Pursuing a Case in Small Claims Court [3 ed.] 1575895994

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Pursuing a Case in Small Claims Court Sean P. Coleman

Pursuing a Case in Small Claims Court Sean P. Coleman

MCL E

NEW ENGLAND

Keep raising the bar.®

MCL E

Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4651 1-800-966-6253 | www.mcle.org

NEW ENGLAND

2110275B03

Keep raising the bar.®

Pursuing a Case in Small Claims Court 3RD EDITION 2010

Sean P. Coleman

2110275B03—3rd Edition 2010

© 2010 by Massachusetts Continuing Legal Education, Inc. All rights reserved. Published 2010. Permission is hereby granted for the copying of pages or portions of pages within this book by or under the direction of attorneys for use in the practice of law. No other use is permitted without prior written consent of Massachusetts Continuing Legal Education, Inc. Printed in the United States of America This publication should be cited: Pursuing a Case in Small Claims Court (MCLE, Inc. 2010) Library of Congress Card Number: 2010925519 ISBN: 1-57589-599-4 All of Massachusetts Continuing Legal Education, Inc.’s (“MCLE’s”) products, services, and communications (“MCLE Products”) are offered solely as an aid to developing and maintaining professional competence. The statements and other content in MCLE Products may not apply to your circumstances and no legal, tax, accounting, or other professional advice is being rendered by MCLE or its trustees, officers, sponsors, or staff, or by its authors, speakers, or other contributors. No attorney-client relationship is formed by the purchase, receipt, custody, or use of MCLE Products. The statements and other content in MCLE Products do not reflect a position of and are not ratified, endorsed, or verified by MCLE or its trustees, officers, sponsors, or staff. Contributors of statements and other content in MCLE Products are third-party contributors and are not agents of MCLE. No agency relationship, either express, implied, inherent or apparent, exists between MCLE and any third-party contributor to MCLE Products. Due to the rapidly changing nature of the law, the statements and other content in MCLE Products may become outdated. Attorneys using MCLE Products should research original and current sources of authority. Nonattorneys using MCLE Products are encouraged to seek the legal advice of a qualified attorney. By using MCLE Products, the user thereof agrees to the terms and conditions set forth herein, which are severable in the event that any provision is deemed unlawful, unenforceable, or void. To the fullest extent permitted by applicable law, MCLE Products are provided on an “As Is,” “As Available” basis and no warranties or representations of any kind, express or implied, with respect to MCLE Products are made by MCLE or its trustees, officers, sponsors, or staff, individually or jointly. To the fullest extent permitted by applicable law, neither MCLE nor its trustees, officers, sponsors, or staff are responsible for the statements and other content in MCLE Products or liable for any claim, loss, injury, or damages of any kind (including, without limitations, attorney fees and costs) arising from or involving the use of MCLE Products. Failure to enforce any provision of these terms and conditions will not be deemed a waiver of that provision or any other provision. These terms and conditions will be governed by the laws of the Commonwealth of Massachusetts, notwithstanding any principles of conflicts of law. These terms and conditions may be changed from time to time without notice. Continued use of MCLE Products following any such change constitutes acceptance of the change. IRS Circular 230 Notice: Any U.S. tax advice found to be included in MCLE Products (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of avoiding U.S. tax penalties or for promoting, marketing, or recommending to another party any tax-related matter or any other transaction or matter addressed therein. Massachusetts Continuing Legal Education, Inc. Ten Winter Place, Boston, MA 02108-4751 800-966-6253 | Fax 617-482-9498 | www.mcle.org

INTRODUCTION This publication provides guidance for those seeking relief in Small Claims Court. The book contains descriptions of the types of claims that may be filed in Small Claims Court, and factors to consider when deciding whether it is advantageous to do so. Instructions are provided on filing the claim, conducting the hearing, pursuing an appeal, enforcing a judgment and recovering costs. Also included are practice tips, copies of necessary court forms, copies of relevant statutes and court rules, and information on contacting local Small Claims Courts. This timely, practical, and comprehensive guide is designed to help readers navigate the Small Claims Court process efficiently and effectively.

ACKNOWLEDGMENTS MCLE extends warm thanks to the book’s author, Sean P. Coleman, Esq., for his work on this practical guide, and in particular, for the time and effort that he has put into bringing the content up to date in light of recent developments in small claims practice and procedure. Mr. Coleman’s willingness to share his expertise for this publication is most appreciated. The book represents a valuable addition to MCLE’s litigation collection. We extend sincere thanks also to past authors and contributors to this work, including Dana E. Casher, Esq., Glen Hannington, Esq., and Michael D. Prosser, Esq. MCLE thanks the members of its Board of Trustees for their enthusiasm for the publishing program. Finally, we thank the MCLE Publications Department staff members for their able assistance in editing and producing this book. John M. (Jack) Reilly, Esq. Publisher

Introduction

Maryanne G. Jensen, Esq. Editor-in-Chief November 2010

iii

ABOUT THE AUTHORS SEAN P. COLEMAN is the first assistant clerk-magistrate at the Natick District Court and has been a member of the Massachusetts bar since 1994. Prior to becoming an assistant clerk-magistrate, Mr. Coleman held the position of assistant district attorney in Suffolk County and later served as assistant legal counsel at the Office of the Jury Commissioner. He currently serves on the Association of Clerks and Assistant Clerks-Magistrate’s educational committee, a board that is responsible for developing educational seminars for magistrates throughout the Commonwealth. He previously served two consecutive terms as president of the South Middlesex Bar Association. In addition to having taught courses entitled “Introduction to Criminal Law” and “Criminal Procedure” at Quincy College, Mr. Coleman has lectured at the South Middlesex Bar Association, at Judicial Institute programs concerning “Probable Cause Determinations” and “Search Warrants,” and at numerous conferences held by the Administrative Office of the District Court on small claims. He participated in the development, in conjunction with the educational committee and the Administrative Office of the District Court, of a program created to educate new magistrates on their responsibilities. At this training, Mr. Coleman lectured on substantive law and procedure and also developed written materials for the program. He also previously served as a conservation commissioner in Hingham and was a member of a bylaw committee at a local condominium association. Mr. Coleman is a graduate of Massachusetts School of Law and the University of Massachusetts.

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Pursuing a Case in Small Claims Court, 3rd Edition 2010

TABLE OF CONTENTS PART 1

Determining Whether to Bring a Claim in Small Claims Court.......................................... 1 1.

Determine Whether it Is Permissible to File in Small Claims Court .................................................................. 1

2.

Decide Whether it Is Advantageous to File in Small Claims Court .................................................................. 1 Nature of Claim .............................................................................. 2 Advantages and Disadvantages ...................................................... 2 The Defendant’s Possible Tactics................................................... 5

PART 2

Filing a Claim in Small Claims Court.................. 7 3.

Prepare the Application ............................................................... 7 Statute of Limitations...................................................................... 8 Six Steps to Filing Your Claim....................................................... 8 Step One.................................................................................... 8 Step Two ................................................................................... 9 Step Three ................................................................................. 9 Step Four................................................................................. 10 Step Five ................................................................................. 10 Step Six................................................................................... 11

PART 3

Handling the Hearing......................................... 13 4.

Ensure Service............................................................................. 13

5.

Appear for the Hearing .............................................................. 13

6.

Conduct the Hearing .................................................................. 14

Table of Contents

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PART 4

Pursuing an Appeal............................................ 17 7.

Decide Whether an Appeal of a Judgment Is an Option..........17

8.

Follow the Procedural Requirements ........................................17

PART 5

Enforcing a Judgment........................................ 19 9.

No Separate Action to Enforce Small Claims Judgment .........19

10.

The Automatic Payment Review Hearing .................................19 Authority........................................................................................19 Background....................................................................................19 Requirement by Rules ...................................................................20 Amending Judgment to Include Costs...........................................20 Common Practice (Who Appears Before Magistrate, Who Appears Before Judge)..........................................................20 The Burden ....................................................................................21 Financial Statement of Judgment Debtor ......................................21 Exempt Income..............................................................................22 Regarding Agreements ..................................................................22 Continuance of Hearing to Produce Documentation .....................23 Referral to Judge for Hearing on Contempt ..................................23 Execution .......................................................................................23

11.

The Payment Order.....................................................................24 After Judgment ..............................................................................24 After Payment Review Hearing.....................................................24 Debtor to Be Informed of Possibility of Contempt Finding ..........24 Review Dates Following Order of Court.......................................24 What if Claim Is Paid in Full Before Next Review Date?.............24 Continuance of Review Hearing if Payments Current...................25

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12.

What if the Debtor Is a Business (Corporation or D.B.A.)? ... 25 Payment Review May Still Be Scheduled .................................... 25 Capias Can Only Issue Against an Officer ................................... 25 Procedure When Officer Not Named on Judgment or Payment Order.......................................................................... 26 Amending Judgment to Include Name of Corporate Officer to Whom Court Could Direct Order for Payment......................... 27 Debtor Is a D.B.A. (Sole Proprietorship)...................................... 27 Capias ........................................................................................... 27

PART 6

Recovering Costs ............................................... 29 13.

Seek Postjudgment Interest Awards ......................................... 29

14.

Request Postjudgment Cost Awards......................................... 29

15.

Be Aware of Small Claims Preference ...................................... 29

PART 7

Keeping in Mind the Limitations of the Small Claims Court.................................. 31 Exhibits EXHIBIT A—G.L. c. 218, §§ 21–25................................................................ 33 EXHIBIT B—Uniform Small Claims Rules Changes Effective October 1, 2009................................................................................................. 39 EXHIBIT C—Uniform Small Claims Rules .................................................. 49 EXHIBIT D—Forms to Implement Amendments to Uniform Small Claims Rules........................................................................................... 73 EXHIBIT E—Small Claims Standards .......................................................... 83

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EXHIBIT F—Small Claims Court Forms ....................................................183

Form DC-SC-1 Statement of Small Claim and Notice of Trial.......................................................................183 General Purpose Motion..............................................................186 Form DC-CR-19 Appearance of Counsel....................................188 Payment Agreement ....................................................................189 Form DC-SC-6 Financial Statement of Judgment Debtor...........191 Form DC-SC-4 Defendant’s Claim of Appeal ............................192 Acknowledgment of Satisfaction of Judgment............................194 EXHIBIT G—Demand for Payment of Dishonored Check ........................195 EXHIBIT H—Small Claims Courts and Contact Information ..................197

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PART 1

Determining Whether to Bring a Claim in Small Claims Court 1. Determine Whether it is Permissible to File in Small Claims Court What is commonly referred to as “small claims” is a procedure established by the Massachusetts legislature “to provide a simple, prompt and informal means at small expense for adjudication of small claims.” McLaughlin v. Mun. Court, Roxbury Dist., 308 Mass. 397 (1941). In Massachusetts, small claims actions are governed by G.L. c. 218, §§ 21–25 and the Uniform Small Claims Rules and Small Claims Standards. See Exhibits A–E. Civil rules of court do not apply to the small claims session. See Uniform Small Claims Rule 1. Generally, any claim in the nature of contract or tort, other than slander and libel, seeking damages of $7,000 or less, or any claim for property damage caused by a motor vehicle, without regard to the amount of damages sought, may be brought in small claims court. The court may award a judgment over the $7,000 limit if permitted by statute (i.e., G.L. c. 93A). Pursuant to Uniform Small Claims Rule 4, all claims brought against a healthcare provider must be referred to a medical malpractice tribunal in accordance with G.L. c. 231, § 60(B). Consistent with the intent of the statute, the rules and standards governing small claims procedure have been developed to ensure that each litigant will obtain a just, speedy, and inexpensive judicial determination. See Exhibits C and E.

2. Decide Whether it Is Advantageous to File in Small Claims Court Filing a claim in the small claims court may be an advantageous alternative to the formal procedure of civil actions begun by summons and complaint. However, because civil rules of procedure do not apply and certain rules that are unique to small claims court, you will need to weigh the advantages

Part 1 / Determining Whether to Bring a Claim

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and disadvantages of bringing your claim into the small claims court prior to filing your case. First, we will discuss the cause of actions that may be filed in the small claims court. Then we will take a look at the potential advantages and disadvantages of filing a claim in the small claims court.

Nature of Claim You will need to determine whether your case may be properly filed as a small claims action. Pursuant to G.L. c. 218, § 21, a small claims action can be filed for claims in the nature of contract or tort, other than slander or libel, provided the damages do not exceed $7,000. The plaintiff may also file an action for property damage caused by a motor vehicle without the $7,000 monetary limitation. Practice Note Pursuant to Uniform Small Claims Rule 4(C), an action for medical malpractice, error, or mistake against a health-care provider must be referred to a medical malpractice tribunal (see G.L. c. 231, § 60(B) and Commentary to 2001 Amendments).

While that definition generally encompasses most claims that arise in the ordinary course (i.e., goods sold and delivered, services provided, fender benders, etc.), the small claims court also has the authority to grant equitable relief provided that the claim is also seeking monetary damages.

Advantages and Disadvantages Filing an action in the small claims court may be an advantageous alternative to the formal procedure for small claims actions begun by summons and complaint. As with all things, there are pros and cons to the small claims process. On the plus side, the advantages may be the following: • Small claims court is designed to resolve disputes in a simple and informal procedure. Most cases are scheduled for trial within eight weeks from the date the case was filed with the court. Civil actions may not be ready for trial until one full year or more after the filing date. The court supplies the necessary “fill-in-the-blank” type forms that include instructions on their face. See Exhibit F. • It is extremely inexpensive. Filing fees are $40 for claims up to $500; $50 for claims that are $501 to $2,000; $100 for claims

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that are $2,001 to $5,000; and $150 for claims that are $5,001 to $7,000. With appeals and supplementary proceedings (i.e., postjudgment collection proceedings), the costs can potentially increase, but they are always significantly less expensive than any other available action. Civil court Cost to file complaint

$195

Small claims court $40 for claims up to $500 $50 for claims that are $501 to $2,000 $100 for claims that are $2,001 to $5,000 $150 for claims that are $5,001 to $7,000

Cost of summons

$5

$0

Cost of service (estimated)

$50

$01

Total cost to commence a suit

$250

$30–$150

Cost to file and serve postjudgment remedy

$90

$0 for payment review hearing

Total cost to commence suit and file and serve postjudgment remedy

($40 for filing; $50 for service) (estimated)

$60 for capias/notice to show cause

$340

$40 to $150

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1

Ordinarily there is no charge to serve the defendant in a small claims case. However, if circumstances require a special or alternative form of service, usually there will be a charge.

