Preview
196
4/23/2021
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
C.A. No. 1667CV01419
SABA HASHEM, individual and as Manager
of D’Angelo & Hashem, LLC
Plaintiff/Defendant-Intervenor
v.
STEPHEN D’ANGELO, individually and as a
Manager of D’Angelo & Hashem, LLC, and
D’Angelo Law Group, LLC,
Defendants/Defendant Intervenor,
Reach and Apply Defendant,
v.
JENNIFER M. CARRION,
Plaintiff-Intervenor.
PLAINTIFF -INTERVENOR JURY INSTRUCTIONS
Now Comes the Plaintiff-Intervenor, Jennifer M. Carrion, who proposes, in addition to
the standard jury instructions, that this Court instruct the jury as follows:
Limited Liability Company Act, M.G.L.A 156C, applies in the absence of an operating
agreement. D’Angelo & Hashem, LLC has no operating agreement in place.
The Limited Liability Company Act, M.G.L.A. 156C, § 43(3), Dissolution of Limited
Liability Company, requires D’Angelo & Hashem, LLC or any LLC to dissolve and wind
down upon:
“A limited liability company is dissolved and its affairs shall be wound up upon the
first to occur of the following:
(1) the time specified in the operating agreement;
(2) the happening of an event as specified in the operating agreement;
(3) the written consent of all members;
(4) with respect to a limited liability company formed prior to January 1, 1997, except as
provided in a written operating agreement, the death, insanity, retirement, resignation,
expulsion, bankruptcy or dissolution of a member or the occurrence of any other event
which terminates the membership of a member in the limited liability company, unless
the business of the limited liability company is continued either by the consent of all the
remaining members within ninety days following the occurrence of any such event or
pursuant to a right to continue stated in a written operating agreement; or
(5) the entry of a decree of judicial dissolution under section forty-four.”
Supreme Judicial Court Attorney Rule 3:06 requires an attorney to renounce his
ownership of the professional LLC upon his attorney license suspension. It is admitted that
“D’Angelo & Hashem just would not be able to function any further” when Plaintiff was
suspended. That resignation or termination of membership interest triggers the legal duty to
dissolve the LLC to pay LLC creditors.
D’Angelo & Hashem LLC had a duty under the Limited Liability Company Act,
M.G.L.A. 156C §§ 45. 46, to Dissolve or Wind Up the LLC and Pay Creditors first. An LLC
must be dissolved or wind up to pay LLC creditors. The Limited Liability Company Act,
M.G.L.A. 156C § 46, “Distribution of assets of limited liability Company following Dissolution”
states creditors must be paid first:
“(a) Upon the winding up of a limited liability company, the assets shall be distributed as
follows:
(1) to creditors, including members and managers who are creditors, to the extent
otherwise permitted by law, in satisfaction of liabilities of the limited liability company,
whether by payment or the making of reasonable provision for payment thereof, other
than liabilities for which reasonable provision for payment has been made and liabilities
for distributions to members under section thirty-one or section thirty-two;”
(2) unless otherwise provided in the operating agreement, to members and former members
in satisfaction of liabilities for distributions under section thirty-one or section thirty-two;
and
(3) unless otherwise provided in the operating agreement, to members first for the return
of their contributions and second respecting their limited liability company interests, in the
proportions in which the members share in distributions.
(b) A limited liability company which has dissolved shall pay or make reasonable provision to
pay all claims and obligations, including all contingent, conditional or unmatured claims and
obligations, known to the limited liability company and all claims and obligations which are
known to the limited liability company but for which the identity of the claimant is unknown. If
there are sufficient assets, such claims and obligations shall be paid in full and any such
provision for payment made shall be made in full. If there are insufficient assets, such claims and
obligations shall be paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise
provided in an operating agreement, any remaining assets shall be distributed as provided in this
chapter. Any liquidating trustee winding up a limited liability company’s affairs, who has complied
with this section shall not be personally liable to the claimants of the dissolved limited liability
company by reason of such person’s actions in winding up the limited liability company.”
D'Angelo & Hashem, LLC was legally required to be dissolved to pay Ms. Carrion’s Judgments
by Jury Verdict & Executions.
In fact, the Limited Liability Company Act, M.G.L.A. Ch.156C §45, Winding up affairs
of dissolved limited liability company, allows an LLC to stay in business to dissolve pay creditors,
gradually settling and closing the LLC business.
