McDermott v. Marcus, Errico, Emmer & Brooks, P.C.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
PartiesWILLIAM M. MCDERMOTT, Plaintiff, v. MARCUS, ERRICO, EMMER & BROOKS, P.C., Defendant.
Docket NumberCIVIL ACTION NO. 09-10159-MBB
Decision Date20 November 2012




November 20, 2012



Plaintiff William M. McDermott ("plaintiff"), a resident of the Pondview condominiums in Lynn, Massachusetts, filed this action alleging improper debt collection activities against defendant Marcus, Errico, Emmer & Brooks, P.C. ("MEEB" or "defendant"), a professional corporation of attorneys located in Braintree, Massachusetts. The two count verified complaint sets out violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 ("section 1692"), (Count One) and Massachusetts General Laws chapter 93A (Count Two).

The dispute involves MEEB's efforts, purportedly as early as the fall of 2004, to collect condominium, loan payback and late fees as well as attorney's fees from plaintiff on behalf of MEEB's client, the Pondview Condominium Trust ("Pondview"). Created under a September 1986 Declaration of Trust (Ex. B),

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Pondview is the governing body of the Pondview condominiums and consists of a group of trustees. The Declaration of Trust (Ex. B) along with the Master Deed (Ex. C) are recorded in the Essex South Registry of Deeds.

At the conclusion of plaintiff's case, defendant also rested and at the same time made a motion for judgment on partial findings under Rule 52(c), Fed. R. Civ. P. ("Rule 52(c)").1 (Docket Entry # 46). This court took the motion under advisement thereby reserving a ruling as allowed under the terms of the rule. See International Union of Operating Engineers, Local Union 103 v. Indiana Construction Corp., 13 F.3d 253, 257 (7th Cir. 1994). The request for a judgment on partial findings is denied because judgment on the entire record is appropriate. See, e.g., W.L. Gore & Associates, Inc. v. Medtronic, Inc., 2012 WL 2308651, *10 (E.D.Va. June 18, 2012) (denying Rule 52(c) motion after initially reserving ruling because court "now concludes that the best course of action is to render a judgment based on all the evidence, testimony, and applicable law"); Warner Chilcott Laboratories Ireland Ltd. v. Impax Laboratories, Inc., 2012 WL 1551709, *7 (D.N.J. April 30) (adhering to same course of action). This opinion thus constitutes the court's findings of fact and conclusions of law under Rule 52(a), Fed. R.

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Civ. P. See, e.g., W.L. Gore & Associates, Inc. v. Medtronic, Inc., 2012 WL 2308651, at *1 & *10 (denying Rule 52(c) motion and issuing Rule 52(a) findings and conclusions).

The parties filed post trial briefs. (Docket Entry ## 60 & 61). The merits based on the entire record are therefore ripe for review.


The September 1986 Declaration of Trust gives the trustees the authority to determine the assessment for each fiscal year and the unit owners' "respective shares of such assessment, according to their percentages of interest in the common areas and facilities."3 (Ex. B, Art. V, § 5.3(B)). The Declaration of Trust allows for monthly payment of the assessment and, "[i]f not paid when due, the amount . . . shall constitute a lien on the unit." (Ex. B, Art. V, § 5.3(B)) (emphasis added).4 Under both

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chapter 183A and the Declaration of Trust, Pondview has the ability and the authority to assess attorney's fees, late charges and costs of collection against the unit owner. See Mass. Gen. L. ch. 183A, § 6(a)(ii) & 6(b); (Ex. B, Art. V, § 5.3(C)). The Master Deed likewise provides that:

The Trustees in their discretion may enforce collection of unpaid assessments for common expenses plus interest thereof by enforcing the lien by a court action or by other lawful means on account of which there shall be added to the amount due and payable the reasonable costs of such collection including reasonable attorney fees.

(Ex. B, Art. V, § 5.3(C)).

In 1986, plaintiff's parents purchased unit 104, a two bedroom unit, at the Pondview condominiums. In 1995, they bought unit 105, a one bedroom unit across the hall with the understanding that they would pay the mortgage and that plaintiff would live in the unit and pay the costs associated with it. The assessed values of unit 104 between 2004 and 2011 determined by the City of Lynn range from a low of $138,700.00 in 2011 to a high of $214,900.00 in 2006. (Ex. 86).5 The assessed values of unit 105 between 2004 and 2011 range from a low of $115,500.00 in 2011, to a high of $167,900.00 in 2006. (Ex. 86).

