Opinion
15-P-1635
02-24-2017
TRUSTEES OF the BARTLEY NOLAN CONDOMINIUM TRUST v. Ronald F. KAMEL, personal representative,& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of an action by the trustees of a condominium association against a loan servicer in which the trustees sought to enforce a lien for unpaid condominium fees. See G. L. c. 183A, § 6(a ). The trustees of the Bartley Nolan Condominium Trust (trustees) appeal from an order of the single justice allowing Green Tree Servicing, LLC (Green Tree), to file a late notice of appeal. Green Tree has cross-appealed, claiming that the default judgment against it is void because it was not properly served. We conclude that the single justice did not abuse his discretion in allowing the late notice of appeal, and that service was proper. Accordingly, we affirm.
Late notice of appeal . The trustees contend that the single justice abused his discretion in allowing Green Tree's motion to file a late notice of appeal. We reject this contention. We review single justice decisions on enlargements of time for abuse of discretion. See Commonwealth v. Jordan , 469 Mass. 134, 145 (2014) ; Troy Indus., Inc . v. Samson Mfg. Corp ., 76 Mass. App. Ct. 575, 581 (2010) ("[W]e review the action of the single justice for errors of law and, if none appear, for abuse of discretion"). The "burden of showing an abuse of discretion is a difficult one to carry." Troy Indus., Inc ., supra .
"[A] single justice or an appellate court, acting under Mass. R. A. P. 14(b), is empowered to act at any time on a motion to enlarge the time to file a notice of appeal, so long as the appealing party has filed its notice of appeal within one year of the issuance of notice of the order it seeks to appeal." Jordan , 469 Mass. at 143 n.18, citing Commonwealth v. White , 429 Mass. 258, 263-264 (1999). In this case, Green Tree claimed that it did not receive notice of the trial court order denying its motion to vacate judgment, and learned of it only through its own actions in checking the docket. "[L]ack of notice is 'relevant in the determination of whether to extend the time to file the notice of appeal under either [Mass.R.A.P.] 4(c) or ... 14(b).' " Troy Indus., Inc ., supra at 582, quoting from Commonwealth v. Guaba , 417 Mass. 746, 752 (1994). The single justice did not abuse his discretion in concluding that Green Tree had established good cause, and in granting Green Tree's motion to file a late notice of appeal. See Troy Indus., Inc ., supra .
Service of process . The summons and complaint was served on Green Tree "Attn: President/Treasurer/Clerk" by certified mail at the Tempe, Arizona address provided in the mortgage. Further, the address contained a mail stop code, "T314," designated to receive mortgages and assignments. A mailroom associate working for Green Tree's mailroom vendor signed for the mailing, but did not forward it to the legal department. Thereafter, the trustees served all motions and notices to the same address, by certified mail. Green Tree did not respond, and judgment entered. Thereafter, the trustees scheduled a foreclosure sale, notice of which was acknowledged by a foreclosure supervisor at Green Tree. After the foreclosure sale, Green Tree moved for relief from judgment on the grounds that service was improperly made. A judge of the Superior court denied the motion.
On appeal Green Tree maintains that the court did not acquire personal jurisdiction over it because service was deficient. Service by certified mail is authorized by G. L. c. 223A, § 6(a )(3), and Mass.R.Civ.P. 4(e) & (f), 365 Mass. 733 (1974). Green Tree maintains that by generically addressing the summons and complaint to "Attn: President/Treasurer/Clerk" at an address and mail code expressly for "trailing documents" (i.e., original recorded documents, such as mortgages and assignments), the trustees failed to provide Green Tree actual notice of the complaint or a meaningful opportunity to defend the litigation. Specifically Green Tree claims that service was made only on the mailroom associate.
General Laws c. 223A, § 6, provides in pertinent part:
"(a ) When the law of this commonwealth authorizes service outside this commonwealth, the service, when reasonably calculated to give actual notice , may be made:
...
"(3) by any form of mail addressed to the person to be served and requiring a signed receipt ;
...
"(b ) Proof of service outside this commonwealth may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this commonwealth, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court ." (Emphasis added.)
Rule 4 of the Massachusetts Rules of Civil Procedure provides in pertinent part:
"(e) Same: Personal Service Outside the Commonwealth. When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: ... (3) by any form of mail addressed to the person to be served and requiring a signed receipt
....
"(f) Return. The person serving the process shall make proof of service thereof in writing to the court promptly and in any event within the time during which the person served must respond to the process.... When service is made by mail, proof of service shall include a receipt signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court . Failure to make proof of service does not affect the validity of the service." (Emphasis added.)
This argument overlooks the fact that the envelope was addressed to the corporate officers, and that the failure to deliver the envelope to the appropriate recipient was the result of a failure of procedure attributable to Green Tree, not the mode of service employed by the trustees. The judge's factual finding on the latter point is not clearly erroneous. See M.M . v. D.A ., 79 Mass. App. Ct. 197, 205 (2011).
This argument also overlooks the fact that Mass.R.Civ.P. 4(e) authorizes service by certified mail, and that the return of service under Mass.R.Civ.P. 4(f) is valid if the receipt is "signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court" (emphasis added). The word "or" is the operative word in the rule. It is not necessary that the receipt be signed by the president, treasurer, or clerk, so long as the evidence of delivery to the addressee is satisfactory to the court. Here, service was directed to the corporate officers at the address listed in the mortgage documents, and the complaint and summons were received. The judge's conclusion that the manner of service was "reasonably calculated to give actual notice" was not in error. G. L. c. 223A, § 6(a ). See Kagan v. United Vacuum Appliance Corp ., 357 Mass. 680, 684-685 (1970) (service of process by registered mail at the address used in letters from the defendant to the plaintiff was "reasonably calculated to give actual notice" under G. L. c. 223A, § 6 [a ][3] ).
Green Tree's reliance on Byrd v. District of Columbia , 230 F.R.D. 56 (D.D.C. 2005), is misplaced. There, support personnel who were not authorized to accept service on behalf of the mayor signed for certified mail containing the summons and complaint. Service was deemed defective. However, the defect in service arose out of a special provision of the District of Columbia Superior Court rules which required that service be made on the mayor or a specified designee. Id . at 58. As a result of the rule, service in the District of Columbia is valid only if the mail is signed for by an employee who is specifically designated to receive service of process. Ibid . There is no such rule in this case. In fact, our rule is more broadly written to permit the court to assess whether the manner of personal delivery is satisfactory. Byrd is inapposite.
Fees . Because this is an action to enforce a lien pursuant to G. L. c. 183A, § 6(a )(i), the trustees are entitled to fees in accordance with G. L. c. 183A, § 6(a )(ii), as appearing in St. 1992, c. 400, § 7 ("The organization of unit owners may also assess any fees, attorneys' fees, charges, late charges, fines, costs of collection and enforcement, court costs, and interest charged pursuant to this chapter against the unit owner ..."). See Yorke Mgmt . v. Castro , 406 Mass. 17, 19 (1989) ("The statutory provisions for a 'reasonable attorney's fee' would ring hollow if it did not necessarily include a fee for the appeal"). The trustees' verified and itemized application for fees and costs may be filed within fourteen days of the date of this decision. Green Tree will then have fourteen days to file an opposition to the amounts requested. See Fabre v. Walton , 441 Mass. 9, 10-11 (2004).
Conclusion . The order of the single justice and the Superior Court order denying the motion to vacate judgment are affirmed.
So ordered .
Affirmed.