COMMONWEALTH OF MASSACHUSETTS

LAND COURT

DEPARTMENT OF THE TRIAL COURT

 

 

CIVIL ACTION

#17 MISC 000609 (KFS)

Joyce Elbery

v.

Michael Elbery et. al

v.

Ned Mahoney

 

 

Defendant, Michael Elbery’s,

Joint Case Management Conference Statement

Now, along comes the defendant and plaintiff in Cross-claim and Third Party Claim Plaintiff, Michael Elbery, and files his Joint Statement responding to the Court’s numbered questions in order as indicated.

The plaintiff’s attorney, Raymond Ewers, refused to Confer with and will not speak to Michael Elbery. Ewers prepared a "Joint Case Management Conference Statement" without any input or communication with Michael Elbery. Most of Ewers facts, and alleged evidence only support his biased and false view of this case. Additionally, Ewers Proposed Tracking Period for Discovery and Summary Judgment Motions are not even a possibility, as he wants discovery completed in one month. The Third Party Defendant’s service will take more than a month to complete, plus 20 days for the Third Party Defendant to Answer the Complaint against him.

DESCRIPTION OF CASE

1. The above docketed case is a "Petition for Partition" filed in the Mass. Land Court by Plaintiff- Joyce Elbery. The defendants are Michael Elbery, David Elbery, Kathleen Elbery, Robert Elbery. All five parties are owners of real estate (house and land) at 168 Fairfield St., Needham, Mass. of which Joyce Elbery seeks to sell and gain approximately $150, 000.00 for her 1/5 share.

Joyce Elbery has been guaranteed, by her attorney, Ewers, that she will not pay any of the excessive costs associated with the "Petition for Partition" but that Michael Elbery will be assessed all costs of the same Petition and its Partition because the other 4 owners of the real estate are now fabricating that Michael Elbery was the only owner not to sign the "Picariello Purchase and Sale Agreement" in April of 2017 fraudulently making Michael Elbery liable for all costs and expenses of the "Petition for Partition".

Michael Elbery’s says that at the date of approximately May 5, 2017, when the Realtor, Ned Mahoney, took the Elbery – Estate Real Estate at 168 Fairfield St., Needham, Mass. off the market, only two owners of the real estate signed the "Picariello Purchase and Sale Agreement", Joyce Elbery and Robert Elbery. The reason why the Picariello Sale was aborted by Realtor Ned Mahoney in the first week of May 2017 is because 4 owners of the real estate at 168 Fairfield St., Needham, Mass. would not sign Attorney James A. McLaughlin’s "Assent" for a "License to Sell Real Estate" for that same Needham real estate, so that Picariello would have been legally required to sign the sales proceeds check for $750,000.00 over to McLaughlin. Only Joyce Elbery was convinced to sign McLaughlin’s "Assent" form, so that McLaughlin could be issued a "License to Sell Real Estate" from the Norfolk County Probate Court.

Counterclaim, Cross-claim, Third Party Claim – Fraud - Conspiracy

Defendant, Michael Elbery, filed a counterclaim against Joyce Elbery for Fraud because she is now claiming (lying) that Michael Elbery is the only owner of the same above real estate not to sign the "Picariello Purchase and Sale Agreement" of April 27, 2017, so to fraudulently cause Michael Elbery to be liable for all the costs and expenses of the "Petition for Partition" she filed. Michael Elbery has also filed Cross-Claims against Defendants, Kathleen Elbery, Robert Elbery and David Elbery because they are now claiming (lying) in Conspiracy with Joyce Elbery that Michael Elbery was the only owner not to sign the "Picariello Purchase and Sale Agreement." As well, Michael Elbery also filed a Third Party Claim against Ned Mahoney for fraud because Mahoney has joined the above 4 Co-Conspirators to, now, fraudulently claim (lie) Michael Elbery was the only owner not to sign the "Picariello Purchase and Sale Agreement"

The other 4 owners, Joyce, Kathleen, David and Robert have been assured by legal counsel that they will not share in any of the cost of the "Petition for Partition", rather they have been guaranteed that Michael Elbery will be held liable for all costs and expenses of the "Petition for Partition".

