Petition for Writ of Certiorari — Porter v. BankNorth, N. A.

, Supreme Court, U.S.

{;\ FILED

ot

031090 JAN 27 2004

No. 03-

OFFICE OF THe CLitix

IN THE

Supreme Court of the United States

DAVID S. PORTER and CAROLA. PORTER,

Petitioners,

v.

BANKNORTH, N.A., F.S.B. DEVELOPMENT CORP.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS APPEALS COURT

PETITION FOR A WRIT OF CERTIORARI

Davip S. Porter, Pro Se

CaroLA. Porter. Pro Se

995 Washington Street

Dedham, MA 02026

(781) 251-9992

185411 ce

COUNSEL PRESS

(800) 274-3321 + ($00) 359-6859

QUESTIONS PRESENTED

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution prohibits a state, acting

through its judiciary, from “depriv[ing] a person of all

existing remedies for the enforcement of a right, which the

State has no power to destroy, unless [he] is. . . afforded...

some real opportunity to protect it.” Brinkerhoff-Farris Co.

v. Hill, 281 US 673, 680 (1930). This case involves a series

of judicial actions and inactions, many made without

explanation and all in plain conflict with controlling

precedent and applicable rules of practice and procedure,

which together deprived Petitioners of any real opportunity

to enforce their rights under federal credit and banking and

state consumer protection law.

1. Whether the state court’s procedural rulings

in this litigation were so contrary to

controlling precedent that they deprived

petitioners of their rights under the federal

Equal Credit Opportunity Act and Bank

Holding Company Act?

2. Whether the state court’s repeated deprivation

of the Porters’ rights to present their case and

be heard in support of their claims was so

fundamentally unfair, that it amounted to a

denial of due process, and resulted in a

manifestly unjust and unconscionable

judgment?

il

TABLE OF CONTENTS

Page

Chepetanoris PROMCIIRG ow oi kc ce hese ns caeees 1

aT CE |. 6k ea Ge eee a ll

Table of Cited Aisthnoritses . ... 5. co eee ccc cuses 1V

TURRS OT ADORTES ....... ic cess de sswiwenne Vill

Se rrr ere kc” 1

Statement Of JurisGichon ..... kes ck ve ee inns l

UNUNOE PUVGTVNG © ook ck cio vn xws} deo ea ee eee l

Statement OF He Case . ww. kk ei dive vaseuenas's ]

A. Proceedings In The Superior Court of

Peers ’

B. Proceedings In The Appeals Court Of

rr re ree 10

C. Proceedings In The Supreme Judicial Court of

eee ee eye eee 11

Reasons for Granting the Petition .............. 11

A. The Porters Were Deprived Of Their Rights |

Under The Federal Equal Credit Opportunity

Act And Bank Holding Company Act By The

State Court’s Novel Application Of Its

Procedural RMGG6. os 605 is besa eee 1]

B. The

ill

Contents

This Court has the power to determine

whether a state court has improperly by-

passed a federal right under a form of

re

The refusal by the Massachusetts court

to hear the Porters’ federal claims was

outcome determinative. .............

The Porters’ federal rights were thwarted

by the Massachusetts court’s application

of local procedural rules with pointless

a

State Court’s Repeated Deprivation Of

The Porters’ Rights To Present Their Case And

Be Heard In Support Of Their Claims Was So

Fundamentally Unfair That It Amounted To A

Denial Of Due Process And Resulted In A

Manifestly Unjust And Unconscionable

EO ae a

Conclusion

as en SS ee ee See eee eS eB eee eakraevw es oe ee ©

Pa ge

1]

12

13

19

25

iv

TABLE OF CITED AUTHORITIES

Page -

Cases:

Anderson vy. United Finance, 666 F.2d 1274 (9" Cir.

SE Sx ob 05a eas s Cee eae eae ee eae 12

Boddie v. Connecticut, 401 U.S. 371 (1971) ...... 25, 26

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930)

EET TCL TT See OTT TT ee rer ee 1, 19, 20, 24

Castelluci v. United States Fidel. & Guar. Co.,

Fie WU POU TTD 5 605 Fi 5 as Co eee u evens 14,15

Chicago B. Q. Ry. v. Drainage Comm'rs, 200 U.S.

gk | errr re ee rer rr a eee ire 12, 13

City of Medford v. Corbett, 302 Mass. 573 (1939) ... 18

Commonwealth vy. White, 429 Mass. 258 (1999) ... 18

Dalis v. Buyer Advertising, Inc., 418 Mass. 220

Se ae ee ee Preis Pe ae kara mca ere “be 24

Dinwiddie v. Brown, 230 F.2d 465 (5" Cir.),

cert. demind, 554 U3. 971 (T9SG) occ vs cens 21

Ellis v. Dixon, 349 U.S. 438 (1955). .........046. 1]

Foman vy. Davis, 371 U.S. 178 (1962) ........... 14, 15

Goulet v. Whittin Mach. Works, Inc., 399 Mass. 547

C2; eae se ig eae Sena 14, 15, 16, 17

Guardianship of Hurley, 394 Mass. 554 (1985) .... 14-16

Cited Authorities

Hamed v. Fadili, 408 Mass. 100 (1990) ..........

Hayes v. New England Millwork Dist., Inc., 602 F.2d

aie So ee enpinnes Mabini e he Rip anet

Howlett v. Rose, 496 U.S. 356 (1990) ...........

Lawrence Savings Bank v. Garabedian, 49 Mass. App.

Ch. S0e Ce 2K 8060 es ree eee ee

Malave v. Carney Hosp., 170 F.3d 217 (1* Cir.

999) Sens Sg re ee ee er See eee oes

Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass.

Pa: Ge eh be ee oer eae

Mathis v. Massachusetts Electric Co., 409 Mass. 256

bg) SUC See ee eer eT Teer er ek

Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987) ...

N.A.A.C.P. v. Alabama ex. rel. Flowers, 377 U.S. 288

COE o0.c4 ch akReae eens eee aeees 14,17,

Precious v. O’Rourke, 270 Mass. 305 (1930) .....

Quimby v. Zoning Bd of App. of Arlington, 19 Mass.

Mae. Ch. CR Ee: be 05 bh Sees

Salem Realty Co. v. Matera, 10 Mass. App. Ct. 571

i i ne rae er eee rene wae ene

Schrottman v. Barnicle, 386 Mass. R. 627 (1982) ...

