MISC 17-000607

May 14, 2020

Suffolk, ss.



On January 13 and 14, 2020, the Commissioner in this partition action filed two documents. One was a Statement of Fees for Completion of Partition and Distribution of Proceeds For Services Rendered . . . from September 13, 2019 to January 13, 2020 (the "Invoice"). The Commissioner asked the Court to approve payment of his final stated fees and expenses, all of which he incurred after September 13, 2019, the date this Court entered a final judgment confirming the partition in this case (the "Judgment"). The Commissioner's second document was a statement of Interest Earned on 190 Kelton Street Sale Proceeds (the "Interest Statement"). The Interest Statement disclosed how much the Commissioner continued to hold from the proceeds of the sale of the parties' (formerly) jointly owned property, 190 Kelton Street in Boston, Massachusetts (the "Proceeds"). The interest reported by the Commissioner as of mid-January 2020 was $2,560.48.

On January 28, 2020, respondent Philip Soo Hoo, one of the three former owners of 190 Kelton Street, filed his Comments on Commissioner's Balance in Escrow (the "Comments"). In his Comments, Philip objected to the Invoice. (As three former owners are siblings and have similar last names, the Court will refer to Philip, his siblings William Soo Hoo and Linda Soohoo, and their father Wing Cheow Soo Hoo (a claimant in this case) by their first names.) Philip also disputed the Interest Statement. He asserted that the Commissioner's interest calculations are "challenging," that they "present[ed] controversial items," and that they suggested "potential conflict of interest and self-dealing." Philip said he "suspect[ed] improprieties in [the Commissioner's] withdrawals" too.

Thus, despite the Court's January 2020 discharge of the Commissioner from further duties in this case (following the Commissioner's deposit of the bulk of the Proceeds with the Recorder of this Court), the Court ordered the Commissioner to produce to the parties copies of all documents upon which he relied in preparing the Interest Statement. The Court further advised the parties that if the Court were to conclude that the Interest Statement is substantially accurate, the Court would tax on Philip the Commissioner's fees and costs of producing the documents. See Order (Jan. 31, 2020).

The Commissioner produced his Interest documents as the Court directed. He also submitted a Statement of Fees for Completion of Partition for Services Rendered . . . from January 14th, 2020 to March 2nd, 2020 (the "Supplemental Invoice"), and asked that it be paid. Philip submitted two responses. His first, sent on February 25, 2020 but docketed on March 13, 2020, is his Extra Comments on Commissioner's Balance in Escrow (the "Extra Comments"). His second response, received and docketed on March 13, 2020, is his Motions to Reject Commissioner's IOLTA as Escrow, Void Deed, and Explore Legal Options Concerning Quiet Title (the "March 13 Motions"). The Court directed the Commissioner to respond to both the Extra Comments and the March 13 Motions. He did so on April 10, 2020, via his Response Regarding IOLTA Account (the "April 10 Response"). Philip replied to the April 10 Response on May 1, 2020, via a Motion to Review Warrant and Evaluate Quiet Title (the "May 1 Motion"; together with the March 13 Motions, "Philip's Motions").

Philip's filings are lengthy, and the threads of his arguments are sometimes difficult to follow. [Note 1] But Philip's Motions depend, in large part, on his proving that the Commissioner has mismanaged the Proceeds. The Court will address those allegations first. The Court will then address Philip's other challenges to the Interest Statement, followed by his attacks on the Commissioner's invoices.

The Commissioner's Alleged Mismanagement of the Proceeds

Philip accuses the Commissioner of mismanaging the Proceeds in three ways. His first and central accusation is that the Commissioner improperly "commingled" the Proceeds with funds of other clients of the Commissioner, who's a practicing attorney, in his client "Interest on Lawyers' Trust Account" (or "IOLTA") account. Philip contends that the Commissioner should have placed the Proceeds in a separate account. Philip argues that had the Commissioner created a separate account, the Proceeds would have earned greater interest: funds in the IOLTA account accrued interest at a rate of only 0.25% annually. Philip's second accusation is that the Commissioner twice failed to use numbered checks when making withdrawals from his IOLTA account. Philip's third accusation is that the Commissioner illegally withdrew $120 of the Proceeds to pay various fees. The Court discusses each accusation below.

