JACQUES SAADE v. WILMINGTON TRUST, N.A., as Trustee for MFRA Trust 2014-2, et al.,

Plaintiff Jacques Saade purchased Unit 611 in a condominium located at 300 Commercial Street in Boston, MA in 1994. In 2006, he refinanced his mortgage (the "2006 Mortgage"). In 2011, he received notice that his mortgage loan was in default. Since that time, he has litigated against several entities that have had an interest in the 2006 Mortgage, including his original mortgagee, several assignees of the mortgage, the servicers of the mortgage, and the attorneys for some of the aforementioned entities. In his Verified Complaint in this action, which he filed in early February 2019, Mr. Saade characterizes the parties' post-2011 history as "this long litigation insanity . . . ."

By order dated July 31, 2019, this Court granted the motions of three defendants, Wilmington Trust, N.A., as Trustee for MFRA Trust 2014-2; Fay Servicing, LLC; and Korde & Associates, P.C. to dismiss Mr. Saade's complaint, on grounds of res judicata. Prior to the Court granting their motion to dismiss, Wilmington Trust and Fay Servicing moved for sanctions against Saade, owing to "the vexatious nature of [Saade's] lawsuit. . . ." Wilmington Trust and Fay Servicing asked the Court to enter an order barring Saade "from filing any further actions in any Court in the Commonwealth of Massachusetts concerning the same subject matter absent Court approval." (Hedging their bets, Wilmington Trust and Fay Servicing asked this Court, if it didn't have jurisdiction to impose an injunction that would cover all Massachusetts trial courts, to bar Saade at the very least from filing further complaints in the Land Court. They needn't have been that cautious, as this Court has the power to grant the requested relief in connection with all Departments of the Trial Court. See Lombard v. Bishay, 87 Mass. App. Ct. 1135 (2015) (Rule 1:28 decision).) Saade opposes the motion for sanctions.

A similar order from the U.S. District Court against Mr. Saade, entered in May 2019, appears to have encouraged Wilmington Trust and Fay Servicing to ask for a "pre-filing review" injunction here. The federal court did so under Rule 11(c), Fed. R. Civ. P., which the court construed as allowing sanctions against "wasteful, frivolous and harassing lawsuits." Memorandum and Order, Saade v. Wilmington Trust, National Association, Civil Action No. 18-cv-11534-IT, 14 (D. Mass. May 13, 2019). An oft-cited Massachusetts case concerning pre-filing review injunctions describes a similar standard. See State Realty Co. of Boston v. MacNeil, 341 Mass. 123 (1960) ("[a] court of equity has ample power" to enjoin "harassing, vexatious, and repetitious litigation").

That said, just because Wilmington Trust and Fay Servicing obtained a pre-filing review injunction from a federal court doesn't mean they're entitled to the same injunction from this Court. First, Massachusetts law imposes a precondition to the granting of such injunctions that the federal courts don't face. That precondition arises because of the Commonwealth's adoption of M.G.L. c. 231, §6F, a statute adopted after State Realty. Section 6F addresses the problem of "wholly insubstantial [and] frivolous" "claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature," by providing for an award of attorney's fees to a party who defeats such claims, defenses, setoffs or counterclaims. In Town of Brookline v. Goldstein, 388 Mass. 443 , 448 (1983), the court held that a party is not entitled to an injunction restricting another party's access to the courts unless the moving party shows first that its §6F remedies are inadequate.

Wilmington Trust and Fay Servicing haven't made the precise showing that Goldstein requires, for good reason: §6F confines its remedies to cases in which the vexatious party "was represented by counsel during most or all of the proceeding . . . ." Mr. Saade has been representing himself throughout this proceeding. Injunctions of the type Wilmington Trust and Fay Servicing have requested are available where the moving party has no recourse against his or her opponent under §6F. See, for example, Pandey v. Two Associate Justices of Superior Court, 61 Mass. App. Ct. 1122 , 2004 WL 1872741, *3 & n. 13 (2004) (Rule 1:28 decision).