12

18

18

25

14

24

18, 19

18

19

24, 25

Vi

Cited Authorities

Page

Shammas v. New England Merchants Nat’l Bank,

1990 WL 354452 (D. Mass. 1990) ............ 12

Slaney v. Westwood Auto, Inc., 366 Mass. 688

es Ghee Cay Gea or ele ae Sagat eee 24

Street v. New York, 394 U.S. 576 (1969) ......... 11-12

United States v. Consumer Fin. Corp., 816 F.2d 487

ST EE ica soe eee eee 12

Vendella R. Co. v. State of Indiana ex. rel. City of South

Bee, 20) OB. FOP TFG) nw ok vs ec avavsacs%s 17

Walsh v. O'Neil, 350 Mass. 586 (1966) .......... 19

Young v. Ragen, 337 U.S. 235 (1949) ........... 15,17

United States Constitution:

Fourteenth Amendment ..................0.02- 1, 19, 22

Statutes:

12 U.S.C. §§ 1972(1)(C), (D) et seq. (“BHCA”) .. passim

15 U.S.C. $§ 1691, et seg. (ECOQA”) ........... passim

Li oe Ey en 1

Massachusetts Consumer Protection Act,

i SO” A Ge a eer re passim

Cited Authorities

Page

Rules:

rr ae, Be OED nc ec we kv uo eens en saeeuwaa 14

Pe Te CA PUD Sick bs ae ots cesses ... 10,24, 25

ee eee OE eo kc ek ek ene eae eee eee 20

Se | rn en wri a ares na ara 20

Other huthedMies:

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ik Re ser errr rere eer 1, 23

vei S HE eo ie fee rere ae 1,8

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TABLE OF APPENDICES

Appendix A — Memorandum And Order Pursuant

To Rule 1:28 Of The Commonwealth Of

Massachusetts Appeals Court Entered September

OR or ce Wea ces eas ene Derek

Appendix B — Corrected Final Judgment Of The

Commonwealth Of Massachusetts Dated April 28,

SR Kies nag cde ee RA Re eas

Appendix C — Memorandum Of Decision And Order

On Plaintiff’s Motion For Partial Summary

Judgment And On Defendant’s Motion For Partial

Summary Judgment On Their Counterclaim Of The

Commonwealth Of Massachusetts Superior Court

RP FOES Bg ROE 6 oo 64a haa e hbo hs aos

Appendix D — Order Of The Supreme Judicial Court

For The Commonwealth Of Massachusetts Denying

F.A.R. Application Dated October 29, 2003 ....

Appendix E — Statutes And Regulations Involved ..

Page

la

6a

9a

I5a

l6a

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OPINIONS BELOW

The opinion of the Appeals Court of Massachusetts

(Pet. App. la) is also unreported. The opinion of the

Massachusetts Superior Court for the County of Middlesex

denying petitioners’ cross-motion for summary judgment on

claims under Federal credit statutes (Pet. App. 9a) is unreported.

The trial court issued a Corrected Judgment. (Pet. App. 6a).

STATEMENT OF JURISDICTION

The judgment of the Massachusetts Appeals Court was

entered on September 10, 2003. On October 29, 2003, the

Supreme Judicial Court of Massachusetts denied Petitioners’

Application For Further Appellate Review. (Pet. App. 15a).

This Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a).

STATUTES INVOLVED

This case involves the Equal Credit Opportunity Act

(“ECOA”), 15 U.S.C. §§ 1691, et seq., enabling regulation

(“Regulation B”), 12 C.F.R. §§ 202.1, et seg. (Pet. App. 17a-

21a), the Anti-Tying Provisions of the Bank Holding Company

Act (“BHCA”), 12 U.S.C. §§ 1972(1)(C), (D) et seq. (Pet. App.

16a), and 940 CMR § 3.16 (4).

STATEMENT OF THE CASE

This case involves a series of judicial actions and inactions,

many made without explanation and all in plain conflict with

controlling precedent and applicable rules of practice and

procedure, which together deprived Petitioners David S. Porter

ee en

Z

(“Mr. Porter’), Carol A. Porter (“Mrs. Porter’) (collectively

‘the Porters’’) of any real opportunity to establish violations by

the Respondents Bank North, N.A. (“Bank’’)' and its wholly-

owned subsidiary, F.S.B. Development Corp. (“FSBDC”’)

(collectively “the Bank’’) under federal credit and banking law,

which constitute per se violations of the Massachusetts

Consumer Protection Act, M.G.L. c.93A, §§ 9, 11.

Mr. Porter and the Bank were partners in PLLP, a real estate

development partnership formed to acquire and develop property

in Needham, Massachusetts (the “Project”’). The parties agreed

that Mr. Porter would manage the Project, and that funding for

the Project would be provided by the Bank and FSBDC.

The Bank selected Mr. Porter as its first joint venture partner

based upon his successful development record with the Bank.

~ The senior Bank officer responsible for dealing with Mr. Porter

was a longtime personal friend of the Porters and had

administered the Bank’s previous loans to Mr. Porter.

At the closing to acquire the Project property in October

1986, (a) Mr. Porter and FSBDC entered into a limited

partnership agreement, (b) Mr. and Mrs. Porter executed a

$275,000 note, secured by a mortgage on their home and

representing one half of the equity in PLLP, and (c) Mr. Porter,

both as General Partner and individually, executed a $2 million

note, secured by a mortgage on partnership property. Mr. Porter’s

liability under the $2 million note was limited by its terms to

50% of any deficiency. Mrs. Porter was not liable under the

$2 million note.

Shortly after the closing, the Bank told Mr. Porter that the

October 1986 loan documents, which it had prepared, contained

“technical deficiencies” that needed to be corrected. The Bank

1. BankNorth N.A. is the successor-in-interest to MetroWest Bank,

which was Framingham Savings Bank before it changed its name.

3

assured the Porters that the new credit documents would not

change the basis of the relationship between the Bank, FSBDC

and the Porters or increase the Porters’ financial obligations.

In March 1987, the Bank, as a condition for moving forward

with the Project, required Mr. Porter to sign new credit

documents. Mr. Porter, as General Partner of PLLP, signed a

$550,000 note payable to FSBDC (“$550K Note”) secured by

anew mortgage on the Partnership property (“S50K Mortgage’’).

The Bank also required both Mr. and Mrs. Porter to sign a

Guaranty that they later learned made them personally liable

under both the $2 million note in favor of the Bank and the

$550K note in favor of FSBDC. The Porters did so in reliance

on the Bank’s repeated assurances that the new credit documents

did not change the basis of the relationship between the Bank,

FSBDC and the Porters or increase the Porters’ financial

obligations.

Contrary to such representations and assurances, the March

1987 credit documents — copies of which the Bank withheld

from the Porters until after suit was commenced — made

numerous substantive changes to the October 1 agreements,

including:

(a) improperly converting FSBDC’s capital

contribution into partnership debt;

(b) allowing FSBDC to charge interest on its

capital contribution in violation of the

partnership agreement;

(c) conferring on FSBDC the nght to exercise as

a lender precisely the control over the

management of the Partnership that it expressly

gave up when it agreed to be limited partner;

(d) increasing Mr. Porter’s personal liability by

requiring that he guarantee the full $2 million

4

note even though the note by its terms limited

Mr. Porter’s liability to one-half of any

deficiency;

(e) rendering Mrs. Porter liable for the full amount

of $2 million note and half of the $550K Note,

despite the fact that she was a stranger to the

Partnership and received no consideration for

her guarantee. Mrs. Porter was required to sign

because she was married to Mr. Porter.

