Sisters Nancy Chiarelli and Sarah Differ were co-tenants of the house in Quincy that they grew up in. Sarah lived in the house with their mother, her daughter, and her husband Marc and his daughter; Nancy lived in Florida with her husband and family. In 2006, Sarah asked Nancy to convey her ½ interest in the house to Sarah so that she could refinance; Sarah promised to return Nancys ½ interest after the refinance was completed. After getting the promise in writing, Nancy agreed, and that transaction went smoothly. In 2008, Sarah made the same request. Nancy agreed without getting anything in writing, and conveyed her ½ interest to Sarah. Sarah reneged on the agreement and did not return Nancy as a co-tenant. This action followed, in which Nancy brings a variety of claims, each of which seeks a return of her ½ interest, as well as a claim for partition that has been stayed pending the resolution of her other claims. As discussed below, while Sarah did not commit fraud (she intended to return the ½ interest to Nancy at the time of the 2008 agreement), she did breach an enforceable contract with Nancy, entitling Nancy to specific performance of the promise to reconvey her ½ interest to her.
The plaintiff Nancy Chiarelli filed her verified complaint on January 5, 2012, naming as defendants Sarah Differ, Marc Differ, and Lowell Cooperative Bank. The verified complaint asserted the following claims: Count I, Intentional Misrepresentation; Count II, Fraud in the Inducement; Count III, Breach of Contract; Count IV, Promissory Estoppel; Count V, Specific Performance; Count VI, Creation of a Constructive Trust; and Count VII, Partition. Plaintiffs Motion for Judicial Endorsement of Memorandum of Lis Pendens was allowed on January 11, 2012. Defendant Lowell Cooperative Bank filed its answer on February 1, 2012. A case management conference was held on February 23, 2012. Defendants Sarah Differ and Marc Differ filed their answer on March 15, 2012. On April 17, 2012, the Plaintiffs Motion to Transfer Case to Superior Court was denied, and Count VII of the verified complaint, for partition, was stayed until resolution of the other claims.
On May 24, 2012, plaintiff filed her amended verified complaint, in which Mortgage Electronic Registration Systems, Inc., as nominee for Branch Banking and Trust Company (MERS) was substituted as defendant. MERS filed its answer, counterclaim, and crossclaim on June 18, 2012. Plaintiff filed her reply to the counterclaim on July 10, 2012; defendants Sarah and Marc Differ filed their answer to the amended verified complaint and their answer to the crossclaim on August 30, 2012. The pretrial conference was held on October 2, 2012. The Stipulation of the Parties was filed on December 3, 2012.
Trial was held on December 11 and 12, 2012. The court heard testimony from Nancy Chiarelli, Marc Differ, Sarah Differ, Mark Reenstierna, and Douglas Mercurio. Exhibits 1 through 34 were marked; the Parties Statement of Agreed Facts was marked as Exhibit 1. The Defendants Motion for Required Findings on Tort Claims and Breach of Contract Claims was heard and denied without prejudice.
Plaintiffs Post-Trial Memorandum of Law was filed on February 21, 2013. Defendants Sarah Differ and Marc Differs Proposed Findings of Fact and Requests for Rulings of Law were filed on February 22, 2013. The court heard closing arguments on March 18, 2013, and took the matter under advisement. This Decision follows.
Based on the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Plaintiff Nancy A. Chiarelli (Nancy) is a citizen of the State of Florida with a principal residence at 982 SW Palm Cove Drive, in Palm City, FL 34990. She is married, and she and her husband Jack Chiarelli have lived at their address in Florida since 1995. She was 57 at the time of trial. Exh. 1; Tr. I-20-21.
2. Defendants Sarah Differ (Sarah) and Marc Differ (Marc) are husband and wife, and are citizens of the Commonwealth of Massachusetts with a principal residence at 29 Shelton Road, Quincy, in Norfolk County, MA 02169. Exh. 1.
3. Defendant Mortgage Electronic Registration Systems, Inc. (MERS) has a principal place of business at 1818 Liberty Street, Suite 300, Reston, VA 20190. MERS regularly conducts business in Massachusetts and has a Massachusetts Registered Agent for the purpose of, among other things, accepting service of process in Massachusetts. Exh. 1.
4. Defendant Branch Banking and Trust Company has the principal place of business at 200 West 2nd Street, Winston-Salem, NC 27101-4019. Upon information and belief, Branch Banking and Trust Company regularly conducts business in Massachusetts. Exh. 1.