Commissioner's Deposit of Proceeds into IOLTA Account. The statutes governing partition actions, collected in chapter 241 of the General Laws, provide almost no directions as to what a partition commissioner must do with the proceeds of a sale of partitioned property. Chapter 241 doesn't address Philip's specific contention, that concerning a commissioner's choice of holding accounts while the commissioner retains the proceeds of a sale. This Court's only instructions regarding the Proceeds appear in paragraph 7 ("Paragraph 7") of the Warrant to Commissioner Paul F. McDonough, Jr., Esq. to Sell by Private Sale (June 5, 2019). Paragraph 7 states simply: "After making payment of all just and proper expenses and charges of the sale by partition, you [the Commissioner] shall hold the proceeds of the sale in an interest-bearing escrow account without any distribution of the same, pending further court order."

It's undisputed that the Commissioner obeyed Paragraph 7: he placed the Proceeds in an interest-bearing escrow account, his client IOLTA account. In the absence of a court order, Rule 1.15(e)(6) of the Massachusetts Rules of Professional Conduct, S.J.C. Rule 3:07, governs a practicing attorney's obligations regarding his or her choice of escrow accounts. Rule 1.15(e)(6) states:

Each lawyer who has a law office in this Commonwealth and who holds trust funds [defined under Rule 1.15(a)(1) as including "property of clients or third persons that is in a lawyer's possession in connection with a representation," including as an "escrow agent"] shall deposit such funds, as appropriate, in one of two types of interest bearing accounts: either (i) a pooled account ("IOLTA account") for all trust funds which in the judgment of the lawyer are nominal in amount, or are to be held for a short period of time, or (ii) for all other trust funds, an individual account with the interest payable as directed by the client or third person on whose behalf the trust property is held. . . .

The Supreme Judicial Court's IOLTA Committee has published Guidelines governing lawyer trust accounts. The Guidelines include advice on how an attorney should select trust accounts pursuant to Rule 1.15(e)(6). IOLTA Guideline A(2)(b) provides:

All client funds which in the judgment of the lawyer are nominal in amount, or are to be held for a short period of time, shall be deposited in an IOLTA account. In determining whether to deposit funds into an IOLTA account or into an individual client account, a lawyer shall consider the amount of interest likely to be earned during the period the funds are expected to be deposited, as well as the estimated cost of establishing and administering a separate client fund account, including reasonable imputed overhead costs, and the estimated cost of preparing any tax or other reports required for interest accruing to a client's benefit.

In his April 10 Response, the Commissioner states he deposited the Proceeds into his client IOLTA account because he expected that he would be holding the Proceeds only for a short period. [Note 2] That expectation was reasonable as of June 17, 2019, the date the Commissioner received the first of three payments that comprise the Proceeds. In fact, within weeks of the deposit (July 2, 2019, to be precise), petitioners William and Linda moved for disbursement of most of the Proceeds. [Note 3]

What the Commissioner reasonably didn't anticipate as of June 2019 was that the parties would litigate various disbursement issues for more than six months thereafter. An e-mail that the Commissioner sent to the parties on June 14, 2019 alerted them, however, that (a) he would be holding the Proceeds in his client IOLTA account, and (b) any other arrangements would require court approval. Twice after June 14, 2019 he reminded the parties that he was holding the Proceeds in his client IOLTA account. See Commissioner's Return of Warrant and Proposed Schedule of Disbursements, 1 (June 24, 2019) ("[I]n accordance with the terms of the Court's Warrant, I have deposited the proceeds in my client's funds account."); Audio Recording, Hearing of July 25, 2019, approx. 11:41:08 AM (Commissioner states that the final installment of Proceeds "is in my client's funds account").

