GERARDO RAFFAELE v. BRUCE BARTOLINI, as Trustee for Bartolini Realty Trust, and ANDREW J. ROGERS, JR.

INTRODUCTION

On August 25, 2015, plaintiff Gerardo Raffaele ("Raffaele" or "Plaintiff") filed the complaint in this case, requesting the court declare that a mortgage ("Bartolini Mortgage") granted by defendant Andrew Rogers, Jr. ("Rogers" or "Defendant Rogers") to defendant Bruce Bartolini, Trustee of the Bartolini Realty Trust ("Bartolini" or "Defendant Bartolini")(collectively "Defendants") is a sham mortgage and unenforceable.

On February 27, 2015, Raffaele purchased for $325,000.00 at a sheriff's auction Defendant Rogers' undivided interest in a unit, Unit 201, ("Property") in condominium located in a building at 424 Massachusetts Avenue, Boston. [Note 1] Defendant Bartolini commenced the process of foreclosure of the Bartolini Mortgage as against Plaintiff's interest in the Property. Plaintiff in this action contests the Bartolini Mortgage's validity and enforceability.

PROCEDURAL HISTORY

Plaintiff filed a complaint in this court on August 25, 2015. Defendant Rogers filed an answer on October 1, 2015. Defendant Bartolini filed a motion to dismiss on October 2, 2015. Counsel for all parties appeared at a case management conference on October 6, 2015. Defendant Bartolini did not press for action on his motion to dismiss; the court treated it as withdrawn following colloquy with counsel at the conference on October 6, 2015. On November 24, 2015, Defendant Bartolini filed an answer and counterclaim.

Defendant Bartolini filed a motion for summary judgment on November 27, 2015. Plaintiff filed an opposition to Defendant Bartolini's motion for summary judgment and a motion to compel production of documents by the defendants on December 18, 2015. On February 9, 2016, the court, after hearing, denied Defendant Bartolini's motion for summary judgment, because the court determined material facts were in dispute, which if proved at trial would establish that there was no true obligation underlying the Bartolini Mortgage.

On April 1, 2016, Plaintiff filed under G.L. c. 231, § 59H a special motion to dismiss Defendant Bartolini's counterclaims, which alleged G.L. c. 93A violations, unjust enrichment, and bad faith; Defendant Bartolini filed on April 21, 2016 an opposition to the special motion to dismiss. After hearing on April 21, 2016, the court allowed Plaintiff's motion to dismiss the counterclaim brought under G.L. c. 93A for lack of subject matter jurisdiction. The court also dismissed Defendant Bartolini's counterclaims for unjust enrichment and bad faith because they were brought only in response to Plaintiff's initiating this case, and alleged no other reasonable factual support or arguable basis in law, beyond the lawsuit itself, to support the counterclaims.

On June 29, 2016, Plaintiff filed a motion for summary judgment. Defendants each filed individual oppositions to Plaintiff's motion for summary judgment and individual cross-motions for summary judgment. Plaintiff responded by filing an opposition to defendants' cross-motions for summary judgment. On December 19, 2016, the court held a hearing on all parties' motions for summary judgment. Finding, first, that material facts remained in dispute and, second, that even the undisputed facts required the court to make inferences beyond those permitted under Mass. R. Civ. P. 56, the court denied all motions for summary judgment and scheduled a pretrial conference. It was held on March 10, 2017, and the court scheduled the case for trial.

The court held trial on June 14, 2017 and June 15, 2017. Court reporter Pamela J. St. Amand was sworn to take the testimony and produce a transcript. Defendant Rogers, Defendant Bartolini, Plaintiff Raffaele, Stanley Piecewicz, Jr., Joseph Terranova, and Robert McNaught testified, and the parties introduced twenty-two exhibits into evidence, all as reflected in the transcripts. Later, after all parties submitted post-trial briefs and requested findings of fact and rulings of law, the court heard closing arguments; following receipt of the transcript of that session, the court took the matter under advisement. I now decide the case.

