commonwealth of massachusetts esse..-x, ss. superior …

COMMONWEALTH OF MASSACHUSETTS ESSE..-X, ss. SUPERIOR COURT DEPARTMENT

) OVERLOOK ACRES, LLC, )

Plaintiff . ) )

v. ) )

KATHLEEN INGEMI & STEPHEN INGEMI, ) Trustees of the JOHN M. INGEMI REAL1Y ) TRUST & STEPHEN INGEMI, Trustee of the ) J.L. REAL1YTRUST & KATHLEEN INGEMI, ) Trustee of the BARNES ROAD TRUST & ) KB REAL ESTATE, INC. & ) KATHLEEN INGEMI, Individually, STEPHEN ) INGEMI, Individually, )

Defendants ) .

VERIFIED COMPLAINT & DEi\iAND FOR JURY

I. INTRODUCTION

This Verified Complaint is filed by the Plaintiff, Overlook Acres, LLC ("Plaintiff") by and

against the Defendants: Kathleen Ingemi and Stephen Ingemi as Trustees of the John·M. Ingemi

Realty Trust ("JMI Realty Trust"); Stephen Ingemi, Trustee of the J.L. Realty Trust ("JL Realty Trust");

Kathleen Ingemi, as Trustee of the Barnes Road Trust ("Barnes Road Trust"); KB Real Estate, Inc.

("KB Real Estate"); and Kathleen Ingemi individually and Stephen Ingemi individually (collectively

"Defendants") as a result of Defendants' fraudulent in/ actions described .herein as they relate to

property located at 383 Highland Avenue, Salem, i'v1A; 379 Highland Avenue, Salem, i'v1A; 14 Barnes

Road, Salem, MA; 16 Barnes Road, Salem, MA; and 9, 12, 14, 15, 16, and 18 Cedar Road, Salem, MA

( collectively "Premises").

II. VENUE

1. 'Hus Honorable Court has jurisdiction over the subject matter of this action because the amount I

in controversy exceeds Fifty Thousand dollars ($50,000.00).

2. Venue in this Court is proper because the Premises at issue is located in Salem, Essex County,

Massachusetts.

III. PARTIES

3. Plaintiff Overlook Acres, LLC is a domestic limited liability company with a usual place of

business at 5 Briscoe Street, Unit 2, Beverly, Essex County, l\iA.

4. Defendant Kathleen Ingemi, Trustee and Defendant Stephen Ingemi, Trustee of the John M.

Ingemi Realty Trust (''.Jl\,!.I Realty Trust"), are Trustees of the JMI Realty Trust, which Trust owns

property"located in Salem, Essex County, MA.

5. Defendant Stephen Ingemi, Trustee of the J.L. Realty Trust ("JL Realty Trust"), is a Trust which

owns property located in Salem, Essex County, MA.

6. Defendant Kathleen Ingemi, Trustee of the Barnes Road Trust, is a Trust which owns property

located in Salem, Essex County, MA.

7. KB Real Estate, Inc. is a domestic profit corporation with a principal office located at 381

Highland Avenue, Salem, Essex County, MA.

8. Defendant Kathleen Ingemi is an individual who resides in Salem, Essex County, MA.

9. Defendant Stephen Ingemi is an individual who resides in Salem, Essex County, MA.

IV. FACTS APPLICABLE TO ALL COUNTS

10. The JMI iRealty Trust; JL Realty Trust and Barnes Road Trust (collectively, "Trusts" or

"Defendant Trqsts") are the owners of the properties located at: 383 Highland Avenue, Salem, MA;

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379 Highland A~enue, Salem, MA; 14 Barnes Road, Salem, J\iA; 16 Barnes Road, Salem, MA; and 9,

12, 14, 15, 16, and 18 Cedar Road, Salem, MA (collectively "Premises").

11. The Premises consists of approximately seventeen (17) acres of largely undeveloped property.

12. On Apr_il 12, 2019, after being informed of Plaintiffs interest in purchasing and developing the

Premises, the Trusts entered into two (2) Purchase and Sale Agreements (collectively, "P&S"), each

relating to and incorporating the terms of the prospective sale of the Premises from the Trusts to the

Plaintiff.

13. The applicable provisions of the P&S, as it relates to the present action, provide:

9. POSSESSION AND CONDITION OF PREMISES. Full possession of said Premises .. .is to be delivered at the time of the delivery of the deed, said Premises to be then ... not in violation of said building and zoning laws or any other Applicable Laws (as defined in Paragraph 29 [sic] hereof) ...

10. E2s."TENSION TO PERFECT TITLE OR MAKE PREMISES CONFORM, ETC. If, at the time of the delivery of the deed the Seller shall be unable to give title or to make conveyance, or to deliver possession of the Premises, or if the Premises do not conform with the provisions hereof, ... then the Seller shall use reasonable efforts to ... make said Premises conform to the provisions hereof. .. in which event the Seller shall give written notice thereof to the Buyer at or before the time for performance hereunder ...

11. FAILURE TO PERFECT TITLE OR lvfAKE PREMISES CONFORM, ETC. If at the expiration of the extended time, after having used reasonable efforts as set forth in Paragraph 10 hereof, the Seller shall have failed ... to make the Premises conform ... then, at Buyer's option, any payments made under this Agreement shall be forthwith refunded and all other obligations of the parties hereto shall cease and this Agreement shall be void without recourse to the parties thereto, provided, however, that if the Seller shall have failed to use reasonable efforts as provided in Paragraph 10 above, then the Buyer shall have all rights and remedies available to Buyer under applicable law for Seller's failure to fulfill Seller's agreements herein.

25. CERTAIN WARRANTIES AND REPRESENTATIONS BY SELLER. Seller warrants and represents as follows ... (a) Seller is not aware of, and has not received, any written notice of any violation of zoning, building, health, environmental or otl1er.Applicable Laws as such term is defined in Paragraph 29 [sic] relating to the Premises. (b) To ilie best of Seller's knowledge, there is no insulation containing urea formald~yde contained within the Premises or Hazardous Matters as such term is defined in Paragraph 28 present in, on, under, about or adjacent to the Premises ... (e) To Selle/C's knowledge, the Premises ... and the use thereof for all present uses under applicable zoning laws comply in all material respects with all Applicable Laws ... (£)

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To Seller's knowledge ... there are no articles or substances on the Premises which are toxic or hazardous ...

