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JUDGE CHARLES SPERLOCK
Judge Charles Sperlock allowed a foreclosure on a fraudulent note, without reading same, and not accepting V&M Management's full payment of $13,511 on the note, offered by Boston Attorney Michael Altman of Rubin & Rudman. Sperlock acted on this case even though he had previously recused himself from cases involving V&M Management, because his (Sperlock's) wife worked as an investigator for the Attorney General's office, and because I (Mourad) was under investigation by the Attorney General's office. Judge Sperlock's recusal was confirmed in a February 2, 1994 letter by the Attorney General's Office that Judge Sperlock would not hear any motions in which the Attorney General's Office represented a party against V&M Management. For more information, click onto sub-buttons "Clerk James Kelly," "Sperlock Transcript," "Michael Altman, Esq.," and "Verified Complaint." Under the main page, see my August 7, 1998 letter to the Judicial Conduct Committee about Judge Sperlock.
Clearly, politics, and not money, was the issue, as V&M Management was prepared to pay the $50,000 note in full the $13,511 payoff figure, or even the full $50,000. Judge Sperlock did not care about the money or entertain a payoff offer, as his mission was to deliver Mandela to the government takeover.
Notwithstanding his clear conflict of interest, and prior recusal involving V&M Management, Judge Sperlock acted to my detriment and to the detriment of V&M Management in allowing the foreclosure to proceed, thus requiring V&M Management to file for bankruptcy protection to stop the foreclosure on January 8, 1996.
It is sad that an African American Judge (Judge Sperlock) allowed the foreclosure of the Mandela Development, protected under Chapter 121A, to remain affordable housing for its Black tenants, to proceed. By allowing the foreclosure, Judge Sperlock caused the Mandela tenants to lose their home ownership, rowing team and Mandela Town Hall that empowered the Black Mandela tenants.



COMMISSION ON JUDICIAL CONDUCT

14 BEACON STREET -- SUITE 102
BOSTON, MASSACHUSETTS 02108
(617)725-8050 Fax (617) 248-9938

August 7, 1998

Mr. Alphonse Mourad
125 West Street
Hyde Park, MA 02136

Re: Complaint Number 98-76

Dear Mr. Mourad:

This will acknowledge receipt of your complaint against Judge Charles T. Spurlock. Your complaint has been screened and will be looked into.

The Commission's statute provides that its proceedings are confidential unless and until such time as formal charges and the judge's response thereto are filed with the Supreme Judicial Court. Therefore, it is possible that you will not at certain stages be aware of the action of the Commission with respect to your complaint. You will be informed of the disposition.

Very truly yours,
Barbara Morgan, Fauth Executive Director
_______________________________________________
COMMISSION ON JUDICIAL CONDUCT

14 BEACON STREET -- SUITE 102
BOSTON, MASSACHUSETTS 02108
(617)725-8050 Fax (617) 248-9938

September 18, 1998

Mr. Alphonse Mourad
125 West Street
Hyde Park, MA 02136

Re: Complaint Number 98-76 Dear Mr. Mourad:

The Commission on Judicial Conduct has concluded its investigation of your complaint against Judge Charles T. Spurlock.

Since this complaint was filed more than two and a half years after the date of the alleged misconduct, the Commission had first to consider, pursuant to G.L. C.211C, section 2(3), whether there was good cause to investigate the complaint. All the materials which you sent us and our investigator's discussion with you revealed no evidence of judicial misconduct, only disagreement with the judge's decision. The Commission on Judicial Conduct does not have the jurisdiction to review the record of a case to determine whether a judge's decision was correct; that is up to appellate courts.

Accordingly, the Commission voted that there was not good cause to investigate this complaint, and it was therefore dismissed.

Please keep in mind that this complaint and its disposition remain, by law, confidential.

Robert A. Barton, Chairman

cc: The Honorable Charles T. Spurlock
__________________________________________________
July 16, 1998

Alphonse Mourad
125 West Street
HydePark,MA 02136
(617) 361-2793

Commission On Judicial Conduct Complaint

Name of Judge: The Honorable Charles T. Spurlock

Court: Suffolk County Superior Court

Case Name: V&M Management, Inc., and Alphonse

Mourad vs. Judith Moriarty and Mario Nicosia.
Docket number: 96-0036D

Attorneys involved: John J. Rosenberg, Esq. and Michael L. Altman, Esq.

Date(s) of misconduct: January 5, 1996
Has an appeal been filed: No

A summary of the general nature of your complaint: Judge Spurlock barely aloud
V&M's Council, Michael Altman, to speak, and erroneously denied the injunction,
despite the fact Nicosia and his attorney's presented a fraudulent and forged note, upon
which the hearing was being held. Refer to the "Summary Statement of Alphonse
Mourad," for more detailed information.

Specific facts [brief essay]:
Please describe exactly what the judge did that was misconduct and on what date(s)...

Prior to a hearing scheduled for January 5, 1996,
Robert J. Rosenberg, representing L&N, and in open violation of Rule 9A, wrote to Judge Charles T. Spurlock, who was presiding over the case, wherein he made unsubstantiated and inflammatory
remarks about Mourad. Judge Spurlock refereed to these comments in his opening remarks before denying the request to restrain L&N. For more detailed information about Judge Spurlock's corrupt actions, refer to "Exhibits 8-10" in the motion filed in the Bankruptcy Court on June 30,1998. The motion is entitled, "Motion to Compel The Court to Order The Resignation ofAsst. U.S. Trustee Attorney, Eric Bradford, and Strike Bradford's Opposition to Mourad's Motion for Recusal."

