COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, SS. LAND COURT DEPARTMENT

CA. NO.: 18 MISC 000327

_________________________________________
)
MARK A. LARACE )
TAMMY L. LARACE )
)
Plaintiffs )
vs. )
)
WELLS FARGO BANK, N.A., AS TRUSTEE )
FOR ABFC 2005-0PTI TRUST, ABFC ASSET )
BACKED CERTIFICATES, SERIES 2005-OPTI )
AND THE CERTIFICATEHOLDERS THEREOF, )
OCWEN LOAN SERVICING, LLC, F/K/A )
HOMEWARD REDIENTIAL, F/K/A AHMSI, )
FIKIA OPTION ONE MORTGAGE CORP., )
BLACK KNIGHT FINANCIAL SERVICES, INC. )
F/K/A LENDER PROCESSING SERVICES, F/K/A )
FIDELITY NATIONAL FORECLOSURE )
SOLUTIONS, AND/OR FIDELITY )
INFORMATION SERVICES, INC., )
ASSURANT FIELD ASSET SERVICES F/K/A )
FIELD ASSET SERVICES, INC., )
ABLITT & SCOFIELD P.C., F/K/A )
ABLITT LAW OFFICES, P.C., F/K/A )
ABLITT & CHARLTON, P.C. and )
MARTY'S REAL ESTATE, )
)
Defendant )
__________________________________________ )

PLAINTIFFS’ OPPOSITION TO DEFENDANTS MOTION FOR LEAVE

TO FILE CONCISE STATEMENT OF MATERIAL FACTS AND SUPPLEMENTAL
APPENDIX IN SUPPORT OF SUMMARY JUDGMENT /
MOTION TO STRIKE

Plaintiffs’ herein, through undersigned counsel, respectfully submit their Opposition to

the Defendants Motion for to File Concise Statement of Material Facts and Supplemental

Appendix in Support of Summary Judgment, AND/ OR Motion to Strike the same under

1
authority of Land Court Rule 4.

ARGUMENT

I. DEFENDANTS HAVE NOT ESTABLISHED THAT THEIR FAILURE TO

COMPLY WAS A RESULT OF ANY “EXCUSABLE NEGLECT” OR MADE A
“GOOD CAUSE SHOWN ARGUMENT” THAT WOULD ALLOW SUCH
FILING, AND SUPPLEMENTAL RECORD THAT PREJUDICES THE
PLAINTIFFS

In Defendants Motion they describe their late filing as an “inadvertent omission” by failing

to file an enumerated Statement of Facts as required under Massachusetts Land Court Rule 4. In

response to Plaintiffs’ material Discovery requests, Defendants repeatedly asked for more time to

respond, to which Plaintiffs’ assented to as a courtesy. Plaintiffs were finally in possession of

Defendants incomplete discovery Reponses approximately one week prior to Defendants filing of

its Motion, and record appendix with this Court on January 14, 2019. 1 Based upon the record as it

stood on January 14, 2019, Plaintiffs responded in Opposition under MRCP., R. 56(c) [as non-

movants] where Defendants intentionally filed the record upon which they took the position that

they had met their burden under R. 56, and that no disputed facts remained in issue and were

therefore entitled to a judgment as a matter of law. 2

Thereafter, utilizing the record as presented, on February 15, 2019, Plaintiffs filed their

Opposition, Affidavit, and Concise Statement of Material Facts [which clearly identified the fact

that Defendants had failed to meet their Rule 4 requirements]. Again, Plaintiffs never submitted

any cross Motion under R. 56, and therefore are not the moving party. However, where Defendants

1
On February 11, 2019, Plaintiffs requested to expand time to file their Opposition, but were
informed by Defendants counsel that by agreeing to allow the Defendants extension to submit
the incomplete discovery responses to Plaintiffs, “so the timing could not have come as a
surprise”. The preceding took place, even though, Defendants had intentionally filed their
Motion along with the record as it was presented on January 14, 2019.
2
Plaintiffs were not in possession of Defendants’ proffer of a portion of a purported ‘mortgage
loan schedule’ that fails to specifically identify Plaintiffs.

2
had failed to meet their Land Court Rule 4 burden to provide an enumerated Statement of Facts

upon which there was no remaining factual issues in dispute, in order to protect the Plaintiffs’

rights, Plaintiffs were forced to submit a document entitled “concise statement of material facts”

in order to confirm that they did not admit or concede to Defendants position of the facts at oral

argument.

In fact, part of Plaintiffs’ defense was premised upon Defendants’ failure to comply

with Land Court Rule 4. In fact, Plaintiffs “concise statement of material facts” they very clearly

alerted Defendants that Defendants filing was deficient under the requirements of Land Court

Rule 4. Plaintiffs’ further clarified [and alerted Defendants] that Plaintiffs were entitled to

Judgment on the basis of the omission of filing an enumerated statement of facts. Again,

Defendants were in possession of this information on or about February 15, 2019. Only on or

about April 16, 2019 [fourteen days prior to the hearing on Defendants’ Motion], did undersigned

receive an email from Defendants’ counsel stating that they were “preparing Defendants’ concise

statement of material facts to be filed prior to the upcoming summary judgment hearing,

which were
omitted from“inadvertently
their initial package”.

