COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
CIVIL ACTION NO: ^ ,^ ^ p
V & M MANAGEMENT, INC. AND ALPHONSE MOURAD,
JUDITH MORIARTY AND MARIO NICOSIA, AS TRUSTEES OF L&N FIRST MORTGAGE REALTY TRUST, Defendants
1. This is an action for injunctive relief to restrain and enjoin the defendants from foreclosing on certain property, commonly known as Mandela Apartments in Roxbury, on which the defendants have a mortgage securing a certain note having no outstanding balance currently due.
2. The plaintiff V & M Management, Inc. is a Massachusetts corporation with a principal place of business in Roxbury, Suffolk County, Massachusetts.
3. The plaintiff Alphonse Mourad is an individual residing in Watertown, Middlesex County, Massachusetts. Mourad is the President and Treasurer of V & M Management, Inc.
4. Defendant Mario Nicosia is an individual and trustee of L&N First Mortgage Realty Trust, having an address at c/o NIC
Management, 560 Harrison Avenue, Boston, Suffolk County, Massachusetts.
5. Defendant Judith Moriarty is an individual and trustee of L & N First Mortgage Realty Trust, having an address at c/o NIC Management, 560 Harrison Avenue, Boston, Suffolk County, Massachusetts.
6. The plaintiffs executed, as Borrower, a certain note dated March 29, 1985 in the principal amount of $50,000 ("Note"). A true and accurate copy of the Note is attached at Tab A.
7. The Note is secured by a mortgage, recorded with the Suffolk County Registry of Deeds in Book 114976, Page 013 and filed with the Suffolk County Registry District of the Land Court as Document Number 389064 ("Mortgage"), on certain property, commonly known as Mandela Apartments located in Roxbury, Suffolk County, Massachusetts ("Property"). A true and accurate copy of the Mortgage is attached at Tab B.
8. Pursuant to a certain Assignment of Mortgage dated March 4, 1987, the defendants are the current holders of the Mortgage, and the Lender under the Note ("Assignment") . A true and accurate copy of the Assignment is attached at Tab C.
9. The plaintiffs received a letter dated December 11,
1995 from the defendants informing the plaintiffs that a foreclosure sale of the Property is to take place on January 9,
1996 at 10:00 a.m. ("Foreclosure Notice"). A true and accurate copy of the Foreclosure Notice is attached at Tab D.
10. The defendants/ intention to foreclose is based on their erroneous conclusion that the plaintiffs have failed to pay the total amount due in accordance with the Note.
11. The defendants claim that the outstanding balance due under the Note as of September 30, 1995 totalled $345,727.36 ("Alleged Outstanding Balance"). The defendants also claim that the plaintiffs have paid a total of only $15,468.22 in accordance with the Note.
12. The plaintiffs have done an accounting of their payments made in accordance with the Note, and have determined that no amount is currently due under the Note.
13. The plaintiffs have determined that as of December 29, 1995, the total balance due under the Note was $13,511.00, $11,900.00 in unpaid principal, and $1,611.00 in unpaid interest ("Balance Due"). The plaintiffs paid the Balance Due on January 2, 1996.
14. In total, the plaintiffs paid a total of $127,666.00, which amount is rounded to the nearest dollar of each payment made, in accordance with the terms of the $50,000.00 Note as follows:
Total payments made in 1985 - $ 8,165. Total payments made in 1987 - $ 6,699. Total payments made in 1988 - $ 609. Total payments made in 1990 - $ 31,066. Total payments made in 1991 - $ 23,716. Total payments made in 1992 - $ 13,720.
Total payments made in 1993 - $ 14,600.
Total payments made in 1994 - $ 14,600.
Total payments made in 1995 - $ 980.
Total payments made in 1996 - $ 13,511.
Total amount paid - $127,666.
15. The defendants claim that a considerable amount is owed in accordance with the Note arises because: (a) the defendants refused to allocate certain payments made by the plaintiffs to the Note (as opposed to Other Notes); and (b) the defendants/ insistence that the interest due is 24% on the principal and 36% as a penalty on unpaid monthly installments, despite the terms of the Note which provide otherwise.
16. In addition to the Note and Mortgage, the defendants are currently the holders of mortgages securing other notes from the plaintiffs ("Other Notes").
17. All payments made by the plaintiffs prior to January, 1990 were allocated proportionately to the Note and the Other Notes. Since January, 1990, however, the defendants failed to allocate amounts paid proportionately, made a unilateral decision to otherwise allocate such payments, and applied payments made by the plaintiffs to the more recently dated Other Notes.
18. As a result of the defendants' unilateral actions in applying the plaintiffs' payments on and after January, 1990, approximately $100,000.00 in payments made from 1990 to 1995 were not allocated to the Note.
19. As a result of the plaintiffs' payments in accordance with the Note, no amount currently is due under the Note.
20. The plaintiffs will be irreparably harmed if the defendants are permitted to proceed with the intended foreclosure.
21. The defendants will not be harmed by the requested relief because they are owed no money in accordance with the Note at this time.
WHEREFORE, the plaintiffs pray:
1. For the appointment of a special process server;
2. For a short order of notice for hearing under prayer 3 hereof;
3. For a preliminary injunction restraining and enjoining the defendants, and their agents, servants, employees, attorneys, nominees, principals, and assigns, from foreclosing on certain property;
4. For an order continuing the foregoing preliminary injunction as a permanent injunction; and
5. For such other and further relief as this court may deem just and appropriate.
V & M MANAGEMENT, INC. /
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Alphonse Mourad, Its President HEREUNTO DULY AUTHORIZED
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.:c .' c^----^,-//<.-^ Alphonse Mourad
COMMONWEALTH OF MASSACHUSETTS
On this 2nd day of January, 1996, then personally appeared before me, Alphonse Mourad and made oath that he is the President of V & M Management, Inc., that he has read the foregoing Verified Complaint, and that the statements thereof are true to the best of his knowledge, information, and belief.
-^c^U^^^^.^ Notary Public My Commission Expires:^ Notary Seal
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Michael L. Altmafa/, BBO#016800 Helen E. Morgan, BBO#555189 RUBIN AND RUDMAN Counsel to the Plaintiff 50 Rowes Wharf Boston, MA 02119 TEL: (617)330-7000
KATHLEEN R. DOHERTY. Notary Public My Commission Expires March 22,2002