MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

STEARNS, District Judge.

This action, which sounds primarily in fraud, arises out of an alleged multi-party real estate mortgage scheme in which plaintiffs Robert Smith and Maria DaSilva claim to have been victimized. On June 16, 2009, 626 F.Supp.2d 155 (D.Mass.2009), the court issued a Memorandum and Order granting in part and denying in part certain defendants' motions to dismiss. Six of the remaining defendants have now moved for summary judgment.1 The court heard oral argument on April 8, 2010.

BACKGROUND

The Dighton Property

Smith suffers from schizophrenia, depression, post traumatic stress disorder, and mild mental retardation. Smith has heard voices in his head since suffering traumatic injuries while serving in the United States Marine Corps from 1978 to 1980. Smith is homeless and functionally illiterate. In January of 2005, Smith was working as a trash collector for Waste Management Corporation (WMC) in the Fields Corner neighborhood of Dorchester. Smith was approached while at work by a woman who introduced herself as Laurice Taylor. Taylor told Smith that she worked at a nearby RE/MAX office on Dorchester Avenue.2, 3

Taylor invited Smith to participate in a "special investment program" through RE/MAX. Taylor told Smith that he would receive $10,000 and would not have to invest any money. Smith testified that Taylor told him that she and Dwight Jenkins, a codefendant in the case and the alleged mastermind of the scheme, would "take care of everything." Smith Dep. at 64. Smith testified that he visited Taylor at the RE/MAX office in Dorchester where he met several other RE/MAX employees. Taylor showed Smith a form from NEMCO, which purported to list the documentation that he would require to become an "investor."

Rachel Noyes, an independent contractor associated with NEMCO, completed a loan application on Smith's behalf (and without his knowledge).4 The application contained numerous false statements, among them: (1) that the application had been completed in a face-to-face interview; (2) that Smith's monthly income was $7,500 (or $90,000 annually); (3) that Smith had two separate bank accounts totaling $18,500; (4) that Smith had completed fourteen years of school; (5) that Smith had rented his current residence for five years; (6) that he had been employed by WMC for four and one-half years; (7) that he had a net worth of $397,037; and finally, (8) that he intended to occupy the listed property as his primary residence.

In February of 2005, upon Taylor's instruction, Smith went to the office of Attorney Robert Kelley in Braintree, Massachusetts.5 Unbeknownst to Smith, he was attending a closing on a home in Dighton, Massachusetts. Taylor was present, along with James Adamos (a purported representative of Century 21).6 Smith unwittingly "borrowed" $411,964.24, secured by two mortgages issued by Fremont, the lender to whom NEMCO had submitted Smith's loan application.7 The Purchase and Sale Agreement (P & S) signed by Smith read, in part,

Smith did not read any of the closing documents, including those that he signed. He alleges that defendants lulled him into believing that they had his best interests in mind. Smith states that he was told that RE/MAX "would pay all of the bills and manage the properties and deal with the tenants and collect the rents and shovel the snow and pay the taxes. . . . All I did—I just believed what RE/MAX and Century 21 were telling me what the truth was, that they were going to take care of the property and I trusted them to do what they told me they were going to do." Smith Dep. at 65-66. Smith testified that although he did not understand the documents, he signed them because he was "just thinking about [his] money." Id. at 129. With regard to the assurances given him by Century 21, Smith testified that he was told that "[t]hey would take care of whatever they were supposed to take care of and I really—that went over my head because I wasn't even thinking about nothing. The only thing I was thinking about was my $10,000." Id. at 402.

Several days after the Dighton closing, Smith went to RE/MAX's office and received a check in the amount of $10,000. Unbeknownst to him, Smith had signed a document giving Jenkins a power of attorney over the Dighton property. Smith testified that he also received $500 in cash from Laurice Taylor. Jenkins received a "contract release" fee of $42,000 as a result of the Dighton closing. NEMCO received a broker's commission of $8,800, of which ninety percent was remitted to Noyes.