This Court thus turns to the State Realty's test for imposing pre-filing review injunctions: whether Mr. Saade actually has engaged in "harassing, vexatious, and repetitious litigation." While this Court has found numerous cases that repeat, mantra-like, State Realty's "harassing, vexatious, and repetitious litigation" formula, this Court has found no case that examines its components. One can pull from the reported cases the following tests:

First, "harassing" has two meanings. One meaning, consistent with the word's dictionary definition, is "systematic persecution by besetting with annoyances, threats, or demands." American Heritage Dictionary of the English Language, 600 (1976). Under this notion of harassment, one must prove intent (the conduct must be "systematic") and conduct producing a particular result ("persecution" resulting from being "beset[] with annoyances, threats or demands"). This first meaning of "harassing" is consistent with the holdings in Langadinos v. S. New England Sch. of Law, Inc., 2012 WL 4854704 (Mass. Super. Ct. Sept. 20, 2012) (plaintiff engaged repeatedly in insults and "character assassinations"); Benyamin v. Land Court Dept. of Trial Court, 2010 WL 1076628 (Mass. Super. Ct. Jan. 28, 2010) (requiring pre-filing review where indigent prisoner had filed "repeated" actions against the same three individuals, all alleging the same conspiracy, and all of which were decided against prisoner). The second type of "harassing" conduct is engaging in abuse of process. See, for example, Pandey, 2004 WL 1872741 at ** 2-3; Langadinos, 2012 WL 4854704 at ** 1-2. If someone engages in abuse of process, the target of that conduct needn't show intent or a particular result.

Second, "vexatious" under the State Realty Co. test has its legal definition, meaning "without legal grounds." American Heritage Dictionary at 1426. That meaning of "vexatious" is consistent with the holdings in Pandey, 2004 WL 1872741 at **1-3; Langadinos, 2012 WL 4854704 at **1-2; and Benyamin, 2010 WL 1076628 at *8.

Third, "repetitious" means doing the same or similar thing several times. That meaning is consistent with the holdings in Pandey, 2004 WL 1872741 at *1 (enjoined party filed a "plethora" of baseless lawsuits); Langadinos, 2012 WL 4854704 at **1-3 (more than nine baseless suits filed); and Benyamin, 2010 WL 1076628 at *8 (plaintiff "repeatedly" filed baseless claims against same individuals).

Measured by these cases, since April 2015, Mr. Saade has engaged in "harassing, vexatious, and repetitious litigation" that warrants an injunction under State Realty. Here are the facts. Saade filed the first of his vexatious suits in April 2015 (the "First Action"). (Saade had filed another action in this Court concerning Unit 611 in 2011, but this Court dismissed that suit for lack of jurisdiction.) He named Wilmington Trust as a defendant in the First Action, but not Fay Servicing. In the First Action, Saade presented ten claims and sought to "remove all encumbrances/liens/ attachments" on Unit 611, thereby "clearing" the Unit's title. The defendants removed the First Action to U.S. District Court. See Saade v. PennyMacLoan Services, LLC, No. 15-cv-12275. The district court dismissed Saade's complaint in October 2016. He appealed that decision to the U.S. Court of Appeals for the First Circuit in November 2016.

While the First Action was pending in the U.S. District Court, Mr. Saade filed in October 2015 another action in Suffolk Superior Court (the "Second Action"), seeking the same relief he sought in the First Action and presenting ten causes of action. He again named Wilmington Trust as a defendant, but not Fay Servicing. The defendants removed the Second Action to U.S. District Court. See Saade v. PennyMac Loan Services, LLC, No. 15-cv-13611. The district court dismissed the Second Action in November 2016, and Saade appealed the dismissal to the First Circuit in December 2016. In April 2018, the First Circuit affirmed the dismissals of the First and Second Actions.

While the Second Action was pending in U.S. District Court, Mr. Saade filed in the same court a 24-count complaint in October 2016. See Saade v. Wilmington Savings Fund Society, No. 16-cv-11982 (the "Third Action"). He again named Wilmington Trust as a defendant, but not Fay Servicing. The Third Action sought the same relief as the First and Second Actions.

The district court dismissed the Third Action in September 2017. The court held that, owing to the dismissals of the First and Second Actions, the doctrine of res judicata barred Saade's claims with respect to "any transaction or series of transactions" involving Unit 611 that occurred before October 2015, including the recording of the 2006 Mortgage. As for events occurring after October 2015, the district court dismissed Saade's claims on the merits. Saade appealed the dismissal of the Third Action to the First Circuit in February 2018. The First Circuit has not acted on that appeal. Nevertheless, as of September 2017, Saade was on notice of the doctrine of res judicata and the "series of transactions" it covered.

