HomeContact Info


 
COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT DEPARTMENT
SUPERIOR COURT
CIVIL ACTION NO. 95-5243

TRANSFERRED FROM MIDDLESEX SUPERIOR COURT CIVIL ACTION NO. 95-5267
SUFFOLK, ss.

V & M MANAGEMENT, INC., and
ALPHONSE MOURAD, Plaintiffs
vs.
MARIO NICOSIA and JUDITH MORIARTY, INDIVIDUALLY, and as TRUSTEES OF THE L & N FIRST MORTGAGE REALTY TRUST, Defendants

PLAINTIFFS' MOTION TO SUPPLEMENT COMPLAINT PURSUANT TO RULE 15 (D)

Now come the Plaintiffs, V & M Management, Inc. and Alphonse Mourad, and respectfully move that this Honorable Court allow the Plaintiffs to supplement the Plaintiffs' complaint by adding additional facts and counts thereto. A copy of the supplemented complaint is attached hereto and incorporated herein.

In support of this motion, the Plaintiffs state that the original complaint was filed
approximately three weeks ago. Subsequent to filing the complaint, the Plaintiffs have learned of new facts which serve as a basis for the Plaintiffs adding additional counts against the Defendants in this matter. See new.
facts set forth in supplemented complaint, paragraphs number 16-24. The additlonal counts to be added against the Defendants are set forth as Counts XI-X in the attached supplemental complaint.

Accordingly, the Plaintiffs motion should be allowed as: 1) this lawsuit is at its' initial stage; 2) no prejudice will result to the Defendants; and 3) it is in the interests of justice and judicial economy to allow the Plaintiffs motion.

It is also requested that this Honorable Court order the Defendants to answer the original and supplemented complaint.

ALPHONSE MOURAD and V & M MANAGEMENT, INC. BY THEIR ATTORNEY,

Dated: October 2, 1995
notice sent 11/7/95

JOHN/F.WHITE, ESQ.
B.B.0. # 558367
Law Offices of Lipman & White
One Billings Road
Quincy, MA 02171
________________________________________________
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.

V & M MANAGEMENT, INC., and ALPHONSE MOURAD,
Plaintiffs
vs.
MARIO NICOSIA and JUDITH MORIARTY, INDIVIDUALLY, and as TRUSTEES OF THE L & N FIRST MORTGAGE REALTY TRUST, Defendants

TRIAL COURT DEPARTMENT
SUPERIOR COURT
CIVIL ACTION NO. 95-5243

TRANSFERRED FROM MIDDLESEX-SUPERIOR COURT CIVIL ACTION NO. 95-5267

PLAINTIFFS FIRST AMENDED VERIFIED COMPLAINT

PARTIES


1. The Plaintiff, V & M Management, Inc., is a corporation duly established under the laws of Massachusetts with a principal place of business in Watertown, Middlesex County, Massachusetts.

2. The Plaintiff, Alphonse Mourad, is a natural person with a usual place of residence in Watertown, Middlesex County, Massachusetts.

3. The Plaintiff, Alphonse Mourad, is the President and Treasurer of V & M Management, Inc.

4. The Defendant, Mario Nicosia, is a natural person and a duly appointed trustee of the L & N First Mortgage Realty Trust, with a usual place of business in Boston, Suffolk County, Massachusetts.

5. The Defendant, Judith Moriarty, is a natural person and a duly appointed trustee of the L & N First Mortgage Realty Trust, with a usual place of business in Boston, Suffolk County, Massachusetts.

FACTS


6. The Defendants are currently the holders by assignment of six notes ("Notes"), as set forth below, issued jointly by the Plaintiffs, V & M Management, Inc. and Alphonse Mourad (see copies of notes attached hereto as Exhibit "A"):

Date of Loan Amount Loan Interest Rate

a) 12/21/84 $50,000 24% p/annum p/ month
60% p/annum thereafter
b) 3/29/85 $50,000 Prime Rate +7% or 18%
whichever is greater
c) 5/9/85 $55,000 24% p/ annum

d) 8/14/85 $60,000 24% p/ annum

e) 1/23/85 $25,000 24% p/ annum

f) 3/18/86 $15,500 24% p/ annum

Total..... $255,000.00

7.Prior to the instituting the foreclosure action, the Plaintiffs had been making regular payments on the Notes directly to the Defendants in the amount of $5,000.00 per month, for approximately two years prior to this matter.