Specifically, the Act provides that “(b) Upon dissolution and notwithstanding the filing of
a certificate of cancellation pursuant to section 14, a limited liability company may
continue its existence but shall not carry on any business except as necessary to wind up
its affairs or distribute its assets which may include, but shall not be limited to,
prosecuting and defending suits, whether civil, criminal or administrative, gradually
settling and closing the limited liability company’s business, disposing of and conveying
the limited liability company’s property, discharging or making reasonable provision for
the limited liability company’s liabilities and distributing to members any remaining
assets of the limited liability company, without affecting the liability of members and
managers and without imposing liability on a liquidating trustee.”
D’Angelo & Hashem LLC could continue its existence for the purpose of winding down
affairs, receiving payments, and paying company liabilities.
D’Angelo & Hashem LLC could not practice law, but the LLC had right to receive
reimbursement of expenses owed in a successful litigation expense.
D’ Angelo & Hashem LLC also has a right, per customary practice in the Massachusetts
legal community, to receive one third 1/3 referral fees of the ultimate legal fee recovered to be
paid to the attorney or law firm that provided services or referred the client to the attorney
performing the legal work resulting in the client’s recovery.
Ms. Carrion is the Judgment creditor of D’Angelo & Hashem, LLC, of which all parts of the
LLC was under the sole control and possession of Defendant Mr. D’Angelo.
UNIFORM FRAUDULENT TRANSFER ACT
Without limitation, Mr. D’Angelo’s Failure to wind up D’Angelo & Hashem constitutes actions
to hinder, delay and defraud Ms. Carrion’s collection of her Executions under the Massachusetts
Discrimination Act. The fact that Mr. D’Angelo, as Managing Member & sole Partner, did not
dissolve the D’Angelo & Hashem LLC to pay Ms. Carrion’s executions, constitutes fraudulent
efforts to avoid liabilities to Ms. Carrion.
D’Angelo & Hashem LLC transferred nearly all funds to for purposes of hindering, defrauding,
delaying payment to paying Ms. Carrion’s executions.
“Under the UFTA, a transfer made by a debtor before or after the creditor’s claim arose is
fraudulent if made with actual intent to hinder, delay, or defraud, see G.L. c. 109A, § 5 (a ) (1),
or if made without receiving the reasonably equivalent value of the property in exchange and,
after the transfer, the debtor would not have enough assets to carry on its business or pay
expected creditors. See G.L. c. 109A, § 5 (a ) (2)”
“In order to prevail on this claim, Ms. Carrion must demonstrate (1) that she is a creditor and (2)
that D’Angelo, as Manager Member fraudulently transferred the property. See G.L. c. 109A, §
5. In the case of a fraudulent transfer, the UFTA provides for several possible remedies,
including avoidance of the transfer, an attachment, an injunction, and “any other relief the
circumstances may require.” Kraft Power Corp. v. Merrill, 464 Mass. 145, 153, 981 N.E.2d 671
(2013), quoting from G.L. c. 109A, § 8.
As for the first element of a fraudulent conveyance claim, G.L. c. 109A, § 2, inserted by
St. 1996, c. 157, defines a “creditor” as “a person who has [an independently valid] claim.” Kraft
Power Corp. v. Merrill, supra. A claim is defined as “a right to payment, whether or not the right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured.” G.L. c. 109A, § 2.
As for the second element in a claim for fraudulent conveyance, under § 5 of the UFTA,
a transfer is fraudulent if a debtor makes a transfer either “(1) with actual intent to hinder, delay,
or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in
exchange for the transfer ..., and the debtor ... (ii) intended to incur, or believed or reasonably
should have believed that he would incur, debts beyond his *828 ability to pay as they became
due.” G.L. c. 109A, § 5(a )(1), (2)(ii), inserted by St. 1996, c. 157. The UFTA suggests several
factors (i.e., badges of fraud) that a court “may” consider to determine whether a debtor acted
with “actual intent” to hinder, delay or defraud. See G.L. c. 109A, § 5(b)(1)-(11).4
Respectfully Submitted,
The Plaintiff-Intervenor,
Jennifer M. Carrion
By her Counsel,
/s Mernaysa Rivera-Bujosa
___________________________________
Mernaysa Rivera-Bujosa, Esquire
Rivera-Bujosa Law, PC
Shipway Place, Suite C2
Charlestown Navy Yard
Boston, Massachusetts 02129
Telephone: (617) 398 – 6728
Facsimile: (617) 398 - 6730
E-mail: Mernaysa@riverabujosalaw.com
BBO no.: 665965
CERTIFICATE OF SERVICE
I, Mernaysa Rivera-Bujosa, Esq., do herewith certify that I have on this 23 day of April 2021, I
served a copy of the within document by email upon parties and counsel appeared in this action,
to wit: via email and electronic filing upon -
Thomas C. LaPorte, Esq.