• Due to the simple, prompt, and informal procedure (i.e., formal trial procedures and rules of evidence do not generally apply), you will be able to obtain a judicial determination based on substantive law without going through extensive discovery and unnecessary expense. Practice Note Small claims court may be beneficial in those situations where the costs to litigate in the civil session may exceed the amount of damages your client would recover if he or she were to prevail on his or her claim.

• The award of damages may exceed $7,000 (i.e., multiple damages under G.L. c. 93A and attorney fees), additional damages for “bounced” checks, G.L. c. 93, § 40A, and certain landlord/tenant disputes, G.L. c. 186, § 15B); in accordance with the provisions of any general or special law. • You may schedule several of your cases on the same trial date to maximize the use of time. This can be a great benefit to you in terms of managing your practice and is typically not an available option in the civil session. The following points may be considered as potential disadvantages: • The plaintiff cannot obtain pretrial attachment. See Small Claim Standard 9:04 at Exhibit E; Uniform Small Claims Rule 6 at Exhibit C. However, attachment after judgment is permissible and may be granted by the court. • Generally, no discovery is available. See Small Claim Standard 5:02 at Exhibit E; Uniform Small Claims Rule 5 at Exhibit C. However, the court may provide discovery “if it would provide material assistance to the court in deciding the case.” See Small Claim Standard 5:02 Commentary. • As the plaintiff, your case is presented to a clerk-magistrate rather than a judge. The plaintiff, upon the filing of a small claim, waives his or her right to a trial by jury and any right to appeal to a jury-of-six session in the District Court Department. See G.L. c. 218, § 23. See Exhibit E. 4

Pursuing a Case in Small Claims Court, 3rd Edition 2010

• The defendant may appeal the magistrate’s finding within ten days of receipt of the judgment to the jury session. See G.L. c. 218, § 23. However, the plaintiff is entitled to a jury trial instruction that judgment entered in favor of the plaintiff at the original trial and also of the “prima facie” effect of such judgment. See Small Claim Standard 8:02 Commentary. • The defendant may file a motion to transfer the case to the regular civil docket or the Housing Court. See Uniform Small Claims Rule 4(a); Small Claim Standard 5:03; G.L. c. 218, § 24. • The usual formalities of trial procedure are suspended and, generally, the rules of evidence do not apply. See Small Claim Standards 6:07–6:10 and 8:02 at Exhibit E.

The Defendant’s Possible Tactics The defendant may react to your claim in a number of different ways and has certain options at his or her disposal. The defendant may bring a counterclaim against you (see Uniform Small Claims Rule 3; Small Claim Standard 5:01 and Commentary) and may also, as discussed above, attempt to transfer the case from the small claims court to the regular civil court or to the Housing Court Department. Daum v. Delta Airlines, Inc., 396 Mass. 1013 (1986).

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Pursuing a Case in Small Claims Court, 3rd Edition 2010

PART 2

Filing a Claim in Small Claims Court 3. Prepare the Application Once you have decided that a small claims action is the appropriate venue for your claim, the first step is to obtain from the court a small claim application called the “Statement of Small Claim” form (hereafter the “application”). See Exhibit F. If you anticipate pursuing claims on a regular basis, get several copies to keep on hand, as there is no charge for them. A separate application must be submitted for each claim. To file an application, you must pay the appropriate fee. The Small Claims Standards instruct the small claims staff to be helpful and informative to claimants and assist them in a “prompt and courteous” manner. Practice Note In order to pursue a claim under the consumer protection statute, G.L. c. 93A, you must first mail a written demand to your opponent. You must mail the written demand at least thirty days prior to filing in court. The written demand must • identify you, • describe the unfair or deceptive act or practice on which you relied, and • describe the injury you have suffered. If your opponent offers a settlement in writing within thirty days and you reject it and file in court, your opponent may notify the court. If the court finds the settlement offer was reasonable, the court may limit your recovery to the amount offered.

Practice Note If you seek payment for a “bounced” check, you should serve a written demand on the writer of the check before filing a court action. You must use a specific form printed in at least 10-point type in both the English and Spanish languages, see Exhibit G, and deliver the demand by regular mail and certified mail with a return receipt requested. If the writer of the check

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fails to pay the check amount within thirty days, he or she will be liable for the face amount of the check and additional damages ranging from $100 to $500, as determined by the court.

Statute of Limitations As in all legal matters, it is important that a claim be asserted in a timely manner or it may be barred. However, the statute of limitations must be raised as an affirmative offense by the defendant or it will be waived. The laws that dictate the time within which a claim must be brought are commonly referred to as the statutes of limitations. While the statutes differ from one type of case to another, small claims actions will necessarily fall within two categories: tort (generally seeking compensation for injuries) and contract (generally seeking recovery of damages or loss of money). As a general rule, the statute of limitations for a tort action is three years from the date the injury was incurred or, in the event that the victim only becomes aware of the injury later, three years from the date the injury was discovered. G.L. c. 260, § 2A. In other words, if you are seeking compensation for an injury suffered in a car accident, a fall, or some other event from which you know your injury resulted, you must bring your action within three years from the date of that event. If, on the other hand, you seek compensation for an injury that you only discovered much later, you have three years from the discovery of the injury to file suit. For most contract claims (which do not require a written contract but merely an agreement), the statute of limitations is six years. G.L. c. 260, § 2. The statute of limitations for a claim to recover compensation for property damage caused by a motor vehicle is three years. G.L. c. 260, § 4. The statutes set the outside limitations for filing of claims; as a practical matter, claims should be filed as soon as it becomes apparent that the claim would not be resolved without court action.

Six Steps to Filing Your Claim To adequately complete the application, you may wish to follow the six steps as outlined below:

Step One Check the appropriate box titled “District Court,” Boston Municipal Court, or the Housing Court and enter the specific court that you will be filing your claim in the division section (e.g., “Natick District Court”). See the email address, which will provide you with a list of courts and contact information, at Exhibit H. 8

Pursuing a Case in Small Claims Court, 3rd Edition 2010

The plaintiff may file his or her claim in the court where either the plaintiff resides or has a place of business or employment or where the defendant lives or has a place of business or employment. If the claim is against a landlord and it concerns the rental of an apartment, then the case may be filed in the court that has jurisdiction over the city or town in which the apartment is located. See G.L. c. 218, § 21. Practice Note It may be easier to enforce a judgment, should you prevail, if you file your claim where the defendant resides or has a place of business. If the defendant moves outside the territorial jurisdiction of the court after the claim is filed but before the claim is heard, then the plaintiff may file a motion to transfer the case to the appropriate court having territorial jurisdiction over the defendant prior to the trial date.

Step Two Enter all of the requested information concerning the plaintiff. If you will be representing the plaintiff, then you should provide all the information requested, including your phone number so the court may contact you if required. Make sure you properly identify your client.

Step Three The application requires that the defendant be identified in a legally accurate manner. It is important to properly name and characterize the defendant. The defendant may be an individual (e.g., Bob Smith), a sole proprietor/unincorporated business (e.g., Bob Smith d/b/a Smith Appliance), a corporation (e.g., Smith Appliance, Inc.), or a trust (e.g., Smith Realty Trust). Practice Note If the defendant is an individual, make sure you use their proper legal name and mailing address. If the defendant is a business, you must determine whether the business is incorporated. You can do this by calling the Corporate Records Division of the Office of the Secretary of State at (617) 727-2800 or visiting their Web site at http://www.sec.state.ma.us/cor/ coridx.htm. If the defendant is not incorporated, you can call the local city or town hall where the business is located to obtain the proper legal name of the business. Actions filed against a trust must list the title of the trust with the name and address of the principal trustee.

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Step Four Fill in the proper monetary amount of the claim. Remember, unless the claim is a property damage action caused by a motor vehicle, the amount cannot exceed $7,000. However, as previously discussed, you should assert any statutory authority that would authorize the court to grant an award of damages greater than that amount (e.g., G.L. c. 93A). The application also calls for a description of the claim. Under Uniform Small Claims Rule 2, the claim must be stated in “concise, untechnical language, but with particularity and comprehensiveness.” See Exhibit C. Your statement should be very detailed and include all the relevant facts required to prove your claim. Contracts or other documents may be attached to your claim and filed with the court. See Uniform Small Claims Rule 2 and Small Claim Standard 3:01. You are entitled to recover your filing fee as a cost if you prevail. The claim must specifically state any amounts sought for damages (i.e., multiple damages, statutory penalties, attorney fees, and for costs) and must specify the total amount being sought. See Uniform Small Claims Rule 2(a). Practice Note See Small Claim Standard 7:05 and Commentary in Exhibit E for further discussion on other permissible costs.

Step Five Any plaintiff pursuing a claim incurred in the course of their “trade” or “commerce” or any plaintiff who is pursuing a claim for an assigned debt must file a completed Verification of Defendant’s Address form (see Exhibit D), along with the Statement of Small Claim form. See Uniform Small Claims Rule 1 and G.L. c. 93A, § 1 for the definition of “trade” or “commerce” and Uniform Small Claims Rule 1 for the definition of “assigned debt.” Any plaintiff who files a claim incurred in the course of “trade” or “commerce” or is pursuing an assigned debt must include the following information in the Statement of Small Claim form when the claim is filed with the court pursuant to Uniform Small Claims Rule 2(b):

10

1.

the name of the original creditor;

2.

the last four digits of the account number assigned by the original creditor, if any; and

Pursuing a Case in Small Claims Court, 3rd Edition 2010

3.

the amount and date of the defendant’s last payment, if any.

If a plaintiff in “trade” or “commerce” or a plaintiff pursuing an assigned debt fails to either file the Verification of Defendant’s Address form with his or her claim or fails to provide the account information stated above in the claim form, then he or she cannot obtain a default judgment if the defendant fails to appear at the magistrate trial, and the claim must be dismissed without prejudice. See Uniform Small Claims Rule 2(b). In the application, you must indicate whether you are willing to attempt settlement of the claim through mediation. Many small claims departments offer a mediation program to litigants who wish to participate; under the statute, mediation cannot be made mandatory. Mediation is an informal process in which a neutral third party, called a mediator, helps the disputing parties reach an agreement. The mediator has no power to impose a decision on the parties. If you think your claim is one that can be “talked out” in this manner, mediation may be helpful. In the event the mediation is not successful, you will not have waived any rights to a hearing. The mediation option is often quicker than waiting to be heard by the court. In addition, mediation is usually conducted privately (e.g., in a conference room or consultation area in the courthouse), which is helpful if you are uncomfortable about presenting your claim in a public courtroom full of other litigants.

Step Six The laws of Massachusetts, in conformity with federal law, protect persons serving in the active military from lawsuits against them. In order to proceed with your case and, more particularly, any postjudgment enforcement proceedings, you must sign an affidavit that indicates that the person you are suing is not serving in the military or, at least, that you have no knowledge that the defendant is serving in the military. If a plaintiff is unable to file the military affidavit and the defendant fails to appear at the magistrate trial, then the court most likely will not enter a default judgment. The claim may be dismissed without prejudice or the court may enter other orders in order to protect the rights of the defendant. See Uniform Small Claims Rule 7(d)(7). You must pay the appropriate filing fee. You may file your claim with the court in person or by mail. Make sure that all parts of the form are present when you file the claim. Upon the filing of your claim, you will receive “as soon as is practicable” a scheduled trial date to go before the magistrate. The date the Statement of Part 2 / Filing a Claim

11

Small Claim form is received by the clerk is the date of the commencement of the claim. See Uniform Small Claims Rule 2(c). Should the assigned date be inconvenient, you will need to contact the defendant to see if he or she will agree to a different date and, if so, notify the court that you have agreed to reschedule that date. Otherwise, you will typically need to file a motion with the court prior to the hearing date requesting the court to reschedule the hearing. In any event, the standards provide that continuances should only be granted “upon a showing of good cause unless both parties voluntarily agree” (see Small Claims Standard 6:03 at Exhibit E; Uniform Small Claims Rule 7(b) at Exhibit C), so it is important that you contact the court to reschedule as quickly as possible.

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Pursuing a Case in Small Claims Court, 3rd Edition 2010

PART 3

Handling the Hearing 4. Ensure Service Check with the clerk at least ten days prior to the trial date to see if the application has been served on the defendant. If the defendant has not been served, the case cannot proceed to trial. By checking far enough in advance, you may have the option of arranging for private service through a constable or sheriffs’ office. The clerk’s office can advise you as to the availability of such an option.

5. Appear for the Hearing Provided service was made, you must appear on the trial date with all the evidence you want to submit to prove your case, including any witnesses who may be helpful to you. Your failure to appear or your inability to proceed on the trial date will result in a judgment entering for the defendant. See Uniform Small Claims Rule 7(c) at Exhibit C. If neither party appears for trial, then a judgment of dismissal will enter. You may attempt to reopen a case that has been dismissed or vacate a judgment. You will be required to file a motion and attend court for the motion hearing. The court may impose costs as a condition of vacating the dismissal or judgment/order. If your motion to vacate is not allowed and the claim was not dismissed with prejudice, you will need to file another application altogether with another filing fee. See Uniform Small Claims Rule 8 and Small Claim Standard 7:06. If the defendant has received service and fails to appear at the hearing, the court may enter a default judgment in your favor and issue an order to the defendant to pay the judgment within thirty days. The court may, if necessary, conduct an assessment of damage hearing. Prior to entering a default judgment, the magistrate must review the claim pursuant to Rule 7(d) and be satisfied that subsections (1) through (8) of that rule are individually satisfied. Therefore, it is important to clearly and fully set forth your claim and review Rule 7(d) prior to filing your claim. If

Part 3 / Handling the Hearing

13

both parties appear for trial, then there will be an adjudication on the merits either through mediation or trial. Practice Note As a general rule, continuances of a trial will be allowed if the parties are in agreement or if the moving party, prior to the trial date, demonstrates that there is good cause to continue the trial. A plaintiff who cannot go forward on the trial date will likely find a judgment entering for the defendant. See Uniform Small Claims Rule 7(b).

