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Commonwealth of Massachusetts
County of Suffolk The Superior Court
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CIVIL DOCKET#: SUCV2000-04274-B
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RE: V&M Management Inc et al v Winter Hill Federal Savings Bank et al
TO: V&M Management Inc 125 West Street HydePark, MA02136
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NOTICE OF DOCKET ENTRY
You are hereby notified that on 03/22/2002 the following entry was made on the above referenced docket:
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JUDGMENT (SUMMARY)(PURSUANT TO MASS R CIV P 56) entered on docket pursuant to Mass R Civ P 58(a) and notice sent to parties pursuant to Mass R Civ P 77(d) Kottmyer J
Dated at Boston, Massachusetts this 22nd day of March, 2002.
Michael Joseph Donovan, Clerk of the Courts
BY: John F. Reveliotis/Norman W, Huggins Assistant Clerk
Telephone: 617-788-8141
cvdaeneric 2.wod 2118552 iud56o ohillios
N.B. FOR CLERK'S USE ONLY tyYirti^C^ JUDGMENT ENTERED ON DOCKET^ ) 2002 PURSUANT TO MASS. R.CIV.P.58(a) AND NOTICE SENT TO PARTIES PURSUANT TO MASS.R.CIV.P.77(d)
AS FOLLOWS:
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT L ACTION b-4274
ALPHONSE MOURAD, et. al., Plaintiffs
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v
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WINTER HILL FEDERAL SAVINGS BANK, et. al..
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Defendants
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JUDGMENT (SUMMARY) (PURSUANT TO MASS.R.CIV.P.56)
This action came on to be heard before the court, D. M. Kottmyer, J., presiding, upon motion of the defendant, WINTER HILL FEDERAL SAVINGS BANK, for summary judgment pursuant to Mass. R. Civ. P. 56 - the parties having been heard- the court having considered the pleadings - depositions - answers to interrogatories - admissions - and affidavits, finds there is no genuine issue as to material fact and that the defendants are entitled to a judgment as a matter of law, it is ordered and declared that: (1) all claims purportedly brought by or on behalf of V&M, Inc. are DISMISSED: (2) all claims against McGoldrick are DISMISSED: and (3) Winter Hill's motion for summary judgment on all claims against it is ALLOWED. Judgment shall enter in favor of the defendants.
It is further ORDERED: Alphonse Mourad is prohibited from filing any action against the defendant Winter Hill Federal Savings Bank or any of its employees in any state court of original jurisdiction without first complying with the following procedures:
All such complaints must be signed under the pains and penalties of perjury and accompanied by a copy of this order.
Before requiring defendants) to file an answer, the clerk will bring the complaint to the Regional Administrative Judge, or her designee, of the Superior Court Department of the county where the court in which Mr. Mourad seeks to file the complaint is located, who shall review the complaint and conduct a brief hearing on the record to determine whether or not the claims are frivolous. At any such hearing, the Regional Administrative Judge or her designee shall hear Mr. Mourad's testimony regarding his claims.
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If the Regional Administrative Judge or her designee determines, upon consideration of the evidence presented at the hearing and after a review of the complaint, that the claims are frivolous, the complaint will not be accepted for filing. Alternatively, if the Regional Administrative Judge or her designee determines that the complaint is not frivolous, the complaint shall then be accepted for filing in the usual manner.
Dated at Boston, Massachusetts, this 21st day of March , 2002
MICHAEL JOSEPH DONOVAN CLERK OF COURT


COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
SUPERIOR COURT CIVIL ACTION
No. 00-4274B
ALPHONSE MOURAD, and another',
Plaintiffs,
vs.
WINTER HILL FEDERAL SAVINGS BANK, and another2 Defendants.