Also, refer to the letter written by Attomey-At-Law Victor Aronow, to The Honorable Charles A. Barrett on February 2,1994. Judge Spurlock recused himself on the Commonwealth v. V&M Management, No. 90-5433-D. I was told that his wife works for the Attorney General and that is the reason for him to recuse himself as a Conflict of Interest. Judge Spurlock delivered a political victory to the Attorney General's Office, the BRA and the City of Boston to force Mourad into Bankruptcy.
Signed:Alphonse Mourad
Date: July 16, 1998
_______________________________________________
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
SUPERIOR COURT Civil Action Mo. 96-0036
V & M MANAGEMENT. INC. AND ALPHONSE MOURAD
vs.
JUDITH MORIARTY AND
MARIO NICOSIA AS TRUSTEES OF
L & N FIRST MORTGAGE REALTY

BEFORE: Justice Charles T. Spurlock Suffolk Superior Courthouse Boston, Massachusetts

January 5, 1996

TRACEY L. GOODMAN Certified Court Reporter South Boston, Massachusetts 02127 (617) 269-2393

APPEARANCES

Michael Altman, Esquire Rubin and Rudman,
50 Rowes Wharf, Boston, MA 02110
for the Plaintiffs

John J. Rosenberg, Esquire Epstein, Becker and Green, P.C. 75 State Street Boston. MA 02109
for the Defendants

INDEX

Witness
Gizefit cease. Redirect Recross
(No testimony)

EXHIBITS

Number Description Page
(No exhibits)
__________________________________________________
PROCEEDINGS

Friday. January S. 1996
THE CLERK: This is Civil Action 96-0036, V & M Management versus Moriarty. All parties please identify yourself for the court record.

MR. ROSENBERG: Good afternoon. Your Honor, John Rosenberg appearing on behalf of the defendants in opposition to the motion.
MR. ALTMAN: Michael Altman, Your Honor, I represent the plaintiff.
THE COURT I have a letter from -- who is John J. Rosenberg?
ROSENBERG: That's me. Your Honor.
THE COURT: That's understandable.
MR.ROSENBERG: That's me as along as that's acceptable to The Court; otherwise, I'd be happy to --
THE COURT: You indicate that this is -- I received this letter today. This is third time or the second time that this case has been before this court.
MR.ROSENBERG: It's the second time the case -- well, it's the second time the motion for injunctive relief has been before this court. It was aso before the Federal Court. Judge Lopez permitted my clients to foreclose on the subject property on November 29th in response to a motion to enjoin it in the context of those proceedings.

Several weeks later, the same plaintiffs taking the position that this case -- the case before Judge Lopez had somehow been removed to the Federal Court with some consolidated cases. One of which had been removed went to Judge Keating and sought a motion for preliminary injunction to enjoin the foreclosure same exact relief.

Now.-in another forum last Friday, we had a two hour hearing before Judge Keating who denied the motion on the merits, said that whatever had been removed before him had been removed solely for purposes of delay by the plaintiffs to delay proceedings here and he sent everything back. But in doing that, Your Honor, and I was there, he specifically ruled on the merits of the motion. And I have for The Court and would present to The Court, a certified copy of Judge Keating's ruling which we obtained today after I was informed by my brother counsel that they were going to tell The Court that Judge Keating really hadn't ruled on the motion.

After he told me that, I had my associate go to The Court and see what we could find because they were going to mislead The Court which they've done repeatedly.

If The Court looks, and if I could read it while you do so it's on the record: "On the findings and conclusions stated on the record at the hearing this date, including findings that plaintiff has completely failed to proffer evidence showing any likelihood of succeeding on the merits of this action, as to issues relevant to any injunctive relief, has failed to show any likelihood of irreparable harm in the absence of preliminary injunction, has failed to show a balance of hardship in plaintiff's favor and has failed to show that the public interest would be better served by ordering injunctive relief than by declining to do so and including the supplemental findings stated orally on the record and for the additional reasons stated orally at the hearing, it is ordered that the Third-Party plaintiff's motion." and that is these people. Your Honor, V & M Management, Inc., "for preliminary injunction is denied."

Now, we've put before you in other papers,
excerpts from the brief that these same people filed before the Federal Court after losing before Judge Lopez. And they include the same identical absurd argument that's being raised here today.

Your Honor, in sixteen or seventeen years of doing this, I view this as the most abusive litigation tactic I have ever seen. Judge Lopez said "You can foreclose." They go to a Federal Court who says, "I'm not enjoining the foreclosure." And the first business day after that, they don't go back to the action pending here because there's been a ruling in it. They *file --

THE COURT: What is the action pending?
MR. ROSENBERG: The action pending here, we put the relevant papers before you including Judge Lopez's ruling, is pending here at Civil Action Number 95-5243 precisely the same parties. Your Honor,v & M Management, Inc. and Alphonse Mourad against Mario Nicosia and Judith Noriarty.

