Opinion
14-P-722
06-29-2015
COMMONWEALTH v. ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The interveners -- Gerson Peguero, Rafael Delossantos, and Yadannis Valdez -- appeal from a default judgment entered in a civil forfeiture action. We affirm.
Background. On July 2, 2010, Doriel Rivera was indicted for distribution of a class B controlled substance (subsequent offense) and furnishing false information (the 2010 case). Bail was set at $100,000. On September 16, 2011, Rivera was indicted on charges of forging motor vehicle documents, driving with a suspended license (subsequent offense), and failing to appear in the 2010 case (the 2011 case). Bail was set at $25,000. On January 25, 2012, Peguero and Delossantos each posted $50,000 for Rivera's bail in the 2010 case, and Valdez posted $25,000 for Rivera's bail in the 2011 case. All three paid with bank checks. On February 10, 2012, the Commonwealth moved for a hearing on the source of the funds. The bail money in both cases was frozen pending such a hearing. On March 9, 2012, Rivera pleaded guilty to the charges in both cases and was sentenced.
On March 19, 2012, the Commonwealth filed a complaint pursuant to G. L. c. 94C, § 47, for forfeiture of the $125,000 posted for Rivera's bail in the two cases. The complaint was filed with an affidavit and several police reports. In one report, a State trooper reported that he met with Delossantos at his place of business. Delossantos stated that he did not know Rivera and that he had posted the bail money at the request of his mother. When asked where the money came from, Delossantos stated that Rivera's mother had given him cash, totaling $50,000, on three separate occasions. Delossantos did not remember where the first transaction occurred; the latter two took place at his shop. Delossantos had no contact information for Rivera's mother, whom he could not identify, and stated that he agreed to post the bail for Rivera because Rivera's mother "did not have a bank account of her own, only cash." Four days later, Delossantos reported to the trooper that he believed that Rivera's mother was in the Dominican Republic, and that he did not know the woman who had given him the cash.
Although Valdez argues that the complaint did not incorporate these police reports by reference, counsel averred in support of Valdez's motion to vacate the preliminary seizure order that he was "able to discern" that the forfeiture complaint "include[d], in addition to the [a]ffidavit," the police reports.
Delossantos owns a custom auto body shop.
Delossantos was unable to identify a photograph of Rivera.
The police showed Delossantos a photograph of a person whom they believed to be Rivera's mother.
The State police also questioned Peguero about the $50,000 he posted. Peguero stated that he was acquainted with Rivera and had met him a few times at Delossantos's shop. He was approached by Rivera's cousin and asked to post bail for Rivera. Peguero paid $15,000 from his own bank account and received $35,000 in cash from Rivera's mother. Peguero could not recall where or when he had received this cash from Rivera's mother, whose name he did not know and for whom he had no contact information. Peguero told the trooper that, in addition to himself and Delossantos, "Rivera's girlfriend had also played a role" in obtaining Rivera's bail money.
Peguero, Delossantos, and Valdez moved to intervene in the civil forfeiture action. All three were represented by the same attorney. In his affidavit in support of the motion, Peguero swore that he posted $50,000 bail "to help my friend Doriel Rivera," and that the remainder "was posted by two mutual friends of Doriel Rivera," Valdez and Delossantos. Peguero averred that the $50,000 "came directly from my bank account," from money he earned through his employment. Valdez's affidavit stated that she contributed $25,000 "to help my friend Doriel Rivera post bail." Valdez earned the money through her employment, where she was earning $20.57 per hour as an international account representative. Delossantos's affidavit stated that the $50,000 he posted "came from my bank account." He stated that he owned a custom auto shop, but not that the money represented income from that endeavor.
Rivera's motion to intervene was denied.
Peguero earned approximately $35,000 per year as a maintenance supervisor.
Following allowance of their motion to intervene, Valdez, Peguero, and Delossantos filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). They argued that dismissal was required because the police failed to obtain a warrant before seizing the funds, and because the Commonwealth failed to demonstrate "probable cause to believe that the bail money was connected to any unlawful activity" at the time it instituted the action. On July 11, 2013, the motion was denied without hearing.
Approximately five months later, Valdez obtained new counsel, who filed an answer and jury demand on her behalf. However, the answer was stricken for failure to seek or obtain leave to file a late answer. On January 13, 2014, all three interveners were defaulted for their failure to answer the complaint. Valdez moved to set aside the default and for leave to file a late answer; the motion was denied because "no good cause has been shown to warrant removal of the default." Peguero and Delossantos also moved to set aside the default and for leave to file a late answer; their motion also was denied.
On February 19, 2014, Valdez moved to vacate the order of preliminary seizure as to her claim to $25,000. The motion was denied because Valdez "ha[d] no standing to challenge the claims in this case" in light of the denial of her motion to vacate the default and for leave to file a late answer. On April 1, 2014, the court allowed the Commonwealth's motion for default judgment under Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009).
