DEFENDANT’S MEMORANDUM OF LAW

COMMONWEALTH of MASSACHUSETTS

PROBATE AND FAMILY COURT

ESSEX, ss DOCKET NO. 04D 1906-DVI

___________________________

Robert Paul Nickse,

Plaintiff

v.

Jane C. Daniel,

Defendant

__________________________

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF AMENDED MOTION to SET ASIDE SEPARATION AGREEMENT, Pursuant to M.G.L. 60 (b)(6),

and REQUEST for IMMEDIATE INJUNCTIVE RELIEF

Now comes the defendant, Jane Daniel, (hereinafter “Daniel”, or “Wife”) and hereby submits the following Memorandum of Law in support of her Motion to Set Aside the Separation Agreement Pursuant to Rule 60 (b)(6), (hereinafter, the “Motion”).

1. INTRODUCTION

Pursuant to Rule 60 (b)(6), the Court should set aside the entry of judgment for divorce, and in particular that portion of the parties’ Separation Agreement that provides for a division of the marital estate. In support of her request for relief, the defendant states that the Agreement was inherently unconscionable, is the product of a fraud on the court, was signed under extreme duress and has been brought within a reasonable period of time.

1. STATEMENT OF FACTS AND PROCEDURAL HISTORY

The relevant facts and procedural history as set forth in defendant’s Motion present exceptional circumstances sufficient to meet the requirements of 60 (b)(6), in that the facts and events described in the Defendant’s Motion, as supported by the accompanying exhibits, the separation agreement is blatantly unconscionable as to the division of the marital estate and was procured through egregious misconduct, by officers of the court, that was directed at the judicial machinery itself.

Through a sentient unconscionable scheme, the Plaintiff’s attorney and a third party judgment creditor’s attorney conspired and acted with intention to liquidate the primary marital asset outside of the overview of the Probate Court. For a decade the Defendant was the victim of a systematic campaign of intimidation and duress which included many threats of imprisonment and two actual periods of incarceration. This calculated misconduct, which is ongoing to this day, was perpetrated with the intent to financially benefit the plaintiff and the defendant’s third party judgment creditor by interfering with the divorce proceedings.

Despite the fact that more than one year has elapsed since the Separation Agreement was approved by this Court, given the ongoing nature of the exceptional circumstances existing in this case, the request for relief is timely.

STANDARDS FOR RELIEF PURSUANT TO RULE 60 (B) (6)

Rule 60 (b) (6) permits an independent action …to set aside a judgment for fraud on the court. “Fraud on the Court” is a term of art with a stringent definition. It occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.

“Examples of ‘fraud on the court’ include bribery of judges, employment of counsel to ‘influence’ the court and involvement of an attorney (an officer of the court) in the perpetration of fraud.

Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties of fraudulent documents, false statement or perjury… It is where the court or a member is corrupted or influenced or influence is attempted or where a judge has not performed his judicial function — thus where the impartial function of the court have been directly corrupted.” Bulloch v. United States, 763 F. 2d 1115, 1121 (10^th Cir. 1985).

“The doctrine [of fraud on the court] embraces ‘only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.”

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

Fraud on the court involves the most egregious misconduct . . . by parties as well as by their attorneys. . . The court in Rockdale [Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 638 N.E.2d 29 (Massachusetts Supreme Court 1994)] adopted the definition of fraud on the court detailed by the United States Court of Appeals for the First Circuit: A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’ Rockdale Mgmt. Co. v. Shawmut Bank, N.A.

Only "unusual and exceptional circumstances" warrant relief from judgment based upon an independent action. Alperin & Shubow, Summary of Basic Law § 3.245, at 360 (3d ed. 1996).

EXCEPTIONAL CIRCUMSTANCES

The defendant in this action is no stranger to extraordinary and exceptional circumstances. For more than thirteen years she has been subject to unrelenting and abusive collection actions in connection with a Middlesex Superior Court judgment which originally exceeded $30 million. At the time this judgment issued in favor of two plaintiffs, it was the third largest in the history of the Commonwealth.

Even more incredible, eight years later the Appeals Court found the lower court trial to be “entirely infected by fraud”. Consequently the Appeals Court vacated one plaintiff’s award of $22 million, yet allowed the second plaintiff’s $11 million award, plus interest, to survive, for the reason that Daniel’s meritorious defense in the this instance was time-barred. This judgment, totaling $22 million plus interest, was clearly beyond Daniel’s ability to pay in her lifetime.

Nevertheless, Attorney Frank Frisoli, (hereinafter, “Frisoli”) on behalf of said judgment creditor, inflicted extraordinarily aggressive collection tactics on Daniel, including two incarcerations at MCI Framingham. At the time of the first incarceration Daniel was 65 years old, the oldest prisoner ever to serve time there.

Finally, this case presents evidence that is entirely unique, in that a third party judgment creditor’s improper involvement “infected” the entire divorce proceedings and actually determined the outcome of the divorce. By coercing Daniel into signing a Separation Agreement that overwhelmingly favored the Husband, the Probate Court was effectively deprived of its oversight. None of this would have been possible without the cooperation and collusion of the Husband and his counsel.

For all of the above reasons, despite the passage of eight years, this case presents a meritorious and timely claim under Rule 60 (b)(6).

DURESS

Burton’s Legal Thesaurus defines DURESS as, “an actual or a threatened violence or restraint of a man’s person, contrary to law, to compel him to enter into a contract… [e.g.] Duress of imprisonment, where a man actually loses his liberty. If a man be illegally deprived of his liberty [italics added], until he sign or seal a bond or the like, he may allege this duress and avoid the bond. But if a man be legally imprisoned, and either to procure his discharge or any other fair account, seal a bond or deed, this is not duress of imprisonment and he is not at liberty to avoid it. 2 Inst. 482;3 Caines’ R.168; 6 Mass. R. 511; 1 Lev. 69; Hen & Munf. 350;5 Shepl. R. 338.

In looking at the history of duress, the court stated that at common law duress meant only duress of a person, that is a threat to life, limb or liberty [italics added], and the threat must have been of a nature as to create such fear as would impel a person of ordinary courage to yield to it.

…[U]nder modern views, duress is no longer confined to situations involving threats of personal injury or imprisonment [italics added] and the standard of whether a man of ordinary courage would yield to the threat has been supplanted by a test which requires whether the threat has left the individual bereft of the quality of mind essential to making of a contract. Thus, any wrongful threat which actually puts the victim in such fear as to act against his will constitutes duress… 107 Am. Jur. Proof of Facts, 3d 337.

STANDARDS FOR PROVING DURESS

Two factors must be proven to establish “duress” to set aside a Marital Separation Agreement:

1. that the act sought to be set aside, in this case the Wife’s assent to the Separation Agreement, was effected involuntarily and thus not as an exercise of her free choice or will, and
2. that this condition of mind was caused by some improper and coercive conduct of the opposite side.

