COMMONWEALTH OF XXX
Trial Court
XXX, and XXX
Plaintiffs,
vs.
XXX INC. DBA ROCKET
MORTGAGE, LLC,
Defendants.
DOCKET NO.: XXX
MOTION FOR RECONSIDERATION
COMES NOW, Plaintiff KIM POPOVICH ("Plaintiff"), and files this Motion for
Reconsideration pursuant to Superior Court Rule 9D. Plaintiff seeks this Court to Reconsider
its decision rendered on June XXX, which decision granted the Defendants’ Motion to
Dismiss Plaintiff’s Complaint. In support of this Motion, Plaintiff states as follows:
FACTUAL BACKGROUND
On or about [ENTER DATE], the Plaintiffs filed a Complaint against the Defendants
alleging inter alia, misrepresentation, tortious interference with a business relationship,
discrimination and violations of Mass. Gen. L. c. 93A, § 11 and the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601 et seq.
The Defendants filed a Motion to Dismiss alleging inter alia, that the matter should be
dismissed for want of prosecution by Shaner and lack of standing of Popovich to assert the
claims.
On or about [ENTER DATE], the Court issued an Order granting the Defendants’ Motion
to Dismiss.
The Plaintiffs hereby file this Motion to Reconsider the Court’s decision granting het
Defendants’ Motion to Dismiss.
ARGUMENTS
i. No contract is required to assert a Section 93A claim
An action pursuant to G. L. c. 93A is "neither wholly tortious nor wholly contractual in
nature." Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704 (1975). See also York v. Sullivan,
369 Mass. 157 , 164 (1975); Heller v. Silverbranch Constr. Corp., 376 Mass. 621 , 626 (1978).
The elements of a Chapter 93A claim include: (i) engaging in an unfair or deceptive act
or practice, see Colantonio, Inc. v. Fitchburg Hous. Auth., No. MICV075030, 2008 WL
3311892, at *2 (Mass. Super. July 23, 2008); Rhodes v. AIG Domestic Claims, Inc., No. 05-
1360-BLS1, 2008 WL 2357015, at *20 n. 11 (Mass. Super.June 3, 2008); Rathore v. Kelly, No.
99-04320, 2002 WL 31082045, at *4 (Mass. Super. Sept. 10, 2002); (ii) in the conduct of trade
or commerce, see Colantonio, Inc. v. Fitchburg Hous. Auth., 2008 WL 3311892, at *2; Marney
v. Aquilio, No. 00386, 2006 WL 696581, at *4 (Mass. Super. Feb. 7, 2006); Rathore v. Kelly,
2002 WL 31082045, at *4; and (iii) a loss caused thereby, see Rhodes v. AIG Domestic Claims,
Inc., 2008 WL 2357015, at *20 n. 11; Rathore v. Kelly, 2002 WL 31082045, at *4.
Further, to prevail in a Chapter 93A claim, the Plaintiff must show that (1) the Plaintiff
has suffered a loss of money or property, real or personal; (2) that this loss is a result of an unfair
or deceptive act or practice; and (3) that this act or practice was perpetrated by one who engages
in the conduct of trade or commerce. Birbiglia v. St. Vincent Hospital, 3 Mass. L. Rptr. 407,
1994 WL 878836 at 5 (Mass.Super. 2000); G.L.c. 93A, § 11.
In the instant action, the Defendants aver that Plaintiff Popovich was not listed as a
borrower on the Conditional Approval Letter or the closing disclosure, nor was Popovich a party
to the Purchase and Sale Agreement. As held by the Court in Slaney v. Westwood Auto, Inc., 366
Mass. 688, 704 (1975), a Chapter 93A claim is not based on a contract. Therefore, a claimant
must not have been in a contractual relationship with the Defendant in order to assert a Chapter
93A claim.
The Plaintiff also avers that the case meets the elements in a 93A claim. Plaintiff Kim
Popovich was hired to locate an affordable property for Kristin Shaner, based on her financial
qualifications, her cash on hand for deposits and closing costs, and her ability to pay. It is notable
that Plaintiff Popovich had been engaged in a contractual Agency Relationship with Kristin
Shaner where Popovich represented Kristin Shaner as a Buyer’s Agent. Defendant Quicken
Loans, which was engaged in a trade or business as defined by M.G.L 93A, failed to follow
through with giving the loan to Kristin Shaner, causing Kristin Shaner to lose her current
housing, her future purchase of the property at 3 Katharyn Michael Road, Unit B, Yarmouthport,
and her future potential to purchase any other property with Kim Popovich of New Age Realty.
Accordingly, Kim Popovich, as Kristin Shaner’s real estate broker, lost her commissions on the
sale of the property located at 3 Katharyn Michael Lane, Unit 3B, Yarmouthport, and any future
purchases from Kristin Shaner, since she has been financially set back due to Quicken Loan’s
unfair and deceptive practices.
Accordingly, it is clear that there is no requirement for a contractual relationship in a
Chapter 93A claim. Further, Plaintiff Popovich has duly set forth all elements in the Chapter 93A
claim. Plaintiff Popovich is therefore entitled to relief for Defendant Quicken Loan’s deceptive
practices.
CONCLUSION
In light of the foregoing, Plaintiff prays this Court reconsiders and reverses its decision
granted on n June 16, 2022, which decision granted the Defendants’ Motion to Dismiss
Plaintiff’s Complaint. Plaintiff also prays this Court issue any other order it deems just.
Respectfully submitted:
____________________
XXXX
Dated: __________
CERTIFICATE OF SERVICE
I certify that a copy of this Motion for Reconsideration was served on [ENTER DATE] to the
Defendants in this action.
Respectfully submitted:
____________________
XXXX
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