Plaintiff Admits No Insurance on the House – a Reason for not signing P&S

Michael Elbery did not sign the "Picariello Purchase and Sale Agreement" because paragraph #13 required that the Elbery Estate house at 168 Fairfield St., Needham, Mass. have numerous types of insurance coverage on it. Michael Elbery found that there was no insurance on the house and that caused him to be legally prohibited from signing the "Picariello Purchase and Sale Agreement". Michael Elbery sent emails to all the owners of the real estate at 168 Fairfield St., Needham, Mass and their attorneys and the buyers attorney, Cecala, informing them that there is no insurance on the real estate; none of the owners cared nor did anybody take any action to remedy the insurance problem that caused Joyce Elbery’s and Robert Elbery’s signing of that Picariello Purchase and Sale Agreement" to be Breach of Contract.

The plaintiff admits per page 2 (3rd paragraph) of her attorney’s "Joint Case Management Conference Statement" emailed to Michael Elbery on 12-4-17 that there is no insurance on the subject real estate.

 

Michael Elbery’s Right to Self-Representation no reflected in "P&S"

Also, Michael Elbery did not sign the "Picariello Purchase and Sale Agreement" because it did not reflect that Michael Elbery represented himself as is guaranteed by Sixth Amendment of the Bill of Rights of the U.S. Constitution.

Because Joyce Elbery is void of any knowledge of even the most basic law, it is not surprising that on page 2 of her attorney’s "Joint Case Management Conference Statement" she states, in her "Position of the Plaintiff, Joyce Elbery" section, that Michael Elbery’s right to self- representation is frivolous. Michael Elbery fired Attorney Charles Long, who initially represented all 5 owners regarding the Picariello Sale, immediately after Long tried to trick Michael Elbery and the other 4 owners into signing Attorney James A. McLaughlin’s "Assent form", so McLaughlin could be issued a "License to Sell Real Estate" for the real estate at 168 Fairfield St., Needham, Mass.. Yes, Long put his trick in writing claiming the "Land Court still insists that a license to sell be allowed."

 

Michael Elbery led effort to sell real estate

Michael Elbery has been the leader in an effort to sell the real estate at 168 Fairfield St., Needham, Mass., but has been systematically defeated by David Elbery and his Attorney, Billy Crow, who has always sought a "Petition for Partition" in order to maximize his fees. Kathleen Elbery has never wanted to sell the house at 168 Fairfield St., Needham, Mass. because she likes living there and the price is right. Joyce Elbery sided with Michael Elbery and his efforts to sell the house for over two years, until she found it more profitable to work against him. Robert Elbery flipped sides to Michael Elbery in 2017 stating that he "was kept in the dark by David Elbery and his Crowe attorney," only to flip again to another side.

Michael Elbery still wants to sell the house – Why wouldn’t he?

Michael Elbery has, per his answer and defenses to the plaintiff’s complaint, stated that he would happily sign all documents necessary to sell the real estate at 168 Fairfield st., Needham, Mass., once there is a valid "Certificate of Title" at the Norfolk County Registry of Deeds for the real estate at 168 Fairfield St., Needham, Mass. in the names of the 5 owners and with Michael Elbery’s name is spelt correctly on the "Certificate of Title" and Attorney James A. McLaughlin is not required to get his cut of the sales proceeds from the sale of that real estate. As of this writing, 12-6-17, the Registry still shows an "Order for New Certificate of Title" and the Mass. Land Court’s "Order for New Certificate of Title" with Michael Elbery’s name spelt wrong and then crossed-out in black ink; there is still no Certificate of Title at the Norfolk County Registry of Deeds’ public records in the name of the 5 owners of the real estate at 168 Fairfield St., Needham, Mass.

LCP-Petition & still no "Certificate of Title" in Michael Elbery’s name!