The Boston Property

Several days later, Smith was contacted by Attorney Kelley and instructed to attend a second closing on February 28, 2005. On this occasion, Philip Goodwin of Union Capital filled out a loan application for a residential property on West Cottage Street in Boston.8 The application falsely stated that Smith's monthly income was $9,754, including employment income of $7,129 per month. An Ivana Foley from Century 21 was present. Foley gave Smith her business card and introduced herself, but according to Century 21, she had no further conversation with Smith, nor did she have any contact with Smith afterwards.9 Smith testified that Foley told him "that everything will be okay and she gave me the business card. . . . And I was thinking everything was okay because she said, Don't worry about nothing, they'll take care of everything. Everybody was telling me the same story." Smith Dep. at 214.

The P & S for the Boston property included the following language.

On signing the closing documents, Smith had unwittingly borrowed $437,198.13 for the purchase of the Boston property, secured by two mortgages from Meritage. Jenkins received a contract release fee of $41,500, while Century 21 received a broker's commission of $18,950.

Smith testified that he had no understanding of either the Dighton or the Boston transaction. He was unaware that the documents he had signed involved real estate, or that he was borrowing money to make the purchases. Smith did not tell anyone at the closings that he could not read, that he was uncomfortable signing documents, or that he did not understand what the documents said. Nor did he ask anyone to explain any of the documents to him.

The Dighton and Boston properties were eventually foreclosed after Jenkins failed to make payments on the mortgages. Smith testified that the severity of the voices in his head increased after September of 2005, and that his previous "symptoms [are] worse because I'm going through this stuff."10 Smith Dep. at 240.

DaSilva's Allegations

DaSilva met Jenkins in 2004, after her boyfriend told her that Jenkins could offer her an opportunity to make money. At the time, DaSilva was 22 years-old and working as a security guard. Jenkins told DaSilva that if she purchased designated properties (with no money down), he would find tenants, collect the rents, and pay the mortgages. DaSilva would simply be a straw-woman and receive $10,000 at each closing and another $10,000 when a property was sold. DaSilva did not investigate Jenkins or his proposal. DaSilva admits that she understood that the transactions involved real estate, that she would own the properties, and that she would be obligated on the mortgage loans. However, she trusted Jenkins to take care of the payments, and anticipated that having the loans paid in her name would improve her credit rating.

On December 3, 2004, DaSilva met with Jenkins and signed a number of documents without reading them. Jenkins told DaSilva that the documents were necessary to qualify her for a loan. DaSilva signed the documents in the back of Jenkins' car, as she was in a hurry to get back to work. Among the documents that DaSilva signed was a Uniform Residential Loan Application. The application falsely reported DaSilva's employment income as $7,654 per month, plus an anticipated $1,875 in monthly rental on the purchased property. The application further stated that DaSilva had $21,345 in an account at Sovereign Bank. Philip Goodwin of Union Capital completed the loan application.

On December 30, 2004, DaSilva met with Jenkins to close on a property in Brockton for a price of $440,000. The only persons present at the closing were DaSilva, her boyfriend, Jenkins, an unidentified seller, and an attorney whose identity is not clear. Jenkins gave DaSilva a check for $5,000. He later gave her another $5,000 in cash. DaSilva signed a Borrower's Certification and Authorization form, acknowledging that she had completed a loan application containing information about, inter alia, her employment, income, and assets. She certified that the information was "true and correct." Union Cap. Ex. `I'.

DaSilva was given copies of the closing documents but she did not read them because she "trusted the lawyer." DaSilva Dep. at 68. DaSilva later testified that although she knew that she was buying a house, she had not visited the property, nor did she know the sale price. "I didn't know how much I was paying for it. I didn't—I wasn't thinking about it and I didn't ask because I was—I was there for, you know, basically for the investment. I was there for my [$]10,000 in the beginning, [$]10,000 in the end, that the property would be bought, the property would be sold. That's basically what it was." DaSilva Dep. at 71-72. She additionally stated that she knew that she was "making $20,000 for really not doing much." Id. at 75-76. As a result of the Brockton closing, Jenkins received $15,954.30. Union Capital netted $11,915.

