UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

____________________________________
  )
RHETTA B. SWEENEY,   )
individually and as Trustee   )
of the MAPLE LEAF REALTY TRUST        )
and of the CANADIAN REALTY   )
TRUST, and JOHN SWEENEY, )     CIVIL ACTION
      ) No. 91-10098-H
  Plaintiffs.   )    
            )
v.           )  
            )
RESOLUTION TRUST CORPORATION,   )
in its capacity as Conservator     )
of COMFED SAVINGS BANK,   )
COMFED MORTGAGE COMPANY, INC.        )
COMFED ADVISORY COMPANY, INC.        )
and DENNIS FUREY,     )
            )
  Defendants.   )
            )
____________________________________)

AFFIDAVIT OF JOHN D. HANIFY




I, John D. Hanify, on oath, depose and say as follows:

1.        I am counsel of record for the Resolution Trust Corporation ("RTC") in this
action and a principal in the law firm of Hanify & King, Professional Corporation. I make this affidavit on the basis of information supplied to me by other employees of this firm who have joined in this affidavit and otherwise on the basis of my personal knowledge.
2.        On December 13, 1990, the RTC assumed control of ComFed Savings Bank
("ComFed") under 12 U.S.C. Section 1811 et. seq. (FIRREA) authorizing the RTC to act as Conservator or receiver of failed savings and loan associations. The RTC's takeover at that time was reported in Boston newspapers of general circulation. As of December 13, 1990, there was pending in the Middlesex Superior Court a Motion for an Additur, a Motion for a New Trial, a Motion to Alter or Amend Judgment, and a Motion for a Remittitur filed by the plaintiffs in this action. Moreover, no judgment had been entered on a jury verdict and plaintiffs' claim under M.G.L. c.93A (incorporating the allegations under the common law counts put to the jury). These matters had been pending before the Court for approximately ten (10) months.
THE SUBSTITUTION OF THE RTC
3.        On January 10, 1991, Hanify & King filed an Emergency Motion to
Substitute the RTC as a party defendant and alerted the Court and plaintiffs' counsel to the RTC's intention to remove the case to federal court. See Exhibit D.
4.        After telephone notice and hand delivery of the Motion for Substitution on
plaintiffs' Boston counsel on January 9, 1991 and by notice via fax on January 10, 1991 on plaintiffs' local and Connecticut counsel, David McCarthy of this office appeared on the afternoon of January 10, 1991 to be heard on the Motion. The matter was heard by Judge John Paul Sullivan. Mr. Weld appeared for the plaintiffs and objected to the substitution on the grounds of inadequate notice and the lack of verified proof that the RTC had in fact put ComFed into conservatorship under 12 U.S.C. Section 1441a (b) (3). Mr. Weld also objected to the RTC's substitution for ComFed's wholly-owned subsidiaries, also named as defendants in this action.
5.        Mr. McCarthy represented to Judge Sullivan that he would file an appropriate
document reflecting the RTC's invocation of conservatorship powers over ComFed by the next day, January 11, 1991. Judge Sullivan responded to Mr. Weld's other objections by indicating that he would allow the substitution as to ComFed Savings Bank only. Judge Sullivan also noted that the RTC had an absolute right to be substituted. Judge Sullivan then suggested that Mr. McCarthy notify Judge Izzo of the removal when it occurred.
6.        On Friday, January 11, 1991, Mr. McCarthy filed with Judge Sullivan a
certified copy of the RTC's Order of Appointment as Conservator of ComFed, which had been recorded in the Middlesex County Registry of Deeds. The substitution was thereupon allowed by Judge Sullivan.
THE REMOVAL
7.        Immediately after Judge Sullivan allowed the substitution, Mr. McCarthy
filed a Notice of Removal with the United States District Court at Boston. See Exhibit E. Thereafter, also on January 11, 1991, Mr. McCarthy caused to be served copies of the Notice as date stamped and certified by the clerk for the United States District Court, by the hand on the clerk, civil business,
Middlesex Superior Court and upon Judge Izzo, c/o Jane M. Haviland, Middlesex Superior Court, Courtroom 7A. Attached as Exhibit 1 is a copy of Hanify & King's receipt, dated January 11, 1991, from Ace Couriers. This messenger service was called to make the hand deliveries to the Middlesex Courthouse – one to the civil clerk's office and a second to Judge Izzo's courtroom clerk. The courier's receipt, also dated January 11, 1991, was executed by Sarah Spinale, a Deputy Clerk for Middlesex Superior court.