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MEMORANDUM OF DECISION AND ORDERS ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS. OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT AND FOR INJUNCTIVE RELIEF
BACKGROUND
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This is a civil action for damages purportedly brought, pro se, by V&M Management, Inc. ("V&M")3 and its former president Alphonse Mourad ("Mourad"). The complaint alleges that Winter Hill Federal Savings Bank ("Winter Hill") and its President, Sandra McGoldrick ("the
' V&M Management, Inc. 2 Sandra McGoldrick.
3 V&M Management, Inc., a corporation, was involuntarily dissolved in bankruptcy in 1998. In 2000, when this lawsuit was filed, it was not an entity capable of bringing suit. In addition, a corporation must be represented by counsel. See Vamev Enters.. Inc. v. WMF. Inc.. 402 Mass. 79 (1978) (A corporation may not be represented in judicial proceedings by a corporate officer who is not licensed to practice in the Commonwealth). To the extent that the complaint purports to assert claims on behalf of V&M, they are dismissed. In addition, although McGoldrick is named as a defendant, the Complaint alleges no facts which would support a cause of action against her and the claims against her are dismissed.
defendants") "wrongfully, fraudulently, unfairly, tortiously, negligently, and unlawfully" caused plaintiffs to lose their property, Mandela Apartments, in Roxbury. The matter came before the Court on plaintiffs Motion to Set Aside and For Relief from Judgment. The Court allowed the motion, but notified the parties that it would treat the opposition as a motion for judgment on the pleadings or, in the alternative, for summary judgment. Mourad thereafter filed an opposition. For the following reasons. Winter Hill's motion, treated as a motion for summary judgment, is ALLOWED. In addition. Winter Hill's request for injunctive relief against Mourad is granted. SUMMARY JUDGMENT RECORD
The undisputed facts viewed in the light most favorable to the nonmoving party, the plaintiff, are as follows. Mourad was formerly the sole shareholder of V&M. V&M owned Mandela Apartments, in Roxbury ("the Mandela property" or "the property"), a 276 unit housing project for low and moderate income families that was built and regulated pursuant to G.L. c. 121 A. On January 30, 1984, Winter Hill loaned V&M $2 million, and on November 27, 1984, an additional $800,000. Both loans were secured by first and second mortgages on the Mandela property.
On January 8,1996, V&M filed a Chapter 11 petition in the United States Bankruptcy Court. The Bankruptcy Court appointed a Trustee at the request of the City of Boston, the Commonwealth of Massachusetts, and the Massachusetts Department of Revenue. A joint reorganization plan ("Joint Plan") was proposed by the Chapter 11 Trustee, Winter Hill, and other parties to the proceeding. A competing plan was proposed by Mourad Owens LLC and Gary Leroy ("the Mourad Owens Plan"). After extensive debate, the Joint Plan was approved. Mourad filed a number of motions in the Bankruptcy Court asserting that Winter Hill's involvement in and approval of the Joint Plan were improper. See Defendants' Memorandum, Ex. D, E and F. All of these claims were
rejected by the Bankruptcy Court. During these proceedings there was also extensive debate concerning whether the Mandela property was taxable pursuant to G.L. c. 121 A. Mourad complained that the Trustee had failed to pursue litigation of the Chapter 121 A issues. The Bankruptcy Court rejected this contention because the issues had already been litigated, "and the Debtor has resoundingly lost." Id., Ex. G. On August 31,1998, during the course of the bankruptcy proceedings, V&M was involuntarily dissolved. Id., Ex. H.
On September 25,1997, while the Chapter 11 proceeding was pending, Mourad commenced an action against Winter Hill in this court ("the 1997 action.") In the 1997 action Mourad first moved to enjoin Winter Hill's foreclosure and sale of his home.4 The court denied his motion and foreclosure ensued. The action went forward on Mourad's remaining claims5 and on Winter Hill's counter-claim for the deficiency. On November 30, 1999, this court (Sikora, J.) granted summary judgment in favor of Winter Hill. Mourad v. Winter Hill Savings Bank. Civ. No. 97-5144A (Suffolk Super. Ct. 1997) (Sikora, J.). Specifically, the court held, inter alia, that Mourad's claim that Winter Hill should have investigated the tax status of the Mandela property before advancing loans to V&M was barred by the statute of limitations.6 Id. Additionally, regarding Winter Hill's support of the Joint Plan the court ruled:
4 This foreclosure resulted from Mourad's default on a loan secured by a mortgage on his residence.
5 These claims, in sum, challenged the propriety of the foreclosure sale, and asserted that the foreclosure was done in bad faith in retaliation for Mourad's opposition to the Joint Plan.
