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  1. #1
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    Nov 2011
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    Default Suing to Establish Contractual and Equitable Property Rights

    My question involves an eviction in the state of: MA
    We're getting evicted and we're fighting it in court as Pro Se litigants. It's not a simple case, it has to do more with a contract dispute than a simple eviction. The Plaintiff/Landlord is my husband's mother. He and I are the Defendants/Tenants.

    We arrived here over four years ago to help out my husband's mother, after his father died. His father had Alzheimer's and the numerous properties the parents owned together were in severe disrepair. We had to place our business on hold to clean up and maintain the properties and to help the mother get much needed financing to preserve the properties and renovate a home on one of the properties thereby giving her the option to move there or rent it out for income.

    Over two years ago, my husband and his mother signed a contract granting him permanent transfer of property rights to all the properties she and his Dad owned, specifically the property from which she's attempting to evict us. We entered into the contract for one reason: we financially couldn't do the services for free. We would have loved to have done the services for free or to have paid to have them done. She knew very well of our financial situation. This is why she agreed to sign the contract in the first place.

    It was agreed that she would get a reverse mortgage on the property in which she was living and to use part of those funds to renovate another home on another property, which she did and which we helped her get (we did all the work, she just signed the papers). Then, the rest of the plan was, when that property was in good shape, to take out a 150K mortgage on it to finish it and to have a cushion to make mortgage payments, if needed, as well as renting out the now finished, renovated home.

    Unfortunately, she kept dragging her feet at taking out the 150K mortgage. This placed her in a financially vulnerable state so that when it was found that renovations on the other property were going to be more than anticipated, she did not have the funds to complete the home. This caused a legal/financial mess when other members of the family decided to enter the picture and manipulate the mother to actions that are, as we see it, not in her best interest. That is another case and the entire proceeding can be seen at plaintiff.jetiii.com.

    We've already had a bench trial and the judge appears to be on our side. He gave us two weeks to produce case law to support our case. He pointed us in the right direction by suggesting we look up Equity Jurisdiction and Resulting Trust which we are doing.

    If you have any ideas or knowledge of cases that we can present at the next scheduled trial that has been continued to Thursday, Feb. 16, 2012, we would greatly appreciate it.

  2. #2
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    Default Re: Suing to Establish Contractual and Equitable Property Rights

    Quote Quoting bgp5740
    View Post
    We're getting evicted and we're fighting it in court as Pro Se litigants. It's not a simple case, it has to do more with a contract dispute than a simple eviction. The Plaintiff/Landlord is my husband's mother. He and I are the Defendants/Tenants.
    You may not be able to do what you want in the context of an eviction action. Have you even filed a counterclaim?
    Quote Quoting bgp5740
    We arrived here over four years ago to help out my husband's mother, after his father died.
    You arrived "here" from where? With the only understanding being that you were going to help out your mother-in-law? How many properties are we talking about, and what is their nature?
    Quote Quoting bgp5740
    We had to place our business on hold to clean up and maintain the properties and to help the mother get much needed financing to preserve the properties and renovate a home on one of the properties thereby giving her the option to move there or rent it out for income.
    Exactly what does "We had to place our business on hold" mean? What was your business? Where was your business? Why couldn't you continue your business, perhaps at a reduced level? Have you since resumed your business? If not, why not?
    Quote Quoting bgp5740
    Over two years ago, my husband and his mother signed a contract granting him permanent transfer of property rights to all the properties she and his Dad owned, specifically the property from which she's attempting to evict us.
    Who wrote this contract? Exactly what do you mean by "permanent transfer of property rights"? Was anything actually conveyed - any transfers of title - or are we simply talking about a contract with no further action taken?
    Quote Quoting bgp5740
    We entered into the contract for one reason: we financially couldn't do the services for free. We would have loved to have done the services for free or to have paid to have them done. She knew very well of our financial situation. This is why she agreed to sign the contract in the first place.
    You couldn't do the work for free, so you said, "Give us ownership of all of your property"? There was no middle ground? Grandma is now claiming this was financial exploitation?
    Quote Quoting bgp5740
    It was agreed that she would get a reverse mortgage on the property in which she was living and to use part of those funds to renovate another home on another property, which she did and which we helped her get (we did all the work, she just signed the papers).
    You just told us that Grandma executed a "permanent transfer of property rights" giving you this property. How could she get a reverse mortgage on property after she had "permanent[ly] transfer[ed] property rights" to you, and why did you urge her to do that? Obviously the bank issuing the mortgage wasn't aware of any "permanent transfer of property rights".
    Quote Quoting bgp5740
    Unfortunately, she kept dragging her feet at taking out the 150K mortgage. This placed her in a financially vulnerable state so that when it was found that renovations on the other property were going to be more than anticipated, she did not have the funds to complete the home.
    She was financially vulnerable because she didn't borrow $150,000 on top of the reverse mortgage, after having "permanent[ly] transfer[ed] property rights" to you? You had been in residence for four years, working on this home for four years, and you didn't figure out at any point during that time that this property required massive repairs?
    Quote Quoting bgp5740
    This caused a legal/financial mess when other members of the family decided to enter the picture and manipulate the mother to actions that are, as we see it, not in her best interest.
    I suspect that means that the other family members believe you were taking advantage of Grandma and bleeding her estate dry, and tried to stop you, resulting in your suing them in the case you linked.
    Quote Quoting bgp5740
    That is another case and the entire proceeding can be seen at plaintiff.jetiii.com.
    The part about not identifying yourself in your post... lost on you? You do realize that the threads you've posted here and in several other forums are likely to be located by opposing counsel and used in court proceedings, don't you? Too late now.