At the Brockton closing, DaSilva signed a second loan application containing the same income and asset information as the first. The second application was completed by Mid City, a mortgage brokerage company formed in 2003.11 Mid City hired Lucio Avila in 2003 as a mortgage originator/loan officer. Avila worked for Mid City until April of 2007. In December of 2004, Adamos asked Avila to provide mortgage brokerage services to DaSilva in connection with a property in Whitman. Adamos told Avila that DaSilva was employed as an operations manager by OneWorld OneLink Car Wholesalers (OneWorld), a job that she had held for three years. Adamos also told Avila that DaSilva's monthly income was $7,000, and that she intended to occupy the property as her primary residence. In reality, DaSilva had never worked for OneWorld, she earned only $1,600 per month, and she had no intention of living in Whitman.12

Avila ran a credit check on DaSilva and also contacted OneWorld to verify DaSilva's employment.13 Avila generated two loan applications for the Whitman property, one for $276,000, and the other for $69,000. He sent the two applications to DaSilva for her signature. DaSilva signed both applications without reviewing them. After receiving the signed loan applications, Mid City shopped the applications to potential lenders. People's Choice Home Loan, Inc., offered to make the two loans to DaSilva. The loans for which DaSilva was approved were "stated-income" or so-called "liar's loans"—that is, People's Choice did not require verification of any of DaSilva's financial information.

Both of the loan applications signed by DaSilva included an "Acknowledgment and Agreement," pursuant to which DaSilva affirmed that she

On January 7, 2005, DaSilva went to an unidentified lawyer's office at Jenkins' instruction. In the now familiar scenario, DaSilva received 100 percent financing for the $345,000 purchase of a home in Whitman. The P & S for this property contained the same language as the Brockton P & S.

At the Whitman closing, DaSilva signed two Loan Origination and Compensation Agreements, two Brokerage Agreements, and two Mortgage Loan Origination Agreements. The Brokerage Agreements stated in part that "[Mid City] is not responsible for any false information given by the applicant; the application then becomes null and void." DaSilva also signed an Occupancy Affidavit and Financial Status form, representing that she would occupy the Whitman property by February 6, 2005. DaSilva stated that she knew that if she failed to move into the property by the specified date, she might be subject to prosecution. Subsequent to the closing, Jenkins gave DaSilva $5,000 in cash in a supermarket parking lot.14 As a result of the closing, Jenkins received $24,500, and Mid City received a total of $7,700.

Several months after the closings, DaSilva learned that the mortgages were in arrears, that the properties were in a deteriorated condition, and that some tenants were not paying rent. Both properties were eventually sold at public auction. DaSilva has never complained of or been treated for any emotional distress related to her involvement in the transactions.

DISCUSSION

Defendants argue at the outset that they are completely exempt from liability for the actions of independent contractors. NEMCO argues, for example, that Noyes was an independent contractor who worked out of her own office (for which she paid all the expenses) and managed her brokerage business without supervision by NEMCO.15 NEMCO maintains that if Noyes inserted false or incorrect information in a loan application, she did so without NEMCO's knowledge and was acting outside of the scope of any employment relationship that she had with NEMCO.

RE/MAX similarly argues that it cannot be held liable for the conduct of Taylor and Mosley, who it contends were independent contractors with neither apparent nor implied authority to act on its behalf.16 RE/MAX's independent contractor agreements with Taylor and Mosley specifically stated that they could not bind RE/MAX by any promise or representation "unless specifically authorized in advance and in writing by RE/MAX." Warren Aff. Ex. A.

Finally, Century 21 states that it hired Adamos as an independent contractor in 2004. Century 21 contends that it would not have allowed Adamos or any other sales agent to provide false documentation to a mortgage lender, and that it is unaware of any false documents signed by any Century 21 sales agent from 2004 to 2006. It informed Adamos that he was not permitted to do real estate work for any other entity during his affiliation with Century 21, and was not permitted to conduct any mortgage brokering business.

A principal has liability for an agent's acts "only if the agent was acting within the actual or apparent authority of the principal in that transaction." Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 743, 729 N.E.2d 1113 (2000). Even assuming for sake of argument that the named contractors did not have actual authority to bind defendants, they may nonetheless be held vicariously liable based on the apparent authority doctrine. Apparent authority is "the power held by an agent or other actor to affect a principal's legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." Restatement (Third) of Agency § 2.03 (2006). See also Weisman v. Saetz, 11 Mass.App.Ct. 440, 442, 416 N.E.2d 1007 (1981). It is the conduct of the principal, and not the conduct of the agent, that creates apparent authority. Sheinkopf v. Stone, 927 F.2d 1259, 1269 (1st Cir.1991). Nonetheless, where an agent lacks actual authority, the principal may still be bound if it acquiesces in the agent's action, or fails to promptly disavow the unauthorized conduct after disclosure of material facts. Linkage Corp. v. Trs. of Boston Univ., 425 Mass. 1, 18, 679 N.E.2d 191 (1997) (ratification relates back and has the same effect as a prior grant of authority by the principal to the agent).