6. Conduct the Hearing Although the trial of a small claims action is by definition an informal proceeding, there are certain facts of which you should be aware before proceeding. All testimony is given under oath. While the formal rules of evidence do not apply, the court has been granted broad discretion to determine the manner in which it wants evidence submitted. See Uniform Small Claims Rule 7(f) at Exhibit C. As the plaintiff, you are ordinarily given the opportunity to present your case first. You are best served by describing the events clearly, concisely, and in chronological order, presenting documentary or tangible evidence to the court as you describe the incident to which the evidence refers. For a basic “goods sold” claim, the case might proceed as follows: Good morning, I am John Smith, President of XYZ Corp. XYZ Corp. sells widgets from a catalog which lists the prices for each widget and the time needed for delivery. On January 1, 1999, the defendant George Jones telephoned XYZ Corp. and ordered one dozen grade A widgets costing $100 apiece to be delivered to him at 8 Main St. by February 15, 1999. Here is a copy of the order form that was completed for his order. On February 11, 1999 XYZ Corp. delivered the widgets with a bill for $1,245.00 being the cost of the widgets plus shipping and handling.

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Here is a copy of the bill. XYZ Corp. does business on thirty-day terms (as noted on the invoice that we have presented to the court). When XYZ did not receive any payment in sixty days, we sent a reminder notice to Mr. Jones. Here is a copy of the sixty-day reminder. When ninety days had gone by and XYZ had still received no payment, we began calling Mr. Jones. He promised several times that he would pay the bill but he never did. Finally, two months ago, we notified Mr. Jones that if he did not pay the bill, we would seek payment through a small claims action. Here is a copy of our notice to Mr. Jones. Mr. Jones did not reply to our final demand; nor did he pay the bill. According to our terms of sale as noted on the invoice, interest accrues on unpaid charges at the rate of 18 percent per annum. We ask that judgment be entered for the $1,245 invoice, the interest which has accrued since February 11, 1999 and the costs of this action. Thank you. The defendant will then be given an opportunity to reply to your allegations. Ordinarily, you will then have a chance to rebut the defendant’s argument or clarify your position further. While the facts will naturally differ from case to case, these elemental items should always be included in your presentation: • the dates of the relevant actions, • the amount sought and a description of the manner by which it is calculated, • a description of the factual basis for the liability, and • a request for judgment. The facts should be presented in as clear and logical a manner as possible. Remember, you are making a presentation to the court, not an argument with the other side. All remarks should be addressed to the clerk-magistrate

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unless you are questioning the other side’s witnesses. As always, no advice can be as helpful as actual experience. If you have the time, you may want to sit in and observe the local small claims session one day. You will familiarize yourself with that court’s procedures and, perhaps, the clerkmagistrate’s demeanor as well. Magistrates generally like it when attorneys present evidence in a chronological sequence and focus on the relevant issues that guide their claim. At the conclusion of the trial, the clerkmagistrate will either make a ruling or “take the matter under advisement,” meaning he or she wishes to consider the testimony and the evidence and make a written ruling. Even though the Small Claims Standards suggest a strong preference for ruling on the spot and permit a hearing regarding the defendant’s ability to pay the judgment at that time, more often the court will enter a ruling within five days and send written notification to all parties. See Small Claims Standards 7:00–7:01 at Exhibit E. Generally, the ruling will specify a time for payment of the judgment to be made (e.g., within thirty days or by a certain date) and will provide the form necessary for the prevailing party to notify the court whether the judgment has been paid. The court, upon issuance of the judgment, will schedule a Payment Review Hearing. This hearing is typically held thirty days after the judgment date. See Uniform Small Claims Rule 7(i). Once the court receives notice that the judgment has been satisfied, the court will close the file. The plaintiff must file an acknowledgment of satisfaction of the judgment (see Exhibit D) within ten days of the full payment of the judgment. See Uniform Small Claims Rule 9(e). Practice Note Most magistrates conducting hearings appreciate it when attorneys provide the court with the law that will govern the case. Therefore, make sure you have copies of all relevant cases, statutes, or regulations for the court on the trial date.

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Pursuing a Case in Small Claims Court, 3rd Edition 2010

PART 4

Pursuing an Appeal 7. Decide Whether an Appeal of a Judgment Is an Option A plaintiff who has elected to file a small claim has no right of appeal. The rationale is that by filing the action in the small claims court, the plaintiff has waived the right to a jury trial. A defendant, however, has been involuntarily subjected to the small claim procedure. Thus, the defendant’s rights have not been waived and he or she has the right to appeal an adverse magistrate judgment to either a judge or six-person jury. The only instance in which a plaintiff might be entitled to a jury appeal is where the defendant raises a counterclaim at trial under which judgment enters against the plaintiff. In that event, the plaintiff will not have been deemed to have waived jury rights and may, thereafter, appeal to a judge or a sixperson jury. Practice Note As explained above, a plaintiff who has filed an action in small claims court ordinarily has no right to appeal the decision. However, if you discover new evidence in your favor after a decision against you has been entered, you should file a motion for reconsideration in which you ask the small claims court to reconsider the case based on the newly discovered evidence. Although the clerk-magistrate is not required to reconsider the case, he or she may agree to do so.

8. Follow the Procedural Requirements There are certain procedural formalities for making an appeal to a judge or jury. First, it must be claimed in writing within ten days after receipt of the court’s decision. Notice of the right to appeal and the procedural requirements appear on the form sent to the defendant with notice of the decision. The defendant must pay a filing fee for the appeal totaling $29 plus $100 for a bond, unless the parties or the claim are eligible for waiver of the bond, along with an affidavit specifying the “questions of law and fact in the cause requiring a trial by jury or a single justice . . . and [stating] that Part 4 / Pursuing an Appeal

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such trial is intended in good faith.” G.L. c. 218, § 23. See Exhibit A. If the defendant wins at appeal, the bond is returned to him or her. If the plaintiff wins, the bond amount is awarded to the plaintiff. Provided that the jury trial appeal is timely claimed in accordance with the statute, it is to proceed “in accordance with the provisions of law applicable to jury trials in the Superior Court Department.” See Uniform Small Claims Rule 10(b) at Exhibit C. Generally, it is not advisable to proceed with a jury trial without counsel; however, it is legal (if not wise) to represent oneself, provided that the party is an individual and not a corporation. Under the statute, the small claims judgment “shall be prima facie evidence for the plaintiff” at the appeal. G.L. c. 218, § 23. See Exhibit A. That means that the jury or the judge will be informed of the small claims ruling. The plaintiff has the choice of whether to present his or her case again or rest on the previous presentation. As a practical matter, since the judge or jury did not hear the case in the first instance, it is generally preferable to present the basic evidence that gave rise to the original ruling. Otherwise, the judge and jury hear only the defendant’s side and may receive a skewed view of the facts. The judge’s or jury’s verdict is final unless the judge is persuaded that it is unsupportable by law, in which event the judge may submit the question to the Appellate Division. See Small Claims Standard 8:05 at Exhibit E.

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PART 5

Enforcing a Judgment 9. No Separate Action to Enforce Small Claims Judgment The small claims procedure was designed not only to obtain swift and just adjudication of disputes, but also to assist in enforcement of judgments. Unlike the regular civil docket, which requires a new action altogether for enforcement, a small claims action also incorporates within the process an automatic enforcement proceeding. Upon the issuance of the judgment, the court schedules a payment review hearing about thirty days after the date of judgment. No additional filing fee is required. The postjudgment enforcement process has changed considerably with the adoption in 2002 of significant amendments to the Uniform Small Claim Rules. Practice Note If the defendant moves out of the judicial district where the original small claims action was brought, the plaintiff may file a motion to transfer the claim to the court located in the judicial district to enforce the judgment. See Uniform Small Claims Rule 9(d).

10. The Automatic Payment Review Hearing Authority See Rules 7(i) and 9 of the Uniform Small Claims Rules and Standards 7:03, 7:04, 9:00, 9:01, 9:02, 9:03, 9:04, and 9:05.

Background The automatic payment hearing was adopted as a change to the Uniform Rules on Small Claims in response to citizen dissatisfaction with the prior small claims collection process (referred to as “small claims supplementary process”). Previously, if a debtor did not obey the payment order on the judgment, the creditor had to make a request to the court for a “Notice

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to Show Cause.” The creditor then had to have the notice served on the judgment debtor by a sheriff. The result was delay and added expense.

Requirement by Rules Rule 7(i) of the Uniform Small Claims Rules requires that a payment hearing be held whenever there is a judgment for the creditor. The hearing should be held immediately upon announcement of the decision if the case is not taken under advisement. If the magistrate defers the decision (standard practice in most courts), the court shall schedule the hearing date thirty days from the date of judgment or shortly thereafter. The plaintiff does have the right to waive the payment hearing. The payment review hearing is scheduled at the time the court issues the judgment. If the judgment is for the plaintiff, the judgment will contain a payment order (usually thirty days) and a scheduled date for the payment review hearing. The mailing of the judgment to the defendant is considered good service of the notice to appear for the payment review. There is no requirement that the plaintiff expend money for officer service. As long as the judgment is not returned by the post office to the clerk’s office, the defendant will be presumed to have had notice of the event. If the defendant appears, the matter will be sent to a magistrate for examination of the judgment debtor’s ability to pay. If the defendant fails to appear when the payment review is called, the clerk will issue a capias and send it to the plaintiff for service. See the section titled “Financial Statement of Judgment Debtor” below for a discussion on this important tool for the payment review hearing.

Amending Judgment to Include Costs The court may amend the judgment at any time to include costs the creditor incurs for postjudgment service of process that was necessary to enforce the judgment. Uniform Small Claims Rule 7(j).

Common Practice (Who Appears Before Magistrate, Who Appears Before Judge) In the case of the judgment debtor appearing at the scheduled payment review hearing, the matter will be sent to a magistrate for hearing, although it may be put before a judge if the magistrate chooses to refer the matter to a judge for a possible hearing on contempt.

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It has been a common practice that any debtor brought in on a capias, as well as matters scheduled for a hearing to show cause, be sent in the first instance before a judge. This is consistent with the policy regarding contempt outlined in Standard 9:03. Only a judge has the authority to adjudicate someone in contempt, and a person brought in on a capias could be in contempt merely for his or her failure to appear at the prior hearing. Although a magistrate could technically hear these matters in the first instance to see if they could be resolved short of an actual hearing on contempt, the current common practice is certainly appropriate.

The Burden The burden is on the judgment debtor (usually the defendant, but the plaintiff in a successful counterclaim) to show why the judgment has not been paid in accordance with the thirty-day payment order customarily issued upon entry of judgment (see commentary to Standard 7:04). Because the enforcement procedure is part of the underlying case, there is no need for the plaintiff to “prove” the judgment as there is in supplementary process, G.L. c. 224, § 15. However, the payment review hearing is largely analogous to a G.L. c. 224 examination for a supplementary process action.

Financial Statement of Judgment Debtor The debtor should have completed and brought to the payment review hearing the form called the “Financial Statement of Judgment Debtor.” The clerk prints this document at the time the judgment is issued and mails it out with every plaintiff’s judgment. The financial statement is required under Uniform Small Claims Rule 7(i). It is required to be signed under pains and penalties of perjury, and a copy is to be provided to the judgment creditor before the payment review hearing. It contains important information regarding the debtor’s assets and income. It is available for the judgment creditor to inspect, but is not part of the public record of the case. In practice, debtors very rarely complete the financial statement form before the payment review hearing. Counsel for judgment creditors should not hesitate to request the magistrate to order the debtor to complete the form before proceeding with the hearing. If there is a valid reason the debtor cannot complete the form in the hearing, the matter could be continued, but the magistrate should keep in mind that it is best to minimize the number of trips back and forth to court for the parties if possible. A magistrate has the authority to conduct an examination without the benefit of the debtor’s financial statement, as well as to order the debtor to produce documents that may be important to the determination of the debtor’s ability to pay (tax returns, pay stubs, bank statements, etc.) See Uniform Part 5 / Enforcing a Judgment

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Small Claims Rule 9(c). Failure to produce such documents on the order of the magistrate could result in the matter being referred to a judge for a possible contempt hearing.

Exempt Income When the court considers the debtor’s ability to pay and the issuance of any payment orders, there are certain sources of income from which payment may not be ordered, including the following: • Emergency Assistance for Elderly, Disabled or Children; • Veteran’s Benefits; • Aid to Families with Dependent Children; • Unemployment Compensation; • Social Security; • Supplemental Security Income; and • $125 or three-quarters of a person’s disposable income (takehome pay from employment), whatever is greater, is also exempt. G.L. c. 246, § 46, 15 U.S.C. § 1673.

Regarding Agreements Even if a debtor says he or she wishes to enter into an agreement with a creditor for the payment of a judgment, attorneys should be aware that the magistrate will proceed cautiously. If the source of income is protected (see above subsection), the magistrate will not adopt it as an order of the court, which could result in a finding of contempt for noncompliance, but leave the parties free to make whatever informal agreement they wish and continue the matter for further payment review some months later. If an attorney representing a judgment creditor wishes to make a payment agreement enforceable as an order of the court, he or she should ask the magistrate to conduct an examination of the debtor’s ability to pay and then adopt the agreement as an order if the magistrate determines the amount agreed to is reasonable and complies with the law. All agreements must be filed on an “Agreement for Judgment and for Payment Order” form provided by the court. See Exhibit F. No other form will be accepted by the court.

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Continuance of Hearing to Produce Documentation The attorney may request that the magistrate continue the case in order to have the debtor produce documentation such as income tax returns, payroll stubs (or proof of assistance), bank books, retirement fund contribution statements, and proof of payments to other creditors (see commentary to Standard 9:00). Failure of a judgment debtor to provide such materials after being ordered to produce them by the magistrate would constitute proper grounds to refer the matter to a judge for a possible hearing on contempt.

Referral to Judge for Hearing on Contempt If the magistrate believes that the debtor has the ability to pay and is simply refusing to obey the payment order, the matter could be referred immediately by the magistrate to a judge for a hearing to determine if the debtor should be held in contempt.

Execution Even if a debtor has no ability to pay, there may be assets that could be seized by execution, and sold to satisfy the judgment. See G.L. c. 235, § 34 for property exempt from execution. Executions are issued to the prevailing creditor upon written request from the time period beginning thirty business days from the date of judgment (Rule 7(k)), and ending one year after the party is first entitled to take it out (G.L. c. 235, § 17). After one year and thirty business days from the date of judgment, an execution may only be issued after allowance of a motion. G.L. c. 235, § 19. Counsel should be sure to inform a client judgment creditor (particularly one evidencing frustration with the payment review process) of the availability of an execution as a tool to enforce the court’s judgment. The attorney should be aware that the execution must be returned to the court within ten days of satisfaction or discharge (i.e., bankruptcy). G.L. c. 235, § 17. Failure of a judgment creditor to make timely return of an execution could result in the judgment creditor becoming liable to the judgment debtor for damages. Gallup & Others v. Robinson, 77 Mass. 20 (1858). Rule 7(k) of the Uniform Small Claims Rules specifically states that issuance of an execution in no way affects the operation of the enforcement procedure provided for in Rule 9, except that there should be no double recovery. The creditor does not have to choose between an execution and the payment review/notice to show cause procedure. The creditor may utilize both methods to collect the judgment, as long as the creditor is careful not to collect more than is owed. Collecting more than is owed could subject Part 5 / Enforcing a Judgment

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the creditor to liability and, if a collection proceeding, the possibility of a 93A action for violation of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq., potentially subjecting the creditor to triple damages and the award of attorney fees.