Mr. Porter, concerned about the softening real estate market

and increased costs of construction during 1987, decided to build

only one house at a time, not four as originally planned. In mid

1987, a senior Bank officer, also an officer of FSBDC, demanded

that Mr. Porter begin construction on three homes. Mr. Porter

warned that the Partnership did not have adequate funds to build

three homes at the same time. The Bank assured Mr. Porter that

it would timely provide any additional needed funds.

Construction funds ran low in early 1988, slowing the

Project and impairing the Partnership’s ability to pre-sell the

partially completed homes. The Bank was reluctant to loan

additional money to the Partnership until one home sold, despite

its previous promises and assurances. Throughout the life of

the Partnership, FSB and FSBDC each unilaterally paid

themselves interest on their loans from partnership funds over

_Mr. Porters’ objections.

In June 1988, the Bank finally refinanced the Project, paying

off the $2 million note and discharging the mortgage, and

replacing them with a new $2.9 million note and mortgage.

Without notice to the Porters,? FSBDC subordinated the $550K

Note and related mortgage on the Partnership property to the

new $2.9 million note and mortgage. By such unilateral and

2. Like the March 17 documents, the Bank failed to furnish a

copy of the subordination agreement to the Porters until well after suit

commenced.

5

undisclosed subordination, FSBDC (a) violated express terms

of the Guaranty; (b) breached its duty of good faith and loyalty

to Mr. Porter and the Partnership; and (c) materially increased

Mrs. Forter’s financial exposure without consideration.

By tate 1988, the Bank was subject to FDIC control and

stopped making loan advances. Coupled with the falling real

estate market, the Project failed and the partnership property

was sold at a foreclosure sale.

Had FSBDC not subordinated its mortgage, the $550,000

note as secured by a mortgage on the Porters’ home (the only

remaining obligation under the Guaranty) would have been

discharged from proceeds of the foreclosure sale of partnership

property, as they far exceeded the amount needed to pay off the

$550,000 note.

A. Proceedings In The Superior Court of Massachusetts

In June 1990, the Porters sued the Bank in the Superior

Court of Massachusetts alleging wrongful conduct by the Bank

in connection with the formation and operation of the Partnership

and the execution of March 1987 credit documents. Count Ten

alleged violations of M.GL. c.93A. It specifically challenged

as unfair and deceptive the Bank’s insistence in March 1987

that the Porters sign new credit documents as new loan

conditions.

The Porters further alleged that FSBDC used the terms of

the $550,000 note to unfairly exercise control over the

Partnership by, among other things, unilaterally deducting

interest on the $550,000 note from the Partnership’s account

(which deprived the Partnership of crucial working capital) and

insisting that Mr. Porter build three houses simultaneously

against his advice.

The Bank answered and interposed counterclaims seeking

damages under notes, personal guarantees, and mortgage

signed by the Porters in March 1987 and June 1988. The Porters’

6

then-attorney, Edward Collins (““Mr. Collins’), filed an answer

to the Banks’ counterclaims asserting affirmative defenses,

including lack and/or failure of consideration and fraud in the

inducement.

While the Bank conducted extensive discovery under the

Tracking Order, Mr. Collins failed to conduct any discovery

until the week prior to the discovery deadline. In mid-April 1991,

the Porters retained new counsel based on Mr. Collins’ failure

to timely conduct discovery, account for a $70,000 retainer, and

because he had been sanctioned by the Court on several

occasions while representing the Porters.

On May 3, 1991, Mrs. Porter informed Mr. Collins by

telephone that he had been discharged and that new counsel

had been retained. On Monday, May 6, 1991, the Porters sent

Mr. Collins a letter confirming the May 3 phone call and asking

that he immediately file a Notice of Withdrawal so new counsel

could enter his appearance. The Porters and new counsel left

telephone messages with Mr. Collins’ office on May 6, 7, and 8

asking him to transfer the case file and file a notice of

withdrawal. |

On May 8, 1991, new counsel left a message with the Bank’s

counsel informing him that he was filing an appearance that

day. On that day, six days after being formally discharged and

prior to receiving any discovery from the Bank, Mr. Collins

attended a final pre-trial conference in Middlesex Superior

Court. He not only failed to inform the court of his discharge

but agreed, without the Porter’s authorization or approval, to a

Joint Pre-Trial Memorandum, prepared by the Bank’s counsel,

which severely compromised the Porters’ rights and effected

the entire future course of the litigation. Only after the fact did

the Porters’ new counsel learn that a pre-trial conference had

been held, attended by Mr. Collins, and that trial had been set

for August 7, 1991.

7

At the pre-trial conference on May 8, the Bank filed a

motion to file an Amended Counterclaim, which Mr. Collins

did not oppose. On June 10, 1991, the Porters and PLLP

answered the Bank’s amended counterclaim raising affirmative

defenses, including illegal novation, lack and failure of

consideration, and fraud in the inducement, each of which, if

proven, would have barred recovery by the Bank on the loan

and Guaranty.’

Despite Mrs. Porter’s request in early May 1991 that

Mr. Collins immediately forward all files to the Porters’ new

counsel, he neglected to do so until in late June 1991. Realizing,

upon reviewing the file, that Mr. Collins had failed to conduct

adequate discovery, the Porters’ new counsel attempted without

success to enlarge the time for discovery and to continue the

trial.

In late June 1991, the Bank moved for partial summary

judgment on counterclaims asserting liability of the Porters for

deficiencies after foreclosure under a $2.9 million note to the

Partnership (Count I), the $550K note (Count II), and the Porters’

Guaranty (Count III). The Porters opposed the Bank’s motion,

supported by their own affidavits and references to their Verified

Complaint. The Superior Court took no action on the Bank’s

motion.

In August 1991, Mr. Porter petitioned for bankruptcy

protection. The Bank immediately moved to stay all state court

actions while Mr. Porter was in bankruptcy.

In September 1992, when the bankruptcy was dismissed,

the Bank renewed its motion for partial summary judgment.

On October 19, 1992, two days before the hearing on the Bank’s

motion, the Porters filed supplementary affidavits and a

3. Incredibly, the Superior Court subsequently barred the Porters

from raising several of the affirmative defenses raised in their Answer

to the Bank’s amended counterclaim because they had not been included.

in the Joint Pre-Trial Memorandum that pre-dated their Answer.

8

memorandum of law opposing the Bank’s motion and cross

moved for summary judgment against the Bank under

Chapter 93A.