Whether an agent had the real or apparent authority to bind its principal is in most cases—as it is here—an issue for the finder of fact. White's Farm Dairy, Inc. v. De Laval Separator Co., 433 F.2d 63, 66 (1st Cir.1970) ("In Massachusetts the proof of agency is held to be ordinarily a question of fact for the jury . . . to be determined from all the evidence and reasonable inferences to be drawn therefrom.") (internal citations omitted); Trans Nat'l Commc'ns, Inc. v. Overlooked Opinions, Inc., 877 F.Supp. 35, 44 (D.Mass.1994) ("The existence and extent of an agency relationship is ordinarily a question of fact to be decided by a jury."). See also Shear v. Gabovitch, 43 Mass.App.Ct. 650, 670, 685 N.E.2d 1168 (1997).17, 18

Count I—Fraud

The fraud claims are brought by Smith against RE/MAX, Century 21, NEMCO and Union Capital. They are brought by DaSilva against RE/MAX, Union Capital and Mid City. To state a claim for fraud in Massachusetts, a plaintiff must allege that "(1) the defendant made a false representation of material fact, (2) with knowledge of its falsity, (3) for the purpose of inducing the plaintiff to act in reliance thereon, (4) the plaintiff relied upon the representation, and (5) the plaintiff acted to his detriment." Armstrong v. Rohm & Haas Co., 349 F.Supp.2d 71, 81 (D.Mass. 2004).

With regard to RE/MAX, Smith alleges that Taylor told him that RE/MAX would take care of everything, and that he relied on Taylor's assurances in agreeing to participate in the investment scheme. Similarly, with regard to Century 21, Smith states that Adamos told him (in Jenkins' presence) that "[Jenkins is] going to be working with us. He know [sic] what he's doing. He's going to manage the property and all that stuff. And he was saying that they were going to take care of the stuff and that's it. . . . He just told me not to worry, that everybody would take care of everything." Smith Dep. at 209-211. Foley purportedly told Smith that everything "would be okay." Id. at 214. Century 21 does not dispute the statements, but characterizes them as "nothing more than pleasantries exchanged at the closing[s]." Century 21's Mem. at 11. Perhaps, but Smith's allegations are sufficient to survive summary judgment. Therefore, RE/MAX's and Century 21's motions will be DENIED as to Smith's claims. RE/MAX's motion will be ALLOWED as to DaSilva's claims, as she has failed to offer evidence that any RE/MAX representative made any misrepresentation to her.19

Turning to the mortgage broker defendants, plaintiffs allege that NEMCO, Union Capital, and Mid City committed fraud by presenting them with completed loan applications that contained false statements overstating each plaintiff's income and ability to repay the loans. It is not disputed that the loan applications contained materially false information. The issue of whether defendants made the statements with knowledge of their falsity and with the intent of inducing plaintiffs to act to their detriment is one of fact. Marram v. Kobrick Offshore Fund, 442 Mass. 43, 59, 809 N.E.2d 1017 (2004). There is, however, a factual issue that can be determined as a matter of law: whether the broker defendants could have reasonably relied on Smith's understanding of what he was signing and being asked to do, or conversely, whether Smith could have reasonably relied on their misrepresentations. A person who executes a document will ordinarily be held to its terms whether or not he or she has read it and whether or not he or she claims to have understood its terms. Spritz v. Lishner, 355 Mass. 162, 164, 243 N.E.2d 163 (1969). In Smith's case, the undisputed facts of his illiteracy and schizophrenia (which defendants acknowledge) could not have escaped these defendants' notice. Therefore, these defendants' motions as to Smith's fraud claims will be DENIED.

The same is not true for DaSilva. Although the court gave her the benefit of every inference at the motion to dismiss stage, the necessary facts are now established and contradict DaSilva's earlier claim that she had no comprehension of the transactions or documents that she signed. It is now clear from the record that DaSilva made no attempt to inform herself as to what she was getting into, despite having had ample opportunity (and the intelligence) to do so. What Justice Holtz observed in a similar case against Union Capital applies equally here.

