Opinion
Civil Action CV-2019-434
10-20-2023
BRIDGEPOINT CAPITAL, LLC, Plaintiff, v. DANA CARVELL, VACUUM VILLAGE, LLC, JOHN CIMINO, and G. CHARLES SHUMWAY, II, Defendants.
Plaintiff-Scott Dolan. Esq. Defendant Cimino-Pro Se Defendant Carvell-never appeared Defendant Vacuum Village-never appeared Def G Charles Shumway-Pro Se although is attorney
Plaintiff-Scott Dolan. Esq.
Defendant Cimino-Pro Se
Defendant Carvell-never appeared
Defendant Vacuum Village-never appeared
Def G Charles Shumway-Pro Se although is attorney
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT JOHN CIMINO
MARYGAY KENNEDY, JUSTICE
Before the Court is Plaintiff Bridgepoint Capital, LLC's ("Bridgepoint") Motion for Summary Judgment Against Defendant John Cimino ("Mr. Cimino"). For the following reasons, the Court denies the motion.
I. Facts
Mr. Cimino's response to Bridgepoint's statement of material facts does not comply with Maine Rule of Civil Procedure 56. In particular, Mr. Cimino failed to respond to each statement with either "admitted," "denied," or "qualified." He also failed to cite to record evidence to support any portion of his response. Accordingly, all of Bridgepoint's properly supported statements of material fact are deemed admitted and none of the additional facts Mr. Cimino attempted to introduce are part of the record. The following facts are, therefore, drawn solely from Bridgepoint's statement of material facts.
Bridgepoint, a Maine limited liability company with a place of business in Gorham, Cumberland County, Maine, has two members, Anthony Fernandez ("Mr. Fernandez") and Steven Trask ("Mr. Trask"). (Pl.'s Supp'g S.M.F. 11.) Defendant Dana Carvell II ("Mr. Carvell") is the former owner of real property at 38 Garfield Street, Saco, York County, Maine ("the Property"). (Pl.'s Supp'g S.M.F. ¶ 2.) Defendant Vacuum Village, LLC ("Vacuum Village") is a Maine limited liability company with a place of business in South Berwick, York County, Maine. (Pl.'s Supp'g S.M.F. ¶ 3.) Vacuum Village is solely owned by Mr. Carvell. (Pl.'s Supp'g S.M.F. ¶ 4.) Mr. Cimino is a resident and owner of 93 Longwood Drive, Portland, Cumberland County, Maine. (Pl.'s Supp'g S.M.F. ¶ 5.)
In late fall of 2018, Bridgepoint and Mr. Carvell contracted for Bridgepoint to lend Vacuum Village $140,000.00, in exchange for which Mr. Carvell and / or Vacuum Village I would repay the loan plus interest, Mr. Carvell would convey the Property to Vacuum Village, Vacuum Village would execute a promissory note ("the Note") and a mortgage ("the Mortgage") on the Property in favor of Bridgepoint, and Mr. Carvell would execute a personal guaranty. (Pl.'s Supp'g S.M.F. ¶ 7.) The parties' agreement was intended to provide funds to Vacuum Village so that it could improve the Property and sell it to a [ third party. (Pl.'s Supp'g S.M.F. ¶ 8.)
On or about December 13, 2018, a closing on the transaction among Bridgepoint, Vacuum Village, and Mr. Carvell was conducted by a closing agent for Defendant New England Title, LLC ("New England Title"). (Pl.'s Supp'g S.M.F. ¶ 9.) New England Title failed to obtain a deed from Mr. Carvell to Vacuum Village or failed to record that deed. (Pl.'s Supp'g S.M.F. ¶ 10.)
Mr. Cimino and Mr. Carvell were dose friends in high school and have remained friends ever since. (Pl.'s Supp'g S.M.F. ¶¶ 51-55.) Mr. Cimino assisted in improving the Property by arranging for contractors to perform work at the Property, including an il excavation company that installed a new septic system. (Pl.'s Supp'g S.M.F. ¶ 68.) The permit application for the septic system lists Mr. Carvell's address as c/o John Cimino at 93 Longwood Drive, Portland. (Pl.'s Supp'g S.M.F. ¶ 70.)
