Petitioner Amy L. Stephens-Martin (Petitioner) commenced this action by filing her unverified Petition to Try Title (which was dated May 31, 2012) on June 4, 2012, by which she sought to challenge, pursuant to G. L. c. 240, §§ 1 - 5, the validity of a foreclosure sale by Respondent Bank of New York Mellon Trust Company, N.A. f/k/a The Bank of New York Trust Companyas Successor to JPMorgan Chase Bank, N.A. as Trustee for RAMP 2006RZ4 (BONYM) of property allegedly owned by Petitioner and located at 52 Bridge Street, South Hadley, MA (Locus). [Note 1] A case management conference was held on July 9, 2012, which was continued to September 26, 2012 because of a lack of service on all Respondents.
On October 17, 2012, Respondents [Note 2] filed a Motion to Dismiss Petitioners Second Amended Petition. [Note 3] On December 14, 2012, Petitioner filed her Opposition to Respondents Motionto Dismiss. Respondents filed their Response to Petitioners Opposition on January 31, 2013. A hearing was held on the Motion to Dismiss on May 7, 2013. [Note 4] After reviewing the submissions relative to the Motion to Dismiss, the court held a telephone status conference on July 10, 2013, at which time the court notified the parties that it intended to avail itself of its discretion, pursuant to Mass R. Civ. P. 12 (the Rules), to convert the matter from a Motion to Dismiss to a Motion for Summary Judgment. [Note 5] In light of this procedural conversion, this court gave the parties time to submit additional briefs in the context of a Motion for Summary Judgment.
On August 2, 2013, Petitioner filed an Opposition to Respondents Motion to Dismiss Being Treated by the Court as a Motion for Summary Judgment, together with Exhibits, Affidavit of Daniel Martin (Martin), and Affidavit of Jamie Ranney, Esq (Ranney). On August 13, 2013, Respondents filed a Response to Petitioners Opposition to Respondents Motion for Summary Judgment, together with Affidavit of James L. Rogal, Esq. (the Rogal Affidavit) and Affidavit of Julie A. Brennan, Esq. The Motion to Dismiss/Motion for Summary Judgment was then taken under advisement. [Note 6]
By Decision dated October 1, 2013 (Land Court Decision 1), I found as follows: (a) that the discharge of a mortgage from Joseph N. Gormley and Darla L. Gormley to MERS dated October 31, 2002 (MERS Mortgage 1) was valid and that there was no possibility of a cloud on title resulting from MERS Mortgage 1; (b) that Petitioner did not have standing to challenge the validity of the assignment by MERS to BONYM dated May 17, 2010 (the BONYM Assignment) of a mortgage from Petitioner to MERS dated June 26, 2006 (MERS Mortgage 2); (c) that the BONYM Assignment was valid; (d) that the Note from Petitioner to South Star dated June 26, 2006, in the amount of $154,900 (the Note) and MERS Mortgage 2 could be split; (e) that BONYM and its agents had complied with G. L. c. 244, § 35A; and (f) that the issue of notice of the postponement of the foreclosure sale gave rise to a material disputed fact.
In view of these findings, the court determined that a trial was necessary to determine (a) whether a public proclamation was made on April 18, 2012, (b) whether Petitioner and/or Martin received notice of the postponement date byanyother means (including, but not limited to, a courtesy notice (discussed below) from BONYMs counsel to Petitioner and Martin via First Class mail informing them that the foreclosure sale was postponed from April 18, 2012 to June 4, 2012 at 12:00 PM), (c) whether an unopposed entry was made onto Locus on June 4, 2012, and (d) whether a Certificate of Entry executed by two purported witnesses (David Bergeron and Charlene Henchey) that claimed that James Palumbo, a duly authorized attorney in fact for BONYM, made an open, peaceable and unopposed entry onto Locus . . . then declared, of foreclosing [MERS Mortgage 2] for breach of conditions thereof, was properly executed. [Note 7]
Less than a month after the Land Court Decision 1 was issued, on October 29, 2013, Ranney filed a Motion to Withdraw as counsel and to Terminate Representation of Petitioner. [Note 8] [Note 9] On November 14, 2013, Respondents filed a limited opposition to this motion on the basis of concerns regarding outstanding discovery. Because (as discussed below) Ranney was later disqualified as counsel to Petitioner, this motion to withdraw became moot.
On December 31, 2013, Respondents filed a motion seeking to compel discovery, or alternatively for sanctions. In the parties pre-trial memorandum, filed on January 24, 2014, Petitioner (notwithstanding the holdings in Land Court Decision 1) purported to limit the issues for trial to a single issue: whether the foreclosure sale originally scheduled for April 18, 2012 was postponed by public proclamation until June 4, 2012; Respondents, for their part, claimed that the issues for trial included whether Petitioner and/or Martin had actual notice of the postponed foreclosure sale. In the pre-trial memorandum, Respondents listed Ranney as a trial witness. A pre-trial conference and hearing on Respondents motion was held on January 27, 2014; Petitioner filed opposition to Respondents motion at this hearing. By order dated January 27, 2014, the court issued several directives relative to Respondents motion, and set a deadline for Petitioner to file a motion for a protective order relative to Respondents request that Ranney appear as a fact witness in this case.
Petitioner filed her Motion for Protective Order on February 3, 2014, by which she sought to strike Ranney as a witness at trial. On February 10, 2014, Respondents opposed this motion and cross-moved for a motion in limine forbidding Petitioner from introducing certain evidence; on February 21, 2014, Petitioner opposed this cross-motion in limine. By Order dated February 26, 2014 (the February 2014 Order), the court (a) allowed Ranney as a trial witness, finding that Ranneys knowledge of the postponement was key evidence at trial (and the April 2012 Email, as hereafter defined, was only produced by Ranney at trial as a witness); (b) held that Ranney, because he would be testifying as a fact witness at trial, was disqualified from representing Petitioner in this case; and (c) framed the issues for trial as both whether a public proclamation of postponement was made and whether Petitioner received notice of the postponement date by any other means. The February 2014 Order also raised the issue of whether Ranneys knowledge could be imputed to Petitioner. [Note 10] Petitioner was given thirty days to find substitute counsel, which deadline was later extended to May 9, 2014, on which date a second pre-trial conference was held. At that conference, Petitioner represented that she had not retained an attorney (despite having over sixty days to do so), so the court set the case down for a trial. The parties submitted a second joint pre-trial memorandum on April 30, 2014, in which Petitioner, now pro se, again attempted to limit the issue for trial to only whether the April 18, 2012 foreclosure sale was postponed by public proclamation; Respondents, as before, claimed that the issues for trial included whether Petitioner and/or Martin had actual notice of the postponed foreclosure sale.
The first day of trial was held at the Land Court in Boston, MA on July 9, 2014. Ranney did not appear at trial that day, where he was scheduled to appear as a witness, because he claimed he was not properly served by subpoena. [Note 11] The second day of trial was also held at the Land Court in Boston, MA on August 19, 2014, at which time Ranney appeared as a witness and produced several documents requested in the subpoena. [Note 12] Testimony at trial for Petitioner was given by Dan Martin (Petitioners husband). Testimony at trial for Respondents was given by Amy Stevens-Martin (Petitioner), James Rogal (attorney for Orlans Moran PLLC), Dee Tache (auctioneer), Jerry Tache (auctioneers husband) (de bene), and Jamie Ranney (Petitioners attorney). Respondents recalled Dan Martin as a recall witness. There were fifteen exhibits submitted into evidence. Ranney filed an Affidavit on September 4, 2014 indicating that he had produced at trial all documents relative to discovery requests. Post-trial briefs were filed on October 6, 2014, and at that time the case was taken under advisement.
Also on October 6, 2014, Respondents filed their Motion for Rule 11 Sanctions Against Attorney Jamie Ranney and Petitioner Amy L. Stevens-Martin, together with Affidavit of Gregory S. Bombard (Bombard). Ranney filed his Opposition to the Motion for Sanctions on October 23, 2014, together with Cross Motion for Sanctions, Attorneys Fees and Costs Against Respondent Bank of New York Mellon and Attorney Gregory S. Bombard. On October 24, 2014, Petitioner filed her Opposition to Respondents Motion for Sanctions, Cross-Motion for Sanctions, and Motion to Strike Respondents Post-Trial Brief. A hearing was held on the post-trial motions on October 24, 2014, and these motions were also taken under advisement.
Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts (some of which are taken from Land Court Decision 1):
The Relevant Parties and Mortgages
1. Joseph N. Gormley and Darla L. Gormley (together, the Gormleys) executed a mortgage (MERS Mortgage 1) on Locus to MERS, as nominee for Applied, dated October 31, 2002, and recorded with the Hampshire County Registry of Deeds (the Registry) at Book 6861, Page 263. MERS Mortgage 1 secured a promissory note from the Gormleys to Applied in the amount of $86,400.
2. Applied purported to assign MERS Mortgage 1, together with the underlying note, to Merrimack, by Assignment dated October 31, 2002 (the Merrimack Assignment), which was recorded with the Registry at Book 6861, Page 263.
3. Petitioner became record owner of Locus pursuant to a deed (the Deed) from the Gormleys, dated June 20, 2006, and recorded with the Registry at Book 8768, Page 86.
4. On June 26, 2006, Petitioner executed a mortgage (MERS Mortgage 2) to MERS, as nominee for South Star, recorded with the Registry at Book 8768, Page 89. On the same day Petitioner executed a note (the Note) to South Star in the amount of $154,900. [Note 13] Paragraph 22 of the Non-Uniform Covenants section of MERS Mortgage 2 states in part, If the default is not cured ... Lender may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law. Paragraph 20 of MERS Mortgage 2 states in relevant part, [t]he note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.
5. MERS executed a Discharge of MERS Mortgage 1, by virtue of an instrument titled Mortgage Release, Satisfaction, and Discharge, on June 30, 2006, recorded with the Registry at Book 8807, Page 325 (the Discharge).
6. On August 19, 2009, Petitioner and Martin as borrowers, and GMAC as Lender, executed a Mortgage Modification Agreement (the Modification). [Note 14] The Modification references the Note and also defines the Security Instrument as MERS Mortgage 2. The Modification also states, Borrower acknowledges that Lender [i.e. GMAC] is the legal holder and the owner of the Note and Security Instrument . . . .
7. By document dated May 17, 2010, MERS assigned MERS Mortgage 2 to BONYM, recorded with the Registryon May 21, 2010, at Book 10180, Page 308 (the BONYM Assignment). The BONYM Assignment was executed before a notary by Sarah Hargrove, as Assistant Secretary and Vice President of MERS.