In this instance, the Wife was under imminent threat of incarceration from the third-party judgment creditor’s attorney, which was reported to her by her own counsel, Anthony Porcello (hereinafter “Porcello”). As set forth in her motion, on the eve of trial, Daniel met with Porcello in his office. During that meeting, Porcello informed her of the terms contained in a proposed settlement agreement. He also told her he had received a phone call from Attorney Frisoli who was threatening to have her incarcerated if she did not assent to the proposed Separation Agreement.

Her perception of this threat as credible was reasonable, based upon her previous traumatic experience wherein a Gloucester District Court judge had ordered her to be incarcerated at the request of Frisoli.

At the time that Daniel was informed of the proposed terms of the settlement agreement, there was a mittimus in place, obtained by Frisoli just days earlier, that he chose have stayed until shortly after the scheduled date of the contested divorce.

In this case Frisoli’s conduct was improper because the Mittimus under which he threatened to have her incarcerated was obtained from another court in another matter, entirely unrelated to the divorce.

Restatement of Contracts P 492 has defined duress as “(a) any wrongful act by one person that compels a manifestation of apparent assent by another in a transaction without his volition, or (b) any wrongful threat of one person by words or conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment if the threat was intended or should reasonably have been expected to operate as an inducement.”

“…Duress that will provide grounds for avoiding such an agreement is a condition of mind produced by improper, external pressure or influence that practically destroys the free agency of a party and causes .. her to make a contract not of her own volition.”

Duress is the result of coercion.. to overcome the free will of another person…[i]n duress, the immediate effect of the wrongful act employed is to create fear in the victim.”

Courts in recent cases have…allowed spouses to pursue a post judgment motion for relief based on duress, even if the spouse was represented by counsel. Manosh v. Manosh, 160 Vt. 625, 648 A.2d 832 (1993) (fact that wife was represented by counsel throughout proceedings did not compel dismissal of her post judgment motion claiming that agreement was unconscionable).

Notwithstanding the fact that Daniel was represented by counsel, Daniel’s attorney Anthony Porcello failed in his ethical duty to report his awareness of the improper and unethical duress applied by Attorney Frisoli acting as agent for Nickse and Attorney Brown.

After providing his client with many months of zealous representation, Porcello did an abrupt about-face at the eleventh hour and assented to an uncontested divorce absent his client’s knowledge or consent. On July 24, 2007, a Motion to Convert to an uncontested divorce was filed which stated that “the parties after extensive negotiations in which both parties were represented by counsel… have reviewed the separation agreement with their counsel, understand its provision and understand that it is fair and reasonable… and an equitable division of the marital estate.”

Daniel flatly denies that any such negotiations took place. There is no evidence of any such meeting ever having taken place.

Furthermore, there is no evidence of any other agent of change that would cause such an extreme reversal of the Wife’s position, save the threat of imprisonment that so terrified her to the extent that she was deprived of her free will.

THE COURT MUST CONDUCT AN EVIDENTIARY HEARING

Where the defendant’s Motion alleges “facts sufficient to raise an issue as to whether ‘duress’ occurred at the time the separation agreement was signed, the trial court must [italics added] conduct an evidentiary hearing to determine if duress had, in fact occurred during the time the separation agreement was signed. Casto v. Casto, 508 So. 2d330, P. 302[D] Fla. 1987

As evidence in support of the duress that Daniel suffered, she now submits the attached letter from her therapist, Tmira Rin, LICSW. The letter states that Daniel has been diagnosed with PTSD and “continues to worry about losing her home and being incarcerated.”

DURESS WAS INFLICTED BY FRISOLI ACTING AS AGENT FOR HUSBAND

“Duress consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, or child; and it must be inflicted or threatened by the other party to the contract, or else by one acting with his knowledge and for his advantag.”

According to an Agreement dated March 1, 2006 and signed by Frisoli, Nickse and Attorney Brown, Nickse was obligated to remove his name from the deed in order to facilitate the sale of the marital property. In return, Frisoli would cause the property to be sold, after which he would pay Nickse $250,000 from the proceeds of the sale. Accordingly, from that date forward, all of Frisoli’s efforts to sell the property, including the duress inflicted upon Daniel, was accomplished while acting as agent for the benefit of both his client, Vera Lee and the Plaintiff, Robert Nickse. Whether Nickse knew or not that Frisoli was threatening Daniel with incarceration, this Agreement granted to Frisoli Nickse’s cooperation “in any action required”. Where Frisoli was acting as agent for Nickse, all of the threats Frisoli was making to Daniel were effectively being made by Nickse and all the duress was being caused by Nickse.

On March 2, 2006, Frisoli wrote a letter to Daniel (Ex. 8, Motion to Set Aside) informing her that “pursuant to the Agreement for Judgment reached by Mr. Nickse and my client” he (Frisoli) would be holding a Sheriff’s sale of the marital property. Further he threatened Daniel with “sanctions” in Gloucester District Court. In fact, two months later he made good on his threat of sanctions by causing Daniel to be incarcerated at MCI Framingham.

THE ONGOING NATURE OF INTENTIONAL INFLICTION OF DURESS

With Daniel’s bankruptcy filing on October 31, 2013 the automatic stay was imposed, thus causing Frisoli to suspend his efforts. Both Lee and Nickse were listed as creditors in Daniel’s bankruptcy. Shortly thereafter, Nickse and Lee both filed Adversary Complaints contesting dischargeability. Included in Daniel’s response to the Nickse Complaint, Daniel raised arguments based on the same claims as stated in her Motion. On June 9, 2015, the Honorable justice William Hillman of the eastern Division of the Bankruptcy Court issued a decision ordering this matter to be referred to the probate court for resolution. Within that decision, Justice Hillman notes with respect to the Separation Agreement, that Nickse never filed an action to enforce the Separation Agreement. “To the contrary, the phrase ‘unless the parties mutually agree otherwise’ contemplates, as the Debtor correctly notes, that the marital residence may not be sold within one year. Since Nickse never moved to compel the sale of the marital residence in the almost six years between the divorce judgment becoming final and the debtor’s bankruptcy petition, I infer that he and the debtor must have ‘agreed otherwise.’” (See Decision of Justice Hillman, attached hereto) The defendant contemplates that the plaintiff will argue that Daniel’s Motion is untimely and that her allegation of duress and unconscionablity as to the terms of the Separation Agreement and should have been brought long before this date. Daniel’s Motion is admittedly only being brought now due to Nickse’s complaint for contempt seeking enforcement of settlement Agreement’s requirement for the sale of the house. It is not Daniel who is tardy in seeking relief, but rather it is Nickse who has sat on his rights for over six years. According to Judge Hillman’s position as stated above, Daniel was reasonable in relying on Nicks’s inaction as a tacit consent to the delay.