The parties also knew (or should have known) as of July 26, 2019 that any funds kept in the Commissioner's client IOLTA account would accrue lower interest. A late July 2019 filing from William and Linda states that clearly:

Philip's attempt to obstruct the distribution of sale proceeds is depriving Petitioners not only of productive use of the funds, but considerable interest the funds would earn were they deposited in an account of their choosing. Six weeks have passed since the closing date, and the [money] sitting in Commissioner McDonough's client funds account . . . has earned only $207.94 to date, as compared to the approximately $5,500 the funds would have earned in a 2 percent interest-bearing account.

Petitioners' Additional Comments Regarding Respondent's Objections to Proposed Disbursement of Proceeds of Sale, 5 (July 26, 2019). Despite their awareness of the interest rate, none of the parties asked for transfer of the Proceeds to a separate interest-bearing account until Philip did so on September 12, 2019. Even then, he asked for that relief obliquely: he buried the request in a single sentence on page 11 of a filing whose title, "Respondent's Comments on Commissioner's Invoice and Final Accounting," gives no indication that Philip was moving for anything.

In any event, the day after Philip first asked for transfer of the Proceeds out of the Commissioner's client IOLTA, the Court issued the Judgment. The Judgment anticipated that, absent an appeal, the Commissioner would disburse the Proceeds promptly after October 22, 2019. See Judgment at 3. As the Court hadn't granted Philip's September 12, 2019 "motion" to open for 39 days a separate account for the Proceeds, the Commissioner reasonably could have concluded after reading the Judgment that he should continue to retain the Proceeds, for those 39 days, in his client IOLTA account.

As the Judgment's October 22, 2019 distribution date approached, controversy erupted over whether Philip had timely appealed the Judgment (the Court eventually concluded he didn't) and whether the Court should extend the deadline for his appeal (the Court eventually concluded it couldn't under the circumstances). The Commissioner reasonably did not foresee those disputes at the time of issuance of the Judgment. Moreover, at no time between issuance of the Judgment and November 13, 2019, did Philip renew his motion to transfer the Proceeds out of the Commissioner's client IOLTA account. On the latter date, the Court expressly directed the Commissioner to retain the Proceeds until further order of the Court.

It wasn't until December 3, 2019 that Philip asked post-Judgment for transfer of the Proceeds to an interest-bearing court account. See Respondent's Motions to Void Orders and Judgment, Request Equitable Relief, and Transfer Escrow for Global Truce (Dec. 3, 2019). Anticipating that the Court would be making partial distributions of the Proceeds, but retaining the rest as security pending Philip's appeal, the Court ordered the Commissioner on December 4, 2019 to arrange with the Recorder of the Court for transfer of the Proceeds. The Commissioner complied with that order.

Based on the facts reviewed above, the Court holds that the Commissioner did not violate Rule 1.15(e)(6) by depositing and retaining the Proceeds in his client IOLTA account. (Because the Commissioner permissibly deposited the Proceeds into his client IOLTA account, the Court will not obligate the Commissioner to disclose more information about a single $28,517.32 deposit into, and a $27,357.32 withdrawal from, that same account. The Commissioner represents that the two transactions were unrelated to his duties as Commissioner, and neither transaction added to or subtracted from the Proceeds.)

Commissioner's Alleged Use of Unnumbered Checks. Rule 1.15(e)(4) of the Massachusetts Rules of Professional Conduct, S.J.C. Rule 3:07, states: "No withdrawal from [an IOLTA] account shall be made by a check which is not prenumbered. No withdrawal shall be made in cash or by automatic teller machine or any similar method. No withdrawal shall be made by a check payable to 'cash' or 'bearer' or by any other method which does not identify the recipient of the funds." Comment [8] to Rule 1.15 states that the purpose of Rule 1.15(e)(4) is to ensure "that all withdrawals and disbursements from trust account[s are] made in a manner which permits the recipient or payee of the withdrawal to be identified."

