Bridgepoint Capital, LLC v. Carvell

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: 19-CV-434
_/
BRIDGEPOINT CAPITAL, LLC, )
)
Plaintiff, )
)
v. ) ORDER
)
DANA CARVELL, et al., )
)
Defendant )

Before the court is Plaintiff's Request for Default against Defendant G. Charles Shumway

and Defendant Shumway's Motion for Late Entry. Shumway's previous Motion to Dismiss was

denied by this court on December 7, 2020. Pursuant to M. R. Civ. P. 12(a), Shumway had ten (10)

days from December 7 in which to file an Answer. Shumway's Answer was not filed until

December 31, 2020 (the court is aware that Shumway' s Answer was rejected by the court clerk on

December 30, 2020). Shumway made no attempt to file an Answer within the time permitted and

is therefore in default. However, the court received Shumway's Answer prior to the Plaintiff's

Request for Default. In the interest of judicial economy, the court ordered that Shumway provide

the court with written explanation as to why Default should not be entered. Shumway had seven

(7) days from January 22, 2021 to file his explanation. The court held that it would only consider

such evidence as would be relevant pursuant to M. R. Civ. P. SS(c). See also Truman v. Browne,

2001 ME 182,, 9,788 A.2d 168 (requiring a party to show both a good excuse and a meritorious

defense to set aside default under Rule SS(c)).

Shumway did not file his response until February 3, 2021, outside the time permitted by

the court's Procedural Order. Shumway's late response states that he was mistaken on when he

was required to file an Answer because he followed the wrong time requirements of Rule 12.

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Nevertheless, Shumway argues that default should not enter because he has been actively engaged

in this litigation for more than a year.

Procedural requirements appear to have been at issue for Shumway throughout this case.

The Plaintiff alleged in its Opposition to Shumway's original Motion to Dismiss that Shumway

failed to properly serve the Motion on the Plaintiff. The court is also aware that there were various

complications between the court clerk and Shumway regarding the filing of his Motion to Dismiss

and Answer. Shumway' s late filing here cannot be viewed in isolation. Under the totality of the

circumstances presented, the court cannot hold that Mr. Shumway's mistaken reliance on Rule 12

rises to the level of good excuse required under M.R. Civ. P. 55(c).

The entry is:

Defendant's Motion for Late Entry is DENIED.

Plaintiff's Motion for Default is GRANTED.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to

Maine Rule of Civil Procedure 79(a).

Dated: _
77 ;6=Y)J"-'--J_
1----f-'-'-IJ"""-f-"
ryGay Kennedy, Just' e
aine Superior Co
L

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: 19-CV-434

BRIDGEPOINT CAPITAL, LLC, )
)
Plaintiff, )
)
v. ) ORDER ON DEFENDANT SHUMWAY'S
) MOTION TO DISMISS
DANA CARVELL, et al., )
)
Defendant ) ~~~~~~s
DEC 7 ~~~o .P~ij :.:l3

Before the Court is Defendant Shumways Motion to Dismiss counts XII and XIII

of Bridgepoint' s Amended Complaint. After due consideration, Shumway's Motion is

denied.

I. Factual Background

Bridgepoint Capital LLC, ("Bridgepoint") instituted this twenty-one-count lawsuit

against nine separate Defendants on January 24, 2020. Bridgepoint alleges two counts

against Defendant G. Charles Shumway, ('Shumway"): (1) fraudulent transfer pursuant

to 14 M.R.S. §§ 3571-3582; and (2) conversion by collusion. (Pl's. Amend. Compl. ':[':[ 103­

108.) Shumway submitted this Motion to Dismiss in response and included an
,.
accompanying affidavit in which Shumway both contests and adds to the facts alleged in

the Complaint. The facts relevant to Shumway's Motion are taken from Bridgepoint's

Amended Complaint and are viewed in the light most favorable to it.

