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COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
BARNSTABLE, ss SUPERIOR COURT
Docket No. BACV2013-00125
Rick and Joal Yatsenick,
Plaintiffs
Old Wharf Village, LLC and
Charles Edgar,
Defendants
DEFENDANT, OLD WHARF VILLAGE, LLC’S, MOTION TO RECONSIDER DENIAL
OF MOTION TO DISCHARGE ATTACHMENT OF REAL PROPERTY OF
OLD WHARF VILLAGE, LLC
Defendant, Old Wharf Village, LLC (“OWV”) requests that the court reconsider the denial
of the Defendant’s Motion to Discharge the attachment on the real property of OWV pursuant to
its authority under Mass. R. Civ. P. 60 (b) and G.L. c. 223 § 114. As grounds therefore, the
Defendant states the following:
1. In August 2016, the Plaintiffs obtained a pre-trial attachment in the above matter for
$150,000 on the real property of Defendant, OWV and on property owned by the
individual Defendant, Charles Edgar.
2. The Plaintiffs moved for trial on the breach of contract, intentional misrepresentation
and G.L. c. 93A claims. Following a jury trial, judgment entered for the Defendants
on all counts on December 19, 2018.
3. The Plaintiffs filed a Motion for New Trial on December 27, 2018. This court (Gildea,
J.) denied the motion on May 3, 2019. The Plaintiffs filed a Notice of Appeal on May
29, 2019.
4. The Defendants filed motions to discharge the attachments on the properties of both
Defendants on January 16, 2019. On May 3, 2019, this court (Gildea, J.) allowed the
motion as to the property of Defendant, Charles Edgar, but denied the motion as to the
property of Defendant, OWV.
5. After the denial of the motion, Defendant OWV applied for a loan to refinance an
existing construction loan and borrow additional cash to complete construction of the
second building in the Old Wharf Village complex, which is near completion. The
lender, Triumph Capital, has required as a condition of the loan that its lien take first
1position. Exhibit A, General Terms item 2; Affidavit of Charles Edgar. Even with
this loan, OWV’s pre-completion equity in this 13-unit beachfront property with
penthouse is well in excess of the Plaintiffs’ attachment. Exhibit A.! Upon
completion, the anticipated value of the building is anticipated to be in excess of $9.5
million. Since no units have yet sold, OWV will own the entirety of that equity. See
Affidavit of Charles Edgar. OWV’s equity in the property will be more than ample
to cover the Plaintiffs’ attachment should a judgment be issued, even if it is
subordinated to the Triumph Capital loan.
6. The current loan of approximately $3,000,000 is past due and accruing exorbitant daily
late fees. Exhibit B; Affidavit of Charles Edgar.
7. In exchange for a discharge of the current attachment, Defendant, Charles Edgar
offered the Plaintiffs an attachment on the properties he owns individually in
Barnstable County. The equity in both of his personal properties exceeds $150,000.
Exhibit C; Affidavit of Charles Edgar. The Plaintiffs did not respond.
8. Maintaining the Plaintiffs’ attachment in first position during the pendency of the
appeal would effectively prevent the Defendants from completing construction, as
OWV does not have the cash resources to satisfy the Plaintiffs’ attachment or complete
construction without the loan. In light of the defense verdict and this court’s denial of
the Plaintiffs’ Motion for New Trial, maintaining the Plaintiffs’ attachment on the
property of OWV for the pendency of the appeal would be unreasonable and excessive.
WHEREFORE, the Defendants request that the Court discharge the attachment as to the
real property of Old Wharf Village, LLC. In the alternative, the Defendants request that the Court
subordinate the Plaintiffs’ attachment to any lien of Triumph Capital; or discharge this attachment
reimpose an attachment on Defendant, Charles Edgar’s real property in Barnstable County: 405
Old Wharf Village Road Unit 101, Dennisport; and 8 Countryside Drive, Chatham.
1 The lender, which contemplates loaning OWV in excess of $3 million, requires a 70/30 loan-to-value ratio. Ata
minimum, therefore, the current equity is approximately $1 million.
2DATED: July 11, 2019
Respectfully submitted,
Defendants,
By Their Attorneys,
Djuna E. P s, BBO# 561909
Lynne M. Chiodo, BBO# 657428
DP Law
619 High Street, Suite 103
Dedham, MA 02026
(781) 326-6320 (voice)
(781) 326-6321 (fax)
dp@djunaperkinslaw.com
Ichiodo@djunaperkinslaw.comCERTIFICATE OF SERVICE
Thereby certify that I served a copy of the foregoing Motion to Discharge Attachment Against
Real Property of Old Wharf Village, LLC on counsel for the Plaintiffs by email and First-Class
mail on July 11, 2019.
