(with first initial, no space for Sullivan, Dorsey, and
Walsh): Cowin, Jackie, J.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFSâ
MOTION TO REACH AND APPLY FUNDS DUE THE DEFENDANT FROM THE
DAVIS COMPANIES (P#48)
Cowin Associate Justice
Plaintiffsâ Motion to Reach and Apply funds due the defendant
from the Davis Companies and related entities ("Davis
Companies") is ALLOWED in the amount of
$2,645,244.80, for the reasons explained below.
Plaintiffs Can Reach the Funds on a Creditorâs Bill
action arises out of a Judgment in the amount of $1,000,000
obtained by the plaintiffs in this Court on February 26,
2006. The Judgment arose from the defendantâs breach of an
agreement for the sale and purchase of plaintiffâs interests
in a certain parcel of land. Over the years, plaintiffs have
made extensive efforts to collect on their Judgment, to
little avail, and they now seek an Order permitting them to
reach and apply funds that are due the defendant pursuant to
consulting contracts he has with the Davis
has objected primarily on the grounds that plaintiffs did not
bring a separate complaint against the Davis Companies as
reach and apply defendants, as required by G.L.c. 214, Â§
3(6). However- although the plaintiffs did not assert this as
a basis for relief- I find that they may pursue equitable
relief in the nature of a creditorâs bill.
a judgment creditor such as the plaintiffs may assert a reach
and apply action in either statutory or non-statutory form.
See Foster v. Evans, 384 Mass. 687, 689 (1981).
"[N]onstatutory actions to reach and apply are equitable
actions distinguished from both statutory actions to reach
and apply [under] G.L.c. 214, Â§ 3(6), and statutory actions
to reach and apply fraudulently conveyed property [under]
G.L.c. 214, Â§ 3(8)." Cavadi v. DeYeso, 458
Mass. 615, 624-25 (2011). Such actions are in the nature of
what was previously known as a "creditorâs bill."
Creditorsâ bills have long been recognized as "an aid to
litigants seeking to satisfy their judgments" and
"the creation of a statutory action to reach and apply
did not abolish the older equitable action,"
Foster, 384 Mass. at 691.
"Traditionally, a creditorâs bill could be brought (i)
by a judgment creditor, (ii) who had attempted to obtain
satisfaction at law, and (iii) who sued in equity for the
purpose of reaching property that could not be taken on
execution at law." Cavadi, 458 Mass. at 625
(citing Foster, 384 Mass. at 691). However,
"judgment and fruitless execution ... are not the only
possible means of proof. The necessity of resort to a court
of equity may be made otherwise to
appear." Id. For example, a judgment
creditor who alleges that the debtor has fraudulently
transferred his assets to a third party is entitled to
equitable relief in the nature of a creditorâs bill.
Id., 384 Mass. at 694; see also
Anaesthesia Assocs. of Mass., PC v. Plexus Anesthesia
Servs. of Mass., PC, 2018 Mass.Super. LEXIS 32 [34
Mass.L.Rptr. 668] (Salinger, J.) (in cases involving
fraudulent conveyances, "the judgment creditor need not
prove a fruitless attempt at execution").
plaintiffs have produced a sworn statement by the defendant
himself that he transferred a home he owned in Cohasset into
a trust, for no consideration, in order to remove the
property from the plaintiffsâ reach. As such, plaintiffs have
established a fraudulent conveyance and need not prove a
fruitless attempt at execution.
the plaintiffs have established- through their own Affidavit
and signed acknowledgements by the defendant- a long history
of attempts to collect on the Judgment, which have included
entering into payment plans with the defendant and seeking to
attach his bank accounts, but have only recovered a small
fraction of what they are owed. Therefore, plaintiffs have
established that execution "would be of no practical
utility." Foster, 384 Mass. at 693
(quoting Maguire v. Spaulding, 194 Mass.
601, 604 (1907)) ("[t]he rule requiring both judgment
and unsatisfied execution is not an absolute one, and does
not apply where a judgment and execution would be of no
Accordingly, I find that plaintiffs are entitled to
nonstatutory, equitable relief in the nature of a creditorâs
bill, and may reach and apply funds due the defendant from
the Davis Companies.
Plaintiffs Are Entitled to Postjudgment Interest
Defendant also disputes that plaintiffs are entitled to
postjudgment interest, alleging that the Court, in entering
Judgment in 2006, "rejected plaintiffsâ request for ...
interest." I disagree.
the Court (Brady, J.) resolved Cross Motions for Judgment on
the Pleadings in favor of the plaintiffs, the plaintiffs
submitted a proposed Judgment, which was signed by the clerk.
A paragraph in the Judgment that provides for postjudgment
interest at the rate of 12% is crossed out. I do not
agree with the defendant that this deprives plaintiffs of
collecting such interest. Postjudgment interest at the rate
of 12% is not part of a Judgment itself, but is added to it,
and the Court need not authorize it because it is awarded
automatically, by law. Absent any evidence that the
plaintiffs agreed to waive ...