Bridgepoint seeks to recover money it loaned to Defendant, Dana Carvell

( 11 Carvell"). (Pl' s. Amend. Comp1. generally). Carvell is the sole owner of Vacuum Village

LLC, which has also been named as a Defendant in this lawsuit. (Pl's. Amend. Compl.

':['[ 2, 3.) In 2018, Bridgepoint and Carvell formed an oral contract wherein Bridgepoint

agreed to loan $140,000 to Vacuum Village. (Pl's. Compl. 'l[ 13.) To secure the loan,
For Plaintiff: Bob Mittel, Esq. and Scott Dolan, Esq. Pro se Parties:
Page 1 of 7 Dana Carvell (not answered or appeared)
Resolved parties: Vacuum Village (defaulted on 1/2/20)
Stewart Title: Andrew Sparks, Esq. G Charles Shumway, III
Bay Area Title & Susan Knedler: Zachary Greenfield, Esq.
New England Title & Amy Gibson: David Sam Anderson, Esq. For Def John Cimino: Sean Turley, Esq.
( (

Carvell agreed that Vacuum Village would execute a promissory note and mortgage on

real property located at 38 Garfield in Saco, Maine, ("Garfield property") in favor of

Bridgepoint. (Id.) At the time of the contract, the Garfield property was owned by Carvell

personally. (Id.) Therefore, the contract was expressly contingent upon Carvell

transferring title of the Garfield property to Vacuum Village. (Id.) Vacuum Village

executed the promissory note and mortgage as agreed and Carvell personally guaranteed

payment on the note. (Pl's. Amend. Compl. 1113, 15.) However, title to the Garfield

property was never transferred to Vacuum Village. (Id.)

The purpose of the $140,000 loan was for Vacumn Village to improve the Garfield

property and then sell it for profit (Pl's. Amend. Compl.114.) Prior to sale, Carvell hired

Co-Defendant, John Cimino, ("Cimino") to replace a subsurface wastewater disposal

system at the Garfield property. (PYs. Amend. Compl. 11 20, 22.) Once completed,

Carvell sold the Garfield property to a third party for approximately $334,000 and paid

Cimino $178,000 with a portion of the proceeds. (Pl's Amend. Compl. i 40(d}.) The

relevance of Carve1I1s payment to Cimino is explained infra.

Bridgepoint became aware that the Garfield property was contracted for sale

approximately three months prior to the sale's closing. (PI1s. Amend. Compl. 119.)

During this time, Bridgepoint contacted Co-Defendant, Bay Area Title Services, ("Bay

Area") multiple times to inquire about the pending sale. (Pl's. Amend. Compl. 1129,

31.) Through this contact, Bridgepoint discovered that Carvell never transferred title of

the _Garfield property to Vacuum Village and thus the mortgage held by Bridgepoint was

"worthless. 11
(Pl's. Amend. Compl. 1129-30.) However Bay Area acknowledged that
1

Carvell' s personal guarantee to Bridgepoint meant Carvell was still obligated to repay

the loan amount. (Pl's. Amend. Compl. 131.) Bay Area agreed to contact Bridgepoint

prior to closing to inform Bridgepoint of the actual closing date and determine the payoff
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amount due. (Pl's. Amend. Compl. 131.) Bridgepoint also spoke with Carvell during

this time, wherein Carvell indicated that he would pay his obligation to Bridgepoint out

of the proceeds of the sale. (Pl's. Amend. CompL 130.) Because of this, Bridgepoint

made no attempt to stall the sale. (Pl's. Amend. Comp1. 1 33.) However, Bridgepoint

was not notified of the closing date and found the property had been sold after a

Bridgepoint employee drove past the Garfield property and saw that the subsequent

buyers had moved in. (Pl's. Amend. Compl.1139, 45.)

A. Shumway

The Defendant here, Shumway, is an attorney who has represented Carvell and

Vaccum Village since before the Garfield property sale. (Pl's. Amend. Compl. 1 24.)

