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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS.
Docket #: 95-5243

V&M MANAGEMENT, INC., AND ALPHONSE MOURAD
PLAINTIFFS
VS
MAR10 NICOSIA AND JUDITH MORIARTY, INDIVIDUALLY AND AS TRUSTEES OF THE L&N FIRST REALTY TRUST DEFENDANTS

PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S EMERGENCY MOTION FOR DISSOLUTION OF PRELIMINARY INJUNCTION OR IN THE ALTERNATIVE FOR EXPEDITED DISCOVERY AND TRIAL AND FOR POSTING BY PLAINTIFF OF A REQUIRED BOND

The plaintiff moves that plaintiff's emergency motion be [ismissed on the ground that this court has no jr.ri sdiction over 'tne subject matter set. forth in the motion, for the reasons set-forth in the affiaavi-cs and exhibits attached hereto marked "A". "E" , and "C".

Alpnonse Mourad and V&M Management, Inc. By Their Attorney: James P. Dillon, Jr.

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT CIVIL ACTION No. 95-05243-D

V&M MANAGEMENT, INC. and
ALPHONSE MOURAD
Plaintiffs
VS
MARIO NICOSIA, ET.AL.,
Defendants

SUPPLEMENTAL MEMORANDUM
IN OPPOSITION TO DEFENDANTS' MOTION TO
VACATE PRELIMINARY INJUNCTION

Defendants Mario Nicosia, et. al., have filed a motion in this court for an expedited order to set aside an outstanding preliminary injunction and to permit Defendants to proceed with a foreclosure sale presently enjoined by this
Court. This has been removed to federal court and this Court has no jurisdiction, power, or authority to proceed any further or to enter any such order.

A. THIS ACTION HAS BEEN REMOVED TO FEDERAL COURT.

In 1989, V&M Management filed a case against the City of Boston, the Boston Redevelopment Authority, and the Department of Revenue alleging certain matters concerning the rate of taxation and the amount of taxes being assessed against V&M Management (V&M Management v. City of Boston, Et,Al., 89-6500-D). In 1990, the Commonwealth filed a c. 93A claim against V&M Management, its officers and employees alleging violations of c. 93A (Commonwealth v. V&M Management, Et. Al. , 90-5433-D). Simultaneously, the BRA filed a counterclaim against V&M Management in 89-6500-D. Two years later, over V&M Management's continuing objection, these two cases were consolidated, and have been consolidated since that time.

The instant action was filed in September, 1995 in Middlesex Superior Court, and assigned Middlesex Court number 95-5267. Plaintiffs' motion for preliminary injunction to prohibit further publication of .a- notice of foreclosure and a foreclosure sale threatened by Defendants was heard by Judge White on September 15, 1995, at which time she enjoined the sale, and entered the following order:

This case is hereby TRANSFERRED to Suffolk County to be consolidated for all purposes with other existing related cases, i.e. Suffolk Superior Court C.A. #89...(Capitalization in original.)

The Defendants neither sought a reconsideration of the Court's order, nor did they take an appeal of the order in the time permitted. This order has become final. The instant matter was transfered to Suffolk Superior Court and
if assigned Suffolk Superior Court number 95-5243-D. The Department of Housing and Urban Development (HUD), a third party defendant in cause number 89-6500-D, filed a notice of removal to the federal district court pursuant to the provisions of 28 U.S.C. §1441. Under the terms of the statute, the removal became effective upon the filing of the notice with the Clerk of the District Court. Notice of the removal was simultaneously provided to the Clerk of the Suffolk Superior Court, and all parties were served.

Since all three cases were consolidated pursuant to Judge White's order, the instant case has been removed to federal court as well.

B. THIS COURT HAS NO JURISDICTION TO
PROCEED FURTHER.

Defendants Mario Nicosia, et, al., have now filed a motion in this Court for an order setting aside the preliminary injunction which prohibits them from proceeding with a foreclosure sale of Plaintiffs' property.

Any further action by this Court is prohibited by
the plain language of 28 U.S.C. §1446(d):

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State...court shall proceed no further unless and until the case is remanded.

