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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2023-05-30
Status Closed
Type Par Partition, G.l. Chapter 241
Docket 70 entries
Disposition judgment entered

Parties

Plaintiff Latessa, Anthony J.
Defendant Latessa, Zafir N.

Lawyers

Docket Entries

  1. Judgment Confirming Partition entered. (Copies emailed to Attorneys MaryAnne McGonagle, James Berg, Laurel Bretta, and Pro Se Defendant Zafir Latessa) Judge: Rubin, Hon. Diane R.
  2. Case assigned to the Fast Track per Land Court Standing Order 1:04.
  3. Land Court miscellaneous filing fee Receipt: 441414 Date: 05/30/2023
  4. Land Court surcharge Receipt: 441414 Date: 05/30/2023
  5. Land Court summons Receipt: 441414 Date: 05/30/2023
  6. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  7. The case has been assigned to the F Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Freya A Shoffner, Esq. [email protected] Sent On: 06/07/2023 12:29:00
  8. Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 07/07/2023 Time: 02:00 PM Counsel notified via email.
  9. Summons returned to Court with service on Zafir N. Latessa filed. Served at the last and usual place of abode and by mailing first class mail on June 13, 2023.
  10. Plaintiff's Motion to Amend Complaint, filed and ALLOWED. Counsel to file their Amended Complaint. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  11. Case Management Conference Joint Statement, filed.
  12. Amended Complaint, filed.
  13. Event Resulted: Case Management Conference scheduled on: 07/07/2023 02:00 PM Has been: Case management conference held via videoconference. Attorney Freya Shoffner appeared on behalf of the petitioner, and respondent Zafir Latessa appeared pro se. Court requested that Ms. Latessa file a Notice of Appearance in this case as soon as practicable. Counsel and respondent advised that respondent Zafir Latessa recently filed a Chapter 13 bankruptcy petition, and that the property at issue is part of the bankruptcy estate, with petitioner as a non-debtor co-owner. Accordingly, this case is STAYED until further order of the court. Parties to file a joint status report by October 31, 2023, and every three months thereafter, on the last business day of the month, advising as to the status of the bankruptcy proceeding and any other matters benefitting from the court's attention. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  14. SUGGESTION OF BANKRUPTCY, FILED.
  15. Appearance of Pro Se for Zafir N. Latessa, filed
  16. Atty. Shoffner emailed the court an update on the Bankruptcy case: "Today the mortgage lender is bringing a motion for relief from the automatic stay. If that is granted, then I should be able to work with the lender's counsel to force the sale of the property under the umbrella of the partition action. If not, I will bring Mr. Latessa's motion for relief from stay and, if that is granted then we can proceed with the partition action."
  17. Appearance of James P. Berg, Esq. for M&T Bank, filed
  18. Atty. Shoffner emailed the court a status: "The Bankruptcy Court allowed Mr. Latessa's Motion for Relief From Stay. And, Zafir Latessa's bankruptcy case will be dismissed by the Bankruptcy Court on February 15. This means that we can go ahead with the Partition Action. My next step, which I believe will be joined by the Mortgage Lender, will be to ask the Land Court to appoint a Master so that the sale of the property can proceed."
  19. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 04/10/2024 Time: 10:30 AM Counsel and Pro Se Defendant notified via email.
  20. Event Resulted: Status Conference scheduled on: 04/10/2024 10:30 AM Has been: Rescheduled to May 8, 2024 at 10:00 am, at the request of the parties and by agreement of the court. A Joint Status Report will be filing by May 1, 2024. Hon. Diane R. Rubin, Presiding
  21. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 05/08/2024 Time: 10:00 AM Counsel and Pro Se litigant notified via email.
