Apply Defendants prepared a Motion to Dismiss the
Verified Complaint and served the same upon counsel of record by letter dated October 16,
2018 pursuant to Superior Court Rule 9A.

* Plaintiff's counsel on the same date forwarded to ‘this court a previously executed
Agreement for Judgment signed only by-counsel for the Plaintiff and Defendant which was
docketed on October 26, 2018. .

© Upon receipt of a copy of said filing of the Agreement for Judgment, counsel for the Reach-

* and-Apply Defendants wrote to the Session Clerk on October 22, 2018 confirming the

pendency of a 9A filing Motion to Dismiss and requested delay in the entry of the Judgment
(Please see Exhibit 1)

© Thereafter upon expiration of the “9A period”, Reach-and-Apply Defendants filed with
this Court their Motion to Dismiss.*

® Unfortunately, neither the correspondence requesting a delay in the entry of the Judgment
“or the “9A Package” — Motion to Dismiss ever made it to the docket or apparently the
Session Clerk and the submitted Judgment entered on October 26, 2018.

* The Judgment that entered is not valid and should be vacated in that: a) it was entered in
error; b) the Court did not have the opportunity to review the Reach-and-Apply
Defendants’ Motion to Dismiss; and c) the subject Agreement for Judgment was not
consented to by all parties who had filed an Appearance nor subject to a Motion for
Issuance of Separate Judgment.

? The Reach-and-Apply Defendants’ “9 Package” — Motion to Dismiss is refiled with their Motion to Vacate
Judgment in that upon counsel’s review of the court file, there was no evidence that either their letter dated October
22, 2018 requesting a delay in the entry of the Judgment or the “9A Package” ever made it to the Session Clerk.

2ANALYSIS
Mass.R.Civ.P. 60(a) provides in pertinent part as follows:

(a) Clerical Mistakes, Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission may be corrected by
the court at any time of its own initiative or on the motion of any party and after
such-notice, if any, as the court orders. During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed in the appellate court,
and thereafter while the appeal is pending may be so corrected with leave of the
appellate court.

Rule 60 encompasses two basic situations: (a) the correction of mere clerical mistakes in
the Judgment or other part of the record; and (b) substantial relief from a final Judgment. Rule
60(a) is limited to the correction of purely clerical errors. Errors within the purview of Rule 60(a)
include misprisons, oversights, omissions, unintended acts or failures to act. First National Bank
v National Airlines, 167 F. Supp. 167 (SDNY 1958). In effect Rule 60(a) merely seeks to ensure
that the Judgment reflects what ‘actually took place. Stowers v United States 191 F. Supp. 795

(1961). The mistakes that allow Rule 60(a) to correct them are as a result oversight or omission, it
does not cover mistakes which result from deliberate actions. Ferrares v Arthur M. Rosenberg Co.
156 F 2d 212 (1946)

In this matter the clerical mistake or omission is that the filings of the Reach-and-Apply

Defendants, although timely, unfortunately never made it to the Session Clerk and therefore was
not reviewed by this Court thus denying it the opportunity to be advised of the position of all
parties.to the proceedings.

Additionally, the allowance of the Motion and the subsequent consideration of the Reach-
and-Apply Defendants’ Motion to Dismiss the Verified Complaint will not prejudice the parties in
that the Judgment is not valid because it does not include all parties of record and is in violation
of Mass. R.Civ.P. 54(b).

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CONCLUSION

Given the Plaintiff's failure to ever serve the Reach-and-Apply Defendants they are entitled
to the allowance of theirdtimely filed Motion to Dismiss. Due to omission or clerical mistake, the
Court never had the opportunity to review the same and therefore the Reach-and-Apply Defendants

are entitled to the requested “vacate” of the Judgment.

TUCARD LLC and
ELF STORAGE LLC

Tel: (078) 441-0054
jay@hbartiganlaw.net

Dated: December 13, 2018