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Case Information
Filed
2023-10-31
Status
Open
Type
Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, 1 (k)
Docket
29 entries
Parties
Plaintiff
Mc Guinness, James|Llc, Jrmc Holbrook
Defendant
Equitable Bank|Coastal Heritage Bank (merged In 2019)|Rg Coastal Llc And Attorney|O'connor, John|Harvey Warf Condiminium Association|Chenette, John F.
Lawyers
Docket Entries
- ithdrawal of Anthony Gatto, Esq. for RG Coastal LLC and Attorney, filed
- ase assigned to the Average Track per Land Court Standing Order 1:04.
- and Court miscellaneous filing fee Receipt: 445227 Date: 10/31/2023
- and Court surcharge Receipt: 445227 Date: 10/31/2023
- niform Counsel Certificate for Civil Cases filed by Plaintiff.
- laintiff's Motion for a Preliminary Injunction Temporary Restraining Order and Motion for a Short Order of Notice for Hearings on the Above before November 11, 2023 Foreclosure Auction, filed.
- ovember 1, 2023. Ex parte motion for short order, ALLOWED. Summons to issue for a hearing on plaintiff's application for preliminary injunction on November 7, 2023, at 3:00 PM LIVE AT THE COURTHOUSE. Plaintiff is to serve the summons, complaint, the preliminary injunction moving papers, and all supporting papers upon the defendant(s) so they are received by them no later than November 3, 2023 at 4:00 PM. (Smith, J.) Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: Robert K Cabana, Esq. [email protected] Sent On: 11/01/2023 15:30:30
- ummons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Smith, Hon. Kevin T. Event: Hearing on Preliminary Injunction Date: 11/07/2023 Time: 03:00 PM
- efendant Coastal Heritage Bank's Opposition to the Plaintiff's Motion for Preliminary Injunction, Cross Motion to Dismiss and Request for Sanctions, filed. (Courtesy copy received on November 7, 2023).
- efendant RG Coastal, LLC's Opposition to Plaintiff's Motion for Preliminary Injunction, Cross Motion to Dismiss, and Request for Sanctions, filed.
- vent Resulted: Hearing on Preliminary Injunction scheduled on: 11/07/2023 03:00 PM Has been: Held in person Hon. Kevin T. Smith, Presiding November 7, 2023. Motion hearing held in person. Attorneys Robert Cabana and William Phelan appeared for the plaintiff. Attorney Lauren Solar appeared for defendant Coastal Heritage Bank. Attorneys Anthony Gatto and Michael Brown appeared for defendant RG Coastal, LLC. No other party appeared. Before the court were the plaintiff's motion for a preliminary injunction and the defendants' motions to dismiss and motions for sanctions. Attorney Phelan argued that the plaintiff is entitled to a preliminary injunction to preclude defendant RG Coastal, LLC from foreclosing upon the plaintiff's property due to a title defect invalidating the mortgage and various acts of alleged misconduct by the defendants. Attorney Brown argued that, even if a title defect existed, it has no bearing on the validity of the mortgage or the mortgagee's right to foreclose. Attorney Solar argued that the Land Court cannot grant a preliminary injunction because there is a pending action regarding the same issues in Norfolk Superior Court, James McGuinness v. Equitable Bank, Case No. 2282CV00580, and this court therefore lacks jurisdiction under Rule 12(b)(9). Following argument, the court DENIED the plaintiff's motion without prejudice due to the prior pending action, took the defendants' motion to dismiss under advisement, and informed the parties that the plaintiff may file an opposition to the motions to dismiss, after which the court will make a ruling. The court indicated that the motion for sanctions under G. L. c.231, 6F cannot be decided until the conclusion of the case, at which point the defendants may renew the motion. (Smith, J.).
- otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: Robert K Cabana, Esq. [email protected] Defendant: Lauren A Solar, Esq. [email protected] Defendant: Thomas M Looney, Esq. [email protected] Defendant: Michael Robert Brown, Esq. [email protected] Defendant: Anthony Gatto, Esq. [email protected] Sent On: 11/08/2023 10:49:08
- AR Appearance filed by William J Phelan, Esq. to provide limited representation to Plaintiff(s) James McGuinness for Motion for Injunctive relief and Opposition to Defendant's Motion to Dismiss.
- he case has been assigned to the A Track. Notice sent. Judge: Smith, Hon. Kevin T. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: William J Phelan, Esq. [email protected] Plaintiff: Robert K Cabana, Esq. [email protected] Defendant: Lauren A Solar, Esq. [email protected] Defendant: Thomas M Looney, Esq. [email protected] Defendant: Michael Robert Brown, Esq. [email protected] Defendant: Anthony Gatto, Esq. [email protected] Sent On: 11/13/2023 15:52:40
- vent Scheduled Judge: Smith, Hon. Kevin T. Event: Case Management Conference Date: 12/01/2023 Time: 09:30 AM
- mended Complaint, filed.