It was only with the filing of Nickse’s Complaint that Daniel once again became a victim of the threats of incarceration and was in fear of losing her home. (Ex. 19, Motion to Set Aside) For the above stated facts, under the circumstances, this Motion has been brought within a “reasonable”period of time under Rule 60 (b)(6).

On October 27, 2015,

permits "an independent action . . . to

set aside a judgment for fraud upon the court." In our jurisprudence, "fraud

on the Court" is a term of art with a stringent definition. Matter of the

Trusts Under the Will of Crabtree, 449 Mass. 128

<http://masscases.com/cases/sjc/449/449mass128.html>  , 148 (2007). "A

'fraud on the court' occurs where it can be demonstrated, clearly and

convincingly, that a party has sentiently set in motion some unconscionable

scheme calculated to interfere with the judicial system's ability

impartially to adjudicate a matter by improperly influencing the trier or

unfairly hampering the presentation of the opposing party's claim or

defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596

<http://masscases.com/cases/sjc/418/418mass596.html>  , 598 (1994), quoting

from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).

"Examples of 'fraud on the Court' include 'bribery of judges, employment of

counsel to "influence" the court, [and] involvement of an attorney (an

officer of the court) in the perpetration of fraud.' " Will of Crabtree,

supra at 149, quoting from MacDonald v. MacDonald, 407 Mass. 196

<http://masscases.com/cases/sjc/407/407mass196.html>  , 202 (1990). "A

party's nondisclosure to an adverse party . . . or to the court . . . of

facts pertinent to a controversy before the court, without more, does not

amount to 'fraud on the court' for purposes of vacating a judgment under

rule 60(b)." Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces

'only that species of fraud which does, or attempts to, defile the court

itself, or is a fraud perpetrated by officers of the court so that the

judicial machinery can not perform in the usual manner its impartial task of

adjudging cases that are presented for adjudication.' " Id. at 35-36,

quoting from Pina v. McGill Dev. Corp., 388 Mass. 159

<http://masscases.com/cases/sjc/388/388mass159.html>  , 165 (1983).

ii. Fraud on the court. Rule 60(b) permits "an independent action . . . to

set aside a judgment for fraud upon the court." In our jurisprudence, "fraud

on the Court" is a term of art with a stringent definition. Matter of the

Trusts Under the Will of Crabtree, 449 Mass. 128

<http://masscases.com/cases/sjc/449/449mass128.html>  , 148 (2007). "A

'fraud on the court' occurs where it can be demonstrated, clearly and

convincingly, that a party has sentiently set in motion some unconscionable

scheme calculated to interfere with the judicial system's ability

impartially to adjudicate a matter by improperly influencing the trier or

unfairly hampering the presentation of the opposing party's claim or

defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596

<http://masscases.com/cases/sjc/418/418mass596.html>  , 598 (1994), quoting

from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).

"Examples of 'fraud on the Court' include 'bribery of judges, employment of

counsel to "influence" the court, [and] involvement of an attorney (an

officer of the court) in the perpetration of fraud.' " Will of Crabtree,

supra at 149, quoting from MacDonald v. MacDonald, 407 Mass. 196

<http://masscases.com/cases/sjc/407/407mass196.html>  , 202 (1990). "A

party's nondisclosure to an adverse party . . . or to the court . . . of

facts pertinent to a controversy before the court, without more, does not

amount to 'fraud on the court' for purposes of vacating a judgment under

rule 60(b)." Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces

'only that species of fraud which does, or attempts to, defile the court

itself, or is a fraud perpetrated by officers of the court so that the

judicial machinery can not perform in the usual manner its impartial task of

adjudging cases that are presented for adjudication.' " Id. at 35-36,

quoting from Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).

IV. ANALYSIS OF RULE 60(B) Rule 60(b) strikes a balance between finality of judgments and fairness in the proceedings.92 It implicates the court’s institutional integrity and enables the court to manage its own affairs. As a result, a court can raise it sua sponte. As discussed in section A(iii), protecting against fraud is an inherent power of the court.93 Consequently, it is grounds for relief from judgment under both 60(b)(3) and 60(b)(6).94 Rule 60(b)(3) codifies an “‘historic power of equity to set aside fraudulently begotten judgments’. . . . [which] is necessary to [uphold] the integrity of the courts . . . .”95 Protecting against fraud under this rule is the same as the court’s ability to impose sanctions through its Rule 11-like power.96 If courts can exercise their inherent powers sua sponte, and these powers are codified matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them. 91 See FED. R. CIV. P. 12(h). 92 R.C. by Ala. Disabilities Advocacy Program v. Nachman, 969 F. Supp. 682, 690 (M.D. Ala. 1997); see also Drake v. Dennis, 209 B.R. 20, 28 (S.D. Ga. 1996). 93 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)); see also United States v. Buck, 281 F.3d 1336, 1339 (10th Cir. 2002); Abdur’Rahman v. Bell (In re Abdur’Rahman), 392 F.3d 174, 193 (6th Cir. 2004) (Siler, J., dissenting). 94

Fraud upon the court is extended to officers of the court, and when an attorney exerts improper influence on the court “the integrity of the court and its ability to function impartially is directly impinged.” R.C. by Ala. Disabilities Advocacy Program, 969 F. Supp. at 691 (citing Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12 F.3d 1080, 1085-86 (Fed. Cir. 1993)).

In addition, although 60(b)(3) seems to cover fraud, it only concerns fraud of an adverse party. See FED. R. CIV. P. 60. Rule 60(b)(6), on the other hand, has very broad language: “any other reason justifying relief from the operation of the judgment.” FED. R. CIV. P. 60. However, there are some limitations. A motion under this subsection cannot be based on any other clauses under section (b). Drake, 209 B.R. at 27. Therefore, fraud of an adverse party is not actionable under 60(b)(6). A sub-species of 60(b)(6), fraud upon the court, is subsumed in the broad language of 60(b)(6). 95 Chambers, 501 U.S. at 44 (quoting Hazel-Atlas Glass Co., 322 U.S. at 238). 96 See R.C. by Ala. Disabilities Advocacy Program, 969 F. Supp. at 690. The fraud dealt with in Rule 11, in the inherent power to sanction discussed in Section III(iii), and in 60(b), is the same type of fraud; thus, the same issues of institutional integrity.