We actually, I believe, we were in D Session, coincidentally on November 29th, in the other Room 419, where there was a one hour hearing on their motion for an injunction where we were seeking to dissolve that and go ahead with the foreclosure which Judge Lopez allowed.

At the risk of being repetitive. Judge Lopez said it was okay. Judge Keating in explicit rulings finding absolutely no basis for injunctive relief denied the identical request. And they have the temerity to come back and try to fool you by filing a new action where they don't even mention, Your Honor, any of the other things that happened. I mean it's shocking. It just should be denied.

THE COURT: Excuse me. Can I ask you how this is different from these other cases that you --
MR. ALTMAN: Sure, Judge. I think they're -- I'm just entering this case now for the first time and haven't been involved in those other actions. And I gather the name calling and the rhetoric comes out of the prior litigation. And I'm thankful that I've had no part of that.
The present case raises --
THE COURT: Well, do you know anything about the other cases?
MR. ALTMAN: I have conferred with prior counsel, yes. Your Honor.
THE COURT: So how is this different than the other cases?
MR. ALTMAN: There's really only one case, other case, the case before Judge Lopez. The case before Judge Lopez raised issues about whether or not a number of notes, including this note, violated the State Usury Statutes, violated 93(a). There was some question that the interest rate that his client was charging in some of the notes was 100%, and other notes were 60% And there were questions about proper filing through the AG's office and so forth. And that was the issue.

And let me just tell you how this present case arises. The plaintiff in this case came to me --

THE COURT: It's still the same note, isn't it?
MR. ALTMAN: I'm sorry?
THE COURT: It's still the same note that they're foreclosing on, isn't it?
MR. ALTMAN: Well, if I could just give a little -- yes, that note is mentioned in the prior case. But let me just tell you how this case comes here. If I could just beg your indulgence --
THE COURT: I know somebody went down to the clerk's office and filed a complaint.
MR. ALTMAN: That's true. So, what happened is, approximately a week ago, the client came in my office; and I looked at the note for the first time and read it carefully. And the note, itself, is attached to the complaint.
THE COURT: And you read it more carefully than the other lawyers involved?
MR. ALTMAN: Well, I just I read it. And I looked at it carefully, and I read what it said. And basically, the note is a $50,000 note with no principal paid until after installment payments of interest are made at the end of a year.

So it's $50,000. It's an 181 note which means the payments are about $750 a month; and at the end of a year. it's due.

Now, what happened here was, when you look carefully at the note, a penalty of 31 that is referred to. applies only to the interest installments. It says explicitly, and I'll go back through this because I'm only answering The Court's specific question. The 361, 31 monthly interest, only applies only to interest.

So, I went back, and I asked the accountant, I said, "Can you do some calculations here of the amounts paid, issues not litigated before, not involved in any other case, can you look at the interest and the penalties?"

And I had the accountant prepare a complete computation based upon what I think is the appropriate reading of the note, which is in the complaint, which is roughly that there was $76,000 in interest due in this $50,000 note and a little over a $1,000 due.

And I said to my client, and this is just last week or a couple days ago, I think it was January 2nd. I said. "Here's the calculation the accountant has done. You owe $13,000 and odd dollars on this note. My view to you is, pay the note, pay that off. I think that's the right calculation."

And so, just a few days ago on January 2nd, he paid the note. And I sent the $13,000 to the defendants, and I said, "Here's the $13,000." And I told them our calculations and they disagree. They say that on this $50.000 note, there's $345,000 in interest owed. So, they interpret the note differently than we do.

So, the question The Court -- so here's what I had -- I had a choice whether to do one of two
12 things. The one case that's pending in State Court because it was removed to Federal Court, and apparently, it was sent back, and there's four cases that are attached to it involving HOD and involving the BRA and a whole host of other parties, I had to make a decision myself.

These are issues never litigated. Couldn't have been litigated in the time because we just paid off the note according to my interpretation of the note. Do I start one clean case that focuses on the issue? Should the note be construed as I say or as Mr. Rosenberg says? I don't want to get involved with the HUD Third-Party complaint, the BRA issues, the Usury Statutes. In fact, I mean, I think I would recommend that the issues pertaining to the Usury Statute; I'm going to recommend to prior counsel that that be dismissed.

So, anyway, there's a clean issue. It's never been presented in any pleading to any court. It is whether or not the payment that has been tendered is full payment under the note, and we're hoping The Court will agree that the calculations, which I've submitted to The Court, which are attached to both the clients affidavit, as well as, the accountant's affidavit, and there's a summary of the interest computation as Tab "C" to the memorandum will satisfy to The Court that there has been full payment, so that the foreclosure that is scheduled for next Tuesday shouldn't take place.

My brother chooses words carefully. He said that the remedy sought was sought in other courts. The remedy sought was sought in other courts a preliminary injunction. But they were litigating issues about whether in the prior state case whether there was a violation of the Usury Statute. And that was before full payment was made. And they were litigating in Federal Court whether this monster case, which had four parts to it, whether or not the part involving the V & M and Nicosia, because there are all these other parties in all these other cases, whether that was properly removed to Federal Court.