- otion for Temporary Restraining Order, filed.
- cheduled Judge: Smith, Hon. Kevin T. Event: Hearing Date: 11/17/2023 Time: 10:45 AM
- vent Resulted: Hearing scheduled on: 11/17/2023 10:45 AM Has been: Held in person Hon. Kevin T. Smith, Presiding November 17, 2023. Ex parte motion hearing held in person. Attorney William Phelan appeared for plaintiffs having filed this morning an ex parte motion for a temporary restraining order and the first amended complaint. No other party appeared as they were not provided notice of the plaintiffs' filings. The court denied the ex parte motion and ordered a hearing to be held on the motion November 27, 2023, at 9:30 a.m., in person, so that counsel for the defendants have an opportunity to review the new filings and file any opposition. The plaintiffs shall promptly serve counsel for the defendants with the ex parte motion for temporary restraining order and the first amended complaint. The hearing will not go forward on November 27, 2023 if the plaintiffs' fail to promptly serve the defendants. (Smith, J.). (Notice of docket entry sent via email to all parties / counsel of record)
- cheduled Judge: Smith, Hon. Kevin T. Event: Hearing Date: 11/27/2023 Time: 09:30 AM
- efendant Costal Heritage Bank's Motion to Dismiss the Plaintiff's Verified Amended Complaint, filed.
- pposition to Plaintiffs' Motion for Temporary Restraining Order, filed.
- vent Resulted: Case Management Conference scheduled on: 12/01/2023 09:30 AM Has been: Continued Hon. Kevin T. Smith, Presiding
- vent Resulted: Hearing scheduled on: 11/27/2023 09:30 AM Has been: Held in person Hon. Kevin T. Smith, Presiding November 27, 2023. Motion hearing held in person at the courthouse. Attorneys William Phelan and Robert Cabana appeared for the plaintiffs. Attorney Lauren Solar appeared for defendant Coastal Heritage Bank. Attorneys Anthony Gatto and Michael Brown appeared for defendants RG Coastal, LLC and Robert Bender. No other party appeared. Before the court was the plaintiffs' motion for a temporary restraining order. The court inquired as to the status of the related proceedings in Norfolk Superior Court. Attorney Phelan explained that the plaintiff had filed the notice of voluntary dismissal shortly prior to the Superior Court issuing its decision on the defendants' motion to dismiss, and the decision in that case therefore lacked any preclusive effect. Attorney Phelan asserted further that, even if the court's decision had been issued prior to the filing of the notice of voluntary dismissal, it would lack preclusive effect because the defendants had not moved for entry of final judgment. Attorney Phelan then argued that the court should allow the plaintiffs' motion for a temporary restraining order because the allegations in the amended complaint demonstrated a high likelihood of success on the merits and McGuinness would suffer an irreparable injury if the order was not granted, as his primary residence would be foreclosed on. Attorney Brown argued in response that the motion should be denied because the plaintiffs' case is barred by res judicata following the issuance of the decision in the Superior Court and it is unclear that the Land Court has jurisdiction over many of the claims brought by the plaintiffs, thus showing a low likelihood of success on the merits. Attorney Brown asserted that he is unaware of any requirement to move for entry of final judgment before a dismissal has preclusive effect. Finally, Attorney Brown argued that no irreparable harm had been shown because the plaintiffs had plead only an economic loss. Attorney Solar stated that she agrees with Attorney Brown's arguments, characterizing the case as primarily a contract dispute in which right, title, or interest in land is merely ancillary. Following argument, the court took the motion under advisement. Regarding the motion to dismiss filed by defendant Coastal Heritage Bank, the court set a deadline of December 1, 2023, for Coastal Heritage Bank to amend its motion and for other defendants to file their own motions to dismiss. The Plaintiffs shall file any opposition to the motions to dismiss by December 15, 2023. (Smith, J.).