11. The Payment Order After Judgment The original payment order (usually a thirty-day order) is entered on the judgment form mailed after hearing or default.

After Payment Review Hearing After a payment review hearing, the payment order may be amended or even vacated if the magistrate finds no ability to pay. The court will not hold a debtor in contempt for failure to obey the first thirty-day payment order, as it was made without benefit of an examination of the debtor’s finances. When the magistrate makes an order after a hearing, the small claims staff will type an order from the notes of the magistrate and mail out copies of the order to both parties.

Debtor to Be Informed of Possibility of Contempt Finding The commentary to Standard 7:03 states that the court must inform the debtor that failure to comply with a payment order could result in his or her being held in contempt of court. If a magistrate fails to do so when issuing an order, counsel may wish to request that the magistrate so advise the judgment debtor.

Review Dates Following Order of Court The court should schedule review dates to ensure compliance with the terms of the order (commentary to Standard 7:04).

What if Claim Is Paid in Full Before Next Review Date? The magistrate should advise the parties they need not attend the next review hearing if the judgment has been satisfied. The plaintiff must file an “Acknowledgment of Satisfaction of Judgment” form with the court within ten days of full payment of the judgment per Rule 9(e). See Exhibit F. The judgment creditor should be aware that it is very important to notify the clerk’s office that the judgment has been satisfied so it may be noted on the

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docket and the case closed. Failure to notify the court of a satisfied judgment could make the judgment creditor susceptible to liability if the judgment debtor suffers damages as a result of that failure (see discussion under section on Execution, above).

Continuance of Review Hearing if Payments Current If the repayment is to continue past the next review date, the creditor should be aware that he or she can contact the clerk’s office and continue the payment review date if the payments are current. The enforcement proceeding (payment review process) is for the benefit of the judgment creditor, and requiring him or her to show up to advise the court that payments are current does not advance the purpose of the procedure. As long as the creditor makes the request to continue the payment review far enough in advance that the clerk’s office can advise the debtor that the hearing has been continued, it is logical and fair to both parties that the court do so.

12. What if the Debtor Is a Business (Corporation or D.B.A.)? Payment Review May Still Be Scheduled If the debtor in a small claim is a business, there is still reason to schedule and hold a payment review hearing, but there is an important distinction regarding the issuance of a capias if the business is a corporation.

Capias Can Only Issue Against an Officer A capias cannot issue against a corporation, but an officer of the corporation may be treated as the contemnor if the order is directed to that specific officer. See commentary to Standard 9:02. It is important that the claim be drafted so that the judgment, and thus the payment order, is directed to a corporate officer. In order to hold an individual officer liable in contempt for failure to obey a payment order, the defendant’s name should read: “Widget Corporation by Robert Jones, President.” This holds a specific individual liable in contempt for failure to obey the payment order (or appear at the payment review hearing) and it would be appropriate for a capias to issue against that person. It also clearly shows that the person is not being named in a personal capacity, but rather as an officer of the corporation. For a fuller discussion on the issue, see the Memorandum from the Chief Justice of the District Court Department to District Court Judges and Clerk-Magistrates dated August 27, 2002 (item 19, pages 17–18).

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Procedure When Officer Not Named on Judgment or Payment Order If a corporate debtor fails to obey the payment order issued by the judge or magistrate and there is no specific officer the order has been directed to, the creditor should schedule a show cause hearing and have a notice to show cause specifically naming an officer of the corporation served by the sheriff or constable. If the officer does not appear at the show cause hearing after being properly served, the court may issue a capias specifically naming that officer as the contemnor. The notice to show cause procedure was the sole vehicle for enforcing a small claims judgment under the former version of the Uniform Small Claims Rules. While it has been largely rendered unnecessary by the creation of the payment review process, it is still a valuable tool when the small claims judgment was not directed to an officer’s attention. The document is, literally, a “notice” to “show cause” as to why the judgment debtor should not be held in contempt of court for failing to obey an order of the court, hence the name. Again, the creditor is responsible for arranging service of the document and returning proof of service to the court before the hearing. The document orders the debtor to appear in court on a specific date and time and persuade the court that he or she should not be held in contempt for failing to comply with the court’s order. In the small claim context, this would be the order for payment memorialized by the Notice of Judgment; in the general supplementary proceeding on a civil judgment, this would be the order issued after the hearing on the return day of the summons to the judgment debtor. Usually the “cause” is the debtor’s inability to make the court-ordered payments for some reason (e.g., unemployment, business failure, personal injury, obstinacy of debtor, etc.), in which event the court will likely make some adjustment in the order, such as reducing the payments, forgiving the arrearage, or starting the schedule anew. The court may also vacate a previous payment order if the judgment debtor’s financial circumstances have worsened to the point where the judge finds there is no present ability to pay. See G.L. c. 224, § 16. If the “cause” is inadequate, the court has the legal authority to hold the debtor in contempt and use its contempt powers to enforce its orders through fines or incarceration for up to thirty days. See G.L. c. 224, § 18. If the debtor fails to appear for the “show cause” hearing after receiving service, the court will issue a capias. If the debtor is ordered to make payments at the show cause hearing and again fails to do so, the creditor may 26

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request the court to issue a capias for contempt of the court’s order. If the parties come to an agreement on the day of the show cause hearing and do not ask the court to adopt the agreement as an order of the court, the creditor must request, in writing, a new Notice to Show Cause and go through the entire process again.

Amending Judgment to Include Name of Corporate Officer to Whom Court Could Direct Order for Payment The other option for the plaintiff’s attorney when the judgment against the corporate defendant is not directed to a specific officer’s attention would be to file a motion to amend the judgment to now include the name of the officer the judgment and order should be directed to, and ask that a new payment review hearing be scheduled at the time the amended judgment is printed. This would eliminate the extra cost of officer service, but requires a court appearance. The motion could also be denied by the magistrate, but the issuance of a notice to show cause is a ministerial duty of the clerk and may not be refused to be done when there is a valid judgment to be enforced.

Debtor Is a D.B.A. (Sole Proprietorship) If the debtor in the small claim is not a corporation but simply a sole proprietorship, the claim should be amended before judgment (but after if necessary) to reflect the name of the owner of the business. A corporation is a legal entity and has standing to sue and be sued. A sole proprietorship is a person doing business in his or her individual capacity even if he or she calls the business by a name (“Joe’s Garage” is Joseph Smith doing business personally under that name). A judgment against a sole proprietorship (and by extension a payment order) should never name the business. To be enforceable, the owner of the business must be named personally, but also in his or her representative capacity (for example: John Smith, d.b.a. John’s Auto Repair).

Capias If at any time in the proceedings, the debtor is properly served with notice of a hearing (whether a payment review hearing, a status review date assigned following an order issued in a payment review hearing, or a hearing on a notice to show cause) and fails to appear, the court will issue a capias, also called a civil arrest warrant. Although the capias instructs the deputies to arrest the debtor, as a practical matter, the sheriffs will generally give the debtor several written notices to appear in court before they actually make a physical arrest. The sheriffs may also require payment of their fees up front, as a physical arrest necessitates two officers spending considerable Part 5 / Enforcing a Judgment

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time on the process. Charges may exceed $300 for that service alone, which may or may not be recoverable. If the debtor is arrested, the creditor then has the opportunity to examine him or her as to assets and liabilities, seek an order of payment from the court, and request contempt sanctions. The capias serves the purpose of actually getting the debtor into court, or may be used to bring before the court a debtor who has failed to comply with an order issued by the court. The collection process, whether for small claims or through supplementary process to enforce a “regular” civil judgment, is one of the more costly and frustrating procedures in the law. Often creditors elect not to invest any further costs in pursuing satisfaction of a debt and choose to sell it off for a fraction of its face value rather than continue the process of attempting to collect the judgment. Attorneys should keep in mind the alternatives to the payment review process: seizing property on execution or even trustee process to attach wages from a suit on the judgment in the “regular” civil session. The fact is that many defendants in small claims are in debt precisely because of the fact they have no means to pay it off and are simply destitute. Deciding which claims or judgments are worth the time and effort of pursuing may be the single most important decision a creditor’s attorney makes. Every uncollectible judgment the attorney spends time pursuing is money lost.

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PART 6

Recovering Costs 13. Seek Postjudgment Interest Awards Under Massachusetts law, interest accrues on a judgment at the same interest rate as prejudgment interest (G.L. c. 235, § 8), and postjudgment costs and interest should be recovered through the postjudgment collection proceedings. Be aware that you are entitled to postjudgment interest and may request the court to award the post judgment costs as well, although the court is not bound to make such an award. It would be advisable for the creditor’s attorney to have the post judgment interest calculated and in writing to present to the magistrate or judge in order to request him to take such amount into consideration when making a payment order.

14. Request Postjudgment Cost Awards In general, both in small claims and in regular civil cases, the statutes provide that costs shall be added into the prevailing party’s award. Those costs are often limited only to the filing fee and sheriffs’ charges as noted on returns filed with the court. On written request, you may persuade the court to include other costs; however, unless a motion is made, written, and heard, there is no chance that such expenses will be recovered and it is entirely discretionary to the clerk-magistrate or judge whether or not to award any portion of those expenses. Small claims Rule 7(i) of the Uniform Small Claims Rules provides that actual costs for entry fee and surcharge shall be added into the prevailing party’s award. Any extraordinary costs, such as witness fees or other costs, are only allowed upon special order of the court. The rule further provides that the judgment may be amended at any time to include the costs of service of any postjudgment process that was necessary to enforce the judgment. This would include sheriffs’ charges as noted on returns filed with the court.

15. Be Aware of Small Claims Preference The statutes show a strong preference for bringing small claims under the small claims procedure as opposed to the regular civil docket. That preference Part 6 / Recovering Costs

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is reflected in G.L. c. 218, § 25, wherein the court is granted the discretion to refuse to award costs to a plaintiff who brought an action on the regular civil docket that could have been filed in small claims court. In a claim for property damage caused by a motor vehicle brought in the small claims court, if the insurer for the defendant removes the action to the regular civil docket and the plaintiff prevails, the court must assess costs and reasonable attorney fees against the insurer. See G.L. c. 218, § 23 at Exhibit A. In a 1999 decision, attorney fees were awarded to the plaintiff as a result of the defendant’s having appealed a small claims judgment and then dismissed the appeal on the eve of trial. The trial court said that the defendant had caused the plaintiff to “waste time, effort and emotional resources on preparation for the appeal” and, therefore, awarded the plaintiff its attorney fees. Czarnecki v. Brake King Automotive, Inc., Lawyers Weekly U.S.Z. No. 9917025 (Nov. 29, 1999).

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PART 7

Keeping in Mind the Limitations of the Small Claims Court The small claims procedure is a reasonably efficient and cost-effective method of resolving legal disputes. However, there are certain limitations to the procedure that a practitioner should keep in mind: 1.

the matter may never be heard by a judge or jury;

2.

a plaintiff who loses has no right of appeal;

3.

if the plaintiff wins, the defendant may appeal to a District Court jury session;

4.

there is no further right of appeal after the jury session;

5.

there is no discovery unless specifically allowed;

6.

rules of evidence do not strictly apply;

7.

the defendant may be permitted to transfer the case to the regular civil docket over the objection of the plaintiff; and

8.

there is no pretrial attachment available.

See Handbook of Civil Procedure in the Massachusetts District Court, 3rd Ed., Marc G. Perlin and John M. Connors (2003), Section 15.3; see also Moon v. Trust Ins. Co., 2000 Mass. App. Div. 89. The process has the advantages of: 1.

small filing fee

2.

no costs for service (prejudgment);

3.

process simplified to often allow parties to proceed without an attorney; and

4.

short time between filing of case and date of trial.

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The Boston Municipal and District Court Time Standards provide that all small claims actions should be adjudicated within four months of filing, Joint Standing Order 2-04. An attorney who is cognizant of the advantages and disadvantages of small claims and familiar with its rules and standards will know when use of the procedure will best suit the interests of his or her client. The attorney educated on this simplified but powerful procedure will also be able to best utilize its processes to get the best and most economical result for the client.