Discussion. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules . . ., the clerk shall enter his default." Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974). Under the rule, "a defendant failing to answer a complaint in timely fashion shall be defaulted." Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 74 (1989).
Here, the interveners were required to file a responsive pleading within ten days after receiving notice of the court's denial of their motion to dismiss. Mass.R.Civ.P. 12(a)(2), 365 Mass. 754 (1974). They never filed an answer; therefore, they were in default as of July 25, 2013. The court may set aside the default "[f]or good cause shown," Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), which "requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses." Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012). The judge in this case declined to vacate the default, and we review his decision for abuse of discretion. Ibid.
In support of her motion to set aside default, counsel for Valdez filed an affidavit stating that he spoke with prior counsel, "[t]hat the docket does not expressly state that an answer was to be filed within ten days of the denial of a motion to dismiss," and that he "did not focus on the Court's ruling" on the motion to dismiss when he reviewed the docket. The affidavit contained no information regarding Valdez's defenses. In support of their motion to set aside default, counsel for Peguero and Delossantos stated that the Commonwealth brought their failure to answer to counsel's attention "at the time when [his] son was born and [he] was on brief paternity leave." No date was specified. Counsel stated that "[t]here were also internal transitions in [his] office that led to a further delay of the filing of the answer." Again, no dates were specified. Nothing in the affidavit relates to Peguero's or Delossantos's defenses, and none of the interveners filed affidavits.
The motion was accompanied by an unverified answer, in which Valdez asserts as affirmative defenses that there is no nexus between her $25,000 and drugs and the Commonwealth's complaint is unsupported by probable cause.
We see no abuse of discretion in the judge's denial of the motions to vacate default. The judge properly could consider the interveners' five-month delay in answering and their failure to allege "facts supporting their claim of a meritorious defense." Cicchese, supra at 75. Indeed, absence of "an affidavit setting forth the facts and circumstances, including the nature of [their] defenses . . . alone, is a fatal omission." Johnny's Oil Co., supra. A judge does not abuse his discretion in denying a motion where a party has "presented only conclusory assertions rather than a demonstration that he had a meritorious defense to" the forfeiture action, id. at 709, and nothing in this record supports an inference that any of the interveners have a meritorious defense.
While Valdez argues that there is "no evidence that [she] acted in concert with Peguero and Delossantos" to post Rivera's bail, Peguero stated in his affidavit in support of the motion to intervene that he knew Valdez to be employed full-time and that "[s]he is incredibly hard working and makes her money the honest way, through hard work." Peguero earlier had told police that "he knew nothing of" Rivera's girlfriend other than the fact that she was involved in posting Rivera's bail. Peguero's affidavit stated that $75,000 "was posted by two mutual friends of Doriel Rivera," Valdez and Delossantos, further suggesting his knowledge of both individuals. Finally, all three posted Rivera's bail on the same day. Such evidence supports the inference, argued by Valdez, Peguero, and Delossantos in their motion to dismiss, that the three "came together to help Mr. Rivera post the $125,000 bail."
Valdez stated in her affidavit in support of the motion to intervene that the $25,000 she posted came from her employment. She earned approximately $46,000 per year, and there is no evidence of how much money was in her bank account before or after she withdrew the $25,000. Peguero told police that he used $15,000 of his own money and was given $35,000 in cash from Rivera's "mother," but stated in his affidavit in support of the motion to intervene that all $50,000 came directly from his bank account, from his earnings as a maintenance supervisor. Again, there is no evidence of how much money was in Peguero's bank account before or after he withdrew $50,000, and it is hard to imagine that Peguero had that much cash available from his $35,000 per year job. Finally, Delossantos makes no assertions regarding the source of his $50,000 other than that it was in his bank account. There is ample evidence of a connection between Delossantos's auto body shop and Rivera, and Delossantos told police that the $50,000 was given to him in three cash transfers by Rivera's "mother." Delossantos later told police that he did not know the woman who gave him the money. In light of such evidence, the judge could conclude that the interveners did not have meritorious defenses, even if their failure to answer for five months could be excused for "good cause." See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002) (to obtain relief pursuant to Mass.R.Civ.P. 55[c], "a party must show both a good reason to remove the default and also the existence of meritorious claims or defenses" [emphases added]). The interveners "did not even purport to make a showing of meritorious defenses at the time [they] submitted [their] motion to vacate the default," id. at 807, and there was no abuse of discretion.
Peguero had met Rivera before at Delossantos's shop, and Rivera's "cousin," who asked Peguero to post Rivera's bail, "was someone who occasionally socialized" at Delossantos's garage. Moreover, Delossantos allegedly received, at his garage, two cash transfers of $9,000 and $35,000 from Rivera's "mother."
In light of our conclusion, we need not consider the denial of the motion to dismiss or to vacate the preliminary seizure order.
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 29, 2015.