In June 2018, while his appeal of the Third Action was pending, Mr. Saade filed another suit in this Court (the "Fourth Action"). That suit named Wilmington Trust and Fay Servicing as defendants. Saade's complaint in the Fourth Action contained fifteen counts, challenged the validity of several mortgage assignments, and sought rescission of the 2006 Mortgage. Defendants removed the Fourth Action to the U.S. District Court. See Saade v. Wilmington Trust, National Association, No. 18-cv-11534.

In August 2018, while the Fourth Action was pending, Mr. Saade filed another action in U.S. District Court. See Saade v. Fay Servicing, LLC, No. 18-cv-11873 (the "Fifth Action"). Saade named Wilmington Trust and Fay Servicing as defendants in the Fifth Action. While his complaint in the Fifth Action contained only three counts, the complaint again sought rescission of the 2006 Mortgage. The district court dismissed the Fourth and Fifth Actions in May 2019, largely on res-judicata grounds. Saade moved for reconsideration of the dismissals in June 2019; the district court hasn't ruled on that motion.

Later in August 2018, while the Fourth and Fifth Actions were pending, Mr. Saade filed another action in this Court against Wilmington Trust, Fay Servicing, and others. See Saade v. Wilmington Trust, No. 18 MISC 00432 (the "Sixth Action"). Saade asked again that the 2006 Mortgage be rescinded. This Court (Lombardi, J.) dismissed the Sixth Action in September 2018, wholly on grounds of res judicata. Saade appealed the dismissal to the Massachusetts Appeals Court. Saade's appeal is still pending.

The Fourth and Fifth Actions were still pending when Mr. Saade filed his current action in this Court, making it the Seventh Action. This Court stayed this action until May 2019, when the U.S. District Court dismissed the Fourth and Fifth Actions. In July 2019, this Court dismissed Saade's claims in this action against Wilmington Trust and Fay Servicing on res-judicata grounds.

The chronology set forth above shows that Mr. Saade has engaged in "harassing" litigation in the Superior Court, the U.S. District Court, the U.S Court of Appeals, and this Court against Wilmington Trust and Fay Servicing since September 2017, when the U.S. District Court became the first court to hold that Saade was bringing claims barred under the doctrine of res judicata. Saade's attempts to litigate claims barred under the doctrine of res judicata have been intentional, persistent and unrelenting. Those attempts have "beset" Wilmington Trust and Fay Servicing, inasmuch as they have had to retain counsel to continue defending against Saade's claims in the Fourth and Fifth Actions, defend against the appeal he took from dismissal of those claims in the Sixth Action, and defend against the resubmitted barred claims in this action.

The chronology set forth above shows that after September 2017, Mr. Saade's claims have been "vexatious," as he had no grounds in the Fourth, Fifth, Sixth and Seventh Actions to continue litigating his barred claims.

The chronology set forth above last shows that Mr. Saade has made repetitious claims, over seven lawsuits and related appeals. He should have stopped pursuing many of those claims after dismissal of the Third Action in September 2017.

Because Wilmington Trust and Fay Servicing have no adequate remedies under c. 231, §6F and because Mr. Saade has engaged in "harassing, vexatious, and repetitious litigation," within the meaning of State Realty Co. and its progeny, against Wilmington Trust and Fay Servicing, this Court GRANTS Wilmington Trust and Fay Servicing's Motion for Sanctions in part and DENIES the Motion in part. It is hereby

ORDERED that Jacques Saade shall not file, and no clerk of any Department of the Trial Court shall accept for filing by Mr. Saade, any complaint that names as a defendant Wilmington Trust, National Association (individually or as Trustee for MFRA Trust 2014-2), and/or Fay Servicing, LLC, unless the filing is (a) accompanied by a copy of (i) this Order; (ii) the Memorandum and Order in Saade v. Wilmington Trust, National Association, Civil Action No. 18-cv-11534-IT (D. Mass. May 13, 2019) (the "Memorandum"); and (iii) the Order of Dismissal in this action dated July 31, 2019; and (b) approved by the Chief Judge of the Department to which Mr. Saade has present his complaint, or his or her designee, upon a finding that the complaint asserts a claim or claims that would survive a motion to dismiss (or for summary judgment) on grounds of the doctrine of res judicata, stemming from the matters decided in the Memorandum and/or the Order of Dismissal.

Should any of the judgments in the Third, Fourth, Fifth, Sixth or this Action be reversed on appeal, Mr. Saade may seek relief from this Order.

SO ORDERED.