Based on all the testimony, exhibits, stipulations, agreed facts, and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, proposed findings of fact and rulings of law with supporting memoranda, and the arguments of the parties by their counsel, I make the following findings of fact and rulings of law.

FACTS

1. I find that Defendants Rogers and Bartolini have had a business and professional relationship extending as far back as the 1970s, and since the 1990s the Trustee of the Bartolini Realty Trust began lending money to Rogers. Rogers, a lawyer with a practice in Framingham, long has represented Bartolini and his interests in a variety of real estate, lending, and other business matters. Rogers used the funds he borrowed over the years from Bartolini for a variety of purposes, including to fund various real estate and business ventures and investments Rogers made. I credit the Defendants' testimony that somewhere between thirty and forty loans were made by Bartolini to Rogers since 1995. I credit the Defendants' testimony that these loans primarily took the form of a revolving loan or series of loans, predominantly informal in nature, often evidenced by a hodge-podge of handshakes, check stubs, and, at their most formal, handwritten notes promising repayment. I credit the Defendants' testimony that at times, Defendant Rogers would pay down the loan—either through provision of funds, or by rendering creditable legal services to Defendant Bartolini and his family. For example, Defendant Rogers represented Defendant Bartolini's brother during his divorce. Rogers played a role in looking after Bartolini's business affairs while Bartolini served in the military from 2003 to 2004. I credit the Defendants' testimony that Defendant Rogers's law firm, Rogers & Rogers Attorneys at Law, often held money in escrow on behalf of Bartolini Realty Trust and represented both Bartolini as Trustee of the Bartolini Realty Trust and Bruce Bartolini, individually, in a range of diverse legal matters.

2. I credit the Defendants' testimony that every few years, Defendants Rogers and Bartolini would confer with each other regarding the amount Rogers then owed on the loan, what each believed the amount to be, and agreed to fix a certain amount at that time owed. I find their testimony credible that, while the overall loan amount may sometimes have been less than fully precise, they, as between themselves, never have been in significant dispute over the amount owed.

3. On May 25, 2001, Defendant Rogers signed a promissory note ("2001 Note") providing for repayment to Defendant Bartolini of a principal amount of $150,000.00 at an interest rate of one-and-a-half percent, due and payable April 25, 2011. I credit the Defendants' testimony that this was the then current agreed-upon amount Defendant Rogers owed the Bartolini Realty Trust for past loans, which were in effect consolidated into the borrowing memorialized in this 2001 Note. I find no persuasive evidence to suggest that the 2001 Note does not represent a true debt owed at that time by Defendant Rogers to the Bartolini Realty Trust.

4. Defendant Rogers testified, and I credit him on this, that one of the reasons the Defendants signed the 2001 Note was because Defendant Bartolini's wife became involved in Defendant Bartolini's business transactions, and she wanted the loans to Defendant Rogers consolidated and better memorialized. I find that she wanted a written note to provide more formal evidence of the debt Defendant Rogers owed to the Bartolini Realty Trust.

5. I find that the Bartolini Realty Trust occasionally provided private loans to others, often to borrowers who might have had trouble acquiring more conventional (and more affordable) institutional loans. One of these other borrowers was Stanley A. Piecewicz, Jr., who was, at least to some degree, engaged in the real estate development business. I find that, in the early 2000s, the Bartolini Realty Trust provided to Stanley A. Piecewicz, Jr. and Barbara A. Piecewicz as Trustees for S&B Realty Trust private loans secured by mortgages at least three times: on or about December 21, 2000 for $200,000.00, on or about January 21, 2004 for $510,000.00, and on or about May 10, 2004 for $76,500.00.

6. Stanley Piecewicz testified, and I credit him generally on this, that in January of 2005, over the course of three days, he refinanced his mortgage loans outstanding to the Trustee of the Bartolini Realty Trust, and, using funds from the refinancing lender, Piecewicz paid the monies owed to Bartolini Realty Trust to secure discharges of the mortgages he had given to secure his borrowings.