8. Simultaneously with the filing in the state court, copies of the Notice of
Removal and transmittal letters to the Clerk and Judge Izzo were sent by first class mail to plaintiffs' attorneys. On the very same day, plaintiffs' counsel, Robert Axelrod, directed a letter to Judge Izzo, copy attached as Exhibit 2, imploring her "to conclude a decision in the case immediately." He further suggested that the motion to substitute was "designed to maneuver a rapid
removal of the case from the state courts to the federal court."
9.        The original docket, which has been retained by the Middlesex Clerk's office,
bears an entry which appears to have been made in ink showing the docketing of the Notice of Removal on January 11, 1991, which entry has been partially erased and written over. A separate entry on January 14, 1991 notes that the action had been removed to this Court and also has been partially erased and written over. These entries nevertheless remain visible upon examination of the original. See Exhibit J (Affidavit of Christine T. Cusack, document examiner).
10.        On January 14, 1991, Kara Lucciola, an associate in this office, called the
Middlesex Superior Court, and spoke with Joan Sullivan, an Assistant clerk, about procedures to secure certified copies of the file in this action for delivery to the United States District Court. Ms. Sullivan discussed with Ms. Lucciola ways and means of accommodating the copying of this large file. Ms. Sullivan said that she had to speak with Theresa Kelly or Mary Cady regarding the process for copying the file. By the conclusion of the conversation it was agreed that the clerk's office would make the certified copies for the removal and call Ms. Lucciola when they were ready.
11. At 3:45 p.m. on January 14, 1991, in deference to Judge Sullivan's
suggestion, Mr. McCarthy of this office called Judge Izzo's Courtroom clerk, Jane Haviland, to confirm that Judge Izzo had been alerted to the removal. Ms. Haviland indicated to Mr. McCarthy that the Judge was aware of the removal.
12.        On January 29, 1991, Ms. Sullivan telephone Ms. Lucciola regarding
the file in this case. Among other things, Ms. Sullivan reported to Ms. Lucciola that due to the large number of cases being removed and the lack of staff, the Clerk's office had adopted a new policy of releasing the original papers for delivery to the United States District court. Ms. Sullivan reported that the clerk's office for the United States District court had been advised of this new policy and had already accepted uncertified originals from the Middlesex Superior Court in other cases.
13.        On January 30, 1991, Ms. Sullivan phoned Ms. Lucciola to say that Hanify &
King could pick up the file. Ms. Lucciola told Ms. Sullivan that a paralegal from our office would be there the next day to pick up the file.
14.        On January 31, 1991, Amory Meigs, a paralegal of Hanify & King, obtained
the file and certified copy of the docket sheets from the Middlesex Clerk's office. The last entry on the last page of the docket was for January 30, 1991, read "Removal Done," and was initialed "J.S."
15.        On February 1, 1991, Ms. Sullivan telephone Ms. Lucciola to report that
additional papers, dated January 31, 1991, had just been received from Judge Izzo. Ms. Lucciola said that she understood that everything which occurred in the case had been given to Hanify & King for delivery to the federal court. Ms. Sullivan replied that she was not sure what the papers were but that Judge Izzo had just sent them over. Ms. Lucciola told Ms. Sullivan that she would come to the Clerk's office that afternoon to examine the papers.