    The contract we're talking about is "Exhibit A", which you claim contractually obligates Grandma to leave your husband her property when she dies, and which you apparently believe compels her to disinherit her other daughter? Please point to the provision within that document that you believe gives you any present right to the real estate. I see, digging in a bit, that you lost the case - the judge in fact held that to the extent that there is a contract it would be enforceable only after Grandma's death. It looks like the court also found that the contract is not enforceable. I guess that's why you're now talking about equitable actions as opposed to contract actions?
    Quote Quoting bgp5740
    We've already had a bench trial and the judge appears to be on our side. He gave us two weeks to produce case law to support our case. He pointed us in the right direction by suggesting we look up Equity Jurisdiction and Resulting Trust which we are doing.
    Alrighty, then....

    You can search for case law for free on sites like lexisone and Google Scholar. You should look in the county law library, and realistically speaking should spend some time in a law school library (you should be able to get a day pass) looking at practitioner's materials and treatises discussing real estate law in your state. This is not the simple issue you seem to believe it is. Realistically speaking, you should retain a lawyer to assist, advise and represent you.

    As your husband claims to have issued loans over the years, it seems that it would behoove him to start building up a case that the loans exist and are enforceable, and the amounts he intends to claim against his mother and/or her estate. (But if he's claiming that every cent he spent is a loan, his cause of action would appear to be an action at law collect his loans, not an action in equity arguing that there's a resulting trust.) The case is complex and has many twists and turns, so realistically speaking your husband should be talking to a lawyer about the case to get a full evaluation of what rights he might be able to establish and what causes of action might remain after his loss in his lawsuit against the panoply of defendants you and he sued.

    Quote Quoting Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235 (2007)
    A resulting trust may be imposed to enforce a conditional gift. It typically occurs where "a transfer of property is made to one person and the purchase price is paid by another; in such a case a trust results in favor of the person who furnished the consideration." Meskell v. Meskell, 355 Mass. 148, 150 (1969). Unlike a constructive trust, a resulting trust pivots on the key element of intention. The party who furnishes consideration must not intend to do so as "a gift or advancement" to the one who takes legal title to the property. See Fortin v. Roman Catholic Bishop of Worcester, supra at 789; Lewis v. Mills, 32 Mass. App. Ct. 660, 663 (1992). See also 5 A.W. Scott & W.F. Fratcher, Trusts § 462.1 (4th ed. 1989). Moreover, a "resulting trust must arise, if at all, at the time of the execution of the deed." Fortin v. Roman Catholic Bishop of Worcester, supra, quoting Dwyer v. Dwyer, 275 Mass. 490, 494 (1931).

  3. #3
    Join Date
    Nov 2011
    Location
    MA
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    Default Re: Suing to Establish Contractual and Equitable Property Rights

    Good afternoon Mr. Knowitall,

    Thank you for your reply. This is jetiii, the husband of bgb5740. bgb5740 has been handling the blogs in what you correctly perceived as a very complex case. The eviction was a retaliatory act when we filed a lawsuit which included the landlord in Mass Superior Court that is now under Appeal.

    Footnote: The gist of the Appeal is on the Judges wrongful, we believe, decision about it being a time of performance issue where because Quicken Willmaker entitled a separate contract as an addendum to a will, the time for performance had not yet arrived (Johnson v. Star, Count I). see: http://plaintiff.jetiii.com to see all documents filed in the case.

