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Case Information
Filed
2021-12-15
Status
Closed
Type
Mti Complaint Transferred To The Land Court Under Chap. 211 B, 9
Docket
34 entries
Disposition
judgment entered
Parties
Plaintiff
120 24 Broadway Newburgh Inc.|Link Realty Inc.|119 Broadway Newburgh, Inc.
Defendant
Davis, Iv, Charles C.|Davis (heirs, Etc.), Cheryl L.|Shaw, Hugh|Unknown Trustees Of The Lazarus Foundation
Lawyers
Docket Entries
- udgment entered. (Copies emailed to Attorneys Jacqueline Price, Thomas Looney, James Marsh, and David Kiah) Judge: Piper, Hon. Gordon H.
- omplaint filed.
- hief Justice of the Trial Court Order of Transfer dated November 16, 2021.
- anuary 5, 2022. The Land Court is in receipt of the file from Bristol Superior Court in 120-24 Broadway Newburg Inc., et al. v. Charles C. Davis IV, et al. The case is transferred to the Land Court and has been assigned Land Court docket number 21 MISC 000622 (GHP). The parties are ordered to confer and file by January 25, 2022 a comprehensive joint written status report, which outlines the collective or individual views of the parties on the steps needed for the court to adjudicate these cases. Based on the report received, the court will schedule a status and scheduling conference, if needed, or issue an order setting new deadlines. (Piper, C.J.) Judge: Piper, Hon. Gordon H.
- otion to Substitute Parties, filed.
- oint Status Report, filed (by email).
- vent Scheduled Judge: Piper, Hon. Gordon H. Event: Case Management Conference Date: 02/17/2022 Time: 03:15 PM
- vent Resulted: Case Management Conference scheduled on: 02/17/2022 03:15 PM Has been: Held via telephone February 17, 2022. Hearing and status conference in Case No. 20 MISC 000579 and Case Management Conference in related Case No. 21 MISC 000622 held, all via telephone. Attorney James Marsh appeared for Sarah Petitpas, Alan Davis, and Susan Davis. Attorney David Kiah appeared for Hugh Shaw and Charles Davis, IV. Attorneys Thomas Looney and Jacqueline Price appeared for Link Realty, Inc., 119 Broadway Newburgh, Inc., 120-24 Broadway Newburgh, Inc., and Lopez Capital Group LLC. With no party opposing the requested substitution, court ALLOWED Motion to Substitute filed on January 18, 2022; Lopez Capital Group LLC, having succeeded to the mortgagee's interests in the properties at issue, is hereby substituted for plaintiffs Link Realty, Inc., 119 Broadway Newburgh, Inc., and 120-24 Broadway Newburgh, Inc. in Case No. 21 MISC 000622, and for the same parties in their capacities as defendants in Case No. 20 MISC 000579. Counsel agreed that decisions on the merits of the two cases should be sequenced so that Case No. 21 MISC 000622 (the case transferred to the Land Court from the Superior Court, Bristol County, which concerns the record title trust transactions and will address the identity of the current record title holder of the property) is decided first, with the claim for title by adverse possession in Case No. 20 MISC 000579 then to be decided after the threshold question of the state of record title is resolved fully. Attorney Looney and Attorney Kiah indicated their belief that the record title issue may be decided properly on summary judgment. Attorney Marsh confirmed that Sarah Petitpas, Alan Davis, and Susan Davis, the plaintiffs in the adverse possession action, likely will be taking a passive role in the litigation of the question of the record title holder's identity. Court declined to consolidate the two related cases at this time, concluding that the issues involved are sufficiently distinct, and that scheduling the cases along parallel tracks without formal consolidation may well facilitate the entry of a separate judgment in Case No. 21 MISC 000622 as soon as the discrete issue in that case is decided. By agreement of all counsel, all discovery in both cases to close May 31, 2022. By close of discovery, parties to submit joint report stating that discovery is complete, detailing what discovery has been taken, and which either (1) reports intent to file dispositive motion(s) in Case No. 21 MISC 000622, indicates who first will file, and as to what issue(s); the first such motion to be filed by June 30, 2022, with Land Court Rule 4 to govern content of that filing and timing and content of subsequent filings; or (2) if no party intends to file dispositive motion, parties in their joint report to request pretrial conference, in either Case No. 21 MISC 000622 or in both cases. (Piper, C.J.) Hon. Gordon H. Piper, Presiding Notice sent via email to the following parties: James Woodworth Marsh, Esq., David F. Kiah, Esq., Jacqueline M. Price, Esq. and Thomas M. Looney, Esq.