28. CERTAIN DEFINITIONS. For the purposes of this Agreement, the following terms shall have the meanings set forth below: (a) "Applicable Laws" shall mean, with respect to any matter referred to in this Agreement, all laws applicable with respect thereto, including, without limitation, all applicable constitutional provisions, statutes, ordinances, codes, by-laws, regulations, rulings, decisions, rules· and determinations of any legislative, executive, judicial or other governmental body or authority. (b) "Hazardous Matters" shall mean (i) Hazardous Waste, Hazardous Materials and Oil, as such terms are defined in Chapters 21C, 21D and 21E of the General Laws of Massachusetts, and the regulations promulgated thereunder, as amended from time to time ...

35. NOTICE OF VIOLATION. Seller hereby represents to the best of Seller's knowledge and belief, that no notice or communication has been received by Seller from any public authority that there exists with respect to the Premises any condition which violates any Applicable Law which has not heretofore been rectified or otherwise disclosed herein, nor is the Seller aware of any such violation. Further, Seller hereby represents that as of the date hereof, there is no ... proceeding that might in any way impact adversely on the Seller's ability to perform on the closing date.

37. SEILER'S INTERIM OPERA TING COVENANTS. The Seller agrees, that from the date hereof through the Closing Date ... , Seller shall: ... [p]romptly deliver to Buyer copies of notices received by the Seller prior to or during the Pendency Period of: (a) releases of •Oil and Hazardous Materials; or (b) any actual or threatened condemnation of the ,Premises or any portion thereof given to Seller on .behalf of any federal, state or local agency ... Each of the representations and warranties herein shall remain operative and in full force and effect and shall be true as of the Closing Date with the same effect as though made at and as of the Closing Date, and shall survive delivery of the Quitclaim Deed.. . ·

14. The Trusts' real estate broker/agent was Defendant Kathleen Ingemi and Defendant KB Real

Estate, Inc. ("Defendant KB Real Estate").

15. Defendant Kathleen Ingemi and Defendant KB Real Estate stood to earn a commission from

the sale of the Premises to the Plaintiff.

16. Defendants Kathleen Ingemi and Stephen Ingemi stood to benefit from tl1e sale of the Premises

as they are beneficiaries of the Defendant Trusts.

17. In accordance with the P&S, Plaintiff paid a Two Hundred Thousand dollars ($200,000.00)

deposit upon the signing of the P&S.

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18. In relianc,; upon the Trustees' written representations and warranties within the P&S (i.e., that

they were not aware of any hazardous materials and/ or contamination upon the Premises), ·Plaintiff

began the process of performing its due diligence.

19. A component of Plaintiffs due diligence involved having the Premises inspected by a Licensed

Site Professional ("LSP") for purposes of having a Phase I and Phase II Environmental Site

Assessment ('ESA") performed.

20. As a component of its ESA, the LSP interviewed Kathleen Ingemi on July 22, 2019.

21. During the interview with Plaintiffs LSP, Trustee Kathleen Ingemi stated that she had lived

upon the Premises for 65 years, and her family had owned the Premises for many additional years

before that.

22. During the interview with Plaintiffs LSP, Trustee Kathleen Ingemi stated that the Premises

consisted of vacant land and that she had no knowledge of the land being used for any purpose.

23. During .the interview with the Plaintiffs LSP, Trustee Kathleen Ingemi stated that she had no

knowledge of any contamination or hazardous material in/ about the Premises.

24. Based upon the Trusts' aforementioned representations, ·Plaintiff moved forward with its

prospective purchase of the Premis.,,;, which included but is not limited to Plaintiff: surveying the

Premises; conducting a title exam; multiple meetings with architects and engineers; securing drawings

and plans for the development of the Premises; applying for permits; and multiple meetings ,vith

lawyers and City of Salem officials.

25. As a result of Plaintiff's extensive efforts and investment of time and money, permits were

approved and secured allmving for the development of 280 residential units upon the Premises.

26. Upon having boring samples conducted for purposes of understanding the soil composition for

construction purposes, Plaintiff was first notified of the actual nature, extent and scope of

contamination within the Premises.

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27. The boring samples evidenced significant automobile shredding residue, exceeding thirty-five

(35) feet below surface.

28. The boring samples also evidenced elevated and hazardous levels of polychlorinated biphenyls

("PCBs"); volatile organic compounds ("VOCs''); total petroleum hydrocarbons ("TPHs"); and total

metal and polycyclic aromatic hydrocarbons ("PAHs").

29. The elevated levels of the hazardous contaminants found throughout the Premises represent a

significant and imminent risk of harm to the public and the environment.

30. Remediation of the Premises has been estimated to cost between $12,000,000.00 and

$34,000,000.00.

31. Upon learning of the nature, extent, and scope of hazardous contamination in/ about the

Premises, Plaintiff met with the Defendant Trustees on November 6, 2020 ("November 6 Meeting'').

32. At the November 6 Meeting, the Trusts indicated that they would not deliver the Premises free

of contamination.

33. As a result of the Trusts' stated position that they would not deliver the Premises free of

contamination, Plaintiff was forced to timely terminate the P&S on November 9, 2020.

34. Plaintiff sought the return of its deposit in full, however, the Trusts have failed and refused to

return any portion of said deposit without Plaintiff first executing a full release of claims.

35. It has since been discovered that the Trusts, to include the Trustees and the beneficiaries of the

Trusts, have known about the contamination for numerous decades.

36. As both the Trustees and beneficiaries mvned and lived upon the Premises for over sixty (60)

years, they possessed knowledge that the Premises was utilized as an automobile dumping ground.

37. The Trustees and beneficiaries were aware of the necessary clean-up of the Premises through

public hearings conducted over forty (40) years ago.

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38. Despite possessing said knowledge, the Trusts failed to disclose their knowledge, and in fact,

fraudulently concealed their knowledge and blatantly lied to Plaintiff and Plaintiffs LSP when asked

directly if they knew of past uses of the Premises and whether the Premises contained any

contamination.

39. The Trusts intentionally misrepresented the condition of the Premises for the sole purpose of

inducing Plaintiff into purchasing the Premises so the Trusts would benefit from being financially

compensated for the Premises and the Trusts would avoid the inherent liability and costs associated

with the necessary remediation of the Premises.