So, Judge Keating said there was no likelihood of success on the merits because he decided, I'm advised by other counsel, and I have an affidavit if The Court wants to see it, but I'm advised by counsel that Judge Keating basically decided that the case was properly litigable in State Court. And indeed, attached to the papers submitted
by my brother is a copy of the docket sheet by Judge Keating in which the final order, which he didn't read this part to the judge, to this court it says, "Dismissal without prejudice."

So, I mean, basically, the judge said, "I'm dismissing it without prejudice. I'm denying your preliminary injunction because it doesn't belong here" and sent the other case back, the other case involving different issues back to State Court.

So, I'm sorry that's a long answer I haven't fully argued my position. But the short answer is, this is a different issue, full payment rendered. There's no other pleading that raises that issue and we're here for the first time, and I'd like to walk you through the note if The Court will permit it.

THE COURT: No, because I read the papers this morning when I came in.
MR. ALTMAN: Nell, you haven't read the papers that I submitted. Your Honor.
THE COURT: You didn't submit anything this morning?
MR. ALTMAN: I submitted the complaint and I submitted a memorandum with some affidavits this
afternoon.
THE COURT: Who gave me the mortgage?
MR. ALTMAN: The mortgage that was given to you is something I just got. At approximately 12 o'clock today opposing counsel served that on me.
MR. ROSENBERG: Thoae are papers that are already on file by his clients in this court and by my clients.
THE COURT: Excuse me. Excuse me, I didn't ask anyone anything.
MR. ALTMAN: And they submit a different mortgage than the one that we say is being foreclosed on. And I was a little bit late getting up here because I was going through the record and digging out documents from '-I mean Mr. Rosenberg had --
THE COURT: Is this the complaint that you filed?
MR. ALTMAM: May I look at it. Your Honor?
THE COURT: What is attached to that complaint?
MR. ALTMAM: A copy of the note.
THE COURT: And what else? Is an assignment of the note there?
MR. ALTMAN". There's the mortgage. There's

CERTIFICATE

I, Tracey L. Goodman, Certified Verbatim Reporter, do hereby certify that the foregoing pages 1 -15 represent a true and accurate record of the proceedings held concerning the aforementioned matter before Justice Charles T. Spurlock on January 5, 1996 to the best of my knowledge, skill and ability.

Tracey L. Goodman

PLEASE NOTE:

THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE CERTIFYING REPORTER.
__________________________________________________
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
SUPERIOR COURT CASE NO. 96-0036D
V&M MANAGEMENT, INC. and
ALPHONSE MOURAD,

Plaintiffs,
v.

JUDITH MORIARTY and MARIO NICOSIA,
as TRUSTEES of L&N FIRST MORTGAGE
REALTY TRUST,

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS * MOTIONS TO DISMISS PURSUANT TO MASS. R. CIV. P. 12 (b) (9) AND 11 AND FOR SANCTIONS UNDER M.G.L. CH. 231 S 6F.

This Memorandum is submitted by the plaintiff Mourad in response to the defendant Nicosia's Motions to Dismiss and for Sanctions.1 The Motion to Dismiss relies upon the obscure Mass. Civ. P. Rule 12(b)(9) -- a rule that does not even exist in the usually similar federal rules of civil procedure. As explained below, there is no legal or factual basis for dismissal under Rule 12 (b) (9) as this case involves new facts and a new legal issue that was not and could not have been raised in any prior case.

1 Tab A to the Affidavit of Michael L. Altman indicates that proceedings against V&M Management are stayed because of its bankruptcy. Therefore, even if appropriate, sanctions could not be awarded against V&M Management. Since V & M is the principal plaintiff and Mr. Mourad is only a plaintiff as he is a guarantor on the Note, it would be very unfair to consider sanctions just against Mourad. As for the motion to dismiss, this Court also should not proceed as to V & M, as the Motions to Dismiss and For Sanctions are inextricably connected.
186397-1

Secondly, the imposition of sanctions is unwarranted. Plaintiffs have advanced a meritorious claim. As we will discuss below, the Motion Judge who denied the Motion for Preliminary Injunction was plainly wrong when he did so. In fact, he should have granted the Motion, as the facts--and law--led inescapably to the conclusion that preliminary relief was required. Such relief was appropriate to prevent imminent foreclosure on a mortgage securing a note for which payment in full had been tendered and rejected on the very same day that this case was filed, January 2, 1996. Moreover, all representations were made to the court in good faith and after a reasonable investigation of the facts and law.2 A description of the good-faith basis for filing the Complaint in this case, including a detailed recitation of the thorough factual investigation that preceded all filings in this case, is set forth in the Affidavit of Michael L. Altman which has been filed with this Memorandum.