On October 20, 1992, the Bank moved to strike the Porters’

supplemental opposition to summary judgment. The Superior

Court took no action on the Bank’s motion to strike the

opposition.

On October 22, 1992, the day after the summary judgment

hearing, the Bank moved to strike the Porters’ cross-motion for

summary judgment, which the Superior Court purportedly

allowed on November 6, 1992.

In December 1992, the Porters moved for leave to amend

the Chapter 93A count of their complaint to assert that the credit

documents executed by Mrs. Porter in March 1987 — challenged

in the original complaint as unfair and deceptive, and the subject

of the affirmative defenses of failure of consideration and

novation in the Porters’ answer to the Bank’s amended

counterclaim — violated federal credit law, a per se violation of

Chapter 93A. The Porters specifically claimed in their propesed

Amended Complaint that the Bank violated (a) the Equal Credit

Opportunity Act, 15 U.S.C. §§ 1691, et seq., and enabling

regulation, 12 C.F.R. §§ 202.1, et seq.) (“ECOA”’) by requiring

Mrs. Porter to guaranty the partnership’s debt when the Bank

considered Mr. Porter creditworthy, and (b) the anti-tying

provision of the Bank Holding Company Act (“BHCA”),

12 U.S.C. §§ 1972(1)(C), (D) et seg.), by conditioning the Bank’s

performance under the original October 1986 partnership and

loan agreements between Framingham Savings Bank, FSBDC,

Mr. Porter and PLLP on the Porters’ agreement to furnish

additional consideration in the form of the $550,000 note and

mortgage and personal guaranty.

The motion to amend was based on credit documents that

the Bank had failed to provide to the Porters until after suit was

commenced. It was filed as soon as Mr. Porter’s motion to

9

dismiss the bankruptcy was allowed over the Bank’s opposition.

The Bank opposed the Porters’ motion but made no showing of

prejudice.

At the same time, the Porters also moved to vacate the

Pre-Trial Memorandum based on the undisputed fact that

Mr. Collins attended the pre-trial conference a week after he

had been discharged, a fact which Mr. Porter had documented

more than a year earlier in a sworn affidavit.

- On December 8, 1992, the Superior Court, without hearing

and without explanation, denied both the motion to amend and

motion to vacate.

In April 1993, the Superior Court allowed the Banks’ motion

for partial summary judgment, finding “allegations of fraud

[contained in the Porters’ affidavits and Verified Complaint]

insufficient” to satisfy the Porters’ burden to allege fraud by

specific facts. Pet. App. 14a. The court did so notwithstanding

a statement earlier in its opinion that the affidavits raised a

material issue of fact whether the Bank obtained the Porters’

signatures on the Guaranty by fraud.

At a final pretrial conference in October 1993 the Porters

again moved unsuccessfully to vacate the Pre-Trial

memorandum. In December 1993, the court entered a procedural

order confirming that the Pre-Trial Memorandum governed the

issues to be litigated at trial. Prior to the beginning of the trial,

the Porters once again asked the Superior Court to consider

their federal claims. The court agreed to hold a hearing on the

issue, but later determined that the claims could not be

considered because they were not included in the Pre-Trial

Memorandum.

The Porters’ claims were tried to a jury in March 1994,

with the Superior Court expressly reserving the Porters’ claims

under Chapter 93A, including those challenging provisions of

the March 1987 credit documents as unconscionable and

alleging unfairness in the subordination by FSBDC of the

10

$550,000 note and mortgage. The special question posed to the

jury on the common law fraud count asked whether the

Porters had proved that the Bank made any “fraudulent

misrepresentations,” thus lumping together under a single

question five of the six elements the Superior Court had

instructed the jury the Porters were required to establish in order

to prove fraudulent misrepresentation. The jury returned a

verdict in favor of the Bank on the issues of fraudulent

misrepresentations and breach of contract.’

On May 11, 1994, the Superior Court entered a Corrected

Final Judgment in favor of the Bank on all counts of the Porters’

complaint and awarded the Bank damages on the counterclaims.

The court made no finding of facts with respect to the Porters’

Chapter 93A claims, nor did it state separately its conclusions

of law with respect to such claims as required under Mass. R.

Civ. P. 52(a). It simply ordered entry of judgment on such claims

based “[u]pon the jury’s verdict. .. .” Pet. App. 6a.

B. Proceedings In The Appeals Court Of Massachusetts

The Porters appealed to the Massachusetts Appeals Court

arguing, among other things, that the Superior Court had erred in

failing to rule on the Porters’ Chapter 93A claims, refusing to permit

amendment of their complaint to assert their federal claims under

the ECOA and BHCA, both before and during tnal, and requesting

entry of judgment as a matter of law on such federal claims.

By Memorandum and Order dated September 10, 2003,

the Appeals Court affirmed the judgment of the Superior Court

in its entirety, relying in large part on specious arguments

advanced by the Bank in its brief. Pet. App. 1a-Sa. The Appeals

Court held that the Porters’ federal claims under the ECOA and

BHCA were “correctly ruled to be not properly part of the case,

either as independent causes of action or as support for the 93A

claims.” Pet. App. 2a.

4. But for the Trial Court’s repeated pre-trial and mid-trial

admonitions, which shaped the Porters’ trial presentation, they could have

presented evidence sufficient to support a finding of fraud against the Bank.

11

C. Proceedings In The Supreme Judicial Court of

Massachusetts

The Porters sought further review in the Supreme Judicial

Court of Massachusetts of the rulings of the Superior Court and

Appeals Court. By Order dated October 29, 2003, the Court

denied petitioners’ Application For Further Appellate Review

without comment. Pet. App. 15a.

REASONS FOR GRANTING THE PETITION

A. The Porters Were Deprived Of Their Rights Under The

- Federal Equal Credit Opportunity Act And Bank

Holding Company Act By The State Court’s Novel

Application Of Its Procedural Rules.

1. This Court has the power to determine whether a

state court has improperly by-passed a federal right

under a form of local procedure.

This Court has jurisdiction to hear petitioners’ appeal

because the state courts’ actions and inactions, many made

without explanation and all in plain conflict with controlling

precedent and applicable rules of practice and procedure,

together deprived Petitioners of any real opportunity to enforce

their rights under federal credit and banking law.

The Porters’ federal claims were presented to the

Massachusetts courts, which were apprised of the nature and

substance of such claims. Ellis v. Dixon, 349 U.S. 458, 463

(1955). This Court is not prevented by the “state court’s

determination as to the sufficiency of the pleadings asserting a

federal right,” because it has the power to determine de novo

“whether the state court has by-passed the federal nght under

forms of local procedure.” Jd. “The issue of whether a federal

question was sufficiently and properly raised in the state courts

is ultimately a federal question, as to which this Court is not

bdund by the decision of the state court.” Street v. New York,

12

394 U.S. 576, 583 (1969); accord, Howlett v. Rose, 496 U.S.

356, 366 (1990).