Macharia v. Jenkins, Civ. Act. No. 06-2460 (Mass.Super. Feb. 18, 2009), slip op. at 6-7. See also Collins v. Huculak, 57 Mass.App.Ct. 387, 392, 783 N.E.2d 834 (2003) (plaintiff's reliance on defendant's representations regarding contents of a document was unreasonable because even a cursory examination of the document would have revealed the truth). A party, in other words, may not claim reasonable reliance on a patently false representation. See Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 468, 781 N.E.2d 787 (2003). Therefore, defendants' motions as to DaSilva's fraud claims will be ALLOWED.

Counts II and III—Violation of the TILA and of Mass. Gen. Laws ch. 140D, § 1, et seq., and 209 CMR 32.00, et seq.

Smith asserts Counts II and III against Fremont. However, it is undisputed that prior to the closing, Smith was in possession of all of the pre-closing disclosures required by the TILA, its Massachusetts statutory counterpart, and their implementing regulations. Smith denies, however, that he was "provided" with the documents as a practical matter, as he did not understand them. (He does not deny their receipt). As Fremont notes, the standard with regard to a TILA claim is an objective one—whether "any reasonable person, in reading the form provided. . ., would so understand it." Melfi v. WMC Mortgage Corp., 568 F.3d 309, 312 (1st Cir.2009) (emphasis added). See also Palmer v. Champion Mortgage, 465 F.3d 24, 28 (1st Cir.2006) (courts must evaluate TILA disclosures "from the vantage point of a hypothetical average consumer—a consumer who is neither particularly sophisticated nor particularly dense."). Here, it is undisputed that Fremont provided all of the requisite forms. Whether Smith was able to understand them is necessarily a subjective inquiry that has no place in the analysis. Fremont's motion will therefore be ALLOWED as to Counts II and III.

Count V—Negligence and Count IX— Breach of Fiduciary Duty

The negligence claims are asserted by Smith and DaSilva against RE/MAX, Century 21, NEMCO, Union Capital, and Mid City. To prevail on a negligence claim, plaintiffs must show: (1) that defendants owed them a legal duty; (2) a breach of that duty; and (3) that plaintiffs suffered damages as a result of the breach. See Glidden v. Maglio, 430 Mass. 694, 696, 722 N.E.2d 971 (2000). Whether a person owes a duty to another is a question of law. Leavitt v. Brockton Hosp., 454 Mass. 37, 40, 907 N.E.2d 213 (2009); Coughlin v. Titus & Bean Graphics, Inc., 54 Mass.App.Ct. 633, 638, 767 N.E.2d 106 (2002). "`The concept of `duty' . . . `is not sacrosanct in itself, but is only an expression of the sum total of . . . considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.'" Luoni v. Berube, 431 Mass. 729, 735, 729 N.E.2d 1108 (2000), quoting W.L. Prosser & W.P. Keeton, Torts § 53, at 358-359 (5th ed. 1984).

With regard to RE/MAX and Century 21, Smith appears to base his negligence claims on the real estate agencies' duty not to perform the real estate contracts in such a way as to cause him harm. See, e.g., Abrams v. Factory Mut. Liab. Ins. Co., 298 Mass. 141, 144, 10 N.E.2d 82 (1937). It is true, that in general terms, Massachusetts courts have recognized that "[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.'" Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260 (2004), citing Restatement (Second) of Torts § 302 comment a (1965). "A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor." Afarian v. Mass. Elec. Co., 449 Mass. 257, 262, 866 N.E.2d 901 (2007).

In the first instance, as defendants accurately point out, absent a showing of personal injury or physical damage to property, the economic loss doctrine bars the recovery of losses incurred because of another's failure to execute a contract according to its terms. See Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 469, 918 N.E.2d 36 (2009); FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395, 613 N.E.2d 902 (1993).20 Smith does argue, with some force, that the breaches of contract led to a deterioration of his credit rating, which in turn caused him embarrassment resulting in emotional distress.21 Although the argument is sympathetic, it simply cannot be said as a matter of law it would be foreseeable to a reasonable lending intermediary that a default on a mortgage obligation would eventually cause emotional distress to a borrower over a lowered credit rating.22 Therefore, defendants' motions with respect to the claims for negligence will be ALLOWED.