  22. Appearance of MaryAnne McGonagle, Esq. for Anthony J. Latessa, filed
  23. Joint Status Memorandum, filed.
  24. Plaintiff's Motion to Appoint Partition Commissioner, filed.
  25. Amended Joint Status Memorandum, filed.
  26. Event Resulted: Status Conference scheduled on: 05/08/2024 10:00 AM Has been: Status conference held via videoconference. Attorney Mary Anne McGonagle appeared on behalf of petitioner, and Attorney James Berg appeared on behalf of M&T Bank, as servicer for Lakeview Loan Servicing. Respondent Zafir Latessa did not appear, although she had filed a notice of appearance. Court is in receipt of Joint Status Memorandum, Plaintiff's Motion to Appoint Partition Commissioner, and Amended Joint Status Memorandum. Attorney McGonagle advised that the respondent's bankruptcy had been dismissed and the partition was ready to go forward. Attorney McGonagle reported that she had been in communication with the respondent, who is living at the property with the parties' three children. Counsel further advised that there appeared to be ample equity in the property, Attorney Berg advising that the current payoff figure was approximately $315,000.00. Following colloquy, court to issue an interim order appointing partition commissioner. Status conference scheduled for July 17, 2024, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel and Pro Se defendant notified via email.
  27. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 07/17/2024 Time: 09:30 AM
  28. In accordance with SJC Rule 1:07, the following fee generating appointment was made: Paul F McDonough, Jr., Esq. appointed as Partition Commissioner (Southern Counties) On 05/09/2024 by Hon. Diane R. Rubin Appointment Terminated on 08/28/2024
  29. Interim Order Appointing Paul F. McDonough, Jr., Esq., Partition Commissioner, 170 Old Farm Rd, Hanover, MA, issued. (Copies emailed to Attorneys MaryAnne McGonagle, James Berg, Paul McDonough, and Pro Se Respondent Zafir Latessa) Judge: Rubin, Hon. Diane R.
  30. Commissioner's Return of Oath, filed.
  31. Estimate of Fee to be Incurred in Connection with the above captioned Land Court Partition Matter, filed.
  32. Motion to Continue Status Conference, filed.
  33. Motion to Continue Status Conference ALLOWED. Status Conference Continued to August 22, 2024 at 9:30 am via zoom. Counsel and Pro Se litigant notified via email. Judge: Rubin, Hon. Diane R.
  34. Event Resulted: Status Conference scheduled on: 07/17/2024 09:30 AM Has been: Continued For the following reason: Request of all Parties Hon. Diane R. Rubin, Presiding
  35. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 08/22/2024 Time: 09:30 AM Counsel and Pro Se litigant notified via email.
  36. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 08/07/2024 Time: 10:30 AM Counsel and Pro Se litigant notified via email.
  37. Commissioner's First Interim Report, filed. (Unsigned)
  38. Event Resulted: Status Conference scheduled on: 08/07/2024 10:30 AM Has been: Status conference held via videoconference. Attorney MaryAnn McGonagle appeared on behalf of plaintiff, and Zafir Latessa appeared pro se. Court is in receipt of the Estimate of Fee to be Incurred in Connection with the above captioned Land Court Partition Matter, Commissioner's Motion to Issue a Warrant for Sale along with a proposed purchase and sale agreement, and Commissioner's First Interim Report. Court first expressed great concern that the commissioner retained a broker, received an offer for purchase, and executed a purchase and sale agreement prior to filing any report to the court (including for instance an Interim Report per the court's Interim Order) and prior to requesting or receiving a warrant for sale. Parties reported, however, that each was satisfied with the offer and wished to proceed with the sale. Court advised that the proposed purchase and sale agreement must be amended to ensure that no representations or warranties will survive closing and that the property will be sold "as is." Court asked whether parties had accounting claims, which Attorney McGonagle said that the plaintiff may choose to assert such claims in relation to the condition of the property and non-payment of the mortgage. Following colloquy, Attorney McGonagle to advise the court whether petitioner agreed to split the net sale proceeds equally so that they could be distributed directly from sale without need for a bond. Upon receipt of a motion to endorse revised purchase and sale agreement, court to issue a warrant for sale. Further and as soon as practicable, Attorney McGonagle to work with the Commissioner to amend the proposed purchase and sale agreement and communicate with the buyer's counsel. Court further instructed counsel and the Commissioner of the need for the court to issue a final judgment upon receipt of the Commissioner's closing and sales report and return of oath, for recordation, so the case can be closed. Hon. Diane R. Rubin, Presiding Counsel and Pro Se litigant notified via email.