Philip contends that the Commissioner made two withdrawals from his IOLTA account between June 17, 2020 (the date the Commissioner first received some of the Proceeds) and January 2020 (the date the Commissioner deposited with the Recorder the bulk of the Proceeds) that violated Rule 1.15(e)(4). Philip first claims that the Commissioner paid himself $19,320, an amount the Court authorized by order dated August 6, 2019, using an unnumbered check. The Commissioner has submitted a statement dated August 30, 2019 from the bank that administers his client IOLTA account, The Cooperative Bank. That statement shows a $19,320 payment from the account by "check," number 101, on August 12, 2019. The Court thus rejects Philip's contention that the Commissioner's $19,320 fee payment violated Rule 1.15(e)(4).

The second allegedly non-compliant withdrawal is a $129,000 payment to the siblings' father, Wing Cheow. The Court authorized that payment on July 26, 2019, with the assent of the parties (including Philip). The Commissioner's July 31, 2019 statement from The Cooperative Bank shows a $129,000 "withdrawal" on July 29, 2019. The July 2019 statement doesn't indicate, however, the manner of withdrawal. Other bank statements submitted by the Commissioner suggest that The Cooperative Bank distinguishes "checks" from "electronic checks," and both of those are different from "withdrawals." It thus isn't clear whether the Commissioner's payment to Wing Cheow complied with Rule 1.15(e)(4). The Court nevertheless is mindful of the rule's purpose: to allow tracing of withdrawals. As there's no dispute that the Commissioner withdrew $129,000 to pay Wing Cheow, and there's no dispute that Wing Cheow received that $129,000, the Court is satisfied that the Commissioner's putative violation of Rule 1.15(e)(4) in connection with the $129,000 payment did not result in mismanagement of the Proceeds.

Commissioner's Payment of Fees. Philip contends that the Commissioner improperly paid three fees out of the Proceeds. Philip first submits that the Commissioner wrongly paid a $100 fee to the City of Boston to obtain a municipal lien certificate. Footnote 3 of this Order reviews the facts surrounding that $100 fee. It turns out that Century 21 Shawmut Properties (and not the Commissioner) paid the fee; none of the money came from the Commissioner's client IOLTA account. (Even if the Commissioner had used client IOLTA funds to pay the fee, he had authorization to do so under the Court-approved purchase and sale agreement. Under that agreement, it was the Commissioner's responsibility to obtain the certificate, and the City of Boston doesn't issue them for free.) The Court thus rejects Philip's challenge to the certificate fee.

Philip has a stronger, but ultimately an unpersuasive argument, concerning two $10 fees charged by The Cooperative Bank. Here's the background concerning those fees: the closing of the sale was on Friday, June 14, 2019. The Commissioner received the Proceeds in three tranches. He received the first via a wire transfer from the buyer (for $2,166,441.75) on Monday, June 17, 2019. The Commissioner received the next payment via a second wire transfer (containing only $21,925) on Tuesday, June 18, 2019, after the buyer's attorney had reconciled an issue regarding the property's parking income. The last payment was by check from Century 21 in July 2019. See note 3 above.

In connection with each wire transfer, The Cooperative Bank charged to the Commissioner's client IOLTA account a $10 "Withdrawal Incoming Wire Fee," for a total of $20 for the two wires. Philip contends that these charges violated the Massachusetts IOLTA Committee's Operations Handbook for Financial Institutions (2018) (the "Operations Handbook," available as of the date of this Order at https://www.maiolta.org/financial-institutions). Section III.E of the Operations Handbook, governing service charges, provides (italics in original; bold added):

The financial institution either waives all administrative fees and service charges on IOLTA accounts or imposes reasonable fees and charges as follows:

(1) IOLTA fees: The only fees that can be deducted from IOLTA interest are administrative fees for the reasonable costs of complying with the reporting requirements of the Guidelines.

(2) Normal Service Charges: The financial institution does NOT assess against the interest earned on IOLTA account fees and charges which are normally imposed on other transaction accounts. Such fees and charges include but are not limited to: service or maintenance fees, deposit and withdrawal fees, check printing charges, wire transfer fees and insufficient funds, uncollected funds, or return deposit charges. Such fees and charges are the responsibility of the lawyer or law firm maintaining the account. To meet this responsibility, the attorney may deposit non-client funds into their IOLTA account, from which the charges may be paid. Financial institutions should promptly notify attorneys of any withdrawal for fees from an IOLTA account, to avoid affecting client funds.