Contrary to the plaintiff’s attorney’s "Joint Case Management Conference Statement," p. 2 , second paragraph, Attorney James A. McLaughlin did not execute a "Deed of Distribution" and an "LCP-2 Petition" on May 11, 2017, but rather filed those two documents with the Mass. Land Court on June 28, 2107, See Exhibit B, although Michael Elbery refused to sign those documents because McLaughlin did not represent Michael Elbery. Michael Elbery told McLaughlin to stop any such action needed to transfer the "Certificate of Title" to his name and the other 4 heirs because Michael Elbery represented himself and would do it himself. Michael Elbery instructed McLaughlin that he, McLaughlin, had absolutely no Jurisdiction or Authority over the real estate at 168 Fairfield St., Needham, Mass., but was merely the second and needless Norfolk County Probate Court appointed Personal Representative of the Probated part of the Estate of June Elbery. McLaughlin ignored Michael Elbery’s orders and submitted his "LCP-2 Petition" without Michael Elbery signing it and deliberately caused the Mass. Land Court to spell Michael Elbery’s name wrong on the "Order for New Certificate of Title," so that Michael Elbery was not an owner of the real estate at 168 Fairfield St., Needham, Mass. and could not receive any sales proceeds from the sale of that real estate. As of the date of service by Hampden County Sheriff on 11-13-17 there still is no "Certificate of Title" for that real estate at the Norfolk County Registry of Deeds in the name of the 5 owners. Michael Elbery received certification from the Norfolk Registry of Deeds that there is no "Certificate of Title" in his name or in Joyce Elbery, David Elbery, Kathleen Elbery or Robert Elbery’s name.

 

 

Plaintiff’s Opinion is that "Eastern Mass." has different laws

Per page 2 of the Plaintiff’s Attorney’s "Joint Case Management Conference Statement" under the "Position of the Plaintiff, Joyce Elbery", the plaintiff opines that "Eastern Mass." has different laws than the rest of Massachusetts. Specifically, the plaintiff states, "Michael Elbery demanded that one fifth of the sale proceeds be tendered to him at the closing by the buyer by bank check, obviously unaware of the usual conveyancing practice in Eastern Mass."

Michael Elbery had a right to his 1/5 proceeds of the $750,000.00 Picariello Sales proceeds produced to him, instead of it being turned over to Attorney Charles Long who did not represent Michael Elbery. Michael Elbery has done many real estate transfers, purchases and sales, and never used an attorney of the bar (self-representation only) and always has received checks directly from the buyer and vice versa. It is still that way in this here U.S.A., the law does not mandate the citizenry to pay an attorney of the Mass. Bar to buy or sell anything, including real estate.

LIST OF RELATED CASES

2. There is a related case in the Norfolk County Probate Court, Estate of June Elbery Docket No. 151491-EA. This is the Probate Part of the Estate of June Elbery that has needlessly been allowed to remain open for almost 3 years, although there has been nothing left to be done (liquidated) on the Probated end of the Estate, since March of 2016, except distribute $60,000.00 in cash to the 5 heirs of June Elbery. Attorney James A. McLaughlin is the second, and needless, Personal Representative of the Estate of June Elbery appointed by the Norfolk County Probate Court. McLaughlin was appointed as second Personal Representative on May 31, 2016, and had one item of business to conduct and that was to distribute the remaining $60,000.00 to the 5 heirs of June Elbery which he refuses to do, but instead McLaughlin has stolen, so far, $15,000.00 from the Estate of June Elbery and her 5 heirs while claiming legal fees for his illegal involvement in the Real Estate left by June Elbery. McLaughlin’s appointment as Personal Representative was long after the 1-year creditor protection period expired due to June Elbery dying on March 26, 2015. As Personal Representative of the Probated Estate of June Elbery, Attorney James A. McLaughlin never had any Jurisdiction or Authority over the Estate Real Estate at 168 Fairfield St., Needham, Mass.

DISCOVERY PLAN

3. The Discovery Period should be completed in six months as indicated on the Tracking Schedule already assigned for this case on page two of the "Notice of Judge and Track Assignment" as per Exhibit A.

Michael Elbery, in order to present his case, needs Documentary Evidence that must be obtained from third party independent sources which will probably take months and require Court Orders. Further, Defendant, Michael Elbery, plans to request various types of discovery from the defendant in Counter Claim, the Defendants in Cross-Claim and the Third Party Defendants, which will take at least six moths to complete.

Also note that defendant, Michael Elbery, has made a Third Party Claim against new defendant, Ned Mahoney, which requires time for Mahoney to be served. The assigned tracking for this case allows 90 days for service. That 90-day period for service already assigned to this case will end about February 1, 2018. Followed by 180 days for discovery as already assigned for this case.