2 Numerous accusations in Defendants^ Motions and Memorandum are false and offensive. Because the accusations are made without factual basis, the only person who should be subject to sanctions is defendants^ counsel. The accusations are invariably inflammatory and unprofessional. For example, the use of the term "disingenuously" in paragraph 2 of the Motion to Dismiss;stating that opposing counsel "affirmatively attempted to mislead this Court" at p. 2 of the Motion for Sanctions; advising the Court that opposing counsel "affirmatively concealed" facts at Defendants' Memorandum p. 2; and representing that opposing counsel "offered to file an affidavit containing averments known by him to be unfounded" and make other "false statements to this Court," at Defendants' Memorandum p. 2. All of these accusations are false and are refuted at some length in the Affidavit of Michael L. Altman.
186397-1

I. DEFENDANTS' MOTION TO DISMISS UNDER RULE 12(B)(9) SHOULD BE DENIED BECAUSE NEW EVENTS HAVE GIVEN RISE TO AN INDEPENDENT LEGAL THEORY

A court may not dismiss an action simply because there exists another action involving the same parties. Rather, dismissal of one of the actions is only appropriate under Rule 12(b)(9) "if the parties and issues are identical to those in the prior pending action." (Emphasis supplied.) Harvard Community Health Plan v. Zack. 33 Mass. App. Ct. 649 (1992). The issues in what defendants call the "Second Action" differ from the issues in what defendants call the "First Action." It is for this reason that dismissal under Rule 12(b)(9) is inappropriate.

Defendants ignore the significance of the fact that plaintiffs delivered a check to them on January 2, 1996 for more than $13,000. When plaintiffs paid defendants, they created a new and very important legal issue: the defense of payment. Defendants try to obscure this new legal issue by stating that the complaint of January 2, 1996, which was filed after the payment, and the complaint of September 11, 1995, which was filed before the payment, both arise out of the same "transaction." Defendants' Memorandum at page 13. However, whether the two cases arise out of the same "transaction" is irrelevant. As the Court of Appeals held in the Harvard Community Health Plan case, dismissal is appropriate only if the "issues" are identical. The fact that plaintiffs made payment creates new issues sufficient to survive a motion to dismiss under Mass. R. Civ. P. 12(b)(9).

In the Harvard Community Health Plan case, a woman had a dispute with the Harvard health plan over the scope of her children's medical coverage. An arbitrator decided that the plan was precluded from asserting a limitation on coverage under the doctrine of laches because the woman had received unlimited benefits notwithstanding the plan's written policy. The arbitrator held in favor of the woman and the Superior Court affirmed the decision. The following year, the plan informed the woman that her children's coverage would be limited. The woman returned to the judge who affirmed the arbitrator's decision to obtain an order of contempt; meanwhile, the plan initiated its own declaratory judgment action. In the declaratory judgment action, the woman filed a motion to dismiss under Mass. R. Civ. P. 12(b)(9) and the motion was denied.

The Court of Appeals upheld the denial of the motion to dismiss. The court reasoned that, after the first case was filed but before the declaratory judgment action was filed, two significant events occurred. First, a new contract year began between the woman and the plan. Second, at the beginning of the new contract year, the plan notified the woman that benefits would be limited. The court noted that these new facts gave rise to a new theory: that notice to the woman of the limitation on benefits in the new contract year could overcome the claim of laches that had been effective in the first action. Thus new facts giving rise to a new theory were sufficient to defeat a motion to dismiss under Rule 12(b)(9). In the instant case, new facts--payment on the note--give rise to a new legal theory--a defense of payment. Denial of the motion to dismiss is therefore appropriate.

Defendants' citation to Keen v. Western New England College. 23 Mass. App. Ct. 84, 86-87 (1986), is misguided.3 There, a law student brought two separate actions when his school refused to allow him to take a makeup exam, one action seeking equitable relief, the other seeking damages and attorney's fees under G.L. c. 93A. Defendants imply that plaintiffs are doing in the instant case what Keen did in his own case: bringing two separate actions concerning one set of facts. However, as indicated above, a critical new fact occurred before plaintiffs filed the Second Action. No such event occurred in Keen.

In support of their motion to dismiss, defendants stand beside the policy of judicial efficiency without acknowledging their role in interfering with that policy. As set forth more fully in the accompanying affidavit, it is plaintiffs who are interested in judicial efficiency. Counsel for plaintiffs asked counsel for defendants if they would agree to a dismissal of the first action so that the second action would be the only one between the parties. Counsel for defendants said he would only agree to such a dismissal if the dismissal were with prejudice. Affidavit of Michael L. Altman, <| 28. Clearly, defendants are only interested in judicial efficiency if it can be manipulated to suit their interests.

3 Defendants also cite one other case. Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co. . 383 F.2d 225 (D.C. Cir. 1967). That case is a res nudicata case and has nothing to do with Rule 12(b)(9).
186397-1

Defendants' assertions that Judge Keeton found the defense of payment to be without merit are misleading. As the Verified Complaint represents at paragraph 13, plaintiffs tendered what they alleged to be a final payment to defendants on January 2, 1996, several days after Judge Keeton made his ruling. Judge Keeton therefore could not have made a decision on the issue of whether the January 2nd tender of payment satisfied the Note. Thus, the issue of the January 2nd $13,511 payment is a new issue before the courts -- an issue that has never previously been plead in any complaint or argued to any other court.4


II. DEFENDANTS' MOTION FOR DISMISSAL AND SANCTIONS IS WITHOUT BASIS IN FACT OR LAW

In order to succeed in a motion for sanctions under Rule 11 or G.L. c. 231 6F, a party must meet a high burden. It must not only show that frivolous claims had been made, but also that they had been made in bad faith. Robinson v. Dean Witter Reynolds. Inc.. 129 F.R.D. 15 (D. Mass. 1989) (interpreting state law);
Pottle v. School Committee of Braintree. 395 Mass. 861 (1985) (interpreting G.L. 231 6F); Bird v. Bird. 24 Mass. App. Ct. 362 (1987) (interpreting Rule 11). In defendants' lengthy and repetitive brief, defendants failed to demonstrate that plaintiffs made frivolous claims or that they acted in bad faith.5

