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  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
Verifed Complaint | Memorandum of Law | Clerk James Kelly |