Opinion
19-P-260
06-16-2020
CITY OF LAWRENCE v. MARK GRAY.
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 defendant appeals from a Land Court order denying his motion for relief from a default judgment which foreclosed his right to redeem real property. We affirm.
Background. 1. Tax taking. The defendant purchased residential real property in the city of Lawrence (City) on February 24, 2012. HSBC Bank USA (HSBC), the defendant's predecessor in interest, had taken title to the property by foreclosure deed dated December 31, 2011, and recorded January 6, 2012. The City assessed property taxes for fiscal year 2013 (July 1, 2012, through June 30, 2013) to HSBC, as it was the owner on the date of the assessment, January 1, 2012. On March 28, 2014, the City issued a demand to HSBC for the still unpaid fiscal year 2013 taxes. The City subsequently executed an instrument of taking based upon the unpaid fiscal year 2013 taxes that had been assessed to HSBC. The instrument of taking was recorded and the City sent the defendant a letter dated July 28, 2016, notifying him of its intent to foreclose if the defendant did not exercise his right of redemption before August 11, 2016.
2. Foreclosure suit. On October 20, 2016, the City filed a Land Court suit under G. L. c. 60, § 65, to foreclose the defendant's right of redemption. The Land Court ordered that a deputy sheriff serve a copy of the "complaint/citation" on the defendant, who was identified as the only party having an interest in the property at that time.
After several failed service attempts, a deputy sheriff left a copy of the process at the defendant's property and mailed a copy to the defendant at the same address. The October 20, 2017 return of service identifies the documents served as an "order of notice with limited representation information/sheet and citation." Although the defendant does not dispute that the property was his "usual place of abode," he claims that he "never saw th[e] [Order of N]otice" referenced in the October 20, 2017 return of service.
The defendant did not file an answer or other response to the complaint and the plaintiff filed a motion for default. The motion was granted, and, on June 18, 2018, judgment entered foreclosing all rights of redemption in the property.
On September 6, 2018, the defendant filed a petition to vacate the judgment pursuant to G. L. c. 60, § 69A. As grounds for the request, the petition stated only that the defendant "wished to redeem his property . . . by paying all outstanding taxes, interest, and costs." The defendant also filed an affidavit that stated that he was not aware of the Land Court suit "[u]ntil receiving the judgment." The petition was denied on October 19, 2018.
The defendant did not appeal. Instead, on November 13, 2018, he filed a motion for relief from default under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). As grounds for the motion, the defendant argued that the plaintiff: "(a) failed to issue the necessary demand upon him . . . , (b) that if any demands were issued, they were served against a predecessor in title, and (3) that resultant Instrument of Taking . . . was recorded against a prior owner of the subject property . . . ." The motion was denied on December 17, 2018. On January 11, 2019, the defendant filed his notice of appeal.
Discussion. The defendant purports to appeal from the default judgment and the orders denying his petition to vacate and motion for relief from default. However, the defendant filed his notice of appeal more than two months after the order on the petition to vacate and more than six months after the judgment. His appeal is timely only as to the order on the rule 60 (b) motion for relief from default. See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013) (notice of appeal must be filed "within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from"). Thus, the only question before us is whether the denial of the defendant's rule 60 (b) motion was proper. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-435 (1979). See also Muir v. Hall, 37 Mass. App. Ct. 38, 42 (1994) (dismissing untimely appeal even though error in trial court judgment was "plain on its face").
The filing of the defendant's rule 60 (b) motion did not affect the deadline to appeal from the prior orders because the motion was filed more than ten days after judgment. See Mass. R. A. P. 4 (a) (2) (C), as amended, 464 Mass. 1601 (2013) (motions to alter or amend judgment under Mass. R. Civ. P. 59, 365 Mass. 827 (1974), and motions for relief from judgment under Mass. R. Civ. P. 60 [b] toll deadline to file appeal only if "served within 10 days after entry of judgment").
We cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. The rules were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 446 (LexisNexis 2019). The substantive requirements of rule 4 (a) (1), at issue in this case, are unchanged. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).
1. Motion for relief from judgment. We review the denial of a rule 60 (b) motion for abuse of discretion. See Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287 (1984); New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135, 144 (1989). Applying this standard, we do not ask whether a "reviewing court might have reached a different result; the standard of review is not substituted judgment." Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 160 (1987). Instead, we ask whether the judge made a "clear error of judgment" in applying the relevant law. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). We find no such error here. Because the defendant's motion neither gave a reason for his default, nor otherwise explained why he is entitled to relief under any subsection of rule 60 (b), it was not an abuse of discretion for the Land Court to deny the motion.
Even if we take the affidavit that the defendant filed in support of his petition to vacate into consideration, the defendant has not adequately explained his default. In that affidavit, the defendant acknowledges that he was served with notice of the foreclosure suit, but claims he never saw the notice. The trial court "was not bound to accept the defendant's self-serving statement that the only notice he received of the lawsuit was [the judgment]." Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010). And the defendant's statements -- if accepted as true -- do not provide a basis to set aside the default judgment. See Andover v. State Fin. Servs, Inc., 432 Mass. 571, 574-575 (2000), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (due process does not require actual notice; it requires notice "reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action"). "The plaintiff's submission of the return of service establishes prima facie evidence that service was validly made," and testimony that a defendant did not see the process "does not directly controvert" the return of service. Dumas v. Tenacity Constr., Inc., 95 Mass. App. Ct. 111, 115, 117 (2019).