UNDISCLOSED SIDE AGREEMENT

Where a lawyer is aware that the parties have entered into an undisclosed side agreement, it would constitute unethical conduct to present to the court a separation agreement containing a provision that no other agreements or promises exist or that no oral statement or written matter extrinsic to the agreement will have any force or effect. Such conduct would violate the duty of candor owed to the court under Mass. R. Prof. C. 3.3(a)

Comment [2] to this rule provides that there are circumstances where failure to make a disclosure can be the equivalent of an affirmative misrepresentation. In such a situation, the lawyer should attempt to persuade the client to reveal the existence of the side agreement. If the client refuses, the lawyer must refuse to present the separation agreement with the false representation to the court. See Mass. R. Prof. C. 3.3(a)(4)

Update on the Daniel Case

COMMONWEALTH of MASSACHUSETTS

PROBATE AND FAMILY COURT

ESSEX, ss DOCKET NO. 04D 1906-DVI

___________________________

Robert Paul Nickse,

­­­­­­­­­­­­­­­­Plaintiff

v.

Jane C. Daniel,

Defendant

__________________________

DEFENDANT’S MOTION to SET ASIDE DIVORCE as to SEPARATION AGREEMENT

of the PARTIES and REQUEST for IMMEDIATE INJUNCTIVE RELIEF

The extraordinary case at hand has a ten-year procedural history including an unrelated but relevant collection action ongoing in another court. Rulings in said action were improperly used behind the scenes in the probate court, to influence the outcome of divorce proceedings in order to favor the Husband. A third-party Judgment creditor, Vera Lee (hereinafter “Lee”) held a $22 million Award against the Wife.¹ Lee was represented by Frank Frisoli (hereinafter “Frisoli”) whose intent to collect on the Award coincided with the Husband’s intent to maximize his share of the marital assets in the divorce. The two entered into a written Agreement wherein the Husband assigned to the judgment creditor his interest in the marital property. In exchange, the judgment creditor agreed pay the Husband $250,000 upon the sale of the marital property, thereby acting as agent for the Husband in the divorce proceedings. Attorney Frisoli had recently had the Wife incarcerated for failure to make payments, thus he held an extraordinary power to apply extreme duress on the Wife. Together, the Husband and Frisoli planned to sell the marital property during the pendency of the divorce proceedings, outside the oversight of the Probate Court. When that effort failed, using a stayed 20-day prison sentence obtained in the other court, the judgment creditor and the Husband hammered the Wife into accepting a grossly inequitable divorce agreement, against her own free will, that favored both of them.

Jane Daniel (hereinafter the “Wife” or “Daniel”) and Robert Nickse (hereinafter the “Husband” or “Nickse”) were married on December 24,1998. The Husband vacated the marital property in December, 2002. The divorce proceedings began routinely — a brief four-year marriage, with a clear and unequivocal record of the assets/liabilities of the parties.

Nickse filed for divorce on 10/25/04. Within days, the judgment creditor’s attorney stepped into the middle of the divorce proceedings by bringing suit in Middlesex Superior Court. (No. 04-4428) against Daniel and Nickse, (Ex.1) for fraudulent conveyance for the tenancy by the entirety on the marital property. From that point forward the lawful divorce process derailed.

The claim was dismissed with prejudice, but at the end, on 3/1/06, Nickse, his attorney Orestes Brown, (hereinafter “Brown”) and Frisoli signed an Agreement for Judgment. (Ex.3)

This Agreement was the blueprint for an unconscionable scheme to perpetrate a Fraud on the Court by hastily selling the primary marital asset, the marital home, (then under Rule 411) outside the oversight of the probate court. (Ex.4, pg. 69, lines 19-24; 70, lines 1-4) This side agreement was never disclosed by Nickse, a violation of Rule 410, Mandatory Self Disclosure.

Per the Agreement, Nickse disclaimed any interest in the Hovey Street property [a violation of Rule 411] (Ex.3, no. 4, 6, 7). In return, Nickse would receive 30% up to $250,000 from the proceeds of the sale of the Property. Frisoli would handle the sale. (Ex.3, no.3, 9)

Through the execution of this Agreement, Frisoli became Nickse’s agent, a unique asset with extraordinary power to inflict duress on the Wife by obtaining rulings against Daniel in an unrelated case in another court.

Frisoli had begun Supplementary Process proceedings in Gloucester District Court on 7/25/05 and had obtained a monthly Payment Order for $2,000 that Daniel could not afford. (Exhibit 5, pg. 2) In return for his services as “enforcer”, Frisoli received from Nickse a warrantee that he (Nickse) “will not, without the prior consent of Vera Lee (which consent may be granted or withheld in her sole discretion) occupy said property in the future as his primary residence…” (Ex. 3, no.5) thereby contractually closing the door on any reconciliation between the parties and ensuring that Frisoli’s plan to sell the marital property would go forward.

In furtherance of the scheme to hastily sell the marital property, on 3/2/06, a Quit Claim was filed, signed by Nickse, notarized by his attorney Orestes Brown and stamped for return to Frank Frisoli. (Ex. 6) Daniel filed a Disclaimer. For months Frisoli initiated a series of maneuvers in an attempt to remove Nickse’s name from the deed in order to ready the Property for a quick sale, as detailed the Complaint in Equity. (Ex.7)

The Complaint in Equity filed on 6/7/06 by Daniel’s attorney, Anthony Porcello, (hereinafter “Porcello”) challenged the Agreement for Judgment and stated, “The purpose of the transfer by [Nickse] was to circumvent the divorce process and permit [Nickse] to obtain assets out of the marriage that he would not otherwise obtain under M.G.L. c. 208, s. 34. (Exhibit7, pg.2, no.12)

On 3/2/06 Frisoli wrote Daniel that she was behind in her payments, threatened to seek “sanctions”, and stated he would be holding a Sheriff’s sale on the marital property in two weeks [a violation of Rule 411] if she didn’t “resolve the matter of the balance of approximately $23 million which is owed on the execution.”(Ex. 8,bottom pg.1)

On 5/5/06 Frisoli made good on his threatened “sanctions” by procuring a Contempt Order from Gloucester District Court (Ex.5). Daniel was sentenced to serve 10 days in MCI Framingham, a traumatic experience that left her particularly vulnerable to further threats of imprisonment. (Ex. 9)

More than two years into the divorce process, substantial discovery had been completed and the divorce remained contested with respect to the appropriate division of the marital estate. The relative financial positions of the parties had undergone a drastic change.

At the time of the marriage, the Husband had income consisting solely of a monthly $600 SSDI check. In his deposition, he characterized himself as a “kept man.”(Ex. 10, p. 25, line 21)

In contrast, the Wife owned a home (hereinafter the “Hovey Street property”) which she purchased for $500,000, with a $200,000 down payment and subsequently paid, from her own funds, all the principal, interest, taxes, insurance, most of the household operating expenses, plus approximately $100,000 in renovations.