40. As a direct result of the Trusts' (by and through their Trustees) intentional misrepresentations

and fraudulent conduct, Plaintiff was caused to sustain significant damages.

41. As a direct result of KB Real Estate, Inc.'s intentional misrepresentations and fraudulent

conduct, Plaintiff was caused to sustain significant damages.

V. COUNTS OF COMPLAINT

COUNT! -Negligent Misrepresentation

Overlook Acres, LLC v. Defendant Trusts

42. Plaintiff restates and realleges each and every allegation contained in the preceding paragraphs

as if fully set forth herein.

43. The Trusts are the owners of the Premises and have owned the Premises for numerous decades.

44. The Trustees and several beneficiaries of the Trusts have resided upon the Premises for

numerous decades.

45. The Trusts, by and through their Trustees, offered to sell the Premises.

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46. The Trust~, by and through their Trustees, entered into P&S Agreements with the Plaintiff

whereupon the Trusts agreed to sell the Premises to the Plaintiff for Five Million Three Hundred

Thousand dollars ($5,300,000.00).

47. Pursuant to the P&S Agreements, the Trusts represented and warranted according to -their

knowledge that the Premises contained no hazardous or toxic materials or conditions.

48. The Trusts made additional representations to Plaintiff's LSP that they had no knowledge of

any contamination or hazardous material in/ about the Premises.

49. Plaintiff reasonably relied upon the Trusts' numerous representations and warranties, and it

pursued the planning and permitting of a 280-unit residential construction project at great and

significant time and expense.

50. It was not: until Plaintiff performed bming samples upon the Premises (nearly two years after

entering into the P&S) to determine soil composition for construction purposes that it was discovered

that there was significant automobile shredding residue, exceeding thirty-five (35) feet below surface.


("PCBs"); volatile organic compounds ("VOCs"); total petroleum hydrocarbons ("TPHs"); and total

metal and polycyclic aromatic hydrocarbons ("PAHs").



53. It has since been discovered that the Trusts, the Trustees and the beneficiaries, knew or should

have known that the Premises was used as a dump site for automobiles for numerous decades.

54. It has since been discovered that the Trusts, the Trustees and the beneficiaries, knew or should

have known that the contamination upon Premises was the subject of municipal hearings.

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55. Despite possessing knowledge of the existence of hazardous contamination upon the Premises,

the Trusts (and the Trustees and beneficiaries) represented that there was no hazardous materials or

contamination upon the Premises for purposes of inducing the Plaintiff into entering the P&S.

56. The Trusts' misrepresentations, which Plaintiff reasonably relied upon, led the Plaintiff into

expending significant time and expense in pursuing and acquiring permits and approvals allowing for

the construction of 280 residential units upon the Premises.

57. It was not until after Plaintiff expended several hundreds of thousands of dollars in pursuit of

approvals for its project that the hazardous contamination was discovered, with an approximate

remediation cost of s12,ooo,ooo.oo to $34,000,000.00.

58. As a result of the levels of contamination and the costs associated with the remediation of

thereof upon Premises, the Plaintiffs' project was no longer feasible and Plaintiff had to terminate the

P&S.

59. Prior to terminating the P&S, however, Plaintiff expended nearly one million dollars in costs

associated with seeking out and acquiring permits allowing for the construction of the 280-unit

development based upon the Trusts' misrepresentations.

60. As a direct result of the Trusts' misrepresentations regarding the contamination upon the

Premises, and Plaintiff's reasonable reliance thereon, Plaintiff sustained damages.

COUNT II -Negligent Misrepresentation

Overlook Acres. LLC v. KB Real Estate. Inc.



62. KB Real Estate is a Massachusetts domestic profit corporation that operates as a real estate

brokerage firm that advertises, solicits, and brokers the purchase and sale of real estate.

63. KB Real Estate's principal office has been located upon the Premises for several decades.

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64. KB Real Estate's president is Defendant Kathleen Ingemi, who also resides upon the Premises.

65. KB Real Estate knew, or should have known, of the past use of the Premises as an illegal land

fill.

66. KB Real Estate knew, or should have known, of the hazardous contamination existing upon the

Premises.

67. KB Real Estate is identified in the P&S relating to the prospective sale of the Premises as the

broker, and as such, would have profited from a commission upon the sale of the Premises.

68. While in the course of brokering the sale of the Premises, KB Real Estate supplied the Plaintiff

with false information relating to the condition of the Premises for purposes of inducing the Plaintiff

to purchase the Premises.

69. Justifiably relying upon KB Real Estate's representations relating to the condition of the

Premises, Plaintiff pursued applying for and acquiring permits allowing for the construction of a 280-

unit development upon the Premises.

70. As a direct result of KB Real Estate's misrepresentations regarding the contamination upon the

Premises, and Plaintiff's reasonable reliance thereon, Plaintiff sustained damages.

COUNT III - Negligent Misrepresentation-

Overlook Acres, LLC v. Kathleen Ingemi & Stephen Ingemi.



72. Defendant Kathleen Ingemi resides upon the Premises, and has for over sixty (60) years.

73. Defendant Stephen Ingemi has lived upon the Premises for numerous years.

74. At the time of the P&S and prior thereto, Defendants Kathleen Ingemi and Stephen Ingemi

knew, or should have known, of the past use of the Premises as an illegal land fill.

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knew, or should have known, of the hazardous contamination existing upon the Premises.

76. Defendant Kathleen Ingemi and Defendant Stephen Ingemi, as individual beneficiaries of the

Trusts, stood to profit financially from the sale of the Premises to the Plaintiff.

77. As indivi~ual beneficiaries of the Trusts, Defendants Kathleen Ingemi and Stephen Ingemi knew

they were ultimately responsible for the clean-up/ remediation of the Premises, and as such understood

the great liability. associated with their continued ownership of the Premises.

78. While in the course of actively attempting to sell the Premises, Defendants Kathleen Ingemi and

Stephen Ingemi supplied the Plaintiff with false information relating to the condition of the Premises

for purposes of inducing the Plaintiff to purchase the Premises.

79. Justifiably relying upon Defendant Kathleen Ingemi and Defendant Stephen Ingemi's

representations relating to the condition of the Premises, Plaintiff pursued applying for and acquiring

permits allowing for the construction of a 280-unit development upon the Premises.