A rule 60 (b) motion is not a "substitute for the regular appeal procedure." Piedra v. Mercy Hosp., Inc. 39 Mass. App. Ct. 184, 188 (1995). See Harris v. Sannella, 400 Mass. 392, 395 (1987). The rule "does not provide an avenue for challenging supposed legal errors," Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987), and is instead intended to offer relief only in "extraordinary circumstances." Jones v. Boykan, 464 Mass. 285, 291-292 (2013). In that manner, the rule "strikes a balance between serving the ends of justice and preserving the finality of judgments" (citation omitted). Harris, supra at 395.
A defendant seeking relief from judgment under rule 60 (b) must present evidence establishing the "facts and circumstances" that entitle him to relief under the rule. New England Allbank for Sav., 28 Mass. App. Ct. at 140. Specifically, the moving party must demonstrate: "1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . ; or (6) any other reason justifying relief from the operation of the judgment." Mass. R. Civ. P. 60 (b).
The defendant's rule 60 (b) motion does not argue that he meets the requirements of any subsection of rule 60 (b). Instead, he attempts to use the motion as an opportunity to litigate the merits of the plaintiff's claim, arguing that there were defects in the tax assessments and taking that occurred before the plaintiff filed its foreclosure suit. See G. L. c. 60, § 70 (questions as to validity of tax title should be raised by answer in foreclosure action); Jenney v. Tilden, 270 Mass. 92, 95 (1930) (defendant's grounds for redeeming real property should be set forth in answer). The defendant has "essentially used rule 60 (b) as a means of appeal [as to the merits] when no extraordinary circumstances exist[] to justify relief under the rule." Jones, 464 Mass. at 291-292. This is not an appropriate use of a motion for relief from default, particularly where, as here, the material information underlying the motion was available to the defendant at the time he filed his petition to vacate judgment. See id.
That is not to say that the merits of a claim are irrelevant to a judge's decision on a motion for relief from a default judgment. The lack of a meritorious defense to a claim can be grounds for denying the motion. See New England Allbank for Sav., 28 Mass. App. Ct. at 142-143. But a meritorious defense alone does not compel the trial court to set aside a default; where a defendant fails to explain his delay in responding to a complaint, the trial court does not abuse its discretion by refusing to grant relief from the default. See Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 75-76 (1989) (applying less stringent rule 55 standard for setting aside defaults). See also Scannell, 401 Mass. at 159 (relief under rule 60 [b] is discretionary and judge is not required to grant relief even when defendant establishes all factors governing relief).
The defendant's motion does not lay out any meritorious defenses in any event. His argument that the plaintiff should have sent the tax assessment and demand to the defendant (rather than HSBC) is based upon a misreading of the relevant statutory provisions. Real estate taxes are assessed annually, not for any period of time, but as of a fixed day. See Irven Usen Co. v. Board of Assessors of Boston, 309 Mass. 544, 545 (1941). See G. L. c. 59, § 11 (taxes are to be assessed to person who is owner on January 1). The City properly assessed the fiscal year 2013 taxes to HSBC, which owned the property as of January 1, 2012, the tax assessment day for fiscal year 2013. See Boston v. Quincy Mkt. Cold Storage & Warehouse Co., 312 Mass. 638, 650 (1942) (tax assessment under G. L. c. 59, § 11, is valid if assessed to "true owner" as of assessment date). It is immaterial that the property had been conveyed to the defendant by the time the demand was made to HSBC. See Irven Usen Co., supra at 545. The assessment of taxes to HSBC did not determine the person upon whom the burden of paying the tax would ultimately fall. See Milton v. Ladd, 348 Mass. 762, 764 (1965) (owner of real estate holds it subject to lien for payment of taxes, irrespective of person to whom tax is assessed).
2. Sufficiency of Service. On appeal, the defendant also argues that he is entitled to relief from judgment based on alleged defects in the process served on him in the Land Court suit and because he did not receive notice of a default hearing. Because the defendant did not raise these arguments below, they are waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). See also Buckley v. John, 314 Mass. 719, 721-722 (1943) (defendant waived lack of service by filing document that discussed merits of litigation); Colley v. Benson, Young & Downs Ins. Agency, Inc. 42 Mass. App. Ct. 527, 533 (1997) (service issues waived through nonassertion).
Both of these arguments appear to be based on misinterpretations of the relevant documents and trial court docket. The return of service in this case states that the deputy sheriff served the defendant with an "order of notice with limited representation information/sheet and citation." "Citation" is "the tax lien action equivalent of a summons and complaint." Tallage LLC vs. Meaney, Mass. Land Ct., No. 11-TL-143094 (June 26, 2015). There thus is no merit to the defendant's contention that the return of service does not reflect service of the complaint. Similarly, the Land Court docket reflects that judgment was entered without a hearing. In other words, the defendant did not receive notice of a default hearing not because of any error, but because no such hearing was held.
Order denying motion for relief from judgment affirmed.
By the Court (Meade, Shin & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 16, 2020.