7. I find that on January 20, 2005, the money from Stanley Piecewicz's loan repayment, which totaled $752,748.50, was deposited in an escrow account at Rogers & Rogers Attorneys at Law, Defendant Rogers's law firm, which had handled Bartolini's side of the Piecewicz refinancing.

8. Defendant Rogers testified that in March, 2005, his son, Andrew J. Rogers, III, ("Son") and daughter-in-law wanted to purchase the Property, but they needed funds for the down payment. I find this to be generally credible.

9. I credit Defendant Rogers testimony that it was he who provided the entire down payment at or prior to the time of the closing at which the Property was purchased. A significant portion of the funds Defendant Rogers used for this transaction he ended up borrowing from Defendant Bartolini. Defendant Rogers testified that of the $142,237.11 needed to close, he required an additional $80,237.00, and asked Defendant Bartolini for help. I generally credit this testimony.

10. I find that on March 21, 2005, Defendant Bartolini authorized Defendant Rogers to borrow from Bartolini an additional $80,237.00. I find that to make available to Defendant Rogers this additional loan amount, evidenced by an authorizing handwritten note ("2005 Authorization"), Defendant Bartolini instructed Defendant Rogers to take $80,237.00 from the funds on deposit for Bartolini's account in the Rogers & Rogers' escrow account. The understanding was that Rogers would execute a $200,000.00 mortgage of Defendant Rogers' interest in the Property as security for both the past loans (agreed to be approximately $120,000.00) and the additional loan amount (of approximately $80,000.00). The full text of the 2005 Authorization (Exhibit 5) is as follows:

Dear Drew, I authorize you to take $80,237.11 from Stanley's money that you are holding for Drew Jr.'s condo purchase. You are to put in $62,000 to make up the $142,237.11 needed to close. Also, do a mortgage for $200,000 to cover old money you owe me and this new money.

Sincerely /s/ Bruce Bartolini.

11. I find that on March 22, 2005, the Defendants signed a letter ("2005 Modification Agreement") that modified the terms of the 2001 Note to account for the new loan and new mortgage regarding the Property. The 2005 Modification Agreement increased the principal amount to $200,000, reduced the interest rate on the loan from one-and-a-half percent to one percent (ostensibly to reflect that the borrowings now were to some degree secured), and refers to the Bartolini Mortgage as security for the loan. The full text of the 2005 Modification Agreement (Exhibit 7) is as follows:

Modification. On this 22nd day of March 2005 it is agreed that the original note of May 25, 2001 between Andrew J. Rogers Jr. and Bruce Bartolini as Trustee of the Bartolini Realty Trust is modified and increased to $200,000. The consideration is the principal and interest due on said note plus additional funds. It is further agreed that the original unsecured note, plus this modification, shall be secured by a mortgage to be placed on the property at 424 Mass. Ave. Boston, Mass. standing in the names of Andrew J. Rogers Jr. and Andrew J. Rogers III. Said mortgage to be signed by Andrew J. Rogers Jr. only. Interest shall be decreased from 1.5% mthly to 1% mthly.

3/22/2005 /s/ Andrew J. Rogers, Jr.

3/22/2005 /s/ Bruce Bartolini, Trustee

12. I find that on March 22, 2005, Defendant Rogers purchased the Property with his Son as joint tenants.

13. I find that neither the HUD settlement statement from that closing, nor the America's Wholesale Lender (now Bank of America) mortgage application for the institutional first mortgage loan taken out by Defendant Rogers and his Son in connection with the Property's acquisition closing reflect the Bartolini Mortgage. At trial, Defendant Rogers admitted that he intentionally withheld the recording of the Bartolini Mortgage so that it would not affect adversely the purchase money first mortgage loan. I credit this testimony. It is highly likely that Defendant Rogers contrived to keep from the institutional lender his private lending arrangement with Defendant Bartolini, because the disclosure of that additional and substantial borrowing would have jeopardized the conventional loan.