Dju¥a Perki
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COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT BARNSTABLE, ss SUPERIOR COURT Docket No. BACV2013-00125 Rick and Joal Yatsenick, Plaintiffs Old Wharf Village, LLC and Charles Edgar, Defendants DEFENDANT, OLD WHARF VILLAGE, LLC’S, MOTION TO RECONSIDER DENIAL OF MOTION TO DISCHARGE ATTACHMENT OF REAL PROPERTY OF OLD WHARF VILLAGE, LLC Defendant, Old Wharf Village, LLC (“OWV”) requests that the court reconsider the denial of the Defendant’s Motion to Discharge the attachment on the real property of OWV pursuant to its authority under Mass. R. Civ. P. 60 (b) and G.L. c. 223 § 114. As grounds therefore, the Defendant states the following: 1. In August 2016, the Plaintiffs obtained a pre-trial attachment in the above matter for $150,000 on the real property of Defendant, OWV and on property owned by the individual Defendant, Charles Edgar. 2. The Plaintiffs moved for trial on the breach of contract, intentional misrepresentation and G.L. c. 93A claims. Following a jury trial, judgment entered for the Defendants on all counts on December 19, 2018. 3. The Plaintiffs filed a Motion for New Trial on December 27, 2018. This court (Gildea, J.) denied the motion on May 3, 2019. The Plaintiffs filed a Notice of Appeal on May 29, 2019. 4. The Defendants filed motions to discharge the attachments on the properties of both Defendants on January 16, 2019. On May 3, 2019, this court (Gildea, J.) allowed the motion as to the property of Defendant, Charles Edgar, but denied the motion as to the property of Defendant, OWV. 5. After the denial of the motion, Defendant OWV applied for a loan to refinance an existing construction loan and borrow additional cash to complete construction of the second building in the Old Wharf Village complex, which is near completion. The lender, Triumph Capital, has required as a condition of the loan that its lien take first 1position. Exhibit A, General Terms item 2; Affidavit of Charles Edgar. Even with this loan, OWV’s pre-completion equity in this 13-unit beachfront property with penthouse is well in excess of the Plaintiffs’ attachment. Exhibit A.! Upon completion, the anticipated value of the building is anticipated to be in excess of $9.5 million. Since no units have yet sold, OWV will own the entirety of that equity. See Affidavit of Charles Edgar. OWV’s equity in the property will be more than ample to cover the Plaintiffs’ attachment should a judgment be issued, even if it is subordinated to the Triumph Capital loan. 6. The current loan of approximately $3,000,000 is past due and accruing exorbitant daily late fees. Exhibit B; Affidavit of Charles Edgar. 7. In exchange for a discharge of the current attachment, Defendant, Charles Edgar offered the Plaintiffs an attachment on the properties he owns individually in Barnstable County. The equity in both of his personal properties exceeds $150,000. Exhibit C; Affidavit of Charles Edgar. The Plaintiffs did not respond. 8. Maintaining the Plaintiffs’ attachment in first position during the pendency of the appeal would effectively prevent the Defendants from completing construction, as OWV does not have the cash resources to satisfy the Plaintiffs’ attachment or complete construction without the loan. In light of the defense verdict and this court’s denial of the Plaintiffs’ Motion for New Trial, maintaining the Plaintiffs’ attachment on the property of OWV for the pendency of the appeal would be unreasonable and excessive. WHEREFORE, the Defendants request that the Court discharge the attachment as to the real property of Old Wharf Village, LLC. In the alternative, the Defendants request that the Court subordinate the Plaintiffs’ attachment to any lien of Triumph Capital; or discharge this attachment reimpose an attachment on Defendant, Charles Edgar’s real property in Barnstable County: 405 Old Wharf Village Road Unit 101, Dennisport; and 8 Countryside Drive, Chatham. 1 The lender, which contemplates loaning OWV in excess of $3 million, requires a 70/30 loan-to-value ratio. Ata minimum, therefore, the current equity is approximately $1 million. 2DATED: July 11, 2019 Respectfully submitted, Defendants, By Their Attorneys, Djuna E. P s, BBO# 561909 Lynne M. Chiodo, BBO# 657428 DP Law 619 High Street, Suite 103 Dedham, MA 02026 (781) 326-6320 (voice) (781) 326-6321 (fax) dp@djunaperkinslaw.com Ichiodo@djunaperkinslaw.comCERTIFICATE OF SERVICE Thereby certify that I served a copy of the foregoing Motion to Discharge Attachment Against Real Property of Old Wharf Village, LLC on counsel for the Plaintiffs by email and First-Class mail on July 11, 2019. Dju¥a Perki