  39. Event Resulted: Status Conference scheduled on: 08/22/2024 11:00 AM Has been: Status conference held via videoconference. Attorney MaryAnn McGonagle appeared on behalf of plaintiff, and Zafir Latessa appeared pro se. Commissioner Paul McDonough was also present, as was Attorney James Berg on behalf of interested party M&T Bank. Attorney McGonagle reported that she had revised the purchase and sale agreement as directed by the court and shared with buyer's counsel. When presented with the revised agreement, however, the proposed buyer dropped his offer to $425,000.00, which Attorney McGonagle attributed to removal of the as to title. Following colloquy, Attorney McGonagle to contact buyer's counsel and attempt to further negotiated a mutually agreeable modification without a decrease in purchase price. Status conference scheduled for August 23, 2024, at 11:30 A.M., with buyer's counsel invited to attend. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  40. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 08/23/2024 Time: 11:30 AM Counsel and Pro Se litigant notified via email.
  41. Event Resulted: Status Conference scheduled on: 08/23/2024 11:30 AM Has been: Status conference held via videoconference. Attorney MaryAnn McGonagle appeared on behalf of plaintiff, and Zafir Latessa appeared pro se. Commissioner Paul McDonough was also present, as was Attorney James Berg on behalf of interested party M&T Bank, and Attorney Lincoln Kaiser for the prospective buyer. Court and counsel discussed the terms of the purchase and sale agreement and clarified that the court need only ensure that no warranties or obligations survive closing, particularly as to matter that are not of record. Attorney Kaiser agreed to bring the revised terms to the prospective buyer so as to avoid putting the Property back on the market. By August 27, 2024, parties to file a joint status report updating the court of any relevant matters so that the court can approve a revised and hopefully final purchase and sales agreement or, alternatively, schedule a status conference to discuss how to proceed to return the Property to the market. In light of the difficulties that have arisen in this case owing to the failure of Commissioner McDonough to comply with the court's Interim Order of May 13, 2024 (as discussed in prior docket entries), and to effectively oversee the negotiation, drafting, and execution of a court-approved purchase and sales agreement, the court invites the parties to advise as to the advisability of revoking the interim order issued to Commissioner McDonough and whether it is necessary and/or prudent to appoint a new Commissioner. The court concludes that legal fees for two hours of billable time (or $750.00 ) are sufficient compensation for Commissioner McDonough's work to date, to be paid at closing. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  42. Atty. McGonagle filed a Revised P&S which the court APPROVES. Parties to advise the court whether they want to proceed privately to close the sale with a stipulation of dismissal to follow (in which case the court will revoke the interim order), or file a motion for issuance of warrant to sale to the Commissioner. Counsel and Pro Se litigant notified via email. Judge: Rubin, Hon. Diane R.
  43. Atty. McGonagle emailed the court a status: "In follow-up to Attorney Kaiser's email that his client is not going forward with the closing, I am requesting that the Court schedule a status conference for the parties. Paul McDonough has indicated to me that he intends to resign as Partition Commissioner. I would ask that he confirm his status; and in anticipation of his resignation, I would like to present a motion for the appointment of a new commissioner so that the parties can move ahead with the sale of the property."
  44. Commissioner's Motion to Withdraw, filed.
  45. Atty. McGonagle emailed the court: "I assent to the Commissioner's Withdrawal; I do not assent to any change to Commissioner fees, including but not limited to the crediting of fees to Respondent for costs incurred."
