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Case Information
Filed
2023-01-24
Status
Closed
Type
Cot Remove Cloud On Title, G.l. Chapter 240, 6 10
Docket
22 entries
Disposition
judgment entered
Parties
Plaintiff
Fieldman, Janice M.|Fieldman, Bruce
Defendant
Herman, Matthew N.|Lottatore, Patricia H.|Block, Deborah H.|Herman (heirs, Etc.), Marjorie S.
Lawyers
Docket Entries
- omplaint filed.
- ase assigned to the Average Track per Land Court Standing Order 1:04.
- and Court miscellaneous filing fee Receipt: 437698 Date: 01/24/2023
- and Court surcharge Receipt: 437698 Date: 01/24/2023
- and Court summons Receipt: 437698 Date: 01/24/2023
- niform Counsel Certificate for Civil Cases filed by Plaintiff.
- he case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Robert J Moriarty, Jr., Esq. [email protected] Plaintiff: Patrick M Delaney, Esq. [email protected] Sent On: 01/31/2023 09:22:01
- vent Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 02/28/2023 Time: 11:50 AM (via videoconference) Case Management Conference Notice and Order was generated and sent to: Plaintiff: Robert J Moriarty, Jr., Esq. [email protected] Plaintiff: Patrick M Delaney, Esq. [email protected] Sent On: 01/31/2023 09:24:34
- ummons returned to Court with service on Patricia H. Lottatore filed. Service made on February 6, 2023 by leaving a copy of the summons, complaint, case management conference notice and notice of judge and tracking order at the last and usual place of abode of the defendant, Patricia H. Lottatore.
- cceptance of Service by defendant Deborah H. Bloch on February 13, 2023, filed.
- cceptance of Service by defendant Matthew N. Herman on February 10, 2023, filed.
- cceptance of Service by defendant Patricia H. Lottatore on February 15, 2023, filed.
- laintiffs' Case Management Conference Joint Statement, filed.
- vent Resulted: Case Management Conference scheduled on: 02/28/2023 11:50 AM Has been: Held via video Hon. Gordon H. Piper, Presiding February 28, 2023. Case management conference held via videoconference. Attorneys Robert Moriarty, Esq. and Patrick Delaney, Esq. appeared for plaintiffs. The locus at issue in this case, a condominium unit in the Chestnut Hills Towers, is the subject of a partition action involving the defendants. In that case, Fieldman v. Fieldman, 21 MISC 000596, the common owner parties had reached a resolution that called for sale of the locus to a third party on agreed terms. After arranging for sale of the locus, the parties were confronted with title problems that precluded resolution of the partition case and necessitated the bringing of this claim to resolve the title issues. The title issues arise from the ownership of the unit by members of the Herman family, the Fieldman family's presumed predecessor in title. The partition action has been stayed to permit the prosecution of this action, with the understanding that, should the plaintiffs in this title action prevail, the parties to the partition action would without delay proceed to consummate their settlement. In 1987, Marjorie S. Herman, who held record title to the unit individually, executed a deed conveying the locus from herself individually to herself as purported trustee of the Marjorie S. Herman Trust. At that time, there was no declaration of trust recorded with the deed, nor description of any other record location of an instrument establishing that trust. It appears that the trust instrument was not of record at the time of the 1982 conveyance. Attorney Moriarty contended that under the indefinite reference statute, G. L. c. 184, 25, title at this point would have passed to Marjory Herman individually because of the failure to correctly establish and identify the purported grantee trust, it not being of record. Marjorie died in 1988. Marjorie's surviving husband, Nathan, asserted status as trustee of the trust and was personal representative of Marjorie's estate. Attorney Moriarty confirmed that upon Marjorie's death in Florida, no ancillary probate proceedings were ever brought in Massachusetts courts. Proceeding under the view that, due to the indefinite reference statute, title to the locus would resided in Marjorie individually at the time of her death, title would then have passed on Marjorie's death to her husband Nathan. In 1991, Nathan purported to convey the locus from himself as personal representative to himself as purported successor trustee of the Marjorie S. Herman trust. However, Marjorie died in Florida, and no ancillary probate proceedings adjudicating Marjorie's estate were ever brought in Massachusetts, casting doubt on Nathan's ability to act as personal representative respecting the real property in Massachusetts. Nathan in 1991conveyed title to the locus to the elder Fieldmans, parents of and predecessors in title to the plaintiffs. Given the infirmities in the creation of the Marjorie S. Herman Trust and in the conveyance to the trustee of that trust of title to the locus, and given the lack of clear authority for Nathan to convey real property in Massachusetts as personal representative, it is necessary for plaintiffs to identify any potential heirs and successors of Marjorie who may have taken from her at her death. Attorney Moriarty explained that the plaintiffs are basing their claim for relief on the theory that the members of the Fieldman family have adversely possessed the locus sufficiently to have acquired fee title to the locus irrespective of these earlier issues in the chain of record title. After colloquy with Attorney Moriarty, the court was satisfied that Attorney Moriarty has thoroughly investigated any such heirs or successors and identified them as the three issue of Nathan and Marjorie Herman. All three children have been named as defendants in this case, have been personally served in this case, and have executed signed statements accepting service and acknowledging that they do not intend to defend or oppose the relief being sought in this proceeding. None of the defendants have filed an answer or otherwise appeared in this case. Attorney Moriarty was instructed to submit a motion for default judgment under Mass. R. Civ. P. 55(b)(2), supported by affidavit(s) setting forth the state of title and demonstrating the plaintiffs' entitlement to relief under the theory of adverse possession, as well as a proposed form of judgment. The defendants having assented to entry of judgment as requested by plaintiffs, no hearing on plaintiff's anticipated motion for default judgment will be scheduled. 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: Robert J Moriarty, Jr., Esq. [email protected] Plaintiff: Patrick M Delaney, Esq. [email protected] Sent On: 03/01/2023 11:25:20
- ffidavit of Plaintiff Bruce S. Fieldman, filed.
- equest for Default pursuant to Mass. R.Civ.P.55(a) on Defendant Matthew N. Herman, Patricia H. Lottatore, Deborah H. Block, Marjorie S. Herman (Heirs, etc.), filed.
- ffidavit of Plaintiff Janice M. Fieldman, filed.
- ffidavit of Patrick Delaney, filed.
- ffidavit as to Military Service, filed.
- otion for Default Judgment Pursuant to 55(b), filed.
- Proposed) Default Judgment, filed.
- efendant Matthew N. Herman, Patricia H. Lottatore, Deborah H. Block, Marjorie S. Herman (Heirs, etc.) defaulted pursuant to Mass. R.Civ. P. 55(a). (Patterson, Rec.) Judge: Patterson, Deborah J.
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