Smith v. Jenkins
2011 U.S. Dist. LEXIS 38988
D. Mass.2011Background
- Plaintiff Smith won multiple judgments in mortgage fraud-related claims against Dorchester Real Estate, NEMC, Union, Bertucci, and Jenkins; 93A claims reserved.
- Defendants Fremont, Union, Dorchester, and RE/MAX later moved for judgment as a matter of law on the remaining Chapter 93A claim.
- A hearing was held Feb. 7, 2011, with supplemental briefing on the sufficiency of service of Smith's 93A demand letters.
- Court addressed whether the 93A demand letters were properly mailed or delivered to each defendant under Mass. Gen. Laws ch. 93A, § 9(3).
- Court granted summary judgment on the 93A claim for Fremont, Union, Dorchester, and RE/MAX, but denied Bertucci on the 93A claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of the 93A demand letters was proper for Fremont | Smith contends mailbox rule applies to delivery to Fremont. | Fremont contends letters were not delivered to Fremont due to wrong address. | Fremont: judgment for 93A claim granted; service not proper. |
| Whether service of the 93A demand letters was proper for Union | Smith claims proper delivery to Union as represented by certified mail to Union Capital Mortgage Business Trust. | Letters were not addressed to a designated Union official (George Fabrizio) and were not delivered to authorized person. | Union: judgment for 93A claim granted; service not proper. |
| Whether service of the 93A demand letters was proper for Dorchester | Smith attempted service that he believed targeted Dorchester entities. | Letters were sent to individuals no longer employed by Dorchester and to an unrelated entity; not proper to Dorchester. | Dorchester: judgment for 93A claim granted; service not proper. |
| Whether service of the 93A demand letters was proper for Bertucci | Evidence showed Bertucci received a 93A demand letter (green card) and correspondence followed. | Bertucci denies receipt. | Bertucci: 93A claim remains; denial of JMOL. |
| Whether RE/MAX can be liable under 93A given no evidence of unfair or deceptive acts | Smith sought 93A relief based on RE/MAX conduct. | No acts of fraud, breach of contract, or fiduciary abuse by RE/MAX. | RE/MAX: 93A claim JMOL allowed; no liability. |
Key Cases Cited
- Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274 (Mass. 1985) (demand letter prerequisite and negotiation purpose)
- Lingis v. Waisbren, 75 Mass.App.Ct. 464 (Mass. App. Ct. 2009) (proof of demand letter delivery is required)
- Thorpe v. Mut. of Omaha Ins. Co., 984 F.2d 541 (1st Cir. 1993) (twin reasons for demand letter: negotiation and damages control)
- Slaney v. Westwood Auto, Inc., 366 Mass. 688 (Mass. 1975) (purpose of demand letter identical to above reasoning)
- Piccuirro v. Gaitenby, 20 Mass.App.Ct. 286 (Mass. App. Ct. 1985) (demand letter must describe acts with specificity)
- Bressel v. Jolicoeur, 34 Mass.App.Ct. 205 (Mass. App. Ct. 1993) (no right to relief for acts not described in letter)
- Univ. Emergency Med. Found. v. Rapier Invs., Ltd., 197 F.3d 18 (1st Cir. 1999) (mailing requires receipt by intended recipient)
- Lightfoot v. United States, 564 F.3d 625 (3d Cir. 2009) (mailing not equivalent to receipt; mailbox rule limited)
- Vasys v. Metro. Dist. Comm'n, 387 Mass. 51 (Mass. 1982) (presentment as a strict statutory condition precedent)
- Garcia v. Essex Cnty. Sheriff's Dep't, 65 Mass.App.Ct. 104 (Mass. App. Ct. 2005) (strict interpretation of presentment within Mass. tort claims act)