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Barrow v. Barrow

United States District Court, D. Massachusetts

November 29, 2016

ANITA M. BARROW, Plaintiff,
v.
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

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE

         This 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 pro se.

         In her 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.

         The 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.

         I. Background

         A. Factual Background

         Emma 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. ¶ 49).

         Willinda 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).

         In 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. ¶ 93).

         At some 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. ¶ 6).

         According 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.

         Throughout 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).

         Willinda 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. ¶ 126).

         Willinda 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).

         In June 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).

         The 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. ¶ 20).

         In 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).

         The complaint does not specifically allege the race of Anita Barrow. It appears, however, that she is African-American.

         B. Procedural Background

         On July 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 (Count 7).

         On 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.

         On September 7, 2016, plaintiff filed a motion for a memorandum of lis pendens as to the Falmouth property.

         On 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.

         On 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 ...


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