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State v. Tucci

Superior Court of Maine, Cumberland

August 2, 2017

STATE OF MAINE, Plaintiff
v.
DANIEL B. TUCCI, SR. BEATRIX T. TUCCI, and MARCH 31, LLC, Defendants

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Lance Walker Justice, Superior Court.

         Before the Court is Defendants' Motion for Summary Judgment

         I. Background

         As 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.

         On 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.

         In 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.

         Neither 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.

         This 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 these claims.

         II. Standard of Review

         Summary 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.

         When 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).

         III. Discussion

         A. 14 M.R.S. § 3580

         Defendants 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 out ...


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