Coburn v. Gould, 3 Mass. App. Ct. 793

Coburn v. Gould

3 Mass. App. Ct. 793 | Mass. App. Ct. | 1975

In the plaintiff’s brief on appeal from the judgment of the Superior Court dismissing her bill in equity, she does not question the propriety of the interlocutory decree sustaining both defendants’ demurrers, but attacks only the subsequent order denying her motion to amend the bill. Even if it be assumed, as asserted by the plaintiff, that the denial of her motion was based on an implied ruling that the allegations in the proffered amendment were insufficient to entitle her to relief (but see Sullivan v. Farr, 2 Mass. App. Ct. 815 [1974]), rather *794than an exercise of discretion (see Manufacturing Improvement Corp. v. Georgia Pac. Corp. 362 Mass. 398, 401 [1972]), that ruling is not shown to have been erroneous. As the motion was denied long before July 1, 1974, and as no further motion to amend was filed thereafter (though the judgment was not entered until October 31 of that year), the sufficiency of the allegations in the proffered amendment is to be tested by the law as it existed before the effective date of the Massachusetts Rules of Civil Procedure. See Mass.R.Civ.P. 1A, subpars. 1 and 3, 365 Mass. 731 (1974); Harrison v. Textron, Inc. 367 Mass. 540, 557 (1975). The purported allegations that the defendants violated various provisions of G. L. c. 140C (as inserted by St. 1969, c. 517, § 1), the Truth-in-Lending Act, are apparently grounded on the premise that any lender of money is a “creditor” within the meaning of the act, whereas that term as used in the act is expressly confined to “a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit” (emphasis supplied). G. L. c. 140C, § 1(1). There is no allegation that either defendant falls within that definition (an inference to that effect may not properly be drawn from the name of the corporate defendant), and hence, no sufficient allegation that the actions complained of were in violation of the act. Compare McKinney v. Liberty Mut. Ins. Co. 1 Mass. App. Ct. 569 (1973). The omission is not cured by the allegation that each defendant acted “as the lender or creditor as defined in various sections of the General Laws,” for that allegation is at most an unsubstantiated generalization (compare Moskow v. Boston Redevelopment Authy. 349 Mass. 553, 563-564 [1965], cert. den. 382 U. S. 983 [1966] and Wein-rebe v. Coffman, 358 Mass. 247, 252 [1970]) or conclusion of law (compare Crall v. Leominster, 362 Mass. 95, 106 [1972]). Only two other allegations are sufficiently argued in the plaintiff’s brief to require consideration. See Moskow v. Boston Redevelopment Authy., supra, at 568, and cases cited. One of them, that the individual defendant “demanded payments at a greater rate of interest than one percent after default in violation of G. L. c. 140, § 90A,” omits, other than by conclusion of law (see Crall v. Leominster, supra), any averment that the mortgaged land securing the loan had “an assessed value of not over twenty-five thousand dollars” (G. L. c. 140, § 90A, as amended through St. 1962, c. 286) or that the supposedly excessive interest rate applied to any “period after the expiration of six successive months of continuing default” (ibid.), and therefore alleges no violation of that statute. The remaining allegation, that the corporate defendant “failed to comply with the requirements of G. L. c. 184, § 17B [as amended through St. 1970, c. 313] in regard to statements contained on the mortgage application,” is far too conclusory and vague to inform that defendant of what it would be called upon to meet. See Moskow v. Boston Redevelopment Authy., supra, at 564; Weinrebe v. Coffman, supra; Leventhal v. Dockser, 358 Mass. 799 (1970); Greenberg v. Assessors of Cambridge, 360 Mass. 418, 420-421 (1971), and cases cited; Manufacturing Improvement Corp. v. Georgia Pac. Corp., supra.

Douglas A. Randall for the plaintiff. Edward B. Ginn for Financial Enterprises Corp. William N. Wheeler for Eleanor R. Gould.

Judgment affirmed.