80. As a direct result of Defendant Kathleen Ingemi and Defendant Stephen Ingemi's

misrepresentations regarding the contamination upon the Premises, and Plaintiffs reasonable reliance

thereon, Plaintiff sustained damages.

COUNT IV -Intentional Misrepresentation-




82. Plaintiff r~states and realleges each and every allegation.contained in the preceding paragraphs


83. The Trusts are the owners of the Premises and have owned the Premises for numerous decades.

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84. The Trustees and several beneficiaries of the Trusts have resided upon the Premises for

numerous decades.

85. The Trusts, by and through their Trustees, offered to sell the Premises.

86. The Trusts, by and through their Trustees, entered into P&S Agreements with the Plaintiff

whereupon the Trusts agreed to sell the Premises to the Plaintiff for Five 1'v1illion Three Hundred

Thousand dollars ($5,300,000.00).

87. Pursuant to the P&S Agreements, the Trusts represented and warranted according to their

knowledge that the Premises contained no hazardous or toxic materials or conditions.

88. The Trusts made additional representations to Plaintiff's LSP that they had no knowledge of

any contamination or hazardous material in/ about the Premises.

89. Plaintiff reasonably relied upon the Trusts' numerous representations and warranties, and it

pursued the planning and permitting of a 280-unit residential construction project at great and

significant time and eiqJense.

90. It was not until Plaintiff performed boring samples upon the Premises (nearly two years after

entering into the P&S) to determine soil composition for construction purposes that it was discovered

that there was significant automobile shredding residue, exceeding thirty-five (35) feet below surface.


("PCBs"); volatile organic compounds ("VOCs"); total petroleum hydrocarbons ("TPHs"); and total

metal and polycyclic aromatic hydrocarbons ("P AHs").



93. It has since been discovered that the Trusts, the Trustees and the beneficiaries, at the time it

entered into the P&S had actual knowledge that the Premises was used as a dump site for automobiles

for numerous decades.

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94. It has sine',' been discovered that the Trusts, the Trustees and the beneficiaries, at the time it

entered into the P&S were aware that the contamination upon Premises was the subject of municipal

hearings.

95. Despite possessing actual knowledge as to the existence of hazardous contamination upon the

Premises, the Trusts (and the Trustees and beneficiaries) intentionally misrepresented that there was

no hazardous materials or contamination upon the Premises for purposes of inducing the Plaintiff

into entering the,P&S.

96. The Trusts' intentional misrepresentations, which Plaintiff reasonably relied upon, led the

Plaintiff into expending significant time and expense in pursuing and acquiring permits and approvals

allowing for the construction of 280 residential units upon the Premises.

97. It was not until after Plaintiff expended several hundreds of thousands of dollars in pursuit of

approvals for its project that the hazardous contamination was discovered, with an approximate

remediation cost of $12,000,000.00 to $34,000,000.00.

98. As a result of the levels of contamination and the costs associated with the remediation of

thereof upon Premises, the Plaintiffs' project was no longer feasible and Plaintiff had to terminate the

P&S.

99. Prior to terminating the P&S, however, Plaintiff expended nearly one million dollars in costs

associated with seeking out and acquiring permits allowing for the construction of the 280-unit

development.

100. As a direct result of the Trusts' intentional misrepresentations regarding the contamination

upon the Premises, and Plaintiffs reasonable reliance thereon, Plaintiff sustained damages.

13

COUNTY - Intentional Misrepresentation

Overlook Acres, LLC v. KB Real Estate, Inc.



102. KB Real Estate is a Massachusetts domestic profit corporation that operates as a real estate

brokerage firm that advertises, solicits, and brokers the purchase and sale of real estate.

103. KB Real Estate's principal office has been located upon the Premises for several decades.

104. KB Real Estate's president is Defendant Kathleen Ingemi, who also resides upon the Premises.

105. At the time it brokered the P&S, KB Real Estate possessed actual knowledge of the past use

of the Premises as an illegal land fill.

106. At the time it brokered the P&S, KB Real Estate possess actual knowledge of the hazardous

contamination existing upon the Premises.

107. KB Real Estate is identified in the P&S relating to the prospective sale of the Premises as the

broker, and as such, would have profited from a commission upon the sale of the Premises.

108. While in the course of brokering the sale of the Premises, KB Real Estate intentionally (

supplied the Plaintiff with false information relating to the condition of the Premises for purposes of

inducing the Plaintiff to purchase the Premises.

109. Justifiably relying upon KB Real Estate's intentional misrepresentations relating to the

condition of the Premises, Plaintiff pursued applying for and acquiring permits allowing for the

construction of a 280-unit development upon the Premises.

110. As a direct result of KB Real Estate's intentional misrepresentations regarding the

contamination upon the Premises, and Plaintiffs reasonable reliance thereon, Plaintiff sustained

damages.

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COUNT VI -Intentional Misrepresentation-

Overlook Acres LLC v. Kathleen Ingemi & Stephen Ingemi.



112. Defendant Kathleen Ingemi resides upon the Premises and has for over sixty (60) years.

113. Defendant Stephen Ingemi has lived upon the Premises for numerous years.


had actual knowledge of the past uses of the Premises as an illegal land £ill.


had actual knowledge of the hazardous contamination existing upon the Premises.

116. As individual beneficiaries of the Trusts, Defendants Kathleen Ingemi and Stephen Ingemi

stood to profit financially from the sale of the Premises to the Plaintiff.

117. As individual beneficiaries of the Trusts, Defendants Kathleen Ingemi and Stephen Ingemi

knew they were ultimately responsible for the clean-up/remediation of the Premises, and as such

understood the great liability associated with their continued ownership of the Premises.

118. So as to ensure they would both profit from the sale of the Premises and avoid the liability of

remediation/ clean-up of the Premises, Defendants Kathleen Ingemi and Stephen Ingemi intentionally

misled the Plaintiff about the true environmental condition of the Premises.

119. Justifiably relying upon Defendant Kathleen Ingemi and Stephen Ingemi's :intentional

misrepresentations relating to the condition of the Premises, Plaintiff pursued applying for and

acquiring permits allowing for the construction of a 280-unit development upon the Premises,

incurring substantial costs associated with the approval process.

