VEENA SHARMA v. STUART COLE & Another.

• Court: Massachusetts Appeals Court
• Decided: May 12, 2023
• Docket: 22-P-0673
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-673

VEENA SHARMA

vs.

STUART COLE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2018, the pro se plaintiff initiated this suit by filing

a two-page complaint seeking ten million dollars for alleged

predatory and discriminatory lending. The complaint alleged

that the loan violated the "civil rights act of 1969," violated

the "law of Massachusetts against discrimination," violated

"federal law ECOPA," violated the federal Truth in Lending Act,

and that the plaintiff's "right to cancel was not honored." The

claims apparently related to a mortgage on properties owned by

the plaintiff and her husband. The complaint alleged that the

lender secretly inflated the loan amount, "kept the loan money,"

that the elderly plaintiff was having difficulty paying the

monthly mortgage payment, that there were undisclosed penalties

1 County Mortgage, LLC. and late fees, that the plaintiff was not permitted to modify

the terms and conditions of the loan, that the lender submitted

false documents to the Massachusetts Commission Against

Discrimination, and that mandatory arbitration is a predatory

"trap."

In March 2021, defendants Stuart Cole and County Mortgage

LLC2 filed a motion to dismiss the complaint for failure to state

a claim, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974).3 The motion was filed together with a supporting

memorandum, in which the defendants argued that the complaint

failed to state a claim for fraud with particularity, as

required by Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974), and

failed to allege facts sufficient to support a claim of

predatory lending subject to the requirements of G. L. c. 183C.

In addition, the defendants filed an affidavit of no opposition,

in which they averred that they had served the motion and

2 A different panel of this court has previously stated that, despite the caption for the case in the Superior Court, the complaint could fairly be read to assert claims against County Mortgage, LLC. Consistent with this previous decision, we treat the claims as having been asserted against both Stuart Cole and County Mortgage, LLC. 3 The 2021 motion to dismiss was filed after extensive previous

litigation in the case, including an appeal to this court that resulted in a remand, repeated motions by the plaintiff to transfer venue, and the plaintiff's attempts to have the case heard by a single justice of the Supreme Judicial Court and also by the full panel of that court.

2 supporting papers on the plaintiff, but had received no

response.

The papers referred to in the previous paragraph were filed

with the Superior Court on March 17, 2021. Although the

plaintiff remained actively engaged in the litigation

thereafter, including continuing to seek a change of venue,

pursuing relief from the Supreme Judicial Court, and requesting

postponements of court hearings, she never opposed the motion to

dismiss. Finally, the motion to dismiss was allowed more than

one year later, with a notation in the margin that no opposition

had been filed. Judgment accordingly entered on April 28, 2022,

and it is from this judgment that the plaintiff now appeals.

The plaintiff has given us no reason to disturb the ruling

of the Superior Court judge. To begin with, we note that she

has provided almost none of the information required to pursue

her appeal, including copies of any of the pertinent pleadings,

filings, or decisions. She also does not address the fact that

she failed to oppose the motion to dismiss below, nor offer any

explanation for her failure to do so. We note in this regard

that the motion to dismiss was not precipitously acted on;

indeed, the plaintiff had more than one year in which she could

have filed an opposition. Although we recognize that the

plaintiff is proceeding pro se, she is held to the same

standards as represented litigants. See Baldyga v. Dudley Div.

3 of the Dist. Court Dep't, 449 Mass. 1012, 1012 n.2 (2007);

Solimine v. Davidian, 422 Mass. 1002, 1002 (1996).

We also note the following with respect to the issues the

plaintiff raises on appeal. First, she contends that the first

three lines of the Superior Court judgment are factually

incorrect in that they state that she is seeking to stop a

foreclosure when, in fact, she seeks ten million dollars in

damages. The sentence to which the plaintiff points is not

contained in the judgment from which she is now appealing.

Instead, it appears in the judge's memorandum and order on her

motion to enjoin foreclosure. That decision is not before us in

this appeal, but was instead the subject of the previous appeal

to this court, Sharma v. County Mtge., LLC, 97 Mass. App. Ct.

1126 (2020).

For the same reason, the plaintiff's arguments that her

complaint should not have been dismissed on March 18, 2019,

without a hearing and before the defendants moved to dismiss or

answered the complaint, also fail. The March 18, 2019 judgment

was the subject of the earlier appeal, and cannot be relitigated

here.

The plaintiff questions the fairness of denying her

repeated requests to change venue, claiming that she never

received any response from the court despite her repeated

requests. To the extent this rises to the level of appellate

4 argument, which is doubtful, we note that the plaintiff withdrew

her request for transfer and the judge noted on the record the

reasons for which the plaintiff did so.

Finally, referring to documents and allegations that were

not presented to the court below, the plaintiff argues in broad

strokes that her claims have merit. However, we will not

consider arguments made for the first time on appeal or

materials that were not before the trial court judge. See

Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct.

195, 200 (1996). As we have already noted, the plaintiff failed

to oppose the motion to dismiss below, despite ample opportunity

and time to do so, and the consequence is that we are confined

to the state of the record as it existed when the judge ruled on

the motion to dismiss. On that record, we see no error in

dismissing the complaint.

Judgment affirmed.

By the Court (Meade, Wolohojian & Walsh, JJ.4),

Clerk

Entered: May 12, 2023.

4 The panelists are listed in order of seniority.