5. This dispute involves a claim of right, title and interest in residential property located at 29 Shelton Road in Quincy, MA (the Property) bounded and described as follows:
A certain parcel of land with the buildings thereon, situated in Quincy, Norfolk County, Massachusetts, and being a portion of Lot 190 as shown on a plan by Ernest W. Branch, C.E. dated June 10, 1929, recorded with Norfolk Deeds at Book 1852, Page 107, and bounded and described according to said plan as follows:
Also another parcel opposite the above lot on the NORTHERLY side of said Shelton Road, bounded and described as follows:
WESTERLY:	by land now or formerly of William H. Knapp et ux, by a line coincident with the WESTERLY line of the above described parcel extended;
EASTERLY:	by land now or formerly of Beneret et al, by a line coincident with the EASTERLY line of said above- described parcel extended.
6. Nancy and Sarah are sisters. They grew up at the Property with their parents and their brother Greg. Exh. 1; Tr. I-21.
7. Their father passed away in 1982, and their brother passed away in 2002. Their mother, Elizabeth McCann Mills, passed away on May 3, 2011. Each of them was living at the Property when they passed away. Exh. 1; Tr. I-22, 69, 208.
9. By a deed dated March 9, 1984, and recorded in the Norfolk County Registry of Deeds (the registry) at Book 6355, Page 587 on March 9, 1984, Elizabeth McCann Mills conveyed the Property to herself and Nancy as joint tenants. Exhs. 1, 8; Tr. I-69-70.
10. In or around 2000, shortly after separating from and divorcing her first husband Robert Perch, Sarah and her daughter moved into the Property with her mother and her brother. Exh. 1; Tr. I-207-208.
11. Sarah and Marc met in 2000 when Sarah got a job at Marcs office. The two began a dating relationship some time in 2001. Shortly after September 11, 2001, Marc moved into the Property, and Sarah and he have continued live at the Property up through the present time. Exh. 1; Tr. I-208.
12. Marc was divorced in 2000. He had two children from his first marriage, with continuing weekly child support obligations of $380-400 for both children in total that began in 2000 and ended in 2009. Exh. 1.
13. In 2001, Elizabeth McCann Mills and Nancy gave a mortgage on the Property, as joint borrowers, to Chase Manhattan Mortgage Corporation, as lender, in the amount of $165,100.00 (the Chase Mortgage). The Chase Mortgage is dated December 4, 2001 and is recorded in the registry at Book 15904, Page 262. Exh. 9.
15. By a deed dated October 14, 2005 and recorded in the registry at Book 23010, Page 345 on October 17, 2005, Elizabeth McCann Mills conveyed all of her right, title and interest in the Property to Sarah. The deed provides: The intention of this deed is to convey one-half interest that I own in the above described property based on a deed dated March 9, 1984, whereby I had transferred another one-half interest to Nancy Ann Mills (i.e., Nancy, the plaintiff). The deed further provides that Elizabeth McCann Mills reserves for herself a life estate in the above described property. Exh. 1; Exh. 10.
16. On February 21, 2006, Sarah telephoned Nancy at work and said that she wanted to refinance the Chase Mortgage with a new mortgage from Value One Mortgage, the company at which Sarah worked at the time, to take equity out of the property. The outstanding amount due on the Chase Mortgage was $165,000; Sarah wished to refinance in the amount of $210,000. Sarah told Nancy that the purpose of the refinance was to fund repairs on the Property. Exh. 1; Tr. I-23-25, 188, 209-211.
17. The lenders attorney, Douglas Mercurio, had fedexed a deed to Nancy on February 15, 2006. In the February 21st conversation, Sarah told Nancy that she needed to sign this deed beforehand, to facilitate this refinance. Sarah said that the deed would have the effect of Nancy transferring her one-half interest in the Property to Sarah without Nancy having to fly up from Florida to Massachusetts to sign documents. Nancy said that she did not want to relinquish her interest in the Property forever. Sarah told Nancy that after the refinance, Sarah would execute a quitclaim deed to restore Nancys one-half interest in the Property. Nancy told Sarah that she did not understand the process, could not discuss it at work, and wanted to think about this request before agreeing to it. Sarah was upset. Exhs. 1, 33; Tr. I-30-31, 188, 211, II-21-22, 24, 27-28.
18. That evening, Nancy and Sarah spoke by phone. Sarah asked Nancy if she would agree to sign the deed. Nancy asked Sarah to put in writing Sarahs intentions about obtaining the deed for the purposes of the refinance and the putting Nancy back on the deed, and to fax them to Nancy. Nancy did not completely trust Sarah; she had a gut feeling that something just wasnt right. Moreover, she had no intention of giving up her interest in the Property after having lived there with her husband and done renovations before they moved to Florida. Sarah was upset, saying, Dont you trust me? but agreed. Exh. 1; Tr. I-31-32, 34-35, 188, 213-215.