6 The Court stated: "V&M has been challenging Mandela's tax status under G.L. c. 121 A in litigation since at least 1989, and has never brought a claim against Winter Hill. Accordingly, Mourad's challenge against Winter Hill's investigation before making loans to V&M in 1984 is barred by the statute of limitations."
[T]here is no evidence that Winter Hill committed any overt acts with improper motive in connection with the Joint Plan of reorganization. In fact, the Bankruptcy Court found Winter Hill's conduct appropriate. Mourad is estopped from relitigating the issues. See Commissioner of Dept. of Employment & Training v. Dugan. 428 Mass 138, 142 (1988) (collateral estoppel prevents relitigation of issues finally decided in prior litigation).
APPLICABLE LAW
This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r of Correction. 390 Mass. 419,422 (1983); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time. Inc.. 404 Mass. 14, 16-17 (1989). A party which does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp.. 410 Mass. 805.809 (1991). Once the party moving for summary judgment has shown that there is no genuine issue of material fact, the burden is then upon the opposing party to respond and allege specific facts showing that there is a triable issue. John B. Deary. Inc v. Crane. 4 Mass. App. Ct. 719, 722 (1976). DISCUSSION
Plaintiff argues that defendants "wrongfully, fraudulently, unfairly, tortiously, negligently and unlawfully" caused V&M to lose a $20 million property, the Mandela Apartments. This cause of action belonged to V&M which, after April 2, 1996, was represented by the Trustee in the Bankruptcy and which was voluntarily dissolved in 1998. Mourad has no standing to assert claims
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belonging to the corporation. Even ifMourad had standing to assert claims on behalf of V&M, they would be barred. He argues that defendants caused V&M's loss by, inter alia, ignoring liens against the property, failing to determine the tax status of the property, failing to follow standard lending procedures, and through their general inexperience in dealing with multi-family properties. He also asserts that defendants acted improperly by supporting the Joint Plan rather than the Mourad Owens reorganization plan. Mourad asserted the same arguments in Bankruptcy Court and in the 1997 action in this court.
The doctrine of issue preclusion prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies. Heacock v. Heacock.402Mass.21.23 (1988). This doctrine requires proof that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication and (4) the issue decided in the prior adjudication must have been essential to the earlier judgment. Commissioner of the Dept. of Employment & Training v. Dugan. 428 Mass. 138, 142 (1998) (citation omitted).
In addition, the doctrine of res judicata bars plaintiff from relitigating claims which have already been adjudicated on the merits in a suit between the same parties or their privies. See Fassas v. First Bank & Trust Co.. 353 Mass. 628 (1968). The essential issue for purposes of res judicata is whether the suits rest upon a claimed violation of the same right. Id. As the party moving for summary judgment on the basis of claim and issue preclusion, defendants bear the burden of establishing each of these factors. Pederson v. Time. Inc.. 404 Mass. 14, 16-17 (1989).
Here, Winter Hill has satisfied each of the foregoing elements. First, there was a final
decision in the bankruptcy action. Second, Mourad participated in the bankruptcy proceedings as an interested party. He filed a number of motions which were heard and decided by the Bankruptcy Court. Mourad was a party to the 1997 action which is now on appeal.
