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Case Information
Filed
2023-05-03
Status
Closed
Type
Par Partition, G.l. Chapter 241
Docket
53 entries
Disposition
judgment entered
Parties
Plaintiff
Eckland, James|The Estate Of Ethel C. Eckland
Defendant
Mcarthy, Sean
Lawyers
Docket Entries
- Judgment Confirming Partition, entered. (Copies emailed to Attorneys Michael McCarthy, Raymond White, and Gino Ricciardelli) Judge: Rubin, Hon. Diane R.
- Case assigned to the Fast Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 440674 Date: 05/03/2023
- Land Court surcharge Receipt: 440674 Date: 05/03/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- The case has been assigned to the F Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Raymond J White, Esq. [email protected] Sent On: 05/09/2023 15:08:18
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 06/29/2023 Time: 09:30 AM Counsel notified via email.
- Summons returned to Court with service on Sean Mcarthy filed. Served in hand on May 12, 2023.
- Respondent's Verified Answer and Counterclaim to Petition for Partition, filed.
- Respondent's Motion to Continue Case Management Conference Scheduled for June 29, 2023, filed.
- Petitioner's Verified Answer to Respondent Counterclaim to Petition for Partition, filed.
- Petitioner's Objection to Respondent's Motion to Continue Case Management Conference Scheduled for June 29, 2023, filed.
- Respondent's Motion to Continue Case Management Conference Scheduled for June 29, 2023 ALLOWED. Case Management Conference Rescheduled to July 20th at 3:00 pm via Zoom. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Case Management Conference scheduled on: 06/29/2023 09:30 AM Has been: Rescheduled to July 20, 2023 at 3:00 pm via Zoom. Hon. Diane R. Rubin, Presiding
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 07/20/2023 Time: 03:00 PM Counsel notified via email.
- Joint Statement Case management Conference Scheduled July 20, 2023 , filed.
- Event Resulted: Case Management Conference scheduled on: 07/20/2023 03:00 PM Has been: Case management conference held via videoconference. Attorney Raymond White appeared on behalf of petitioner, who was present, and Attorney Michael McCarthy appeared on behalf of Respondent. Court is in receipt of the Joint Statement Case Management Conference Scheduled July 20, 2023. Attorney White advised that there is a scrivener's error in paragraph C on page 3 of the Petition for Partition, and that he intends to file a corrected page so as to clarify the record. By way of background, this is a partition action for the property at 44 Brewster Road, Waltham (the "Property") which is owned by petitioner as tenant in common with his nephew, respondent, and is currently occupied by Donna McCarthy (sister of petitioner and mother of respondent). Attorney McCarthy advised that respondent hopes to purchase the property by setoff, and otherwise to wait until spring of 2024 to list the Property on the market for sale. Attorney White advised that petitioner has obtained an appraisal for $750,000, and has made an offer to sell by setoff for a reduced price, but Attorney McCarthy advised that respondent still feels the value is too high given the repairs needed at the Property. With respect to waiting to list the Property, Attorney White expressed concern as to the delay and requested that a Commissioner be appointed. Following colloquy, status conference scheduled for September 11, 2023, at 2:00 P.M., with the next Commissioner on the court's list to attend. Respondent invited to obtain an independent appraisal of the Property, and by September 5, 2023, counsel to advise the court if a Commissioner is no longer needed. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 09/11/2023 Time: 02:00 PM
- Event Resulted: Status Conference scheduled on: 09/11/2023 02:00 PM Has been: Status conference held via videoconference. Attorney Raymond White appeared on behalf of the Petitioner, who was present, and Attorney Michael McCarthy appeared late on behalf of the respondent due to illness. Court advised on its intent to appoint Attorney Gino Ricciardelli Partition Commissioner in this matter, with no objection from either counsel. Following colloquy, status conference scheduled for September 14, 2023, at 11:00 A.M., with court to invite Commissioner Ricciardelli to attend.Hon. Diane R. Rubin, Presiding Counsel notified via email.