At the time of the divorce, however, the relative financial positions of the parties had completely reversed. The Husband had minimal liabilities and had recently inherited assets with a value in excess of ¾ million dollars. (Ex. 11)

The Wife, conversely, was insolvent, subject to a $33 million-plus-interest adverse Judgment. Her publishing business was in ruins from the lawsuit and she was relying on income from renting rooms in her home and monthly Social Security payments of approximately $550. Her sole asset was her yet-to-be-determined share of the marital home.

Porcello filed “Defendant’s 2nd Pre-Trial Memorandum” on 2/26/07, which states, “Defendant contests that she should be required to share any of her assets with the [Husband].” (Ex. 12)

On 12/20/06 the Probate Court ruled that Daniel’s Complaint in Equity 06E 0061-GC1 would be consolidated for trial with 04D 1906-DV1, assuring that the improper Agreement for Judgment would be scrutinized by the Probate Court. (Ex. 13) A trial, which Nickse, Brown and Frisoli ultimately thwarted, would have provided Daniel the opportunity to present her meritorious case in court. Conversely, the fact that this improper agreement was scheduled to be reviewed by the Court, provided good reason for the parties to the agreement to avoid a Trial.

Frisoli’s attempt to sell the marital property before the Court had a chance to order an equitable distribution was running out of time. On 3/28/07, the divorce was set for Trial on July 24, 2007 and all Sec. 34 issues remained contested. (Exhibit 14)

On 7/19/07, five days before the scheduled contested Trial, Frisoli obtained another Mittimus against Daniel, from Gloucester District Court, this time for 20 days incarceration. Frisoli requested a stay until 8/16/07, three weeks after the divorce Trial date. (Ex. 5)

On the eve of Trial, Daniel went to her lawyer’s office to prepare for what she had expected would be a contested divorce and learned that there was a proposed Settlement Agreement, engineered by Nickse and Frisoli without Daniel’s participation, that would require the Wife to give her husband 30% of the proceeds from the sale of her home, up to $250,000. This was the same formula for division of the marital property as in the Nickse/Frisoli Agreement for Judgment.

Moreover, Porcello told her, he had received a phone call from Frisoli stating that he would use his Mittimus to have her incarcerated if she refused to assent to the proposed terms of the Separation Agreement.

Daniel asked Porcello, “Do you think this is a bluff?”

Porcello responded, “I think if you don’t sign, you’re going to jail.”

On the day of the Trial, Daniel with her lawyer, and Nickse with his, sat at a table in the Clerk’s office. Daniel was shown for the first time the final version of the Separation Agreement she was to sign, giving her husband 30% of the proceeds from the sale of the house, up to $250,000, with the house to be sold within one year. Daniel could lose both her home and her livelihood within the next twelve months. (Ex. 15)

Daniel entered the courtroom frozen with fear. When the judge asked her if she had signed the Separation Agreement of her own free will, to avoid imprisonment, she replied the only way she could. She answered, “Yes.”

Years later, while preparing for this action, Daniel saw for the first time the joint “Motion to Convert Divorce Proceedings to a Joint Petition Pursuant to M.G.L. 208 Sec 1A” filed on July 24, 2007. (Ex. 16) It states, [after] “extensive negotiations by the parties represented by counsel, the parties have reviewed the Separation Agreement and are satisfied it is fair and reasonable… [and] an equitable division of the marital estate.” It is signed by Porcello and Brown. This pivotal document contained intentional misrepresentations directed at the Court to mislead the Court into believing that the Separation Agreement of the parties had been accepted by both parties after being fully and fairly negotiated. It was perpetrated for the sole purpose of avoiding a trial on the merits.

The barrage of threats from Frisoli did not end with the divorce. The real estate bubble burst in 2007, just as Frisoli was attempting to sell the Hovey Street property at the grossly inflated price of $1.8 million. Frisoli’s threats of imprisonment continued unabated in dozens of letters and emails to Daniel as he struggled to sell the overpriced Property in a collapsed marketplace.

On 4/17/2012, in Gloucester District Court, Daniel was sentenced to 20 days at MCI Framingham. (Ex. 17) She served the entire sentence.

Daniel’s Settlement Agreement with Vera Lee, dated 8/16/07, contained a provision that Daniel could not file bankruptcy. (Ex. 18,line 1) Daniel relied on that prohibition until she met Bankruptcy attorney Peter Kaplan and learned that the provision was unenforceable.

Daniel’s Bankruptcy filing on 10/31/13, with its automatic restraint on creditors’ collection actions, halted Frisoli’s threats and freed Daniel, for the first time since the divorce, from the fear of incarceration. The Bankruptcy action sought to discharge both Nickse and Lee. The Nickse matter was referred to the Probate Court for resolution. The Lee matter is pending.

Brown’s firm, Metaxas Brown, picked up where Frisoli left off at the time of the Bankruptcy filing. Metaxas Brown has filed a Contempt action and sought an Order for the sale of the Hovey Street property, the control of which was acquired by fraud. Metaxas Brown has continued the threats to the present time. (Ex. 19)

The Hovey Street property has been placed in the hands of a Special Master and, on information and belief, there is currently an offer to purchase.

This case rises to a very high level of egregiousness in that it involved not one, but two, Officers of the Court who colluded with the Husband to perpetrate an elaborately orchestrated Fraud on the Court. The improper activities comprised not one or two events, or even a month of reprehensible conduct, but rather a decade of knowing and intentional misconduct, buttressed by a decade of knowing and intentional infliction of duress on the Wife, in order to secure her submission to their wrongful purposes.

Fraud on the Court carries no statue of limitations, however an action seeking relief must be brought in a timely manner. Given the extraordinary circumstance surrounding this case and the ongoing nature of the misconduct, this action is filed in a timely manner.

Allowing the Settlement Agreement to stand would constitute a grave miscarriage of justice.

1

The Wife, Jane Daniel, and her tiny publishing company, were sued by co-authors of a Holocaust memoire, Misha Defonseca and Vera Lee, for alleged breach of contract. In August, 2001, at the conclusion of an 11-day jury trial, the Court issued two awards, $22 million to the purported Holocaust survivor, $11 million to ghostwriter Vera Lee, totaling more than $33 million plus interest, the third largest award in the history of the Commonwealth. In 2008, Daniel exposed Defoseca’s tragic Holocaust tale as a hoax. Defonseca’s $22 million award was subsequently vacated by a Mass Appeals Court, which ruled that Defonseca had perpetrated “an extraordinary Fraud upon the Court.” (Ex. 2) Despite the Court’s finding that “the entire trial was infected by fraud,” the $11 million award to Vera Lee was allowed to stand; in her case the one-year statute of limitations under 60(b) (2) and (3) which might have granted relief, had expired before the hoax was discovered.