2. The refusal by the Massachusetts court to hear the

Porters’ federal claims was outcome determinative.

A state ground is not adequate to preclude review in this

Court where, as here, a decision on the federal issue would

change the outcome of the case. See Chicago B. Q. Ry. y.

Drainage Comm'rs, 200 U.S. 561, 580 (1906).

When a loan applicant qualifies under a lender’s standards

of creditworthiness and the loan is granted based on the :

applicant’s willingness and ability to repay, the lender cannot

require the spouse of the applicant to sign any credit documents

relating to the loan transaction. See 12 C.F.R. § 202.7(d)(1).

To do so violates the ECOA and Regulation B> See United States

v. Consumer Fin. Corp., 816 F.2d 487, 491 (9" Cir. 1982);

Anderson v. United Finance, 666 F.2d 1274, 1277 (9" Cir. 1982);

Shammas v. New England Merchants Nat'l Bank, 1990 WL

354452 (D. Mass. 1990), quoting Anderson, 666 F.2d

1277(“‘Where a spouse’s guaranty is required when an

individual is creditworthy on his or her own, the spouse’s

guarantee is illegal.””).

At trial, the Bank’s Vice President admitted that the Bank —

considered Mr. Porter to be creditworthy in March 1987 when

the Bank required Mrs. Porter to sign the Guaranty, note and

mortgage securing the Bank’s loans to Mr. Porter and the

Partnership. Such testimony was sufficient to establish that the

March 1987 credit documents violated the ECOA and

Regulation B as a matter of law.

Likewise, a violation of the anti-tying provision of the

BHCA by the Bank was established at trial as a matter of law.

The provision provides in pertinent part that a “bank shall not

extend credit, furnish any service or vary the consideration for

any of the foregoing on the condition or requirement that the |

AS ong re ROT ec a a tating 7 a <a |

13

customer provide some additional credit, property or service to

such bank.” 12 U.S.C. §§ 1972(1)(C), (D). By requiring the

Porters tc provide personal guarantees in March 1987, the Bank

conditioned the extension of credit on the Porters’ providing

additional security. ( y,

Because the Bank’s violations of the ECOA and BCHA

were established as a matter of law, the state court, had it

considered such claims, would have entered a judgment different

from the one resting upon some ground of local or general law,

thus providing a basis for jurisdiction in this Court. See Chicago

B. O. Ry., 200 US. at 580.

The claim by the petitioners of Federal rights under the

ECOA and BHCA “went to the very root of the case... .”

Id., 200 U.S. at 581. If the claimed violations of federal credit

and banking law were valid, then judgment should have entered

for the Porters, for the “supreme law of land must always

control.” /d. “Therefore, a failure to recognize such Federal nght

..., and the decision of the case on some ground of general or

local law, necessarily has the same effect as if the claim of

Federal right . . . had been expressly denied.” /d.

3. The Porters’ federal rights were thwarted by the |

Massachusetts court’s application of local

procedural rules with pointless severity.

The Superior Court based its judgment, and the

Massachusetts Appeals Court affirmed, on the basis of the

asserted failure of the Porters to raise violation of the ECOA

and BCHA as a basis for the Bank’s liability under Chapter

93A in their original complaint and in the Pre-Trial

Memorandum.

A review of the record, and of prior Massachusetts

precedent, establish that the state court’s refusal to allow

amendment by the petitioners to claim violations of the ECOA

and BCHA were the result of application of the rule governing

14

amendment of pleadings with “pointless severity” and

completely at odds with its prior decisions favoring amendment.

N.A.A.C.P. v. Alabama ex. rel. Flowers, 377 U.S. 288, 297

(1958).

Like its federal counterpart, Rule 15(a) of the Massachusetts

Rules of Civil Procedure provides that a party’s request for leave

of court to amend its pleading “shall be freely given when justice

so requires. ...” “The decision whether to grant a motion to

amend 1s within the discretion of the judge, but leave should be

granted unless there are good reasons for denying the motion.”

Mathis v. Massachusetts Electric Co., 409 Mass. 256, 264

(1991), citing Goulet v. Whittin Mach. Works, Inc., 399 Mass.

547, 549 (1987); Castelluci v. United States Fidel. & Guar. Co.,

372 Mass. 288, 289-290 (1977); see also Hamed v. Fadili, 408

Mass. 100, 105 (1990) (Rule 15(a) “eliminated the once broad

discretionary authority of the judge to deny a motion to amend

a pleading”’). “Such reasons include ‘undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.’”’ Mathis, 409 Mass. at

264, quoting Castelluci, 372 Mass. at 290, quoting Foman v.

Davis, 371 U.S. 178, 182 (1962). .

Measured against these standards, there is no question that

the Superior Court abused its discretion in denying the Porters’

motion for leave to file an amended complaint, and that the

Appeals Court’s decision to affirm was so completely at odds

with binding precedent as to establish that the state courts

bypassed the Porters’ federal claims by applying Rule 15 with

“pointless severity.”

The Superior Court’s failure to provide any reason for its

denial, in and of itself, should have provided the Appeals Court

with sufficient grounds for reversal. See, e.g., Foman, 371 U.S.

at 182; Hayes v. New England Millwork Dist., Inc., 602 F.2d

15,20 (1* Cir. 1979); Quimby v. Zoning Bd of App. of Arlington,

15

19 Mass. App. Ct. 1005, 1007 (1985) (reversing judgment and

remanding to Superior Court for reconsideration of the denial of

the motion to amend where denial simply bore notation

“After hearing motion denied”). Where, as here, justification for

the judge’s denial is not readily apparent from the record, a

“statement of reasons or finding of fact [is] ... required .. . to

demonstrate adequate justification for a judge’s action in denying

a motion to amend a pleading.” Goulet, 399 Mass. at 550, citing

Castellucci, 372 Mass. at 291 n.2. “An ‘outright refusal to grant

the leave without any justifying reason appearing for the denial is

not an exercise of discretion; it is merely abuse of that discretion

and inconsistent with the spirit of the [Massachusetts] Rules.”

Castellucci, 372 Mass. at 289, quoting Foman, 371 U.S. at 182.

In the face of such precedent, for the Massachusetts Appeals

Court to have found no abuse of discretion was inconsistent

with controlling Supreme Judicial Court precedent, and hence

eliminated an otherwise adequate state ground for the judgment

in favor of the respondent. Young v. Ragen, 337 U.S. 235 (1949).