Plaintiffs state that it would be hard to find that “good cause” is shown by Defendants here,

especially where Defendants attempt to file such enumerated “concise statement of facts” over

ninety (90) days after the filing of their original motion. The Defendants have not made out any

case or supplied any argument as to why they have established “good cause shown” to allow such

13th hour request other than it was “inadvertently omitted”.

Defendants cite to Buckland v. Conover, 25 LCR 52 (2017), “where the Land Court

permitted a late filing of a supplemental memorandum and amended responses to statement of

facts because the supplementation was minimal, did not raise new facts of which [the other party]

3
had no prior knowledge and did not in any way prejudice" the other party”. Defendants stridently

assert that “the circumstances [in Buckland] are very similar here”. This is absolutely not an

accurate statement. See Buckland, at 25 LCR 55;

“The Applicant also urges the Court to strike the Abutter’s supplemental Memorandum
and amended responses to the Applicant’s statement of facts.”

While Defendants seek to gloss over the clearly different posture of Buckland, a review of the

above quote provides light upon the shade.

The term “amended response” in the above citation connotes the fact that, unlike the matter

before this Court, the original R. 56 filing in Buckland contained an enumerated statement of facts,

in order for there to be “amended responses”. Unlike Buckland, the Defendants here are not filing

an amended or supplemental statement of facts, but rather for the first time attempt to make such

proffer. Thus, here such “supplementation” is not minimal through an amended pleading, but

rather is substantial through filing the pleading for the first time. In addition, undersigned was not

in possession of such “supplemental filing” until Monday April 22, 2019. Undersigned was forced

undertake emergency procedures in order to find the time respond the proposed statement of facts

prior to the hearing.

Indeed, Defendants filed their Motion for Summary Judgment, and record that they relied

upon, on January 14, 2019. Defendants were aware at that time of the January 14, 2019 filing that

they had yet to turn over all documents to Plaintiffs. Defendants submitted the record they relied

upon and were satisfied with its contents. Further, on February 15, 2019, Plaintiff specifically

notified Defendants of the issue regarding the failure to file an enumerated Statement of Facts as

required under Land Court Rule 4. Even a cursory review of Plaintiffs’ Opposition would have

alerted Defendants of the deficiency of their filing. It would appear to Plaintiffs that Defendants

never reviewed Plaintiffs’ Opposition whatsoever.

4
 Had this “Motion for Leave” been timelier to either; the January 14, 2019 filing of their

Motion, or even relatively contemporaneous with being alerted of this issue by Plaintiffs’

Opposition, the use of the term “inadvertent” might possibly be argued by Defendants. However,

where three (3) months have passed since Defendants’ filing of its Motion, and over two (2)

months have passed from Plaintiffs specifically identifying this defect in their Opposition, the

term “inadvertent” would not accurately describe the true reason for the omission of filing an

enumerated statement of facts under requirement of Land Court Rule 4. Plaintiffs respectfully

request that the Defendants Motion for Leave to file their Concise Statement of Material Facts be

Denied and stricken from the record and consideration.

A. Plaintiffs Also Respectfully Request That The Balance of The Supplemental Record
and Reply Brief of Defendant Be Stricken, As It is Prejudicial To Plaintiffs

Plaintiffs respectfully also submit this Pleading as a Motion to also Strike the

Proposed Concise Statement of Material Facts, Supplemental Record, and Reply Brief of

Defendant, also under the requirements attendant to Land Court Rule 4, and MRCP., R. 56.

Plaintiffs’ pleadings rely upon the Defendants’ proffer of a redacted mortgage loan

schedule that was never part of the Summary Judgment Record. In fact, Plaintiffs’ filed their

Opposition based upon the record as it stood on February 15, 2019, where Defendants

intentionally filed their record without such purported. Document. Worse, said document was

never presented in order that Plaintiffs had the opportunity to point out the lack of its evidentiary

sufficiency and the fact that the same would not be admissible at trial. Defendants seek a back-

door procedure to have this document now become part of the Summary Judgment record, and as

such it should be stricken along with any pleading reliance upon such document outside the

record.

Respectfully submitted,

5
 Plaintiffs
By their Attorney,

Glenn F. Russell, Jr., Esq.

BBO# 656914

38 Rock Street, Suite #12

Fall River, MA 02720
(508) 324-4545
(508) 938-0244

Dated: April 29, 2019

CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on the date below I sent a copy of this document to the
Defendants’ counsel of record by first class mail, postage prepaid, and/or email, on April 29, 2019

____________________________
Glenn F. Russell, Jr.

Jordan s. O’Donnell
Hale Yazicioglu Lake
HINSHAW & CULBERTSON,LLP
53 State Street, 27th Floor
Boston, MA 02109