Preview
Dale Filed 2/9/2024 2:43 PM
Superior Court - Worcester
Docket Number 2385C,V00405
E-FILED
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 2385CV000405-A
MIDDLESEX SAVINGS BANK,
Plaintiff,
Vv.
MEMORANDUM IN SUPPORT
OF PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT.
VINTAGE BUILDERS, INC., JOHN M.
HOURIHAN and BENJAMIN L. FULLER,
Defendants.
I
\\y
INTRODUCTION
Pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure, the plaintiff,
Middlesex Savings Bank (the “Bank”), requests this Court grant summary judgment in its favor
and against the defendants, Vintage Builders, Inc. (“Vintage Builders”), John M. Hourihan (“Mr.
Hourihan”) and Benjamin L. Fuller (“Mr. Fuller”; collectively, the “Borrowers”), for breach of a
credit agreement executed by Vintage Builders and personally guaranteed by Mr. Hourihan and
Mr. Fuller. The undisputed facts establish that the obligation was incurred but the Borrowers
have failed to comply with the terms of the credit agreement and guarantees. The Bank now
moves for summary judgment on the grounds that there are no genuine issues of material fact,
and the Bank is entitled to judgment as a matter of law for breach of the credit agreement and
personal guarantees.
{Client Marer 1991 1/00180/A8564204,
DOCX}
Date Filed 2/9/2024 2:43 PM
Superior Court - Worcester
Docket Number 2385CV00405
1. STATEMENT OF FACTS!
On or about November 23, 2020, Vintage Builders executed and delivered to the Bank an
on demand credit agreement and disclosure (the “Credit Agreement”), wherein Vintage Builders
promised to make minimum monthly payments of accrued interest on monies advanced to it
under the on demand line of credit up to a maximum principal amount of $150,000.00, plus
interest and applicable fees. In connection with the Credit Agreement, Vintage Builders
executed a Business Loan Agreement (“Loan Agreement”) and a Commercial Security
Agreement (“Security Agreement”) granting the Bank a security interest in all assets of Vintage
Builders, which was perfected by a UCC-1 filing with the Massachusetts Secretary of State.
Contemporaneous with the Credit Agreement, Mr. Hourihan and Mr. Fuller each
executed and delivered to the Bank an unlimited personal guaranty, unconditionally guarantying
all obligations of Vintage Builders to the Bank (“Personal Guarantees”). The Credit Agreement,
Loan Agreement, Security Agreement and Personal Guarantees, and all documents submitted in
connection with the same, are collectively referred to as the “Loan Documents.”
On or about November 23, 2020, in accordance with the Loan Documents, the Bank
advanced $150,000.00 to the Borrowers. In 2022, defaults under the Loan Documents occurred,
including but not limited to Vintage Builders’ failure to make the required monthly interest
payments in September, October and November 2022, and service ofa Summons to Trustee on
the Bank by another creditor of Vintage Builders. Consequently, on December 22, 2022, the
Bank provided a Notice of Default and demanded the Borrowers cure the default within fifteen
(15) days. In response to the demand, Mr. Hourihan engaged in discussions with the Bank but
the parties were unable to reach a satisfactory resolution.
1 This Statement of Facts is drawn from the Statement of Material Facts filed herewith. For the sake of
readability, citations have been omitted here.
{Client Mater 1991 1/00180/A8564204.DOCX}
Date Filed 2/9/2024 2:43 PM.
Superior Court - Worcester
Docket Number 2385C,V00405
On January 31, 2023, as a result of the demand nature of the Credit Agreement and the
failure to timely cure the default, the Bank terminated and accelerated the Credit Agreement, and
made demand under the Loan Documents for full payment of the Credit Agreement within ten
(10) days (the “Demand”). The Borrowers failed to comply with the Demand, and have yet to
remit any payments in accordance with the Demand.
The Borrowers have never disputed the Loan Documents or their payment obligations
thereunder. As of December 8, 2023, the Borrowers owe the Bank $185,809.22, together with
subsequently accruing interest at the default rate of 13.00%, late fees and costs of collection,
including attorneys’ fees, under the Loan Documents.
Til. ARGUMENT.
