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Alexiou v. Moshos

October 2, 2009

THALIA ALEXIOU
v.
ANGELO MOSHOS



The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge

MEMORANDUM AND ORDER

In this diversity contract action, Plaintiff Thalia Alexiou seeks contract and other damages against Defendant Angelo Moshos. Thalia and Angelo were sister and brotherin-law, because Thalia was married to Angelo's brother Lazaros Moshos.*fn1 Thalia alleges that Angelo breached an agreement dated September 15, 2004, pursuant to which Angelo loaned money to Thalia and Lazaros to buy a property in Philadelphia. Presently before the court is Thalia's motion for partial summary judgment ("Doc. 33"), Angelo's response ("Doc. 34"), and Thalia's reply ("Doc. 35"). In her motion, Thalia seeks a judicial determination that a later agreement signed on November 15, 2004, in which she relinquished her contract rights, is void for lack of consideration. For the following reasons, I will grant the motion.

I. FACTS AND PROCEDURAL HISTORY

A. The September Agreement

On September 20, 2004, Angelo, Thalia and Lazaros signed a one-page agreement (the "September Agreement") regarding "the purchase of the property" at 1001 10th Avenue in Philadelphia, Pennsylvania ("the Property"). See Sept. Agree., attached to Doc. 33 at Ex. D.*fn2 The agreement provided that Thalia and Lazaros would contribute $90,000, and Angelo would contribute $150,000, towards the purchase of the Property. Further, Thalia and Lazaros would have three months to secure a mortgage and repay the $150,000 to Angelo, at which time the name on the deed would be changed from Angelo to Lazaros and Thalia. If Lazaros and Thalia failed to repay Angelo within three months, or if they failed to cover the payments on Angelo's $150,000 mortgage and other expenses for a total of two months, then Angelo would have the right to sell the property and return Lazaros' and Thalia's $90,000 investment. If the Property sold for less than its purchase price, the "appropriate amount" would be deducted from Lazaros' and Thalia's investment. The agreement also stated that in the event of Thalia's death, Lazaros would be responsible to repay $70,000 used in the purchase of the property to Yiannis Mavrikakis, who was Thalia's cousin. See id.; Thalia Dep. at 63; Angelo Dep. at 26.

Closing on the Property took place in October 2004, and the Property was placed in Angelo's name. See Doc. 33 at 2; Angelo Dep. at 14.

B. The November Agreement

On November 15, 2004, Lazaros and the parties signed another one-page writing (the "November Agreement") concerning the same transaction. See Doc. 33 at Ex. E and Doc. 34 at Ex. B. The November Agreement began by stating that "[t]his agreement voids any previous agreement" among the parties. The agreement recited certain terms of the September Agreement, and then stated that Thalia "has given up all rights towards the [Property], due to an agreement between Lazaros Moshos and Thalia Alexiou that involved the settlement of another property in Forked River." The November Agreement further provided that "[t]he previous agreement involving a loan that [Thalia and Lazaros] have taken from Mr. Yiannis Mavrikakais [sic] has been taken care of by Thalia Alexiou and Lazaros Moshos."

According to Thalia, she did not take part in negotiating the November Agreement, and claims that she signed the November Agreement under duress after Lazaros became violent when she was initially reluctant to sign. See Thalia Dep at 83-84, 97-100.*fn3 Thalia concedes that Angelo gave her and Lazaros money several times prior to the events giving rise to the dispute in this case, but says she was unaware of any agreement, written or oral, to repay the money. See id. at 29-33.*fn4 She also denies that she and Lazaros had any agreement regarding the Forked River property referenced in the November Agreement. See id. at 91-92.

Angelo counters that he frequently loaned money to his brother Lazaros on the understanding that the loans would be repaid, and that he and Lazaros never drafted written loan agreements because of the strong familial bond between them. See Angelo Dep. at 35, 141.*fn5 According to Angelo, the parties drafted and signed the September Agreement only because Thalia insisted that the agreement for the purchase of the Property be in writing. See id. at 35. When Lazaros and Thalia failed to cover Angelo's mortgage payments on the $150,000 he borrowed as promised in the September Agreement, Angelo could not afford the payments, adding significant stress to his marriage. See Doc. 34 at 3; Angelo Dep. at 57, 66. Consequently, Angelo started "pushing" Lazaros to get his money back on the Property investment, and expressed concern about recovering the money he loaned to Lazaros and Thalia over the preceding years. See Angelo Dep. at 34, 53, 61-62, 86. In response to this "pushing," Thalia and Lazaros proposed "a second letter" (i.e., the November Agreement). See Doc. 33 at 3-4; Angelo Dep. at 61-62. Angelo concedes that his only discussions concerning the November Agreement were with Lazaros, but he alleges that he typed the document in the presence of both Lazaros and Thalia, and that they all discussed the document as it was created. See Angelo Dep. at 60-72.

C. The Litigation

On December 19, 2004, Lazaros died in an automobile accident. See Doc. 28 at ¶ 33. After Thalia failed to fulfill the contractual obligations set forth in the September Agreement, Angelo sold the Property to a company for $375,000 on or about February 20, 2006. See id. at ¶ 45; Angelo Dep. at 97. Angelo did not pay Thalia any money from the sale of the Property. See Doc. 33 at 5; Angelo Dep. at 99.

Thalia commenced this action in state court seeking to recover the $90,000 she and Lazaros contributed toward the purchase of the Property, plus costs, and Angelo removed it to federal court on November 20, 2008. See Doc. 1.In his Answer ("Doc. 2"), Angelo asserted as an affirmative defense that in the November Agreement Thalia released any claims related to the Property. See Doc. 2, First Affirmative Defense. Thalia sought and received leave to file an Amended Complaint, which contains the following four counts: unjust enrichment, breach of contract, promissory estoppel, and declaratory relief. See Doc. 28 at 5-10. Thalia now seeks partial summary ...


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