8. The Defendants accepted all of said payments until July of 1995, when the Defendants refused to accept the Plaintiffs payments.

9. Since 1989, the Plaintiff, V & M Management, Inc., has made interest payments of $614,000.00 on the Notes to the Defendants, and predecessor trustees.

10. The Defendants are violating the Massachusetts Criminal Usury Statute as the Notes allow the Defendants to charge, take, and receive, interest and expenses, directly or indirectly, the aggregate of which exceed an amount greater than twenty percent per annum, pursuant toM.G.L. c. 271, s. 49.

11. The Defendants assert that the Plaintiffs present payoff for the Notes, after crediting the Plaintiffs past payments, are in the approximate total sum of $1,208,500.00, exclusive of fees and expenses. See Exhibit "B".

12. The Defendants have scheduled a foreclosure auction for September 28, 1995, at 10:00 am, against property owned by the Plaintiff, V & M Management, Inc., commonly known as Mandela Apartments, located in Roxbury, Suffolk County, Massachusetts ("Property"). See copy of notice of sale attached hereto as Exhibit "C".

13. The Defendants are foreclosing on the Property, pursuant to the note dated March 29, 1985 in the original amount of $50,000.00, (see paragraph 7 (b)).

14. The Property is a 276 unit federally subsidized housing complex, which provides affordable section 8 housing for minority low income families, consisting currently of approximately 1,500 people, which subsidized housing will be terminated if the Defendants foreclose on the Property.

15. The Defendants informed the Plaintiff, V & M Management, Inc., that it will cancel the foreclosure sale if the said $50,000.00 is paid off prior to auction, and the demanded approximate payoff is asserted to be $320,315.00, plus fees and costs. See Exhibit "B".

16. On or about September, 1995, after a preliminary injunction had been issued in the matter at bar restraining the Defendants foreclosure auction, the Plaintiffs entered into discussions with Winn Development, located in Boston, Massachusetts, regarding a possible sale or partnership of the Property which would preserve the subsidized housing for all of the tenants at the Property.

17. Representatives of Winn Development informed the Plaintiffs that Winn Development was extremely interested in negotiating a sale or partnership for the Property.

18. On or about September 26, 1995, said representative of Winn Development informed the Plaintiffs that Winn Development could not proceed with any further negotiations for the Property, as said representative had just discovered that Winn Development had previously entered into an exclusive agreement for the purchase of the Property directly from the Defendants after the foreclosure sale.

19. Upon information and belief, prior to instituting the foreclosure action the Defendants contacted Winn Development, located in Boston, Massachusetts.

20. Upon information and belief, the Defendants offered to enter into an exclusive agreement with Winn Development whereby the Defendants would foreclose upon the Property.

21. Upon information and belief, the exclusive agreement provided that after the Defendants foreclosed upon the Property, Winn Development would provide any monies needed to pay off existing liens encumbering the Property, and thereafter, the Property would be sold and the profits split by the Defendants and Winn Development.

22. Upon information and belief, the exclusive agreement alternatively provided that after the Defendants foreclosed upon the Property, Winn Development would have the right to purchase the Property from the Defendants for the price of the existing debt encumbering the Property.

23. Upon information and belief, the exclusive agreement was agreed to and signed by the Defendants and Winn Development, and the exclusive agreement prohibited Winn Development from entering into any other negotiations or discussions for the Property for a period of one (1) year.

24. Upon information and belief, the Defendants scheduled the foreclosure sale after the exclusive agreement was entered into for the benefit of the Defendants.

COUNT I - Imunctive Relief


25. The allegations of paragraphs 1-24 are hereby realleged and incorporated by reference herein.

26. The Plaintiffs contend that the payoff monies sought by the Defendants to cancel the foreclosure sale are illegal, invalid, outrageous and unconscionable.

27. The Plaintiffs contend that the Defendants negotiation of an exclusive agreement with Winn Development to sell the Plaintiffs Property prior to scheduling the foreclosure sale constituted a breach of the Defendants express and implied duty(s) to act in good faith and deal fairly with the Plaintiffs.