The flaw in Philip's argument is that the Operations Handbook doesn't prohibit the charging of wire-transfer fees: it regulates only the manner in which such fees should be paid, so as "to avoid affecting client funds." Philip hasn't proven that the Commissioner paid the two $10 wire-transfer fees in an improper manner. The Commissioner's June 2019 bank statement shows only that two $10 service fees were charged to the Commissioner's IOLTA account. The statement doesn't show a deduction from the "interest earned on [the] IOLTA account." The statement also doesn't show a deduction of those fees from the Proceeds: the Commissioner had $2,559.15 in his client IOLTA account before depositing any of the Proceeds. While it would have been better for the Commissioner to have alerted the Court and the parties to the two fees at the time of his post-sale accounting, see note 3 above, no one contends that the Bank's charges are unreasonable or that the Commissioner should not have paid them.

The Court thus rejects Philip's contention that the Commissioner's payment of the two Bank service charges constitutes mismanagement of the Proceeds. And having found no mismanagement of the Proceeds, the Court DENIES Philip's multiple requests that the Court void the June 14, 2019 conveyance of 190 Kelton Street and the settlement statement that memorializes the exchange of consideration.

Interest Issues

The Court now turns to Philip's contentions, raised in the Extra Comments, concerning the interest the Proceeds should have earned.

1. Philip argues that the Commissioner allowed the attorney for the buyer of 190 Kelton Street to delay transferring the Proceeds, and thus caused the parties to lose interest. The closing occurred on June 14, 2019, a Friday. As noted earlier, the Commissioner received a first wire transfer from the buyer (for $2,166,441.75) the following Monday, June 17, 2019, and a second wire transfer (containing $21,925) the following day, after the buyer's attorney had reconciled an issue regarding the property's income from a parking tenant. [Note 4] The Commissioner doesn't explain the weekend delay in receipt of the first wire transfer. The Court will thus DEDUCT from the Commissioner's final invoice the lost interest. That interest is $26.71 ($2,166,441.75 times 0.10% annual interest for two days, and 0.25% annual interest for one day, assuming a 365-day year, is $26.72).

2. Philip argues that the Commissioner underreported interest on the Proceeds for the period June 1, 2019 to June 28, 2019 ($186.37, versus $278.91). Philip is incorrect: the interest that the Commissioner's client IOLTA earned in June 2019 was $186.37. (For ease of calculation, the Commissioner conservatively assumed that all of the interest gained by his client IOLTA during June 2019 should be credited to the Soo Hoo parties, even though the Commissioner didn't receive any Proceeds until June 17, 2019.) The Commissioner's June 2019 bank statement also shows that the interest rate from June 5, 2019 to June 16, 2019 dropped to 0.10% annually, whereas immediately before and after that period, the rate was 0.25% annually.

3. Philip argues the Commissioner underestimated interest on the Proceeds for the period November 30, 2019 to December 31, 2019. Philip asserts the Commissioner's bank statement for that period shows $449.70 of interest; the Commissioner reported interest of $430.54. The Commissioner hasn't rebutted Philip's contention. The Court will thus DEDUCT from the Commissioner's two pending invoices the difference in interest that Philip has calculated, $19.16. And since the Commissioner based his calculation of interest for January 1-2, 2020 on his calculation for December 2019, the Court will also DEDUCT (as Philip has calculated) $1.80 for lost interest on those days. The Court will not deduct alleged "lost" interest for January 3-5, 2020, as Philip has provided no evidence that the Commissioner's client IOLTA account earned interest on the Proceeds on those days.

The Commissioner's Remaining Invoices [Note 5]

In both of the Commissioner's pending invoices, he charges $350 hourly for his services.

The Court previously held that the Commissioner's hourly rate is reasonable (see Order on Pending Motions, 2 (Aug. 5, 2019)), and Philip doesn't challenge that conclusion now. He does dispute, however, specific tasks presented in both invoices. The Court addresses them in the order in which Philip has presented them.

