Americus Mortg. Corp. v. Estate of Belli

• Decision Date: 31 March 2014
• Docket Number: CIVIL ACTION NO. 12-10861-GAO
• Parties: AMERICUS MORTGAGE CORPORATION f/k/a ALLIED HOME MORTGAGE CAPITAL CORPORATION, Plaintiff, v. THE ESTATE OF PETER BELLI, Judgment Debtor, and IRENE MARK, Reach and Apply Defendant, Defendants.
• Court: U.S. District Court — District of Massachusetts

AMERICUS MORTGAGE CORPORATION f/k/a ALLIED HOME MORTGAGE CAPITAL CORPORATION, Plaintiff, v. THE ESTATE OF PETER BELLI, Judgment Debtor, and IRENE MARK, Reach and Apply Defendant, Defendants.

CIVIL ACTION NO. 12-10861-GAO

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

January 28, 2014

March 31, 2014

ORDER ADOPTING REPORT AND RECOMMENDATION

O'TOOLE, D.J.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation ("R&R") (dkt. no. 74) with respect to the defendants' motions to dismiss (dkt. nos. 44 and 47). After carefully reviewing the pleadings, the parties' submissions, and the R&R¹, I agree with the magistrate judge's analysis and conclusions.

Accordingly, I approve and ADOPT the magistrate judge's recommendation in its entirety. Reach and apply defendant Irene Mark's Motion to Dismiss (dkt. no. 44) is DENIED except for the lack of jurisdiction argument which is DENIED without prejudice.² The Motion to Dismiss of Irene Mark as personal representative of the Estate of Peter Belli (dkt. no. 47) is DENIED without prejudice.

It is SO ORDERED.

George A. O'Toole, Jr.

United States District Judge

AMERICUS MORTGAGE CORPORATION f/k/a ALLIED HOME MORTGAGE CAPITAL CORPORATION, Plaintiff,

v.

THE ESTATE OF PETER BELLI, Judgment Debtor,

and

IRENE MARK, Reach and Apply Defendant.

CIVIL ACTION NO. 12-10861-GAO

REPORT AND RECOMMENDATION RE:

IRENE MARK'S MOTION TO DISMISS (DOCKET ENTRY # 44);

IRENE MARK AS SHE IS PERSONAL REPRESENTATIVE OF

ESTATE OF PETER BELLI'S MOTION TO DISMISS

(DOCKET ENTRY # 47)

BOWLER, U.S.M.J.

Pending before this court are two motions to dismiss. Reach and apply defendant Irene Mark filed the first motion (Docket Entry # 44) whereas Irene Mark, "as she is Personal Representative of Estate of Peter Belli," filed the second motion (Docket Entry # 47). As explained below, the latter Irene Mark is not a party in this action. She is however a party in arelated action which is consolidated with this action for purposes of discovery and trial.³ Plaintiff Americus Mortgage Corporation f/k/a Allied Home Mortgage Capital Corporation ("Americus") opposes both motions. (Docket Entry ## 52 & 55). With briefing complete, the motions are ripe for review.

PROCEDURAL BACKGROUND

On May 14, 2012, Americus initiated this action by filing a complaint denoted as an "Action on Judgment." (Docket Entry # 1). Absent amendment, this complaint remains the governing complaint. It names as parties The Estate of Peter Belli as judgment debtor and Irene Mark as reach and apply defendant. Summons issued to each defendant on May 14, 2012.

As stated in two affidavits, a Server of Process personally served Irene Mark as reach and apply defendant with a copy thesummons and the complaint on May 15, 2012.⁴ (Docket Entry ## 4 & 12) . In light of the failure of Irene Mark as reach and apply defendant to file a timely answer, a Deputy Clerk issued a notice of default on August 8, 2012. On August 17, 2012, Americus filed a motion for a default judgment. (Docket Entry #8). On August 24, 2012, the Estate of Peter Belli as judgment debtor and reach and apply defendant Irene Mark filed an opposition to the motion as well as an emergency motion to vacate the notice of default. (Docket Entry ## 13 & 15). Thereafter, Americus filed a motion to withdraw the motion for a default judgment (Docket Entry # 16) which this court allowed. This court also deemed the motion to set aside the notice of default "moot."⁵

