Opinion
19-P-1028
06-23-2020
VEENA SHARMA v. COUNTY MORTGAGE, LLC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In December 2018, the pro se plaintiff brought this action for damages against the defendant, Stuart Cole, alleged to be the owner of County Mortgage LLC. The brief complaint states that the defendant "fraudulently, secretly and intentionally trapped [the plaintiff] in a [sic] unscrupulously, deceitful contract, called predatory lending." The complaint alleges, inter alia, that the defendant "secretly inflated the loan amount of approximately $72,000 to $150,000," "secretly added" -- apparently as collateral -- a valuable rental condominium in addition to the plaintiff's residence, and submitted "fabricated" and "altered" documents to the Massachusetts Commission Against Discrimination.
On March 18, 2019, the plaintiff filed "an emergency motion" to stop a foreclosure of her residence scheduled for March 20, 2019, at 10 A.M. A letter attached stated that the plaintiff was asking the court "to stop/postpone foreclosure until further directions from the honorable Superior Court."
On that same date, the motion judge issued a "memorandum and order on plaintiffs' motion for preliminary injunction." Finding that the plaintiff had not demonstrated any likelihood of success on the merits, the motion judge denied the emergency motion, which he characterized as one for a preliminary injunction.
In that same memorandum and order, the judge made reference to a number of facts not alleged in the complaint, referring to two earlier court cases filed by the plaintiff's husband and apparent coborrower, Tej Sharma. The judge said that the plaintiff "should have been included" in the prior cases, that the plaintiff and her husband had borrowed $150,000, and that the amount was borrowed at a fixed interest rate of 14.9 percent. The judge concluded that was not a sufficiently high interest rate to amount to predatory lending, and that "the court will not delay the foreclosure further." Although neither a responsive pleading nor a motion to dismiss had been filed by the defendant, the judge dismissed the complaint for failure to state a claim upon which relief could be granted. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The plaintiff has appealed.
The appellee's brief in this case was filed by Stuart Cole, who asserts that he was named as appellee, but that the only defendant, and only proper appellee, is County Mortgage, LLC. For reasons that have not been explained to us, the caption of the case in the Superior Court was Veena Sharma vs. Stuart Cole as owner of County Mortgage LLC. We note that the civil cover sheet filed with the complaint listed Stuart Cole as a defendant and listed County Mortgage, LLC, on the line below that, apparently also as a defendant. The document that appears to be the complaint is captioned Verna Sharma vs. County Mortgage, LLC, though its allegations are all against Stuart Cole, who it describes as the "lender, owner, and manager of County Mortgage." The judge's order dismissing the case was captioned Verna Sharma vs. County Mortgage, LLC. The notice of appeal was docketed in the case below with the Superior Court caption. In any event, we think the pro se notice of appeal in this case can be read and understood to amount to an appeal against the defendant County Mortgage, LLC. We do not know why the defendant asserts that he alone was named as appellee. Nothing in the manner in which the appeal has been prosecuted affects our jurisdiction or the propriety of addressing its merits. The defendant's brief notes correctly that myriad facts asserted in the plaintiff's appellate brief and documents to which it refers are not contained in the record below. We do not rely on any of these factual assertions or documents in reaching our decision.
As to the emergency motion, regardless of whether what was sought was properly described as "preliminary injunctive relief" or not, we see no abuse of discretion or other error of law in the judge's denial of the motion in light of the plaintiff's failure to show entitlement to the injunctive relief she sought.
The plaintiff asserts that this is a mischaracterization as the lawsuit itself was one for money damages and not one to prevent foreclosure. As described in the text, the characterization is irrelevant to our decision.
The judge's sua sponte dismissal for failure to state a claim, however, stands on less solid ground. The defendant has pointed us to no published Massachusetts appellate case permitting dismissal of a complaint on the basis of a judge's sua sponte motion to dismiss under rule 12 (b) (6). The one published case he does cite, Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002), states that, although "in limited circumstances, sua sponte dismissals of complaints under Rule 12(b)(6) . . . are appropriate . . . such dismissals are erroneous unless the parties have been afforded notice and an opportunity to amend the complaint or otherwise respond." Id., quoting Futera Dev. of P.R., Inc. v. Estado Libre Asociado de P.R., 144 F.3d 7, 13-14 (1st Cir. 1998). In Chute, the United States Court of Appeals for the First Circuit went on to say that a sua sponte dismissal entered without prior notice, like the one in this case, might be affirmed but only "if it is crystal clear that the plaintiff cannot prevail and that amending the complaint will be futile." Chute, 281 F.3d at 319, quoting Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). In order to obtain affirmance in such circumstances, in the First Circuit "the party defending the dismissal must show that 'the allegations contained in the complaint, taken in the light most favorable to the plaintiff, are patently meritless and beyond all hope of redemption.'" Id., quoting Gonzalez-Gonzalez, supra.
This, the defendant does not even attempt here. Moreover, the dismissal by the motion judge was based not on the allegations of the complaint, which of course must be taken as true for purposes of any such motion under rule 12 (b) (6), but apparently based upon the facts recited in the judge's decision, which may or may not have been taken from findings made in other cases relating to the loan at issue in this case. The order dismissing the complaint in this matter was error and the judgment therefore must be reversed.
We express no opinion on the question whether the facts alleged in the complaint and the reasonable inferences that may be drawn therefrom taken in the light most favorable to the plaintiff state a claim upon which relief may be granted.
So ordered.
By the Court (Rubin, Blake & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 23, 2020.