The Court DISALLOWS the Commissioner's charges on October 16, 2019 for reviewing "Respondent's Notice of Appeal (0.1 hours)." That work did not benefit the parties as a whole, and relate to a document that wasn't served on the Commissioner.

The Court ALLOCATES to Linda payment of part of the Commissioner's charges on November 14, 2019 ("t/c LSH"; the Court estimates 0.1 hours for that task), part of his charges on December 8, 2019 ("emails with LSH"; the Court estimates 0.2 hours for that task), part of his charges on December 10, 2019 ("t/c with LSH"; the Court estimates 0.1 hours for that task), part of his charges on December 23, 2019 ("review e-mails from Petitioners; email response to LSH"; the Court estimates 0.1 hours for those tasks), all of his charges on December 30, 2019 ("T/c LSH re status of Petitioners' Motion for Immediate Transfer of Funds"; 0.1 hours charged), part of his charges on January 2, 2020 ("t/c and email LSH re distribution"; the Court estimates 0.1 hours for that task), and part of his charges for February 3, 2020 ("t/c LSH"; the Court estimates 0.1 hours for that task).

Apart from the foregoing adjustments, the Court REJECTS Philip's remaining challenges to the Invoice and the Supplemental Invoice, for the following reasons:

* The Commissioner's charges on October 22, November 4, November 13, November 18, December 27, and December 31, 2019, and on January 14, January 17, January 28, January 29, January 31, February 2, February 3, and February 4, February 17, February 26, February 28, and March 2, 2020 are reasonable and appropriate. The work reported on those dates involved the Commissioner's review of, and response to, Court orders or pleadings served upon him at a time when he was obligated to monitor developments in this case.

* The Commissioner's time for November 5, 2019 (0.2 hours), December 4, 2019 (1.6 hours), December 10, 2019 (1.1 hours), December 23, 2019 (0.1 hours) and January 3, 2020 (1.1 hours), January 10, 2020 (0.4 hours), and January 13, 2020 (1.8 hours) is not excessive in relation to the work he performed.

* The Commissioner appropriately appeared at a December 4, 2019 hearing in this matter: the Commissioner had received a Court order and notice of the hearing, and that order didn't specify that he shouldn't attend.

* Philip's argument that the Commissioner's time on January 2, 2020 could have been avoided had the Commissioner initially deposited the Proceeds with the Court is unpersuasive, for the reasons set forth on pages 4-8 of this Order.

* The Court will not cap the Commissioner's fees at $1,505. In his Final Accounting, the Commissioner proposed holding a retainer of $1,250 in order to complete what he anticipated, at the time of the Final Accounting, to be largely ministerial tasks. The Judgment increased that retainer to $1,505. As recounted on pages 1-8 of this Order, the Commissioner has had to perform more than ministerial duties since the time of the Final Accounting, and he should be compensated for his time.

Accordingly, the Court APPROVES payment of the Invoice in the amount of $3,920, and payment of the Supplemental Invoice in the amount of $1,750, for a total gross amount of $5,670. The Court subtracts from that amount $47.68 for the "lost interest" described on pages 11-12 of this Order, for a net approved amount of $5,622.32. Of that amount, $280.00 is to be paid by Linda alone, for the reasons given on page 12 of this Order.

Who should pay the rest? Before January 31, 2020, the parties were on notice that they were collectively responsible for the Commissioner's fees and expenses, unless (a) a party initiated direct contact with the Commissioner (see, for example, Linda's telephone calls described above) or (b) the Commissioner performed services that benefited only a single party. On January 31, 2020, the Court entered an order advising Philip that if the Court were to "conclude that the [Interest] Statement is substantially accurate, the Court will charge Philip alone with the Commissioner's costs, including his fees, associated with complying with" other parts of the January 31 Order, which directed the Commissioner to serve on the Court and the parties copies of "all bank statements and any other documents the Commissioner used to prepare the Statement."