19. The next day, February 22, 2006, Sarah prepared and faxed a letter to Nancy. In the letter, Sarah stated:
This has turned out to be a very sad day for me, when I was trying to help Mom with this burden that was left to her. And to help make repairs, that she has complained about for such a long time. I gave you my word that you were going to be placed back on the Deed today. You are going off for the recording of the new mortgage, at the same time of the recording you are going to be placed back on. I even asked [attorney] Doug [Mercurio] to send you a letter explaining this. He said he faxed it to you. I was able to get a low rate and was locked in for 15 days. I explained that we needed that quitclaim for this morning. Doug did say that if we knew you were defiantly [sic] going to have it in the mail today, that we may proceed with the loan. Why cant you trust me? What did I ever do to you? Are we sisters? Why dont you trust me, because Jack doesnt? Why dont you follow your heart? If you can let me know if youll be able to mail this today, we might be able to refinance at 4:30 today. After this is over we can talk about what you want out of the house, and take care of that down the road. Please call me. 781-986-6900. Your Sister, Sarah.
20. The same day, Nancy telephoned attorney Mercurio and expressed her concern about executing the deed without any assurance that she would be restored to her status as title holder. In response, attorney Mercurio faxed her a letter confirming that she would be restored as a Property owner after the new mortgage was signed and recorded. Exh. 34; Tr. I-74, II-28-30, 33.
21. Also on the same day, February 22, 2006, Nancy telephoned Sarah and accepted Sarahs offer and told Sarah that she was sending attorney Mercurio the signed deed. Nancy sent the signed by overnight mail to attorney Mercurio with a handwritten letter. The letter states:
I am signing this Quitclaim deed for the purpose of the refinance of the property at 29 Shelton Rd, Quincy MA, that Sarah Differ is executing in consideration that I will be put back on the deed to the property (as stated in your letter) at the time of the closing as it was prior to this refinance.
22. At this time, Marc was aware that Nancy wished to be restored as co-owner of the Property after the refinance transaction was completed. Tr. I-117, 119-120.
23. The deed that Sarah signed on February 22, 2006 was recorded at the registry on February 27, 2006 at Book 23430, Page 321. Exhs. 1, 12.
24. Sarah and Elizabeth McCann Mills as borrowers entered into a mortgage with HomeComings Financial Network, Inc., whereby Sarah borrowed $210,000 against the existing equity in the Property (the HFN Mortgage). The HFN Mortgage was recorded at the registry on February 27, 2006 at Book 23430, Page 323. Exhs. 1,14.
25. The HFN Mortgage refinanced and discharged the Chase Mortgage, the sole existing mortgage on the Property. The Discharge of Mortgage, discharging the Chase Mortgage, was recorded in the registry on March 21, 2006 at Book 23497, Page 90. Exhs. 1, 13.
26. At the closing of the HFN Mortgage, attorney Mercurio telephoned Nancy and told her the deed restoring her as co-owner of the Property had been signed. By a deed dated February 27, 2006, and recorded in the registry at Book 23430, Page 339, Sarah restored Nancy as an owner of the Property as joint tenant with Sarah. This deed also repeated the life estate held by Elizabeth McCann Mills. Exhs. 1, 15; Tr. II-43.
27. Sarah withdrew $46,239.11 in equity from the Property as a result of the 2006 transaction and deposited these funds in a joint savings account at Quincy Credit Union that she shared with Marc. Sarah and Marc intended to use the money from the 2006 transaction to consolidate debts and cash-out equity for home repairs. The debts included credit card debt that both Sarah and Marc had. Sarah did not tell Nancy that the money would be used for anything other than home repairs. Exhs. 1, 2, 3; Tr. I-115, 210-211.
28. Between 2006 and 2008, Nancy and Sarah did not have any discussions about the Property. Tr. I-36.
29. In May 2008, defendant Sarah telephoned Nancy and proposed another transaction concerning the Property. She told Nancy that she wanted to take out an equity loan for the sole purpose of making repairs to the Property, that she wanted Nancy to execute a quitclaim deed, and that attorney Mercurio was preparing the deed and would send it to Nancy to sign so that she would not have to fly up from Florida to sign the documents. Nancy replied, Oh, the same as last time? You are going to put me back on the Deed when this transaction is over? Sarah said, Yes. Sarah did not tell Nancy that she was not going to convey Nancys interest back to her after the transaction was completed. Nancy trusted Sarahs promise, based on the 2006 transaction in which they had done the same sort of exchange of deeds, and did not ask Sarah to put this promise in writing. Exh. 1; Tr. I-36-40, 215-217, 219.