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EXHIBIT A—G.L. c. 218, §§ 21–25 G.L. c. 218, § 21. Power to establish rules of procedure; venue; jurisdictional amount; hearings; damages and penalties. There shall be within the district court department and the Boston municipal court department a simple, informal and inexpensive procedure, hereinafter called the procedure, for the determination, according to the rules of substantive law, of claims in the nature of contract or tort, other than slander and libel, in which the plaintiff does not claim as debt or damages more than two thousand dollars; provided, however, that said dollar limitation shall not apply to an action for property damage caused by a motor vehicle, and for a review of judgments upon such claims when justice so requires. The procedure shall not be exclusive, but shall be alternative to the formal procedure for civil actions begun by summons and complaint. The chief justice for the district court department shall make uniform rules with respect to the procedure applicable to all the courts within said department, and the chief justice for the Boston municipal court department shall make rules for the Boston municipal court department, all such rules being subject to the approval of the supreme judicial court. Actions under this section and sections twenty-two to twenty-five inclusive, shall be brought, at the option of the plaintiff, in the judicial district where either the plaintiff or the defendant lives or has his usual place of business or employment; provided, however, that actions brought against a landlord or lessor of land or tenements rented for residential purposes, and arising out of such property or rental, may also be brought in the judicial district in which the property is located. Notwithstanding the foregoing, each court within the district court department shall have civil jurisdiction of such actions commenced in such court which should have been brought in some other court, to the extent that the action may be heard and disposed of by the court in which it was begun, if the venue of said action is waived or, if venue requirements are not waived, the court may, on motion of any party, order the action, with all papers relating thereto, transferred for hearing and disposition to the court in which the action should have been commenced. Said action shall thereupon be entered and prosecuted in such court as if it had originally commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid. An action may be commenced under this section if the initial amount of damages claimed is two thousand dollars or less or is an action for property damage caused by a motor vehicle regardless of the amount of the claims notwithstanding that the court may award double or treble damages in accordance with the provisions of any general or special law. Exhibit A / G.L. c. 218, §§ 21–25

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Actions brought under sections twenty-one to twenty-five, inclusive, may be heard in the first instance by a clerk-magistrate of the district court department or the Boston municipal court department. For the purpose of hearing such property damage claims caused by a motor vehicle the procedure established shall provide for all such claims to be heard on one evening every other week, and on one Saturday on the alternative week, unless otherwise agreed to by all parties in such actions in accordance with the provisions of section thirty-four O of chapter ninety. In the hearing and disposition of any claim for money damages within the jurisdiction of such procedure, the Boston municipal and district court departments shall have all equity powers and jurisdiction conferred by sections one, one A and two, and clause (1) of section three of chapter two hundred and fourteen. G.L. c. 218, § 22. Procedure. The procedure shall include the beginning of actions with an entry fee of $20 for claims of $500 for less and $30 for claims of greater than $500, plus the surcharge required by section four C of chapter two hundred and sixty-two, but without summons and complaint and without requirement, except by special order of court, of any pleading other than a concise written statement of the claim. The procedure shall include notice by first class mail instead of the mode of service heretofore required, and shall include provisions for early hearing. The procedure may include the modification of any or all rules of pleading and practice, anything contained in other chapters, sections or acts notwithstanding, and may include a stay of the entry of judgment or of the issue of execution and authority in the court, in its discretion, after proper inquiry, to order payment to the prevailing party of the amount found due on or before a day stated or by instalments, to modify, extend or vacate such order and, in its discretion, to enforce such order by contempt proceedings, substantially in the manner provided in chapter two hundred and twenty-four, and to provide therefor in the rules for the procedure. Said rules for the procedure may provide for the elimination of any or all fees and costs, and that costs shall be in the discretion of the court. In causes begun under the procedure, the court may on application for cause shown issue writs of attachment of property. At the commencement of an action under the procedure the plaintiff shall be informed that such action may be submitted for mediation and resolution at the request of either party and with the agreement of both parties. The clerkmagistrate shall make appropriate note of any agreement so reached, and entry of judgment shall be made by the court. Any action which is not resolved by agreement may, at the request of any party, be heard by a clerk-magistrate under the provisions of sections twenty-one to twenty-five, inclusive; provided, however, that cases heard before a jury of six must be heard by a justice. 34

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G.L. c. 218, § 23. Initial determination of cause; removal; claim for trial by jury; bond or deposit; finding as evidence; report to appellate division. Every cause begun under the procedure shall be determined initially in the district court department. No such cause may be removed for trial in the superior court department. In any action for property damage caused by a motor vehicle where the action is transferred to the regular civil docket in the district court department by the insurer and the unpaid party recovers a judgment for any amount due and payable by the insurer, the court shall assess against the insurer in addition thereto, costs and reasonable attorney’s fees. A plaintiff beginning a cause under the procedure shall be deemed to have waived a trial by jury and any right of appeal to a jury of six session in the district court department. If, however, said cause shall be appealed to a jury of six session in the district court department by the defendant as hereinafter provided, the plaintiff shall have the same right to claim a trial by a jury of six. The defendant may, within ten days after receipt of the magistrate’s finding, file in the court where the cause was determined a claim of trial by jury, or in the alternative for a trial before a single justice and shall file his affidavit that there are questions of law and fact in the cause requiring a trial by jury or a single justice, with the specifications thereof, and that such trial is intended in good faith. Trials by jury of six in the district court department shall proceed in accordance with the provisions of law applicable to trials by jury in the superior court department, except that each party shall be entitled to two preemptory challenges. Jurors shall be drawn from the pool of jurors available for the jury sessions in civil cases in the superior court department. The chief justice of the district court department shall designate at least one court in each region for the purpose of hearing cases where a claim for trial by a jury of six or by a single justice is entered. Claims for trial by a jury of six or by a single justice from courts within Suffolk county shall be held in the Boston municipal court department or district courts in Suffolk county or, with the approval of the chief justice of the district court department, may be held in those district courts whose judicial districts adjoin Suffolk county as are designated by said chief justice. Notwithstanding the foregoing, the chief justice for administration and management may designate the facilities of any other department of the trial court for trial by jury of six or by a single justice in the district court department or the Boston municipal court department. The Boston municipal court department shall be authorized to hear such appeals for the district courts in Suffolk county.

Exhibit A / G.L. c. 218, §§ 21–25

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A defendant’s claim for trial by jury or by a single justice shall be accompanied by twenty-five dollars for the entry of the cause in the court of the department to which the case has been appealed, and a bond in the penal sum of one hundred dollars, with such surety or sureties as may be approved by the plaintiff or the clerk or an assistant clerk of the district court department, payable to the other party or parties to the cause, conditioned to satisfy any judgment and costs which may be entered against him in the jury of six proceeding or a proceeding before a single justice in said cause waiting thirty days after the entry thereof. Notwithstanding the foregoing, in any action brought by a tenant of residential premises pursuant to the provisions of section fifteen B of chapter one hundred and eighty-six, bond shall be given in an amount equal to three times the amount of the security deposit or balance thereof to which the tenant is entitled, plus interest at the rate of five percent from the date when such payment became due, together with court costs and an amount equal to a reasonable attorney’s fee for service which had been performed by an attorney, if any, or which may be expected to be performed by an attorney during the pendency of the appeal. The clerk shall forthwith transmit such original papers or attested copies thereof as the rules for the procedure may provide, and the court of the department to which the case has been appealed may require pleadings pursuant to the District/Municipal Courts Rules of Civil Procedure, but the cause may be marked for trial on the list of causes advanced for speedy trial by jury. A finding for the plaintiff in the district court department shall be prima facie evidence for the plaintiff in the trial by jury of six or before a single justice. At such trial the plaintiff may, but need not, introduce evidence. No bond shall be required of a county, town or other municipal corporation, or of a board, officer or employee thereof represented by the city solicitor, town counsel or other officer having similar duties, or of a political subdivision, or of a party who has given bond according to law to dissolve an attachment or of a defendant in an action of tort arising out of the ownership, operation, maintenance, control or use of a motor vehicle or trailer as defined in section one of chapter ninety if the payment of any judgement for costs which may be entered against him is secured, in whole or in part, by a motor vehicle liability bond or policy or a deposit as provided in section thirty-four D of chapter ninety. The court shall waive the requirement of a bond in the amount of one hundred dollars if it is satisfied that the defendant has insufficient funds available to him to furnish the necessary bond and that the defendant’s appeal is not frivolous. No party to a cause under the procedure shall be entitled to a report. If the court is of the opinion that a question of law requires review, it may submit the matter, in the form of a report of a case stated, to the appellate division.

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A judgment in an action for property damage caused by a motor vehicle commenced under the procedure shall not have a res judicata, collateral estoppel or other preclusive effect on any other action arising out of the same cause of action. G.L. c. 218, § 24. Transfer to regular docket. The court may, in its discretion, transfer a cause begun under the procedure to the regular civil docket for formal hearing and determination as though it had been begun by summons and complaint, and may impose terms upon such transfer. G.L. c. 218, § 25. Costs; discretion of court. In any civil action begun by summons and complaint which might have been begun under the procedure, the rules for the procedure may provide, or the court may by special order direct, that the cost to be recovered by the plaintiff, if he prevails, shall be eliminated in whole or in part.

Exhibit A / G.L. c. 218, §§ 21–25

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EXHIBIT B—Uniform Small Claims Rules Changes Effective October 1, 2009

Exhibit B / Uniform Small Claims Rules Changes

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Exhibit B / Uniform Small Claims Rules Changes

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Exhibit B / Uniform Small Claims Rules Changes

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Exhibit B / Uniform Small Claims Rules Changes

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Exhibit B / Uniform Small Claims Rules Changes

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Pursuing a Case in Small Claims Court, 3rd Edition 2010

EXHIBIT C—Uniform Small Claims Rules Trial Court Rule III UNIFORM SMALL CLAIMS RULES (as amended October 1, 2009) Rule 1 SCOPE AND APPLICABILITY OF RULES; DEFINITIONS Pursuant to G.L. c. 218, §§ 21–25, these rules govern procedures in all small claims actions in the Trial Court of the Commonwealth. They shall be construed and applied to secure the just, speedy and inexpensive determination of every small claim action. Other civil rules of court shall not be applicable in small claims. As used herein the singular shall include the plural. In these rules, the following terms shall have the following meanings: “Clerk” shall mean the Clerk-Magistrate of the division or a person assigned by him or her to perform the required function. “Court” shall mean the magistrate or judge presiding over the hearing of a small claim action. “Magistrate” shall mean a clerk-magistrate or assistant clerk-magistrate authorized by G.L. c. 218, §§ 21–23 to hear and determine small claims actions. “Trade” and “commerce“ shall have the same meaning as in G.L. c. 93A, § 1, but shall not include the lease or rental of residential property that is the plaintiff’s primary residence and that consists of three units or less, provided the plaintiff does not own, manage or have other involvement in the lease or rental of other residential property. “Assigned debt” shall mean a claim or judgment where the right to collect the debt has been assigned by the creditor to another person or entity. “Plaintiff” in Rules 7 through 10, shall include a defendant with respect to any counterclaim or any claim against a third party brought by him or her, and the word “defendant” shall include a plaintiff or a third party with respect to any counterclaim or any third-party claim brought against him or her. “He” or “she” shall include any entity that may sue or be sued.

Exhibit C / Uniform Small Claims Rules

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The Chief Justice for Administration and Management shall promulgate the Statement of Small Claim form, the Verification of Defendant’s Address form, and the Agreement for Judgment form provided for in these rules. Commentary to 2009 Amendments The authority formerly granted by Rule 1 to vary the notice requirements of these rules has been deleted because of the addition of mandatory address verification requirements in Rule 2(b). The court continues to have authority under Rule 3(a) to vary the manner in which notice is served. The definitions of “trade” and “commerce” and of “assigned debt” were added to implement the new address verification and pleading requirements of Rule 2(b). The definitions of “trade” and “commerce” refer to the Consumer Protection Act, G.L. c. 93A, but contain an exclusion for rentals of landlord-occupied multiple dwellings of three units or less. Case law further defining trade or commerce in the context of c. 93A cases is intended to be applicable here. Commentary to 2001 Amendments Most of these amendments are proposed to conform the Uniform Small Claims Rules to the statutory changes enacted by St. 1992, c. 379. The reasons for other proposed changes are noted under each rule. The former second paragraph of Rule 1 has been rendered unnecessary by the passage of time since the 1983 promulgation of the Uniform Small Claims Rules. The newly-added definition of “magistrate” reflects the statutory change contained in St. 1992, c. 379 and intends that small claims matters generally be heard in the first instance by a clerk-magistrate or an assistant clerk magistrate. No magistrate who is not qualified by education or training should preside over small claims since these matters are to be determined “according to the rules of substantive law.” G.L. c. 218, § 21. The Trial Court will provide training pursuant to criteria approved by the Chief Justice for Administration and Management. The newly-added definitions of “plaintiff” and “defendant” reflect the holdings of Most v. Fitzgerald, 417 Mass. 1001 (1994), and Bischof v. Kern, 33 Mass. App. Ct. 45 (1992), that small claims plaintiffs may appeal from an adverse decision on a counterclaim brought by the defendant. The addition of these definitions permits simple, consistent use of the terms “plaintiff” and “defendant” throughout these rules.

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Rule 2 FILING A STATEMENT OF CLAIM (a) Statement of Claim. Each small claim action shall be begun on a Statement of Small Claim form. The claim shall be stated in concise, untechnical language, but with particularity and comprehensiveness. A statement shall not be insufficient merely because the plaintiff has failed to allege all the elements of a prima facie case. The plaintiff shall state specifically any amounts sought for damages, for multiple damages or statutory penalties, for attorney’s fees, and for costs, as well as the total amount being sought, exclusive of any prejudgment interest being sought from the court pursuant to G.L. c. 231, §§ 6B or 6C. If requested by the plaintiff or if otherwise feasible and appropriate to facilitate the filing of a legible and complete claim that conforms to the requirements of this rule, the clerk shall provide assistance to the plaintiff in completing the form. The clerk shall provide necessary and helpful procedural information to small claim litigants if requested. (b) Additional Requirements for plaintiffs in trade or commerce or pursuing assigned debt. Any plaintiff pursuing a claim incurred in the course of plaintiff’s trade or commerce, or pursuing a claim for assigned debt, shall file along with the Statement of Small Claim form the Verification of Defendant’s Address form, certifying that he or she has verified the defendant’s mailing address in the manner set forth therein. The form need not be served on the defendant. Any such plaintiff shall include the following information in the description of claim in the Statement of Small Claim form when the claim is filed with the court: (1) The name of the original creditor (if different from plaintiff’s); (2) The last four digits of the account number assigned by the original creditor, if any; and (3) The amount and date of the defendant’s last payment, if any. If the plaintiff fails to comply with this section and the defendant does not appear at the scheduled trial, no default judgment shall be entered for the plaintiff and the claim shall be dismissed without prejudice. (c) Filing with the Clerk. A claim may be filed in person or by mail. In either case, except where waived by the clerk of the court under the Indigent Court Costs Law (G.L. c. 261, §§ 27A–29), the claim shall be accompanied by the entry fee required by G.L. c. 218, § 22 and the surcharge required by G.L. c. 262, § 4C. The clerk shall provide a copy of the Statement of Small Claim

Exhibit C / Uniform Small Claims Rules

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form to the plaintiff as soon as is practicable, which copy shall show the date and time of trial. The date the Statement of Small Claim form is received by the clerk shall constitute the date of commencement of the claim. Commentary to 2009 Amendments Section (a) has been amended to require the plaintiff to state specifically any amounts sought for damages, for multiple damages or statutory penalties, for attorney’s fees, and for costs, as well as the total amount sought, exclusive of any statutory prejudgment interest. This provides the defendant with a breakdown of the amount being claimed and assists the court in determining the amount of any award. It does not limit the amount of the court’s award except for default judgments. Such a breakdown of the elements of the plaintiff’s claim is already required in regular civil cases by Dist./Mun. Cts. Supp. R. Civ. P. 106(B). Section (b) introduces two additional requirements for plaintiffs in trade or commerce or pursuing assigned debt. Such plaintiffs must verify the defendant’s current address in one of several specified ways and certify this when filing the Statement of Small Claim. This enhanced filing requirement is intended to increase the likelihood that the defendant will receive notice of the claim when it is mailed. Such plaintiffs must also provide three items of basic information which will help the defendant to identify the debt that is the basis of the claim. Such information may be particularly important when the plaintiff is an assignee rather than the original creditor. For privacy reasons, only the last four digits of the original creditor’s account number are to be given. If the defendant fails to appear for trial, the plaintiff’s failure to comply with this section will result in denial of a default judgment and in dismissal of the claim without prejudice. Commentary to 2001 Amendments The change in the first paragraph is intended to encourage court personnel to provide procedural information and to assist claimants in the preparation of forms. Rule 3 NOTICE TO DEFENDANT; ANSWER TO CLAIM (a) Notice. The clerk shall promptly send to the defendant by first class mail, at the address or addresses supplied by the plaintiff, a copy of the Statement of Small Claim form. Such first class mail notice shall be sufficient, provided that 52