The Foreclosure upon and Sale of Locus
8. At some point subsequent to 2009, Petitioner and Martin defaulted on the MERS Mortgage 2. Accordingly, on April 5, 2011, GMAC sent Petitioner and Martin a notice of default and right to cure pursuant to G. L. c. 244, §§ 35(a),(b) and (c) (the Notice to Cure).
9. On or about December 29, 2011, BONYM filed a Complaint in this court, pursuant to the Servicemembers Civil Relief Act, to foreclose upon MERS Mortgage 2. This court issued an Order to Show Cause (OTSC) to BONYM on March 6, 2012. After a satisfactory answer to the OTSC, Judgment entered on this Complaint on May 21, 2012.
10. On March 23, 2012, BONYM sent to Petitioner and Martin (separately) via First Class Mail and Certified Mail, Notices of Intention to Foreclose and of Deficiency After Foreclosure of Mortgage which stated that BONYM intended to foreclose under power of sale for breach of condition, and by entry, on or after April 18, 2012 (the Notice of Intent).
11. BONYM caused to be published a Notice of Foreclosure Sale in the Daily Hampshire Gazette, on March 28, 2012, April 4, 2012, and April 11, 2012.
12. The foreclosure auction was initially scheduled for April 18, 2012. [Note 15]
13. By letter to Orlans Moran PLLC (Orlans Moran -- i.e., BONYMs agent in connection with the foreclosure) dated April 13, 2012 (sent by fax, regular USPS and FedEx) (the April 2012 Letter), which was carbon-copied to client (i.e., Petitioner and Martin), Ranney stated, [p]lease be advised that this office represents Daniel (a/k/a Danial Martin) and Amy L. Stephens Martin . . . Given the outstanding issues with the Land Court matter [the OTSC], this office request confirmation that the auction of the premises, currently scheduled for April 30 [sic], 2012, is being postponed. Please advise immediately. Despite the typographical error as to the date of the foreclosure sale in the body of the April 2012 Letter, in the heading thereof Ranney recited the correct date as April 18, 2012.
14. By email to Ranney dated April 16, 2012 at 3:34 PM (Subject: Locus) (the April 2012 Email), Orlans Moran (Julie McGrane, litigation paralegal) advised Ranney that I received the attached fax [the April 2012 Letter]. This is to confirm that we have received the OTSC and that we have postponed the 4/30/12 [sic] sale date to 6/4/12. [Note 16]
15. Counsel for BONYM sent to Petitioner and Martin (separately) via First Class mail a courtesy notice dated April 16, 2012 (the Courtesy Notice) informing them that the foreclosure sale was postponed from April 18, 2012, to June 4, 2012, at 12:00 P.M. The Courtesy Notice was never returned to counsel for BONYM. At trial, Respondents produced a computer printout (admitted into evidence as Exhibit M), which confirmed that the Courtesy Notice was both prepared and sent on April 16, 2015.
16. Deandre Tache (Deandre), a foreclosure auctioneer, appeared at Locus on April 18, 2012 at approximately 11:45 A.M.. At that time, she sent a photo of the front of Locus to Tache Auctions, her employer, byemaildated 11:49 AM on Wednesday, April 18, 2012 (the Postponement Email). [Note 17] The Postponement Email is titled 52 Bridge St., South Hadley, MA@12:00 pm pp [i.e., postponed] till 6/4/12@12:00 pm.
17. Martin sent Ranney an email dated May 3, 2012 at 8:46 AM in which he states, the new sale date was set for the 6th; [Note 18] this email is contained in a longer chain of correspondence between Martin, Ranney, and personnel in Ranneys office (the May 2012 Email, admitted into evidence as Exhibit O). Part of that chain of correspondence was an internal email dated May 3, 2012 at 9:08 AM, in which Ranney advised Dianne Tartamella (Tartamella) (his assistant) that I show the sale date on my calendar as 6-4. He [Martin] says its (I think) 6-6. Please confirm. [Note 19] Tartamella responded to Ranney at 10:50 AM on the same date, attaching the April 2012 Email which confirmed the postponed foreclosure date as June 4, 2012. At trial, Ranney alleged that he never forwarded this e-mail to Petitioner or Martin, but admitted having several telephone conversations with them pertaining to the foreclosure sale of Locus.
18. On or about May 31, 2012, Ranney drafted Petitioners Petition to Try Title, apparently in preparation for filing this case and overturning the foreclosure sale of Locus. At or about that time, Ranney drafted and forwarded to Martin a no-trespass notice for Martin to give to foreclosure auctioneers on the date of the foreclosure sale -- as he had likewise done in advance of the April 18, 2012 foreclosure sale. Neither Petitioner nor Martin ever alleged that this legal work done by Ranney was performed without their authorization to do so.
19. By letter dated June 1, 2012 and addressed to Orlans Moran PLLC (the June 2012 Letter), which was carbon-copied to client (i.e. Petitioner and Martin), Ranney stated, [t]his office represents Dan and Amy Martin. This matter is scheduled for a foreclosure sale on Monday, June 4, 2012 at 12:00 PM.
20. On June 4, 2012, BONYM held a foreclosure auction at or near Locus at which BONYM was the highest bidder. Martin testified that on June 4, 2012, he was present at the rescheduled foreclosure sale, and that he served the foreclosure auctioneer with the no trespass notice previously provided to him by Ranney (the No Trespass Notice). That same date, Petitioner commenced this action.
21. On June 8, 2012, Caleb J. Shureb (Shureb), attorney in fact for BONYM, executed an Affidavit of Sale, recorded with the Registry on July 25, 2012, at Book 10985, Page 289 (the Affidavit of Sale). [Note 20]
22. On July 21, 2012, BONYM executed a Foreclosure Deed to BONYM, recorded with the Registry on July 25, 2012, at Book 10985, Page 289. BONYM also caused a Certificate of Entry to be recorded with the Registry at Book 10985, Page 287. The Certificate of Entry claimed that James Palumbo, a duly authorized attorney in fact for BONYM, made an open, peaceable and unopposed entry onto Locus...then declared, of foreclosing [MERS Mortgage 2] for breach of conditions thereof. The Certificate of Entry was executed by two purported witnesses (David Bergeron and Charlene Henchey), and notarized.
The Parties Relevant Conduct in this Action
23. After this court issued Land Court Decision 1, the parties began to engage in discovery. Ranney apparently drafted an email to Bombard dated December 17, 2013 at 9:45 AM, addressed to Gbombard@bulkley.com, in which he stated as follows:
Attached is the formal response to the RFPOD [Request for Production of Documents dated November 4, 2013]. The Martins are double checking their files to confirm that whatever they have has either already been provided in motion or other practice or they dont have it/them at all. Any communications from my office (QWRs, 93As, etc., are already in the possession of Orlans and/or BONYM). If you want this stuff produced again - let me know.
As noted below, however, Ranney would later deny having sent this e-mail.
24. Bombard sent a letter to Ranney dated December 19, 2013, objecting to Petitioners deficient discovery production, and stating his intent to file a Motion to Compel on December 20, 2013, in the event that he had not had a response to his RFPOD.
25. Ranney responded to Bombard by email dated December 19, 2013 at 4:04 PM, addressed to email@example.com in which he stated as follows:
I specifically asked you whether you wanted me to produce communications from my office to parties in this matter which you already have in your possession (or which is/are in Orlans possession). You did not reply (I do note that I have sent several emails to your old Bulkley account that did not bounce back so I assume you got them). But you already have these documents - or can easily access them by and through the attorneys that previously represented your clients relative to the foreclosure - so such a request is inherently duplicative, seeks documents that you already have or can easily get from another source and is therefore by its very nature harassing and abusive. To threaten a motion to compel over it is ridiculous.
26. Bombard responded to Ranney by email dated December 20, 2013 at 3:06 PM, in which he stated as follows:
Please forward me whatever emails you sent to my old Bulkley email address. I have not received any emails from you that were sent to that address that I am aware of. Our motion to compel . . . is based on your clients failure to conduct a diligent search for responsive documents . . . . Do your clients intend to further supplement their responses to the requests for production and the subpoena?
27. Ranney responded to Bombard by email dated December 21, 2013 at 9:41 AM, in which he stated only: As they provide me with documents - I am providing them to you.
28. Ranney later sent an email to Bombard dated December 23, 2013 at 8:08 AM, in which he stated: I reviewed my sent box and see that it appears I did not send any emails to Bulkley after all. [Note 21]
29. On December 31, 2013, Bombard filed his Motion to Compel. At the January 27, 2014 hearing on this motion, Respondents strongly questioned whether Ranney and his clients had produced all relevant documents, and noted that, irrespective of whether Ranney objected to the production of documents, the correct procedure for identifying the objected-to documents had not been followed. However, in the interest of moving forward expeditiously (and in view of their stated confidence in the strength of the evidence they already had), Respondents indicated that they preferred to proceed to trial, rather than getting stuck in a protracted discovery dispute. [Note 22] As such, the court never ruled on the motion to compel.
30. As discussed above, trial went forward on July 9, 2014 and August 19, 2014. The parties submitted their post-trial briefs, at which time Respondents also moved for sanctions against Petitioner and Ranney. Inconnectionwithsaid motion, Bombard executed an Affidavit dated October 6, 2014 (the Bombard Affidavit), in which he stated as follows:
Attorney Ranney never contacted me, by phone, email, or letter, to request whether I wanted copies of letters from Attorney Ranneys office already in the possession, custody and control of BONYM and or its attorneys. [Note 23]
Testimony at Trial
31. Martin testified that no one showed up at the foreclosure sale on April 18, 2012. However, in response to the question Its your testimony that no one appeared on behalf of the auctioneer to postpone the sale by public proclamation on April 18th, 2012 to June 4th, 2013 [sic]", Martin equivocated, acknowledging the possibility that he had simply been unable to see the auctioneer, and stating that I didnt see anybody and No one presented themselves. There were pedestrians walking by and cars going by, but no one stopped by to say, Hey, Im from the bank, if thats what you are asking. He also testified, in response to the question [a]nd did you ever get any notice from anyone that a foreclosure sale had been rescheduled for June 4th other than [a guy named Bill who came to his house at the end of May, and expressed an interest in purchasing Locus and told him of the postponement date]? with one word No. [Note 24] Here, too, Martin later equivocated, stating that he couldnt be sure if he had received notice but simply thrown it away. Martin testified that notice of the foreclosure sale was important to him because of his interest in obtaining financing and loan modification. Martin also testified that he sat on his front steps from 11:00 AM until approximately 12:30 PM on April 18, 2012, waiting for the foreclosure. [Note 25] On cross-examination, however, Martin suggested that he had meant that he did not leave Locus, and that he actually might not have remained sitting on the steps thereof. [Note 26]
32. Deandre testified that she was present at Locus approximately twenty minutes prior to the scheduled foreclosure sale for Noon on April 18, 2012, and that she followed a specific procedure for the postponement. She explained the postponing of the foreclosure process as follows, which process was dictated by Tache Auctions, her employer:
Well, I would arrive at the property, and I would have a statement that I would read, which would include the day of the auction, the time, and then when it was being postponed until, take a photograph, e-mail it to the office, and if there were any bidders that had shown up, I would go over and let them know what was happening. [Note 27]
33. Jerry Tache, Deandres husband (Jerry) testified that he drove his wife to Locus on April 18, 2012, to announce a postponement of the foreclosure sale, and that she made the proclamation [of the postponement] outside of the car . . . on or near the walkway.
