Accordingly, the judgment under rule 54(b) is to be vacated so that within thirty days after the receipt in the Superior Court of the rescript from this court (a time limit which should be respected except for substantial cause shown), Shaw may seek leave to file an amended or substitute complaint. See Nader v. Citron, 372 Mass. 96, 104 (1977); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 100-101 (1979); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 48-56 (1980). Compare Bass River Lobsters, Inc. v. Smith, 7 Mass. App. Ct. 197, 198-202 (1979).

Nader v. Citron, 372 Mass. 96, 98 (1977). Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 48 (1980). In determining whether the husband's complaint states a valid claim for modification of the divorce judgment under G.L.c. 208, § 37, we must consider whether the facts as alleged indicate a material change of circumstances in the needs or resources of the parties since the entry of the earlier judgment.

The plaintiff contends that the trial judge properly set aside as fraudulent conveyances Leiser's foreclosure on the Kaplans' home and her subsequent conveyance of the property into a spendthrift trust for the Kaplans' benefit. The plaintiff argues that Leiser's foreclosure was a "collusive foreclosure" (see Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 50), because Leiser had the actual intent to protect the property from the Kaplans' creditors and that the foreclosure thus violated G.L.c. 109A, § 7. The plaintiff further argues that Leiser's foreclosure rendered the Kaplans insolvent and thus violated G.L.c. 109A, § 4. The defendant, Leiser, contends that the foreclosure and subsequent conveyance in trust were not fraudulent conveyances because those transactions placed no available asset of the Kaplans beyond the reach of their creditors.

In reviewing the disposition of a Rule 12 (b) (6) motion, the complaint must be read in the light most favorable to the plaintiff, and all facts alleged therein must be accepted as true. Whitinsville Plaza, Inc. v. Kotsas, 378 Mass. 85 (1979); Jones v. Brockton Public Markets, Inc., 369 Mass. 387 (1976); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47 (1980). While civil rights complaints are to be liberally construed, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Anderson v. Sixth Judicial Dist. Co., 521 F.2d 420 (8th Cir. 1975); Greene v. Johns Hopkins Univ., 469 F. Supp. 187, 193 (D. Md. 1979), more than mere conclusory allegations have been required in federal forum to defeat a Rule 12 (b) (6) challenge.

Therefore, cases cited by HFH indicating that the secured party may be liable to junior or unsecured creditors are inapposite. See Liberty National Bank v. Acme Tool, 540 F.2d 1375 (10th Cir. 1976); and Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 405 N.E.2d 985 (1980). Those cases involve liquidation conducted by the secured party itself.

In support of his argument that under section 9.504(d) a private foreclosure sale may be nullified because of the purchaser's lack of good faith alone, Thomas cites two cases: In re Four Star Music Co., 2 B.R. 454, 29 U.C.C.Rep. 343 (Bkrtcy.M.D.Tenn. 1979); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. 47, 405 N.E.2d 985, 29 U.C.C.Rep. 292 (1980). Neither one supports Thomas' proposition.

The debtor has the right under section 9-507(1) to recover for "any loss caused by a failure to comply" with section 9-504's requirement that the disposition of the collateral be made in a commercially reasonable manner. ( United States v. Conrad Publishing Co. (8th Cir. 1978), 589 F.2d 949, 955; Sheffield Progressive, Inc. v. Kingston Tool Co. (Mass. Ct. App. 1980), 405 N.E.2d 985, 988.) The debtor may recover monetary damages.

Because the transaction involved a foreclosure by BayBank on Continental's assets, the plaintiffs would also have to show that Continental colluded with BayBank in effecting the transfer. See Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47, 49, 405 N.E.2d 985 (1980). A transaction could fit within this category even if it was technically insolvent before the transaction if the sale was without fair consideration and had the effect of further diminishing the assets available to creditors.

In the instant case, of course, there is no suggestion that Peters was not in default under its loan restructuring agreement with Fleet. Finally, Peters relies on Sheffield Progressive, Inc. v. Kingston Tool Co., 405 N.E.2d 985 (Mass.App.Ct. 1980), which upheld a denial of a motion to dismiss a "collusive foreclosure" claim that collateral worth over $3 million had been sold in a private foreclosure sale for only $879,159, the full amount of the secured debt. Id. at 987.

However, it has not been determined when the plaintiff's daughter was allegedly advised that an appeal would be futile. It is well established that a motion to dismiss for failure to state a claim should not be allowed unless there is no set of facts which will entitle plaintiff to relief. Sheffield Progressive, Inc. v. Kingston Tool Co., Inc., 10 Mass. App. Ct. 47, 48 (1980). If plaintiff's daughter was improperly advised that an appeal would be futile on or after April 14, 1997, then plaintiff filed her appeal within 120 days of the alleged improper conduct, and the hearing officer improperly dismissed her appeal for lack of timely filing. Therefore, because such possibility has not been negated, defendants' motion to dismiss must fail, and the matter must be remanded to the hearing officer to determine whether the DTA engaged in improper conduct, and, if so, whether this occurred within 120 days of the time she filed her appeal.