Appeals Court Ruling in its Entirety

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

08 P 2132 Appeals Court

MT. IVY PRESS, LP, & another¹ vs. MISHA DEFONSECA²

& another.³

No. 08 P 2132.

Middlesex. November 9, 2009.   November 24, 2010.

Present: Kafker, Wolohojian, & Milkey, JJ.

Judgment, Relief from judgment. Practice, Civil, Relief from judgment, Motion to dismiss, Fraud, Party pro se. Fraud.

Civil action commenced in the Superior Court Department on April 8, 2008.

A motion to dismiss was heard by Timothy Q. Feeley, J.

Brian S. McCormick for the plaintiffs.

Frank J. Frisoli, Jr., for Vera Lee.

Misha Defonseca, pro se.

WOLOHOJIAN, J. After a jury trial in 2002, Misha Defonseca and Vera Lee were awarded more than $30 million in compensatory and multiple damages on claims arising from breaches of contract and violations of G. L. c. 93A by Jane Daniel and Mt. Ivy Press, L.P. (Mt. Ivy).⁴ At issue was the publication, distribution, and marketing of Defonseca's life story, Misha: A Memoir of the Holocaust Years.⁵ The judgment was affirmed by this court in all respects. Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 562 (2005). Nearly six years after the judgment, Daniel and Mt. Ivy brought an independent action for relief from the judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974) (rule 60[b]), alleging, in essence, that when confronted with evidence unearthed by Daniel and others, Defonseca admitted that her Holocaust memoir was a hoax. Defonseca and Lee successfully moved to dismiss the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974) (rule 12[b][6]), and this appeal followed. We reverse in part and affirm in part.

Background.⁶ a. Prior proceedings. At all material times during the prior trial and appeal, Defonseca held out her story as a true and authentic account of her childhood in Europe during World War II. Broadly sketched, she claimed that as a seven year old child in 1941 she witnessed the Nazis seize her parents. By her account, she fled and managed to avoid capture by the Nazis for more than four years, wandering alone through forests and villages across Europe. She encountered various hardships, including being trapped for a time within the besieged Warsaw Ghetto. Defonseca attributed her survival to her strong will and guile, as well as to the food and protection she received from a wolf pack. Lee, 63 Mass. App. Ct. at 539.

Much later, in 1985, Defonseca emigrated to the United States, settling in the Boston area. On occasion she spoke of her experiences during the war to different groups in Boston and elsewhere. During a speaking engagement in New York in 1994, Defonseca first met Daniel, who offered to publish Defonseca's autobiography.⁷ This offer took hold, and the parties thereafter reduced their agreement to writing.

Since Defonseca's native language was French, Daniel engaged an experienced, professional writer, Lee, a long-standing acquaintance who was fluent in French, to assist (as co-author) on an American edition of Defonseca's memoir.⁸ Lee timely provided drafts, including one she believed was approximately eighty percent complete. However, Lee made explicitly clear to Daniel that many facts, including historical facts, would have to be checked. Daniel thereupon removed Lee from the project, falsely telling her that her work was inadequate and the book required rewriting. Daniel also threatened and intimidated Lee so that she would not communicate with Defonseca, and pressured Lee to sign agreements that reduced her share of the proceeds from the book. Litigation ensued, with Lee suing Daniel, Mt. Ivy, and Defonseca.⁹ Cross claims and counterclaims followed. Defonseca and Lee brought a number of claims against Daniel and Mt. Ivy, including breach of contract and violation of G. L. c. 93A.¹⁰ In essence, they alleged Daniel (personally and through Mt. Ivy) had wrongfully denied them certain royalties and other payments in breach of their respective agreements. Daniel and Mt. Ivy counterclaimed, alleging breach of contract, defamation, and trade disparagement. After a three-week trial, a jury awarded $7.5 million to Defonseca and $3.3 million to Lee.

Reserving the c. 93A portion of the case to herself for decision, the judge found that Daniel and Mt. Ivy had wilfully and knowingly engaged in conduct designed to deprive Defonseca and Lee of royalties and other compensation. In a detailed decision, and drawing from a comprehensive set of findings linked to the evidence at trial, the judge concluded that Daniel and Mt. Ivy had engaged in unfair and deceptive business practices in violation of c. 93A. The judge trebled the jury's award and assessed attorney's fees and costs.

Daniel and Mt. Ivy appealed from the judgment to this court. After oral argument, but before our decision in that appeal issued, some of the parties settled their claims. In exchange for some sum (unspecified in the record before us), Defonseca relinquished any claim to the judgment in her favor, unless Daniel or Mt. Ivy pursued any claim against her. In a separate agreement, Lee released Daniel, but not Mt. Ivy, in exchange for an assignment of $250,000 from a settlement between Daniel and her counsel and an assignment of the proceeds from the future sale of Daniel's house, subject to certain adjustments.^11,12

Also while the first appeal was pending, Daniel came to learn of information she believed cast doubt on aspects of Defonseca's memoir. Specifically, a bank record that had been produced posttrial showed Defonseca's birth date, birth place, and mother's maiden name, all of which she claimed in her book to have no knowledge of. With this newly discovered material, Daniel tried to access vital family records in Belgium, only to be frustrated by that country's privacy laws. Search was made of ships' passenger lists in our local archives, the Yad Vashem database of the names of more than three million Holocaust victims, and various genealogical Internet Web sites. Not until a forensic genealogist, Sharon Sergeant, became involved did the search for Defonseca's background yield critical information. Sergeant, having noticed the many Catholic references in the French and United Kingdom editions of Defonseca's memoir, undertook a search of Catholic baptismal records in Belgium, and discovered there was a maternity ward in a hospital in Etterbeek, the district of Brussels that had been identified on Defonseca's bank record.

Ultimately, Defonseca's true identity was uncovered. Piece by piece, with aid from Sergeant, Daniel was able to learn that Defonseca had been born Monica Ernestine Josephine De Wael on May 12, 1937, in Etterbeek, Belgium. Her family's residence was in the Schaerbeek district of Brussels, and she was registered as a student in an elementary school located there for the fall term of 1943 -- the very same time period that she claimed to be in the midst of a journey across Nazi-controlled Europe. With this new information about Defonseca, especially her original surname "De Wael," the Belgian press reported more proof of Defonseca's fraud,¹³ which completely unraveled in or about late 2007 or the early part of 2008.¹⁴

b. Current proceedings. In April, 2008, Daniel and Mt. Ivy commenced an independent action, pursuant to rule 60(b), in the Superior Court against Defonseca and Lee, seeking to set aside the $33 million judgment. In relevant part, the complaint asserted two counts against Defonseca (a claim under rule 60[b] for fraud on the court and a claim under rule 60[b][6]) and two parallel counts against Lee. The complaint alleged that the judgment was the product of a deliberate and cleverly concealed fraud, purposefully carried out by Defonseca with the aid of her counsel.¹⁵ Daniel and Mt. Ivy alleged that perjured testimony, false court pleadings and discovery responses, as well as fraudulent exhibits, all had a hand in misleading the jury and the court. Among other things, they pointed to the fact that Defonseca's trial counsel stressed in closing argument that the authenticity of Defonseca's book was not disputed:

"And what was [Defonseca] trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."