34. Deandre and Jerry both testified that no prospective bidder was present at Locus on April 18, 2012, and that they did not see Martin sitting on the front steps, as he had testified to doing. Rather, they both testified that it appeared that no one was home at the time.
35. Ranney testified that he had the June 4, 2012, foreclosure date in his calendar since April 16, 2012. Then, when pressed as to whether he had notice somehow or another that the foreclosure date for [Locus] was rescheduled to June 4th, 2012", Ranney unequivocally confirmed such knowledge, responding: Right. And so did my clients. Ranney followed up this statement in his opposition to Respondents motion for sanctions, noting that the Petitioners husband [i.e., Martin] certainly had notice and knowledge of these two (2) dates and times and has never denied this. [Note 28]
A. The Admissibility of the Trial Testimony of Jerry Tache
Before proceeding to the merits of the issues at trial, this court must first address whether to allow the testimony of Jerry Tache (defined above as Jerry) as a witness to be admitted as evidence. Jerry was not listed on the witness list in the pre-trial memo, and his role at the foreclosure postponement does not appear to have been known to Respondents until a short time before the trial. This court allowed his testimony on the second day of trial de bene. At the end of the first day of trial, this court gave Petitioner the opportunity to depose Jerry before the second day of trial, which was approximately five weeks later. [Note 29] This court also gave Petitioner the right to bring Deandre back as a witness after her husband testified. Petitioner declined both of these court offers.
Case law gives broad discretion to the court to allow undisclosed witnesses to testify, particularly where the other party is given an opportunity to depose the new witness. See Cronis, Liston, Nangle & White, LLP v. 90 Exch. LLC, 2012 Mass. App. Div. 169 , 169 *3 (Mass. Dist. Ct. 2012) (no abuse of discretion to permit undisclosed witness to testify where trial was continued to allow an opportunity to depose the witness); Morgan v. Jozus, 67 Mass. App. Ct. 17 , 24, rev. denied, 447 Mass. 1112 (2006) (while the court has discretion to exclude evidence as a sanction for non-disclosure, it must also consider whether a continuance to allow the adversely-affected party time to prepare would mitigate the prejudice caused by non-disclosure); Elias v. Suran, 35 Mass. App. Ct. 7 , 10, rev. denied, 416 Mass. 1106 (1993) ("trial judge has broad discretion in deciding whether to permit expert testimony when the proponent has not given proper notice of the identity of the expert or the subject matter of the expert's anticipated testimony, either in his answers to interrogatories or in his supplementary responses"); Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036 , 1037 (1982), rev. denied, 388 Mass. 1102 (1983) (no abuse of discretion to allow a witness disclosed only shortly prior to trial where party had an opportunity to depose the witness); see also Comm'w v. Caracino, 33 Mass. App. Ct. 787 , 793 (1993) (criminal defendant "must show prejudice in order to have [previously undisclosed] testimony struck . . . ." and "[i]n evaluating prejudice to the defendant, the judge must determine whether the disclosure was sufficiently timely that it allowed the defendant to make effective use of the evidence in preparing and presenting his case" (citations omitted)).
In view of the foregoing authorities, I hereby exercise the discretion allotted to me and allow Jerrys testimony as a witness at trial to come into evidence. [Note 30]
B. Issues Adjudicated at Trial
Having allowed the trial testimony of Jerry to come into evidence, I turn next to the matters at issue at trial.
Petitioner, on several occasions, has attempted to limit the issue before this court at trial to that of whether the foreclosure sale originally scheduled for April 18, 2012, was legally postponed by public proclamation until June 4, 2012. For instance, the Second Joint Pre-trial Conference Memorandum states that the sole issue is whether the foreclosure sale originally scheduled for 4/18/12 was postponed by public proclamation until June 4, 2012. At the trial, however, this court stated that the issues for trial, as specified in Land Court Decision 1, were the notice of postponement of the foreclosure sale as well as the issue of public proclamation. I shall examine both issues in turn. And, upon the evidence adduced at trial, it is clear that the answer to both of these questions is a resounding affirmative.
1. Whether a Public Proclamation of Postponement Was Made
As a preliminary matter, BONYM contends that it strictly complied with the power of sale granted to it by MERS Mortgage 2 and G. L. c. 183, § 21. [Note 31] BONYM also states that it strictly complied with the requirements of G. L. c. 244, §§ 14-15 relative to the statutory requirements for a foreclosure sale. Petitioner contends that BONYM did not strictly comply with G. L. c. 244, §§ 14-15, because BONYM or its agent never made a public proclamation at Locus that the foreclosure sale was to be postponed. Pursuant to G. L. c. 244, § 14 [Note 32], the mortgagee must publish a notice of foreclosure sale in a newspaper published in the town where Locus lies for three consecutive weeks. The mortgagee must also send a notice of foreclosure sale to the mortgagor via registered mail. An affidavit of sale pursuant to G. L. c. 244, § 15 [Note 33] attesting to publication and notice to mortgagor must be recorded at the Registry. An affidavit of sale is evidence of strict compliance with G. L. c. 244, § 14, and as such it shall be admitted as evidence that the statute was complied with. See G. L. c. 244, § 15; G. L. c. 183, § 8; Fed. Natl Mortg. Assn v. Hendricks, 463 Mass. 635 (2012) (where the affidavit of sale is in the statutory form or meets the particular requirements of § 15, a plaintiff has made a prima facie case [of compliance with G. L. c. 244, § 14] (citations omitted)).
BONYM submitted the Affidavit of Sale as an exhibit. The Affidavit of Sale is signed by Shureb, attorneyin fact for BONYM. On its face, the Affidavit of Sale demonstrates strict compliance with G. L. c. 244, § 14. Shureb attested that notice of the foreclosure sale to be held on April 18, 2012 was published in the Hampshire Daily Gazette on March 28, 2012, April 4, 2012, and April 11, 2012. Shureb further attested that he complied with G. L. c. 244, § 14 by timely mailing the required notices to Petitioner and Martin by certified mail. The Affidavit of Sale continues, and Shureb attests, that the foreclosure sale was postponed, by public proclamation upon Locus, to June 4, 2012 at 12:00 PM. The Affidavit of Sale concludes that on June 4, 2012, Kathleen D. Essler, a licensed auctioneer, sold Locus on behalf of BONYM, in its capacity as mortgagee, to BONYM.
As stated in Hendricks, supra, if a challenge to an affidavit of sale shows it is defective on its face, then it cannot be used to establish compliance with G. L. c. 244, § 14. Petitioner alleges that the Affidavit of Sale cannot be relied upon to demonstrate strict compliance with G. L. c. 244, § 14, because there was no public proclamation as required by the statute. [Note 34] Petitioner relies on Martins testimony in this regard.
Petitioner argues that this inconsistency between the Affidavit of Sale and Martins testimony demonstrates that Shureb had no actual knowledge of any of the facts attested to in the Affidavit of Sale. As such, Petitioner contends that the Affidavit of Sale is defective. Aside from the public proclamation issue, Petitioner does not contend that any other attestation in the Affidavit of Sale is false. The public proclamation issue by no means proves that the Affidavit of Sale is deficient on its face for proving strict compliance with G. L. c. 244, § 14. At most, Martins testimony calls into question whether public proclamation was made; it does not demonstrate that Shureb had no knowledge of the facts to which he was attesting or that the requirements of G. L. c. 244, § 14 were not followed. Indeed, Martin does not challenge the attested facts that notice was timely published for three consecutive weeks in the Hampshire Daily Gazette or that notice was timely sent to Petitioner and Martin via certified and first class mail. [Note 35] [Note 36] Therefore, pursuant to G. L. c. 244, § 15, I find that the Affidavit of Sale is prima facie evidence that BONYM and its agents complied with the requirements of the statute.
The next issue is whether the foreclosure sale must be voided because of the alleged lack of public proclamation of postponement of the foreclosure sale on April 18, 2012. There is conflicting testimony in this regard, namely: (1) the Affidavit of Sale attesting that public proclamation of the postponement was made, (2) the testimonyof Deandre that public proclamation of the postponement was made, (3) the testimony of Jerry that public proclamation of the postponement was made, and (4) the testimonyof Martin that no public proclamation of postponement was made. Whether a public proclamation was made is a hotly disputed fact. The relevance of such a public proclamation is a separate issue.
It has long been accepted practice in Massachusetts that, while details of the initial auction must be provided by written notice to the appropriate parties and published in a newspaper in accordance with G. L. c. 244, §§ 11-17B, a postponement of the sale may be announced by public proclamation to those present at the auction site. Fitzgerald v. First Natl Bank of Boston, 46 Mass. App. Ct. 98 , 100 (1999); see also Way v. Dyer, 176 Mass. 448 , 450 (1900) (same holding); Burke v. Sun Am., Inc., 2000 WL 1273412, *9 (Mass. Super. Ct. Apr. 25, 2000) (same holding). The court in Fitzgerald specifically noted that there was no state law requirement for noticing continuances [of foreclosure sales] . . . . Fitzgerald, 46 Mass. at 100 (citing In re Ruebeck, 55 B.R. 163, 169-171 (Bankr. D. Mass. 1985)). Further:
Apart from the statutory requisites to which the mortgagee must strictly adhere, questions regarding notice of foreclosure proceedings will continue to be viewed according to the criteria set forth in our cases, rather than under any hard and fast rule, in light of the mortgagees general obligations of good faith, diligence, and fairness in the disposition of the mortgaged property.