Cossingham Law Office, PC
30 Massachusetts Avenue, Suite 404
North Andover, MA 01845
tlaporte@cossinghamlaw.com
Saba Hashem,
shceh@yahoo.com
318 Broadway Methuen MA 01844
/s Mernaysa Rivera-Bujosa
___________________________________
Mernaysa Rivera-Bujosa, Esquire
Preview
196 4/23/2021 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS SUPERIOR COURT C.A. No. 1667CV01419 SABA HASHEM, individual and as Manager of D’Angelo & Hashem, LLC Plaintiff/Defendant-Intervenor v. STEPHEN D’ANGELO, individually and as a Manager of D’Angelo & Hashem, LLC, and D’Angelo Law Group, LLC, Defendants/Defendant Intervenor, Reach and Apply Defendant, v. JENNIFER M. CARRION, Plaintiff-Intervenor. PLAINTIFF -INTERVENOR JURY INSTRUCTIONS Now Comes the Plaintiff-Intervenor, Jennifer M. Carrion, who proposes, in addition to the standard jury instructions, that this Court instruct the jury as follows: Limited Liability Company Act, M.G.L.A 156C, applies in the absence of an operating agreement. D’Angelo & Hashem, LLC has no operating agreement in place. The Limited Liability Company Act, M.G.L.A. 156C, § 43(3), Dissolution of Limited Liability Company, requires D’Angelo & Hashem, LLC or any LLC to dissolve and wind down upon: “A limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following: (1) the time specified in the operating agreement; (2) the happening of an event as specified in the operating agreement; (3) the written consent of all members; (4) with respect to a limited liability company formed prior to January 1, 1997, except as provided in a written operating agreement, the death, insanity, retirement, resignation, expulsion, bankruptcy or dissolution of a member or the occurrence of any other event which terminates the membership of a member in the limited liability company, unless the business of the limited liability company is continued either by the consent of all the remaining members within ninety days following the occurrence of any such event or pursuant to a right to continue stated in a written operating agreement; or (5) the entry of a decree of judicial dissolution under section forty-four.” Supreme Judicial Court Attorney Rule 3:06 requires an attorney to renounce his ownership of the professional LLC upon his attorney license suspension. It is admitted that “D’Angelo & Hashem just would not be able to function any further” when Plaintiff was suspended. That resignation or termination of membership interest triggers the legal duty to dissolve the LLC to pay LLC creditors. D’Angelo & Hashem LLC had a duty under the Limited Liability Company Act, M.G.L.A. 156C §§ 45. 46, to Dissolve or Wind Up the LLC and Pay Creditors first. An LLC must be dissolved or wind up to pay LLC creditors. The Limited Liability Company Act, M.G.L.A. 156C § 46, “Distribution of assets of limited liability Company following Dissolution” states creditors must be paid first: “(a) Upon the winding up of a limited liability company, the assets shall be distributed as follows: (1) to creditors, including members and managers who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the limited liability company, whether by payment or the making of reasonable provision for payment thereof, other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to members under section thirty-one or section thirty-two;” (2) unless otherwise provided in the operating agreement, to members and former members in satisfaction of liabilities for distributions under section thirty-one or section thirty-two; and (3) unless otherwise provided in the operating agreement, to members first for the return of their contributions and second respecting their limited liability company interests, in the proportions in which the members share in distributions. (b) A limited liability company which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including all contingent, conditional or unmatured claims and obligations, known to the limited liability company and all claims and obligations which are known to the limited liability company but for which the identity of the claimant is unknown. If there are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment made shall be made in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise provided in an operating agreement, any remaining assets shall be distributed as provided in this chapter. Any liquidating trustee winding up a limited liability company’s affairs, who has complied with this section shall not be personally liable to the claimants of the dissolved limited liability company by reason of such person’s actions in winding up the limited liability company.” D'Angelo & Hashem, LLC was legally required to be dissolved to pay Ms. Carrion’s Judgments by Jury Verdict & Executions. In