“It is well-settled that prejudice to the non-moving party is

the touchstone for the denial of an amendment.” Goulet, 399

Mass. at 550 n.3. “While ‘undue delay’ may justify a denial,

[the Massachusetts] courts ha[ve] usually required some factor

other than delay, such as imminence of trial or the plaintiff's

attempting to introduce a totally new theory of liability.” Goulet,

399 Mass. at 552. Neither was the case here.

The amended complaint sought to add a count for violation

of the ECOA and BHCA. Amendment of the complaint to add

such claims would have been “little more than a mere formality”

because the plaintiffs’ original complaint “implicitly alleged”

breach of Chapter 93A as a result of the Bank’s violation of

federal credit and banking law by requiring Mrs. Porter to

personally guarantee her husband’s obligations to the Bank and

by conditioning existing loans on the giving of additional

security by the Porters. The new count merely added theories of

liability arising out of the same course of dealing as pled in the

original complaint. Goulet, 399 Mass. at 551; see Guardianship

16

of Hurley, 394 Mass. 554 (1985) (amendment which states

additional cause of action arising from same underlying facts is

proper).

The Bank’s claim of prejudice was specious. The Bank |

could not possibly have suffered prejudice, since no additional

discovery was required to prove the Porters’ federal claims. They

were based on documents and information solely within the

Bank’s possession and on law that the Bank was required to

follow in making all loans. For the Superior Court to deny

amendment in such circumstances 1s simply inexplicable and

cannot be justified under controlling precedent.

The timing of the Porters’ motion for leave to amend did

not prejudice the Bank in any way.° Trial, although scheduled

for January 1992, a month after the motion to amend was filed,

did not ultimately take place until March 1994. “Clearly, any

prejudice that might have existed when trial was imminent had

disappeared once the trial date had been continued.” Goulet,

399 Mass. at 552.

“The plaintiffs here were not attempting to introduce or

substitute a ‘markedly’ different theory of liability, nor was trial

. imminent. The record shows no indication of bad faith,

dilatory tactics or other justification for the motion judge’s denial

of the plaintiffs’ motion for leave to amend.” /d. Indeed, the

Bank was responsible for all delays, having moved to stay all

state proceedings immediately after Mr. Porter filed for

bankruptcy and then opposing Mr. Porter’s motion to dismiss

the bankruptcy. Under Goulet, “the judge should have allowed

to plaintiffs to amend their complaint. . . .” Jd.

As in Goulet, the “present problem was exacerbated by the

trial judge’s mistaken belief that [s]he had little discretion to

5. The Banks arguments to the Court alleging undue delay were

misleading and made in bad faith. The Porters could not move to amend

between August 1991, when the Bank moved to stay all state court actions

while Mr. Porter was in bankruptcy, until September 1992, when the

bankruptcy was dismissed over the Banks’s objection.

17

allow” the Porters to “amend to conform to the evidence if the

evidence warranted such a motion.” /d. Despite the fact that the

documents on which the Porters based their ECOA and BHCA

claims under Chapter 93A were in evidence, and that the Bank’s

Vice President testified that the Bank relied solely on Mr. Porter’s

creditworthiness in making loans to the partnership, the Superior

Court made it clear it would not allow such an amendment.

Here, as in Goulet, the Superior Court not only had the power

to grant the Porters’ motion, it was obligated to allow

amendment in view of the evidence presented. Id. at 554.

The decision by the Massachusetts Appeals Court finding

no abuse of discretion in denial of the petitioners’ motions to

amend, both before and during trial, was inconsistent with prior

determinations of the state’s highest court. See Young, 337 U.S.

235 (1949). The decisions were unreasonable, arbitrary, and had

the clear affect of allowing the state court to avoid a decision

on the Porters’ federal claims under the ECOA and BCHA,

which allowed the Bank to avoid liability. Vendella R. Co. v.

State of Indiana ex. rel. City of South Bend, 207 U.S. 359 (1907).

Denial of the right to amend in such circumstances served no

legitimate state purpose. In taking-a strict interpretation of a

rule which, by its terms, favored liberal amendment, the state

was so picayune in enforcing a procedural requirement that form

was stressed over any possible state interest in strict enforcement.

“The consideration of asserted [federal] rights may not be

thwarted by simple recitation that there has not been observance

of a procedural rule with which there has been compliance in

both substance and form, in every real sense.” N.A.A.C.P. ¥.

Alabama, 377 U.S. 288, 297 (1964). “Novelty in procedural

requirements cannot be permitted to thwart review in this Court

applied for by those who, in justified reliance upon prior

decisions, seek vindication in state courts of their federal ...

As inthe N.A.A.C.P. case, “[p]aying full respect to the state

court’s opinion, it seems. . . crystal clear that the rule invoked

18

by it cannot be deemed reasonably applicable to this case.”

Because the nonfederal ground relied upon below was

inadequate to support the judgment, this case must be remanded

to the Supreme Judicial Court of Massachusetts for a decision

on the merits of the petitioners’ federal claims. N.A.A.C.P., 377

US. at 302.

The record also conclusively establishes that the refusal by

the Superior Court and Appeals Court to vacate the Pre-Trial

Memorandum, which was signed by Mr. Collins at a time when

he had absolutely no authority to do so, was in clear conflict

with controlling precedent and prevented the Porters from

litigating their federal claims and defenses.

By agreeing to a one-sided pre-trial memorandum,

Mr. Collins severely prejudiced the Porters’ substantive rights

at a time when he lacked any authority to represent the Porters.

See Lawrence Savings Bank v. Garabedian, 49 Mass. App. Ct.

157, 163 (2000), citing Commonwealth v. White, 429 Mass. 258,

264 (1999)(an important factor in determining whether trial

court abused its discretion is the “importance of the rights lost”).

As a result, the memorandum should not have been binding on

the Porters and should have been vacated. See City of Medford

v. Corbett, 302 Mass. 573, 574-576 (1939) (agreement for

judgment could be vacated where proof by credible evidence

that attorney who signed the agreement did not have authority

to do so); Precious v. O’Rourke, 270 Mass. 305, 308-309 (1930)

(same).

Any question about whether Mr. Collins had authority to

act on the Porters’ behalf is eliminated by Bank counsel’s

knowledge that there was, as of May 8, 1991, aserious question

as to whether Mr. Collins was still representing the Porters.

See Malave v. Carney Hosp., 170 F.3d 217, 221 n.6 (1* Cir.

1999) (where opposing party was on notice of an attorney’s

limited authority, lack of justifiable reliance on attorney’s

representations prevented attorney from binding client in signing

settlement agreement).

19

Binding the Porters to a pre-trial memorandum signed by

counsel that they had already discharged violated public policy.

It is well established under Massachusetts law that there is

“a strong public policy to assure one in need of legal help

freedom to select an attorney, to change attorneys, and to seek

and obtain advice as to the competency and suitability of any

attorney for the particular need of the client.” Walsh v. O'Neil,

350 Mass. 586, 590 (1966). “The right of a client to [change

lawyers] has not much value if the client is put at risk” of being

bound by the conduct of an attorney who has already been

discharged. Salem Realty Co. v. Matera, 10 Mass. App. Ct. 571,

575 (1980). The Porters played no part in, and were completely

unaware of, the fact that Mr. Collins had signed the Pre-Trial

Memorandum after he had been discharged.