14. I find that Sharon Klint, ("Klint"), Defendant Rogers's paralegal, with his oversight, prepared the Bartolini Mortgage dated March 22, 2005, granted by Defendant Rogers to Defendant Bartolini as trustee of the Bartolini Realty Trust, securing the consolidated earlier and newly-advanced borrowings in a stated principal amount of $200,000.00, and due on April 25, 2011. The Bartolini Mortgage, I conclude, was prepared and executed outside the closing of the institutional first mortgage by a different individual with the law office in an apparent effort by Defendant Rogers to keep this private loan from being linked to the America's Wholesale Lender loan.

15. On May 10, 2005, the Massachusetts Appeals Court affirmed a G.L. c. 93A judgment entered in the Superior Court against Defendant Rogers in the amount of $212,397.00.

16. I find that the Bartolini Mortgage was recorded at the Registry on May 27, 2005 in Book 37163, Page 133. I conclude that a reason for the two-month gap between the executing and recording the Bartolini Mortgage was that, although he originally did not want to record that mortgage at a time too close to the closing at which he and his son purchased the Property (for fear that the first purchase money mortgage lender would not close if it knew about the borrowed nature of a substantial part of the so-called down payment Defendant Rogers was contributing), Defendant Rogers did not want his 93A judgment creditor to obtain priority over the Bartolini Mortgage, and so went to record with it soon after the Appeals Court issued its memorandum and decision.

17. I find that on March 18, 2011, the Defendants executed a modification agreement ("2011 Modification Agreement") extending the Bartolini Mortgage's maturity date to April 25, 2021. Klint notarized the 2011 Modification Agreement. The 2011 Modification Agreement was recorded with the Registry on December 21, 2011 in Book 48835, Page 48. The text of the 2011 Modification Agreement (Exhibit 17) is as follows:

For value received, I Bruce Bartolini, Trustee of Bartolini Realty Trust, the current holder of a mortgage from Andrew J. Rogers, Jr., to Bartolini Realty Trust dated March 22, 2005 in the original principle amount of $200,000. recorded with Suffolk County Registry of Deeds in Book 37183, Page 133, hereby extends the maturity date of said mortgage to April 25, 2021. In all other respects said mortgage shall remain in full force and effect.

Property Address: 424 Massachusetts Avenue, Unit 201, Boston, Massachusetts

Signed on the 18th day of March 2011.

/s/ Bruce Bartolini, Trustee, Bartolini Realty Trust

/s/ Andrew J. Rogers, Jr.

18. I find that on December 20, 2011, Rogers and his son, Andrew J. Rogers, III, conveyed the Property to Andrew J. Rogers, III, and Lindsay Rogers, Andrew J. Rogers, III's wife. The deed states that the property is subject to two outstanding mortgages. I find that on December 21, 2011, this deed was recorded with the Registry in Book 48835, Page 49. 19. I find that on February 18, 2015, the Defendants again modified the Note ("2015 Modification Agreement") to make the loan "due on demand." The text of the 2015 Modification Agreement (Exhibit 11) is as follows: On this 18th day of February 2015 the original note dated May 25, 2001 between Andrew J. Rogers Jr. and Bruce Bartolini as Trustee of the Bartolini Realty Trust in the original amount of $150,000, subsequently modified on March 21, 2005 and March 18, 2011 is further modified on this 18th day of February 2015 to make said note a "due on demand" note. Consideration is hereby acknowledged. The principal balance of said note is two hundred thousand dollars, plus interest and late charges. All other terms [and] conditions remain the same. /s/ Andrew J Rogers Jr.

/s/ Bruce Bartolini trustee of Bartolini Realty Trust

20. I credit Plaintiff's testimony that Plaintiff learned that the Property was going to be auctioned off at a sheriff's auction. I credit Plaintiff's testimony that Plaintiff learned this information from Robert McNaught ("McNaught"), Plaintiff's childhood friend who worked at the sheriff's department. I credit Plaintiff's testimony that McNaught had informed Plaintiff about a creditor's lien and that "some guy was trying to transfer property out of his name into his son and daughter's name and they were going to auction it."