30. Sarah had attorney Mercurio prepare a deed (the 2008 deed). The 2008 deed conveyed Nancys and Elizabeth McCann Millss interests in the Property to Sarah, thereby extinguishing the life estate of Elizabeth McCann Mills and vesting 100% of the interest in the Property in Sarah. In reliance upon Sarahs promise to reconvey a ½ interest in the Property to her after the refinance transaction, Nancy signed and returned the 2008 deed to Sarah. She then telephoned Sarah to let her know that she had received the 2008 deed, signed it, and sent it back. During that conversation, Nancy again said, You are going to put me back on the Deed as soon as you get the funds? Sarah replied, Yes. Exhs. 1, 16; Tr. I-40-41, 59-61, II-53-54.
32. At the time of this 2008 transaction, Nancy had no intention to give up her ½ interest in the Property forever for nothing in return, because she had lived there for 11 years, renovated the Property, and paid the mortgage and taxes. Also at the time of the 2008 transaction, Sarah did not believe that Nancy was relinquishing her ½ interest to Sarah forever. Tr. I-37-38, 220-221.
33. Marc was aware of the 2008 conversation between Sarah and Nancy, and was also aware that the conversation resulted in the 2008 deed. He believed that Sarah intended to put Nancy back on the deed and restore her interest. Tr. I-121, 140-141.
34. At no time has Nancy ever told defendant Sarah that Nancy desired to relinquish her interest in the Property to Sarah forever. Exh. 1.
35. The 2008 deed was recorded at the registry on June 2, 2008 at Book 25807, Page 215. Exh. 1; Exh. 16.
36. On June 24, 2008, Sarah and Marc (as co-signor on the note) entered into a subordinate mortgage with Quincy Credit Union for $40,000 (the Quincy Credit Mortgage). They withdrew the $40,000 as equity from the Property and deposited the funds into their joint account at Quincy Credit Union. The Quincy Credit Mortgage was recorded at the registry on June 24, 2008 at Book 25860, Page 148. Exhs. 1, 17, 18; Tr. I-166, 233.
37. Sarah and Marc refinanced the Property and gave the Quincy Credit Mortgage in 2008 in order to consolidate debts and cash-out equity for home repairs. They used the money to pay for some repairs to the Property. They also paid approximately $10,000 for an electric chair that would lift Sarahs mother, Elizabeth McCann Mills, up and down stairs, paid $13,000 for dental work for Marcs daughter, and paid down some credit card debt. Exh. 1; Tr. I-166-167, 233, 248-250, 252.
38. Sarah was laid off from her full time job at Waste Solutions in 2008. Since that time, she has worked, part-time 2 days per week, at Royal Spring Chiropractic for which she is paid $100/week. Marcs base salary in 2008 was $40,000; between 2008 and 2010 his commission income fell. Marcs annual child support bill was $20,000, so the majority of his income, after taxes, was absorbed by child support payments that were garnished from his wages. As a result, in 2008 Sarah and Marc were struggling to pay their bills. Exh. 1; Tr. I-163- 165, 229-232.
39. Approximately two weeks after she signed the 2008 deed, Nancy checked the registry online and saw that no deed restoring her interest in the Property had been recorded. She telephoned Sarah and asked Sarah why she had not yet been placed back on the deed to the Property as a joint tenant with Sarah. In response, Sarah said: Mom wants to talk to you when you come up in July. Sarah told Marc of this call. Exh. 1; Tr. I-42-43, 191, 224.
40. Nancy and her husband visited Massachusetts between July 11 and July 21, 2008. On July 20, 2008, Nancy and her husband were at the Property. Nancy, Sarah, and their mother, Elizabeth McCann Mills, had a conversation. In that conversation, Sarah and their mother told Nancy that Sarah was not going to restore Nancys interest in the Property. The reason, expressed by Ms. Mills, was that Nancy was not contributing to the Property, that she had left the house and hurt her, and that Sarah would leave the house in the family. Sarah said that she felt it was her turn, that she did not want to have to call Nancy every time she wanted to refinance, and that she had only restored Nancys interest in 2006 because Marc had told her to. Nancy responded, I trusted you. I signed this. You said you were going to put me back on. I never would have signed this had I known you were going to do this. Sarah said, Yeah, I know, Im the bad guy. Exhs. 1, 32; Tr. I-45-48, 67, 79, 80-82, 193, 198-199, 206.
41. This conversation upset all of them. Shortly after the conversation, Nancy and her husband left the Property. Rather than spending the night at the Property as they had planned, they stayed at a hotel before making their return flight to Florida the next day. Exhs. 1, 32; Tr. I- 48-49, 74, 199-200.
42. The next day, Nancy telephoned Sarah the next day and asked Sarah to restore her as a joint tenant owner of the Property. Sarah refused. Nancy also telephoned her mother that day. In that conversation, her mother told her that Sarah was going to put her back on the deed. Exhs. 1, 32; Tr. I-84-85, 88.