16.        Upon Ms. Lucciola's arrival that afternoon, Ms. Sullivan displayed to Ms.
Lucciola two documents dated January 31, 1991 entitled: (1) Findings of Fact, Rulings of Law and Order Relative to Court II and Count VIII of Plaintiffs' Complaint; and (2) Opinion and Order on Post-Trial and Post-Judgment Motions (collectively, the "post-removal papers"). Ms. Sullivan acknowledged that these papers were issued after the removal. Mr. DiMaio, an Assistant Clerk, was nearby. He indicated to Ms. Lucciola that he had created, on a separate sheet, new docket entries reflecting the post-removal papers at the direction of Judge Izzo. Mr. DiMaio also said he did not send out copies of the papers because the case had already been removed. He gave Ms. Lucciola a copy of the newly-created docket page and the page immediately preceding it. Ms. Lucciola asked him why the Notice of Removal was docketed on January 30, 1991 since the RTC had filed the Notice of Removal on January 11, 1991. Mr. DiMaio stated that he had "fallen behind" on docketing papers.
17.        During Ms. Lucciola's conversation with Ms. Sullivan and Mr. DiMaio, Ms.
Sullivan or Mr. DiMaio called for William Johnston who was identified as the First Assistant Clerk. Mr. Johnston was asked whether he thought it was proper to give notice of a Superior Court decision issued in a case after that case had been removed to federal court. Mr. Johnston said it would not be proper and that the Clerk's office would not send notice under such circumstances. Mr. DiMaio said that he had not sent notice in this case and Mr. Johnston acknowledged that not sending notice was appropriate under the circumstances. Mr. DiMaio also reported that he had confirmed to Judge Izzo's Clerk that the case file had already been delivered to Hanify & King for transmittal to the federal court and that the Judge's Clerk instructed him to docket the post-removal papers anyway. Ms. Lucciola said she would take the papers back to Hanify & King and that someone would thereafter be in contact with the Clerk's office.
18.        On Monday, February 4, 1991, I spoke with Edward Sullivan, Clerk of
the Middlesex Superior Court. Mr. Sullivan confirmed Mr. Johnston's views as expressed to Ms. Lucciola the previous Friday. I informed Mr. Sullivan that we were considering bringing a petition under M.G.L. c. 211, Section 3 before the Supreme Judicial Court to impound the post removal papers and that it was my intention to alert the Attorney General's office.
19.        On the same day, February 4, 1991, I had two telephone conferences
with two Assistant Attorneys General, Douglas Wilkins and William Lee. I explained to each of them in some detail that the action had been removed on January 11, 1991 and that Judge Izzo had nevertheless entered orders in the case on January 31, 1991, under circumstances where it appeared the Judge had knowledge that the case had been removed. I also indicated that the Clerk's office had determined not to send out notice. I confirmed my intention as counsel for the RTC to secure an impoundment of the post-removal papers and indicated that I was in the process of preparing the necessary pleadings to serve on the Attorney General. I requested a meeting with Mr. Montgomery (the First Assistant) or Mr. Wilkins (head of the Government Bureau) to determine if the matter could be resolved without litigation. I was told someone from the Attorney General's office would be in touch with me.
20.        On Tuesday, February 6, 1991, I sent by hand a letter dated February 5, 1991
to Edward Sullivan, Clerk, Middlesex Superior Court, a copy of which is attached as Exhibit 2. On the same day, I wrote to Messrs. Wilkins and Montgomery, enclosing my letter to Mr. Sullivan together with a draft petition under M.G.L. c. 211, Section 3, a copy of which is attached hereto as
Exhibit 3.
21.        On Monday, February 11, 1991, I received a telephone call from Luis Lavin,
an Assistant Attorney General. Mr. Lavin said that the material I had sent to Messrs. Wilkins and Montgomery had been referred to him and that he wanted to see if the problem could be resolved without litigation. I indicated my willingness to tender the original post-removal papers to him, which he declined. He asked me to take no action until he could confer with Judge Izzo and the Clerk's office at Middlesex.
22.        On February 19, 1991, I called Mr. Lavin and expressed my concern that the
matter could not be left unresolved indefinitely. He reported some difficulty scheduling a meeting with Judge Izzo and asked me to wait until February 22
nd, by which time his meeting with the Judge was to have occurred.
23.        Based upon subsequent conversations with Mr. Lavin, I believe he met with
Judge Izzo on February 20
th or 21st: As a result of Mr. Lavin's conversation with Judge Izzo, I believe Judge Izzo learned that I retained the original post-removal papers; that the Clerk had not circulated those papers or otherwise sent them to the parties under Rule 77 (d) of the Massachusetts Rules of Civil Procedure; and that a motion or petition would be filed shortly to secure the impoundment of the post-removal papers. In response to my inquiry, Mr. Lavin stated that he had shown the draft petition for impoundment to Judge Izzo.