4 At the conclusion of the argument for dismissal, defendants attempt to bootstrap their misguided Rule 12(b)(9) motion with Mass. R. Civ. P. 11 (a). Defendants' Memorandum at p. 14. As the Affidavit of Michael L. Altman emphasizes, there is "good ground to support" the complaints in this case.
186397-1

First and foremost, plaintiffs' claim that foreclosure should not proceed is meritorious and was advanced in good faith. Certainly, under the law, a foreclosure may be enjoined if payment on the mortgage has been made. Beaton v. Land Court, 367 Mass. 385 (1975). Moreover, plaintiffs present compelling evidence that they did, in fact, pay the mortgage on January 2, 1996. The affidavit of Robert F. Munro, CPA, which was previously submitted to the Court, indicates that $13,511 was due to defendants under the Note as of December 29, 1995. The annexed Affidavit of Michael L. Altaian, 5 20, states that V & M Management tendered what they alleged to be their final payment to defendants on January 2, 1996. See also Verified Complaint,
Par-13.


The Motion Judge erred when he denied the motion for an injunction. For some reason, the Motion Judge misread the promissory note which was the basis for the allegation of payment.6

5 Defendants state that do not seek sanctions from V&M Management, Inc. because it is in bankruptcy. The quest for sanctions against Mourad is misguided, since Mourad is merely an incidental party to this action.

6 It may be that the Motion Judge was swayed by an inflammatory letter written to him by opposing counsel -- in violation of Rule 9A -- just prior to the hearing and to which the Motion Judge referred at the beginning of the hearing. A copy of the
(continued...)
186397-1

Defendants/ claim that plaintiffs are seeking to "muddy the waters" with a Note that is "not even at issue" is without foundation. The facts supporting the allegation that the 18 percent Note is at issue are stated at paragraphs 7 through 15 of the Affidavit of Michael L. Altman. As stated in paragraph 12 of that Affidavit, the attorney who drafted the March 29, 1985 Note, Roger Lehrberg, an attorney who now is employed by the defendant Nicosia, signed a pleading in 1986 admitting that the 18 percent Note -- the Note referred to in the Complaints in this case -- is the Note between the parties. It is the Note upon which defendants seek to foreclose. Given the overwhelming facts in support of the allegation that the 18 percent Note is the Note at issue, it is preposterous for defendants to argue that this argument is frivolous and advanced in bad faith.

Defendants also contend that plaintiffs should be sanctioned for misrepresenting facts to the court and omitting certain facts from their pleadings. Plaintiffs made no misrepresentations and there were no omissions. Defendants fail to disclose that the firm of Rubin and Rudman did not represent plaintiff until the third week of December 1995. As indicated in the accompanying

6(...continued)
Transcript of the January 4, 1996 hearing on Plaintiff's Motion for Preliminary Injunction is attached at Tab I to the Affidavit of Michael L. Altman. The inflammatory letter accused plaintiff's counsel of deliberately misleading the court supposedly because plaintiff's complaint and motion in this case had not disclosed prior litigation between the parties. The prior litigation, however, involved different facts and issues and had no relevance to this case.

Affidavit, attorneys from Rubin and Rudman were not counsel to the plaintiffs in any other case, including the case before Judge Keeton. In the few days following the December 29 hearing before Judge Keeton, Rubin and Rudman worked quickly to analyze whether there was any basis for seeking to enjoin the looming foreclosure. One of the analyses was to determine the amount owed under the Note that was involved with the foreclosure. In doing so, and with the assistance of an accountant, it was concluded that only $13,511 was owed on the Note. Counsel therefore arranged for payment of that amount on January 2, and prepared the necessary documents to stop the foreclosure from taking place. Particularly because it was New Year's weekend and the hearing before Judge Keeton occurred the day before the long weekend, Rubin and Rudman relied reasonably on both the oral summary of the case provided by plaintiffs' prior attorney and the attorney's written affidavit attached to the Affidavit of Michael L. Altman at Tab L.

When attorneys from Rubin and Rudman addressed the Court on January 4, 1996, they were entitled to rely on the representation of plaintiffs' prior counsel of what happened in Judge Keeton's Court. Moreover, the accuracy of prior counsel's report was confirmed by the federal docket which recorded that the case had been dismissed "without prejudice." Affidavit of Michael L. Altman at Tab N. See also the Transcript of the Hearing (Tab I) at pp. 13-14. Rubin and Rudman also informed the Court that
payment of $13,511 had never been raised because that payment had only been made two days before on January 2, 1996.

Defendants offer the ridiculous argument that plaintiffs' counsel violated G.L. 231 6F by making statements to the court about the hearings before Judge Keeton after having been put "on notice" by defense counsel that the statements were "false." The proceedings before Judge Keeton were obviously complex. Surely, an attorney should not be expected--on penalty of sanctions--to rely upon on-the-spot interpretations of events offered by an adversary when the attorney's predecessor has provided a different interpretation. See Affidavit of Michael L. Altman, W 23-27.

