Mass. Trial. Ct. R. 7
Mass. Trial. Ct. R. 7
Commentary
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 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.
(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. W here 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.
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 (January 20, 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, 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 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.