21. I credit Plaintiff's testimony that he has been involved in several real estate transactions in his adult life. In addition to co-owing his primary residence and a vacation cottage, Plaintiff currently owns a five-unit residential property in Wakefield, MA, and a four-unit commercial retail building in Melrose, MA. At trial, Plaintiff, who is employed at a local university, demonstrated substantial knowledge about a variety of real estate matters, including the importance of obtaining a title search, although he himself is not trained to perform title searches.

22. I credit Plaintiff's testimony that, prior to the auction, he ran on the internet a quick title search concerning the Property, looking for a Bank of America mortgage. I credit Plaintiff's testimony that he did no further title research. I also find that, prior to the auction, Plaintiff understood this was a sheriff's auction, and not a conventional real estate sale.

23. On February 27, 2015, Plaintiff successfully bid on the Property for $325,000.00 at a sheriff's auction.

24. I credit Plaintiff's testimony that, after he successfully bid on the Property, Plaintiff had 72 hours to close. I credit Plaintiff's testimony that he did no further title search and concentrated on acquiring the funds he needed to close.

25. I credit McNaught's testimony that he saw Plaintiff shortly after the sale and Plaintiff expressed regret about purchasing the Property.

26. I find that Plaintiff was not aware generally of the significant issues affecting the record title to the Property he was buying at the sheriff's auction sale. Although all of these matters would have been apparent from a conventional title examination at the Registry, Plaintiff generally was unaware that the interest up for auction was Defendant's undivided interest in the condominium unit, and did not reach any interest held by Son, because the Superior Court execution being enforced by the Sheriff's Department was issued on a judgment which ran only against Defendant Rogers, and not Son. Plaintiff before bidding also failed to appreciate the significance of the reality that his purchase under the sheriff's deed was of, of record, a title encumbered by the institutional first mortgage and the Bartolini Mortgage, both of which were duly recorded prior to the sheriff's sale and would have been knowable had Plaintiff made a proper and conventional search of the Registry records and understood the legal significance of that search. I credit Plaintiff's testimony that shortly after purchasing the Property, he called Defendant Rogers who informed Plaintiff that he had purchased a "fifty percent" interest in the Property, and that the Property was encumbered by two mortgages.

27. I find that, based on Defendant Bartolini's testimony, the Bartolini Realty Trust began foreclosure proceedings in 2015, but stopped when this litigation began.

DISCUSSION

Plaintiff carries the burden of proving that the recorded and facially regular Bartolini Mortgage is not valid. Joseph v. Heirs of McDonald, 14 LCR 421 , 422 (2006), citing Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 , 49 (1869) ("Plaintiff carries the burden of disproving the validity of the mortgage"). Generally, the court affords a strong presumption of validity to written agreements. See Kidder v. Greenman, 283 Mass. 601 , 614 (1933) ("The weight of evidence cannot be determined by balancing oral testimony, because the written contemporaneous declaration of the parties must always be in the scale, and will outweigh any mere preponderance of the other testimony."); Joseph, 14 LCR at 422 ("Indeed, the standard that plaintiff must meet [to invalidate a mortgage] is greater than a mere preponderance of the evidence.").

Plaintiff advances three arguments why the court should find the Bartolini Mortgage invalid. First, Plaintiff argues the 2001 Note is unenforceable because it expired on April 25, 2011, and the Defendants' subsequent modifications of the 2001 Note and Bartolini Mortgage do not revitalize the original obligation. Second, Plaintiff claims the Bartolini Mortgage should be deemed void for lack of consideration. Plaintiff further says that the Bartolini Mortgage is a sham, concocted without factual basis by the Defendants, which Plaintiff says is proved by their ability to produce only a patchwork of loan and business records. I find and I rule that Plaintiff has not carried his burden of proof on these contentions and that the Bartolini Mortgage will not be invalidated on these bases. I address each of these issues in turn.