1 Legal Standard for Entry of Summary Judgment
Summary judgment “make[s] possible the prompt disposition of controversies on their
merits without a trial, if in essence there is no real dispute as to the salient facts or if only a
question of law is involved.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715
(1991), quoting Community Nat’ Bank v. Dawes, 369 Mass. 550, 553 (1976). Once the moving
party meets this burden, the non-moving party must set forth specific facts establishing the
existence of material facts in dispute. Peterson v. Time, Inc., 404 Mass. 14, 17 (1988); Mass. R.
Civ. P. 56(a).
The non-moving party may not rest upon the mere denials contained in their pleadings.
Noies v. Quincy Mutual Fire Insurance Co., 7 Mass. App. Ct. 723, 726 (1979); Mass. R. Civ. P.
56(e). Mere allegations or conjecture are not adequate to counter a properly supported motion.
August v. Office Services, Inc., 981 F.2d 576, 580 (1* Cir. 1992). The non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matusushita Elec. Indus. Co,, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a
{Client Matter 1591 1/00180/A8564204,DOCX}
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Superior Court - Worcester
Docket Number 2385CV00405
“genuine issue” exists only where the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Evidence which is merely colorable or not significantly
probative is insufficient to preclude summary judgment. See, e.g., Anderson v. Liberty Lobby,
477 U.S. 242, 249-52 (1986). There is no real dispute as to the material facts here. Disposition
can be made on a few simple issues of law.
“Actions to enforce promissory notes are especially suited to summary disposition”
because there is often no real dispute regarding execution of a note and the amount due. United
States Trust Company of New York v. Herriott, 10 Mass. App. Ct. 313, 320 (1980). Where the
terms of a note are unambiguous, the interpretation is merely a question of law that is appropriate
for a summary judgment. James Family Charitable Found. v. State Street Bank & Trust Co., 80
Mass. App. Ct. 720, 725 (2011). A plaintiff establishes a prima case to enforce a promissory
note by producing the instrument and providing the signatures thereon. Loew v. Miinasian, 361
Mass. 390, 391 (1972). Here, while not captioned as a note, the Credit Agreement is a
promissory note because it represents the Borrowers’ written promise to pay monies advanced.
See McDonald y. Hanahan, 328 Mass. 539, 541 (1952) (“To constitute a good promissory note
there should be deducible from its face a written promise to pay the money, yet that promise
need not be expressed in any particular form of words, and it will be enough if from the language
used a written undertaking to pay may be fairly inferred.”).
Liability as to a guaranty is ascertained from the terms of the written contract.
Merrimack Valley National Bank v. Baird, 372 Mass. 721, 723 (1977) citing Schneider vy. Armor
& Company, 323 Mass. 28, 30 (1948). “When one guarantees the contract of another, the
guarantor is bound by the terms of the contract guaranteed. . . and his obligations are coextensive
with those of the principle obligor.” Mechanics National Bank v. Stone, 296 Mass. 243, 251
{Client Matter 1991 1/00180/48564204.DOCX}
Date Filed 2/9/2024 2:43 PM
Superior Court - Worcester
Docket Number 2385CV00405,
(1937). The liability of the guarantor is indistinguishable from that of a maker, they are
primarily liable. D’Annolfo v. D’Annolfo Const. Co., 39 Mass. App. Ct. 189, 192-3 (1995).
Here, the Bank has established its prima facie case under the Loan Documents, and the
Borrowers, have not, nor can they, establish any legitimate defenses to preclude entry of
summary judgment against them. Accordingly, disposition for the Bank can be made on
summary judgment by applying general principals of contract law.
2. The Evidence Establishes that the Borrowers Breached the Loan Documents
The Bank has provided copies of the Loan Documents, the execution of which is attested
by the Bank and not challenged by the Borrowers. The Borrowers are obligated to comply with
the plain terms of the documents they executed. In breach of the Loan Documents, Vintage
Builders and its guarantors failed to remit any payments towards its obligations under the Credit
Agreement. There is no dispute that Vintage Builders took a loan from the Bank that it was
obligated to pay and that the Borrowers failed to pay the Bank in full upon demand in 2022. The
Bank’s evidence establishes that Vintage Builders, Mr. Hourihan and Mr. Fuller defaulted on
their obligations under the Loan Documents to the Bank. The Bank’s resulting damages are the
outstanding balance under the Credit Agreement as of December 8, 2023 of $185,809.22, plus
subsequently accruing interest and costs of collection, including attorneys’ fees, as provided for
under the Loan Documents.
