United States District Court, D. Massachusetts
ANITA M. BARROW, Plaintiff,
HERBERT A. BARROW, JR., et al, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
LIS PENDENS, PLAINTIFF'S MOTIONS TO STRIKE, AND
DEFENDANTS' MOTIONS TO DISMISS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
action arises out of the partition by sale of a property in
Falmouth, Massachusetts, formerly owned by Emma Barrow, the
mother of plaintiff Anita Barrow. Plaintiff is proceeding
will, Emma Barrow granted a life estate in the Falmouth
property to one of her daughters, Willinda Powell Gray.
Anita, Willinda, and a third sibling named Herbert Barrow
were devised equal shares of the proceeds from the sale of
the property as remaindermen. Willinda occupied the property
after Emma's death, but allowed the property to fall into
a state of disrepair. Willinda also failed to pay the
mortgage on the property, and took out a new loan, secured by
the property, on which she subsequently defaulted.
property was ultimately sold for substantially less than its
fair market. Anita then filed this action, contending that
her siblings and various other individuals-those allegedly
involved in either the decline in the property's value or
its ultimate sale-discriminated against her in violation of
federal and state law on the basis of race. Defendants have
moved to dismiss the complaint for failure to state a claim
upon which relief can be granted. For the reasons stated
below, the motions will be granted.
Barrow died on July 9, 2006. (Compl. ¶ 55). In her will,
Emma devised her property in Falmouth, Massachusetts, to her
three children. (Compl. ¶ 33, 35, 48). She granted
defendant Willinda Powell Gray-the half-sister of Anita
Barrow and Herbert Barrow-a life tenancy in the property. The
will further provided that upon Willinda's option or at
her death, the property was to be sold, with the proceeds
divided equally between Willinda, Herbert, and Anita or their
issue. (Compl. Ex. 2). She named Michelle Maldonado,
Willinda's daughter, as executor of her estate. (Compl.
began living on the property shortly after Emma's death
in 2006. (Compl. ¶ 56, 61). Maldonado obtained an
appraisal of the property on August 7, 2007, and an
inspection of the property on September 7, 2007. (Compl.
¶ 56-57). At the time of Maldonado's final
accounting in July 2010, the property had a fair market value
of $625, 000. (Compl. ¶ 5).
October 2009, Willinda took out a $23, 506 loan from the
Barnstable County Department of Health and Environment
(“BCDHE”) for improvements to the house. (Compl.
¶ 91). The County-through Kendall Ayres, the
administrator of the Barnstable County Community Septic
Management Loan Program-filed a betterment lien against the
property for the value of the loan. (Id.). According
to the complaint, the encumbrance violated the terms of Emma
Barrow's will. (Compl. ¶ 92). The complaint also
alleges that Ayres and BCDHE made the loan without adequately
determining Willinda's ability to repay. (Compl. ¶
93). Willinda defaulted on that loan in May 2010. (Compl.
point, Willinda renounced her life tenancy. In May 2014, the
Barnstable County Probate Court issued a warrant of sale for
the property. (Compl. ¶ 154). The court appointed
Jennifer Roberts to act as commissioner for the sale. (Compl.
to the complaint, on July 1, 2014, Maldonado used a void and
fraudulent deed to list the property for sale with Douglas
Azarian at Kinlin Grover Realty. (Compl. ¶ 51, 70). Also
according to the complaint, the deed overstated the powers of
the executor to sell the property. (Compl. ¶ 148). On
July 3, Anita travelled to Cape Cod; she stayed there for two
weeks while trying to stop the sale of the property. (Compl.
¶ 123). On July 19, Maldonado, along with defendants
Herbert, Willinda, and Azarian, attempted to sell the
property “in a wasted condition” to defendant
SDSB Investment Group for $385, 000. (Compl. ¶ 52).
George Mackoul, an attorney, represented Herbert, Gray, and
Maldonado in that sale. (Compl. ¶ 70). It appears that
the sale to SDSB fell through.
this time, Willinda continued to either live in or rent out
the property. (Compl. ¶ 115). The complaint alleges that
she failed to maintain the property and let it fall into a
state of disrepair. (Compl. ¶ 115, 137). An inspection
in August 2014 found a variety of problems, some cosmetic,
some structural, and some potentially hazardous. (Compl.