Pursuing a Case in Small Claims Court, 3rd Edition 2010

it is not returned to the court undelivered. Service on out-of-state defendants shall be made pursuant to the provisions of G.L. c. 223A. The court may provide for any other means of service in individual cases as is deemed necessary. (b) Answer. The Statement of Small Claim form shall instruct the defendant that he or she may, if he or she wishes, submit a written answer to the claim in the form of a letter to the court, with a copy mailed to the plaintiff, signed by the defendant and setting out in clear and simple language the reason(s) why the plaintiff should not prevail. The answer should state fully and specifically what parts of the claim are contested. However, the filing of an answer is optional, and the failure to file an answer shall not result in the defendant’s default. If the defendant’s failure to submit a written answer, or to send a copy of it to the plaintiff in a timely manner, has prejudiced the presentation of the plaintiff’s case, the court shall grant a continuance at the plaintiff’s request. (c) Defendant’s Counterclaim. In the answer, or in a separate writing filed with the court, the defendant may set forth any claim which he or she has against the plaintiff within the jurisdiction of the court in small claims cases, without incurring any filing fee or surcharge. Both the plaintiff’s claim and the defendant’s claim shall be deemed one case if the defendant mails notice of his claim to the plaintiff at least ten days in advance of the scheduled trial date. The court may also permit the defendant to bring such a claim in writing at any time. Such claims shall not be compulsory. No written answer to the defendant’s claim is required. If the defendant’s presentation of a counterclaim, or failure to send timely notice to the plaintiff, has prejudiced the presentation of the plaintiff’s case, the court shall grant a continuance at the plaintiff’s request. (d) Third-Party Practice. The defendant may bring a claim against any third party who may be liable to him or her for all or part of the plaintiff’s claim if the defendant’s claim is within the jurisdiction of the court in small claims cases and notice is mailed to the third party in the manner provided in Rule 2 at least ten days in advance of the scheduled trial date. The court may also permit the defendant to bring such a claim in writing at any time. There shall be no filing fee or surcharge for such a claim. When a counterclaim is asserted against the plaintiff, he or she may bring a claim against a third party in the same manner. Commentary to 2004 Amendments The change to paragraph (a) reflects the amendment of G.L. c. 218, § 22 by St. 2004, c. 149, § 199. This amendment abolishes the earlier statutory requirement of notice by registered mail. Notice by first class mail is now sufficient.

Exhibit C / Uniform Small Claims Rules

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Commentary to 2001 Amendments The change to paragraph (a) codifies the holding of Schreiber v. Hoyusgaard, 1989 Mass. App. Div. 138 (S. Dist.), that in the case of an out-of-state defendant the service provisions of the long-arm statute (G.L. c. 223A, § 6) prevail over those in this rule. The practical significance of this change is that mail service on an out-of-state defendant is valid only if there is a signed receipt for the certified mail. The procedure embodied in the proposed amendment to paragraph (b) would give plaintiffs a guarantee of protection from surprise defenses, but it would not require an answer to be filed in all cases. The amendment to paragraph (c) would also protect plaintiffs from surprise. Rule 4 TRANSFER (a) To Regular Civil Docket. The court may, upon request of a party or upon its own motion, transfer a claim or counterclaim begun under the small claims procedure to the regular civil docket pursuant to G.L. c. 218, § 24. Any such request shall be made prior to the date when trial is scheduled before a magistrate with notice to the other party. If the court orders such a transfer: (i) the claim shall be entered on the court’s regular docket for hearing and determination as though it had been begun under the Massachusetts Rules of Civil Procedure, but no entry fee shall be charged upon such transfer; (ii) the defendant shall serve and file an answer to the plaintiff’s claim within twenty days of the date of such transfer, if the defendant has not already done so in the small claims action; (iii) in the order of transfer or thereafter the court may direct any party to file specific additional or substitute pleadings pursuant to the Massachusetts Rules of Civil Procedure; and, (iv) the court may impose any terms upon the transfer as the interests of justice may require. (b) To Housing Court under c. 185C. Any small claims action within the jurisdiction of the Housing Court Department may be transferred to the Housing Court Department pursuant to G.L. c. 185C, § 20 by filing a notice of removal with the clerk of the division where such action is pending, and serving a copy thereof on the other parties. The clerk shall thereupon transfer such action to the Housing Court Department, where it shall be entered on the regular small claims docket. Thereafter, the court may, upon request of a party or upon its own motion, transfer a claim or counterclaim to the regular civil docket pursuant to G.L. c. 218, § 24, but no entry fee shall be charged upon such transfer. (c) To Medical Malpractice Tribunal. Prior to trial by a magistrate, any small claims action for malpractice, error or mistake against a provider of health care

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shall be referred for the convening of a medical malpractice tribunal pursuant to G.L. c. 231, § 60B. Commentary to 2009 Amendments The change to paragraph (a) clarifies that any party seeking to transfer a small claim action must do so prior to the day of trial before the magistrate, thereby avoiding any undue inconvenience to the nonmoving party. Commentary to 2004 Amendment The addition to paragraph (a) clarifies that any request to transfer a small claim to the regular civil docket must be made prior to the initial trial and may not be made for the first time when an appeal is pending for trial before a judge or jury. Commentary to 2001 Amendments The change to paragraph (a) clarifies that when a small claim is transferred to the regular civil docket the defendant must file an answer within twenty days, if no answer was previously filed in the small claim. This eliminates the present uncertainty as to the next procedural step where no answer has been filed in such transferred cases. The court is also authorized to require additional or substitute pleadings where appropriate to clarify the issues in the transferred case — for example, requiring the plaintiff to file a formal complaint or an answer to a defendant’s counterclaim. The former generalized reference to the “civil rules of court applicable to the department in which the case is pending” is no longer necessary because of the July 1, 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure. The change to paragraph (b) clarifies that removal of a small claims action to the Housing Court Department under G.L. c. 185C, § 20 is a matter of right, requiring only a notice of removal, and not a motion that involves any exercise of discretion by the court from which the small claim is being removed. Paragraph (c) has been added as a reminder to litigants and court personnel that occasionally medical malpractice claims (usually in the form of billing disputes) are brought as small claims, and they remain subject to the statutory procedures in G.L. c. 231, § 60B. Administrative arrangements for such medical malpractice tribunals are currently made through the Superior Court’s administrative office.

Exhibit C / Uniform Small Claims Rules

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Rule 5 AMENDMENTS AND DISCOVERY The court may at any time allow any claim or answer to be amended as justice may require. No discovery shall be allowed except upon good cause shown. Service of witness summonses shall be in accordance with the Massachusetts Rules of Civil Procedure. Commentary to 2001 Amendment The former generalized reference to the “civil rules of court applicable to the department in which the case is pending” is no longer necessary because of the July 1, 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure. Rule 6 ATTACHMENTS Pre-trial attachment shall not be permitted. Post-trial attachment shall be in accordance with applicable statutory provisions and with the Massachusetts Rules of Civil Procedure. Commentary to 2001 Amendment The former generalized reference to the “civil rules of court applicable to the department in which the case is pending” is no longer necessary because of the July 1, 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure. Rule 7 TRIALS AND JUDGMENTS (a) Agreement for Judgment. The parties may at any time file with the court, in person or by mail, an agreement for judgment, which may include an agreement for a payment order, on the Agreement for Judgment form promulgated by the court. The clerk shall not accept for filing, and the court shall not approve, any agreement for judgment or for a payment order that is not set out on such form. If the Agreement for Judgment form is filed prior to the scheduled trial date, neither party need appear on the scheduled trial date unless directed otherwise by the court. If the Agreement for Judgment form is proffered when the parties are present, the court shall review the agreement and, if it includes a payment order, inquire 56

Pursuing a Case in Small Claims Court, 3rd Edition 2010

of the defendant to ascertain that he or she is able to pay the payment order and understands the consequences of not complying with the payment order. Unless justice would not be served thereby, the court shall enter such agreement as the judgment and payment order of the court and notify the parties in writing that it has done so. The court shall not enter a payment order or otherwise approve any payment agreement that relies on exempt sources of income. (b) Continuances. Where the defendant has been given notice as provided in these rules, trial shall not be continued to another date unless by agreement of the parties with the approval of the court, or unless there is a showing of good cause. Any motion for continuance shall be in writing unless the court permits an oral application. Except as provided in Rule 3(b), the defendant’s appearing ready for trial and requiring the plaintiff to prove his or her case is not good cause for granting the plaintiff a continuance. (c) Plaintiff’s Failure to Appear or Proceed to Trial. If the defendant appears for trial on the scheduled trial date and the plaintiff fails to appear or is not prepared to proceed to trial, judgment shall be entered for the defendant. If neither the plaintiff nor the defendant appears for trial, a judgment of dismissal shall be entered. (d) Defendant’s Failure to Appear for Trial. If the plaintiff appears for trial and the defendant fails to appear, the court may render judgment for the plaintiff and make an order for payment to the plaintiff. Prior to entering such judgment the court shall review the Statement of Small Claim to determine whether further inquiry or an assessment of damages is required. Normally these should be done on the scheduled trial date. The court shall examine any of the following circumstances: (1) Uncertain Jurisdiction. If the court’s subject matter jurisdiction or proper service of the Statement of Small Claim is uncertain, the court shall inquire into the matter. (2) Uncertain Claim. If the facts alleged, taken as true, do not appear to constitute a claim on which relief may be granted, the court shall inquire into the matter. (3) Uncertain Liability. If the facts alleged, taken as true, do not establish each essential element of a claim, the court shall inquire into the matter and may elicit additional facts to determine if such element or elements are established. (4) Uncertain Damages. If the Statement of Small Claim requests damages that are not a sum certain or a sum which can by computation be made certain, the

Exhibit C / Uniform Small Claims Rules

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court shall conduct an assessment of damages. The court shall inquire into any amounts sought which do not appear to be supported by the facts as alleged. (5) Discretionary Awards. If the law requires an exercise of discretion in awarding multiple damages, a statutory penalty, or discretionary attorney’s fees or court costs, the court shall inquire into the matter and exercise such discretion. (6) When Review for Reasonableness Required. The court shall review any amounts that the law requires be examined for reasonableness, such as contractual attorney’s fees or collection costs. In such matters, the court’s function is not to substitute its own discretion for the parties’ agreement, but to avoid court enforcement of a clearly unjust result. (7) Inconclusive Military Affidavit. If the plaintiff is unable to file the affidavit required by the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq., stating that the defaulting defendant is not in military service and showing necessary facts to support the affidavit, the court shall inquire into the matter. If it appears that the defendant is in military service, the court shall not enter any default judgment without first appointing an attorney for the defendant, and under certain circumstances staying the entry of any default judgment, as required by the Act. If the court cannot determine from the affidavit whether the defendant is in military service, the court may exercise the discretion granted by the Act to require an indemnity bond, to stay execution, or to make such other orders as the court deems necessary to protect the rights of the defendant, or the court may dismiss the claim without prejudice. (8) Plaintiff in trade or commerce or pursuing assigned debt. Where the claim involves a plaintiff in trade or commerce or pursuing assigned debt and the plaintiff has not complied with Rule 2(b), the court shall not enter a default judgment for the plaintiff, and shall dismiss the claim without prejudice. (e) Appearance as Substitute Counsel. An attorney who is not current counsel of record for a party shall not appear in court to answer for that party until he or she has filed with the court a written notice of appearance. An attorney appearing as substitute counsel for another attorney must file a written appearance, which may indicate that the attorney is appearing as substitute counsel solely for that day’s proceedings. Any such notice of appearance shall be entered on the docket and filed with the case papers. The clerk need not notify counsel who has filed a time-limited appearance of any future events or proceedings in that case. (f) Trial. A small claim action shall generally be tried, and pretrial and postjudgment motions relating to such trials shall generally be determined, by a magistrate. Judges may hear such matters when deemed necessary by the court, provided that the defendant has first acknowledged in writing that, by electing to

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proceed with an initial trial by a judge, the defendant will waive the right to appeal for a subsequent trial by a judge or before a jury. Magistrate hearings shall be conducted in a courtroom, if one is available, and if not, in an area of the courthouse which is open and available to the public. Whenever possible, a court officer shall be in attendance. A magistrate shall sit at the clerk-magistrate’s bench and not at the judge’s bench, and shall not wear a robe. At the beginning of the small claims session, a magistrate shall identify himself or herself as such to those present. A magistrate who has acted as a mediator pursuant to Uniform Magistrate Rule 4 shall not thereafter rule on any motion, nor preside over any trial or enforcement proceeding, in the same small claim. (g) Conduct of Trials. All small claim proceedings shall be recorded in accordance with applicable rules of court. The parties and witnesses testifying shall be sworn. The court shall conduct the trial in such order and form and with such methods of proof as it deems best suited to discover the facts and do justice in the case. The participation by attorneys representing parties may be limited in a manner consistent with the simple and informal adjudication of the controversy. Non-attorneys shall be allowed to assist parties in the presentation or defense of their cases when, in the judgment of the court, such assistance would facilitate the presentation or defense. When an oral motion has been made, the clerk shall note in the docket any action taken on the motion. (h) Judgments. Judgment shall be entered forthwith upon the decision of the court. The date of judgment shall be the date the judgment is entered in the docket. The clerk shall promptly complete and send to each party by first class mail the Notice of Judgment and Order form. (i) Payment Hearing and Orders to Pay. If the decision of the court is for the plaintiff, the court shall, except where justice will not be served thereby, also order payment to the plaintiff, or to the court on behalf of the plaintiff, of the amount of the judgment and costs, as the case may be, on or by a date stated or in specified installments. If the defendant has appeared and is before the court at the time of decision and if the defendant does not pay the amount of the judgment and costs or agree to a payment schedule acceptable to the plaintiff, the court shall conduct a payment hearing, including requiring the defendant to complete a written financial statement signed under the penalties of perjury. The financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case and to the parties to the case. If the defendant is not before the court at the time of decision or the defendant has not appeared, the order shall be for the full amount of the judgment and costs, payable in full in thirty days, unless the court orders otherwise. The provisions of an order to pay shall be stated on the Notice of Judgment and Order form. Unless a payment hearing is waived by the plaintiff, the court shall also Exhibit C / Uniform Small Claims Rules