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Plaintiff, who was 52 years old at the time of trial and had attended Northeastern University for two years, moved into unit 105 in 1995 and resided there until 2001. The social environment at the complex was "[v]ery friendly" in 1995. (Tr. IV, p. 91).6 During this time period, plaintiff did not fall behind in the condominium charges for the unit.

Sandra Halbich ("Halbich"), a tenant at the complex living in another unit, moved into unit 105 in 2001 when plaintiff left the complex. In 2002, plaintiff returned to Pondview and moved into unit 104 with his parents. Plaintiff paid the assessments for both units in 2002. (Tr. V, pp. 7-8). In July 2002, his father died of liver cancer and his mother passed away a few months later in December. In November 2002, plaintiff's mother deeded unit 104 to plaintiff and his brother, Edward Williams ("Williams").

Plaintiff was close to his parents and became extremely depressed as a result of their deaths. He also experienced the stress of a strained relationship with Williams. Halbich described plaintiff as "very disturbed." (Tr. VI, p. 55). In fact, from 2002 to 2005, plaintiff "became very inward, didn't want to do anything" or talk to anyone. (Tr. VI, pp. 61-62).

Shortly after his parents' deaths, plaintiff and Halbich

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switched units. Plaintiff began residing in unit 105 and Halbich, as a tenant, lived in unit 104. Halbich eventually moved back into unit 105 in 2005 and paid rent. (Tr. VI, pp. 25 & 55-56).

In March 2003, when plaintiff was living in unit 105, he took out a mortgage for unit 105. Plaintiff took out the mortgage "when [he] got title to the units." (Tr. VI, p. 7). The property description in the mortgage describes the unit as conveyed to plaintiff by Richard Sideri ("Sideri").7 The description reads that unit 105 is "the same premises conveyed to the Mortgagor(s) by deed of Richard Sideri to be recorded herewith."8 (Ex. 27). This court therefore draws the reasonable inference that plaintiff obtained title to unit 105 when he took out the mortgage for the unit in March 2003. Williams deeded plaintiff unit 104 as well as a property in Florida around this time period.

The property description in the unit 105 mortgage states that the property "is intended for residential purposes only." (Ex. 27). Similarly, the occupancy clause of the mortgage requires plaintiff to occupy the property as his principal residence for a one year period. Plaintiff's purpose for

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becoming the owner of both units at the time was "[t]o have a place to live." (Tr. V, pp. 9-10).

The mortgage included a condominium rider. The rider allowed the lender to pay condominium dues and assessments in the event the borrower, plaintiff, did not pay them. Any such "amounts disbursed by Lender . . . shall become additional debt of Borrower secured by the Security Instrument." (Ex. 27).

In 2003, plaintiff, who was employed at the time, paid the condominium assessments for units 104 and 105 without falling behind. Although continuing to receive rent from Halbich, plaintiff was not employed in 2004 and in July and August of 2004 he fell behind in the payment of condominium fees, late fees and loan payback charges for both units. (Ex. 1 & 2). The loan payback charge was either part of a special assessment or a line item in the budget.

Several years earlier, Pondview instituted a policy imposing a $25.00 late fee for condominium fees received after the 15th of each month. After three consecutive months of nonpayment, Pondview's stated policy was to undertake legal action against the unit owner in "Small Claims Court." (Ex. 1-3). Because the complex had only 19 units, plaintiff's monthly payments amounted to almost 10% of the incoming fees for the complex.

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In September 2004, "the four trustees for the building"9 knocked on plaintiff's door at unit 104. (Tr. V, p. 10). A discussion took place between the trustees and plaintiff regarding "[p]ayment on both units" and the trustees "presented [plaintiff] with a statement for both units." (Tr. V, pp. 11-12). As a result of this discussion, the group came to an agreement that plaintiff would pay two months of condominium, loan payback and condominium late fees for unit 105 by September 22, 2004. There was no agreement that such payments would make plaintiff current. Rather, consistent with a September 16, 2004 letter, the agreement was that Pondview would file suit unless plaintiff made the above payment by September 22, 2004. The letter from Dawn-marie Bailey ("Bailey"),10 Pondview's bookeeper, to plaintiff lists the delinquent condominium, loan payback and condominium late fees for unit 105. It does not include late fees for the loan payback charges. The letter then sets out...

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