The claims for breach of fiduciary duty are asserted by both plaintiffs against Century 21, RE/MAX, Union Capital, NEMCO, and Mid City. With regard to the mortgage brokers, plaintiffs merely argue that the brokers owed them a fiduciary duty as a matter of law. This argument has no support as a general proposition in Massachusetts law. Plaintiffs rely on Haser v. Wright, 2002 WL 31379971 (Mass.Super. Sept. 4, 2002), for their argument that a mortgage broker owes a fiduciary duty to a borrower. However, Haser is inapposite. The Haser court did not rule as a general matter that a mortgage broker owes its customer a fiduciary duty. Rather, the court found that the broker in that case had known the clients for a lengthy period of time and had had numerous interactions with them. Thus, the court found a fiduciary duty based on "the special trust relationship that had developed between these parties." Id. at *4. Haser reflects an exception to the usual rule requiring that a fiduciary relationship be defined by a high degree of trust and formality, namely, that where a plaintiff reposes trust and confidence in a defendant, and the defendant knows of the plaintiff's reliance, a fiduciary relationship may be imposed by law. See Patsos v. First Albany Corp., 48 Mass.App.Ct. 266, 272, 719 N.E.2d 882 (1999) (broker-client); Cahaly v. Benistar Prop. Exch. Trust Co., 68 Mass.App.Ct. 668, 681, 864 N.E.2d 548 (2007) (escrow agent).

According to Smith, he was lured into entering into the transactions because of a misplaced trust in defendants' representations that they were acting in his best interest and, as the court has found, they were fully aware of his gullibility and took advantage of it. As the court has already noted,

June 16, 2009 Mem. and Order, 626 F.Supp.2d at 171. DaSilva, on the other hand, makes no similar argument, nor could she, as it is clear from the record that she was acting not out of reliance on defendants' representations, but out of mercenary self-interest. The motions with respect to Smith's claims of breach of fiduciary duty will be DENIED. The motions with respect to DaSilva's fiduciary claims will be ALLOWED.

Count VI—Breach of Contract and the Covenant of Good Faith and Fair Dealing

Smith asserts these claims against RE/MAX, Century 21, and Fremont. Smith alleges that RE/MAX and Century 21 had a contractual duty (originating with Jenkins) to manage and maintain his properties, collect the rents, deal with the tenants, pay utility bills and mortgages, and to sell the properties in a business-like manner.23 With regard to Fremont, Smith essentially argues that it was obligated to write responsible loans, and to decline to make loans where, as in his case, there was an obvious risk of default. Whether a contract exists is a question to be resolved by the finder of fact. See Brooks v. AIG SunAmerica Life Assurance Co., 480 F.3d 579, 586 (1st Cir.2007). Therefore, the motions will be DENIED as to Smith's contract claims.

The covenant of good faith and fair dealing reflects an implied condition that inheres in every contract "that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471-472, 583 N.E.2d 806 (1991). "The covenant may not, however, be invoked to create rights and duties not otherwise provided for in the existing contractual relationship, as the purpose of the covenant is to guarantee that the parties remain faithful to the intended and agreed expectations of the parties in their performance." Uno Rests., Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385, 805 N.E.2d 957 (2004). Absent a contract, there can be no violation of the covenant of good faith and fair dealing. Mass. Eye and Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir.2005). Because the covenant claims depend upon the survival of the contract claims, and are merely elements to be considered in assessing the gravity of any breach, the motions will be DENIED.

Count X—Conspiracy

These claims are asserted by Smith against Century 21, RE/MAX, NEMCO, and Union Capital. The claims are asserted by DaSilva against Union Capital and Mid City. As the court has previously noted,

June 16, 2009 Mem. and Order, 626 F.Supp.2d at 173. Members of a conspiracy have joint and several liability for the actions of their co-conspirators. See P & B Autobody, 43 F.3d at 1564. Here, plaintiffs allege that various of the defendants worked in concert to coerce plaintiffs into purchasing the properties. Jenkins assembled the group who, in combination, exerted coercive power. Plaintiffs argue that without the mortgage brokers, there would have been no money; without the sales agents, there would have been no properties; and without Jenkins, there would have been no victims.