¶ 117). The property was apparently also infested with
rodents and had problems with mold. (Compl. ¶ 118).
also failed to pay the mortgage on the property. (Compl.
¶ 40). In September 2014, she received a notice of the
right to cure the default from defendant Mutual Bank. (Compl.
¶ 95). The notice stated that the bank intended to
commence foreclosure proceedings in February 2015 if all
arrearages were not paid in full. (Id.) The bank did
not send a notice of the right to cure to Anita. (Compl.
filed a partition action in the probate court in November
2014. According to the complaint, the filing was a ruse,
intended to divest Anita of her inheritance through the
foreclosure of the property in February 2015. (Compl. ¶
46). The bank allegedly “seized” the property on
February 13, 2015. (Compl. ¶ 131). At some later point,
Anita and Herbert apparently began making some payments on
the mortgage. (Compl. ¶ 134-35).
2015, Roberts, acting as commissioner, selected Margaret
Gifford, a broker and realtor at Sotheby International, to
sell the property. (Compl. ¶ 79-81). In July 2015,
Roberts allegedly prevented Anita from having the overgrown
lawn cut and weeded while the property was listed for sale.
(Compl. ¶ 172). Roberts told Anita that she had no
authority over the condition of the property and that Roberts
would request an injunction if necessary to prevent her from
having any involvement with the property during the listing
and sales process. (Compl. ¶ 173). In response, Anita
told Roberts to stop discriminating against her. (Compl.
¶ 174). Mackoul then told Anita that he would bring her
behavior to the attention of the Probate Court if she
continued to attempt to interfere in the sale of the
property. (Compl. ¶ 175).
property was ultimately sold on December 4, 2015, to
defendant Falmouth Realty Investments for $385, 261.14.
(Compl. ¶ 110). The complaint alleges that that sale was
unlawful because Emma's will required that the consent of
all beneficiaries be obtained if the property was to be sold
to any of the beneficiaries, and no inquiry was made as to
whether Herbert and Willinda were affiliated with Falmouth
Realty Investments. (Compl. ¶ 19). Renovations began
shortly after the sale, and the property is now listed for
sale at $759, 000 by Sotheby International. (Compl. ¶
April 2016, after Anita made clear her intentions to file a
lawsuit, Roberts requested that the Probate Court
“enjoin all funds due to plaintiff” resulting
from the sale of the property. (Compl. ¶ 170). Roberts
stated that until any such proceedings were complete, it
would be impossible to determine the proceeds available for
distribution, given the costs that the estate would have to
incur in litigating such an action. (Compl. ¶ 171).
complaint does not specifically allege the race of Anita
Barrow. It appears, however, that she is African-American.
18, 2016, plaintiff filed the complaint in this action. The
complaint alleges that defendants discriminated against her
on the basis of her race in violation of the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601, et seq.
(Count 1); 42 U.S.C. §§ 1981, 1982, and 1983 (Count
2); and Massachusetts General Laws chapter 151B (Count 3).
The complaint also asserts a number of state-law tort claims
for breach of fiduciary duty (Count 4); waste (Count 5); and
fraud (Count 6). It also asserts an action to quiet title
August 31, 2016, defendants Mutual Bank and Bruce Duphilly,
as well as defendant Douglas Azarian and defendants David
Benton and Falmouth Realty, moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted.
September 7, 2016, plaintiff filed a motion for a memorandum
of lis pendens as to the Falmouth property.
September 8, 2016, defendants Kendall Ayers and BCDHE moved
to dismiss the complaint pursuant to Rules 12(b)(1) and
12(b)(6) for lack of jurisdiction and failure to state a
claim upon which relief can be granted, respectively.
September 9, 2016, defendant Roberts; defendants Gifford and
Sotheby International Realty; defendants Barrow, Harlow,
Maldonado, Mooney, Mooney Planning Collaborative, Gray, and
SDSB Investment Group; and defendant George Mackoul all moved
to dismiss the complaint for ...