- laintiff's Status Report, filed.
- laintiff's Motion for Summary Judgment, filed.
- laintiff's Brief In Support of Its Motion for Summary Judgment, filedl.
- laintiff's Statement of Material Facts In Support of the Motion for Summary Judgment, filed.
- ffidavit of Counsel as to Matters of Record, filed.
- laintiff's Appendix to Plaintiff's Motion for Summary Judgment, filed.
- equest for Default pursuant to Mass. R.Civ.P.55(a) on Defendant Cheryl L. Davis (Heirs, etc.), filed.
- efendant Cheryl L. Davis (Heirs, etc.) defaulted pursuant to Mass. R.Civ. P. 55(a). (Patterson, Rec.)
- ffidavit of Service by Publication, filed.
- cheduled Judge: Piper, Hon. Gordon H. Event: Summary Judgment Hearing Date: 09/21/2022 Time: 11:00 AM
- oint Motion for Entry of Judgment, filed.
- vent Resulted: Summary Judgment Hearing scheduled on: 09/21/2022 11:00 AM 09/21/2022 11:00 AM Has been: Held via video Hon. Gordon H. Piper, Presiding September 21, 2022. Hearing held on plaintiff's motion for summary judgment and on joint motion for entry of judgment, all via ZOOM. Attorneys Jacqueline Price and Thomas Looney appeared for Lopez Capital Group, LLC. Attorney James Marsh appeared for Charles C. Davis, IV. Attorney David Kiah did not appear, having previously informed the court that he would not appear due to a scheduling conflict but that he had no objection to the hearing going forward in his absence. This case concerns title to a piece of property ("locus") located in Dartmouth, Massachusetts. Charles Davis, III created a declaration of trust in 2001 establishing the Shadrach Realty Trust, identifying the trustees of the Lazarus Foundation Pure Trust Organization as the sole beneficiaries of the trust. Charles Davis, III then recorded the declaration, and at the same time by recorded deed conveyed title to the locus to Louis Serio as trustee of the Shadrach Realty Trust, retaining a life estate for Mr. Davis, the grantor. In October of 2008, Davis, III, acting as purported trustee of the Trust, and professing an inability to discover the whereabouts of the record trustee, Mr. Serio, conveyed the locus to himself individually. Plaintiff seeks a judgment establishing that the effort by Davis, III to transfer title to the subject property out of the Shadrach Realty Trust and to himself individually was inoperative, and that title to the subject property remained in the trust until it was subsequently conveyed by Serio to Hugh Shaw. Thereafter, Shaw, on the strength of the deed to him from Serio as trustee, for nominal consideration, took out loans using the locus as mortgage collateral. The court explained that whether proceeding to consider the summary judgment motion or the assented to request for judgment, the court must be satisfied that there is a proper legal and factual basis for the issuance of judgment, and also must be convinced that the true parties in interest have been named in the action and properly served. The court expressed concern that, among other issues, a party in interest, the beneficiary of the Shadrach Realty Trust, had not been named as a party in this litigation and had not been served to make it aware of the pendency of this litigation. The relief sought by plaintiff in this case would establish title in Mr. Shaw and his successors, free of the trust established in the conveyance to Mr. Serio as Trustee of the Shadrach Realty Trust. That relief, if granted, necessarily would cut off the remainder title and interest in the locus of the named beneficiary of the Shadrach Realty Trust, the trustees of the Lazarus Foundation Pure Trust Organization. Because that beneficiary had not been named or served in this proceeding, the court is currently unable to enter a judgment as requested in the pending motions which would establish Shaw's title to the exclusion of the Shadrach Realty Trust trustee and beneficiaries. Attorney Price informed the court that while she believed there was some relationship between Charles Davis, III and Serio, as well as between Charles Davis, III and Shaw, she did not know particular details that would shed light on the circumstances surrounding the trust creation or the ultimate conveyance to Shaw for nominal consideration. In light of the absence of additional elucidating facts, and the failure to name and serve the Shadrach Realty Trust trustee and beneficiary, the court is unable to grant summary judgment on this record, and the plaintiff's motion for summary judgment is DENIED without prejudice to the motion being resubmitted after these deficiencies are addressed. The joint motion for entry of judgment is, for the same reason, also DENIED. Attorney Price made an oral motion to file an amendment to the plaintiff's complaint, which will include the trustee and any other identifiable beneficiaries of the Shadrach Realty Trust, which motion was ALLOWED by the court. Attorney Price further indicated her intent to move for alternative service by publication on the current trustee and any beneficiaries of the Shadrach Realty Trust who cannot be served directly. The court awaits the plaintiff's amended complaint. The court will act on any motion for service by publication if and when it is filed. (Piper, C.J.)
- otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Thomas M Looney, Esq. [email protected] Plaintiff: Jacqueline M Price, Esq. [email protected] Defendant: James Woodworth Marsh, Esq. [email protected] Defendant: David F Kiah, Esq. [email protected] Sent On: 09/26/2022 14:22:22
- Proposed) Second Amended Complaint, filed.
- ffidavit of Hugh Shaw, filed.
- laintiff's Motion for an Order Allowing Service by Publication, filed.
- ffidavit of Diligent Search in Support of Plaintiff's Motion for an Order Allowing Service by Publication, filed.
- roposed Order for Publication, filed.
- cheduled Judge: Piper, Hon. Gordon H. Event: Hearing Date: 04/25/2023 Time: 10:00 AM (via videoconference) Notice of Event was generated and sent to: Plaintiff: Thomas M Looney, Esq. [email protected] Plaintiff: Jacqueline M Price, Esq. [email protected] Defendant: James Woodworth Marsh, Esq. [email protected] Defendant: David F Kiah, Esq. [email protected] Sent On: 04/11/2023 10:20:04
- vent Resulted: Hearing scheduled on: 04/25/2023 10:00 AM Has been: Held via video Hon. Gordon H. Piper, Presiding April 25, 2023. Hearing held on plaintiff's Motion for an Order Allowing Service by Publication, via videoconference. Attorney Jacqueline Price, Esq. appeared for the plaintiff. Attorney James Marsh, Esq. appeared for the defendant, Charles Davis IV. Previously in this case, the court expressed concern that some parties who may be divested of their interests in the subject property in this case, should judgment enter in plaintiff's favor, had not been included as defendants. The plaintiff subsequently filed a second amended complaint on December 2, 2022, naming defendant Hugh Shaw as an interested party, in his putative capacity as certificate holder of the Lazarus Foundation Pure Trust Organization, and naming as defendants unknown and unascertained trustees of the Lazarus Foundation Pure Trust Organization. The court noted various peculiarities in the foundational documents creating the Shadrach Realty Trust and the Lazarus Foundation Pure Trust Organization. Counsel agreed with the court that, of the notaries, attorneys, and trustees involved in the execution of those documents and those following in the chain of title to the Property, only one attorney, John Rexford, remains alive. Attorney Price indicated that she would make attempts to contact Attorney Rexford for any information he may provide about the events underlying this case. The plaintiff's Motion for an Order Allowing Service by Publication is ALLOWED. Attorney Price to contact Assistant Clerk Attorney Mary Armstrong to arrange the form of citation to issue. Publication of citation to be made in a Boston newspaper of prominence, and in a newspaper of local circulation in the Dartmouth, Massachusetts area where the subject property is situated. Following return dates on all summonses and any published citation, plaintiff to request default enter under Mass. R. Civ. P. 55(a) against all parties not timely filing an answer or responsive pleading. Upon entry of default, plaintiff to file request pursuant to Mass. R. Civ. P. 55(b)(2) for default judgment. Alternatively, if any additional party appears or answers, parties promptly to request, in writing, further case management conference. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Thomas M Looney, Esq. [email protected] Plaintiff: Jacqueline M Price, Esq. [email protected] Defendant: James Woodworth Marsh, Esq. [email protected] Defendant: David F Kiah, Esq. [email protected] Sent On: 04/27/2023 10:12:02
- itation by publication in the New Bedford Standard Times, Boston Globe/Herald or Mass Law.Wkly, returnable 06/19/2023, issued. (emailed and mailed copy to: Plaintiff: Thomas M Looney, Esq. [email protected] Plaintiff: Jacqueline M Price, Esq. [email protected] Defendant: James Woodworth Marsh, Esq. [email protected] Defendant: David F Kiah, Esq. [email protected])
- ffidavit of John C. Rexford, filed.