- otice of Docket Entry: Notice of Docket Entry was generated and sent to: Plaintiff: William J Phelan, Esq. [email protected] Plaintiff: Robert K Cabana, Esq. [email protected] Defendant: Lauren A Solar, Esq. [email protected] Defendant: Thomas M Looney, Esq. [email protected] Defendant: Michael Robert Brown, Esq. [email protected] Defendant: Anthony Gatto, Esq. [email protected] Sent On: 11/27/2023 15:44:35
- ovember 27, 2023. Decision on Plaintiffs' motion for temporary restraining order. The Plaintiffs, James McGuinness and JRMC Holbrook, LLC, have moved for a temporary restraining order against Defendant, RG Coastal, LLC, seeking to stop a foreclosure on the property at 10 Harvey Lane, Quincy, Massachusetts which is scheduled to take place on November 28, 2023. The Plaintiffs previously moved for the same relief which this court denied on November 7, 2023 because of the existence of a prior pending action in the Norfolk Superior Court between and among most of the same parties, most importantly, RG Coastal LLC. Since that denial, the Plaintiffs dismissed the Norfolk Superior Court action, filed an Amended Complaint in this court, and have renewed their motion for temporary restraining order arguing that RG Coastal, LLC should be enjoined from carrying out the foreclosure sale because that action will violate the Plaintiffs' rights as consumers and owners of real property under a residential mortgage. The disposition of this motion requires a review of the Norfolk Superior Court action. On June 22, 2022, the Plaintiffs filed suit in the Norfolk Superior Court against RG Coastal, LLC and others alleging various claims of wrongdoing arising out of the same residential mortgage and seeking to stop RG Coastal's efforts to foreclose on the same property. That action is identified in the Norfolk Superior Court docket as James McGuinness v. Equitable Bank, et al., 2282 CV 00580. The claims alleged against RG Coastal, LLC in the Norfolk Superior Court action are substantially the same as the claims alleged against it in this action; namely, that RG Coastal, LLC does not possess the right to carry out the foreclosure on the Plaintiffs' property because the Plaintiffs have been denied certain consumer rights or are the victims of fraud in connection with a forbearance agreement they signed after the mortgage on the 10 Harvey Lane property went into default. RG Coastal and defendant, Coastal Heritage Bank, filed motions to dismiss the Plaintiffs' claims under Mass. R. Civ. P. 12(b)(6) in the Norfolk Superior Court action. Those motions came before the Norfolk Superior Court for a hearing on June 15, 2023. By a decision dated October 31, 2023, docketed by the clerk's office on November 9, 2023, the Norfolk Superior Court allowed the motion to dismiss all claims against RG Coastal, LLC, and allowed in part and denied in part the motion to dismiss filed by Coastal Heritage Bank. On the same day, the Plaintiffs filed a notice of voluntary dismissal of their claims in the Norfolk Superior Court action but, it appears, failed to provide notice to the defendants of the dismissal. The Plaintiffs now claim that the Norfolk Superior Court action is no longer a prior pending action because they have exercised their right under Mass. R. Civ. P. 41(a)(1) to dismiss their complaint, without prejudice, at any time before service by a defendant of an answer or a motion for summary judgment. They further argue that their right to dismiss the Norfolk County action operates to eliminate the preclusive effect of that court's decision on the claims alleged in this case because that decision did not go to final judgment and, thus, res judicata does not apply. I am not persuaded by the Plaintiffs' arguments that the decision of the Norfolk Superior Court to dismiss the claims against RG Coastal, LLC has no preclusive effect on the claims alleged in this case. That court's decision appears to be a final determination that RG Coastal is not liable to the Plaintiffs based on the claims alleged in that action - which are substantially the same as the allegations made in the Amended Complaint in this action. I am also skeptical that the Massachusetts Rules of Civil Procedure allow a plaintiff, whose claims against a defendant are dismissed under Rule 12(b)(6) in one action, to voluntarily dismiss that action under Rule 41 (a)(1) and start a new action against the same defendant in a different court just because the first court had not yet entered a final judgment on the dismissed claims. That smacks of forum shopping and would sanction the waste of a judge's time in granting a motion to dismiss (and writing an 11-page decision) only to have a plaintiff undermine the effect of that decision by swiftly filing a notice of dismissal under Rule 41(a)(1) before final judgment enters. At a minimum, RG Coastal should have an opportunity to challenge in the Norfolk Superior Court the Plaintiffs' attempt to dismiss its claims there under Rule 41(a)(1) and to request that a final judgment be entered under Mass. R. Civ. P. 54(b) on the court's dismissal of the claims against it. But, I will not allow the Plaintiffs' motion based on a procedural irregularity of their own making. Furthermore, the Plaintiffs have not demonstrated that they are likely to succeed on the merits of their claims concerning the enforceability of the forbearance agreement at the center of this action or that the defendants committed fraud in their dealings with the Plaintiffs. The Plaintiffs' motion for a temporary restraining order is DENIED. (Smith, J.) Judge: Smith, Hon. Kevin T. Notice of Docket Entry was generated and sent to: Plaintiff: William J Phelan, Esq. [email protected] Plaintiff: Robert K Cabana, Esq. [email protected] Defendant: Lauren A Solar, Esq. [email protected] Defendant: Thomas M Looney, Esq. [email protected] Defendant: Michael Robert Brown, Esq. [email protected] Defendant: Anthony Gatto, Esq. [email protected] Sent On: 11/27/2023 16:01:03
- UGGESTION OF BANKRUPTCY, FILED.
- UGGESTION OF BANKRUPTCY, FILED.
- ppearance of Dean T Lennon, Esq. for Harvey Warf Condiminium Association, filed
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