Opinion
18-P-1477
12-20-2019
The BANK OF NEW YORK MELLON v. Brenda C. BENOIT & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Bank of New York Mellon (bank) foreclosed upon the interest of Brenda C. Benoit's deceased husband, Alfred Benoit, the sole mortgagor of a home in Leicester (property). Thereafter, the bank filed an action for summary process against Benoit and her minor children, and Lisa Benoit and Brian Benoit. A default judgment entered, which Benoit unsuccessfully sought to remove. This appeal ensued.
Brian Benoit and Lisa Benoit did not file an answer or any other pleading in the summary process action, and they are not involved in this appeal. Our reference to "Benoit" in this memorandum and order is to Brenda C. Benoit individually and as representative of the minor children.
Procedural background. At all times during these proceedings, Benoit appeared pro se. When Benoit failed to appear for the August 24, 2017 trial of the summary process action, she was defaulted, and a default judgment entered on August 25, 2017. See Rule 10 of the Uniform Summary Process Rules (2004). Benoit moved to remove the default on August 24, 2017, the scheduled day of trial, and on September 7, 2017. The motions were denied after hearing, the first on September 7, 2017, and the second on September 21, 2017. She appealed both orders on September 25, 2017. The bank moved to dismiss Benoit's appeal; at the hearing on the motion to dismiss, the bank's counsel stated as grounds (among other things) that Benoit "failed to order the transcript [or] seek a bond hearing." An order allowing the motion to dismiss the appeal entered on December 28, 2017, which Benoit appealed on January 22, 2018.
The bank also suggested in its memorandum in the Housing Court that the appeal of the September 7, 2017 order was untimely, see G. L. c. 239, § 5, but that issue has not been argued on appeal, and is therefore waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Thereafter, a procedural tangle ensued, including a further motion to dismiss appeals, appeals from the allowance of motions to dismiss appeals, and a motion to reinstate appeal. As is pertinent here, the bank moved in July 2018 to dismiss Benoit's January 22, 2018 appeal from the December 28, 2017 order of dismissal of her September 25, 2017 appeal from the orders denying the motions to remove the default. This motion to dismiss the appeal was predicated on the representation that Benoit had not taken any steps to assemble the record, obtain transcripts, or enter her case in the Appeals Court for the seven-month period between December and July. This motion was allowed on July 25, 2018.
However, on August 20, 2018, a different judge of the Housing Court vacated the July 25, 2018 order on the basis that Benoit's affidavit of indigency had not been ruled on until August 20, 2018, nunc pro tunc to June, 2018, that Benoit had been prevented from ordering relevant transcripts as a result, and that Benoit "could not advance her appeal [from the dismissal of her September 25, 2017 appeal] without the transcript." , We therefore understand this to be, at least technically, an appeal from the December 28, 2017 order allowing the bank's motion to dismiss the September 25, 2017 appeal of the September 7 and 21, 2017 orders denying Benoit's motions to remove the default.
The Housing Court docket shows that Benoit filed an affidavit of indigency on January 11, 2018, which was not acted on. Benoit filed another affidavit of indigency on June 7, 2018, which was approved on August 20, 2018.
On January 18, 2018, the one motion judge who considered Benoit's request to waive the appeal bond, see G. L. c. 239, § 5, declined to rule on the request, apparently due to the mistaken understanding that there was no right of appeal from the denial of a motion to remove the default to a panel of this court. But see note 8, infra. As a result, Benoit's indigency was not adjudicated for another eight months.
There is no order on the docket reinstating the September 25, 2017 appeal. Nonetheless, both parties have proceeded on the assumption that the appeal from the merits of the September 2017 orders denying Benoit's motions to remove the default is before us. Benoit and the bank have briefed legal issues pertaining to the denial of the motions to remove the default, not the propriety of the dismissal of the appeal. Accordingly, we exercise our discretion and treat this case as an appeal from the orders denying Benoit's motions to remove the default. See Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601 n.13 (2010) ; Moore v. Billerica, 83 Mass. App. Ct. 729, 731 n.2 (2013).
Discussion. A motion for relief from judgment must comply with Rule 11 of the Uniform Summary Process Rules (1980), and by extension Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). To prevail on appeal, Benoit must show, among other things, that due to mistake, inadvertence, or excusable neglect, she failed to appear for her trial, and that she has a meritorious issue worthy of judicial consideration. See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012), quoting Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979) (" Rule 60 [b][1] permits a judge ... to relieve a party from the effect of an otherwise final judgment for reasons of ‘mistake, inadvertence, surprise, or excusable neglect’ "). We review the judge's denial of a motion to remove a default judgment for an abuse of discretion. See Berube, supra.
Although default judgments in summary process matters are not appealable, see Rule 12 of the Uniform Summary Process Rules (2004); Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 856 (2019) (Appendix), the denial of a rule 60 (b) motion to remove default is appealable. See Adjartey, supra at 836, 858; Reznick v. District Court Dep't of the Trial Court, 456 Mass. 1001 (2010). An appeal is also permitted from an order dismissing an appeal. See Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011).
At the first motion hearing on September 7, 2017, counsel for the bank did not dispute that Benoit had signed in on the day of trial, but stated that numerous unsuccessful efforts were made to locate Benoit in the court house when the case was called. Benoit represented at the September 7 hearing that she was present for trial, but did not hear her case called. She did, in fact, file a motion to remove the default, which was date stamped 12:32 P.M. on the day of trial.