Finally, defendants argue that plaintiffs should be sanctioned for failing to include certain facts in their pleadings. The accusation is that prior litigation was deliberately concealed from the Court in both the Verified and Amended Complaints. The accusation ignores the fact that before the Complaint was filed defense counsel had advised plaintiff's counsel that he was going to argue to the Court that prior litigation barred another case. Affidavit of Michael L. Altman, H 16-22.

In fact, counsel for the parties had been talking and writing to each other for approximately two weeks before this case was filed. One of the topics raised by defendants' counsel was his argument that any new case involving the promissory note which was being foreclosed upon would be barred by res ludicata. Plaintiffs' counsel explained why res judicata did not apply and advised defendants' counsel that he would have to make his argument to the court.

Thus, the complaint in this case was drafted when it was understood that a very aggressive opposing attorney would argue that prior litigation barred relief. It is therefore absurd to argue that the lack of reference to prior litigation in the pleadings was part of a scheme to mislead the court.

The accusation of concealing prior litigation is offensive; it was the tactic of an aggressive lawyer asserting a "red herring" to lead the court away from the merits of the case. When the accusation of concealing prior litigation is viewed in its proper light -- as a litigation tactic -- it becomes apparent that the only one who misled the court was defendants' counsel.

Finally, the defendants argue, and cite no authority for their argument, that plaintiffs had a legal obligation to include reference to other litigation -- involving different facts and issues -- in their complaint in this case. However, no rule requires a detailed recitation of all facts, particularly facts relevant to defenses. All that is required in a complaint is "(I) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." Mass. R. Civ. P. 8(a). A complaint must only give fair notice of a plaintiff's claims. Ciccone v. Smithy 325 N.E.2d 292 (1975). There is no requirement that a complaint "state the relevant facts with completeness or precision." Ahern v. Warner. 16 Mass. App. Ct. 223 (1983). Given the limited role of the complaint and the fact that the defendants would be present in court to state their case, plaintiffs cannot be sanctioned for not referring to prior litigation in their complaint or in any other document.

CONCLUSION

In the name of "judicial efficiency," defendants are seeking to sweep aside a critical issue advanced by plaintiffs for the first time in this case. On January 2, 1996, plaintiffs discharged their debt to defendants by tendering more than $13,000. Defendants also would have this Court misapply Mass. R. Civ. P. 12(b)(9) to dismiss this case even though that Rule only applies to cases involving identical facts and issues. Finally, defendants seek sanctions even though plaintiffs' case presents meritorious and good faith claims. Defendants' motion to dismiss, pursuant to Rules 12(b)(9) and 11, and their motion for sanctions should therefore be denied. Moreover, since there is absolutely no factual or legal basis for either of the motions,this Court should order defendants to pay reasonable counsel fees to the plaintiffs.7

ALPHONSE MOURAD By his attorneys,
March 11, 1996

Michael L. Altman BBO# 016800, Eric S. Solowey BBO# 600316, Rubin and Rudman, 50 Rowes Wharf Boston, MA 02110 (617) 330-7000