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120. As a direct result of Defendant Kathleen Ingemi and Defendant Stephen Ingemi's intentional

misrepresentations regarding the contamination upon the Premises, and Plaintiffs reasonable reliance

thereon, Plaintiff sustained damages.

COUJ.\.TT VII - Breach of Contract -

Overlook Acres LLC v. Defendant Trusts



122. On April 12, 2019, after being informed of Plaintiffs interest in purchasing and developing

the Premises, the Trusts and Plaintiff entered into two (2) Purchase and Sale Agreements (collectively,

"P&S''), each relating to and incorporating the terms of the prospective sale of the Premises from the

Trusts to Plaintiff.

123. The Trusts made certain warranties and representations within the P&S relating to the

Premises.

124. Based upon the Trusts' warranties and representations within the P&S, Plaintiff executed the

P&S Agreements and provided the Trusts with a Two Hundred-Thousand dollar ($200,000.00)

deposit.

125. The relevant terms of the P&S clearly and unequivocally provide that the Trusts are not aware

of any notice of "violation of zoning, building, health, environmental or other Applicable Laws"; nor

"Hazardous Materials ... in, on, under, about or adjacent to the Premises"; nor any "articles or

substances on the Premises which are toxic or hazardous."

126. Contrary to the Trusts' warranties and representations, there were discovered hazardous levels

of contamination in/ about the Premises.

127. Upon being notified that the Plaintiff discovered the extent of the contamination in/about the

Premises, the Trusts, pursuant to the P&S, were to "use reasonable efforts to ... make the said Premises

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conform ... in which event the [Trusts] shall give written notice thereof to the [Plaintiff] at or before

the time for perfo1mance hereunder."

128. In breach of their obligations under the P&S, the Trusts refused and failed to utilize any efforts

to make the Premises conform.

129. As a result of the Trusts' breach of their obligations under the P&S, Plaintiff demanded the

full return of the deposit under the P&S.

130. The Trusts have refused and failed to return the Plaintiffs deposit, leaving Plaintiff damaged.

COUNTVIII -Breach of the Covenant of Good Faith & Fair Dealing

Overlook Acres. LLC v. Defendant Trusts



132. The P&S Agreements entered into by the Plaintiff and the Trusts are contractual agreements.

133. As the P&S Agreements were contracts, each party had an obligation to operate in good faith

and fair dealing.

134. The Trusts failed to operate in good faith and fait dealing when they misrepresented the

condition of the'Premises to the Plaintiff so as to induce Plaintiff into entering into the P&S.

135. Upon being notified Plaintiff had discovered the extent of contamination upon the Premises,

the Trusts failed to operate in good faith and fair dealing when they failed and refused to utilize any

efforts to make the Premises conform.

136. The Trusts failed to operate in good faith and fair dealing when they refused to return the

Plaintiffs deposit upon Plaintiff's demand for same.

' 137. As a result of the Trusts' breach of the covenant of good faith and fair dealing, Plaintiff has

been damaged.

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COUNTIX -Unjust Enrichment - Deposit




139. Upon executing the P&S, Plaintiff paid, as a component of the P&S, a deposit of Two

Hundred Thousand dollars ($200,000.00).


of any notice of "violation of zoning, building, health, environmental or other Applicable Laws"; nor

"Hazardous Materials ... in, on, under, about or adjacent to the Premises-''; nor any "articles or



of contamination in/ about the Premises which Plaintiff contends the Trnsts (by and through their

Trustees and beneficiaries) knew or should have had known about.

142. Upon being notified that the Plaintiff discovered the extent of the contamination in/ about the


conform ... in which event the [Trusts] shall give written notice thereof to the [Plaintiff] at or before

the time for performance hereunder."

143. In breach of their obligations under the P&S, the Trusts refused and failed to utilize any efforts



full return of the deposit under the P&S on November 9, 2020.

145. The Trusts have refused and failed to return any portion of the Plaintiffs deposit until Plaintiff

execute a full release of claims.

146. The Trusts' refusal and failure to return Plaintiffs deposit has left Plaintiff damaged.

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COUNTX -Conversion - Deposit-




148. Upon executing the P&S, Plaintiff paid, as a component of the P&S, a deposit of Two

Hundred Thousand dollars ($200,000.00).


of any notice of"violation of zoning, building, health, environmental or other Applicable Laws"; nor

"Hazardous Materials ... in, on, under, about or adjacent to the Premises"; nor any "articles or



of contamination in/ about the Premises which Plaintiff contends the Trusts (by and through their

Trustees and beneficiaries) knew or should have had known about.

151. Upon being notified that the Plaintiff discovered the extent of the contamination in/ about the


conform ... in ,"vhich event the [Trusts] shall give written notice thereof to the [Plaintiff! at or before

the time for per~ormance hereunder."

152. In breach of their obligations under the P&S, the Trusts refused and fuiled to utilize any efforts



full return of the deposit under the P&S on November 9, 2020.

154. Despite the Trusts' obligation to return Plaintiffs deposit and Plaintiff's demand for same, the

Trusts have intentionally and wrongfully maintained control of Plaintiffs deposit.

155. As a result of the Trusts' conversion of Plaintiffs deposit, Plaintiff has been damaged.

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I

COUNTXI ~ Unjust Enrichment - Pennits/ Authority to Develop & Increased Value to Land~

O,·erlook Acres, LLC v. Defendant Trusts



157. Based upon the Trusts' misrepresentations that they were not aware of any "violation of

zoning, building, health, environmental or other Applicable Laws"; nor "Hazardous Materials .. .in,

on, under, about or adjacent to the Premises"; nor any "articles or substances on the Premises which

are toxic or hazardous", Plaintiff entered into the P&S Agreements.

158. In reliance upon the Trustees' written representations and warranties within the P&S, Plaintiff

began the process of performing its due diligence.

159. A component of Plaintiffs due diligence involved having the Premises inspected by a Licensed

Site Professional ("LSP") for purposes of having a Phase I and Phase II Environmental Site

Assessment ("ESA'') performed.

160. During the interview with Plaintiffs LSP, Trustee Kathleen Ingemi stated that she had lived

upon the Premises for 65 years, and her family had owned the Premises for many additional years

before that.