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schedule the matter for a payment hearing thirty days from the date of judgment or shortly thereafter. The Notice of Judgment and Order form shall advise the parties that, unless the defendant timely appeals from the judgment or makes payment as ordered, the defendant is required to complete a written financial statement under the penalties of perjury, to provide the plaintiff with a copy of the statement prior to the payment hearing, and to appear in court on that date. The Notice shall further state that any such financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case and to the parties to the case. The Notice shall further state that if the defendant fails to appear on that date and the plaintiff does appear and states under oath or in writing under the penalties of perjury that payment has not been made as ordered, the court may immediately issue a capias to bring the defendant before the court without the need for prior service of an Order to Show Cause pursuant to Rule 9(a). The Notice of Judgment and Order form shall also advise the parties that they are not required to appear in court on that date if payment has been made as ordered. Following the payment hearing the court may amend its previous order to pay or issue a new order. (j) Costs. If the decision of the court is for the plaintiff, the plaintiff’s actual cash disbursements for the entry fee and surcharge shall be allowed as costs. Witness fees and other costs shall be allowed only by special order of court. The court may, in its discretion, award additional costs in a sum not exceeding one hundred dollars against any party who has set up a frivolous or misleading claim or answer, or has otherwise sought to hamper a speedy and fair determination of the claim. The court may at any time amend the judgment to add the cost of service of any post-judgment process that was necessary to enforce the judgment. (k) Execution. Execution shall issue to the plaintiff upon written request after the payment hearing, or if no payment hearing is scheduled, thirty days after the entry of judgment. Execution shall be in accordance with the statutory requirements for execution on civil judgments generally; provided, however, that execution shall in no way affect the procedure for enforcement of judgments under Rule 9 of these rules, except that double satisfaction of judgments shall not be allowed. Commentary to 2009 Amendments New paragraph (a) requires use of the official Agreement for Judgment form, which includes the list of statutory exemptions. This insures that the court does not order or otherwise endorse any private payment agreement that relies on exempt sources of income. General Laws c. 224, § 16 (made applicable to small claims by G.L. c. 218, § 22) prohibits the court from ordering a defendant to make any payment from exempt income. Likewise it is not appropriate for the 60

Pursuing a Case in Small Claims Court, 3rd Edition 2010

court to endorse any voluntary payment agreement that relies on exempt sources of income. The amendment to paragraph (b) makes clear that a defendant’s appearance for trial does not automatically result in prejudice to the plaintiff sufficient to trigger grounds for a continuance pursuant to Rule 3(b). The amendment to paragraph (c) provides that judgment is to be entered for the defendant when a plaintiff is unable to proceed to trial and there is no good cause basis for a continuance. Paragraph (d) now lists specific matters that must be considered by the court before a default judgment may be entered, in order to determine legal liability, correctly calculate an award, and avoid any misuse of the small claims court. These are obligations that are entirely consistent with the court’s obligation in an adversarial proceeding to maintain his or her neutrality and include the following: (d)(1) Uncertain Jurisdiction. When the court’s jurisdiction is questionable (e.g., a claim that appears to fall under the Massachusetts Tort Claims Act), then the matter must be reviewed by the court for a determination as to whether jurisdiction exists. (d)(2) Uncertain Claim. By defaulting, a defendant admits any facts alleged in the Statement of Small Claim, but does not admit legal liability. If there is uncertainty, the court must determine whether the Statement of Small Claim sets forth a cognizable cause of action on which relief may be granted. While Rule 2 does not require the allegations of facts, only facts alleged are admitted by a defendant’s default. (d)(3) Uncertain Liability. If the facts alleged do not include all essential elements of the claim, then the court must elicit these additional facts before a default judgment may enter. Since a defaulting defendant is deemed to have admitted the facts set forth in the Statement of Small Claim, the court may not require the plaintiff to offer evidence of a prima facie case, except as to any element of the claim that is not covered by the facts set forth in the statement. A default judgment may enter only if the facts alleged in the Statement of Small Claim and any additional facts elicited and established by evidence provide a prima facie case on a recognized claim for which relief may be granted. This does not require the court to raise potential matters of defense not raised by the defendant. There are differing views as to the appropriateness of doing so, given the tension between the special nature of small claim proceedings and the court’s ethical obligations to maintain his or her neutrality.

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(d)(4) Uncertain damages. The court must conduct an assessment of damages whenever the Statement of Small Claim requests damages that are not a sum certain or in instances where the amount claimed appears to be inflated or unrelated to the claim. No assessment of damages should be conducted except as indicated in this rule. (d)(5) Discretionary awards. A small claim must be reviewed by the court whenever an exercise of discretion is required in awarding multiple damages (e.g., in G.L. c. 93A consumer protection claims), statutory damages (e.g., for bad checks and shoplifting claims), or discretionary attorney fees or court costs. (d)(6) Review for reasonableness. Some items that are not considered discretionary must still be reviewed by the court for reasonableness (e.g., contractual attorney fees or collection costs). (d)(7) Inconclusive military affidavit. Where the plaintiff is unable to file the required affidavit, the court cannot enter a default judgment without further inquiry and compliance with the requirements of the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. (d)(8) Plaintiff in trade or commerce or pursuing assigned debt. Before entering a default judgment, the court must review the Statement of Small Claim to determine whether the plaintiff is required to comply with Rule 2(b) and if so whether the plaintiff has properly done so. When the court must conduct such a review or assessment, normally it should be done on the scheduled trial date. Paragraph (e) now requires that substitute or “covering” counsel file an appearance. The rule permits substitute counsel to file a time limited appearance, thereby acknowledging a common practice in small claim proceedings while permitting the court to maintain an accurate record of all attorneys who appear before the court. As the rule applies exclusively to litigants who are already represented by counsel, it does not implicate the terms of the Supreme Judicial Court order, effective May 1, 2009, regarding Limited Assistance Representation. Paragraph (k) now delays the issuance of an execution until after the payment hearing or, if no payment hearing is scheduled, until the expiration of the usual 30-day payment order. This avoids any unfair surprise to the defendant by delaying any levy on the judgment until the defendant has had an opportunity to pay as ordered or to attend a payment hearing. Please note that due to the insertion of new paragraphs d and e in Rule 7 of the 2009 Amendments, paragraphs f-k were formerly paragraphs d–i.

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Commentary to 2001 Amendments New paragraph (a) encourages the parties to file agreements for judgment or payment orders whenever they are able to reach such agreement. New paragraph (d) is necessary to conform this Rule to the intent of the small claims amendments enacted by St. 1992, c. 379 that small claims matters generally be heard in the first instance by a magistrate. The new paragraph recognizes the authority of judges to adjudicate small claims cases in the first instance when needed in a particular court. The language of the paragraph responds to the Supreme Judicial Court’s decision in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607 (2000) which holds that, by proceeding with an initial hearing by a judge, a defendant, including a plaintiff or a third party with respect to any counterclaim or any third-party claim brought against him or waives his right to appeal for a subsequent trial by a judge or before a jury. The language also responds to the Supreme Judicial Court’s acknowledgment in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, supra at 610, that magistrates may determine contested motions in small claims actions, thereby in effect overruling the decision of the Appellate Division of the Boston Municipal Court in Acentech, Inc. v. Cecconi, 1994 Mass. App. Div. 44. (Note: On October 25, 2000, the Appeals Court decided Boat Maintenance & Repair Co. v. Lawton, 50 Mass. App. Ct. 329, in which that court determined that a clerk-magistrate had no authority to hear and decide a contested motion in a small claim action. However, in so deciding, the Appeals Court did not acknowledge the Supreme Judicial Court’s earlier decision in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, supra ). Paragraph (d) also states that magistrates who have mediated a small claim be disqualified from ruling on motions or presiding over any trial on the merits. It also requires recusal from any enforcement proceedings in the same small claim, because it seems inappropriate for one person to exercise both mediation and enforcement functions in the same case, even at different stages of the proceedings. The requirement that a court officer be in attendance whenever possible is strongly recommended by the Trial Court Committee on Small Claims Practices and Procedures. The remaining amendments in paragraphs (d) and (e) codify the procedural directives promulgated in the Policy Statement of Chief Justice for Administration and Management John E. Fenton, Jr., “Policies Regarding Hearing Small Claims under the Court Reorganization Act, Chapter 379 of the Acts of 1992" (February 19, 1993). Those involving the use of a courtroom and an appropriate bench, and involving the recording of proceedings, were also supported by the Trial Court Committee on Small Claims Practices and Procedures. Paragraph (g) introduces an automatic payment hearing. The Trial Court Committee on Small Claims Practices and Procedures has found that frustration with the current system for collecting judgments is the principal source of citizen Exhibit C / Uniform Small Claims Rules

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dissatisfaction with the small claims process. Presently the burden falls to the prevailing party to initiate collection proceedings and to get the defendant before the court. The new payment hearing mandates a more active role for the courts. As the Committee has noted: “this streamlined approach to collections would be less costly for the prevailing party because an automatically scheduled hearing would eliminate the need, in the first instance, for service of a Notice to Show Cause. In addition, the parties would more clearly recognize that they have thirty days to work out payment in a non-adversarial manner.” The provisions in Paragraph (g) for the filing of a financial statement also require that any such financial statement is to be protected from public inspection in terms similar to those of Rule 401(d) of the Supplemental Rules of the Probate Court. The Committee secured the cooperation of three District Courts and one Housing Court and ran the payment hearing system as described in paragraph (g) on an experimental basis. The results not only supported the Committee’s belief that more judgments would be satisfied at an early date with less cost to the plaintiff, but court staff also found that the new procedure was less time consuming for them. Since no appeal lies from the entry of a default judgment, a defendant against whom a default judgment has been entered must, upon receipt of a Notice of Judgment and Order form, complete a written financial statement, provide a copy of that statement to the plaintiff, and appear in court on the date specified in the Notice and Order form in accordance with the provisions of Rule 7(g) if payment has not been made as ordered. The amendment to paragraph (h) provides authority for the longstanding practice of requiring the defendant to reimburse the plaintiff for the costs of service of any post-judgment Order to Show Cause or capias that is necessary to enforce the judgment. Rule 8 RELIEF FROM JUDGMENT OR ORDER Within one year of the date of judgment the court may, upon a party’s application and after notice to the other party in such form as the court deems appropriate, vacate or grant relief from any judgment or order, including an order for a judgment of dismissal under Rule 7, entered under these Rules for any cause that the court may deem sufficient, and may supersede execution.

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At any time after judgment, with notice to the other party, a party may apply to vacate or grant relief from any judgment or order, including an order for a judgment of dismissal under Rule 7, if it is alleged that the party did not receive actual notice of the claim and the date of trial. If the court determines that no notice was received, the court shall vacate or grant relief from any judgment or order entered under these rules. The court may also order the repayment of any amount collected under such judgment or order, and any action by the court may be made conditional upon the performance of any reasonable condition, including payment of or reimbursement for any reasonable expenses incurred by the other party. Commentary to 2009 Amendment This amendment requiring relief without regard to the time within which the relief is sought, reflects the due process requirements embodied in Mass. R. Civ. P. 60(b)(4) that a judgment may be challenged and must be voided at any time for lack of notice. See, e.g., Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983). The one-year limitation applies to all other grounds for relief from judgment. Commentary to 2001 Amendment These amendments clarify two ambiguities in the text of Rule 8. The first makes clear that relief from judgment may not be granted on ex parte application. The form, but not the obligation, of giving notice to the other parties is meant to be discretionary with the court. The second makes clear that the court, in vacating an order of dismissal or a default judgment, may, in appropriate circumstances, award reasonable expenses such as lost wages to the other party if the party was present on the day the case was dismissed or the defendant defaulted. Rule 9 ENFORCEMENT OF JUDGMENTS (a) Order to Show Cause. On an order issued after the payment hearing, or if there was no payment hearing, upon being informed by the plaintiff that a defendant who has been ordered to pay has failed to obey the order, the clerk shall schedule the matter before the court for enforcement proceedings and shall issue a Notice to Show Cause to the plaintiff, who must arrange for the Notice to Show Cause to be served by an officer duly qualified to serve it. The court may provide for any other means of service in individual cases as is deemed appropriate. The Notice to Show Cause shall indicate the date and time of hearing.