Following the January 31 Order, Philip didn't withdraw his objections to the Interest Statement. Instead, he vigorously pressed them. The Court now HOLDS that the Interest Statement is substantially accurate: to the $2,560.48 in interest reported by the Commissioner, Philip has identified errors that add only $47.68 to that amount. Relative to the amount of interest reported, and in the absolute sense of the word "trivial," Philip's efforts have gained the parties trivial additional interest, at a cost of at least $1,085 in Commissioner time. See Supplemental Invoice, entries for January 31, February 2, February 3 (deducting 0.1 hours allocated to Linda), February 4, February 17, February 26, February 28, and March 2, 2020.

The Court thus ALLOCATES entirely to Philip the Commissioner's costs associated with producing the documents described in the January 31 Order. The Court also allocates to Philip the full amount of the Commissioner's time on March 2, 2020, which included preparing the Supplemental Invoice, as it's unlikely that the Commissioner would have submitted the Supplemental Invoice had Philip not contested the Interest Statement or the Commissioner's use of his client IOLTA account. Those costs total $1,085.

After deducting the fees payable solely by Linda and Philip, the net amount of the Commissioner's pending invoices is $4,257.32. Dividing that amount by the three parties equals $1,419.11. Hence, (1) William is responsible for paying $1,419.11 of the Commissioner's pending invoices; (2) Linda is responsible for paying the same amount plus $280, for a total of $1,699.11; and (3) Philip is responsible for paying $1,419.11 plus $1,085, or $2,504.11.

The Court will not order the parties to write checks to the Commissioner. Instead, the Court will do two things. The Court will first allow the Commissioner to pay himself from what he's holding in his client IOLTA account. As of January 2, 2020, he was keeping $2,560.48 (representing interest he was attributing to the parties) plus his Court-approved $1,505 retainer, for a total of $4,065.48. (Because the Commissioner's client IOLTA account accumulates interest at a rate of only 0.25% annually, it's not worth the Commissioner or the Court's time to calculate the interest that may have accumulated since January 2, 2020. The Court HOLDS that the Commissioner is entitled to such interest on account of the unreasonable delays he has encountered in getting paid for his services.) The Court AUTHORIZES the Commissioner, no earlier than May 29, 2020, to pay himself $4,065.48 from his client IOLTA account. The Court further RELEASES the Commissioner, as of the date he pays himself from his client IOLTA account, from any claims the Court or the parties may have to any remaining balances in the Commissioner's client IOLTA account.

Second, the Court DIRECTS the Recorder to pay the Commissioner, on May 29, 2020, the balance of his two pending invoices, or $1,556.84. The Commissioner will thereafter be DISCHARGED from his duties in this case. The Court will adjust the parties' shares of the Proceeds being held by the Court to reflect how this Order has allocated the Commissioner's net approved fees. (Of course, should one or more of the parties appeal this Order and seek a stay, the Court may have to delay the effective date of this and the previous paragraph.)

In his May 1 Motion, Philip requested leave to take additional discovery from the Commissioner concerning the subjects addressed in this Order. The Commissioner has provided all but one of his pertinent bank statements, and they provide a sufficient record for this Court to review the Commissioner's activities. (In the case of the one statement the Commissioner didn't provide to the Court, that for the period November 30, 2019 through December 31, 2019, the Court has relied on Philip's description of what that statement shows, see page 12 above (numbered paragraph 3), and ruled in Philip's favor on the issue.) Philip hasn't explained why it's reasonably likely that discovery will bring any additional material evidence to light. The Court thus DENIES Philip's request for discovery.

The foregoing addresses those issues raised in Philip's Motions and the Extra Comments that Philip hadn't raised prior to the entry of the Judgment. To the extent that any of Philip's post-Judgment filings raise issues decided prior to entry of the Judgment, or seek reconsideration of those decisions, the Court DENIES those motions for lack of jurisdiction, as an attempted appeal of those orders is pending before the Appeals Court. To the extent that any of Philip's post-Judgment filings seek post-judgment relief beyond that expressly granted in this Order, the Court DENIES those motions.