1. The 2001 Note's Expiration Date

Plaintiff first argues that the 2001 Note is unenforceable because it expired on April 25, 2011, and the six-year statute of limitations under G.L. c. 106, § 3-118(a) to enforce the 2001 Note has passed. Plaintiff claims that because the 2011 Modification Agreement does not reference the original 2001 Note—only the Bartolini Mortgage—the 2011 Modification Agreement extending the maturity date to April 21, 2021 only applies to the Bartolini Mortgage. I will in my discretion address this claim, although Plaintiff did not expressly advance it in his pleadings.

It is "well established" that an existing "mortgage and note are to be read together." Kattar v. Demoulas, 433 Mass. 1 , 11 n. 7 (2000) (referring to Mayo v. Fitchburg & Leominster St. Ry., 269 Mass. 118 , 121 (1929)); see also Baker v. James, 280 Mass. 43 , 46 (1932). "Thus, a note coupled with its security, i.e., the mortgage, constitute one contract for breach of contract purposes." Kattar, 433 Mass. at 11 n. 7. A maturity date listed in only one document, the note or mortgage, can be enforced as to its related document. Overlook Properties, LLC v. Braintree Co-Operative Bank, 92 Mass. App. Ct. 1103 (2017) ("a maturity date stated in the note applies equally to the corresponding mortgage securing that debt"). Only when the material terms cannot be discerned from reading both documents may a mortgage be invalidated on this ground.JPMorgan Chase & Co. v. Casarano, 81 Mass. App. Ct. 353 (2012) (finding a mortgage unenforceable because the note was lost and the mortgage lacked material terms, including a maturity date).

Here, the 2011 Modification Agreement refers to the Bartolini Mortgage by its recording references and was, in fact, recorded itself. In turn, the Bartolini Mortgage refers in its text to the original 2001 Note, which is evidence of the underlying debt that the Bartolini Mortgage secures. I find that, because the 2001 Note and Bartolini Mortgage are to be read together, the 2011 Modification Agreement, by explicitly referencing the Bartolini Mortgage, also applies to the 2001 Note. The 2011 Modification Agreement extending the maturity date from 2011 to 2021 validly applies to the Bartolini Mortgage and saves it from becoming invalid or unenforceable.

2. Lack of Consideration

Plaintiff also claims that there is no consideration for the Bartolini Mortgage. Plaintiff advances a number of theories why the Bartolini Mortgage is void for lack of consideration, which rest largely on the absence of elaborative record-keeping between Defendant Rogers and Defendant Bartolini. Plaintiff points, for example, to a lack of tax records, accounting records, or other documents that show from what account the loan was disbursed or to which account the funds were deposited. I find and rule that Plaintiff has not successfully proven, by a preponderance of the evidence, that no consideration exists for the Bartolini Mortgage.

Consideration often is described as a "bargained-for exchange" received by a promisor from a promisee that encourages the promisor to satisfy the promise. See, e.g., Black's Law Dictionary (10th ed. 2014); Restatement (Second) of Contracts § 81 (1981). A lack of consideration not only renders a mortgage and note unenforceable, but also indicates that the monies "loaned" are not bona fide debt, but actually a gift. Arnold v. Arnold, 8 LCR 196 , 198 (2000).

Here, the 2001 Note was unsecured for $150,000 with an interest rate of one-and-a-half percent. In 2005, Defendants agreed to reduce the interest rate to one percent in exchange for the grant of the Bartolini Mortgage on Defendant Rogers' interest in the Property. Defendants entered into a "bargained-for exchange." This transaction is supported by the 2005 Modification Letter [Note 2] and a check for $80,237.11 dated March 22, 2005 from Rogers's escrow account, as well as sworn testimony from the Defendants which I have credited generally to prove that there was both a reconsolidation of preexisting debt and material additional funds being advanced by Defendant Bartolini. I find that Plaintiff has not produced persuasive contradicting evidence to suggest that the loans were gifts, or otherwise given without consideration.