In Sweeney v. Resolution Trust Corp., 16 F.3d 1 (1 Cir., 1994), the Sweeneys filed a claim in Superior Court against ComFed alleging various lender liability claims and violations of c. 93A. The lender liability claims went to trial, and a jury found in favor of ComFed on a counterclaim. The trial judge reserved decision on the 93A claims for determination by the court. After the jury verdict, but before judgment on the two reserved counts, the Resolution

Trust Corporation was appointed conservator of ComFed, and removed to federal court on January 11, 1991. The trial court then entered a judgment in favor of the Sweeneys on the 93A claim on January 30, 1991. The Sweeneys attempted to have the federal district court enter the Superior Court judgment on the 93A claims as a final order and judgment. In upholding the district court's refusal to do so, the Court of Appeals stated, at 4:

[T]he district court supportably found that this case had been removed to the federal court on January 11, 1991. "At that point, the jurisdiction of the state court 'absolutely ceased, and that of the [federal court] immediately attached,' " Hyde Park Partners L.P. v. Connolly, 839 F.2d 837, 841 (1 Cir., 1988) (quoting Steamship Co. v. Tugman, 106-CJ.S. (16 Otto) 188, 122, 27 L.Ed. 87 (1982)), and the state court was under an obligation to "proceed no further unless and until the case [wa]s remanded," 28 U.S.C. §1446(e); see also Iligman, 106 U.S. (16 Otto) at 122 (once case removed, state court has "duty . . .to proceed no further"). Consequently, the purported judgment of the state court was "void ab initio," Hyde Park Partners, 839 F.2d at 842, and the district court committed no error in refusing to enter judgment in accord with it.

See also Cougntin V. Nationwide Mutual
Insurance Co.,

776 F. Supp. 626, 628 (D. Mass., 1991) [The federal court considers the case in the status it was in when it was removed, once removal is affectuated, juriodiation in the state court ceases, and any further orders in the state court are a nullity]. Even if the removal is subsequently determined to be ineffective or improper, any state court order made in the interim is a nullity and without legal effect. Hyde Park Partners L.P. v. Connolly,. supra, at 842.

Therefore, this Court has no authority to proceed any further in this matter, and Defendants' relief, if any, must come from the federal court.

James Dillon.Jr.
One Billings Road
North Quincy, MA. 02171
(617) 472-6294 B.B.O.No.
547121 Attorney for Plaintiffs
One copy of the foregoing mailed

EXHIBIT "C"

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

V&M MANAGEMENT, INC.,
Plaintiff,
v.
CITY OF BOSTON, BOSTON REDEVELOPMENT AUTHORITY, COMMONWEALTH OF MASSACHUSETTS, COMMISSIONER.OF THE DEPARTMENT
OF REVENUE,

Defendants.

V&M MANAGEMENT, INC.,

Third Party Plaintiff,
v.
HENRY CISNEROS, SECRETARY OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, CASIMIR KOLASKI,THE UNITED STATES, and DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Third Party Defendants

THIRD PARTY DEFENDANTS' NOTICE OF REMOVAL

The third party defendants, by their attorney Donald K. Stern, United States Attorney for the District of Massachusetts, state as follows:

1. The third party defendants have been made parties to a civil action that is now pending in the State of Massachusetts, Superior Court for Suffolk County, encaptioned V&M Management, Inc. v. City of Boston, et al. . Civil Action No. 89-6500-D.

2. The claim against the third party defendants relates to the amount of federal subsidy paid to third party plaintiff under 42 U.S.C. § 1437f.

3. This action is removable to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. Section 1441.

4. Copies of all pleadings received by the third party defendants are attached hereto.

5. This removal is within thirty days of the third parties' first notice of the third party complaint and allowance of the motion seeking leave to file the third party complaint against these defendants.

WHEREFORE, the third party defendants request that this action be removed to this Court as a properly removed action, and entered upon the docket of this Court, and upon filing a copy of this notice with the Clerk of the Superior Court for.Suffolk County, Commonwealth of Massachusetts, that said court shall
proceed no further unless...