  46. Commissioner's Motion to Withdraw ALLOWED. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  47. In accordance with SJC Rule 1:07, the following fee generating appointment was made: Jan E Dabrowski, Esq. appointed as Partition Commissioner (Southern Counties) On 08/28/2024 by Hon. Diane R. Rubin Appointment Terminated on 08/28/2024. Turned down appointment. Judge: Rubin, Hon. Diane R.
  48. In accordance with SJC Rule 1:07, the following fee generating appointment was made: Edward Foley Vaughan, Esq. appointed as Partition Commissioner (Southern Counties) On 08/28/2024 by Hon. Diane R. Rubin Appointment Terminated on 08/29/2024. Responded saying he is not taking any more cases as he is retired. Judge: Rubin, Hon. Diane R.
  49. Petitioner's Motion to Appoint New Commissioner, filed.
  50. In accordance with SJC Rule 1:07, the following fee generating appointment was made: Laurel E Bretta, Esq. appointed as Partition Commissioner (Southern Counties) On 08/29/2024 by Hon. Diane R. Rubin
  51. Commissioner McDonough emailed the court: "Please amend my motion, as requested by counsel to delete the reference to crediting my Fe or any portion to the respondent."
  52. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 08/30/2024 Time: 02:00 PM VIA ZOOM. Counsel and Pro Se litigant notified via email.
  53. Event Resulted: Status Conference scheduled on: 08/30/2024 02:00 PM Has been: Status conference held via Zoom. Attorney Mary Anne McGonagle appeared on behalf of petitioner, Attorney James Berg appeared on behalf of M&T Bank, as servicer for Lakeview Loan Servicing, and respondent Zafir Latessa appeared pro se. Terence DeLuca, on behalf of Jack Conway and Co., and Attorney Bretta also appeared, the latter as proposed Commissioner to succeed Attorney Paul McDonough who has withdrawn as Commissioner. The Court, having allowed the Attorney McDonough motion to withdraw, now revokes the Interim Order issued to him on May 13, 2024. The court notes that the Purchase and Sale Agreement entered into between Attorney McDonough and potential buyer had not been authorized by the Court (with no warrant for sale having issued or been requested), and thus has no effect. Likewise, the real estate broker's agreement executed by Attorney McDonough is of no force or effect, as unauthorized. The court and those in attendance then discussed how to proceed, with both petitioner and respondent concurring that they would like the court to appoint a new commissioner to proceed to sell the property expeditiously. Accordingly, following colloquy, Court to appoint Attorney Laurel Bretta to serve as commissioner and issue an Interim Order of Due Diligence to Commissioner Bretta. Commissioner Bretta's due diligence to include among other matters, exploring the possibility of entering into a mutually agreeable purchase and sale with previous buyer, with terms acceptable to the court, the court noting any sale agreement must be subject to the court's approval and the purchase and sale agreement must make clear that no obligations of the seller will survive closing. Lastly, Mr. DeLuca will endeavor to secure the necessary signatures so that the deposit he hold may be returned to the previous buyer. Status conference scheduled for September 10, 2024, at 3:00 p.m. Hon. Diane R. Rubin, Presiding Counsel and Pro Se litigant notified via email.
  54. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 09/10/2024 Time: 03:00 PM
  55. interim Order Appointing Laurel Bretta, Esq., Partition Commissioner, for Property at 170 Old Farm Road, Hanover, MA, issued. (Copies emailed to Attorneys MaryAnne McGonagle, James Berg, Laurel Bretta, and Pro Se Defendant Zafir Latessa) Judge: Rubin, Hon. Diane R.