Under the circumstances, the Porters were entitled to have

the joint pre-trial memorandum vacated. For the Superior Court

to deny the Porters’ motion to vacate, and for the Appeals Court

to find no abuse of discretion in such denial, were actions so

clearly at odds with controlling precedent that they amounted

to use of local law to deny the Porters their rights under federal

credit and banking law. See N.A.A.C.P., 377 U.S. at 297.

B. The State Court’s Repeated Deprivation Of The Porters’

Rights To Present Their Case And Be Heard In Support

Of Their Claims Was So Fundamentally Unfair That It

Amounted To A Denial Of Due Process And Resulted

In A Manifestly Unjust And Unconscionable Judgment.

The Due Process Clause of the Fourteenth Amendment is

violated when a deprivation of property is “accomplished by

the state judiciary in the course of construing an otherwise valid

state [law].” Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680

(1930). In such circumstances, this Court’s “concern is solely

with the question whether the plaintiff has been accorded due

process in the primary sense, — whether it has had the opportunity

to present its case and be heard in its support.” /d. “But while it

20

is for the state courts to determine the adjective as well as the

substantive law of the State, they must, in so doing, accord the

parties due process of law. Whether acting through its judiciary

or its legislature, a State may not deprive a person of all existing

remedies for the enforcement of a night, which the State has no

power to destroy, unless there is, or was, afforded him some

real opportunity to protect it.” /d., 281 U.S. at 681. This is

precisely what occurred in this case.

The Porters were not only deprived of the opportunity to

present their claims under federal credit and banking law, but

were also denied the opportunity to be heard on their state law

claims through misapplication of controlling procedural rules

and precedent.

Summary Judgment Proceedings

In granting summary judgment to the Bank on its

counterclaims and in denying the Porters’ cross-motion for

summary judgment the Superior Court was so clearly confused

in its rulings and application of law that no meaningful review

by any subsequent court was possible.

Two days prior to oral argument, the Porters filed a

supplemental memorandum in opposition to the Bank’s motion

for summary judgment and additional affidavits under Mass.

R. Civ. P. 56(c). They also timely filed a cross-motion for

summary judgment, Mass. R. Civ. P. 56(b), arguing, among other

things, that the promissory notes and Guaranty on which the

Bank sought summary judgment were illegal and unenforceable

by their terms under the ECOA and BHCA.

The day after the summary judgment hearing, the Bank

moved to strike the Porter’s cross-motion for summary

judgment. In its summary judgment decision of April 1993, the

Superior Court ruled on Porters’ Motion for Summary Judgment,

this despite having purportedly allowed the Bank’s “motion to

strike” in November 1992.

21

In affirming the Superior Court’s decision granting

summary judgment to the Bank on its counterclaim, the Appeals

Court inexplicably relied on the Bank’s self-serving, inaccurate

and unsupported assertion that the affidavits had been properly

stricken. (Pet. 4a) That the Court did so where there was no

docket entry, where the Superior Court’s summary judgment

memorandum clearly established that it had considered the

supposedly stricken affidavits, and where the law clearly gave

the Porters the right to submit affidavits up to the day before

the summary judgment hearing, see Dinwiddie v. Brown, 230

F.2d 465, 468 (5" Cir), cert. denied, 351 U.S. 971 (1956), clearly

demonstrates the lengths to which the Court appeared willing

to go to avoid ruling favorably on the Porter’s appeal from the

summary judgment decision.

The Superior Court acknowledged in its decision that a

material issue of fact existed which precluded summary

judgment in favor of the Porters on their affirmative claim of

fraud in the inducement® but did not preclude summary

judgment in favor of the Bank on their counterclaim to which

fraud in the inducement was an absolute defense. In doing so, it

improperly held the Porters to the standard of proof at trial.

In affirming, the Appeals Court completely ignored the

inconsistency and misapplication of the trial standard of proof.

This provides further evidence of a fundamental denial to the

Porters of their opportunity to be heard.

The Superior Court’s summary judgment decision shaped

and guided the conduct of the litigation from that point forward,

at great prejudice to the Porters. Liability had been established

in favor of the Bank on its counterclaims, irrespective of the

Porters’ valid and timely pled affirmative defenses. Such

prejudice amounted to a gross perversion of the legal process

6. The Court’s summary judgment memorandum ignores Porters’

claims that the loan documents are illegal and void by their terms, in

violation of the provisions of the ECOA.

——

aa

and a due process violation so significant as to represent a

Fourteenth Amendment violation.

Lack of Rulings And Findings On Claims Reserved

For Decision By The Court

The Superior Court’s failure to make findings of fact and

rulings of law on the Porters’ claims under Chapter 93A, coupled

with the Appeals Court’s refusal to apply controlling precedent

requiring remand in the circumstances of this case, effectively

deprived the Porters of a hearing on the merits of their Chapter

93A claim. Standing alone, such decisions constitute a

fundamental denial of due process.

The Appeals Court’s decision was based on two clearly

erroneous findings: (a) that “/o/n this record, . . . the Porters’

93A claims were based only on various claims of

misrepresentation and fraud that were submitted to the jury,”

and (b) that the jury, in response to special questions, “expressly

found that the defendants had made no misrepresentations to

the Porters...” (Pet. 2a).

The Porters’ claims under Chapter 93A were distinct and

separate from the common law fraud claim submitted to the

jury, including assertions that:

(a) the subordination agreement between FSB and

FSBDC was unfair and violated FSBDC’s duty

of utmost good faith and loyalty to Mr. Porter

as its partner;

(b) the terms of the $550K Note and Guaranty were

unfair, oppressive and unconscienable; and

(c) FSBDC used the $550K Note to improperly

and unfairly interfere with Mr. Porter’s

management of the partnership tu the detriment

of the Porters and the Partnership by forcing

23

Mr. Porter to build three houses simultaneously

instead of one, and unilaterally paying itself

interest from the Partnership’s accounts.

Because the subordination agreement was never discussed

with the Porters, its terms could not possibly have been

misrepresented. Thus, such claim could not have been

encompassed within the fraud claim submitted to the jury. Even

the Bank’s counsel conceded during the charge conference that

the claim that the subordination was unfair and deceptive was

for the Superior Court to decide under Chapter 93A.

Likewise, the parties and the Superior Court correctly

recognized that whether provisions of the credit documents

were unconscionable were issues reserved for the court under

Chapter 93A.’

Finally, the Porters claimed that FSBDC’s interference with

the management of the Partnership pursuant to terms of the

$550K Note was unfair, not that such conduct was deceptive.

As aresult, the claim could not possibly have been encompassed

by the jury’s verdict.