Mr. Cimino, not Mr, Carvell, initially contacted a real estate agent regarding selling the Property, (Pl's Supp'g S.M.F. ¶ 58.) Real estate broker Sherrie Berner testified that Mr. Cimino was more involved in the details of the sale of the Property than her client, Mr. Carvell. (Pl's Supp'g S.M.F. ¶¶ 59-63.)
In August of 2019, Mr. Carvell told Mr. Fernandez that there was a buyer for the Property and that he anticipated a closing to be held soon. (Pl's Supp'g S.M.F. ¶ 11.) Mr. Fernandez later learned that the Property had never been transferred from Mr. Carvell to Vacuum Village as planned and that the anticipated closing was delayed due to the title issues. (Pl's Supp'g S.M.F. ¶¶ 14-15.)
On October 11, 2019, a closing was conducted, and the Property was sold for approximately $334,000.00, of which $285,793.34 was paid to Mr, Carvell. (Pl.'s Supp'g S.M.F. ¶¶ 22-24.) Mr. Carvell opened a new account at Bangor Savings Bank, where he deposited the proceeds that he received from tire closing. (Pl's Supp'g S.M.F. ¶ 34.) Mr. Carvell listed his address as Mr. Cimino's home address when he opened the account. (Pl's Supp'g S.M.F. ¶ 35.) Shortly thereafter, Mr. Carvell purchased several treasurer's checks with the funds in the Bangor Savings Bank account, two of which were written to Mr. Cimino for $157,000.00 and $21,000.00, respectively, (Pl's Supp'g S.M.F. ¶¶ 36-37.) Mr, Cimino knew that in April 2023, Mr. Carvell was "flat broke." (Pl.'s Supp'g S.M.F. ¶ 50.)
Mr. Trask and Mr. Fernandez were unaware that the closing had occurred until a couple weeks later, (Pl's Supp'g S.M.F. ¶¶ 25-27.) On October 25,2019, Bridgepoint made a written demand on Mr. Carvell and Vacuum Village for payment under the Note and Guaranty. (Pl.'s Supp'g S.M.F. ¶ 28.) Those demands were rejected. (Pl's Supp'g S.M.F, ¶29.)
When Bridgepoint propounded a document production request to Mr. Cimino asking for any documents relating to money owed to Mr. Cimino or his company, Cimino Construction Company, Mr. Cimino produced only an estimate for the septic installation | for $12,850.00. (Pl.'s Supp'g S.M.F. ¶¶ 72-74.) The settlement statement prepared for the closing reflects that the costs for the septic installation, $12,300.00, were paid out of the sale proceeds. (Pl.'s Supp'g S.M.P. ¶ 71.)
At the commencement of this litigation, trustee summonses served on all known bank accounts associated with Mr. Carvell and Vacuum Village revealed that all of those bank accounts were closed or had depleted balances. (Pl.'s Supp'g S.M.F. ¶¶ 40-41.)
II. Summary Judgment Standard
Summary judgment is appropriate "if the summary judgment record, taken in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact in dispute and the moving party would be entitled to a judgment as a matter of law at trial," Chartier v. Farm Fam, Life Ins. Co., 2015 ME 29, ¶ 6,113 A.3d 234; see M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome of the case, and there is a 'genuine issue' when there is sufficient evidence for a fact-finder to choose between competing versions of the fact." Toto v. Knowles, 2021 ME 51, ¶ 8, 261 A.3d 233 (quoting Stewart-Dore v. Webber Hosp, Ass'n, 2011 ME 26, ¶ 8, 13 A,3d 773). When the plaintiff is the moving party, "the plaintiff has the burden to demonstrate that each element of its claim is established without dispute as to material fact within the summary judgment record." Cote Corp. v. Kelley Earthworks, Inc., 2014 ME 93, ¶ 8, 97 A.3d 127 (quoting Cach, LLC v. Kulas, 2011 ME 70, ¶ 8,21 A.3d 1015).
The summary judgment record consists only of the parties' properly supported statements of material fact and the portions of the record referenced therein. See Dorsey v. N. Light Health, 2022 ME 62, ¶ 10, 288 A.3d 386. To controvert a party's statement of fact, an opposing party must "support each denial or qualification by a record citation." M.R. Civ. P. 56(h)(2).