On this evidence, the Bank has met its burden of proof for each element of its breach of
contract claims against the Borrowers. See Singarella v. Boston, 342 Mass. 385, 387 (1961).
The Bank is entitled to entry of judgment as a matter of law against Vintage Builders, Mr.
Hourihan and Mr. Fuller, jointly and severally, in the amount of the Bank’s damages as of
December 8, 2023 of $185,809.22, plus subsequently accruing interest at the default rate of
{Client Matter 1991 1/00180/A8564204,
DOCX}
Date Filed 2/9/2024 2:43 PM
‘Superior Court - Worcester
Docket Number 2385CV00405
13.00% with costs of collection, including attorneys’ fees, subsequently determined by the Court
in accordance with the Loan Documents.
Iv. CONCLUSION
For the reasons stated above, the plaintiff, Middlesex Savings Bank, respectfully requests
that the Court:
A. Allow summary judgment in its favor and against the defendants, Vintage
Builders, Inc., John M. Hourihan and Benjamin L. Fuller, jointly and severally, in
the amount of $185,809.22 as of December 8, 2023, plus interest accruing after
December 8, 2023 at the contractual default rate of 13.00%;
Assess costs of collection, including attorneys’ fees, to be subsequently
determined by the Court; and
Order such further relief as is just.
MIDDLESEX SAVINGS BANK
By its attorneys,
Robert B. Gibbons, Esq., BBO #631049
William J. Morrissey, Esq., BBO #694938
Mirick, O’Connell, DeMallie & Lougee, LLP
1800 West Park Drive, Suite 400
Westborough, MA 01581
Phone: (508) 898-1501
Fax: (508) 898-1502
Email: rgibbons@mirickoconnell.com
Email: wmorrissey@mirickoconnell.com
Dated: December 15, 2023
{Client Matter 1991 1/00180/A8564204, DOCX)
Date Filed 2/9/2024 2:43 PM
Superior Court - Worcester
Docket Number 2385CV00405
CERTIFICATE OF SERVICE
I, William J. Morrissey, hereby certify that I have this day served a copy of the foregoing
document, by email, to Mark D. Donovan, Esq. and Alexander Furey, Esq., Considine and
Furey, LLP, One Beacon Street, 22" Floor, Boston, MA 02108,
mdonovan@considinefurey.com, afurey@considinefurey.com.
William J. Morrissey, Esq.
Dated: December 15, 2023
{Client Matter 1991 1/00180/48564204,DOCX)
Preview
Dale Filed 2/9/2024 2:43 PM Superior Court - Worcester Docket Number 2385C,V00405 E-FILED COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2385CV000405-A MIDDLESEX SAVINGS BANK, Plaintiff, Vv. MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT. VINTAGE BUILDERS, INC., JOHN M. HOURIHAN and BENJAMIN L. FULLER, Defendants. I \\y INTRODUCTION Pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure, the plaintiff, Middlesex Savings Bank (the “Bank”), requests this Court grant summary judgment in its favor and against the defendants, Vintage Builders, Inc. (“Vintage Builders”), John M. Hourihan (“Mr. Hourihan”) and Benjamin L. Fuller (“Mr. Fuller”; collectively, the “Borrowers”), for breach of a credit agreement executed by Vintage Builders and personally guaranteed by Mr. Hourihan and Mr. Fuller. The undisputed facts establish that the obligation was incurred but the Borrowers have failed to comply with the terms of the credit agreement and guarantees. The Bank now moves for summary judgment on the grounds that there are no genuine issues of material fact, and the Bank is entitled to judgment as a matter of law for breach of the credit agreement and personal guarantees. {Client Marer 1991 1/00180/A8564204, DOCX} Date Filed 2/9/2024 2:43 PM Superior Court - Worcester Docket Number 2385CV00405 1. STATEMENT OF FACTS! On or about November 23, 2020, Vintage Builders executed and delivered to the Bank an on demand credit agreement and disclosure (the “Credit Agreement”), wherein Vintage Builders promised to make minimum monthly payments of accrued interest on monies advanced to it under the on demand line of credit up to a maximum principal amount of $150,000.00, plus interest and applicable fees. In connection with the Credit Agreement, Vintage Builders executed a Business Loan Agreement (“Loan Agreement”) and a Commercial Security Agreement (“Security Agreement”) granting the Bank a security interest in all assets of Vintage Builders, which was perfected by a UCC-1 filing with the Massachusetts Secretary of State. Contemporaneous with the Credit Agreement, Mr. Hourihan and Mr. Fuller each executed and delivered to the Bank an unlimited personal guaranty, unconditionally guarantying all obligations