The Bartolini Mortgage adequately describes the consideration. A mortgage need not "fully describe" the consideration, but rather "must only describe the debt in sufficient detail to put a person examining the title on notice of its extent." Joseph v. Heirs of McDonald, 14 LCR 421 , 422 (2006) (citing Hampshire Nat'l Bank of South Hadley v. Calkins, 3 Mass. App. Ct. 697 , 698 (1975)); see also Restatement (Third) of Property: Mortgages § 1.5(a) (1997) ("A mortgage need not describe the obligation whose performance it secures, provided the parties have otherwise reached agreement identifying that obligation.").

Here, the Bartolini Mortgage, on record with the Registry, specified both the loan's principal amount and maturity date. The Bartolini Mortgage also directly references the 2001 Note. Therefore, the Bartolini Mortgage "describe[d] the debt in sufficient detail" to alert Plaintiff to its existence. Indeed, I find that if, prior to the auction, Plaintiff had reviewed adequately the records of the Registry, or otherwise conducted a basic standard title examination, Plaintiff would have been notified of the Bartolini Mortgage's existence (not to mention the limited ownership interest being passed by the sheriff's deed, and the prior institutional first mortgage). I find that Plaintiff had adequate experience in real estate, and was sufficiently sophisticated in his knowledge to understand: that real estate may be encumbered by more than one mortgage; that a title examination normally needs to be conducted by a prospective buyer of real estate; and that a check in the Registry will reveal the nature of the interest that a judgment debtor holds in real estate subject to execution and sale. I find that when he purchased the Property at the sheriff's sale, Plaintiff either knew or reasonably ought to have known that buying real estate at such an auction sale comes with risks such as those he did encounter once he bid, and that those risks could have been made apparent by hiring counsel or otherwise learning through proper title examination the state of the title to be passed by the sheriff's deed. Those risks include, certainly, the risk about which the parties now are in contention in this litigation—the presence of the recorded Bartolini Mortgage on the record title. While the presence of the recorded mortgage does not end the inquiry (because the Bartolini Mortgage might, though of record, be proved to be unenforceable in subsequent litigation), Plaintiff's failure to undertake basic diligence has left him in the current precarious position. [Note 3]

I find that the informal, less-than-pristine record-keeping that went on between Defendants does not provide sufficiently persuasive evidence to permit Plaintiff to carry the burden of proof necessary to show that the Bartolini Mortgage is unenforceable for lack of consideration.

3. Sham Mortgage

Plaintiff claims that the Bartolini Mortgage should be declared unenforceable because it is a sham. Here again, I find and rule that Plaintiff has not carried his burden in proving the Bartolini Mortgage a sham. Plaintiff largely relies on a patchwork of suspicious but not cogent and convincing facts: the general lack of documentation of financial transactions between the Defendants over many years; the absence of the Bartolini Mortgage's disclosure on the Bank of America mortgage application and HUD settlement; the two-plus month gap in the Bartolini Mortgage's execution and recording; and the fact that various documents were prepared and notarized by either Mr. Rogers' sister or paralegal.

Plaintiff relies on the Defendants' lack of elaborative record-keeping, particularly as to the funds provided for the Bartolini Mortgage, to support his sham mortgage claim. I find that in light of the evidence provided at trial—including but not limited to the 2001 Note, the Bartolini Mortgage, the 2005 Authorization, the 2005 Modification Agreement, the 2015 Modification Agreement, and the escrow deposit slip from January 20, 2005, bolstered by credible testimony—Plaintiff's claim fails. I find that Plaintiff, in his effort to prove a sham lending relationship, relies overmuch on the Defendants' absence of thorough and exhaustive loan records.

There are a number of facts about the Defendants' activities (and in particular those of Defendant Rogers) that I find troubling and unsavory. Some might be indicative of other wrongdoings. It appears that Defendant Rogers was for many years involved in cloudy business and borrowing relationships, not always arms-length, with a client of his law firm. Rogers also appears to have grown dependent on Bartolini for funds to support and address Rogers' various real estate and business ventures and the debts, liabilities and obligations Rogers incurred in those ventures.