III. Discussion
Bridgepoint moves for summary judgment on the two counts asserted against Defendant Cimino: Count XVI for fraudulent transfer and Count XVII for conversion.
A. Count XVI: Fraudulent Transfer
Bridgepoint claims that the transfer from Mr. Carvell to Mr. Cimino was a fraudulent transfer under the Uniform Fraudulent Transfer Act, 14 M.R.S. §§ 3571-3582. Specifically, Bridgepoint claims the transfer violated 14 M.R.S. § 3576(2), which provides:
A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.
"Insider" is defined as follows;
"Insider" includes; A. If the debtor is an individual:
(1) A relative of the debtor or of a general partner of the debtor;
(2) A corporation of which the debtor is a director, officer or person in control;
B. If the debtor is a corporation:
(1) A director of the debtor;
(2) An officer of the debtor;
(3) A person in control of the debtor;
. . .
(6) A relative of a general partner, director, officer or person in control of the debtor;
. . .
D. An affiliate or an insider of an affiliate as if the affiliate were the debtor; and
E. A managing agent of the debtor.14 M.R.S. § 3572(7).
The statutory definition is not exclusive. Huber v. Williams, 2005 ME 40, ¶ 27 n.5, 869 A.2d 737. Thus, Commissioners' Comment 7 to § 1 of the Uniform Fraudulent Transfer Act explains that "a court may find a person living with an individual for an extended time in the same household or as a permanent companion to have the kind of close relationship intended to be covered by the term 'insider.'"
Although whether a person is an insider involves factual determinations, insider status is ultimately a question of law that can be resolved at the summary judgment stage when the underlying facts are undisputed. See In re Emerson, 235 B.R. 702, 706 (Bankr. D.N.H. 1999). Bridgepoint argues that Mr. Cimino should be considered an insider because Mr. Cimino was involved in the renovations to the Property and in the closing, and because he has been acquainted with Mr, Carvell since their childhood.
Bridgepoint has not demonstrated the type of business, close personal, or familial relationship that would qualify someone as an insider. The facts on summary judgment do not establish that Mr, Carvell and Mr. Cimino were living together, that Mr. Cimino was Mr. Carvell's business partner, or even that the two were close friends at the time of the transfer. Bridgepoint's arguments about the nature of Mr, Carvell and Mr. Cimino's relationship are highly speculative. Without more, the Court cannot conclude that Mr. Cimino is an insider as a matter of law. Accordingly, summary judgment is denied on Count XVI.
B. Count XVII: Conversion
To establish a claim for conversion, a party must show "(1) a property interest in the goods; (2) the right to their possession at tire time of the alleged conversion; and (3) when the holder has acquired possession rightfully, a demand by the person entitled to possession and a refusal by the holder to surrender," Mitchell v. Allstate Ins. Co., 2011 ME 133, ¶ 15,36 A.3d 876 (quoting Bradford v. Dumond, 675 A.2d 957, 962 (Me, 1996)). "'The converter need not intend any conscious wrongdoing,' but need only act with 'an intent s j (j to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff's rights.'" Mitchell, 2011 ME 133, ¶ 15, 36 A.3d 876 (quoting Ocean Nat'l Bank of Kennebunk v. Diment, 462 A.2d 35,39 (Me. 1983)).
Bridgepoint has not established that it had a right to possession at the time of the transfer of funds to Mr. Cimino. As Bridgepoint admits, the Mortgage recorded and referred to in the Note was defective because the Property had not been conveyed to Vacuum Village as planned. There is no evidence in the record that a corrected, valid mortgage deed was ever executed or recorded. The record establishes that Bridgepoint had a right to repayment on tire Note, but it does not establish that Bridgepoint had a right to the proceeds from the sale of the Property, specifically.
IV. Conclusion
For the foregoing reasons, Bridgepoint's Motion for Summary Judgment is denied.
The entry is:
Plaintiff Bridgepoint Capital, LLC's ("Bridgepoint") Motion for Summary Judgment Against Defendant John Cimino is DENIED.
The Clerk is directed to incorporate this Order into the docket by reference j pursuant to Maine Rule of Civil Procedure 79(a).