- In accordance with SJC Rule 1:07, the following fee generating appointment was made: Gino Nicholas Ricciardelli, Esq. appointed as Partition Commissioner (Northern Counties) On 09/12/2023 by Hon. Diane R. Rubin Reason: Expedient disposition of the matter is necessary Judge: Rubin, Hon. Diane R.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 09/14/2023 Time: 11:00 AM
- Event Resulted: Status Conference scheduled on: 09/14/2023 11:00 AM Has been: Status conference held via videoconference. Attorney Raymond White appeared on behalf of petitioner, who was present, and Attorney Michael McCarthy appeared on behalf of respondent. Also present was Partition Commissioner Gino Ricciardelli. Counsel began by presenting each of their views of the case to familiarize Commissioner Attorney Ricciardelli with the history of the property. Commissioner Ricciardelli recommended that he secure a broker's opinion of value, both with and without a tenant, and market the property for sale to secure the most advantageous price on the open market. Counsel also presented their differing perspectives as to whether there was an agreement for Donna McCarthy (sister of the petitioner and mother of the respondent), to occupy the property and, if so, what the terms of that agreement were, such as whether Ms. McCarthy would pay ongoing maintenance and expenses in lieu of rent. In addition, both parties have accounting claims under G.L. c. 241, so as to deviate from an equal distribution of the net sales proceeds. Following colloquy, court to issue an Interim Order Appointing Commissioner. By October 31, 2023, Commissioner Ricciardelli to file his interim report as directed by the court's Interim Order, to include a broker's opinion of value with and without a tenant, as well as the fair market rental value. Counsel to provide each of their appraisals to the Commissioner. By November 17, 2023, parties to file any responses to the Commissioner's report. By November 31, 2023, parties to file briefs with evidentiary support with respect to Donna McCarthy's occupancy, whether there was an agreement underlying that occupancy, and any terms of said agreement. Also by November 31, 2023, all accounting claims under G. L. c. 241, 25 to be submitted to the Commissioner, with a copy to the court, with each claim to be supported by backup documentation. Status conference scheduled for November 28, 2023, at 10:00 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 11/28/2023 Time: 10:00 AM
- Interim Order Appointing Gino Ricciardelli, Esq., Partition Commissioner, 44 Brewster Rd., Waltham, MA, issued. (Copies emailed to Attorneys Michael McCarthy, Raymond White, and Gino Ricciardelli) Judge: Rubin, Hon. Diane R.
- Commissioner Gino Ricciardelli's, Estimate of Time and Charges, filed.
- Commissioner's Original Signed Oath, filed.
- Commissioner, Gino Ricciardelli's Proposal to Engage Third Party, filed.
- Report of Commissioner, Gino Ricciardelli, filed. (Courtesy copy filed October 30, 2023)
- Event Resulted: Status Conference scheduled on: 11/28/2023 10:00 AM Has been: Status conference held via videoconference. Attorney Raymond White appeared on behalf of petitioner James Eckland, who was present, and Attorney Michael McCarthy appeared on behalf of respondent Sean McCarthy, who was present as was Donna McCarthy. Also present was Partition Commissioner Attorney Gino Ricciardelli. Court is in receipt of the Report of Commissioner, Gino Ricciardelli. Commissioner Ricciardelli provided a summary of his report regarding the recommended sales approach. Commissioner reported on having received a broker's comparative market analysis (the "CMA") valuing the property at $704,000, midway between each of the parties' appraised values. That valuation is dependent on delivering the property vacant at the time of closing and with access available to the broker and interested purchasers. The Commissioner recommended a listing price of $649,900 to spur interest and generate a quick sale, with the actual sale price expected in the range of the CMA. Court noted that it received no oppositions to the Commissioner's report by the filing deadline of November 17, 2023, such that any objections were waived and it was appropriate to issue a warrant for sale. Court discussed with the Commissioner and counsel the timing of sale, concluding following colloquy to issue a warrant for sale on or after January 2, 2024, so as to provide the tenant Ms. Donna McCarthy an opportunity to try to purchase the property with the assistance of her sons and with one final holiday season in the property. With respect to accounting claims, by December 8, 2023, parties are provided a final opportunity to file any accounting claims, seeking to adjust the presumed equal distribution of net sales proceeds (to be supported with back-up documentation). In addition, counsel advised that the parties had reached an agreement for such claims prior to about June, 2023, and would stipulate to the specific terms of that agreement for the benefit of the court. Accordingly, parties to file a Stipulation documenting and certifying their agreement. With respect to the need for Ms. McCarthy to secure alternate housing, respondent assured the court that he would ensure alternate housing would be available by the time of closing. Nonetheless, to ensure a smooth transition, respondent to file periodic status reports detailing his efforts and Ms. McCarthy's efforts to secure alternative housing, the first to be filed on or before December 8, 2023, the next by January 5, 2024, and every thirty days thereafter. Court then discussed with the Commissioner and counsel, the Commissioner's recommendations about how to proceed with summary process proceedings if need be. Following colloquy court to issue a warrant for sale on or after January 2, 2024. By December 29, 2023, Commissioner Ricciardelli to file a report making recommendations to the court as to the parties' accounting claims and the proper course of action as to terminating Ms. McCarthy's tenancy, with parties to file any opposition by January 12, 2024. Status conference scheduled for January 18, 2024, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 01/18/2024 Time: 09:30 AM
- Warrant to Commissioner Gino Ricciardelli, Esq., to Sell by Private Sale 44 Brewster Rd, Waltham, MA, issued. (Copies emailed to Attorneys Michael McCarthy, Raymond White, and Gino Ricciardelli) Judge: Rubin, Hon. Diane R.