The complaint seeks to collect a final judgment issued by the court in Allied Home Mortgage Capital Corp. v. Peter Belli and Regency Serv. Comp., Inc., Civil Action No. 07-11597-NG ("the Allied court" or "the underlying action"), on March 8, 2011. (Docket Entry # 1). The final judgment awarded Allied HomeMortgage Capital Corporation ("Allied"), which subsequently changed its name to Americus (Docket Entry # 58, Allied case), $2,394,857.20 with interest at 12% per annum and costs of $10, 928.49 (Docket Entry # 1, ¶ 6). The final judgment against Belli included an award of $75,000 on a "conversion claim in connection with the property and equipment from Foxboro and Milford offices." (Docket Entry # 45-5, ¶ 3). The judgment awarded the remaining damages against Belli for the claims of replevin, "intentional misrepresentation/fraud, negligent misrepresentation and breach of duty of loyalty claims." (Docket Entry # 45-5). With respect to the replevin claim, the judgment awarded $1,800 plus prejudgment interest "in connection with [Allied's] lease payments to the Marlborough Data Center (10/01-7/10)." (Docket Entry # 45-5). Notably for present purposes, the judgment declared that Allied was "entitled to immediate, sole and exclusive ownership and possession of the . . . pieces of computer equipment." (Docket Entry # 45-5, ¶ 12). The judgment listed each piece of equipment noting the location at a "data center operated by One Communications" in Marlborough, Massachusetts. (Docket Entry # 45-5, ¶ 12). The First Circuit affirmed the judgment on appeal. Americus' attempt to collect the judgment have not been successful.

Count One in this action, captioned "Enforcement of Judgment," seeks to enforce the judgment against The Estate ofPeter Belli. (Docket Entry # 1) (Americus "seeks to enforce the terms and conditions of a . . . Judgment against Peter Belli (the 'Judgment Debtor')"). Counts two and three respectively set out a common law reach and apply claim and a statutory reach and apply claim against reach and apply defendant Irene Mark.⁶ Count Four sets outs a claim under the Uniform Fraudulent Transfer Act ("UFTA"), Massachusetts General laws chapter 109A, sections one through 12.

Prior to filing this action, Allied filed the Allied case on January 30, 2012. Although brought against different parties, the Allied case seeks to collect the funds and the ownership interests awarded in the same, aforementioned final judgment issued by the Allied court. As amended, the Allied case contains the same four causes of action as this case. (Docket Entry # 104-1, Allied case). Americus brings Count One for enforcement of the judgment against Irene Mark, as the personal representative of the Estate of Peter Belli, and/or DiamondFunding. Americus brings counts two through four against Diamond Funding.⁷

On June 17, 2013, this court allowed the motion to consolidate this action with the Allied case. Given the absence of a consolidated amended complaint and the fact that Americus brought a number of the counts in the operative complaints against different parties, the Memorandum and Order explained that the operative complaints in each action "are retained in the consolidated action."⁸

On August 23, 2013, "Irene Mark" filed the first motion to dismiss and captioned the motion as "Irene Mark's Motion to Dismiss." (Docket Entry # 44). The governing complaint however is brought against "Irene Mark" only as a "reach and apply defendant." (Docket Entry # 1). Accordingly, this court construes this motion (Docket Entry # 44) in the only manner that presents a viable basis, i.e., as filed by Irene Mark as she is areach and apply defendant.⁹

Irene Mark, "as she is Personal Representative of Estate of Peter Belli," filed the second motion to dismiss solely in this action. (Docket Entry # 47). The motion and supporting memorandum (Docket Entry ## 47 & 48) raise many of the same arguments raised in the first motion and supporting memorandum (Docket Entry ## 44 & 45). Because Irene Mark, "as she is Personal Representative of Estate of Peter Belli," is not a party in the operative complaint in this action (Docket Entry # 1), a motion to dismiss her as personal representative is premature until the complaint is amended to include her as the personal representative of the Estate of Peter Belli.¹⁰ As currently brought, the complaint names only the Estate of Peter Belli, Judgment Debtor, and reach and apply defendant Irene Mark.

STANDARD OF REVIEW

Reach and apply defendant Irene Mark ("Mark") moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"). To survive a Rule 12(b) (6) motion to dismiss, the complaint must include factual allegations that when taken as true demonstrate a plausible claim to relief even if actual proof of the facts is improbable. Bell Atlantic v. Twombly, 550 U.S. 544, 555-558 (2007). Thus, while "not equivalent to a probability requirement, the plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully." Boroian v. Mueller, 616 F.3d 60, 65 (1^st Cir. 2010) (internal quotation marks omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief." Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1^st Cir. 2011) (internal quotation marks and citations omitted). Discarding legal conclusions and taking the facts in the governing complaint as "true and read in a plaintiff's favor even if seemingly incredible," the complaint "must state a plausible, but not a merely conceivable, case for relief." Sepulveda-Villarini v. Dept. of Educ, 628 F.3d 25, 29 (1^st Cir. 2010); accord Gorelik v. Costin, 605 F.3d 118, 121 (1^st Cir. 2010) ("factual allegations 'must be enough to raise a rightto relief above the speculative level'").

In order to assess the merits of a Rule 12(b) (6) motion, a court should consider the complaint and any documents attached to it. See Trans-Spec v. Caterpillar, 524 F.3d 315, 321 (1^st Cir. 2008). Exceptions to restricting review to the complaint exist "'for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to [the] plaintiffs' claim; [and] for documents sufficiently referred to in the complaint.'" Mississippi Public Employees' Retirement System v. Boston Scientific Corp., 523 F.3d 75, 86 (1^st Cir. 2008) (quoting Watterson v. Page, 987 F.2d 1, 3 (1^st Cir. 1993) (...