  56. First Interim Report of Partition Commissioner, Laurel E. Bretta, Attorney, filed.
  57. Event Resulted: Status Conference scheduled on: 09/10/2024 03:00 PM Has been: Status conference held via videoconference. Attorney James Davis appeared on behalf of petitioner, Anthony Latessa, who was present, Attorney James Berg appeared on behalf of M&T Bank, as servicer for Lakeview Loan Servicing, Commissioner Bretta appeared, and respondent Zafir Latessa appeared pro se. Terence DeLuca, on behalf of Jack Conway and Co. Court is in receipt of First Interim Report of Partition Commissioner, Laurel E. Bretta. Commissioner first provided an update on the status of readying the property for sale. Court discussed with parties the terms of a warrant for sale, with property to be listed at $529,000, with a minimum sales price of $500,000. All parties agreed that the net sales proceeds to be split equally so as to eliminate the need for a bond and permit for distributions directly from closing. Court to issue a Warrant for Sale to Commissioner. Status conference scheduled for October 22, 2024, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  58. Warrant to Commissioner Laurel Bretta, Esq., to Sell by Private Sale 170 Old Farm Road, Hanover, MA, issued. (Copies emailed to Attorneys MaryAnne McGonagle, James Berg, Laurel Bretta, and Pro Se Defendant Zafir Latessa) Judge: Rubin, Hon. Diane R.
  59. Commissioner's Return of Oath, filed.
  60. Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 10/22/2024 Time: 09:30 AM
  61. Interim Partition Commissioner Laurel E. Bretta, Attorney's Status Report, filed.
  62. Event Resulted: Status Conference scheduled on: 10/22/2024 09:30 AM Has been: Status conference held via videoconference. Attorney MaryAnne McGonagle appeared on behalf of petitioner, Attorney James Berg appeared on behalf of M&T Bank, as servicer for Lakeview Loan Servicing, Commissioner Bretta appeared, and respondent Zafir Latessa appeared pro se. Terence DeLuca, on behalf of Jack Conway and Co. Court is in receipt of Commissioner's Return of Oath and Interim Partition Commissioner Laurel E. Bretta, Attorney's Status Report. Following colloquy, court approved the purchase and sale agreement subject to requirement that no representations or warranties will survive closing, with exception of the buyer's access waiver in paragraph five of the rider. Court again confirmed the net sales proceeds to be split equally so as to eliminate the need for a bond and permit for distributions directly from closing. After closing, commissioner to file final report and return of commissioner's warrant. Hon. Diane R. Rubin, Presiding Counsel notified via email.
  63. Partition Commissioner, Laurel Bretta, Attorney's Motion to Approve Commissioner's Fees and Expenses, filed.
  64. Notice of Docket Entry: The court is in receipt of "Partition Commissioner, Laurel Bretta, Attorney's Motion to Approve Commissioner's Fees and Expenses" that was efiled with the court. Any Oppositions should be filed by the end of the business day tomorrow, Thursday, October 31, 2024. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  65. Report and Return of Warrant of Partition Commissioner, Laurel E. Bretta, Attorney, filed.
  66. Notice of Docket Entry: Court is in receipt of Report and Return of Warrant of Partition Commissioner, Laurel E. Bretta, Attorney, filed on December 4, 2024, as well as Commissioner's email report that the closing took place, all is good, the closing attorney would not wire funds, the checks arrived Monday, she deposited on Tuesday and will wait 10 days to clear and distribute. Court requests that Commissioner file a final Sales and Closing Report by December 18, 2024, together with her return of warrant and motion for final judgment. Counsel notified via email. Judge: Rubin, Hon. Diane R.
  67. Final Report and Return of Warrant of Partition Commissioner, Laurel E. Bretta, Attorney, filed.
  68. Affirmation by Partition Commissioner, Laurel E. Bretta, Attorney, filed.
  69. Partition Commissioner's Motion for Final Judgment Confirming Partition of 170 Old Farm Road, Hanover, Massachusetts filed.
  70. CORRECTED Final Report and Return of Warrant of Partition Commissioner, Laurel E. Bretta, Attorney, filed.

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