    Please excuse my placing of the footnote in the middle of the text. As the eviction filing (Summary Process) was two days after we filed the lawsuit, it was clearly retaliatory and I did make it one of the counts in our counter-claim. The Massachusetts website at http://www.masslegalhelp.org/importa...-counterclaims states that this is illegal to evict a tenant in this way but does not state a case or specific law. Any help would be appreciated. Additionally, they state that as the landlord owes us more money than we her, that she cannot evict us, but fails to site cases or statute. The Judge by his own argument, suspended our trial and asked us to see if we could find mass of federal case law to be what he perceived to be a resulting trust and/or equity jurisdiction which was the question my wife was asking. I believe, as we had no lease, that I need to additionally find 1) how to establish tenancy without a lease, 2) in additions to the two written contracts that the money is owed , 3) that Johnson v Starr count II applies as the court upheld that while the property didn't have to be transferred and could not be argued until the time of performance had arrived (landlord dies), monies owed to the plaintiff were due and payable for services rendered. You can view the pleadings and exhibits at http://eviction.jetiii.com/

    You have been very helpful and it is and was very much appreciated. Any further help and your opinion will also be appreciated.

    Thank you, jetiii

  4. #4
    Join Date
    Nov 2011
    Location
    MA
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    Default Re: Suing to Establish Contractual and Equitable Property Rights

    Hello again Mr. Knowitall,

    I will try to answer the remaining parts of your post and thank you for the cases and the link to lexisONE and Google Scholar.

    History
    To start with, I was in business with my father for years and we were best friends. It was normal to loan monies back and forth. Never in 30 years did my father and myself ever need to put anything in writing. I am a Computer Scientist (last non-self employed job was as Senior Computer Scientist for Los Alamos Think Tank responsible for the Parallel Processing OS and languages for the then worlds largest super computer) and we are in the Software Industry. The first part of this is about when my father had a life altering accident (3 1/2 months in hospitable, 2 1/2 in intensive care) after a very bad automobile dealership business venture with a partner who disappeared after running the dealership into the ground and running up hundreds of thousands in debt which included 14 months arrears with mortgages, and who wrote tens of thousands in bad checks. Dad was a fantastic mechanic and was repaying the debt slowly when he had his accident. I took care of the debt, brought up to date the mortgages and gave my Dad a considerable salary for over a decade. The property was always promised to me and in his Will. Dad died as a result of Alzheimer's just before I had Heart Failure. I was living in and working in Mexico and opened a bank account with $150,000 with Dad. When I came home it was mostly spent as well as moved to another bank. Also, the properties owned by my parents were very rundown and one even collapsed. The first contract came when my Mother wanted to repay me for the serious money that I lent her and my father through the years. This was the subject of the Superior Court Action now on appeal. Of note, I insisted on this when she told me that her addopted daughter had taken her to an attorney to change Dads will which I would have challenged as it had not been probated. The action in this post came as a result of the home that collapsed, it was my fathers family home of generations. While I would have loved to have been able to just fix the home or pay someone to have done it, I was not financially able to. The second contract came as without money available, I had to do the construction myself with my wife. We also sold our home in Mexico for very short money in large part to purchase the tools and materials to repair the home before it completely collapsed. This also meant that we had to stop the development of our current product see http://www.worldwebwindows.com. This home was all important to my father and we did manage to save it.

    The bad news is that it was never anticipated that this would become a legal action as it was with my mother. There was never a question that the properties were to go to me. I was with my father and our attorney when he wrote the original will. What happened here is that my mother agreed to get a $150,000 mortgage, without that agreement I would never have done what I did as it was way too risky financially. What was sure to happen did happen and the real story is that I asked my estranged son to repay $11,000 I lent to him directly to my mother so that she could make the mortgage payments. My son is a multimillionaire see http://www.debtmerica.com and is willing to pay anything to hurt his father. He has to have put out $150K + so far in legal fees. The clearest way to show my intentions is to read the contract “exhibit A” with my mother. In the contract I gave her the right to sell off any of the properties if it concerned her happiness or well beaning, and I encouraged her to do so. In simple terms, I said spend whatever makes you happy Mom and I will take what is left over to repay me. I also agreed to change the original Will that left everything to me, to leave two waterfront lots to her adopted daughter.

    On the reason I didn't register a deed, simple, we were in the middle of financing the properties. If I had done so, we would not have obtained the financing. I was wiped out when I had the Heart Failure as was my credit (I had no insurance)

    There is more to the story and in the Complaint filed in superior Court and the Summary Judgment I filed concerning corruption. Http://plaintiff.jetiii.com.

    Now you have the whole story. I have found a few excerpts on the transfer of property to family members not requiring a deed. Do you have any information or cases on this? Any ideas?

    Again, thank you for your time and effort.

    jetiii

  5. #5
    Join Date
    Nov 2011
    Location
    MA
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    Default Re: Suing to Establish Contractual and Equitable Property Rights

    We would like to thank everyone for their help and feedback.
    We have incorporated some of your suggestions into our Appeal Brief.
    Our Brief can be found here: http://plaintiff.jetiii.com/Document...ef/Default.htm

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