161. During the interview with Plaintiffs LSP, Trustee Kathleen Ingemi stated that the Premises

consisted of vacant land and that she had no knowledge of the land being used for any purpose and

that she had no knowledge of any contamination or hazardous material in/about the Premises.

162. Based upon the Trusts' aforementioned misrepresentations, Plaintiff moved forward with its

prospective purchase of the Premises, which included but is not limited to: surveying the Premises;

conducting a title exam; multiple meetings with architects and engineers; securing drawings and plans

for the development of the Premises; applying for permits; and multiple meetings with lawyers and

City of Salem officials.

20

163. As a result of Plaintiffs extensive efforts and investment of time and money, permits were

approved and secured allowing for the development of 280 residential units upon the Premises.

164. It was not until after permits were acquired allowing for the development of 280 residential

units upon the Premises that boring samples revealed significant automobile shredding residue,

exceeding thirty-five (35) feet below surface as well as elevated and hazardous levels of polychlorinated

biphenyls ('PCBs"); volatile organic compounds ('VOCs"); total petroleum hydrocarbons ("TPHs");

and total metal and polycyclic aromatic hydrocarbons ('P AHs'').

165. The elevated levels of the hazardous contaminants found throughout the Premises represent

a significant and imminent risk of harm to the public and the environment and remediation of the

Premises has been estimated to cost between $12,000,000.00 and $34,000,000.00.

166. Upon learning of the nature, extent, and scope of hazardous contamination in/ about the

Premises, Plaintiff met with the Defendant Trustees on November 6, 2020 ("November 6 Meeting").

167. At the November 6 Meeting, the Trusts indicated that they would not deliver the Premises

free of contamination, which caused the Plaintiff to terminate the P&S.

168. Despite the termination of the P&S, the permits and authority rights to develop a 280-unit

residential complex were secured by Plaintiff, for the betterment of the Premises.

169. As the owners of the Premises, the Trusts' have been unjustly enriched, to the cost and

detriment of Plaintiff, by virtue of benefitting from the costs of evaluating/identifying the full scope

of the hazardous environmental conditions at the Premises, and the costs associated with acquisition

of the permits and authority rights to the development running with the land paid for by the Plaintiff,

which significan,tly increase the value of the Premises.

21

COUNTXII -Fraud-




171. At all times relevant to this action, and for years prior thereto, Defendant Kathleen Ingemi

and Defendant Stephen Ingemi are Trustees of the Defendant Trusts.

172. In the P&S Agreements, the Trusts, by and through its trustees Kathleen Ingemi and Stephen

Ingemi, intentionally made representations and warranties that, according to their alleged knowledge,

there were no hazardous materials or contamination present upon the Premises.

173. During Plaintiff's due diligence, Plaintiff's LSP responsible for performing Phase I and Phase

II Environmental Assessments interviewed Trustee Kathleen Ingemi specifically with respect to her

knowledge about the use of the Premises and whether/ not there was any hazardous materials and/ or

contamination upon the Premises.

174. During her interview with Plaintiff's LSP, Trustee Kathleen Ingemi denied any such

knowledge of the existence of hazardous materials and/ or contamination upon the Premises.

175. Plaintiff reasonably relied upon the representations, warranties, and statements of the

Defendant Trusts.

176. Based upon the extraordinary levels and extent of hazardous contamination found upon the

Premises, as well as Tmstee Kathleen Ingemi's personal involvement in municipal hearings relating to

the necessary clean-up of the Premises dating back several decades, it has since become apparent that

the Defendant Tmsts possessed actual knowledge of the presence of hazardous materials and


177. Had Plaintiff been made aware of the past use(s) of the Premises and/ or the presence of the

hazardous material and contamination, Plaintiff would not have entered into the P&S Agreements,

22

nor would Piaip.tiff have e..,-pended hundreds of thousands of dollars towards seeking

permits/approvals allowing for the development of the Premises.

178. The Defendant Trusts knew of the past uses of the Premises and knew of the presence of

hazardous materials and contamination, however, the Defendant Trusts did not disclose such

conditions to the Plaintiff despite Plaintiffs direct inquiry.

179. The Defendant Trusts refused and failed to disclose the past uses of the Premises and the

presence of hazardous materials and contamination for purposes of inducing Plaintiff into purchasing

the Premises for the benefit of the Defendant Trusts, i.e., sale of the Premises.

180. The Defendant Trusts refused and failed to disclose the past uses of the Premises and the


the Premises so as to avoid the liability associated with the costs associated with the remediation of

the hazardous materials and contamination upon the Premises.

181. The aforementioned fraudulent actions of the Defendant Trusts Kathleen Ingemi and Stephen

Ingemi have caused Plaintiff to sustain damages.

COUNT XIII -Fraud-

Overlook Acres. LLC v. KB Real Estate, Inc.

182. KB Real Estate operates as a domestic profit corporation organized under the laws of the

Commonwealth of Massachusetts since August 25, 1994.

183. KB Real Estate's conducts business as a real estate office, and through its broker, Kathleen

Ingemi (lv1A Broker License No.: 137056), lists, advertises and brokers the purchase and sale of real

estate in the Commonwealth of Massachusetts.

184. KB Real Estate's principal office; registered agent; and broker are located at 381 Highland

Avenue, Salem, MA, a parcel located within the subject Premises.

185. KB Real Estate's president, Kathleen Ingemi has lived upon the Premises for over 65 years.

23

186. KB Real, Estate was the broker handling the sale of the Premises to the Plaintiff and was

scheduled to receive a commission from the sale of the Premises.

187. KB Real Estate's president, Kathleen Ingemi, was also a Trustee of the Defendant Trusts that

held/ owned the Premises.

188. In the P&S Agreements, KB Real Estate's president, Kathleen Ingemi, made representations

and warranties that, according to her alleged knowledge, there were no hazardous materials or

contamination present upon the Premises. '

189. During Plaintiffs due diligence, Plaintiffs LSP responsible for performing Phase I and Phase

II Environmental Assessments interviewed KB Real Estate's president Kathleen Ingemi specifically

with respect to her knowledge about the use of the Premises and whether/ not there was any hazardous

materials and/ or contamination upon the Premises.

190. During her interview with Plaintiffs LSP, KB Real Estate's president Kathleen Ingemi denied

any such knowledge of the existence of hazardous materials and/ or contamination upon the Premises.