28. The Plaintiffs are suffering injury to their reputation and continue to suffer a loss of reputation as a result of the Defendants advertisement of the foreclosure sale.

29. The Plaintiffs will be irreparably harmed if the foreclosure sale is held.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Issue a temporary Restraining Order enjoining the Defendants, and their agents or employees, from advertising, preparing or holding the foreclosure sale scheduled for September 28, 1995, at 10:00 am;

B. After a hearing, issue a preliminary injunction and a permanent injunction enjoining the Defendants, and their agents or employees, from advertising, preparing or holding the foreclosure sale scheduled for September 28, 1995, at 10:00 am; and

C. Issue such other and further relief which this Court deems just and equitable.

COUNT II


30. The allegations of paragraphs 1-29 are hereby realleged and incorporated by reference herein.

31. The Defendants are illegally charging and receiving interest on monies from the Plaintiffs, which rate is in excess of twenty percent.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;
B. Invalidate and void the Notes;
C. Request that pursuant to M.G.L. c. 271, s. 49, the Attorney General's Office inspect the Notes and records maintained by the Defendants for purposes of filing a possible criminal proceeding;
D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and
E. Issue such other and further relief which this Court deems just and equitable.

COUNT III


32. The allegations of paragraphs 1-31 are hereby realleged and incorporated by reference herein.

33. M.G.L. c. 271, s. 49, the Criminal Usury Statute, provides in part that an individual may charge an interest rate in excess of twenty percent per annum, if the individual first provides notice of his intent to do the same, which notice is valid for a two year period.

34. Upon information and belief, the Defendants have failed since January 12, 1992 to notify the Attorney General's Office, Criminal Division, that they were charging and receiving interest and expenses on monies from the Plaintiffs in excess of twenty percent. See copy of what is believed to be Defendants last notification to Attorney General's Office attached hereto as Exhibit "D".

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;

B. Invalidate and void the Notes;

C. Request that pursuant to M.G.L. c. 271, s. 49, the Attorney General's Office inspect the Notes and records maintained by the Defendants for purposes of filing a possible criminal proceeding;

D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and

E. Issue such other and further relief which this Court deems just and equitable.
COUNT IV

35. The allegations of paragraphs 1-34 are hereby realleged and incorporated by reference herein.

36. M.G.L. c. 271, s. 49, the Criminal Usury Statute, provides in part that an individual who charges an interest rate in excess of twenty percent per annum must maintain records for each such transaction, which records include the name and address of the borrower, the amount borrowed, the interest and expenses to be paid by the borrower, the date the loan is made and the date or dates on which any payment is due.

37. Upon information and belief, the Defendants have failed to maintain the statutorily required records for the Notes.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Determine that the Defendants have violated M.G.L. c. 271, s. 49.;

B. Invalidate and void the Notes;

C. Request that pursuant to M.G.L. c. 271, s. 49, the Attorney General's Office inspect the Notes and records maintained by the Defendants for purposes of filing a possible criminal proceeding;

D. Award the Plaintiffs damages for the Defendants violation of the Criminal Usury Statute; and

E. Issue such other and further relief which this Court deems just and equitable.

COUNT V


38. The allegations of paragraphs 1-37 are hereby realleged and incorporated by reference herein.

39. The Defendants breach(s) of the Criminal Usury Statute and commencement of a foreclosure action based upon an illegal Note, constitute false and deceptive acts and practices, which have caused damage to the Plaintiffs

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Determine that the Defendants have violated M.G.L. c. 93A, Sect. 11;

B. Award the Plaintiffs double or treble damages for the Defendants actions in this matter;

C. Award the Plaintiffs their reasonable attorney fees and cost of this action; and

D. Issue such other and further relief which this Court deems just and equitable.
COUNT VI

40. The allegations of paragraphs 1-39 are hereby realleged and incorporated by reference herein.

41. The Defendants sudden refusal to accept monthly payments from the Defendants in July of 1995, coupled with the speedy institution of the foreclosure action constitutes an unfair and unconscionable change in the Defendants course of dealing with the Plaintiffs.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Award the Plaintiffs damages for the Defendants actions;
and

