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Americus Mortgage Corporation v. Estate of Belli

United States District Court, D. Massachusetts

September 30, 2014

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.

ORDER ADOPTING REPORT AND RECOMMENDATION

GEORGE O'TOOLE, District Judge.

The magistrate judge to whom this matter was referred has recommended that the defendants' motion for summary judgment be denied. The defendants filed substantially the same motion for summary judgment in the companion case, Allied Home Mortgage Capital Corp. v. Belli, 12-cv-10158-GAO. There, the magistrate judge also recommended that the defendants' motion for summary judgment be denied, and I adopted her Report & Recommendation ("R&R").

After carefully reviewing the pleadings, the parties' submissions, and the R&R, I agree with the magistrate judge's analysis and conclusions.[1] Accordingly, I approve and ADOPT the magistrate judge's recommendation in its entirety. The defendants' Motion (dkt. no. 81) for Summary Judgment is DENIED.

It is SO ORDERED.

REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 58)

July 11, 2014

Pending before this court is the above styled summary judgment motion filed by Irene Mark, as the Personal Representative of the Estate of Peter Belli, and reach and apply defendant Irene Mark. (Docket Entry # 58). Irene Mark, as the Personal Representative of the Estate of Peter Belli, however, is not a party in this action. Accordingly, the motion is brought only by reach and apply defendant Irene Mark. Plaintiff Americus Mortgage Corporation f/k/a Allied Home Mortgage Capital Corporation ("Americus") opposes the motion. With briefing complete, the motion is 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.[1] A related action which is consolidated with this action names Irene Mark, as the Personal Representative of the Estate of Peter Belli, as the judgment debtor.[2]

The complaint in this action 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 "Allied case"), on March 8, 2011. (Docket Entry # 1). The final judgment resulted from a default judgment as a sanction and a subsequent determination of damages by the Allied court. The final judgment awarded Allied Home Mortgage Capital Corporation ("AHMCC"), which subsequently changed its name to Americus (Docket Entry # 58, AHMCC case), in excess of $2, 000, 000. (Docket Entry # 324, Allied case). 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 of Peter Belli. (Docket Entry # 1). Counts two and three respectively set out common law and statutory reach and apply claims against reach and apply defendant Irene Mark.[3] 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 AHMCC case on January 30, 2012. Although brought against trustee process defendant Diamond Funding Corporation ("Diamond Funding") as opposed to reach and apply defendant Irene Mark, the AHMCC case seeks to collect the same, aforementioned final judgment issued by the Allied court. Except for the different defendants, the two actions are strikingly similar. The AHMCC case contains the same four causes of action as this case. (Docket Entry # 104-1, AHMCC case).

On the same day that reach and apply defendant Irene Mark filed the summary judgment motion in this case, defendant Irene Mark, as Personal Representative of the Estate of Peter Belli, and trustee process defendant Diamond Funding filed an almost identical motion for summary judgment in the AHMCC case. (Docket Entry # 138, AHMCC case). Noting that the summary judgment motion in this case "is identical to the Motion made by Defendants in the [AHMCC case], " Americus incorporates by reference all of its filings in opposition to that motion as "its Opposition to the instant Motion." (Docket Entry # 69). The arguments and the documentary evidence with respect to both motions are the same in all relevant respects.[4] For reasons stated and explained in the Report and Recommendation recommending the denial of the summary judgment motion in the AHMCC case, summary judgment in this case is not appropriate.

On January 28, 2014, this court issued a Report and Recommendation on two motions to dismiss filed in this case. (Docket Entry # 74). The opinion allowed further briefing "limited solely to the application of the probate exception to diversity jurisdiction as it applies to this case." (Docket Entry # 74). The parties each filed a supplemental brief addressing the probate exception to diversity jurisdiction. (Docket Entry ## 75 & 76). The summary judgment motions also raise the probate exception to diversity jurisdiction as a basis to allow the motions. (Docket Entry # 59) ...


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