191. Plaintiff reasonably relied upon the representations, warranties, and statements of KB Real

Estate's president, Kathleen Ingemi.


Premises, as well as KB Real Estate's president, Kathleen Ingemi's personal involvement in municipal

hearings relating to the necessary clean-up of the Premises dating back several decades, it has since

become apparent that KB Real Estate's president Kathleen Ingemi possessed actual knowledge of the

presence of hazardous materials and contamination upon the Premises.



nor would Plaintiff have expended hundreds of thousands of dollars towards seeking

permits/ approvals allowing for the development of the Premises.

24

194. KB Real ];:state knew of the past uses of the Premises and knew of the presence of hazardous

materials and contamination, however, KB Real Estate did not discloses such conditions to the

Plaintiff despite Plaintiff's direct inquiry.

195. KB Real Estate refused and failed to disclose the past uses of the Premises and the presence

of hazardous materials and contamination for purposes of inducing Plaintiff into purchasing the

Premises for KB Real Estate's own financial gain, i.e., the sales commission.

196. As a result of KB Real Estate's fraudulent actions while in the business of a real estate

brokerage furn have caused Plaintiff to sustain damages.

COUNTXIV ~Fraud~

Overlook Acres, LLC v. Kathleen Ingemi & Stephen Ingemi.



198. The Defendant Trusts operate as nominee trusts as there is a parallel identity of trusteeship

and ownership in connection with the holding of title to real estate by trustees.




and Defendant Stephen Ingemi are beneficiaries of the Defendant Trusts.

201. As Trustees and beneficiaries of nominee trusts, Defendants Kathleen Ingemi and Stephen

Ingemi are not afforded the protections of G.L. c. 203, § 14A.

202. In the P&S Agreements, the Trusts, by and through Kathleen Ingemi and Stephen Ingemi,

intentionally made representations and warranties that, according to their alleged knowledge, there

were no hazardous materials or contamination present upon the Premises.

25


II Environmental Assessments interviewed Kathleen Ingemi specifically with respect to her



204. During her interview with Plaintiffs LSP, Kathleen Ingemi denied any such knowledge of the

existence of hazardous materials and/ or contamination upon the Premises.

205. Plaintiff reasonably relied upon the representations, warranties, and statements of Defendants

Kathleen Ingemi:and Stephen Ingemi.


Premises, as well as Defendant Kathleen Ingemi's personal involvement in municipal hearings relating

to the necessary clean-up of the Premises dating back several decades, it has since become apparent

that Defendants Kathleen Ingemi and Stephen Ingemi possessed actual knowledge of the presence of

hazardous materials and contamination upon the Premises.




permits/ approvals allowing for the development of the Premises.

208. Defendants Kathleen Ingemi and Stephen Ingemi knew of the past uses of the Premises and

knew of the presence of hazardous materials and contamination, however, Defendants Kathleen

Ingemi and Stephen Ingemi did not disclose such conditions to the Plaintiff despite Plaintiffs direct

inquiry.

209. Defendants Kathleen Ingemi and Stephen Ingemi refused and failed to disclose the past uses

of the Premises and the presence of hazardous materials and contamination for purposes of inducing

Plaintiff into purchasing the Premises for Defendants K,~thleen Ingemi and Stephen Ingemi's own

26

financial gain, i.e., receipt of funds from the sale of the Premises through their beneficial interest in

the Defendant Trusts.

210. Defendants Kathleen Ingemi and Stephen Ingemi refused and failed to disclose the past uses

of the Premises and the presence of hazardous materials and contamination for purposes of inducing

Plaintiff into purchasing the Premises so as to avoid the liability associated with the remediation of

the hazardous materials and contamination upon the Premises.

211. The aforementioned fraudulent actions of the Defendants Kathleen Ingemi and Stephen

Ingemi have caused Plaintiff to sustain damages.

COUNT2'.'V - Violation of G.L. c. 93A




213. The Defendant Trusts operate as nominee trusts as there is a parallel identity of trusteeship

and ownership in connection with the holding of title to real estate by trustees.



215. In the P&S Agreements, the Trusts, by and through their Trustees Kathleen Ingemi and

Stephen Ingemi, made representations and warranties that, according to their alleged knowledge, there

were no hazardous materials or contamination present upon the Premises.


II Environment~! Assessments interviewed Trustee Kathleen Ingemi specifically with respect to her


contamination upon tl1e Premises.

27

217. During her interview with Plaintiffs LSP, Trustee Kathleen Ingemi denied any such

knowledge of the existence of hazardous materials and/ or contamination upon the Premises.

218. Plaintiff reasonably relied upon the representations, warranties, and statements of Trustee

Kathleen Ingemi and Trustee Stephen Ingemi.


Premises, as well as Trustee Kathleen Ingemi's personal involvement in municipal hearings relating to

the necessary clean-up of the Premises dating back several decades, it has since become apparent that

Trustees Kathleen Ingemi and Stephen Ingemi possessed actual knowledge of the presence of

hazardous materials and contamination upon the Premises.





221. The Defendant Trusts knew of die past uses of the Premises, and knew of the presence of

hazardous materials and contamination, however, the Defendant Trusts did not disclose such

condition~ to die Plaintiff despite Plaintiffs direct inquiry.

222. The Defendant Trusts refused and failed to disclose the past uses of die Premises and the


the Premises for the Defendant Trusts' own financial gain, i.e., the sales price.

223. The Defendant Trusts refused and failed to disclose die past uses of die Premises and die


die Premises so as to avoid the liability associated widi die remediation of the hazardous materials and


28

224. The Defendant Trusts' failure and refusal to disclose the past uses and presence of hazardous

materials and contamination represent a violation of 940 CMR 3.16.

225. The aforementioned unfair and deceptive acts and practices of the Defendant Trusts' and the

Defendant Trusts' violation of 940 CMR 3.16 have caused Plaintiff to sustain damages.

COUNT A'VI - Violation of G.L. c. 93A -

Overlook Acres. LLC v. KB Real Estate. Inc.



227. KB Real Estate operates as a domestic profit corporation organized under the laws of the

Commonwealth of Massachusetts since August 25, 1994.

228. KB Real Estate's conducts business as a real estate office, and through its broker, Kathleen

Ingemi (MA Broker License No.: 137056), lists, advertises and brokers the purcliase and sale of real

estate in the Commonwealth of Massachusetts.