When Rogers, short on liquid funds, needed money to make his son's purchase of the Property happen, Defendant Rogers took measures to get that money from Bartolini; some of these measures were inappropriate and deeply concerning. He maneuvered to accommodate Bartolini's understandable request for mortgage security. He agreed to grant the Bartolini Mortgage, but did so while dissembling to the institutional lender, concealing the fact that the buyers' funds largely were borrowed. If Defendant Rogers had made this known, the purchase of the Property might have been stopped by the first mortgage lender. This is the reason, I conclude, that Defendant Rogers had the Bartolini Mortgage prepared and acknowledged separately, away from the other purchase and first mortgage transactional documents, and why he delayed having the Bartolini Mortgage recorded. I find that there was a deliberate effort on Defendant Rogers' part to conceal the fact that he had borrowed a large portion of the funds, ostensibly his own, he contributed to the purchase of the condominium unit.

I also find that it was the impending issuance of the execution in the Superior Court case, following the Appeals Court's affirmance of that judgment, that impelled Defendant Rogers to have the Bartolini Mortgage recorded at the Registry. He did so in an effort to give the Bartolini Mortgage priority over the interests in the Property of the judgment creditors. (It is not clear to me on the evidence I have that the execution would not have priority over the Bartolini Mortgage in any event, depending on whether there was a previously recorded attachment in Suffolk County that would afford the execution that retroactive priority, but I conclude that Defendant's Rogers' recording of the Bartolini Mortgage promptly after the Appeals Court decided the appeal was no mere coincidence.) If the execution had been levied on Defendant Rogers' interest in the Property before the Bartolini Mortgage made it to record, Defendant Rogers would have been in breach of his obligations, both as a lawyer and a borrower, to Bartolini, who had asked that the funds he had lent be secured with a valid mortgage on Defendant Rogers' interest. Defendant Rogers was not candid with either the first mortgage lender or Bartolini, and he acted to keep the judgment creditors from meaningfully realizing on any equity of his which may have existed in the Property. [Note 4]

However, I do not find that these actions by Defendant Rogers, disconcerting though they are, establish a right in the Plaintiff to have his interest in the Property freed from the lien of the Bartolini Mortgage. To prevail in this litigation, Raffaele needed to prove particular facts showing that the Bartolini Mortgage itself is a sham—that it does not provide security for any genuine debt due from Defendant Rogers to Defendant Bartolini. Plaintiff has not carried his burden on this essential element. I do not find that any of Defendant Rogers's conduct, including his failure to disclose the Bartolini Mortgage on the Bank of America mortgage application and on the HUD settlement statement, as well as the two-month gap between the Bartolini Mortgage's execution and recording, prove that the Bartolini Mortgage does not provide security for debt actually existing between the Defendants. I have found that, despite the lack of formal and precise record keeping, substantial debt does exist between Defendant Rogers as borrower and Defendant Bartolini as lender, and that the Bartolini Mortgage was intended by the Defendants to serve as security for that debt.

The evidence I credit fails to prove that there was no real debt underlying the Bartolini Mortgage. This failure of proof by Plaintiff is fatal to his claims, as the absence of underlying debt constitutes the essence of a "sham" mortgage. See Young v. Miller, 72 Mass. 152 , 153 (1856) ("The true character of a mortgage is the pledge of real estate to secure the payment of money, or the performance of some other obligation"). Because Plaintiff has failed to carry his burden, judgment must enter for the Defendants.

This is so even though Plaintiff is left in a decidedly difficult position, having expended substantial funds to purchase an undivided interest in a condominium unit that is encumbered by mortgage debt of great magnitude. As I have said, much of Plaintiff's predicament is the result of his lack of diligent investigation of the Property's title and appreciation of the significance of the state of that title. Even without the Bartolini Mortgage to contend with, Plaintiff would be left with ownership of only one joint tenant's interest in the condominium unit, with that interest subject to the institutional first mortgage, which Plaintiff has not suggested is subject to any legitimate challenge. The reality is that one who purchases at a sheriff's sale without counsel, and without adequate examination and understanding of the record title, confronts great peril. The judgment that I am obliged to direct be entered in this case, in favor of the defendants, must reflect this harsh reality.

Judgment accordingly.