43. After those conversations, Nancy had some further conversations with her mother but did not take any further action with respect to the Property until 2011, because she did not want to upset her mother. Tr. I-85-87, 90.
44. Nancy did not speak to Sarah again about the Property until April 2011. Their mother was in the hospital. When Nancy was visiting the hospital, Sarah mentioned that she thought that Nancy and their mother still owned a parcel adjoining the Property called the beach property. Tr. I-50-51.
45. The next conversation that Nancy and Sarah had about the Property was in July 2011, shortly after their mother, Elizabeth McCann Mills, passed away. When Nancy was in Massachusetts to bury their mothers ashes, she told Sarah, We need to do something about this. Tr. I-51-53.
46. By a deed dated July 29, 2011, and recorded at the registry at Book 29007, Page 401, Sarah conveyed the Property to Marc, for a listed consideration of $570,000. The HUD settlement statement lists a Gift of Equity from Seller to Buyer in the amount of $300,000. Sarah did not obtain Nancys consent to perform this conveyance of the Property. Exhs. 1, 21, 23.
47. That same day, Marc executed a note and took out a mortgage on the Property for $270,000 through Lowell Cooperative Bank, as lender, and MERS, as mortgagee/nominee (the MERS Mortgage). The MERS Mortgage was recorded at the registry on August 1, 2011 at Book 29007, Page 403. Marc did not obtain Nancys consent to encumber the Property with the MERS Mortgage. Exhs. 1, 22, 26, 29.
48. Later that same day, Lowell Cooperative Bank executed a Notice of Assignment, Sale or Transfer of Servicing Rights transferring its interest in the MERS Mortgage to Branch Banking and Trust Company with MERS remaining as the mortgagee/nominee. As part of this transfer, Branch Banking and Trust Company and Lowell Cooperative Bank executed an allonge of the note on August 2, 2011. Exhs. 1, 27, 28.
49. Most of the money borrowed under the MERS Mortgage was used to satisfy the two prior mortgages on the Property, the 2006 HFN Mortgage for $210,000 and the 2008 Quincy Credit Mortgage for $40,000. A Release of Mortgage, releasing the HFN Mortgage, was recorded in the registry on August 8, 2011 at Book 29022, Page 484. This instrument served to release the mortgage entered into on July 22, 2006. A Discharge of Mortgage, discharging the Quincy Credit Mortgage, was recorded in the registry on September 16, 2011 at Book 29123, Page 349. Exhs. 1, 19, 20.
50. Marc took approximately $18,000 in equity out of the Property in 2011, which was used for repairs and debt consolidation, including paying off approximately $5,000 in credit card debt. Exh. 1; Tr. I-168-169, 245-246.
51. Nancy did not know about this transfer or the MERS Mortgage before it occurred. She discovered the transfer to Marc and the MERS Mortgage when she had a title search performed in August 2011, after her mother had died. Nancy called Sarah in August 2011, and told Sarah that she knew that Sarah had transferred the Property to Marc. Sarah said, I could sell this property for $800,000.00 today if I wanted to. Nancy replied, Well, so much for keeping it in the family. Sarah then said, Well my kids cant afford this place, and your kids are going to get your property, referring to Nancys property in Florida. Tr. I-53-59, 65-66.
52. Sarah admits that Nancy has never communicated to Sarah in any way at any point in time that Nancy wanted or was intending to relinquish her one-half interest in the Property to Sarah and/or Marc forever. Exh. 1.
53. As of July 2011, Sarah and Marc continued to use two accounts at Quincy Credit Union for all of their cash deposits and cash purchases. These accounts included the same checking account and savings account that they had used in 2006 and 2008. As of July 2011, just prior to the 2011 transaction, the defendants checking account balance was $147.53, and the defendants savings account balance was $12.98 as per Quincy Credit Union records. Exh. 1.
54. Sarah and Marc used proceeds from the HFN Mortgage, the Quincy Credit Mortgage, and the MERS Mortgage to make the following repairs and improvements to the Property:
Nancys amended verified complaint has seven counts. Count I is for intentional misrepresentation. Count II is for fraud in the inducement. Count III is for breach of contract. Count IV is for promissory estoppel, in the alternative to breach of contract. Count V seeks specific performance. Count VI seeks the establishment of a constructive trust. Count VII is for partition. Consideration of the partition claim was stayed, and it was not part of this trial. Based on the findings of fact set forth above, I treat each count in turn.