of Vintage Builders to the Bank (“Personal Guarantees”). The Credit Agreement, Loan Agreement, Security Agreement and Personal Guarantees, and all documents submitted in connection with the same, are collectively referred to as the “Loan Documents.” On or about November 23, 2020, in accordance with the Loan Documents, the Bank advanced $150,000.00 to the Borrowers. In 2022, defaults under the Loan Documents occurred, including but not limited to Vintage Builders’ failure to make the required monthly interest payments in September, October and November 2022, and service ofa Summons to Trustee on the Bank by another creditor of Vintage Builders. Consequently, on December 22, 2022, the Bank provided a Notice of Default and demanded the Borrowers cure the default within fifteen (15) days. In response to the demand, Mr. Hourihan engaged in discussions with the Bank but the parties were unable to reach a satisfactory resolution. 1 This Statement of Facts is drawn from the Statement of Material Facts filed herewith. For the sake of readability, citations have been omitted here. {Client Mater 1991 1/00180/A8564204.DOCX} Date Filed 2/9/2024 2:43 PM. Superior Court - Worcester Docket Number 2385C,V00405 On January 31, 2023, as a result of the demand nature of the Credit Agreement and the failure to timely cure the default, the Bank terminated and accelerated the Credit Agreement, and made demand under the Loan Documents for full payment of the Credit Agreement within ten (10) days (the “Demand”). The Borrowers failed to comply with the Demand, and have yet to remit any payments in accordance with the Demand. The Borrowers have never disputed the Loan Documents or their payment obligations thereunder. As of December 8, 2023, the Borrowers owe the Bank $185,809.22, together with subsequently accruing interest at the default rate of 13.00%, late fees and costs of collection, including attorneys’ fees, under the Loan Documents. Til. ARGUMENT. 1 Legal Standard for Entry of Summary Judgment Summary judgment “make[s] possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715 (1991), quoting Community Nat’ Bank v. Dawes, 369 Mass. 550, 553 (1976). Once the moving party meets this burden, the non-moving party must set forth specific facts establishing the existence of material facts in dispute. Peterson v. Time, Inc., 404 Mass. 14, 17 (1988); Mass. R. Civ. P. 56(a). The non-moving party may not rest upon the mere denials contained in their pleadings. Noies v. Quincy Mutual Fire Insurance Co., 7 Mass. App. Ct. 723, 726 (1979); Mass. R. Civ. P. 56(e). Mere allegations or conjecture are not adequate to counter a properly supported motion. August v. Office Services, Inc., 981 F.2d 576, 580 (1* Cir. 1992). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matusushita Elec. Indus. Co,, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a {Client Matter 1591 1/00180/A8564204,DOCX} Date Filed 2/9/2024 2:43 PM Superior Court - Worcester Docket Number 2385CV00405 “genuine issue” exists only where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Evidence which is merely colorable or not significantly probative is insufficient to preclude summary judgment. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 249-52 (1986). There is no real dispute as to the material facts here. Disposition can be made on a few simple issues of law. “Actions to enforce promissory notes are especially suited to summary disposition” because there is often no real dispute regarding execution of a note and the amount due. United States Trust Company of New York v. Herriott, 10 Mass. App. Ct. 313, 320 (1980). Where the terms of a note are unambiguous, the interpretation is merely a question of law that is appropriate for a summary judgment. James Family Charitable Found. v. State Street Bank & Trust Co., 80 Mass. App. Ct. 720, 725 (2011). A plaintiff establishes a prima case to enforce a promissory note by producing the instrument and providing the signatures thereon. Loew v. Miinasian, 361 Mass. 390, 391 (1972). Here, while not captioned as a note, the Credit Agreement is a promissory note because it represents the Borrowers’ written promise to pay monies advanced. See McDonald y. Hanahan, 328 Mass. 539, 541 (1952) (“To constitute a good promissory note there should be deducible from its face a written promise to pay the money, yet that promise need not be expressed in