B. Issue such other and further relief which this Court deems just and equitable.

COUNT VII


42. The allegations of paragraphs 1-41 are hereby realleged and incorporated by reference herein.

43. The Defendants negotiation of an exclusive agreement with Winn Development to sell the Plaintiffs Property prior to scheduling the foreclosure sale constituted a breach of the Defendants express and implied duty(s) to act in good faith and deal fairly with the Plaintiffs.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Award the Plaintiffs damages for the Defendants actions;
and

B. Issue such other and further relief which this Court deems just and equitable.

COUNT VIII


44. The allegations of paragraphs 1-43 are hereby realleged and incorporated by reference herein.

45. The Defendants negotiation of an exclusive agreement with Winn Development to sell the Plaintiffs Property prior to scheduling the foreclosure sale constituted a breach of the Defendants fiduciary duty(s) to the Plaintiffs.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Award the Plaintiffs damages for the Defendants actions;
and

B. Issue such other and further relief which this Court deems just and equitable.
COUNT IX

46. The allegations of paragraphs 1-45 are hereby realleged and incorporated by reference herein.

47. The Defendants negotiation of an exclusive agreement with Winn Development to sell the Plaintiffs Property prior to scheduling the foreclosure sale constituted a breach of the Defendants express and implied duty(s) to act in good faith and with reasonable diligence in the exercise of the power of sale contained in the Plaintiff's mortgage.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Award the Plaintiffs damages for the Defendants actions;
and

B. Issue such other and further relief which this Court deems just and equitable.
COUNT X

48. The allegations of paragraphs 1-48 are hereby realleged and incorporated by reference herein.

49. The Defendants negotiation of an exclusive agreement with Winn Development to sell the Plaintiffs Property prior to scheduling the foreclosure sale constitute false and deceptive acts and practices, which have caused damage to the Plaintiffs.

WHEREFORE, the Plaintiffs, Alphonse Mourad and V & M Management, Inc., request that this Honorable Court:

A. Determine that the Defendants have violated M.G.L. c. 93A, Sect. 11;

B. Award the Plaintiffs double or treble damages for the Defendants actions in this matter;

C. Award the Plaintiffs their reasonable attorney fees and cost of this action; and

D. Issue such other and further relief which this Court deems just and equitable.

THE PLAINTIFFS DEMAND THEIR RIGHT TO A TRIAL BY JURY ON ALL ISSUES.

ALPHONSE MOURAD and V & M MANAGEMENT, INC. BY THEIR ATTORNEY,
Dated: September 29, 1995

JOHN F. WHITE, ESQ. B.B.O. # 558367
Law Offices of Lipman & White One Billings Road Quincy, MA 02171 (617) 328-5600
________________________________________________
James P. Dillon, Jr.
Attorney at Law

1 Billings Road
N. Quincy,MA 02171
Telephone (617) 472-6294 Fax (617) 472-6294

October 2, 1995

Mr. Alphonse Mourad V&M Management, Inc. 10 Hammond Street Koxbury, MA 02122

RE: V&.M Management, Inc. vs Judith Moriarty and Mario Nicosia, Trustees of L&.N First Mortgage Realty Trust

Dear Al:

This letter is to inform you that today I have filed V&.M Management's Motion to Supplement the Complaint with the Defendants in the above case.

The Supplemental Complaint as you know is based on the new facts that. came to light after the original complaint was filed. It was subsequently discovered that the defendant Mario Nicosia had an exclusive agreement with the Vinn Development Company to sell Mandela upon its foreclosure.

This exclusive agreement explains why the defendant's have refused to turn over the financial information that we have requested. Specifically, the exact payoff figures for the loan in question and how the hundreds of thousands of dollars that you have paid to Mario Nicosia have been applied to the six mortgages that you have with him.

The Supplemental Complaint alleges that this exclusive agreement is a false and deceptive act which violates the Consumer Protection Statute, G.L. c. 93A, s. 11 and has cause V&.M Management, Inc., severe monetary damage.

If you have any questions please feel free to contact my office.