24.        On February 21
st, I received a telephone message from Mr. Johnston of
the Middlesex Clerk's office that "Judge Izzo wants all original pleadings not filed with the federal court returned to her."
25.        On the morning of the next day, February 22, 1991, I spoke by telephone with
Mr. Johnston who said that Judge Izzo was upset at the removal; had instructed him to send out copies of the docket, including the newly-created page reflecting entry of the January 31, 1991 post-removal papers; and now wanted the originals returned if they were not going to be filed with the federal court. I informed Mr. Johnston that I had been out of the office the previous afternoon and that I was waiting for a response from Mr. Lavin who I understood had met with Judge Izzo and was representing the Court.
26.        After speaking with Mr. Johnston on February 22
nd, I spoke with Mr. Lavin
that same day. He told me that his meeting with Judge Izzo would not result in a satisfactory resolution of the matter and that I should file whatever I regarded as necessary to protect the RTC's interests. We spoke briefly about a federal forum and he expressed his view that since the action was in the federal court that might be a more appropriate forum. I indicated my intention to supply him with copies of whatever we filed.
27.        On Monday, February 25, 1991, I responded by letter to Mr.
Johnston's requests of Thursday and Friday, February 21
st and 22nd. My letter is attached as Exhibit 4. I also filed with this Court on February 25, 1991 a Motion to Impound the post-removal papers pursuant to Local Rule 7.2 and a Motion to Expunge such papers and enjoin the Superior Court from acting further in the matter. While completing the preparation of such papers, I received a telephone call from Larry Edelman of The Boston Globe who told me that the plaintiffs' counsel had faxed to him a copy of the docket and that he was doing a story on the case. I declined comment. His story appeared in The Boston Globe of February 26, 1991, a copy is attached as Exhibit 5. The text of the story clearly indicates that the reporter had more than the docket sheet. After the Assistant Attorney General spoke with Judge Izzo, plaintiffs' counsel had apparently been in contact with Judge Izzo, on or about February 25, 1991 and had received and circulated a copy of the post-removal papers thereby frustrating the purpose of any Motion to Impound.
28.        On March 1, 1991, I appeared before Judge Woodlock for a hearing on
the motions pending with respect to the post-removal papers. At that time, I was handed copies of plaintiffs' opposition to the RTC's impoundment motion, which attached as an exhibit an initialed copy of Judge Izzo's post-removal papers. The initialed copy is back-dated to January 30, 1991. The original signed by Judge Izzo and now under seal with the Court is dated January 31, 1991.
29.        Except for the post-removal papers now under seal, no one employed by this
firm has removed or retained any papers or documents which were delivered to us by the Clerk of the Middlesex Court. Such documents were delivered to the United States District Court in the same condition in which we received them.
30.        Until receipt of plaintiffs' Memorandum on April 5, 1991, no person in this
office can remember ever having seen or inspected the document attached as Exhibit 4 to the Memorandum. That Exhibit purports to be a copy of the RTC's Notice of Removal bearing a date stamp of January 30, 1991. As reflected by the partially erased entries on the docket sheet, the Notice of Removal was filed by this office on January 11, 1991.
31.        Nowhere in their submission do plaintiffs' counsel disclose where or
how they received Exhibit 4. On April 18, 1991, Michael Burnett, a paralegal of Hanify & King, visited the Middlesex Clerk's Office. Mr. Burnett, at my request, inquired as to whether there were any additional papers in this case retained by the Clerk. He was presented with a small file containing the Complaint and the original Notice of Removal with a filed stamp of January 30, 1991, of which plaintiffs' Exhibit 4 is a copy. Attached to the original Notice of Removal still retained by the Clerk's Office is David McCarthy's original January 11, 1991 transmittal letter.

Signed under pains and penalties of perjury this 19
th day of April, 1991.

          __________________________
          John D. Hanify