The record contains sufficient evidence for plaintiffs' conspiracy claims to proceed against all moving defendants named in this count. All four of the property transactions in this case involved Jenkins acting in concert with one or more of the real estate agencies and the mortgage brokers, all of whom (with the exception of RE/MAX) were handsomely remunerated for their efforts.24 The evidence is sufficient for a jury to infer that there may have been a common agreement among the actors, specific to each real estate transaction, although a jury may conclude that there was no rim completing the wheel, only a hub (Jenkins) with separate spokes. This remains to be sorted out at trial.25 Therefore, the motions for summary judgment with respect to the conspiracy claims will be DENIED.

Counts XII and XIII—Intentional and Negligent Infliction of Emotional Distress

These claims are asserted by both plaintiffs against Century 21, RE/MAX, NEMCO, Union Capital, and Mid City. To prevail on a claim of intentional infliction of emotional distress, plaintiffs must show "(1) that the actor[s] intended to inflict emotional distress or that [they] knew or should have known that emotional distress was the likely result of [their] conduct, (2) that the conduct was `extreme and outrageous,' was `beyond all possible bounds of decency' and was `utterly intolerable in a civilized community,' and (3) that the emotional distress sustained by the plaintiff was `severe' and of a nature `that no reasonable man could be expected to endure.'" Ball v. Wal-Mart, Inc., 102 F.Supp.2d 44, 53 (D.Mass.2000), quoting Agis v. Howard Johnson Co., 371 Mass. 140, 144-145, 355 N.E.2d 315 (1976). A claim of negligent infliction of emotional distress requires "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case." Sullivan v. Boston Gas Co., 414 Mass. 129, 132, 605 N.E.2d 805 (1993), quoting Payton v. Abbott Labs, 386 Mass. 540, 557, 437 N.E.2d 171 (1982).

Smith concedes that he suffered from pre-existing psychosis dating back some thirty years. However, he testified that the voices in his head have grown louder as a result of the financial battering he endured because of the real estate frauds. In addition, Smith's sister states in an affidavit that after Smith began receiving collection calls, he

McCray Aff. ¶ 2. Accepting all of this as true, for the same reason that the court has dismissed the negligence claim (foreseeability), the court will ALLOW defendants' motions as to Smith's emotional distress claims. DaSilva has not alleged that she suffered any emotional harm at all. Therefore, the motions will also be ALLOWED as to DaSilva's claims.26

Count VIII—Unjust Enrichment and Count IV—Chapter 93A

Unjust enrichment is a theory of equitable recovery, not a separate cause of action. Lopes v. Commonwealth, 442 Mass. 170, 179, 811 N.E.2d 501 (2004). The equitable remedy is not available to a party who has an adequate remedy at law, as plaintiffs do here. Santagate v. Tower, 64 Mass.App.Ct. 324, 329, 833 N.E.2d 171 (2005). Consequently, this claim will be DISMISSED. Chapter 93A is also an equitable claim that is reserved for the court. Chamberlayne Sch. v. Banker, 30 Mass.App.Ct. 346, 354, 568 N.E.2d 642 (1991). A judge may make a decision on a Chapter 93A claim that is directly contrary to the findings of the jury on a parallel commonlaw claim. Spaulding v. Young, 32 Mass.App.Ct. 624, 626 n. 2, 592 N.E.2d 1348 (1992); Chamberlayne Sch., 30 Mass.App. Ct. at 354-355, 568 N.E.2d 642. As the court informed counsel at the hearing, it will reserve ruling on all Chapter 93A issues until after trial.

ORDER

For the foregoing reasons, defendants' motions for summary judgment are ALLOWED in part and DENIED in part. The claims against the moving defendants that survive for trial are: (1) Smith's fraud claims against RE/MAX, Century 21, NEMCO, and Union Capital; (2) Smith's breach of fiduciary duty claims against RE/MAX, Century 21, Union Capital, and NEMCO; (3) Smith's claims of breach contract and of the covenant of good faith and fair dealing against RE/MAX, Century 21, and Fremont; (4) Smith's conspiracy claims against RE/MAX, Century 21, NEMCO, and Union Capital; (5) DaSilva's conspiracy claims against Union Capital and Mid City; and (5) Smith's Chapter 93A claims against all of the moving defendants. Trial on the surviving claims will commence on September 7, 2010.

SO ORDERED.