fact, the Limited Liability Company Act, M.G.L.A. Ch.156C §45, Winding up affairs of dissolved limited liability company, allows an LLC to stay in business to dissolve pay creditors, gradually settling and closing the LLC business. Specifically, the Act provides that “(b) Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company’s business, disposing of and conveying the limited liability company’s property, discharging or making reasonable provision for the limited liability company’s liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability on a liquidating trustee.” D’Angelo & Hashem LLC could continue its existence for the purpose of winding down affairs, receiving payments, and paying company liabilities. D’Angelo & Hashem LLC could not practice law, but the LLC had right to receive reimbursement of expenses owed in a successful litigation expense. D’ Angelo & Hashem LLC also has a right, per customary practice in the Massachusetts legal community, to receive one third 1/3 referral fees of the ultimate legal fee recovered to be paid to the attorney or law firm that provided services or referred the client to the attorney performing the legal work resulting in the client’s recovery. Ms. Carrion is the Judgment creditor of D’Angelo & Hashem, LLC, of which all parts of the LLC was under the sole control and possession of Defendant Mr. D’Angelo. UNIFORM FRAUDULENT TRANSFER ACT Without limitation, Mr. D’Angelo’s Failure to wind up D’Angelo & Hashem constitutes actions to hinder, delay and defraud Ms. Carrion’s collection of her Executions under the Massachusetts Discrimination Act. The fact that Mr. D’Angelo, as Managing Member & sole Partner, did not dissolve the D’Angelo & Hashem LLC to pay Ms. Carrion’s executions, constitutes fraudulent efforts to avoid liabilities to Ms. Carrion. D’Angelo & Hashem LLC transferred nearly all funds to for purposes of hindering, defrauding, delaying payment to paying Ms. Carrion’s executions. “Under the UFTA, a transfer made by a debtor before or after the creditor’s claim arose is fraudulent if made with actual intent to hinder, delay, or defraud, see G.L. c. 109A, § 5 (a ) (1), or if made without receiving the reasonably equivalent value of the property in exchange and, after the transfer, the debtor would not have enough assets to carry on its business or pay expected creditors. See G.L. c. 109A, § 5 (a ) (2)” “In order to prevail on this claim, Ms. Carrion must demonstrate (1) that she is a creditor and (2) that D’Angelo, as Manager Member fraudulently transferred the property. See G.L. c. 109A, § 5. In the case of a fraudulent transfer, the UFTA provides for several possible remedies, including avoidance of the transfer, an attachment, an injunction, and “any other relief the circumstances may require.” Kraft Power Corp. v. Merrill, 464 Mass. 145, 153, 981 N.E.2d 671 (2013), quoting from G.L. c. 109A, § 8. As for the first element of a fraudulent conveyance claim, G.L. c. 109A, § 2, inserted by St. 1996, c. 157, defines a “creditor” as “a person who has [an independently valid] claim.” Kraft Power Corp. v. Merrill, supra. A claim is defined as “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” G.L. c. 109A, § 2. As for the second element in a claim for fraudulent conveyance, under § 5 of the UFTA, a transfer is fraudulent if a debtor makes a transfer either “(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer ..., and the debtor ... (ii) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his *828 ability to pay as they became due.” G.L. c. 109A, § 5(a )(1), (2)(ii), inserted by St. 1996, c. 157. The UFTA suggests several factors (i.e., badges of fraud) that a court “may” consider to determine whether a debtor acted with “actual intent” to hinder, delay or defraud. See G.L. c. 109A, § 5(b)(1)-(11).4 Respectfully Submitted, The Plaintiff-Intervenor, Jennifer M. Carrion By her Counsel, /s Mernaysa Rivera-Bujosa ___________________________________ Mernaysa Rivera-Bujosa, Esquire Rivera-Bujosa Law, PC Shipway Place, Suite C2 Charlestown Navy Yard Boston, Massachusetts 02129 Telephone: (617) 398 – 6728 Facsimile: (617) 398 - 6730 E-mail: Mernaysa@riverabujosalaw.com BBO no.: 665965 CERTIFICATE OF SERVICE I, Mernaysa Rivera-Bujosa, Esq., do herewith certify that I have on this 23 day of April 2021, I served a copy of the within document by email upon parties and counsel appeared in this action, to wit: via email and electronic filing upon - Thomas C. LaPorte, Esq. Cossingham Law Office, PC 30 Massachusetts Avenue, Suite 404 North Andover, MA 01845 tlaporte@cossinghamlaw.com Saba Hashem, shceh@yahoo.com 318 Broadway Methuen MA 01844 /s Mernaysa Rivera-Bujosa ___________________________________ Mernaysa Rivera-Bujosa, Esquire