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Case Information
Filed
2023-01-17
Status
Open
Type
Miscellaneous|Mtb Try Title, G.l. Chapter 240, § 1 5
Docket
23 entries
Parties
Plaintiff
Mendoza, Sonia L.|Joseph, Jr., Frederick|Lopes, Dorothy
Defendant
Enos Pekarcik, Elaine|Jones Bent, Stephanie|Smith, Karen Joseph|Enos, Steven|Wainwright, Katherine T.|Krakowski, Lena|Ferdinand, Brenda|Joseph, Kenneth|Matsagas, Jason|Enos, Kenneth|Joseph, Melvin|Abraham, Sandra|Mahoney, Christine
Lawyers
Docket Entries
- Complaint filed.
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 437517 Date: 01/17/2023
- Land Court surcharge Receipt: 437517 Date: 01/17/2023
- Land Court summons Receipt: 437517 Date: 01/17/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Gerald A Phelps, Esq. [email protected] Sent On: 01/23/2023 14:09:33
- Event Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 02/13/2023 Time: 02:45 PM (via videoconference) Case Management Conference Notice and Order was generated and sent to: Plaintiff: Gerald A Phelps, Esq. [email protected] Sent On: 01/23/2023 14:12:46
- Corrected Case Caption Page (for Complaint), filed by email.
- Plaintiff Sonia L. Mendoza, Frederick Joseph, Jr., Dorothy Lopes Motion for Appointment of a Special Process Server filed. Harold L. March of Whitcomb & Associates, Constables, as process servers.
- Plaintiffs' Answer to Counterclaim (of defendants Elaine Enos-Pekarcik, Stephanie Jones-Bent, Karen Joseph Smith, Steven Enos, Katherine Wainwright, Lena Krakowski, and Kenneth Enos), filed.
- Notice of Docket Entry: February 8, 2023. Motion for Appointment as Process Server, APPROVED. (Patterson, Rec.) Judge: Patterson, Deborah J. Notice of Docket Entry was generated and sent to: Plaintiff: Gerald A Phelps, Esq. [email protected] Sent On: 02/08/2023 13:21:05
- Event Resulted: Case Management Conference scheduled on: 02/13/2023 02:45 PM Has been: Held via video Hon. Gordon H. Piper, Presiding February 13, 2023. Case management conference held via videoconference. Attorney Gerald Phelps, Esq. appeared for plaintiffs. Attorney Leonard Enos, Esq. appeared for defendants Elaine Enos-Pekarcik, Stephanie Jones-Bent, Karen Joseph Smith, Steven Enos, Katherine Wainwright, Lena Krakowski, and Kenneth Enos. Despite notice, the remaining defendants did not participate. This case is an attempt by the plaintiffs to resolve irregularities in the title to the subject property located at 16 West Vine Street, Provincetown, Massachusetts ("Property"). The last record title holder to the Property was one Lena Joseph, who Attorney Enos reported had died in the 1950s. Counsel for plaintiffs has not located a probate case or adjudication of heirs for Lena Joseph, but has proceeded on the assumption that the Property would have passed to Lena's eight children through intestacy. The parties to this action are various relatives and spouses of relatives of Priscilla "Sally" Joseph, the last-surviving child of Lena Joseph, who herself died in 2014. Plaintiffs contend that by the time she died Sally had acquired full title to the Property through a theory of either adverse possession or ouster. A tax title foreclosure case concerning this Property, Case No. 18 TL 001912, currently is open in the court, with the Town of Provincetown the plaintiff. Counsel reported that the Property is uninhabitable, and that the taxes owed on the Property, as claimed by the municipality in the related tax lien case, may amount to approximately $155,000.00. Attorney Enos estimated, without further support, that the Property was worth about a million dollars. The court cautioned that due process requires exhaustive research into the adjudicated or intestate heirs and successors of Lena Joseph, with appropriate notice of this action given to all heirs. Given that she died many years ago, there are many putative or actual heirs and successors, extending over the generations, who need to be identified and whose identity, location, status needs to be investigated and addressed; for those who themselves have passed away, their ensuing heirs and successors need to be traced down before there is confidence about the current state of ownership and the adequacy of efforts to notify interested parties and afford them the opportunity to participate in this action. While Attorney Enos has conducted limited research into probate records, further investigation is called for before the court can proceed to make any global determination as to rights in the Property, who might hold them currently, and how they might be given notice of this proceeding. Appropriate investigation should identify all heirs of Lena Joseph, determine which heirs are still living, and identify any living heir's fractional interest in the Property. Court noted that any title search conducted in the tax lien case would, according to statute and the Land Court's protocols, have been abbreviated, and likely insufficient to satisfy due process requirements in this case. Counsel were informed that a judgment limited in its scope and effect only to the parties actually named in and served in this action would be possible, but that such judgment would resolve the question of record title to the Property only as to those named parties, and would not be binding on any heirs and successors of Lena Joseph (or others with a title interest in the Property) who are not party to this action. Counsel advised to caucus with each other and their respective clients and formulate a plan of action that would entail either proceeding to seek a judgment limited to the current named parties, or conducting further investigation into all actual and putative heirs and successors of Lena Joseph. Any additional heirs that could be located would then need to be joined in this case and properly served with process. Upon completion of that investigation, Attorney Phelps would submit an application for alternative service by publication, supported by affidavits showing diligent search, which the court would rule on with or without hearing. The court noted that alternatively, if the investigation to identify, locate and serve all heirs and successors would not be prompt enough for the parties, the parties could seek to redeem the Property in the tax lien case to preserve the Property and the right of redemption, advancing the necessary funds to do so, and then continue their efforts at determining record ownership thereafter. Mr. Enos indicated that the defendants he represents are engaged in a mutual effort with the plaintiffs to resolve the Property's title issues, and to preserve the asset now facing tax lien foreclosure. Counsel to file written report with the court by April 13, 2023. The report is to indicate how counsel intend to proceed with this case, noting what efforts have been undertaken to determine, locate, and serve heirs and successors of Lena Joseph. Report additionally to discuss what communications have been had with municipal counsel in the tax lien case, and to indicate what the status of that case is in light of these proceedings and any heir investigation undertaken by counsel. Any request for a stay or otherwise affecting the progress of the tax lien case would need to be made and considered within that case, given the need for the Town and others interested to participate. Counsel agreed to electronic service of filings as between themselves and their clients. Counsel advised to direct all communication with the court to sessions clerk Attorney Nicole Foster. Filings to be made electronically and by mailing of hard copies to the court, with indication that electronic filings were made simultaneously. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Gerald A Phelps, Esq. [email protected] Defendant: Leonard E Enos, III, Esq. [email protected] Sent On: 02/17/2023 08:35:20
- Joint Case Management Conference Joint Statement, filed (filed by email on Feb. 10, 2023).
- Answer and Counterclaim of defendants Elaine Enos-Pekarcik, Stephanie Jones-Bent, Karen Joseph Smith, Steven Enos, Katherine Wainwright, Lena Krakowski, and Kenneth Enos, filed by email.
- Answer and Counterclaim of Christine Mahoney, filed by email.
- Report of Defendants and Plaintiffs in Counterclaim, filed by email.
- Exhibit A to Report of Defendants and Plaintiffs in Counterclaim, filed by email.
- Exhibit B to Report of Defendants and Plaintiffs in Counterclaim, filed by email.
- (Plaintiffs') Report to Court, filed.
- Motion for Service by Publication, filed.
- Affidavit of Diligent Search in Support of Motion for Service by Publication, filed.
- Motion to Amend Complaint, filed.
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