Intentional Misrepresentation. To recover on her claim of intentional misrepresentation, Nancy must prove that Sarah or Marc made a false statement of material fact in order to induce Nancy to agree to the 2008 transaction and execute the 2008 deed, and that Nancy reasonably relied on this false statement to her detriment. Masingill v. EMC Corp., 449 Mass. 532 , 540 (2007); Zimmerman v. Kent, 31 Mass. App. Ct. 72 , 77 (1991). Sarah or Marc must have known that the statement was false when either of them made it, or the statements truth or falsity must have been susceptible of actual knowledge. Id. The statement that Nancy alleges was false is Sarahs promise to restore Nancys ½ interest in the Property after the 2008 refinance was completed and her statement that she would use the money from the refinance for repairs to the Property. The evidence establishes that Nancy relied to her detriment on these statements, as she executed the 2008 deed surrendering her interest in the Property. The evidence further establishes that her reliance was reasonable, as the statements suggested that Sarah was proposing the same arrangement that they had made and completed in 2006. In fact, Nancy confirmed with Sarah that the 2008 transaction would be the same as the 2006 transaction. The evidence does not establish, however, that these statements were false when Sarah made them. Rather, the evidence establishes that Sarah did intend to restore Nancys ½ interest in the Property and to use the money for repairs when she made those statements in 2008. It is only after Nancy gave the 2008 deed and Sarah and Marc completed the refinance transaction that Sarah changed her mind and reneged on her agreement. Because neither Sarah nor Marc made a false statement of material fact in the 2008 transaction, Nancy has not proved her claim for intentional misrepresentation. Count I is dismissed with prejudice.
Fraud in the Inducement. Fraud in the inducement is a form of misrepresentation. It is contrasted with fraud in the factum.
The term fraud in the factum typically refers to the rare case when there has been fraud as to the essential nature of [a legal] instrument or an essential element of it. Frederico v. Brockton Credit Union, 39 Mass. App. Ct. 57 , 63 (1995). Fraud in the inducement, by contrast, occurs when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved, Blacks Law Dictionary 686 (8th ed. 2004), but there is no fraud as to the essential nature of the transaction.
Suliveres v. Commonwealth, 449 Mass. 112 , 117 (2007); see Frederico v. Brockton Credit Union, 39 Mass. App. Ct. 57 , 63-64 (1995). As stated above, I find that Sarah intended to restore Nancys ½ interest in the Property and use the money from the refinance for repairs when she made her statements to that effect, and therefore did not fraudulently induce Nancy to agree to execute the 2008 deed. Count II is dismissed with prejudice.
Breach of Contract. To recover on her breach of contract claim, Nancy must prove that she and Sarah had a valid agreement, that Sarah breached her duties under the agreement, and that the breach caused Nancy damage. See Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153 , 157 (1983); Daddario v. City of Pittsfield, 301 Mass. 552 , 555 (1938); Loranger Constr. Corp. v. E.F. Hauserman Co., 1 Mass. App. Ct. 801 (1973), S.C., 6 Mass. App. Ct. 152 (1978), 376 Mass. 757 (1978); Arthur D. Little Intl, Inc. v. Dooyang Corp., 928 F. Supp. 1189, 1201 (D. Mass. 1996). For a purported contract to be valid and enforceable, the parties must have reached agreement on all material terms and have had a present intention to be bound. Situation Mgt. Sys., Inc. v. Malouf, 430 Mass. 875 , 878 (2000); McCarthy v. Tobin, 429 Mass. 84 , 87 (1999).
Nancy and Sarah reached an enforceable agreement in 2008 on all material terms. The terms to which they agreed were that Nancy would convey her ½ interest in the Property to Sarah for the purpose of Sarahs refinancing the HFN Mortgage and taking out equity for repairs. In exchange, Sarah agreed to convey a ½ interest in the Property back to Nancy after the refinance was completed. Nancy and Sarah explicitly discussed these terms in their May 2008 telephone conversation and Sarah explicitly agreed to reconvey a ½ interest in the Property to Nancy. To the extent any of these terms were not made clear in their conversations, they were incorporated into the agreement by Nancys asking if this 2008 transaction would be the same as the 2006 transaction and Sarahs confirming of that understanding. See Simons v. American Dry Ginger Ale Co., 335 Mass. 521 , 523 (1957) (contract enforceable if meaning of its terms can be ascertained in light of attending circumstances). This agreement is hereafter referred to as the 2008 agreement.
Contracts quite similar to the 2008 agreement were held enforceable in Hurtubise v. McPherson, 80 Mass. App. Ct. 186 (2011), and Barber v. Fox, 36 Mass. App. Ct. 525 (1994). In both cases, the plaintiff conveyed a property interest to the defendant upon the defendants promise that he would convey property back to the plaintiff. See Hurtubise, 80 Mass. App. Ct. at 187; Barber, 36 Mass. App. Ct. at 526-527. In Barber, the agreement was between siblings and concerned family property, in that case the family farm. Id. In both cases, the Appeals Court found that the agreements were definite enough to be binding. Hurtubise, 80 Mass. App. Ct. at 190-192; Barber, 36 Mass. App. Ct. at 531.