In both the Bankruptcy Court and the 1997 action Mourad challenged Winter Hill's involvement in the Joint Plan and argued that Winter Hill should have determined whether the Mandela property was taxable under G.L. c. 121A before it loaned V&M funds. The Bankruptcy Court rejected these arguments. In the 1997 action, the court held that Mourad was estopped from relitigating both issues. See Mourad v. Winter Hill Savings Bank. Civ. No. 97-5144A (Suffolk Super. Ct. 1997) (Sikora, J.). The Court also dismissed all of plaintiffs other claims against Winter Hill. They may not be litigated for a third time. See Citizens Bank of Massachusetts v. Bishay. Civ. No. 95-1312A (Suffolk Super. Ct. 1997) (Doerfer, J.) and cases cited (resjudicata prevents a debtor from raising claims in Superior Court which were or could have been litigated before the Bankruptcy Court, including claims relating to the bank's right to collect on and enforce a note and related counterclaims).
In short, in both of the former actions Mourad challenged Winter Hill's conduct in connection with its advancement and handling of loans to V&M and Mourad. Two different courts have rejected his claims. Mourad is barred from relitigating issues related to Winter Hill's 1984 loans to V&M, and its involvement in the reorganization plan. See Miles v. Aetna Cas and Sur Co.. 412 Mass 424(1992) (A fundamental precept of common-law adj udication, embodied in the related doctrines of collateral estoppel and resjudicata, is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction cannot be disputed in a subsequent suit between the same parties or their privies," (citing Montana v. United States. 440 U.S. 147, 153

(1897)).
Furthermore, the 1997 action is currently on appeal. As argued by the defendants, to the extent that any "claims" in the current action are deemed different from the claims asserted in the 1997 action, plaintiff could have asserted these claims in the 1997 action. Accordingly, plaintiffs present claims are precluded by Mass. R. Civ. P. 12(b)(9) by the-pendency of the prior action. See Yentile v. Howland. 26 Mass. App. Ct 214, 216 (1988) ("the salutary and well established rules against claim splitting" preclude a party from bringing a claim that was brought or could have been brought in a prior pending action in which the parties and issues were identical.); Citizen Bank of Massachusetts v. Bishav. Civ. No. 95-1312A (Suffolk Super. Ct. 1997) (Doerfer, J.) (applying the doctrine of prior adjudication to bar claims that were or could have been litigated in the bankruptcy court based on that court's confirmation of a Chapter 11 reorganization plan.)
In short: 1) Mourad does not have standing to assert claims on behalf of V&M; and 2) the claims he seeks to assert on his own behalf and on behalf of V&M have been litigated in Bankruptcy Court and this Court and Mourad is precluded, as a matter of law, from litigating the same issues for a third time.
ORDER
For the reasons stated above, it is hereby ORDERED (1) all claims purportedly brought by or on behalf of V&M, Inc. are DISMISSED: (2) all claims against McGoldrick are DISMISSED:
and (3) Winter Hill's motion for summary judgment on all claims against it is ALLOWED. Judgment shall enter in favor of the defendants.
It is further ORDERED: Alphonse Mourad is prohibited from filing any action against the defendant Winter Hill Federal Savings Bank or any of its employees in any state court of original
jurisdiction without first complying with following procedures:
All such complaints must be signed under the pains and penalties of perjury and accompanied by a copy of this order.
Before requiring defendant(s) to file an answer, the clerk will bring the complaint to the Regional Administrative Judge, or her designee, of the Superior Court Department of the county where the court in which Mr. Mourad seeks to file the complaint is located, who shall review the complaint and conduct a brief hearing on the record to determine whether or not the claims are frivolous. At any such hearing, the Regional Administrative Judge or her designee shall hear Mr. Mourad's testimony regarding his claims.
If the Regional Administrative Judge or her designee determines, upon consideration of the evidence presented at the hearing and after a review of the complaint, that the claims are frivolous, the complaint will not be accepted for filing. Alternatively, if the Regional Administrative Judge or her designee determines that the complaint is not frivolous, the complaint shall then be accepted for filing in the usual manner.
Diane M. Kottmyer Justice of the Superior Court
Dated: March JT2002



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