The complaint contained no allegations suggesting that Lee had any knowledge of the fraud, or that she had any reason to know that Defonseca's story was not true.

The defendants moved to dismiss the complaint under rule 12(b)(6). Notably, Defonseca did not dispute Daniel's allegations of fraud, or the related media reports discrediting Defonseca's book and trial testimony. Nor did Defonseca dispute a February 28, 2008, Boston Globe article that reported Defonseca candidly "acknowledged" that "every essential element of her autobiography [was] false, that her trial testimony was perjured and that every document she filed with the [Superior] Court when acting as her own counsel, was intended to mislead the Court and the jury."¹⁶

The judge allowed the motion to dismiss. As to the rule 60(b)(6) claim, the judge concluded that the allegations of the complaint fell within the parameters of rule 60(b)(3), which applies in cases of fraud, and that the complaint alleged no "extraordinary circumstances" that might warrant relief under rule 60(b)(6). See Paternity of Cheryl, 434 Mass. 23, 34-35 (2001); Owens v. Mukendi, 448 Mass. 66, 71 (2006). As a result, the judge concluded that the plaintiffs' action was barred by the one-year limitations period of rule 60(b)(3). See Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 182-183 (1990). With respect to the plaintiffs' claim of fraud on the court, the judge concluded that the allegations, as a matter of law, did not make out such a claim.

Daniel and Mt. Ivy have timely appealed from the judgment of dismissal.

Discussion. "Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). Rule 60(b) has two parts. The first part sets out six numbered circumstances under which a party may move for relief from a judgment. The second part (an unnumbered provision) permits a party to seek relief by way of an independent action. Here, the plaintiffs seek relief by way of an independent action. We discuss the plaintiffs' claims as they apply to each defendant.

a. Defonseca. i. Rule 60(b)(6). In relevant part, rule 60(b) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment . . . for the following reasons: . . . (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment . . . was entered . . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . or to set aside a judgment for fraud upon the court . . . and the procedure for obtaining any relief from a judgment shall be by motion . . . or by an independent action."

Relief under 60(b)(6) is available only when justified "by some reason other than those stated in subdivisions (1) through (5)." Chavoor v. Lewis, 383 Mass. 801, 806 (1981). When examining whether 60(b)(6) relief is warranted, we consider "whether the moving party has a meritorious claim or defense . . . whether extraordinary circumstances warrant relief . . . and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion." Owens, 448 Mass. at 72 (citations and internal quotation marks omitted).

Unlike motions pursuant to rule 60(b)(1) through (b)(3), which must be brought within a reasonable time, but no later than one year after judgment, id. at 73 n.9, and motions pursuant to rule 60(b)(6), which must be brought within a reasonable time after judgment, Kennedy v. Beth Israel Deaconess Med. Center, Inc., 73 Mass. App. Ct. 459, 467 (2009),¹⁷ there is no specified time limit for bringing an independent action for relief from judgment.¹⁸ Sahin, 435 Mass. at 400-401. "That said, however, 'a party should not be able to avoid the one-year or "reasonable time" limits of Rule 60(b) simply by commencing an independent action seeking the same relief.'" Id. at 401, quoting from Smith & Zobel, Rules Practice § 60.16, at 488 (1977 & supp. 2001). "Many of the principles covering fraud, fraud upon the court, void judgments, mistake, or even newly-discovered evidence, control an independent action seeking the same kind of relief." Smith & Zobel, Rules Practice § 60.16, at 395 (2007) (footnotes omitted). "To the extent that the claims raised by a party's independent action appear to fall within those provisions of rule 60(b) that mandate a specific time limitation, but materialized too late to file in a motion to the court which rendered the judgment, the party must raise some additional ground or reason justifying relief after the expiration of the time limitation." Sahin, supra at 401. The party seeking relief must show that allowing the judgment to stand would be "manifestly unconscionable," id. at 402, quoting from Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-245 (1944) (independent action proper "to prevent unconscionable retention or enforcement of a judgment"), or a "grave miscarriage of justice." Sahin, supra at 402, citing United States v. Beggerly, 524 U.S. 38, 46-47 (1998). We consider this standard to have been met here, at least for purposes of surviving a motion to dismiss.

The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.¹⁹ See, e.g., Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 554 (1962) (material breach excuses other party from further performance). It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the "substantial rights of the parties." Owens, 448 Mass. at 72, quoting from Parrell v. Keenan, 389 Mass. 809, 815 (1983).

The size of the award is also a circumstance to be considered. Defonseca obtained a judgment that, once trebled, exceeded $20 million. Much of that amount consisted of multiple damages under c. 93A. Multiple damages are awarded only for wilful, culpable conduct, that results in a "grievous violation of societal interests." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 856 n.21 (1983) (citation omitted). See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998). The jury and judge, of course, were unaware that the book was a hoax, rather than a heart-rending story of Holocaust survival.

We also consider Defonseca's conduct as a pro se litigant. Although it is true that perjury, standing alone, generally does not support relief under rule 60(b)(6), Defonseca's alleged conduct goes well beyond that. Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale.

We are satisfied that the allegations of the complaint, considered under the appropriate standard, are sufficient to state an independent action based on rule 60(b)(6).

ii. Fraud on the court. Rule 60(b) permits "an independent action . . . to set aside a judgment for fraud upon the court." In our jurisprudence, "fraud on the Court" is a term of art with a stringent definition. Matter of the Trusts Under the Will of Crabtree, 449 Mass. 128, 148 (2007). "A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). "Examples of 'fraud on the Court' include 'bribery of judges, employment of counsel to "influence" the court, [and] involvement of an attorney (an officer of the court) in the perpetration of fraud.'" Will of Crabtree, supra at 149, quoting from MacDonald v. MacDonald, 407 Mass. 196, 202 (1990). "A party's nondisclosure to an adverse party . . . or to the court . . . of facts pertinent to a controversy before the court, without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60(b)." Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces 'only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.'" Id. at 35-36, quoting from Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).

There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where -- as here -- the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case.

