MISC 20-000078

OCTOBER 22, 2020




At the time that Orlando R. Lopez and Edwing A. Lopez filed their petition for partition on February 12, 2020, they each held 1/3 interest in common with defendant Amalfi S. Lopez in the property at 27 Pierce Street, Waltham (property). [Note 1] At the case management conference on June 3, 2020, the parties agreed and the court found that the property could not be advantageously divided. The Motion of Jose J. Ontiveros to Intervene in This Action as Respondent was filed on June 12, 2020, and heard and allowed on July 8, 2020. Jose Ontiveros (Ontiveros) was allowed to intervene as a defendant because at some point after the filing of the petition he took title with his wife Amalfi as tenants by the entirety in Amalfi's 1/3 interest.

At the same hearing, Ontiveros was ordered to file a counterclaim by July 22, 2020, in which, he was instructed, he was to lay out in detail his claim against Orlando and Edwing. He filed his Verified Counterclaim and Jury Demand (Counterclaim) on July 23, 2020. On July 30, 2020, Orlando and Edwing filed Petitioners' Motion to Strike Respondent, Jose J. Ontiveros' Verified Counterclaim and Jury Demand (Motion to Strike) and Petitioners' Motion to Dismiss Respondent, Jose J. Ontiveros' Verified Counterclaim and Jury Demand (Motion to Dismiss), with their supporting legal memorandum. Ontiveros filed his opposition on August 6, 2020. At the hearing on August 7, 2020, the Motion to Strike was denied in part, allowing the late filing of the counterclaim. After colloquy, Ontiveros made an oral motion to amend his counterclaim, which was taken under advisement. On August 10, 2020, Orlando's and Edwing's motion to file a sur-reply was allowed and their sur-reply filed. This Memorandum and Order follows.

In his Counterclaim, Ontiveros alleges that beginning in October 2003, he had an agreement with Orlando and Edwing under which Ontiveros would pay ¼ of the monthly mortgage payment on the property in exchange for living at the property and Orlando's and Edwing's promise to convey to him a ¼ interest in the property. He alleges that over the next 16 years he paid approximately $76,500 toward the mortgage, but Orlando and Edwing refused to put him on the title to the property. In the Motion to Strike and Motion to Dismiss, Orlando and Edwing argue that the Counterclaim lacks the factual detail requested by the court, and, in any event, is barred by the statute of frauds, statute of limitations, and principles of laches. In their sur-reply, they also show that Ontiveros could not have made an agreement with Edwing in 2003 because Edwing had no interest in the property at that time.

The court need not reach these issues. Accepting as true the allegations of the Counterclaim, as the court must on a motion to dismiss, Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008); Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), the Counterclaim does not state a claim for breach of an agreement. The reason is that Ontiveros has obtained what he alleges that he bargained for: an interest in the property. Upon the sale of the property, he will receive the value of his interest; if he and Amalfi buy out Orlando and Edwing, he will have the benefit of his interest.

The only claim Ontiveros potentially has is that the value of his interest is less than what he paid in mortgage payments. Of course, Ontiveros will have to prove that he made those payments and that they were made toward the mortgage. Moreover, such a claim may be offset by several factors, including whether the market value of the property increased or declined over the period of his payments and the fair rental value of his residence at the property before he took title. The court takes no view at this time of this potential claim and any potential defenses or offsets.

For the foregoing reasons, the Motion to Strike is DENIED, and the Motion to Dismiss is ALLOWED IN PART AND DENIED IN PART. The Counterclaim is DISMISSED WITHOUT PREJUDICE. Upon the sale of the property, Ontiveros will be given leave to file a claim for reimbursement for his alleged payments above the value of the interest he received, at which time he will have to show precisely his calculation of what he claims he is entitled to and present his evidence. A Zoom status conference is set down for October 30, 2020 at 11:45 am.



[Note 1] As these three parties share a last name, they will be referred to by their first names.