229. KB Real Estate's principal office; registered agent; and broker are located at 381 Highland

Avenue, Salem, l'vfA, a parcel located within the subject Premises.

230. KB Real:Estate's president, Kathleen Ingemi has lived upon the Premises for over 65 years.

231. KB Real Estate was the broker handling the sale of the Premises to the Plaintiff and was

scheduled to receive a commission from the sale of the Premises.

232. KB Real Estate's president, Kathleen Ingemi, was also a Trustee of the Defendant Trusts that

held/ owned the Premises.

233. In the P&S Agreements, KB Real Estate's president, Kathleen Ingemi, made representations

and warranties that, according to her alleged knowledge, there were no hazardous materials or

contamination present upon the Premises.

29


II Environmental Assessments interviewed KB Real Estate's president Kathleen Ingemi specifically

with respect to her knowledge about the use of the Premises and whether/not there was any hazardous

materials and/ or contamination upon the Premises.

235. During her interview with Plaintiff's LSP, KB Real Estate's president Kathleen Ingemi denied

any such knowledge of the existence of hazardous materials and/ or contamination upon the Premises.

236. Plaintiff reasonably relied upon the representations, warranties, and statements of KB Real

Estate's president, Kathleen Ingemi.


Premises, as well as KB Real Estate's president, Kathleen Ingemi's personal involvement in municipal

hearings relating to the necessary clean-up of the Premises dating back several decades, it has since

become apparent that KB Real Estate's president Kathleen Ingemi possessed actual knowledge of the

presence of hazardous materials and contamination upon the Premises.

238. Had Plaintiff been made aware of the past use(s) of the Premises and/or the presence of the




239. KB Real Estate knew of the past uses of the Premises, and knew of the presence of hazardous

materials and contamination, however, KB Real Estate did not discloses such conditions to the

Plaintiff despite Plaintiff's direct inquiry.

30

240. KB Real. Estate refused and failed to disclose the past uses of the Premises and the presence

of hazardous materials and contamination for purposes of inducing Plaintiff into purchasing the

Premises for KB Real Estate's own financial gain, i.e., the sales commission.

241. As a result of KB Real Estate's unfair and deceptive acts and practices while in the business

of a real estate brokerage firm have caused Plaintiff to sustain damages.

VI. PRAYERS FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court

1. Enter judgment in Plaintiff's favor on all Counts of this Verified Complaint; and

2. Issue such other relief as is just or appropriate.

Date: \•.)o "d\ Respectfully submitted, Plaintiff, Overlook Acres, LLC By its attorneys,

Tinti 1-J;a;.v,in,rl>'f'

27 Congress Street, Suite 414 Salem, MA 01970 (978) 745-8065 [email protected]

VERIFIC1\ TION

~-.~ ~-q .r,;i -or= cs- ~£'1

l hereby certify, under the penalties of perjury, that I have read the above Verified Compf;nt ~IP that I believe that the facts stated therein are true, and that no material facts have been om1ttc(h

'i}o therefrom. ,,.. c:: -0. ::0 . .:.J --4

S4,,d"' @. C\ d,y of~-'°"• rmdoc ,ho pruru •~f , __

31

DOCKET NUMBER

CIVIL ACTION COVER SHEET ~7JC V lW ti--- I} Trial Court of Massachusetts m The Superior Court W

PlAtNTJFF(S): Overlook Acres, LLG COUNTY

ADDRESS: 5 Briscoe Street Unit 2,'Beverly, MA

DEFENDANT(S): Kath teen Ingemi & Stephen lngeml as Trustees of the John M. Ingemi Realty ----------------------------Trust & Stephen Ingemi. Trustee of the J.L Realty Trus & Kath!een lngem!. Trustee ·of;the Barnes

ATTORNEY: Thomas J. Hogan Road Trust & KB Ral Estate, Inc. & Kathleen Ingemi & Stephen Ingemi, Individually

ADDRESS: Tinli Navins, P.C., 27 Coogress Street.,Sulte 414 ADDRESS: KB Real Estate. Inc. - 381 Highland Ave., Salem, MA

Salem, MA 01970 KathJeen lngeml -381 Hlghland Ave •• Salem, MA

Stephen Jngemi-17 Vtsta Ave., Sa!em, MA

B80: 657919

TYPE OF ACTION AND TRACK DESIGNATION (see reverse side) CODE NO. TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN MADE?

BE1 Fraud/Breach of Contract _A__ 181 YES O NO

*If "'Other" pf ease describe:

Is there a claim under G.L. c. 93A? Is this a class action under Mass. R. Civ. P. 237 181 YES O NO □ YES 181 NO

STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, § 3A

The foltowing is a full, itemized and detailed statement of the facts on which the undersi9ned plaintiff or plaintiffs counsel relies to determine money damages. For this form, disregard double or treble damage claims; indicate stng1e damages only.

TORT CLAIMS (attach additional sheets as necessary)

A. Documented medical expenses to date: 1. Total hospital expenses .... _ .. ____ , ............................................................................................................................................ . • 2. Total doctor expenses .................................................................................................................................................................. .. • 3. Total chiropractic expenses .......................................................................................................................................................... . • 4. Total physical therapy expenses .................................................................................................................................................. . 5. Total other expenses (describe below) ......................................................................................................................................... . $

Subtotal (A): l>,c_ ___ _

CONTRACT CLAIMS (attach additional sheets as necessary)

D This action includes a claim involving collection of a debtincurred pursuant to a revolving credit agreement. Mass. R. Civ. P. 8.1(a}. Provide a detailed description of claim(s):

Defendants' fraudulently induced Plaintiff into entering a contract relating to the purchase of several parcels of land.

Signature of Attorney/ Unrepresented Plaintiff: X '-.. Date: 1/20/21

RELATED ACTIONS: Please provide the case number. se~ ~ any related actions pending in the Superior Court.

•.. • CERTIFICATION PURSUANT TO SJC RULE 1:18 I hereby certify that I have complied with requirements of Rule 5 of !he Supreme Judicial Court Uniform Rules on Dispute Resolution {SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of !he various methods of dispute resolution.

Signature of Attorney of Reco : X '-~ ,,.--......_ Date: 1/20/21

commonwealth of massachusetts esse..-x, ss. superior …

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