ORDER ON DEFENDANTS' MOTION FOR SUMMARY
Walker Justice, Superior Court.
the Court is Defendants' Motion for Summary Judgment
alleged in the Complaint, between 2004 and 2012, Defendant
Daniel B. Tucci, Sr. ("Tucci, Sr.") was engaged in
the business of home repair and maintenance services. Tucci,
Sr. pled guilty to a Class D theft charge in connection with
his home repair business on November 18, 2008. On January 22,
2009, Tucci, Sr. inherited two parcels of real estate, along
with the buildings thereon, located at 104 Monument Street in
Portland, Maine, (the "Property") as a tenant in
common with his three brothers, by deed recorded in the
Cumberland County Registry of Deeds at Book 26625, Page 69.
The Property contains a multi-unit building with at least
three apartments in which Tucci, Sr., two of his brothers,
and their families live.
February 24, 2009, Tucci, Sr. transferred his interest in the
Property to himself and his wife, Defendant Beatrix Tucci, as
joint tenants, by deed recorded in the Cumberland County
Registry of Deeds in Book 26666, Page 277. Defendant MARCH
31, LLC, was formed on September 24, 2009 and on November 24,
2009, Tucci, Sr. and Beatrix Tucci transferred their interest
in the Property to MARCH 31, LLC by deed recorded in the
Cumberland County Registry of Deeds in Book 27424, Page 68.
Beatrix Tucci was the sole manager of MARCH 31, LLC in 2010.
In 2011, and from 2013 to present, MARCH 31, LLC was, and
continues to be managed by Beatrix Tucci, Pauline S. Tucci,
Daniel B. Tucci, Jr., and Francis Everett Nash Tucci, all of
whom reside at the Property with Tucci, Sr., Pauline, Daniel,
Jr., and Francis are the children of Tucci, Sr. and Beatrix
Tucci. As of December 20, 2011, Pauline was 16, Daniel was 6,
and Francis was 3 years old.
2012, the State brought suit against Tucci, Sr. and TPDF,
LLC, through which Tucci, Sr. operated his home repair
business, for violations of the Maine Unfair Practices Act
(the "UTPA"). The State alleges that Tucci, Sr.
falsely advertised that he was licensed; threatened and
intimidated consumers; took advance payments for services
that he did not perform; performed home repair services in an
unworkmanlike manner; and refused to correct such work or to
pay refunds. After a bench trial, the Court issued Judgment
against Tucci, Sr. and TPDF, LLC for multiple violations of
the UTPA and ordered them, jointly and severally, to pay
$236, 500.50 in restitution to the Office of the Attorney
General for the benefit of fourteen consumers on whose behalf
the suit was brought. The Court also ordered Tucci, Sr. and
TPDF to pay, jointly and severally, $140, 000 in civil
penalties to the state of Maine which were fully suspended on
the condition that he pay a minimum of $250 per month toward
the restitution amount for a period often years to the Office
of the Attorney General.
Tucci, Sr. nor TPDF has ever paid anything towards the court
ordered restitution or civil penalties. In deposition for the
prior action, Tucci, Sr. claimed not to have any assets, to
be collecting food stamps and Social Security Disability and
assistance from the "Church". The Attorney General
learned that the Property was listed for sale for $2.5
million in 2016 by an anonymous tip.
action for fraudulent transfer pursuant to 14 M.R.S. §
3575 was brought by the State on April 19, 2016. On March 3,
2017, the Court signed the agreed upon order dismissing
claims brought for fraudulent transfer with actual intent to
hinder, delay or defraud. The State amended its complaint to
reflect that only those claims for fraudulent transfer
without receiving a reasonably equivalent value in exchange
remain. Defendants now move the Court for Summary Judgment on
Standard of Review
judgment is appropriate if, based on the parties'
statements of material fact and the cited record, there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep't of Transp., 2008 ME 106, ¶
14, 951 A.2d 821. "A material fact is one that can
affect the outcome of the case. A genuine issue of material
fact exists when the fact finder must choose between
competing versions of the truth." Id.
(citations omitted). When deciding a motion for summary
judgment, the court reviews the evidence in the light most
favorable to the non-moving party. Id.
the party moving for summary judgment bears the burden on a
claim or defense, the moving party must establish the
existence of each element of the claim or defense without
dispute as to any material fact in the record in order to
obtain summary judgment. Cach, LLC v. Kulas, 2011 ME
70, ¶ 8, 21 A.3d 1015. If the motion for summary
judgment is properly supported, then the burden shifts to the
non-moving party to respond with specific facts indicating a
genuine issue for trial in order to avoid summary judgment.
M.R. Civ. P. 56(e).
M.R.S. § 3580
move the Court to grant summary judgment on the State's
claim for fraudulent transfer pursuant to 14 M.R.S. §
3575(4) for failing to meet the statute of limitations as set