- ffidavit of Service by Publication with Tearsheets, filed.
- otion to Allow Joint Motion for Entry of Judgment, filed.
- cheduled Judge: Piper, Hon. Gordon H. Event: Hearing on Motion for Judgment Date: 08/31/2023 Time: 10:00 AM (via videoconference) Notice of Event was generated and sent to: Defendant: David F Kiah, Esq. [email protected] Sent On: 07/28/2023 09:04:26 Notice of Event sent via email to Plaintiffs: Jaqueline Price and Thomas Looney, Defendant: James Marshall
- vent Resulted: Hearing scheduled on: 08/31/2023 10:00 AM Has been: Held via video Hon. Gordon H. Piper, Presiding August 31, 2023. Hearing held on Joint Motion for Entry of Judgment, via videoconference. Attorney Jacqueline Price, Esq. appeared for the plaintiff. Attorney James Marsh, Esq. appeared for defendant Charles Davis IV. Attorney David Kiah, Esq. appeared for defendant Hugh Shaw. This case concerns the record title to a piece of property ("locus" or "property") located in Dartmouth, Massachusetts). In this action, the plaintiff and Mr. Shaw seek to establish that a purported conveyance by Charles Davis III of the locus to himself out of trust was ineffectual and invalid, and that a later conveyance of the locus by the trustee of that trust, Mr. Serio, to Mr. Shaw, was valid and effective to convey the locus' title to Mr. Shaw. Plaintiff holds its mortgage under Mr. Shaw. A related case, case number 20 MISC 000579, brought by parties not named in this case, represented by Attorney Marsh, is a claim for adverse possession of part of the property. The court earlier had directed that case 21 MISC 000622 proceed first to judgment, to resolve the state of the record title in light of the disputed trust conveyances, prior to the court and parties taking up the litigation of the adverse possession claims. Attorney Kiah informed the court that the plaintiff had made entry onto the Property in March 2022 to foreclose on the property, but that no notice of demand for payment on the mortgage was ever served upon the mortgagor. To the extent that this entry might impact record title, that impact would not yet have ripened, given that three years have not yet accrued. The court concluded that the impact and effect, if any, of the purported entry by the mortgagee would best await determination at a later date, including, potentially, in the related case, 20 MISC 000579. For substantially the reasons set forth in the moving papers, the court allowed the motion for judgment. The court is satisfied, based on the affidavits and other materials submitted, that the intention of disputed transactions was to vest locus' record title in Mr. Shaw. None of the current parties, including Mr. Charles Davis, IV, as heir of his late father, Charles Davis, III, object to the entry of judgment as requested. The joint Motion for Entry of Judgment in this case, 21 MISC 000622, agreed upon by all parties, is ALLOWED. Judgment to enter accordingly. Attorney Price instructed to file promptly with the court a Word version of the parties' proposed judgment for the court's review. Attorneys Kiah and Marsh noted that, as regards case 20 MISC 000579, previous settlement discussions among their respective clients have been revived. Counsel requested additional time to explore settlement of the second, adverse possession, case. The court encouraged settlement discussions, instructing the parties to inform Attorney Price of any developments. Parties instructed to make good faith attempts to reach a negotiated settlement, and to report to the court in writing in that case by November 30, 2023, informing the court on the progress of settlement. (Piper, C.J.) Notice of Docket Entry was generated and sent to: Plaintiff: Thomas M Looney, Esq. [email protected] Plaintiff: Jacqueline M Price, Esq. [email protected] Defendant: James Woodworth Marsh, Esq. [email protected] Defendant: David F Kiah, Esq. [email protected] Sent On: 09/01/2023 10:11:34
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