- Petitioner's Stipulation of 2022 Real Estate Costs, filed.
- Petitioner's Request for Offset Real Estate Proceeds, filed.
- Respondent's Report on Alternative Housing for Tenant Dated December 8, 2023, filed.
- Respondent's Memorandum Regarding Rental Agreement with Tenant Donna McCarthy and Request for Offset Real Estate Proceeds, filed.
- Petitioner's Objection to Respondent's Memorandum Regarding Rental Agreement with Tenant Donna McCarthy and Request for Offset Real Estate Proceeds, filed.
- Commissioner's Sales Distribution Adjustment Report, filed.
- Commissioner's AMENDED Sales Distribution Adjustment Report, filed.
- Report of Commissioner, Gino Ricciardelli RE: Accepted Offer,filed.
- Atty. McCarthy emailed the court that the Respondent has secured alternative housing.
- Event Resulted: Status Conference scheduled on: 01/18/2024 09:30 AM Has been: Status conference held via videoconference. Attorney Raymond White appeared on behalf of petitioner, with James Eckland present, and Attorney Michael McCarthy appeared, with Sean McCarthy and Donna McCarthy present. Also present was Partition Commissioner Attorney Gino Ricciardelli. Court is in receipt of (1) Petitioner's Stipulation of 2022 Real Estate Costs; (2) Petitioner's Request for Offset Real Estate Proceeds; (3) Respondent's Report on Alternative Housing for Tenant Dated December 8, 2023; (4) Respondent's Memorandum Regarding Rental Agreement with Tenant Donna McCarthy and Request for Offset Real Estate Proceeds; (5) Petitioner's Objection to Respondent's Memorandum Regarding Rental Agreement with Tenant Donna McCarthy and Request for Offset Real Estate Proceeds; (6) Commissioner's AMENDED Sales Distribution Adjustment Report; (7) Report of Commissioner, Gino Ricciardelli RE: Accepted Offer; and (8) Attorney McCarthy's email notifying the court that Donna McCarthy has secured alternative housing. Commissioner Ricciardelli presented his report and advised the court that he had received an offer to purchase the property at $700,000 and signed a purchase & sale agreement pending court approval. After discussion, court approved the sale and adopted Commissioner Ricciardelli's Amended Sales Distribution Adjustment Report. Attorney McCarthy advised that Donna McCarthy had secured alternative purchased housing as well as an alternate leased housing option if need be and requested that the distribution of the net sale proceeds be simultaneous with closing to facilitate Ms. Donna McCarthy's purchase. Court advised that a simultaneous distribution without the expense of a Commissioner's bond would be possible so long as the parties could resolve the remaining accounting issues (such as Attorney White's fees as petitioner's counsel in advancing the partition and petitioner's claims against Ms. McCarthy for use and occupancy of the property during the contested second year of her occupancy). Following colloquy and by January 25, 2024, parties to confer as to accounting claims and file a joint status report updating the court on whether they have been able to achieve a negotiated resolution. In the event the parties are unable to come to an agreement, court to issue a mediation screening order. Status conference scheduled for February 23, 2024, at 9:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 02/23/2024 Time: 09:30 AM
- Joint Statement Regarding Commissioner Sales Distribution Adjustment Report and Joint Request to Authorize Release of Funds at Closing, filed.
- Notice of Docket Entry: Closing is set for March 1, 2024, so the court will be taking the February 23, 2024 hearing off the list and asks the Commissioner to file his closing and sales report three days before closing setting forth the distribution of all funds and then a final sales and closing report with the return of warrant subsequently. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Event Resulted: Status Conference scheduled on: 02/23/2024 09:30 AM Has been: Canceled Hon. Diane R. Rubin, Presiding
- Commissioner's Status Report, filed.
- The court is in receipt of The Commissioner's Status Report and the Court concurrences with the Commissioner. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Commissioner, Gino Ricciaredlli's, Sale and Closing Report, filed.
- Commissioner's Second Status Report, filed.
- Commissioner's Motion to Add Party, filed and ALLOWED. Judge: Rubin, Hon. Diane R.
- Commissioner, Gino Ricciardelli's, Amended Sale and Closing Report, filed.
- Notice of Docket Entry: The court APPROVES Commissioner's Amended Sale and Closing Report. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Commissioner, Gino Ricciardelli's, Final Sale and Closing Report and Return of Warrant, filed.
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