As noted above, Defonseca proceeded in part pro se, and she now argues that only an officer of the court can commit fraud on the court. Although fraud on the court typically involves officers of the court, we are unprepared to say that pro se litigants are in all circumstances insulated from committing fraud on the court. Pro se litigants are generally required to comply with the same rules as represented parties and their attorneys, see, e.g., Pandey v. Roulston, 419 Mass. 1010, 1011 (1995); Kyler v. Everson, 442 F.3d 1251, 1253-1254 (10th Cir. 2006), and there is no reason to immunize them from the consequences of the most egregious forms of misconduct. Cf. Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1130-1131 (9th Cir. 1995) (attorney's involvement in the discovery process, which included the holding and withholding of key information, was "sufficient to render him an officer of the court" for purposes of the fraud on the court doctrine even though he did not represent party); Herring v. United States, 424 F.3d 384, 390-391 (3d Cir. 2005) (attorneys who did not represent United States, but asserted claim of privilege on behalf of United States, were "officers of the court" for fraud on the court purposes).

We are satisfied that, accepting the allegations of the complaint as true and viewing Defonseca's misconduct as a whole, which included not just one or two instances of false testimony, but an entire case buttressed by falsehoods, the plaintiffs have sufficiently stated a claim of fraud on the court.

b. Lee. The plaintiffs' case against Lee stands in a much different posture. The complaint does not allege that Lee knew, or had reason to know that Defonseca's memoir was fraudulent. The complaint's silence in this regard is consistent with the trial judge's conclusion that the allegations indicated Lee alerted Daniels to the fact that the book had not been fact-checked and that many historical facts needed to be verified. Moreover, the allegations indicate that Lee was removed from the project before its completion. There is also no allegation that Lee made any false statements in the course of the litigation, whether during discovery or trial. Instead, the plaintiffs allege Lee "rode the coattails of Defonseca's fraudulent conduct" and that Defonseca's misconduct tainted the entire proceeding. Conceding at oral argument that they have not stated a claim of fraud on the court against Lee, the plaintiffs nonetheless continue to argue that they have stated a claim under rule 60(b)(6) against her. We disagree. The plaintiffs have not cited any authority, nor have we found any, for the proposition that a party may be stripped of a judgment where she herself is not alleged to have done anything wrong. Rule 60(b)(6) strikes a balance between "the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin, 435 Mass. at 399 400. Although Lee may have benefited from the sympathy of Defonseca's supposed life story, this alone does not tip the scale in favor of abandoning our institutional interest in finality. The plaintiffs have not alleged that Lee has committed any fraud or misconduct, let alone the kind of extraordinary fraud that could justify setting aside an eight year old judgment under rule 60(b)(6).

Conclusion. Because the plaintiffs have not stated a claim for rule 60(b)(6) relief against Lee, and because they conceded at oral argument they are not pursuing a fraud on the court claim against Lee, that portion of the judgment which dismisses the plaintiffs' claims against Lee is affirmed. However, for the reasons set out above, we reverse that portion of the judgment which dismisses the plaintiffs' claims against Defonseca.

So ordered.

1 Jane Daniel.

2 The underlying complaint indicates that Misha Defonseca is also known as Monique De Wael.

3 Vera Lee.

4 A total of $22.5 million was awarded to Defonseca and $9.9 million to Lee.

5 This published work was introduced into evidence at trial and made available to the jurors for their inspection and review.

6 The facts are drawn from the plaintiffs' complaint and the proceedings from the prior litigation. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002). In reviewing the allowance of a rule 12(b)(6) motion to dismiss, we accept as true the fact-based allegations contained in the complaint as well as any favorable inferences reasonably drawn therefrom. Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 20-21 (2006).

7 Daniel had formed Mt. Ivy in 1993 as a limited partnership. She was the only employee and the business operated out of the basement of her Newton home.

Mt. Ivy signed separate (but nearly identical) publishing agreements with Lee and Defonseca in August of 1995. The parties also made provisions for a French edition for distribution in Europe, where advance publicity had stirred interest among book dealers.

8 An American edition was published in 1997. Book endorsements were received from several quarters, including the New England chapter of the Anti-Defamation League. Soon thereafter, a French edition, Survivre avec les Loups (Survival with Wolves), was published by a Parisian publishing house, with Defonseca's oversight; other foreign editions followed. Unlike the American edition, the French edition had no photographs of

Defonseca and identified her as "Monique Valle" (not De Wael).

9 Lee named as "reach and apply defendants" Mt. Ivy's literary agent, Palmer & Dodge, LLP, and Publishers Group West, Inc., a West Coast firm that allegedly did business in the Commonwealth; the reach and apply defendants are not implicated in this appeal.

10 The other claims were: interference with contractual relations, fraud, quantum meruit, unjust enrichment, conversion, and intentional infliction of emotional distress.

11 There is nothing to suggest that the instant appeal or the underlying case is moot as a result of the settlements, and no party so contends.

12 The terms of the settlement agreements are not part of our (or the motion judge's) consideration for purposes of the motion to dismiss. However, the terms of those agreements may factor into the analysis as the case proceeds after remand. What effect, if any, they might have going forward will benefit from further factual development below.

13 Notably, in March of 2008, Le Soir, a prominent newspaper in Belgium, published a report disclosing that Defonseca's father had collaborated with the Gestapo, providing information about members of the Belgium resistance movement.

14 Daniel's search was successful largely because of technological advances, including the Internet, which allowed her to correspond with others on a world-wide scale not previously possible or practicable.

15 Daniel and Mt. Ivy no longer rely on action by Defonseca's attorneys to support their claims.

16 Nor has Defonseca offered anything to counter her statement to the foreign press (republished in the local newspapers) confessing to the fraud.

17 A reasonable time may be more or less than one year. Kennedy, supra.

18 Although rule 60(b) states that relief may be sought by way of a motion, it also states that relief may be invoked in an independent action. Had the plaintiffs sought rule 60(b)(6) relief by way of a motion filed in the original underlying action, we would review for abuse of discretion. Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003). However, we review de novo a rule 12(b)(6) dismissal of a rule 60 claim that is raised in an independent action. See Sahin, supra at 399-407 (sub silentio applying de novo review in procedural posture identical to the present case). Accord Herring v. United States, 424 F.3d 384, 389-390 (3rd Cir. 2005) (review of district court grant of Fed. R. Civ. P. 12[b][6] motion to dismiss independent rule 60 action is subject to de novo review). In other words, we employ the standard of review for appeals from the allowance of a rule 12(b)(6) motion. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). "We review the allowance of a motion to dismiss to determine whether facts alleged in the complaint raise a right to relief above the speculative level, on the assumption that all the allegations of the complaint are true." Largo Realty, Inc. v. Purcell, 77 Mass. App. Ct. 162, 163 (2010).

19 The contract with Defonseca contained a warranty in which she represented that "all statements of fact are true or based on reasonable belief."