Id. at 101 (citing Clark v. Simmons, 150 Mass. 357 , 360 (1890)).
Petitioner seeks to have the foreclosure sale voided for lack of public proclamation. There is no question that a mortgagee must strictly adhere to G. L. c. 244, § 14, with regard to publishing for three consecutive weeks and notice to the mortgagee by registered mail. It is also evident, though, that there is no hard and fast rule for noticing continuances of foreclosure sales by public auction. The court in Fitzgerald explicitly noted that there is no statutory procedure specifically addressing the proper noticing requirement for postponement. See id. at 100. As articulated in Fitzgerald, it seems that noticing of a postponement of a foreclosure sale falls under the good faith and commercial reasonableness obligations of a mortgagee. See id. at 101; Burke, 2000 WL 1273412, at *9. This obligation must include providing notice of the postponement to anypartythat appears on the initially scheduled foreclosure date. See id.
This court is convinced that a public proclamation took place. On the one hand, we have Martins testimony that public proclamation did not take place. In actuality, however, cross- examination revealed that Martins testimony was much more equivocal; specifically, he testified, when asked if a public proclamation was made, answered I didnt see anybody . . . . No one presented themselves. Moreover, Martins credibility has been tested by his own testimony, as demonstrated by the many inconsistencies and contradictions noted, as noted, supra (in reference to Martins trial testimony) and infra (in regard to Respondents motion for sanctions). [Note 37]
A number of factors confirm this courts questioning of Martins credibility. First, Deandre testified that she was at Locus at the appointed time and that she gave a public proclamation. The Postponement Email confirms that Deandre was at Locus at the appointed time on April 18, 2012. Moreover, the Postponement Email, which attached a photo of the front steps of Locus, with no one sitting there, was date-stamped at 11:49 AM, a time when Martin testified that he was sitting on the front steps -- a claim that, under cross-examination, was revealed might have been not strictly accurate. [Note 38] Deandres testimony is further supported by that of Jerry, who testified that he was on Locus on that date and that his wife made a public proclamation. The recorded and notarized Affidavit of Sale stated that a public proclamation was made.
[U]nder Massachusetts law, the mortgagor has the burden of proving commercial unreasonableness. Burke, 2000 WL 1273412, at *7 (citing Chartrand v. Newton Trust Co., 296 Mass. 317 , 320 (1936). Petitioner has not carried this burden. Even if Martins testimony were credible (which it is not), his account of the events of April 18, 2012 does not rule out the possibility that the proclamation occurred per the accounts of Deandre and Jerry. Therefore, I find that there was a public proclamation of postponement of the foreclosure sale at Locus on April 18, 2012.
Irrespective of the foregoing, as noted above, there is not even any hard and fast requirement for a public proclamation to have been made. Rather, all that BONYM was required to do was to make a good faith, commercially reasonable effort to notify interested parties of the postponement. It appears, based on both Martin and Deandres testimony, that (other than Deandre and Jerry), Martin was the only person who may have been present at Locus on the originally scheduled foreclosure date. All parties agree there were no bidders for Locus that showed up on April 18, 2012. Petitioner, as the mortgagee, also has an obvious interest in the postponement. As a result, Martin and/or Petitioner were the only parties that needed notice of the postponement.
Considering this fact, and provided that either Martin or Petitioner had notice, any postponement of the foreclosure sale bypublic proclamation would have been unnecessaryand would not affect the outcome of the foreclosure sale in June, 2012. The only persons entitled to notice would certainly be anyone who appeared at the foreclosure sale on April 18, 2012, other than the auctioneer, which was only Martin, and out of basic fairness, Petitioner as mortgagor. See Fitzgerald, supra; Sun Trust, supra (notice sent to mortgagor at residence was sufficient). And, as discussed, infra, the evidence confirms that both Martin and Petitioner had notice of the postponement prior to the initial foreclosure sale of April 18, 2012.
2. Whether Petitioner and/or Ranney had Notice of the Postponement
Even if the public proclamation had not taken place, there is sufficient evidence that Martin and Petitioner knew of the postponement. First, in the April 2012 Letter, Ranney asked for a postponement of the foreclosure auction because of the OTSC; it is unlikely that he would have sought a postponement without the knowledge or consent of his clients, who have never alleged that Ranney did so without their authorization. Moreover, Ranney confirmed that this letter was sent to his clients.
Next, there is the Courtesy Notice, which was sent to both Martin and Petitioner on April 16, 2012. Petitioner and Martin denied having seen that notice, but they also admitted that Petitioner did not typically review documents pertaining to her mortgage, and that Martin may have simply thrown it away, given that he did not take the risk of foreclosure seriously. These unsupported, equivocal denials of receipt of the Courtesy Notice simply do not stand up to the testimony and documentary evidence adduced by Respondents, whichestablishthat the Courtesy Notice was sent to Respondents.
Next, there is the April 2012 Email, bywhich Orlans Moran confirmed the postponement date to Ranney, who marked the date in his calendar on April 16, 2012. Thus, it is clear from both Ranneys testimony and the exhibits that Ranney not only knew of the postponement as of April 16, 2012, but as of that day had docketed the new date in his calendar. As discussed, infra, case law provides that this knowledge should be imputed to Ranneys clients.
Next, there is the May 2012 Email, which shows that Martin was on notice that the foreclosure had been postponed until June. It further shows that Ranney received confirmation of the correct date. Moreover, Ranney testified that he had a telephone conversation with Martin at or around the time of the May 2012 Email; it is simply not believable that Ranney and Martin did not discuss the postponement date during this conversation.
Next, there is the work performed by Ranney in anticipation of commencing this litigation. The record demonstrates that he not only prepared the No Trespass Notice for Martin to have ready on the postponement date, he pre-drafted Petitioners Petition to Try Title so as to be ready to file same on the date of the postponed sale. Neither Martin nor Petitioner ever alleged that this work was done without their authorization.
Next, there is the June 2012 Letter, which confirmed the postponement date, and was sent to Ranneys clients. Finally, Martin was present at the foreclosure sale, with the previously prepared No Trespass Notice, on June 4, 2012, the same day that the Complaint (dated May 31, 2012) was filed with this court.
In addition to the foregoing, if, in fact, Martin was present at Locus on April 18, 2012, as he claims, he would have received notice of the postponement via the public proclamation that, I have found, did in fact occur. As discussed above, weighing against the inconsistent and equivocal testimony of Martin (who denies such proclamation occurred) were a number of factors, including the Affidavit of Sale, the testimony of Deandre, the testimony of Jerry, the Courtesy Notice, the April 2012 Email, the common foreclosure practice of Tache Auctions, the May 2012 Email, the June 1, 2012 Letter, the presence of large bushes in the front lawn of Locus (which could have prevented Martin from seeing foreclosure activity unless he was looking for it), and the Postponement Email. Even Martins own account of his sitting on the steps of Locus on April 18, 2012 (which is rebutted by the Postponement Email and the photograph attached thereto) leaves open the possibility that the public proclamation was made. [Note 39]
In view of the foregoing evidence, I find that both Martin and Petitioner had knowledge of the postponement of the foreclosure sale of Locus before the foreclosure sale took place on June 4, 2012 -- as did Ranney. I also find that the foreclosure sale of Locus on June 4, 2012, was valid.
Nonetheless, even if, as Petitioner and Martin claim, they had not received actual notice of the postponement by any of the myriad sources discussed above, Respondents argue that Ranneys knowledge of the postponement should be imputed to Petitioner and Martin; they cite in support of this proposition the case of Quinn v. Hintlian, 4 Mass. App. Ct. 767 , 805 (1976) (as is now agreed, the attorneys knowledge was properly imputed to the respondent.).
The rule that a notice given to an attorney may properly be imputed to his or her client (so long as said notice pertains to the scope of the attorneys representation of the client) has been applied in numerous circumstances analogous to those present in the case at bar. See id. at 805; McCarthy v. Slade Assocs., Inc., 463 Mass. 181 , 196 (2012) (attorneys' knowledge as to the ownership of property imputed to their client for purposes of determining whether Land Court action was brought in good faith); Chiropractic Care Ctrs., Inc. v. Arbella Mut. Ins. Co., 2012 Mass. App. Div. 177 , *2 (Dist. Ct. 2012) (attorney's notice of the date of his client's rescheduled examination under oath imputed to client); Eliades v. Callahan, 15 LCR 277 , 280 (Mass. Land Ct. 2007) (attorney's knowledge of disposition of planning board hearings imputed to client); Ruml v. Ruml, 50 Mass. App. Ct. 500 , 506-507 (2000), rev. denied, 433 Mass. 1102 (2001) (notice of the issuance of an order mailed to the attorney imputed to his client.).
The rule that an attorneys knowledge may be imputed to his or her client is based upon the agent-principal nature of the relationship between the attorney and the client. E.g. Kurker v. Seidner, 16 LCR 629 , 630 (Mass. Land Ct. 2008) (attorney-client relationship is an agent-principal relationship), aff'd in part, 75 Mass. App. Ct. 1113 (2009). Within the scope of that relationship, barring exceptions that are not applicable here, "[a] notification given to an agent is effective as notice to the principal if the agent has actual or apparent authority to receive the notification . . . ." RESTATEMENT (THIRD) OF AGENCY § 5.02 (2006). Accordingly, "notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent's duties to the principal . . . . Id. at § 5.03; see also Flynn v. Wallace, 359 Mass. 711 , 718 (1971) ("[N]otice to an agent [here, a real estate broker] in the business or employment which he is carrying on for his principal is a constructive notice to the principal himself . . . ." (quotation omitted)).
It is clear from both Ranneys testimony and the exhibits that Ranney knew of the postponement as of April 16, 2012. Therefore, in view of the foregoing authority, I find that Ranneys knowledge of the postponement of the foreclosure sale of Locus (from April 18, 2012 to June 4, 2012) may properly be imputed to his clients, who (even if they did not, as they claim, have actual notice) may therefore be deemed to have had constructive knowledge of the postponement.
3. Holding After Trial
Based upon the foregoing discussion and findings, I find that the foreclosure sale of Locus was valid, as was the postponement of said sale from April 18, 2012 to June 4, 2012. Accordingly, Petitioners Second Amended Petition to Try Title is therefore DISMISSED, with prejudice.