Dated: October 17, 1995

DONALD K. STERN
United States Attorney

By:
Lori J. Holik (BBO #238030)
Assistant U.S. Attorney
1003 J.W. McCormack POCH
Boston, MA 02109 (617)223-9441

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT

TRIAL COURT
CIVIL NUMBER 89-6500-E

V & M MANAGIMENT, INC,
Plaintiff/ counter-defendant
VS

CITY OF BOSTON; BOSTON
REDEVELOPMENT AUTHORITY;
COMMONWEALTH OF MASSACHUSETTS;
COMMISSIONER OF THE DEPARTMENT
Defendants/ counter-claimants

MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT

V&M MANAGEMENT, INC.,
Third Party Plaintiff
vs
HENRY CISNERCS, SECRETARY,DEPARTMENT OF HOUSING AND URBAN CAPACITY; CASIMIR KOLASKI, DIRECTOR, BOSTON OFFICE, DEPARTMENT OF HOUSING AND URBAN CAPACITY; THE UNITED STATES; THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Third Party Defendants

V&M Management moves this Court for an order, pursuant to Rule 14 (o). Rules of Civil Procedure, for leave to file a "Urban Development (HUD) on the grounds thai HUD is presently
Certificate of Service

One copy of the foregoing Supplemental Certificate of Service mailed this l ~s day of

August, 1995 to:

Saul Schapirc
Rosenberg, Rosenfeld
and Schapiro
Suite 400
44 School Street
Boston, Mass. 02108

Constantine Papademetriou Special Assistant Corporation Counsel Assessing Department City Hall, Room 301 Boston, Mass. 02201

Kerry Lyn Eaaie Department of Revenue Litigation Bureau 100 Cambridge Street Boston, Mass. 02204

Marianne Meacham
Assistant Attorney
General
Consumer Protection
One Ashburton Place
Boston, Mass. 02108

By: Victor Aronow

COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT DEPARTMENT
SUPERIOR COURT
CIVIL ACTION NO. 95-5243

TRANSFERRED FROM MIDDLESEX V & M MANAGEMENT, INC., and SUPERIOR COURT
CIVILA ACTION NO: 95-5267

V&M MANAGEMENT, INC., and
ALPHONSE MOURAD, Plaintiffs
vs.
MARIO NICOSIA and JUDITH MORIARTY, INDIVIDUALLY, and as TRUSTEES OF THE L & N
FIRST MORTGAGE REALTY TRUST, Defendants

AFFIDAVIT OF JOHN F. WHITE, ESQ.

1. I, John F. White, Esquire, am an attorney in good standing licensed to practice law in the Commonwealth of Massachusetts.

2. I, along with other counsel of record, have been retained to represent the Plaintiffs in the above-entitled matter.

3. On September 13, 1991, I and attorney James P. Dillon, on behalf of the Plaintiffs, attended a hearing before Judge Catherine White in the Middlesex Superior Court.

4. Counsel for the Defendants, Albert Farrah, Esq. and Roger Lehrberg, Esq., appeared at the hearing on behalf of the Defendants.

5. At the hearing, the Plaintiffs sought an order for the issuance of preliminary injunction restraining the Defendants from holding a foreclosure sale against property owned by the Plaintiff, V & M Management, Inc.

6. The property at issue is a 276 unit federally subsidized housing complex, which provides affordable section 8 housing for minority low income families, consisting currently of approximately 1,500 people.

7. The Defendants were attempting to foreclose on a mortgage securing a note issued by the Plaintiffs on or about March 29, 1985, in the original principal amount of $50,000.00.

8. The Defendants had stated, through their counsel, that they would cancel the foreclosure sale if the said $50,000.00 loan was paid off prior to auction, and the approximate demanded payoff was $320,315.00, plus fees and costs.

9. After a full hearing, Judge White issued an order on September 15, 1995, which, in part, enjoined the Defendants^ from holding the foreclosure sale and ordered the case to be transferred to Suffolk Superior Court and ".. .consolidated for all purposes with other existing related cases, i.e. Suffolk Superior Court C.A. #89-6500E and Suffolk Superior Court C.A. #90-5433D".

10. At no time after the issuance of Judge Whitens order for consolidation has counsel for the Defendants brought a motion or other court proceeding to object to order requiring the consolidation of the cases.

This affidavit is based upon personal knowledge, information and belief, and as to information and belief, I believe the same to be true.

Signed under the pains and penalties of perjury this ____ day of December, 1995.

JOHN F. WHITE, E
B.B.O. # 558367
Law Offices of Lipman & White
One Billings Road
Quincy, MA 02171

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