Sarah breached the 2008 agreement with Nancy. She did not perform her obligation to convey a ½ interest in the Property to Nancy. The time for the reconveyance, based on the 2006 agreement whose terms were incorporated into the 2008 agreement, was to be as soon as possible after Sarah gave the Quincy Credit Mortgage which refinanced the HFN Mortgage. Sarah expressed her intent not to perform, thereby repudiating the 2008 agreement, no later than the July 2008 meeting at the Property between Sarah, Nancy, and their mother. This breach caused Nancy damage. Specifically, it deprived her of her ½ interest in the Property that she had conveyed to Sarah only in the expectation and agreement that it would be returned to her.
Sarah and Marc raise two affirmative defenses against Nancys breach of contract claim. First, they claim that the statute of limitations bars the claim. Leaving aside whether they properly preserved this defense in their answer, the breach of contract claim is not barred by the statute of limitations. The limitations period for contract claims is six years. G.L. c. 260, § 2. Sarah breached the 2008 agreement in July 2008, and this action was brought in 2012, well within the six-year limitations period.
Second, the Differs raise the defense of the Statute of Frauds. Under the Statute of Frauds, a contract for the conveyance of land is not enforceable unless it is set forth in a writing executed by the person to be charged. G.L. c. 259, § 1, Fourth. The 2008 agreement is a contract for the conveyance of land, namely the ½ interest in the Property, and it is not in writing. On its face, it is subject to the Statute of Frauds.
There is, however, an exception to the Statute of Frauds that applies to this case. A plaintiffs detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds as a defense. Nessralla v. Peck, 403 Mass. 757 , 761 (1989); see Andrews v. Charon, 289 Mass. 1 , 5 (1935); Hickey v. Green, 14 Mass. App. Ct. 671 , 673 (1982). Here, Nancy performed her obligation under the 2008 agreement by conveying her ½ interest to Sarah, and relied to her detriment on Sarahs promise to convey the ½ interest back to her. This exact reliance was found to be reasonable and to take an oral agreement out of the Statute of Frauds in both Barber and Hurtubise. In Barber, the Appeals Court held that the oral agreement in that case was not barred by the Statute of Frauds because
[a] contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement. Restatement (Second) of Contracts § 129 (1979), quoted in Hickey v. Green, 14 Mass. App. Ct. 671 , 673 (1982). This rule applies with particular force where the plaintiff had already provided consideration consisting, at least in part, of an interest in land.
Barber, 36 Mass. App. Ct. at 530. In Hurtubise, the court explained that the application of the equitable exception to the Statute of Frauds relied upon in Barber, has depended upon the degree of reliance on the oral agreement by the party pursuing specific enforcement. Hurtubise, 80 Mass. App. Ct. at 189. While earlier Massachusetts decisions laid down somewhat strict requirements for an estoppel precluding the assertion of the Statute of Frauds, . . . more recent decisions . . . indicate a trend on the part of the Supreme Judicial Court to find that the circumstances warrant specific performance. Id., quoting Hickey, 14 Mass. App. Ct. at 673- 674.
Nancy is in the same position as the plaintiffs in Barber and Hurtubise. She conveyed an interest in the Property to Sarah in reasonable reliance upon Sarahs promise to convey that interest back to her after the refinance. This conveyance constitutes part performance of the 2008 agreement, made in reliance on the agreement to Nancys detriment. Nancys change in position means that injustice can only be avoided by enforcing the 2008 agreement. Nancys conveyance takes the 2008 agreement out of the Statute of Frauds and renders the agreement enforceable. Id. at 189-190; Barber, 36 Mass. App. Ct. at 530-531.
Promissory Estoppel. Promissory estoppel is an expression not used in Massachusetts, since it tends to confusion rather than clarity. Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757 , 761 (1978). The doctrine to which the term refers is that an offer or promise which the promisor should reasonably expect to induce action or forbearance, and results in the other party reasonably acting or forbearing in reliance upon the promise, will be enforced as a contract. Rhode Island Hosp. Trust Natl Bank v. Varadian, 419 Mass. 841 , 849-850 (1995); Loranger Constr. Corp., 376 Mass. at 760-761. The reliance substitutes for consideration, id. at 761, so that an action based on reliance is equivalent to a contract action, and the party bringing such an action must prove all the necessary elements of a contract action other than consideration. Rhode Island Hosp. Trust Natl Bank, 419 Mass. at 850.