C. The Parties Motions for Sanctions
Having now determined the two trial issues in this case, the court turns to the parties Motions for Sanctions pursuant to Mass. R. Civ. P. 11 and 37, which must now be addressed. [Note 40] Respondents filed a Motion for Rule 11 Sanctions against both Ranney and Petitioner on October 6, 2014. [Note 41] On October 23, 2014, Ranney filed an Opposition and Cross-Motion against Respondents and Bombard. [Note 42] Bombard filed his Supplemental Affidavit on October 24, 2014. On the same day, Petitioner filed her Opposition and Cross-Motion against Respondents and Bombard, and Motion to Strike Respondents post-trialbrief. Respondents argue that both Petitioner and Ranneyexhibited bad faith during the discoveryprocess in not disclosing documents acknowledging their knowledge of the new foreclosure date, documents which were finally produced on the second day of trial. Ranney and Petitioner argue that BONYM already had these documents in its possession and therefore they were not subject to discovery. They further argue that Bombard misrepresented certain facts to the court in connection with his motion for sanctions and his previous motion to compel.
1. Respondents Motion for Sanctions
Respondents argue first that Ranneyand Petitioner improperlywithheld the April 2012 Email, in which email Orlans Moran (the attorney for BONYM) advised Ranney that This is to confirm that we have received the OTSC and that we have postponed the 4/30/12 sale date to 6/4/12. The April 2012 Email was in response to the April 2012 Letter from Ranney requesting the postponement of the foreclosure sale and asking the attorney to advise immediately. [Note 43] Respondents also argue that Ranney and Petitioner improperly withheld the May 2012 Email, which confirmed that Martin had notice of the postponed foreclosure sale as of May 3, 2012 (if not earlier); this directly contradicted Martins testimony at trial that he learned of said date through an encounter with an investor that allegedly took place not even a week before the actual auction.
The April 2012 Email, together with the April 2012 Letter (to which the April 2012 Email responded), confirm certain things. First, they confirm that Ranney requested the postponement. Second, they confirm that Ranney sent a copy of the April 2012 Letter to both Petitioner and Martin, who thus knew of the anticipated postponement of foreclosure sale. Third, they confirm that Ranney knew two days before the original foreclosure date that the date had been postponed. Ranneytestified that the new date had been put in his calendar on April 16, 2012. The new foreclosure date was one and a half months after Ranney acknowledged that he knew of the postponement. As a result, the April 2012 Email was clearly a key piece of evidence that was critical to the issue of knowledge of Petitioner of the postponement. Ranney clearly knew of the postponement. Because of the April 2012 Letter, Petitioner was also on notice that the postponement was a distinct possibility; as a result, it is inconceivable that Ranney did not tell Petitioner of the new date, or that Petitioner did not question Ranney as to whether the new date was confirmed.
Finally, as discussed above, there is strong evidence that Petitioner and Martin had other sources of knowledge (other than Ranney) of the postponement, namely: (a) the Courtesy Notice, which Petitioner stated she never received but which was mailed to both Petitioner and Martin and not returned to BONYM or its counsel; (b) the May 2012 Email, in which, more than one month before the new foreclosure date, Martin acknowledged that he had notice of the postponement of the foreclosure sale, and, on the same day, Ranney confirmed with his assistant that the date was June 4, 2012; (c) the June 2012 Letter, which was carbon-copied by Ranney to Petitioner and Martin; and (d) the No Trespass Notice produced by Martin at the foreclosure sale. However, despite the fact that these other documents evidence Petitioner and Martins knowledge, the April 2012 Email is also clearly relevant to this question, and, thus, should have been produced.
Likewise, the May 2012 Email --which was not produced until the second day of trial -- is also relevant to the issue of whether Petitioner and/or Martin had knowledge of the postponed foreclosure sale. Not only does it indicate that Martin had knowledge of the postponement, it contradicts his testimonyat trial and in his deposition as to the alleged encounter with a local investor, who, he claims, was the sole basis for his notice of the postponement.
It is clear that the April 2012 Email and the May 2012 Email do not constitute protected work product, because they were not prepared in anticipation of litigation; rather, the former was a mere confirmation as to the date of the rescheduled foreclosure sale, while the latter was a discussion of matters particular to the specifics of said sale. See Mass. R. Civ. P. 26(b)(3). Even if these documents had been protected from disclosure, Ranney would have been required to disclose their existence in a privilege log and state with specificity the basis for the objection to producing them. Specifically, Mass. R. Civ. P. 26(b)(5)(A) requires that:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as material in anticipation of litigation or for trial, the party shall make the claim expressly and, without revealing information that is privileged or protected, shall prepare a privilege log containing the following information: the respective author(s) and sender(s) if different; the recipient(s); the date and type of document, written communication or thing not produced; and in general terms, the subject matter of the withheld information.
This Rule further provides that the requirement of a privilege log can be waived only if explicitly agreed to by the opposing party. See id. [Note 44]
Ranney and Petitioner argue that Ranney did not have to disclose the April 2012 Email to Respondents because BONYM was the one that sent it to him, and therefore they must have already had knowledge of and access to it. This position is without support in any precedent or statute. Rather, the mere fact that ones adversary may have a copy of a document or has access to it through some other source provides no grounds upon which to withhold said document. E.g. Hope v. Double E Corp., 14 Mass. L. Rptr. 528, *5 (Mass. Super. Ct. 2002) (prior access does not bar discovery). It is clear that Ranney had the April 2012 Email within his possession and control. Whether Respondents had access to that document is not relevant. There could be an issue of whether the April 2012 Email was received. Respondents might also have been seeking metadata attached to the document (such as when it was received and/or read, whether it was replied to or forwarded, etc.) to which Respondents likely would have been entitled. [Note 45] Ranney claimed he asked Bombard to advise if Respondents wanted copies of documents that they had sent to be produced, but acknowledged that such request may have been sent to the wrong address (and later denied having sent that request). The duty was on Ranney, when no response to his email was received, to produce all documents within his possession. [Note 46] If Ranney objected to producing documents which he believed BONYM had in its possession, he had a duty to properly raise these objections pursuant to Mass. R. Civ. P. 34, and not in an email which was apparently drafted to be sent to the wrong address (and which apparently was not actually sent at all). Moreover, the fact that the request was made on November 4, 2013, and not produced until August 19, 2014, almost ten months later and on the second day of trial, is inexcusable.
Ranneys corollary claim that producing the April 2012 Email -- which, when printed, is a two page document -- would have been unduly burdensome is equally specious. Moreover, even if the fact that BONYM already had a copy of the April 2012 Email had formed the basis for a legitimate objection to discovery (which it did not), Ranney clearly failed to follow the procedures set forth by law, pursuant to which Ranney was required to identify the withheld documents and state with specificity the basis for the objection. Ranney, here, did neither.
With respect to the May 2012 Email, neither Ranney nor Petitioner offers any meaningful excuse for their failure to produce same. [Note 47] At the January 27, 2014 hearing on Respondents motion to compel, Ranney denied that there were any other possibly responsive documents to be produced, making no attempt to identify the May 2012 Email or to note that he objected to producing it on any basis. At trial, Ranney brought a copy of the May 2012 Email with him pursuant to Respondents subpoena, but objected to producing same, claiming that the document was privileged. The court admitted the May 2012 Email de bene, and gave the parties the opportunity to argue, in their post- trial briefs, whether that document was actually privileged. Petitioner and Ranney made no attempt to argue this point in their post-trial brief and their opposition to Respondents motion for sanctions.
Petitioner clearly put at issue at trial the question of whether she and/or Martin had knowledge of the postponed foreclosure sale by asserting lack of such knowledge on multiple occasions -- including Petitioners opening statement at trial. [Note 48] Having done so, communications by and between Petitioner, Martin, and Ranney that are relevant to this question are subject to the at issue waiver. E.g., Darius v. City of Boston, 433 Mass. 274 , 283-284 (2001) (attorney-client privilege can be waived by a party placing the subject of an attorney-client communication at issue in the case, provided the communication is relevant to said issue and there is a showing of necessity). Here, there can be no question that the May 2012 Email is relevant to the issue (raised by Petitioner) of whether she and/or Martin had knowledge of the postponed foreclosure sale; moreover, the information that the May 2012 Email contains could not be had from any other source, thus satisfying the necessity requirement. See id. Thus, the May 2012 Email is not protected by the attorney-client privilege in this case. [Note 49]
It appears that Ranney, Petitioner, and Martin are all at fault here. Petitioner and Martin clearly had information relative to the postponement, and, as a result, misrepresented facts to this court under oath. Clearly aware of this misrepresentation, Ranney compounded his former clients conduct by withholding information relative to the postponement, which was critical to the trial issues. The results of such conduct are clearly reflective in the decision in this case.
As of the date of Land Court Decision 1 (October 1, 2013) Ranney clearly knew of the April 2012 Email and the May 2012 Email, had docketed the date of the postponed foreclosure sale in his calendar, knew or should have known that his knowledge was imputed to his clients, and thus knew the outcome of the trial would be detrimental to his clients. [Note 50] Respondents therefore argue that the whole second stage of this litigation was a fraud on the court, since Ranney withheld his knowledge as to his clients notice of the postponed foreclosure sale despite the directive in the Land Court Decision 1 that the reason for the trial was to determine not merely whether a public proclamation took place at Locus on April 18, 2012, but also the issue of notice of the postponement of the foreclosure sale.
Having known this information, Ranney had an ethical obligation under Mass. R. Prof. C. 3.3(a) to bring it to the courts attention that he had knowledge in his possession that completely undermined the position he and his clients had previously taken in this case. Further, if -- as he now suggests in his opposition to Respondents motion for sanctions -- he knew that his clients had notice of the postponed foreclosure sale, Ranney had an affirmative obligation under Mass. R. Prof. C. 3.3(a)(4) to bring to the courts attention that his clients were proffering information known to him to be false. [Note 51] Petitioner and Martin, too, had an obvious obligation not to proffer such false information. See id.
After Petitioner raised the issue of whether a public proclamation of postponed foreclosure sale took place (first raised in Petitioners second amended petition), Respondents attempted to attack this position by pointing out that, irrespective of whether a public proclamation was held, the postponement was commercially reasonable because Petitioner and Martin had actual and/or constructive notice of the postponement. Yet, even once this court made it abundantly clear that such notice was going to be a primary issue for trial, rather than coming forward and admitting such knowledge, Petitioner, Martin, and Ranney continued to advance a position that they apparently now acknowledge to have been a falsehood. Then, after they were caught in their duplicity (by, inter alia, the documents improperly withheld by Ranney), they attempted to sweep that entire issue under the rug by, yet again, arguing that the only issue for trial was whether the public proclamation was made -- a position that had already been clearly rejected by this court in the February 2014 Order.