[Note 1] Page 3 of the March 13 Motions also refers to arguments that Philip purportedly made "in [his] submission by e-mail on 3-5-20. . . ." The Court's Sessions Clerk has no record of receiving an e-mail from Philip on March 5, 2020. In any event, as the Court previously advised the parties, and under the Massachusetts Rules of Civil Procedure in effect as of March 5, 2020 (rules partially superseded by emergency orders relating to the COVID-19 pandemic that became effective only in mid-March 2020), submission of materials to the Court by e-mail is not an acceptable means of filing. As Philip did not follow his purported March 5, 2020 e-mail with a paper filing, the Court is not considering the arguments contained in that e-mail, whatever they were.

[Note 2] In the May 1 Motion, Philip argues that Paragraph 7's language directing the Commissioner to "hold the proceeds of the sale in an interest-bearing escrow account without any distribution of the same, pending further court order," presaged the parties' later prolonged litigation (discussed below) over distribution of the Proceeds. Philip is incorrect: Paragraph 7 is a standard clause that appears in all of this Court's warrants for sale by partition. Those warrants include Paragraph 7 regardless of how badly, or how well, the parties are getting along.

[Note 3] While we're on the subject of the Commissioner's receipt of the Proceeds, the Court notes the Commissioner's two corrections, set forth in the April 10 Response, to Exhibit 1 of his Final Accounting and Proposed Schedule of Disbursement (Aug. 23, 2019). He originally stated in Exhibit 1 that in June 2019, he received as part of the Proceeds an $8,000 check from Century 21 Shawmut Properties. The Commissioner actually received that check in July 2019, and its actual amount was $7,900. The Commissioner represents, and no party disputes, that Century 21 deducted $100 from the anticipated $8,000 check in order to pay a fee charged by the City of Boston for issuance of a municipal lien certificate. The Court-approved purchase and sale agreement for 190 Kelton Street obligated the Commissioner to provide the certificate to the buyer of 190 Kelton Street at the closing of the sale of the property. In the strongest terms possible, the Court REJECTS Philip's baseless accusations that the $7,900 check came from the Commissioner's own funds, or was related to an alleged effort by the Commissioner to rectify an alleged "embezzlement" of $8,000 of the Proceeds.

The second correction to Exhibit 1 is the Commissioner's omission of two $10 charges associated with two wire transfers. The Court discusses those charges on pages 9-11 of this Order. The Court needn't change any of its distribution orders as a result of the Commissioner's two corrections to Exhibit 1. That's because the Recorder is holding in an interest-bearing account a sizeable amount of the Proceeds pending the outcome of an appeal Philip has filed in this case. The Commissioner's corrections to Exhibit 1 will result only in each party someday receiving from the Court $40 less ($100 + $10 + $10 = $120, divided by three owners = $40) than he or she may have anticipated, plus whatever interest that $40 would have gained through the date of disbursement.

[Note 4] In an e-mail docketed on May 1, 2020, Philip contends that the Commissioner could have avoided the parking-income holdback (which would have resulted in a single wire transfer on June 17, 2019 in the amount of $2,188,366.75, an extra day's interest on $21,925, and no $10 Bank fee for the June 18, 2019 wire) had the Commissioner negotiated all of the parking tenant's issues in advance of the closing. E-mails that Philip provided to the Court on this subject show that the Commissioner properly considered the parking-income issue part of the buyer's negotiations with the parking tenant over whether the buyer would continue the tenant's lease. Philip also overlooks the Commissioner's hourly rate, $350. The parties would have lost more than a day's worth of interest on $21,925 (15ยข) plus $10 had the Commissioner spent even a tenth of an hour on the parking issue.

[Note 5] In his May 1 Motion, Philip returns to an earlier invoice, one which the Court approved on August 6, 2019, and accuses the Commissioner of misreporting work performed on June 13 and 14, 2019. The Court has reviewed the Commissioner's earlier time entries in light of Philip's new arguments, and holds that the Commissioner did not misrepresent the services he performed on June 13 and 14, 2019.