Shumway also represented Co-Defendant Cimino in a foreclosure action against

Cimino's property located at 93 Longwood Dr. in Portland, Maine. (Pl's. Amend. CompL

126.) Importantly, Carvell opened a new banking account at Bangor Savings Bank using

Cimimo's encumbered Longwood property address and deposited the Garfield property

sale proceeds into that account. (Pl's. Amend. Compl. 11 40(a)-(b).) Along with the

payment made to Cimino mentioned above, Carvell also paid Shumway $10,000 out of

the same Bangor Savings Bank account. (Pl's. Amend. Compl. 140(e).) In total, Carvell

received $285,793.34 from the Garfield property sale, which breaks down to be: $178,000

for Cimino; $10,000 for Shumway; with $97,793.34 left for Carvell. (Pl's. Amend. Compl.

137.) All of these actions are alleged to have occurred within sev·en days after closing on

the Garfield property. (Pl's. Amend. Compl.140.)

The foreclosure action against Cimino's Longwood property was ongoing when

Camino received the $178,000 check from Carvell. (Pl's. Amend. Comp 1. 141.) However,

the foreclosure action was subsequently waived by the mortgagee after Cimino resolved

his default under the note and mortgage that encumbered the Longwood property. (Pl' s.
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Amend. Compl. 1 42.) Bridgepoint alleges that Cimino paid his outstanding debt

encumbering the Longwood property with the $178,000 he received from Carvell. (Pl's.

Amend. Compl. 'JI 43.) Although Bridgepoint does not allege that Shumway was directly

involved in the final resolution of the Longwood mortgage, Bridgepoint does allege that

Sl;mmway was at the Garfield property closing, and that the proceeds of that sale were

first issued to Shumway so that the Shumway could then distribute the funds to Carvell.

(Pl's. Amend. Compl. 'JI<JI 104(a)-(b).) Bridgepoint further alleges that Shumway knew

Bridgepoint was entitled to a portion of the Garfield property proceeds by virtue of

Carvell's guaranty on the $140,000 loan, and that Carvell's payments to Shumway and

Cimino would render Carvell insolvent. (Pl's. Amend. Compl. 'JI1104(c)-(d), 105.) The

note is now in default and Carvell cannot be located. (Pl's. Amend. Compl.112, 50.)

II. Legal Standard

A motion to dismiss pursuant to M. R. Civ. P. 12(b)(6) "tests the legal sufficiency

of the allegations in the complaint, not the sufficiency of the evidence the plaintiffs are

able to present." Barnes v. McGough, 623 A.2d 144, ,145 (Me. 1993){internal citations

omitted). The court shall "consider the facts in the complaint as if they were admitted."

Bonney v. Stephens Mem. Hosp., 2011 ME 46, 116, 17 A.3d 123. The complaint is viewed

"in the light most favorable to the plaintiff to determine whether it sets forth elements of

a cause of action or alleges facts th.at would entitle the plaintiff to relief pursuant to some

legal theory." Id. (quoting Saunders v. Tisher, 2006 ME 94, 18, 902 A.2d 830). "Dismissal

is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief

under any set of facts that he might prove in support of his claim." Id.

III. Discussion

A. Conversion to Summary Judgment
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At the outset, the Court must decide whether Shumway' s Motion to Dismiss, and

attached affidavit, convert this Motion to one of summary judgment. If "matters outside

the pleadings are presented to and not excluded by the court/' Rule 12(c) requires that:

"[t]he motion shall be treated as one for summary judgment." M. R. Civ. P. 12(c).

However, if a motion to dismiss is converted to a motion for summary judgment, "all

parties shall be given reasonable opportunity to present all material made pertinent" to

summary judgment. See Id.; see also Beaucage v. City of Rockland, 2000 ME 184, 1 5, 760

A.2d 1054.

The Court is unwilling to convert Shumway' s Motion to one of summary

judgment. Bridgepoint has not been afforded the opportunity to present all material

pertinent to summary judgment here and conversion of this Motion to summary

judgment is therefore inappropriate. The Court will proceed pursuant to Rule 12(b)(6)

and determine whether the Complaint alone, if true, alleges facts upon which Bridgepoint

might be able to recover pursuant to some legal theory.