Even if Ranney did not (as it now appears) have affirmative knowledge of the falsity of his clients position, he still had an obligation under Mass. R. Civ. P. 11 to advance pleadings only upon reasonably inquiry and an absence of bad faith. . . . Th[is] rule requires at least some level of reasonable inquiry into the factual and legal basis supporting the pleading.. Cahaly, 85 Mass. App. Ct. at 429 (quoting Psy-Ed Corp. v. Klein, 62 Mass. App. Ct. 110 , 113 (2004)).
Respondents motion raises very serious allegations against Ranney, Petitioner, and Martin, and whether they perpetrated a fraud on Respondents and this court. The evidence before the court (which, in this forum, is assessed upon a preponderance standard) strongly suggests that Ranney, Petitioner, and Martin each acted improperly, both in withholding pertinent documents and in advancing positions that they knew (or should have known) to be false. [Note 52] The question, then, is what consequences should meet this improper conduct. Respondents cite Cahaly v. Benistar Prop. Exch. Trust Co., 85 Mass. App. Ct. 418 , 429 (2014) in this regard. Cahaly states that a court must look at the issue of whether the attorneys conduct was sufficiently egregious to warrant sanctions.
Case law is clear that discovery is very broad, and that a party subject to a discovery request is obligated to produce all evidence within its control, even if such party does not deem the discovery relevant. See Hope, 14 Mass. L. Rptr. at *5 (The Rules do not provide that a party may withhold materials it deems less probative.). Here, Petitioner, Martin, and Ranneys conduct is deeply troubling, not only because it constituted a failure to complywith routine discovery requirements, but also because it indicates a willingness to advance, before the honorable courts of this Commonwealth, frivolous claims and misleading information. One of the fundamental ethical obligations of litigants is the duty of candor to the court, and that duty has been flouted by Petitioner, Martin, and Ranney. A willingness to do so would be bad enough coming from Petitioner and Martin; however, coming from Ranney, an officer of the courts, it is simply unacceptable.
In view of the foregoing, I find that economic sanctions against Petitioner, Martin, and Ranney pursuant to Mass. R. Civ. P. 11 and 37 may be warranted. [Note 53] Respondents motion for sanctions will be addressed by this court solely to the extent that monetary sanctions (in an amount to be determined) may issue against Petitioner, Martin, and Ranney and in favor of Respondents to compensate Respondents for their legal fees incurred in defending what now appears to have been a frivolous case. [Note 54] In addition to these monetarysanctions, the fact that this Decision will be published means that evidence of the misconduct of Petitioner, Martin, and Ranney will be placed into the public record; under the circumstances, the court finds this additional sanction to be entirely appropriate.
However, Respondents request that this case be dismissed as a sanction against Petitioner and/or Ranney is DENIED. Based upon the tenor of all the evidence, it is clear to this court that Ranney, Petitioner, and Martin have all played fast and loose with the facts surrounding the notice of postponement of the foreclosure, and this court feels it is important to issue a decision on the merits of this matter, rather than to dismiss the case procedurally as a sanction.
With respect to whether further consequences would be warranted, the Land Court is not the appropriate forum in which to examine the extent to which Petitioner, Martin, and Ranney abused their ethical obligations towards Respondents and the court. Accordingly, the court will leave that question entirely to the discretion of such forum as maybe a more appropriate venue to address same, and to the consciences of all of the attorneys involved in this case in view of their obligations under the Rules of Professional Conduct.
2. Petitioner/Ranneys Motion for Sanctions
The finalmatter before the court is Petitioner/Ranneys motionfor sanctions against Bombard and Respondents. Ranney and Petitioner argue that Bombard and Respondents misrepresented to the court that Ranney had not contacted them relative to the question of whether they wanted, through discovery, correspondence that had been sent by BONYM.
The Bombard Affidavit states that Ranney never contacted him relative to whether Bombard wanted copies of letters from Attorney Ranneys office already in the possession, custody and control of BONYM and or its attorneys. The record shows that on December 17, 2013, Ranney drafted an email to Bombard (to the wrong email address), which purported to contain Petitioners formal discovery production, and stated that [a]ny communications from my office . . . are already in the possession of [BONYM]. If you want this stuff produced again - let me know. However, on December 23, 2013, Ranney denied having sent this e-mail, which indicates that it was possibly just drafted, but never actually sent. Apparently not having received Ranneys December 17, 2013 e-mail (whether because it was not sent or because it was sent to the wrong e-mail address), Bombard contacted Ranney by letter dated December 19, 2013, in which he objected to Petitioners deficient discovery responses. Later that day, Ranney sent an e-mail to Bombards correct email address, stating that I specifically asked you whether you wanted me to produce communications from my office to parties in this matter which you already have in your possession . . . . Bombard responded by email to Ranney dated December 20, 2013, in which he advised Ranney that he had not received Ranneys December 17, 2013 email, asked Ranney to send him the emails sent to the wrong email address, and asked for additional correspondence. On December 21, 2013, Ranney responded to Bombards request, stating only that he would send additional documents as they became available to him from his clients; this appears to have been in response to Bombards request for additional correspondence. Ranneys e-mail does not appear to have forwarded a copy of Ranneys December 17, 2013 e-mail (nor any attachment thereto), nor responded in any way to Bombards request for Ranney to resend Petitioners discovery production. The record does not disclose any further email correspondence between the two until after the Motion to Compel was filed on December 30, 2013.
It appears that there was miscommunication between the parties. Bombard clearly received Ranneys December 19, 2013 email because he responded to it on December 20, 2013. However, Ranneynever responded to Bombards request, in his December 20, 2013 email, for Ranneyto resend his formal discovery production. The bottom line is that the burden was on Ranney to produce requested discovery -- even without a response from Bombard -- which Ranney did not do. Bombards affidavit may have been somewhat confusing, but it appears to have been an attempt to describe Ranneys questionable, self-contradictory emails.
Nonetheless, Bombard clearly overstated his case for sanctions against Ranney when he entirely disclaimed the above-noted email exchange between Ranney and himself. Ranney clearly failed in his obligations to provide discovery, but such failure does not mean, as Bombards affidavit implies, that Ranney never contacted him.
Yet, while Bombards allegation appears not to have been entirely accurate, it does not appear to have been intended to mislead the court. As such, while I caution Bombard, going forward, to avoid overstatement and to ensure that his sworn statements to this (and any other) court are entirely accurate, I find that sanctions against Bombard or Respondents would not be appropriate. [Note 55] Thus, Petitioner and Ranneys Motion for Sanctions is hereby DENIED in all respects. [Note 56]
In conclusion, with respect to the issues adjudicated at trial, in accordance with the courts above-noted findings, Petitioners requests for relief in her Second Amended Petition to Try Title are hereby DENIED, with prejudice, on the merits for the reasons stated herein. The Second Amended Petition to Try Title and this case are therefore DISMISSED, with prejudice.
This court will retain post-judgment jurisdiction over this matter pending the resolution of Respondents motion for sanctions, which, as noted above, will be addressed solely to the extent specified herein. Respondents request for the dismissal of this case as a sanction is DENIED. Petitioner/Ranneys motion for sanctions is DENIED in all respects.
Judgement to issue accordingly.
[Note 1] Petitioner thereafter amended her pleadings twice, by filing her First Amended Petition to Try Title on August 15, 2012 (which added additional Respondents) and her Second Amended Petition to Try Title on October 9, 2012, which added further additional Respondents, as well as a challenge to the July 2012 foreclosure deed to Locus from BONYM to BONYM (discussed below).
[Note 2] Respondents include BONYM, Mortgage Electronic Registration Systems, Inc. (MERS), GMAC Mortgage, LLC - Residential Asset Mortgage Products, Inc. (GMAC), and JPMorgan Chase Bank, N.A.
[Note 3] Respondents Merrimack Mortgage Co., Inc. (Merrimack) and Applied Mortgage Services, Corp. (Applied) did not join in this motion, but rather each filed disclaimers, disclaiming any right and title to Locus.
[Note 4] Counsel for Merrimack and Applied appeared at this hearing. After discussion with the parties, this court ALLOWED the Disclaimer of Merrimack and the Disclaimer of Applied. By this Decision, this court hereby DEFAULTS Respondent South Star Funding LLC (South Star), by and through its Chapter 7 Trustee, Harry W. Pettigrew, which has not filed an answer or appearance in this case.
[Note 5] In considering a motion to dismiss for failure to state claim under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the Petitioners favor, are to be taken as true. Nader v. Citron, 372 Mass. 96 , 98 (1977). The court will not accept legal conclusions cast in the form of factual allegations. Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008) (quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000)). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. See Mass. R. Civ. P. 12(b), 12(c). Under Rule 12(b), a court may treat a Rule 12(b)(6) motion to dismiss as a motion for summary judgment if matters outside the pleadings are presented and not excluded by the court. Respondents submitted many documents that are clearly beyond what was submitted with the pleadings. The court intended to utilize such documents in its analysis, and as a result, determined judicial economy necessitated a conversion from a Rule 12(b)(6) motion to a Rule 56 Motion.
[Note 6] While the motion was under advisement, on September 25, 2013, Respondents notified the parties and the court that they had substituted their former attorneys (Prince Lobel Tye LLP) for Hinshaw & Culbertson LLP, who filed appearances as of that date, and who today remain their counsel of record.
[Note 7] Items 3 and 4 of the triable issues specified in Land Court Decision 1 were later removed from contention by the parties.
[Note 8] This was actually Ranneys second Motion to Withdraw; his first such motion (filed on June 28, 2013) was voluntarily withdrawn after Ranney and Petitioner apparently resolved a billing dispute.
[Note 9] Around the time that Land Court Decision 1 was issued, the parties began to engage in motion practice regarding discovery. On September 23, 2013, despite the fact that the Motion to Dismiss was still under advisement, Petitioner moved to compel responses to discovery requests; Respondents opposed this motion and cross-moved for a protective order on October 2, 2013. On October 21, 2013, Respondents moved for an order permitting the parties to engage in discovery. On October 24, 2013, the parties entered into a stipulation by which they agreed to commence discovery.
[Note 10] Petitioner appealed the February 2014 Order to the Massachusetts Appeals Court, but the appeal was denied on April 1, 2014 as untimely.