Sarah knew that Nancy was conveying her ½ interest in the Property in reliance upon Sarahs promise to convey that interest back to her after the refinance was completed. Nancys action in reliance upon Sarahs promise created an enforceable contract which, as described above, Sarah breached.
Specific Performance. Nancy has sought as a remedy specific performance of the 2008 agreement, that is, a judgment ordering Marc as owner of the Property to convey to her a ½ interest in the Property. [Note 1] Whether specific performance should be granted is within the sound discretion of the judge. Greenfield Country Estates Tenants Assn, Inc. v. Deep, 423 Mass. 81 , 87 (1996). Specific performance is a proper and usual remedy in disputes involving the conveyance of land. McCarthy, 429 Mass. at 89; Raynor v. Russell, 353 Mass. 366 , 367 (1967), and cases cited. Specific performance is favored because [i]t is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land. Greenfield Country Estates Tenants Assn, Inc., 423 Mass. at 88. Sarah breached her contractual obligation to convey a ½ interest in the Property to Nancy. Nancy is entitled to specific performance of that obligation.
Sarahs 2011 conveyance of the Property to Marc does not prevent specific performance of Sarahs contractual obligation. Marc is a defendant in this case. He took title to the Property with full knowledge and actual notice of the 2008 agreement between Sarah and Nancy. Moreover, Marc did not provide any consideration for this conveyance. Marc gave the MERS Mortgage for $270,00, which satisfied the 2006 HFN Mortgage and the 2008 Quincy Credit Mortgage, and took $18,000 in equity out of the Property through the MERS Mortgage. The remaining $300,000 of the purchase price recited in the deed is listed in the HUD settlement statement as a Gift of Equity from Seller to Buyer. In other words, no money changed hands between Marc and Sarah as part of this 2011 conveyance. Given Marcs actual knowledge of the 2008 agreement and the lack of consideration, the conveyance of the Property to him in 2011 does not bar specific performance of the 2008 agreement. McCarthy, 429 Mass. at 89-90.
The MERS Mortgage is not an obstacle to specific performance, either. All parties, including the mortgagee of the MERS Mortgage, have stipulated that whatever the outcome of the trial in this action, the MERS Mortgage will remain a valid and enforceable lien in first position on the Property, and the parties will execute any necessary documents to confirm the validity of the MERS Mortgage in first position.
Nancy is entitled to specific performance of the 2008 agreement. A judgment shall enter ordering Marc to convey a ½ undivided interest in the Property to Nancy.
Constructive Trust. Nancy seeks the establishment of a constructive trust as an alternative remedy to specific performance. Because I am ordering specific performance of the 2008 agreement, there is no need to establish a constructive trust.
Partition. Consideration of Nancys partition claim was stayed pending the outcome of the other foregoing claims, which would determine whether she had an interest in the Property entitling her to partition. I am ordering specific performance of the 2008 agreement and the conveyance by Marc to Nancy of a ½ undivided interest in the Property. This conveyance will entitle Nancy to seek partition.
No final judgment shall enter at this time, as the conveyance to Nancy must be made and the partition claim adjudicated. As part of the partition, a commissioner needs to be appointed and a sale conducted. After the sale, the distribution of the proceeds and the allocation of proceeds from the various mortgages on the Property must be determined. In other words, further proceedings in this action are necessary. A status conference is set down for June 18, 2014 at 11:30 a.m. to discuss the next steps in this action.
[Note 1] The Land Court has jurisdiction to order the specific performance of contracts for the sale of land. G.L. c. 185, § 1(k).
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Just picked up ME3. Want to import my Career from ME2. Was having issues with my hard drive and a guy at best buy told me I could transfer them over to a 16g usb and load them from there so I did. I MOVED them from my hard drive to my usb and loaded it up. worked great, played ME3 for a few hours and went to bed. next day after work tried loading it again and the USB is BLANK. All of my saved files and all of the work from the last 2 games are friggin gone. Tried downloading a PC save from the net that had most of the same decisions made that I had in my career, converted it to an x box save and tried transferring that to my (new) hard drive but the x box isn't recognizing that there is anything on the usb to transfer even though it shows up plugged into my laptop. Any ideas? I really don't want to go through ME3 with the default story line. i worked hard for 2 games and I want to play out the story that I started. Please Help!
Hi dude. I have the same problem, but also with the ME3 saves. I've posted my problem in Bioware forums here: http://social.bioware.com/forum/Mass-Effect-3/Mass-Effect-3-Xbox-360-Technical-Support/All-my-saves-have-been-deleted-after-game-update-Help-11750556-1.html but nobody have answered yet. That's the reason I ended here, I hope to use the gibbed to create a new save