Since Benoit promptly filed for relief, and the bank has not pointed to any prejudice, Benoit has made an initial showing that her failure to appear was the result of mistake, inadvertence, or excusable neglect. See Berube, 7 Mass. App. Ct. at 429. However, Benoit has failed to identify a meritorious defense to the summary process action worthy of judicial consideration. See Johnny's Oil Co., 82 Mass. App. Ct. at 708. The summary process action was filed against Benoit after the bank foreclosed on the mortgage held solely by her deceased husband. Her answer and counterclaim in the summary process action do not assert any defense to the foreclosure. Nor has she asserted any defense to the foreclosure on appeal for which there is support in the record or indicated that the defense was raised before the motion judges. In the absence of a defense to the foreclosure, we are constrained to conclude that Benoit has not demonstrated a colorable appealable issue. The motion judges did not abuse their discretion in denying her motions to remove the default against her, individually.
We note that in most circumstances, a lay person would be ill-equipped to identify the appropriate defenses and counterclaims in such a case. See, e.g., Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 571 (2012) ; U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 645-652 (2011). See also Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 836-837 (2019) (describing "complexity of a summary process eviction [that] is exacerbated by the web of applicable statutes and rules" and "therefore [presents] a formidable challenge for an unrepresented litigant"). In addition, Benoit represented in the trial court and on appeal that she suffers from an unidentified disability and receives governmental disability benefits. Compounding the difficulties inherent in the case, the filing of multiple motions to dismiss Benoit's appeals on procedural grounds created a thicket of pleadings so tangled that it took several motion judges a full year to discern that the previous orders dismissing Benoit's appeals for want of prosecution were in error, because Benoit had not received the adjudication of indigency that was required to obtain the transcripts necessary to assemble the record and enter her appeals. Nonetheless, in the absence of appointed counsel for indigent litigants such as Benoit, a busy Housing Court judge facing a crowded court room comprised of scores of pro se litigants must move the docket and act on the cases as presented with the limited information at hand.
The first motion judge concluded that Benoit had no possessory interest in the property. Benoit was in physical possession of the property at the time the summary process action was initiated. Although the suit was filed against the defendants as heirs of Alfred Benoit, the summary process complaint contained no allegations concerning the record owners, the deed, or Benoit's rights of inheritance. Alfred Benoit's will was not before the motion judge. However, the bank had earlier filed a preforeclosure complaint to adjudicate military status in the Land Court in which it alleged that the named defendants were "the only person(s) holding the equity of redemption" in the property. We therefore do not rely on the assertion that Benoit lacked any possessory interest in the property. See U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291, 297-298 (2019) (as tenant in possession, child of mortgagor has standing to seek waiver of appeal bond and assert defenses to summary process action). Compare Cummings Properties, LLC v. Cepoint Networks, LLC, 78 Mass. App. Ct. 287, 289-290 (2010) (guarantor had no possessory interest in real estate and was not proper defendant in summary process action). We instead focus on whether she asserted defenses to the foreclosure.
A litigant who has disclosed a disability may be entitled to reasonable accommodation upon request. See McDonough, petitioner, 457 Mass. 512, 523 (2010) ("It is incumbent on all judges and judicial staff to ensure that every person with a disability be provided with reasonable accommodation, if available, to ensure that she can be a full and equal participant in our system of justice"). See also Kiman v. New Hampshire Dep't of Corrections, 451 F.3d 274, 283 (1st Cir. 2006) (accommodation may be required even without a request, where the individual's need for an accommodation is "obvious" [citation omitted] ); Adjartey, 481 Mass. at 848-849 ("where a party in a summary process eviction action alerts the court and the adverse party to a disability requiring accommodation, the court, if it determines that the party indeed has a disability, shall provide the disabled party with reasonable accommodation"). Benoit indicates in her brief on appeal that she received the assistance of the Clerk's Office of the Appeals Court and the Appeals Court's pro se legal clinic in preparing her brief.
While we affirm the orders denying the motions to remove the default for the reasons stated as to Benoit, individually, we vacate the orders as to Benoit in her capacity as representative of the minor children. The nature and tenor of the pleadings filed by Benoit in the Housing Court and the brief she filed on appeal raise questions as to whether she was able to identify or raise appropriate defenses. The minor children relied on Benoit to represent their interests here and in the trial court. Whether their interests were adequately represented by Benoit has not yet been addressed in this proceeding, and the pleadings before us raise a substantial and obvious question as to Benoit's ability to do so. See Adjartey, 481 Mass. at 848-849 ; Kiman v. New Hampshire Dep't of Corrections, 451 F.3d 274, 283-284 (1st Cir. 2006).
The children were alleged to be minors at the time of the complaint. It is not clear whether they reached the age of majority during the pendency of the case, but we have no indication that they were named or served in their adult capacity or that their rights were adjudicated in an adult capacity.
Remand is therefore required as to the minor children. See generally Guardianship of K.N., 476 Mass. 762, 766–767 (2017) (discussing equitable authority of judge of Probate and Family Court to appoint counsel for indigent party in complex case where parent may be unable to represent interests of child); G. L. c. 185C, § 2 (outlining broad statutory and equitable powers of Housing Court). On remand, the judge may wish to consider whether Benoit's unidentified disability, or any condition made evident in the pleadings, see note 10, supra, affected Benoit's ability to represent the minor children.
The judge on remand would benefit from a review of Benoit's brief in this court.
Accordingly, the orders denying the motions to remove the default as to Benoit, individually, are affirmed without prejudice to reinstitution of her counterclaims for damages in a separate proceeding, as authorized by the first motion judge in her ruling on the record at the September 7, 2017 hearing. The orders denying the motions to remove the default as to Benoit "as ppa" of her minor children are vacated and the matter is remanded to permit a judge of the Housing Court to determine whether the interests of the children have been adequately represented. The stay of execution (see note 6, supra ) shall remain in effect until such time as a new judgment enters on remand, at which time, if necessary, any further request for a stay should be made in the first instance in the Housing Court. See Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019).
So ordered.
affirmed in part; vacated in part and remanded