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(b) Enforcement Proceedings. Upon hearing, the court shall take such action, permitted by law, as it deems appropriate to the end that orders of payment are complied with promptly and satisfaction of the judgment in the case is not frustrated. Such enforcement proceedings may be conducted either by a judge or by a magistrate, but a magistrate shall have no authority to enter an adjudication of civil contempt or to issue an order of incarceration. When enforcement proceedings are conducted by a magistrate and it appears that such action may be required, the magistrate shall refer the matter to a judge, who shall make an independent determination whether to enter an adjudication of civil contempt and may issue an order of incarceration or such other order as may be appropriate to enforce payment of the judgment. If a judge is available at the time of such referral, the matter may immediately be placed before the judge (c) Inability to Pay. Unless the court orders otherwise, a defendant who asserts that he or she is presently unable to pay the amount of the judgment in full shall complete a financial statement on a form provided by the court and signed under the penalties of perjury prior to being examined by the court. The financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case, and to the parties in the case. If the court previously determined that at that time the defendant was financially able to comply with the court’s payment order, the burden of proof shall be on the defendant to establish that he or she is currently unable to comply with the court’s payment order. (d) Defendant’s Move to Another District. If, after a small claim is filed, the defendant moves out of the judicial district where the action was brought, the court may, on request of the plaintiff, transfer the action to the division of the court in the judicial district to which the defendant has moved. If the court orders such a transfer, the docket entries and the original papers in the case shall be forwarded to said court, without payment of an entry fee, and the case shall proceed in that court as though originally entered therein. (e) Acknowledgment of Satisfaction of Judgment. Within ten days of full payment of a judgment, the plaintiff shall file an Acknowledgment of Satisfaction of Judgment with the court. Upon the filing of such acknowledgment, the clerk shall recall any outstanding execution. (f) Court Determination of Satisfaction of Judgment. At the request of the defendant, and upon notice to the plaintiff, a judge or magistrate may order the entry of a docket notation indicating full satisfaction of the judgment if the defendant files an affidavit stating that he or she has made full payment of the judgment, and that the plaintiff has been requested to file an acknowledgment of satisfaction of the judgment and refuses to do so, or that the present address of 66

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the plaintiff is unknown. The defendant shall accompany such affidavit with canceled checks or money orders for the full amount of the judgment written by the defendant and made payable to and endorsed by the plaintiff, or cash receipts for the full amount of the judgment made out to the defendant and signed by the plaintiff, or other documents demonstrating the plaintiff’s receipt of full payment of the judgment. Any such docket notation shall establish a rebuttable presumption of full payment of the judgment. Commentary to 2009 Amendments Paragraph (d) now authorizes transfer to the appropriate court when the defendant moves from the original court’s geographical jurisdiction, whether before or after judgment. Paragraph (e) requires for the first time in Massachusetts that the plaintiff file an acknowledgment of satisfaction with the court once a judgment is paid in full. Paragraph (f) provides a remedy to the defendant where plaintiff fails to file an acknowledgment. These additional provisions are necessitated by the difficulty that defendants increasingly experience in proving that a judgment that appears in a credit report was satisfied, sometimes years before. Commentary to 2001 Amendments Paragraph (a) is amended to eliminate the directive to the clerk to “make such inquiry into the matter [of non-payment], if any, as he deems useful.” Since a clerk may later preside over enforcement proceedings as a magistrate, such informal contacts are best avoided since they might well involve ex parte discussions that would be inconsistent with a magistrate’s responsibilities under S.J.C. Rule 3:12, Canon 3. Paragraph (b) reflects the recommendation of the Trial Court Committee on Small Claims Practices and Procedures that magistrates be authorized to preside over proceedings to enforce small claims judgments, but not to enter adjudications of civil contempt or to make orders of incarceration. When such steps appear necessary, the matter is to be transferred to a judge “immediately,” which assumes no need for rescheduling or further notice if a judge is then available. While it is expected that most proceedings to enforce small claims judgments will be conducted by magistrates, paragraph (b) preserves the authority of judges to preside over such enforcement hearings ab initio. New paragraph (c) makes it a matter of routine for a defendant who claims to be unable to pay the judgment in full to complete a sworn financial statement. The specific assignment of the burden of proof in paragraph (c) restates current case

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law. Roy v. Leventhal, 5 Mass. App. Ct. 792 (1977). See also G.L. c. 215, § 34 (in Probate Court contempt proceedings, “the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges violation”). The defendant’s financial statement shall be treated as confidential information in terms similar to those of Rule 401(d) of the Supplemental Rules of the Probate Court. See Rule 7(g) and the Commentary thereto. Rule 10 APPEAL (a) Claim of Appeal. A defendant’s claim of appeal for trial by a judge or before a jury of six persons shall be made in writing, shall comply with the requirements of G.L. c. 218, § 23, and shall specify whether the defendant claims trial by a judge or before a jury. The defendant shall mail a copy of the claim of appeal to the plaintiff. Upon the defendant’s filing of a claim of appeal, the clerk shall forthwith note on the docket of the case the receipt of the claim of appeal, the filing fee for the appeal required by section 23, and any appeal bond required by section 23 or an equivalent cash deposit in lieu thereof. If each of these items has been timely received, the clerk shall schedule the matter for trial. If a jury trial is to be held at another division, the clerk shall transmit the original docket entries and the original papers in the case, or an attested copy of the original docket entries and the original papers in the case, to the clerk of the appropriate jury session. The court may waive the filing fee if the applicant is indigent and may waive the bond requirement if it finds that the applicant has insufficient funds to furnish the bond and that the appeal is not frivolous. Prior to the case being tried in the division from which the case is appealed or transmitted to the jury session at another division, any judge of the division from which the case is appealed may hear and determine any question raised by a party concerning the defendant’s compliance with the statutory requirements for appeal. The clerk of the division from which the case is appealed shall retain custody of any appeal bond posted pursuant to section 23 or any equivalent cash deposit in lieu thereof, and shall deposit with the State Treasurer the filing fee and surcharge for the appeal. If any required item has not been timely received, the clerk shall so notify both parties, shall return any filing fee, surcharge, appeal bond or cash deposit in lieu thereof forwarded by the defendant, and shall note such action, and the reasons therefor, on the docket. The clerk’s notice shall inform the defendant that he may have the issue of his compliance with the statutory prerequisites for appeal determined by a judge, upon motion filed within ten days of receiving the notice. (b) Conduct of Trials. Trials by a judge or before a jury shall be conducted in accordance with the provisions of Rule 7, and, in the case of a trial before a jury, 68

Pursuing a Case in Small Claims Court, 3rd Edition 2010

in accordance with the provisions of law applicable to jury trials in the Superior Court Department. In a trial before a jury, the judge may direct that any provisions of the Massachusetts Rules of Civil Procedure be utilized, if not inconsistent with Rule 7. A counterclaim or third-party claim may not be raised for the first time on appeal. (c) Judgments and Orders to Pay. Judgment shall be entered forthwith upon the decision of the judge or the verdict of the jury. Subject to any continuance granted pursuant to Rule 7(b), a judgment for the plaintiff shall be entered forthwith if the defendant fails to appear for trial or is not prepared to proceed to trial and the plaintiff does appear, or if the defendant withdraws the claim of appeal. Subject to any continuance granted pursuant to Rule 7(b), a judgment for the defendant shall be entered forthwith if the plaintiff fails to appear for trial or is not prepared to proceed to trial and the defendant does appear. Subject to any continuance granted pursuant to Rule 7(b), a judgment dismissing the claim shall be entered forthwith if both the plaintiff and the defendant fail to appear for trial. Except where justice will not be served thereby, the judge shall, after holding a payment hearing, forthwith order payment to the plaintiff, in accordance with Rule 7(i). Otherwise the judge must schedule a payment hearing in accordance with Rule 7(i) in the division from which the case was appealed. Any order for payment shall grant the party no less than thirty days within which to pay. The clerk shall promptly furnish each party with written notice of the court’s judgment, any order for payment, and any payment hearing. When judgment is entered in the jury session, such notice shall be given by the clerk of the jury session. (d) Post-judgment Proceedings in Jury Session at Another Division. When a small claims action has been tried on appeal in the jury session at another division, any post-trial motions filed within ten days after the entry of judgment shall be filed with the clerk of the jury session and heard by the judge who presided over the trial. If justice will be served thereby, the judge may stay, modify, or supersede any order for payment already made. Unless the judge orders otherwise, upon the expiration of ten days after judgment, the case shall be retransferred to the division from which it was appealed for any further enforcement proceedings pursuant to Rule 7 and Rule 9, except that a case shall not be retransferred until any motion filed, or any appeal claimed, within ten days after entry of judgment has been decided. The clerk of the jury session shall transmit original or attested copies of the judgment, any order for payment, any order deciding a post-trial motion, and any rescript of an appellate court, to the clerk of the division to which the case is being re-transferred. Any motions which are filed after the case has been re-transferred shall be filed with the clerk of the division to which the claim has been re-transferred. The Exhibit C / Uniform Small Claims Rules

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clerk shall transmit any such motion that affects the judgment to the judge who presided over the trial in the jury session, who may determine such motion, with or without hearing, wherever the judge is then sitting. Other motions that affect only an order for payment or proceedings to enforce the judgment may be heard by any judge or magistrate sitting in the division to which the claim has been retransferred. (e) Appeal from the Housing Court Department to the Appeals Court. Any claim of appeal from the Housing Court Department to the Appeals Court from the judgment in a small claims action tried by a judge or before a jury shall be filed with the clerk of the division or the jury session where the case was tried within ten days after entry of judgment. If justice will be served thereby, the judge who presided over the trial may stay, modify, or supersede any order for payment already made. Further procedures on appeal shall be governed by the Massachusetts Rules of Appellate Procedure. Commentary to 2009 Amendments Paragraph (c) is amended to provide that when either the plaintiff or defendant fails to appear for trial, or appears but is not prepared to proceed with trial and there is not a good cause basis for a continuance, judgment is to be entered in favor of the party appearing and ready to proceed. Commentary to 2001 Amendments Most of these amendments are necessary because an appealing party must now elect between trial by a judge and trial before a jury. Jury session procedures are amended to permit the increasingly frequent practice of sending original case papers to the jury session (while retaining copies at the primary court). The authority granted the Chief Justice of the District Court Department to designate where trials are to be heard in G.L. c. 218, § 23, permits the retention of jurywaived cases in the court where the case originated regardless of whether that court has a jury session. The purpose is to take caseload pressure away from busy jury sessions. Unlike the District Court and Housing Court Departments, the Boston Municipal Court Department of the Trial Court does not consist of separate geographical divisions. Accordingly, all appeals from a small claims session of the Boston Municipal Court are to a jury session of that same court and all papers related to such appeals are processed within the Office of the Clerk of the Boston Municipal Court for Civil Business.* In paragraph (a), the reference to the surcharge required by G.L. c. 262, § 4C for new entries “to which a separate docket number is assigned” has been deleted

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since virtually all courts no longer assign a new docket number when a magistrate’s decision in a small claim is appealed to a judge or a jury. The deletion in paragraph (b) of the reference to the District/Municipal Courts Rules of Civil Procedure reflects their July 1, 1996 consolidation with the Massachusetts Rules of Civil Procedure. The limitation in paragraph (e) of appeals to the Appeals Court to those deriving from cases tried by a judge or before a jury in the Housing Court Department reflects the decision of the Supreme Judicial Court in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607, 610 n.9 (2000). There, in a case involving a motion heard initially by a District Court judge, the Supreme Judicial Court stated: “To the extent that Rule 10(e) of the Uniform Small Claims Rules (1999) provides for an appeal to the Appeals Court from the jury session, it is in conflict with G.L. c. 218, § 23, which provides for the report of questions of law to the appellate division in certain circumstances. General Laws Chapter 211A, § 10 provides for an appeal from the appellate division to the Appeals Court.” However, there is no appellate division in the Housing Court Department, thereby necessitating, in order to provide for appellate review, an appeal to the Appeals Court from cases heard by a judge or before a jury in the Housing Court Department. 2009 Note *On July 1, 2003 the Boston Municipal Court Department was expanded to include seven former divisions of the District Court located in Suffolk County.

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EXHIBIT D—Forms to Implement Amendments to Uniform Small Claims Rules

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EXHIBIT E—Small Claims Standards

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(See Exhibit A)

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(See Exhibit C)

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EXHIBIT F—Small Claims Court Forms Form DC-SC-1 Statement of Small Claim and Notice of Trial

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INSTRUCTIONS FOR PERSONS FILING A SMALL CLAIM—Complete Parts 1–6 on front of form. Part 1. You may file your small claim only in the court for the area where either the plaintiff or the defendant lives or has a place of business or employment. A small claim against a landlord arising from the rental of an apartment may also be filed where the apartment is located. You may find it easier to enforce a decision in your favor if you file your small claim where the defendant lives or works, but you are not required to do so. The Clerk-Magistrate’s office can tell you which court serves an area and the fee you must pay to file your case. Part 2. The person or business filing the claim is called the plaintiff. Part 3. Enter the defendant’s name and mailing address. The person or business being sued is called the defendant. If you are suing a business that is not a corporation, you should name as the defendant the owner(s) doing business under that name; the names of the owner(s) can be obtained from the City or Town Clerk where the business’s offices are located. If you are suing a business that is a corporation, you must have the exact legal name. You can find this information from the Corporate Records Division of the Secretary of State’s Office, One Ashburton Place, Room 1712, Boston, MA 02108 (or online at http://corp.sec .state.ma.us/corp/corpsearch/corpsearchinput.asp). Part 4. Fill in the amount you are suing for and briefly explain your claim. State your claim clearly so the defendant can understand why he or she is being sued. State specifically any amounts sought for damages, for multiple damages or statutory penalties, for attorney’s fees, or for costs (including the amount of the filing fee), as well as the total amount being sought, exclusive of any prejudgment interest being sought from the court pursuant to statute. If your claim arose in the course of your trade or commerce, or you are pursuing a claim for assigned debt, also state: (1) the original creditor’s name (if different from yours), (2) only the last four digits of any account number assigned by the original creditor, and the amount and date of the last payment, if any. Sign your name in the space provided. Part 5. Indicate if you are willing to attempt to mediate this claim. Part 6. If you know the defendant’s social security number, you may determine whether he or she is on active military duty online at www.dmdc.osd.mil/ scra/owa/home; otherwise, you must write to the appropriate military service headquarters (which are listed at www.defenselink.mil/faq/pis/PC09SLDR .html). If you are unable to determine whether the defendant is on active military duty and the defendant fails to appear, the court may require you to post a bond or may issue other orders to protect the rights of the defendant if he or she is on active military duty.

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Bring or mail the completed form, with all parts intact, together with a check or money order (made payable to “Clerk-Magistrate”) for the filing fee, to the Clerk-Magistrate’s office of the court where you are filing your case. If your claim arose in the course of your trade or commerce, or you are pursuing a claim for assigned debt, you must also file a separate “Verification of Defendant’s Address” form with your claim, certifying that you have verified the defendant’s mailing address in the manner set forth in that form. If you do not do so and the defendant fails to appear, you may not obtain a default judgment and your claim will be dismissed without prejudice. (This requirement does not apply if your claim arose from leasing or renting your residential property of three or fewer units that is also your primary residence unless you also own, manage or are otherwise involved in leasing or renting other residential property.)

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General Purpose Motion

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Form DC-CR-19 C-CR-19 Appearance of Counsel

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Payment yment Agreement

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Form DC-SC-6 Financial Statement of Judgment Debtor

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Form DC-SC-4 C-SC-4 Defendant’s Claim of Appeal

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Acknowledgment of Satisfaction of Judgment

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EXHIBIT G—Demand for Payment of Dishonored Check

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EXHIBIT H—Small Claims Courts and Contact Information For contact information regarding the courts authorized to hear small claims, please check the website for that Department. In addition to contact information these sites will also contain information regarding the municipalities served by each of their respective divisions. For the District Court Department: http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/index.html For the Boston Municipal Court Department: http://www.mass.gov/courts/courtsandjudges/courts/bostonmunicipalcourt/ index.html For the Housing Court Department: http://www.mass.gov/courts/courtsandjudges/courts/housingcourt/index.html

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