[Note 11] Respondents counsel represented that they had attempted to serve Ranney at his office, but that he or his representatives refused service. Counsel also alleged that service was attempted at Ranneys last known address, but that the Sheriff declined to make service because the property appeared to be an unoccupied rental property. The court, on the record, opined that if the Sheriff had left copies of the subpoena at this residential address, service thereof would have been good.
[Note 12] Prior to being called to testify, both Ranney and Petitioner objected to Ranneys production of documents pursuant to subpoena, primarily on the bases that theywere privileged and/or already in Respondents possession. At the request of Respondents, the court reviewed the documents that Ranney had brought with him in camera, determined that the documents were not privileged, and admitted them as a trial exhibit. After Respondents had a brief opportunity to review the documents produced, they represented that the documents had not previously been disclosed, either in a document production or in a privilege log. They questioned Ranney as to whether additional documents existed that had not previously been produced and as to what measured he had used to review his files. In view of the fact that the documents produced by Ranneyat trial had not previously been disclosed, the court required Ranney to file an affidavit certifying that he had produced all relevant documents in his and Petitioners possession.
[Note 13] GMAC was the loan servicer relative to MERS Mortgage 2.
[Note 14] Notably, the Modification contains a typographical error, in that it spells Martins first name as Danial, rather than Daniel. Martin is referred to as both Daniel and Danial in the pleadings. At trial, Martin represented that the reason for the variant spellings of his first name was due to an error in his drivers license.
[Note 15] The Affidavit of Sale, executed by BONYMs attorney, swears under oath that a postponement by public proclamation was made at Locus on April 18, 2012, postponing the foreclosure sale to June 4, 2012.
[Note 16] Ranney testified that when I got the e-mail from the litigation paralegal on April 16th, I put the foreclosure sale date in the calendar as of June 4th.
Notably, the typographical error misidentifying the April 18, 2012 foreclosure sale date as April 30, 2012 is traceable to Ranneyhimself in his April 2012 Letter. Later, at trial, Ranney, citing this clerical error that Orlans Moran had apparently repeated from his own prior correspondence, attempted to feign confusion as to the correct date of the rescheduled foreclosure sale, claiming I was unsure based on that representation when the foreclosure sale was going to be because that date [i.e., April 30, 2012] was clearly not the date that was advertised.
[Note 17] The photo of Locus shows the front yard surrounded by high bushes except for the opening to the walkway to the front steps and front door. There is no one sitting on the front steps in the photo, date-stamped as of 11:49 AM on April 18, 2012. Respondents also offered for identification purposes several printouts listing metadata allegedly contained in the digital photograph file, which identifies not only the time of the photograph, but also the latitude and longitude where it was taken. Respondents did not move to enter these printouts into evidence, so the court will not consider them.
[Note 18] Martin testified that he got this information from an investor [Bill] who bought properties from homeowners that were in distress . . ., who allegedly wanted to buy Locus at foreclosure and rent it back to Petitioner and Martin. His testimony as to this alleged encounter is rife with inconsistencies.
First, Martin testified that this person allegedly told him that the sale had been rescheduled to Monday, June 6, 2012, but that Martin assumed that the man had meant June 4, 2012. Later, however, Martin admitted that, in fact, the alleged investor didnt say a date. He just said next Tuesday, whatever day it [i.e., June 4, 2012] fell on. Second, while Martin initially suggested that the alleged investor had some connection to Orlans Moran, he later repudiated this claim, and described him simply as a local resident. Third, at his deposition and at the first day of trial, Martin alleged that this encounter occurred during the last week in May -- not even a week before the actual auction. However, when confronted with the May 2012 Email, Martin changed his story, and claimed that it actually occurred at some point prior to May 3, 2012.
Ranney later testified that he and Martin discussed this alleged encounter, and that it was the source of Martins confusion as to the date of the rescheduled foreclosure sale, but refused to acknowledge that his conversation with Martin took place prior to the May 2012 Email.
[Note 19] Ranney testified that this email was marked as being saved to Martins file.
[Note 20] The Affidavit of Sale, dated June 8, 2012, stated as follows: I [i.e., Shureb, as authorized signatory for Orlans Moran PLLC] caused to be published on the 28th day of March, 2012, on the 4th day of April, 2012 and on the 11th day of April, 2012, in the Daily Hampshire Gazette a newspaper published or by its title page purporting to be published in Northampton and circulated in South Hadley, a copy of which is attached hereto as Exhibit A. I also have complied with Chapter 244, Section 14 of Massachusetts General Laws, as amended, by mailing the required notices by certified mail, return receipt requested . . . . Pursuant to said notice at the time and place therein appointed, the sale was postponed by public proclamation upon the mortgaged premises to June 4, 2012 at 12:00 PM, and thereupon [t]he Lender sold the mortgaged premises at public auction by [a licensed auctioneer] . . . .
[Note 21] Neither party mentioned this email in connection with Respondents motion to compel. Rather, it was disclosed to the court by Bombard only in a supplemental filing to Respondents motion for sanctions.
[Note 22] There was a preliminary hearing on the motion at the pre-trial conference on January 27, 2014, but the hearing on the motion was continued to February 18, 2014. At that hearing, the parties announced that discovery was completed.
[Note 23] It is unclear where the direct quote in Bombards email came from.
[Note 24] See Martin Affidavit dated August 1, 2013, where he states the same thing. At other times during his testimony, however, Martin seemed to equivocate, stating that he would routinely discard bank notices that he did not think applied to him. He also stated on several occasions that he did not take BONYMs attempts to foreclose upon Locus seriously, noting that he questioned their legal authority to do so. Martin and Petitioner both testified that Martin handled all business relating to the MERS Mortgage 2, and that Petitioner never reviewed any mail relating thereto. However, in the May 2012 Email, Martin contradicted this story, stating that he had been having Petitioner double check and make sure nothing came from BONYM or [O]rlans [Moran] while he was out of town.
[Note 25] The testimony was as follows:
Q. And you stayed sitting on the front steps from about 11:00 a.m. to 1:00 p.m. on April 18th, except for a two-minute break around 12:30 to get the lawnmower?
A. Yeah. . .
Q. So you never stood up from the steps for approximately one hour and a half between 11 and 12:30 p.m.; is that correct?
A. I dont believe so, no.
[Note 26] Martin also testified that Ranney e-mailed him copies of the Trespass Notice in advance of the June 4, 2012 rescheduled foreclosure sale; that email was never produced by either Martin or Ranney.
[Note 27] Both parties agree that no potential bidders showed up at Locus on either April 18, 2012 or June 4, 2012.
[Note 28] Ranney later doubled down on this admission, as follows: Petitioner (by and through [Martin]) has always admitted to knowing of the April 18, 2012 sale date and to getting notice [of its postponement] from Attorney Ranney on, at minimum, June 1, 2014 . . . . But see Paragraph 19 of Petrs Oppn to Respts Mot. to Dismiss, signed by Ranney on August 1, 2013 (Petitioner and her husband never received notice that the sale purportedly noticed for April 18, 2012 had been postponed.); Afft of Martin, sworn to on August 1, 2013 and submitted by Ranney (We never received any other notice that the foreclosure sale scheduled for April 18, 2012 was postponed.); Jt. Pre-Tr. Mem., p. 7 (Jan. 24, 2013) (noting that whether Petitioner and/or Martin received notices of the postponed foreclosure sale was a disputed issue of fact); Petr Opp. to Respts Mot. to Compel, signed by Ranney on January 24, 2013 (BONYM appears irritated that Petitioner (and her husband) aver that they never received various notice(s) regarding the scheduling of the foreclosure sale); Petrs Resps. to Interrogs., sworn to by Petitioner and signed by Ranney on December 16, 2013 (I was not aware of any date or time. I did not receive any notice(s) of any date or time.; I was never notified of any date(s) or time(s).; I did not receive proper notices before, during or after any purported sale.); Petrs Opp. to Respts Cross-Mot. in Limine, signed by Ranney on February 20, 2014 (The Martins . . . never got any notice from Respondents.; a rescheduled foreclosure sale . . . was never noticed to them by Respondents . . . .; Respondents . . . never gave them notice.); 2d Jt. Pre-Tr. Mem., p. 7 (Apr. 30, 2014) (noting that whether Petitioner and/or Martin received notices of the postponed foreclosure sale was a disputed issue of fact); Opening Arg. of Petr on July 9, 2014 (Tr. Trans. I, p. 16) ([W]e intend to prove that we had no knowledge of the foreclosure sale rescheduling . . . .); Petrs Post-Tr. Br., signed by Petitioner on October 2, 2014 (No notice was given to the Petitioner or her Husband . . . .). Ranney made this admission as part of his effort to turn the courts attention away from the two issues framed by the February 2014 Order, and back to the issue of the validity of the factual allegations in the Affidavit of Sale (i.e., whether the affiant had sufficient knowledge to make such allegations), on which the court had already explicitly ruled.
[Note 29] It should be noted that the main reason for the second day of trial was because Ranney did not show up as a witness on the first day. He later claimed that he had not been properly served with his trial subpoena; in fact, Ranneys law office refused such service, and his correct residential address was not known. When Ranney finally did appear on the second day of trial, he stated that he had agreed to accept service of the trial subpoena, but attempted to induce Respondents to pay travel expenses beyond that required by law.
[Note 30] It should be noted that, although this court allowed Jerry to testify, he was only allowed to testify in rebuttal of Petitioners attempt, during cross-examination, to discredit Deandres testimony. Moreover, his testimony was only collaborative of similar testimony by other witnesses.
[Note 31] G. L. c. 183, § 21 states, in relevant part, as follows:
But upon any default in the performance or observance of the foregoing or other condition, the mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, bypublic auction on or near the premises then subject to the mortgage, or, if more than one parcel is then subject thereto, on or near one of said parcels, or at such place as may be designated for that purpose in the mortgage, first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity.
[Note 32] G. L. c. 244, § 14 states, in relevant part, as follows:
The mortgagee or person having his estate in the land mortgaged ... may, upon breach of condition and without action, do all the acts authorized or required by the power; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners . . . .
[Note 33] G. L. c. 244, § 15 states as follows:
The person selling, or the attorney duly authorized by a writing or the legal guardian or conservator of such person, shall, after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, or the acts of his principal or ward, to be recorded in the registry of deeds for the county or district where the land lies, with a note or reference thereto on the margin of the record of the mortgage deed, if it is recorded in the same registry. If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.