Michael Elbery is allowed 90 days to complete service on Third Party Defendant, Ned Mahoney; that 90-day period to complete Mahoney service ends on March 1, 2017.

PROPOSED SCHEDULE FOR FILING OF MOTIONS

4. Schedule for motions is acceptable per page two of "Notice of Judge and Assignment", which is Exhibit A, attached.

 

ALTERNATIVE DISPUTE RESOLUTION

5. Mediation is always a possibility to resolve issues or the entire case, however, acceptance depends on whether it is binding and the independence of the arbitrator.

IDENTIFICATION OF ADDITIONAL PARTIES

6. Identification of other parties who should be part of the case. Defendant, Michael Elbery has named realtor, Ned Mahoney, as a Third Party Defendant via a Third Party Claim already filed in this above docket action on 11-30-17. Mahoney has not yet been served and will not have answered the Third Party Claim against him at the December 18, 2017 "Case Management Conference" . The plaintiff, via her "Joint Case Management Conference Statement," and accompanying exhibits indicates that Attorney Charles A. Long and Attorney James A. McLaughlin have indispensable evidence required for this case and should be witnesses needed to complete the truth-finding process.

ADDITIONAL NOTICES REQUIRED

7. Notices will be publicized in the ever popular web site www. Massinjustice.org, including all Scandal and Injustice and Illegalities.

 

 

 

ADDITIONAL MATTERS TO BE DISCLOSED

Oil Spill and Lead Paint at 168 Fairfield St., Needham, Mass.

8. Other – The litigants and attorneys are affected by the Oil contamination and Lead Paint issues at the subject real estate at 168 Fairfield St., Needham, Mass.

Mass. Land Court does have subject matter Jurisdiction over disputes involving real property

Without citing law, the Plaintiff contends that Michael Elbery’s Counterclaim, Cross-claim, and Third Party Claim lack subject matter jurisdiction of the Mass. Land Court. There is a dispute amongst the Plaintiff and defendants, including Michael Elbery, as to who is responsible for the cost of the Plaintiff’s Petition of Partition. The plaintiff and 3 of the defendants and Third Party Defendant, Ned Mahoney, are, now, fraudulently claiming that Michael Elbery was the only owner of the real estate at 168 Fairfield St., Needham, Mass. not to sign the "Picariello Purchase and Sale Agreement" and that causes him to be liable for all the costs of the "Petition for Partition". However, it is not true that Michael Elbery was the only owner not to sign that "Picariello Purchase and Sale Agreement" and Michael Elbery has the right to settle this dispute concerning the real estate at 168 Fairfield St., Needham, Mass. via his counterclaim, cross-claim, and Third Party Claim.

The Massachusetts Land Court has subject matter jurisdiction over disputes involving real estate. In this case, Michael Elbery, via his counterclaim, Cross-claim, and Third Party Claim, disputes the fraud and conspiracy to commit fraud, as above, regarding the real estate he is owner of at 168 Fairfield St., Needham, Mass.

The plaintiff looks to the Court to take away Michael Elbery’s ownership rights by declaring, without Due Process of Law, that Michael Elbery is liable for the cost of the Plaintiff’s "Petition for Partition" without any of truth finding functions necessary to determine the truth via the adversarial process of a trial.

Michael Elbery has a Due Process Right in Property as guaranteed under 14th Amendment of the U.S. Constitution’s Bill of Rights regarding his ownership of the real estate at 168 Fairfield St., Needham, Mass. and his counterclaims, Cross-claims and Third Party Claim cannot be dismissed by the Court without Violating his Constitutional Rights.

See defendant, Michael Elbery’s, answer and counter claim and cross-claim and Third Party Claims that show the Plaintiff, Joyce Elbery in conspiracy with Ned Mahoney, David Elbery, Kathleen Elbery and Robert Elbery are lying, so to cause Michael Elbery to be liable for all Costs and Expenses of this "Petition for Partition" and they are as a result guilty of Fraud. This defendant, Michael Elbery, expects new material evidentiary issues and matters of fact and law to materialize via discovery.

Michael Elbery, 12-4-17