B. Fraudulent Transfer

"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 the time and the insider had reasonable cause to believe

that the debtor was insolvent." 14 M.R.S. § 3576(2). If the debtor is an individual, an

"insider: includes: (1) a relative of the debtor or a general partner of the debtor; (2) a

partnership in which the debtor is a general partner; (3) a general partner in a partnership;

or (4) a corporation of which the debtor is a director, officer or person in control. 14 M.R.S.

§§ 3572(7)(A)(l)-(4). However, an insider may also include "an affiliate or an insider of

an affiliate as if the affiliate were the debtor; and a managing agent of the debtor." 14

M.R.S. §§ 3572(7)(D)-(E).
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Here, it is clear that Shumway is not an uinsider" as it relates to an individual

debtor because Bridgepoint has not alleged that Shumway is a relative or general partner

of Carvell. However, Bridgepoint does allege that Shumway served as Carvell and

Vacuum Village's attorney. Because it is alleged that the proceeds of the Garfield

property sale were distributed to Carvell through Shumway, and that Shumway received

$10,000 of those proceeds, the Court cannot hold, at this stage, that Shumway was not an

"insider" through affiliation or agency. Additionally, Bridgepoint properly alleges that

Shumway knew that Bridgepoint was entitled to a portion of the proceeds and Carvell' s

distribution of the money to Shumway and Cimino would render Carvell insolvent.

Considering these allegations as true, Bridgepoint has properly alleged a claim of

fraudulent transfer by an insider and dismissal is inappropriate at this stage. As such,

Shumway's Motion to Dismiss is denied in regard to Count XII.

C. Conversion by Collusion

"The gist of conversion is the invasion of a party's possession or right to possession

at the time of the alleged conversion." General Motors Acceptance Corp. v. Anacone, 160 Me

53, 82, 197 A.2d 506, 524 (1964). The necessary elements of conversion are: (1} the person

claiming conversion had a property interest in the property converted; (2) the person had

the right to possess the property at the time of the alleged conversion; and (3) the person

holding the right of possession made a demand for return of the property and that

demand was denied by the property holder. Withers v. Hackett, 1998 ME 164, <_[ 7, 714

A.2d 798.

Here, Bridgepoint has alleged facts under which, if proven, could entitle it to relief

on its claim of conversion against Shumway. Bridgepoint alleges that Shumway was

present for the closing of the Garfield property and that the funds from the sale were first

distributed to Shumway and then subsequently distributed to Carvell; all while
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Shumway knew that Bridgepoint had a right to a portion of those proceeds. In viewing

these facts as true and in the light most favorable to Bridgepoint, this Court cannot say

that "it appears beyond a doubt that [Bridgepoint] is not entitled to relief under any set

of facts" that might be proven in support of its claim for conversion.' Bonney, 2011 Iv1E

46, <_[ 16, 17 A.3d 123 (citations omitted). Therefore, dismissal is inappropriate under the

circumstances and Shumway's Motion is denied in regards to Count XIII.

Conclusion

Bridgepoint' s Complaint properly states a claim for both fraudulent transfer and

conversion against Shumway. Namely, Bridgepoint alleges that Shumway was present

at the closing of the Garfield property; distributed the proceeds of the sale to Carvell;

received a portion of the proceeds; represented Co-Defendant Cimino in a foreclosure

action that was resolved by a separate portion of the proceeds; all with the knowledge

that these actions would render Carvell insolvent as to the debt Carvell personally owed

to Bridgepoint. If proven, these actions could entitle Bridgepoint to recover from

Shumway on both causes of action. As such, dismissal of Counts XII and XIII are

inappropriate at this stage
I

Shumway's Motion to Dismiss is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

, This is true regardless of whether Bridgepoint had a valid security interest in the Gar.field property itself
because Bridgepoint has properly alleged that Shumway knew Bridgepoint had a right to a portion of those
proceeds by virtue of Carvell' s personal guarantee to repay the Bridgepoint loan.

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