JPD:jd Jd

Sincerely,
James P. Dillon, Jr., Esq.
__________________________________________________

Susan Allen
Investment Real Estate
100 Littlefield Road
Newton Centre, MA 02159
Tel: (617) 332-7587
Fox: (617] 964-6864

27 September 1995

Michael Ferry
Larry Curtis
Winn Development
Six Faneuil Hall Marketplace
Boston, MA 02109

Re: Westminster/Willard Apartments

Dear Michael and Larry:

As you know, I vas looking forward to the meeting with both of you and Al Mourad, the owner of Westminster/Willard. I can understand your disappointment too, given what just transpired within your office.

Al's first priority is to protect his tenants and have the property remain as affordable housing. Hence, my contacting you. Winn has always been, to me, the leader in affordable housing.

Our aim was to have a transaction that would have guaranteed that' the property remain affordable and be upgraded either via an outright sale or as a joint venture with Al.

I explained to Al the reason for the cancellation of today's appointment on site. He asked that you please keep the materials that I have sent, confidential, and not exchange them within the office, which you have al/ready assured me would be the case.

I look forward to complete resolution of the Mario Nicosia situation, satisfactory to Al Mourad, and then you and I can proceed.

Sincerely,
Susan Alien
cc: A.Mourad
________________________________________________
N. I. C. Management
560 Harrison Avenue
Boston. MA 02118 (617)451.2009

September 12, 1995

VIA COURIER
Mr. Arthur Winn
Winn Development
6 Faneuil Hall Marketplace
Boston, MA 02109

RE: Mandela Apartments, Boston, MA

Dear Mr. Winn:

An affiliate of mine has commenced the foreclosure action for the Mandela Apartments in Boston, MA, that is described in the attached, published legal notice. I am interested in forming a partnership with you or one of your affiliates to bid at this auction, to ultimately attempt to acquire the ownership of the Mandela Apartments.

In our work on this foreclosure to date, we have obtained a tremendous amount of information about this property, its legal and financial status, and the best possible strategy for completing the foreclosure. Although we would like to meet with you to discuss a potential partnership between us, we do not want to share any information with you unless you first agree to keep all shared information in strict confidence and to refrain from competing with us in trying to acquire the Mandela Apartments.

With the foreclosure auction scheduled for September 26. 1995, we have little time to complete a partnership with you. We would like to meet with you immediately and complete the partnership documentation by September 20, 1995. Between now and September 20, 1?95, I agree on behalf of myself and any of my affiliates, to refrain from engaging in any negotiations with any other prospective partners about the Mandela Apartments.

In exchange, I need for you and all your affiliates and consultants to agree to:

1. Keep all information that I provide you about the Mandela Apartments in strict confidence. This agreement would continue indefinitely beyond September 20, 1995.

2. Except pursuant to a partnership that we might form, refrain from attempting to purchase any equity or debt interest in the Mandela Apartments so long as I or any of my affiliates hold any equity or debt interest in tne Mandela Apartments.

Pg 2.


Thus, this letter serves as an agreement between us to negotiate in good faith to form a partnership with the purpose of acquiring the Mandela Apartments, as your confidentiality agreement, and as your agreement not to compete with me in my efforts to foreclose and gain possession of the Mandela apartments. Of course, neither you nor I would be legally bound to any partnership between us until all appropriate documentation has bsen drafted, agreed upon, and signed by both of us or by our affiliates.

As a part of our partnership negotiations, I can tell you from the outset that I need for cur partnership documents to provide for your purchasing my partnership interest in full, for a predetermined price and payment arrangement, shortly after we gain possession of the Mandela Apartments and have stabilized the^ property. Hence, ultimately, -within a short period of time following our gaining possession of the Mandela Apartments, Winn Development will own 100% of the property on its own.

I am sure you are aware that my affiliate, as mortgagee, owes a duty to the mortgagor to assure that the foreclosure sale is fair to the mortgagor and to use reasonable efforts to assure that the price obtained at the foreclosure sale approximates the true value of the property. I hope 'you agree with me that our partnership could be in very strong position to purchase this real estate for a fair value at the upcoming foreclosure auction.

If these terms are acceptable to you, please sign both originals of this letter in the space provided below, and return one original to me by courier today. If we do not receive your signed original today, we will present this same offer to another prospective partner. I look forward to the possiblity of working with you on this project.

Sincerely yours,
Mario Nicosia

AGREED AND ACCEPTED
Arthur Winn
cc: Roger J.F. Lehrberg, Esquire




Home | Contact Info