It is thus undisputed that none of the three claims

enumerated above were submitted to the jury, nor could they

have been. The Superior Court’s inexplicable failure to make

findings and rulings on such claims at the same time it told the

parties that it was reserving them for its consideration, and the

Appeals Court’s cavalier dismissal of the Porters’ argument stand

as additional examples of the way the Massachusetts courts

7. The Appeals Court’s decision that federal credit law claims

were “not properly part of the case” improperly immunized the Bank

from any liability under Chapter 93A in connection with the execution

of the credit documents. That the Superior Court precluded the

Porters from arguing a per se violation of Chapter 93A under 940 C.F-R.

§ 3.16(4) should not excuse consideration of whether the Bank’s conduct

was unfair and deceptive under 940 C.F.R. § 3.16(1), which makes any

act or practice a violation of Chapter 93A if “it is oppressive or otherwise

unconscionable.”

24

abrogated the Porters’ due process rights. See Brinkerhoff-Faris,

281 U.S. at 679 (state court’s denial to plaintiff of only remedy

ever available for enforcement of its nght to prevent seizure of

its property constituted denial of due process).

The Appeals Court also erred in concluding that the jury

“expressly found that the defendants had made no

misrepresentations to the Porters.” The jury decided the Porters’

fraudulent misrepresentation claim in response to a single special

question combining all the non-damage elements of such claim.

The Superior Court instructed the jury that to prove fraudulent

misrepresentation a plaintiff must not only establish that the

defendant made a misrepresentation, but that the plaintiff relied

upon the representation. Reliance is not an element of a claim

for “deception” under Chapter 93A. See, e.g., Dalis v. Buyer

Advertising, Inc., 418 Mass. 220, 225 (1994), citing Slaney v.

Westwood Auto, Inc., 366 Mass. 688, 703 (1975).

The special verdict question did not differentiate between

the various elements of fraudulent misrepresentation.

The Superior Court therefore had no way to determine the basis

for the jury’s decision. Thus neither the Superior Court nor the

Appeals Court was free to use the jury’s finding on the fraudulent

misrepresentation claim as a basis for rejecting the Porters’

Chapter 93A claim. That they did so was a denial of due process

because it deprived the Porters of any real opportunity to be

heard on the merits of their consumer protection claims.

The Superior Court failed to exercise its “independent duty”

under Mass. R. Civ. P. 52(a) to “articulate the essential grounds

for h[er] decision,” Schrottman v. Barnicle, 386 Mass. R. 627,

638 (1982), and failed to make the “detailed findings of fact”

required for Chapter 93A claims. Montanez v. Bagg, 24 Mass.

App. Ct. 954, 955 (1987) (emphasis supplied).* The purpose of

8. Even if the Porters did not fully articulate every possible basis

for liability under Chapter 93A in requests for findings, the trial “judge’s

responsibilities under Rule 52(a) extend beyond the parties’ specific

requests for findings.” Schrottman, 386 Mass. at 639-640.

25

Rule 52(a) is “to ensure that the judge “may be satisfied that

[she has dealt fully and properly with all the issues’ and that

‘the parties involved and this court on appeal may be fully

informed as to the bases of hfer] decision.’” Schrottman, 386

Mass. at 639, quoting Markell v. Sidney B. Pfeifer F oundation,

Inc., 9 Mass. App. Ct. 412, 41€ (1980). Those purposes were

clearly not met here.

Remand is mandated under the plain language of Rule 52(a)

and by cases such as Schrottman, where the Massachusetts

Supreme Judicial Court reversed and remanded for failure by

the trial court to identify the standard of liability he applied or

to make any findings on plaintiff's claim.

For the Appeals Court to conclude otherwise cannot be

squared with controlling precedent and deprived the Porters not

only of a decision on the merits of their Chapter 93A claim but

meaningful appellate review in violation of their due process

rights.

CONCLUSION

Perhaps no characteristic of an organized and

cohesive society is more fundamental than its

erection and enforcement of a system of rules

defining the various rights and duties ofits members,

enabling them to govern their affairs and definitively

settle their differences in an orderly, predictable

manner. Without such a “legal system,” social

organization and cohesion are virtually impossible;

with the ability to seek regularized resolution of

conflicts, individuals are capable of interdependent

action that enables them to strive for achievements

without the anxieties that would beset them in a

disorganized society.

Boddie v. Connecticut, 401 U.S. 371, at 374 (1971).

26

It is to Courts ... that we ultimately look for the

implementation of a regularized, orderly process of

dispute settlement. Within this framework, those

who wrote our original Constitution, in the Fifth

Amendment, and later those who drafted the

Fourteenth Amendment, recognized the centrality of

the concept of due process in the operation of this

system. Without this guarantee that one may not be

deprived of his rights, neither liberty nor property,

without due process of law, the State’s monopoly

over techniques for binding conflict resolution could

hardly be said to be acceptable under our scheme of

things. Only by providing that the social enforcement

mechanism must function strictly within these

bounds can we hope to maintain an ordered society

that is also just. It is upon this premise that this Court

has through the years of adjudication put flesh upon

the due process principle.

Id. at 375.

Although the Porters appear before this Court as individuals,

they appear on behalf of all litigants asking nothing more than

for their fair day in Court ... a chance to be heard ... a fair

opportunity to have a jury of their peers tell them. . . “You were

right”... OR... “You were wrong”. They were and remain

willing to accept either judgment and deal with the

consequences. They are not willing to accept the continued and

continuing violations of their due process rights.

As the Court in Boddie eloquently states, it is our system

of rights to due process that elevates us above the chaotic “state

of nature”. We must be mindful that even the smallest fracture

in that massive and well constructed legal foundation could be

evidence of a significant and expanding problem.

In this action, the Courts of the Commonwealth have

exposed a serious fracture. The Porters cannot explain how .. .

27

nor can they explain why. . . nor is it their obligation or right to

do either. What the Porters can state without qualification is

that the Massachusetts Judicial System has failed them, itself,

and consequently all of our society. This Petition is not about

one family, it is about all citizens of the Commonwealth who

need the strength of a just legal system to protect us -- a legal

system that may be relied upon to do its work in the light of

day, exposed for all to see.

The Porters began their thirteen year ordeal with a firm

belief that justice is a right to which all citizens are entitled --

an inalienable right that no one person or group of persons could

abridge. They know now that such is not the case. They have

learned that justice needs to be respected, cherished, and at times

... fought for. They have invested thirteen years in that fight,

against what often appeared to be insurmountable odds, but kept

on, never losing faith in the ultimate rule of law. This is it . . .

this Court is the Porters’ (“‘our’’) last chance, and we respectfully

request that this Court consider this Petition in the thoughtful

manner to which the Porters are entitled ... and which they

have earned.

Respectfully submitted,

Davip S. Porter, Pro Se

Caroi A. Porter, Pro Se

995 Washington Street

Dedham, MA 02026

(781) 251-9992