any particular form of words, and it will be enough if from the language used a written undertaking to pay may be fairly inferred.”). Liability as to a guaranty is ascertained from the terms of the written contract. Merrimack Valley National Bank v. Baird, 372 Mass. 721, 723 (1977) citing Schneider vy. Armor & Company, 323 Mass. 28, 30 (1948). “When one guarantees the contract of another, the guarantor is bound by the terms of the contract guaranteed. . . and his obligations are coextensive with those of the principle obligor.” Mechanics National Bank v. Stone, 296 Mass. 243, 251 {Client Matter 1991 1/00180/48564204.DOCX} Date Filed 2/9/2024 2:43 PM Superior Court - Worcester Docket Number 2385CV00405, (1937). The liability of the guarantor is indistinguishable from that of a maker, they are primarily liable. D’Annolfo v. D’Annolfo Const. Co., 39 Mass. App. Ct. 189, 192-3 (1995). Here, the Bank has established its prima facie case under the Loan Documents, and the Borrowers, have not, nor can they, establish any legitimate defenses to preclude entry of summary judgment against them. Accordingly, disposition for the Bank can be made on summary judgment by applying general principals of contract law. 2. The Evidence Establishes that the Borrowers Breached the Loan Documents The Bank has provided copies of the Loan Documents, the execution of which is attested by the Bank and not challenged by the Borrowers. The Borrowers are obligated to comply with the plain terms of the documents they executed. In breach of the Loan Documents, Vintage Builders and its guarantors failed to remit any payments towards its obligations under the Credit Agreement. There is no dispute that Vintage Builders took a loan from the Bank that it was obligated to pay and that the Borrowers failed to pay the Bank in full upon demand in 2022. The Bank’s evidence establishes that Vintage Builders, Mr. Hourihan and Mr. Fuller defaulted on their obligations under the Loan Documents to the Bank. The Bank’s resulting damages are the outstanding balance under the Credit Agreement as of December 8, 2023 of $185,809.22, plus subsequently accruing interest and costs of collection, including attorneys’ fees, as provided for under the Loan Documents. On this evidence, the Bank has met its burden of proof for each element of its breach of contract claims against the Borrowers. See Singarella v. Boston, 342 Mass. 385, 387 (1961). The Bank is entitled to entry of judgment as a matter of law against Vintage Builders, Mr. Hourihan and Mr. Fuller, jointly and severally, in the amount of the Bank’s damages as of December 8, 2023 of $185,809.22, plus subsequently accruing interest at the default rate of {Client Matter 1991 1/00180/A8564204, DOCX} Date Filed 2/9/2024 2:43 PM ‘Superior Court - Worcester Docket Number 2385CV00405 13.00% with costs of collection, including attorneys’ fees, subsequently determined by the Court in accordance with the Loan Documents. Iv. CONCLUSION For the reasons stated above, the plaintiff, Middlesex Savings Bank, respectfully requests that the Court: A. Allow summary judgment in its favor and against the defendants, Vintage Builders, Inc., John M. Hourihan and Benjamin L. Fuller, jointly and severally, in the amount of $185,809.22 as of December 8, 2023, plus interest accruing after December 8, 2023 at the contractual default rate of 13.00%; Assess costs of collection, including attorneys’ fees, to be subsequently determined by the Court; and Order such further relief as is just. MIDDLESEX SAVINGS BANK By its attorneys, Robert B. Gibbons, Esq., BBO #631049 William J. Morrissey, Esq., BBO #694938 Mirick, O’Connell, DeMallie & Lougee, LLP 1800 West Park Drive, Suite 400 Westborough, MA 01581 Phone: (508) 898-1501 Fax: (508) 898-1502 Email: rgibbons@mirickoconnell.com Email: wmorrissey@mirickoconnell.com Dated: December 15, 2023 {Client Matter 1991 1/00180/A8564204, DOCX) Date Filed 2/9/2024 2:43 PM Superior Court - Worcester Docket Number 2385CV00405 CERTIFICATE OF SERVICE I, William J. Morrissey, hereby certify that I have this day served a copy of the foregoing document, by email, to Mark D. Donovan, Esq. and Alexander Furey, Esq., Considine and Furey, LLP, One Beacon Street, 22" Floor, Boston, MA 02108, mdonovan@considinefurey.com, afurey@considinefurey.com. William J. Morrissey, Esq. Dated: December 15, 2023 {Client Matter 1991 1/00180/48564204,DOCX)