[Note 34] It should be noted, as discussed, infra, that the statute does not deal with a foreclosure postponement or a public proclamation.
[Note 35] When sending notice, sending by certified mail is sufficient to accomplish notice sent by registered mail, as required by G. L. c. 244, § 14. See G. L. c. 4, § 7.
[Note 36] Martin does state that he does not know if he received the Notice of Intent. Such receipt, however, is not a requirement of the statute.
[Note 37] Martin testified at the trial that he did not know of the postponement of the foreclosure sale to June 2012 other than a conversation with a developer named Bill. Setting aside the contradictions in Martins testimony as to when this alleged encounter occurred, the evidence shows that he was sent a copy of the April 2012 Letter, the Courtesy Notice was sent to him, a portion of the May 2012 Email was sent by him, the response to the May 2012 Email was put in Martins file, and the June 2012 Letter was sent to him. Moreover, he produced the No Trespass Notice at the foreclosure sale on June 4, 2012, which had been prepared for him by Ranney prior to the sale. Indeed, Ranney himself confirmed in testimony and in his opposition to Respondents motion for sanctions that Martin knew of the postponed date of the foreclosure sale. It stretches credulity for this court to find that Martin was without knowledge of the postponement as far back as April 2012.
[Note 38] Specifically, the fact that the photograph does not show Martin sitting on the front steps of Locus, coupled with Martins equivocal testimony means either one of two things is true: either Martin was lying outright about the events of April 18, 2012, or he had left the steps at the time Deandre took the photograph. In either case, Martins uncorroborated and contradictory testimony cannot be taken to plausibly undermine Deandres account (which is corroborated by the photograph, Jerrys testimony, and other evidence).
[Note 39] As is evident from the number of factors weighing against Martin, the testimony of Jerry was not a deciding factor.
[Note 40] Respondents also cite Mass. R. Prof. C. 3.4 which states that [a] lawyer shall not . . . conceal a document or other material having potential evidentiary value [or] fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. The court notes also the relevance of Mass. R. Prof. C. 3.3(a), which states, in relevant part, that [a] lawyer shall not knowingly: [ ] make a false statement of material fact or law to a tribunal; [ ] fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . or [ ] offer evidence that the lawyer knows to be false . . . . If a lawyer has offered, or the lawyer's client or witnesses testifying on behalf of the client have given, material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures. This rule further provides that [a] lawyer may refuse to offer evidence that the lawyer reasonably believes is false. Mass. R. Prof. C. 3.3(c). The only exception to these requirements applies only in criminal proceedings, and are therefore inapplicable here.
[Note 41] Mass. R. Civ. P. 11(a) states, in relevant part, as follows: [t]he signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay . . . . For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.
Mass. R. Civ. P. 37(d) states, in relevant part, as follows:
If a party . . . wilfully fails . . . to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule [paragraph C: An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or anypart thereof, or rendering a judgment bydefault against the disobedient party]. In lieu of any order or in addition thereto, the court may require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorneys fees, caused by the failure. The failure to act described in this subdivision may not be excused on the ground that the discovery is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).
[Note 42] Ranney filed the same motion again on October 30, 2014.
[Note 43] It should be noted that both the April 2012 Letter sent by Ranney and the April 2012 Email in response both gave the wrong date for the original foreclosure sale. However, it was clear that both parties were talking about the foreclosure sale for Locus, as discussed, supra.
[Note 44] By way of example, Superior Court Standing Order 1-09, although not applicable to proceedings before the Land Court, provides further guidance for the proper procedure when objecting to the production of documents, requiring the objecting party to specifically identify the basis upon which an objection is made, and to describe the nature of all responsive documents or things in the possession, custody, or control of the responding party that have not been produced because of the objection. Mass. Super. Ct. Standing Order 1-09 (3)(b). Under these rules (as with Mass. R. Civ. P. 26(b)(5)(A)), this requirement of a privilege log can be waived only by agreement of the parties.
[Note 45] In this regard, it should be noted that, pursuant to recent amendments to the Rules, discovery is no longer limited topaper discovery; rather, Mass. R. Civ. P. 34 now specificallypermits discoveryofelectronicallystored information. In the context of electronic mail, this means that complying with a properly-phrased discovery demand may not simply be a matter of printing out copies of documents, but rather may require producing documents electronically.
[Note 46] Moreover, Mass. R. Civ. P. 34(b) makes it clear that there is a procedure to follow relative to objections to discovery:
The party upon whom the request is served shall serve a written response within 30 days after the service of the request . . . The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.
[Note 47] Petitioner claims only, quite conveniently, that the May 2012 Email was never withheld from the respondents, attorney ranney [sic] did another search of his emails and found it. he [sic] produced it at trial as he had found it the night before while making sure he actually hadnt [sic] inadvertantly [sic] withheld any documents. This self-serving story -- which is not even corroborated by Ranney himself -- is plainly not credible.
[Note 48] As noted above, the instances in which Petitioner, Martin, and Ranney denied such knowledge include, without limitation, Paragraph 19 of Petrs Oppn to Respts Mot. to Dismiss, signed by Ranneyon August 1, 2013 (Petitioner and her husband never received notice that the sale purportedly noticed for April 18, 2012 had been postponed.); Afft of Martin, sworn to on August 1, 2013 and submitted by Ranney (We never received any other notice that the foreclosure sale scheduled for April 18, 2012 was postponed.); Jt. Pre-Tr. Mem., p. 7 (Jan. 24, 2013) (noting that whether Petitioner and/or Martin received notices of the postponed foreclosure sale was a disputed issue of fact); Petr Opp. to Respts Mot. to Compel, signed by Ranney on January 24, 2013 (BONYM appears irritated that Petitioner (and her husband) aver that they never received various notice(s) regarding the scheduling of the foreclosure sale); Petrs Resps. to Interrogs., sworn to by Petitioner and signed by Ranney on December 16, 2013 (I was not aware of any date or time. I did not receive any notice(s) of any date or time.; I was never notified of any date(s) or time(s).; I did not receive proper notices before, during or after any purported sale.); Petrs Opp. to Respts Cross-Mot. in Limine, signed by Ranney on February 20, 2014 (The Martins . . . never got any notice from Respondents.; a rescheduled foreclosure sale . . . was never noticed to them by Respondents . . . .; Respondents . . . never gave them notice.); 2d Jt. Pre-Tr. Mem., p. 7 (Apr. 30, 2014) (noting that whether Petitioner and/or Martin received notices of the postponed foreclosure sale was a disputed issue of fact); Opening Arg. of Petr on July 9, 2014 (Tr. Trans. I, p. 16) ([W]e intend to prove that we had no knowledge of the foreclosure sale rescheduling . . . .); Petrs Post-Tr. Br., signed by Petitioner on October 2, 2014 (No notice was given to the Petitioner or her Husband . . . .). Many of these multiple denials of such knowledge occasioned the courts directive, in the February 2014 Order, that Petitioner and Martins knowledge would be an issue for trial.
[Note 49] Even if the May 2012 Email were privileged (which it is clearly not), if Ranney objected to producing it, he was required to disclose its existence and describe it in a privilege log. See Mass. R. Civ. P. 26(b)(5)(A). Rather than doing so, Ranneydenied the existence of further responsive documents, apparently disclaiming anyobligation to complywith Mass. R. Civ. P. 26(b)(5)(A), stating at the January 27, 2014 hearing that I have not gone back through my emails, nor would I because theyre privileged . . . . This statement discloses a staggering misunderstanding of how the attorney-client privilege works, as well as the scope of discovery contemplated by the Mass. R. Civ. P.
[Note 50] The following direct quote from Respondents Motion for Sanctions may be helpful in this regard:
Attorney Jamie Ranneys conduct throughout this case was inexcusable. He intentionally withheld a document that was responsive to discovery requests by the Respondents because it damaged his clients position. The Respondents were therefore forced to subpoena Attorney Ranney. Only in response to the subpoena, on the final day of trial, did Attorney Ranney produce the document. In the meantime, Attorney Ranney pressed his clients claim regarding notice of the foreclosure sale, knowing it to be false. This included dispositive motion practice in which Attorney Ranney continued to assert a claim that [he] knew to be false and also submitted a fabricated affidavit from a witness with this falsehood. The Court should therefore sanction Attorney Ranney for his conduct.
[Note 51] Indeed, because Ranney had this knowledge even prior to filing this action, he had an obligation under Mass. R. Prof. C. 3.3 (a) to taking the position and offering evidence that his clients had no notice of the postponed foreclosure sale. Even if his clients urged him to advance this false position on their behalf, he was permitted to refuse to do so under Mass. R. Prof. C. 3.3(c).
[Note 52] As noted above, Ranney does not even attempt to defend his withholding of the May 2012 Email in his opposition to Respondents Motion for Sanctions.
[Note 53] The court notes that Respondents may also have recourse under G. L. c. 231, § 6F. Presently, however, no motion under Section 6F is before this court.
[Note 54] The court will later determine whether conducting a hearing regarding the dollar amount of monetary sanctions to be issued against Petitioner, Martin, and/or Ranney will be necessary. Within ten days of the issuance of this Decision, Respondents shall submit to this court an affidavit of reasonable costs setting forth the amount of Respondents legal fees and costs incurred herein for the period subsequent to the date of Land Court Decision 1. This affidavit shall annex copies of Respondents attorneys bills for said period, and shall include a certification of the authenticity, accuracy, validity, and admissibility of said business records, as well as a statement of the reasonableness of Respondents legal fees. Such records must include, at minimum, itemized descriptions of (a) the work performed, (b) the date and said work was performed, (c) who performed said work, and (d) the rate at which said work was billed.
Respondents shall make these records available to Petitioner, Martin, and Ranney for the purpose only of reviewing and inspecting same. Any objection to the reasonableness of the legal fees set forth in the bills provided to the court shall be filed, in writing, and served upon Respondents within ten days after Respondents bills are filed with this court. Respondents shall have ten days to file a response to any objections to their attorneys bills.
[Note 55] Further, it is the opinion of this court that no disciplinary action against either Bombard or Respondents would be warranted in this or any other forum.
[Note 56] The court notes that it has wide discretion in determining what sanction to issue for Petitioner, Martin, and Ranneys above-discussed improper conduct herein, and that it would be warranted in striking Petitioner/Ranneys motion for sanctions as a sanction. However, the court declines to do so, preferring instead to deny Petitioner/Ranneys motion on the merits.