7 The bad faith of opposing counsel is also revealed by his refusal to await the outcome in Bankruptcy Court before proceeding against one of the two plaintiffs in this case. See Affidavit of Michael L. Altman, I 29.
186397-1
__________________________________________________
????????????????????????????
RU BIN AND RUDMAN
COUNSELLORS AT LAW 50 ROWES WHARF 30STON. MASSACHUSETTS OBIIO-3319
TELEPHONE: (617) 330-7000
TELECOPIER: (6171 439-9556
GUTERMAN & GUTERMAN FOUNDED 1920
GUTERMAN. HORVITZ RUBIN & RUOMAN 1369-1985
MICHAEL L ALTMAN KENNETH M BARNA GENE T. BARTON. JR. SUSAN A. BERNSTEIN MILTON BORDWIN JONATHAN 0. CANTER SUSAN M. CARUSO J. ROBERT CASEY MICHAEL R. COPPOCK MARK W CORNER MICHAEL K. CROSSEN JOHN A. DETORE JACOB AARON ESHER PETER 8. FINN DAVID C. FIXLER STEPHEN C. FLASHENBERG PETER F. GRANOFF
JAMES H GREENE
EDWARD R. HILL JR
KEVIN P. JOYCE
JOHN D KALISH
SUZANNE L. KING
DIEDRE T. LAWRENCE
ROBERT J MACK
ALAN D. MANDL
EILEEN M MCGCTTIGAN
HELEN E. MORGAN
ANDREW J. NEWMAN
STEPHANIE MONAGHAN O'BRIEN
JOANNE AYLWARO PIERCE
ALAN K POSNER
MYRNA PUTZIGER
DONALD J. OUILL
OANA F. RODIN
HOWARD RUBIN. Rl. SELIG A SALTZMAN ROBERT D SHAPIRO DONNA C. SHARKEY JASON A. SOKOLOV CHARLES J. SPELEOTIS KENNETH IRA SPIGLE REBECCA L. TEPPER LAWRENCE E. UCHILL ROBERT S. WALKER EDWARD R 2AVAL
STANLEY H. RUDMAN W BRADLEY RYAN OF COUNSEL
????????????????????????
RU BIN AND RUDMAN
COUNSELLORS AT LAW 50 ROWES WHARF OSTON. MASSACHUSETTS OZIIO-3319
TELEPHONE: (617) 330-7000
TELECOPIER: (617) 439-9556
GUTERMAN & GUTERMAN FOUNDED 1920
GUTERMAN. HORVITZ RUSIN & RUDMAN 1969-1985
MICHAEL L. ALTMAN KENNETH M. BARNA GENE T. BARTON. JR SUSAN A. BERNSTEIN MILTON BORDWIN JONATHAN D CANTER SUSAN M. CARUSO J. ROBERT CASEY MICHAEL R. COPPOCK MARK w. CORNER MICHAEL K. CROSSEN JOHN A DETORE JACOB AARON ESHER PETER B FINN DAVID C. FIXLER STEPHEN C. FLASHENBERG PETER F. GRANOFF
JAMES H. GREENE EDWARD R HILL JR KEVIN P. JOYCE JOHN D. KALISH SUZANNE L. KING DIEDRE T. LAWRENCE ROBERT J MACK ALAN D. MANDL E1LEEN M. McGETTIGAN HELEN E. MORGAN ANDREW J NEWMAN STEPHANIE MONAGHAN O'BRIEN JOANNE AYLWARD PIERCE ALAN K. POSNER MYRNA PUTZIGER DONALD J. OUILL DANA F. RODIN
HOWARD RUBIN. Ret. SELIG A. SALT2MAN ROBERT D. SHAPIRO DONNA C. SHARKEY JASON A. SOKOLOV CHARLES J. SPELEOTIS KENNETH IRA SPIGLE REBECCA L. TEPPER LAWRENCE E. UCHILL ROBERT S. WALKER EDWARD R. ZAVAL
STANLEY H. RUDMAN W, BRADLEY RYAN OF COUNSEL
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January 5, 1996
BY FACSIMILE
John J. Rosenberg, Esq. Epstein, Becker & Green, P.C. 75 State Street Boston, Massachusetts 02109-1807
RE: V & M Management, Inc., et al. v. Judith Moriarty, etal. Suffolk Superior Court - Civil Action No: 96-0036 D
Dear Mr. Rosenberg:
This letter is in response to your January 2, 1996 letter in which you request "advice" as to whether your clients "may apply the sums reflected by the check [in the amount of $13,511] towards the far greater indebtedness that the Mourad Parties owe . . . ." The answer is no. The check was tendered as full and final payment and since you do not accept it as such you should return it to me today by hand delivery.
Thank you for your cooperation in this matter.
Very truly yours,

Michael L. Altman
HEM/dmb

cc:^Alphonse Mourad
MEMORANDUM
????????????????????
TO: The File
V & M Manufacturing - 5440/001
FROM: Michael L. Altman ^
DATE: February 9, 1996
Re: Telephone conversation with Jason Long
On February 7, 1996, I finally was able to get in touch with Jason Long. He told me that after he spoke with Al he went back and pulled his books and records and reviewed them. He concludes that there is indeed one note that was issued on March 29, 1985. He says that his cash disbursement journal shows five or six checks issued to Al in total amount of $50,000.00. However, he has two additional sets of books. One is a receipt book and the other one is a ledger sheet. Long says that there is a separate ledger sheet for each account, and each account means each loan. He says that his records show that Al paid 2 percent per month for four or five months in 1985. He said that both his receipt book and his ledger sheet show this. 2 percent a month equals 24 percent a year. Long is going to forward his cash disbursement sheet, his ledger sheet and his receipt book page showing the receipt of 2 percent per month. 2 percent per month equals $1000.00.
Long agrees that he does not have an explanation for why there are two notes. The only thing he can conclude is that Al needed money in 1985. He apparently needed a lot of money at various points of time, and kept coming to Long asking for more. Al said that he only needed the money for a short period of time, and was willing to pay enough interest so that it would be worth it for Long to loan the money. Long says that the only thing that he can piece together is that when Al received the first check for $10,000.00, Long gave it to him before the note was executed. Al may have gone to Roger Lehrberg and asked Roger to draft the note. Roger may have then drafted the 18 percent note and brought it down to Long. Long then may have said, "That's not the right amount; give me the right amount," and then there was a 24 percent note. Long agrees that it is unusual that the 24 percent note does not include Lehrberg's signature as the other notes do. He does not recognize the witness signature and has no idea who it is.
Long admitted to me that Al came in to see him a couple of weeks ago with the 18 percent and the 24 percent notes. He admits telling Al that there was only one note. Al told him that the 24 percent note was not his signature and they both agreed that they did not recognize the signature of the other person who witnessed the note. They therefore
183815 1
concluded that the 18 percent note must be the correct note. However, after meeting with Al, Long went back and reviewed his records, and discovered that payments of 2 percent a month were made. That has led him to the conclusion that the 24 percent note is the correct note.
Long has conveyed this information to Rosenberg. He has stated that Lehrberg has also been in to look at the actual books and records.
DC * * ????????????????????????????? *
183815 1
Exhibit C

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;OTT HARSHBARGER
ATTOflMET GENERAL (617) 727-2200
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