2019 Mass. App. Div. 75

Hadley, P.J., Poehler & Stark, JJ. - April 30, 2019

Appellate Division Western District

Court Below: District Court, Clinton Division

John H. Slingerland for the plaintiff.

No brief filed for the defendant.

STARK, J. This is an interlocutory appeal arising out of a debt collection action brought in October, 2015 by the plaintiff, Paragon Recovery Group, LLC, against the defendant, Ann Mwaniki.

The defendant answered the complaint, but failed to appear at the case management conference or to answer discovery. The plaintiff applied for a default judgment and an assessment of damages. After a hearing on February 29, 2016 at which both parties were present, the District Court judge allowed the plaintiff's motion to assess damages and attorney's fees. [Note 1] A default judgment entered on March 3, 2016. Over a year later, on July 18, 2017, the defendant moved to remove her default and to vacate default judgment. After a hearing on August 7, 2017 at which both parties were present, the same judge allowed the defendant's motion. This interlocutory appeal by the plaintiff followed.

On appeal, the plaintiff argues that it was improper for the trial court to allow the motion to remove the default and vacate the judgment. For the reasons set forth below, we agree.

Massachusetts Rule of Civil Procedure 60 allows for relief from judgment under certain circumstances. Rule 60(b) provides, in part: "On motion and upon such terms as are just, the court may relieve a party . . . from final judgment . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . ; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged . . . ; or (6) any other reason justifying relief from the operation of the judgment." The Rule also states that the motion must be made within a reasonable time, and for reasons (1), (2), and (3), the motion must be made within one year after the judgment. Id. This one-year time limit cannot be extended. Mass. R. Civ. P. 6(b); Chavoor v. Lewis, 383 Mass. 801, 805 & n.4 (1981).

Because this appeal is interlocutory, we consider it "to the extent necessary to determine whether the judge had the power to grant the motion. If the judge had such power, the interlocutory appeal must be dismissed without any inquiry on our part into the merits of the judge's decision to grant the motion. If the judge did not have such power, the decision granting the motion must be vacated." Chavoor, supra at 805.

Page 76

The defendant's motion was filed in the trial court well over the one-year time limit set forth in Mass. R. Civ. P. 60(b)(1)-(3). As such, the judge did not have the power to allow the motion if those grounds apply. There is no indication in the record before us that reasons (2), (3), (4), or (5) are present in this case, so the issue before us is whether the judge had the power to allow the motion based on Rule 60(b)(1) or (6). Because Rule 60(b)(6) applies only for grounds other than those set forth in subsections (1) through (5), see Chavoor, supra at 806, if subsection (1) applies, the judge did not have the power to grant the motion pursuant to Rule 60(b)(6).

The defendant's reasons for her motion fall within subsection (1) of Rule 60(b) because they would properly be characterized as claims of excusable neglect. The defendant contacted the Attorney General's office, a consumer protection agency, and legal aid to obtain assistance with this civil matter, but to no avail. While she may have had valid defenses, she failed to follow the proper civil procedures, causing the default to enter. When she appeared in court for the initial assessment of damages hearing, she was essentially told that she had to get a lawyer -- despite her repeatedly stating that she could not afford one. It appears from the transcripts of both hearings that she was confused about the court procedures. For these reasons, her motion falls within Rule 60(b)(1). Therefore, the judge did not have the power to allow the motion, as the one-year time limit had passed, and Rule 60(b)(6) cannot apply.

The order entered September 20, 2017, allowing the motion to vacate judgment, is reversed. The judgment entered March 3, 2016 is reinstated.


[Note 1] During this hearing, the defendant informed the court that she could not afford an attorney. The defendant answered, no, to the court's question of whether she would return with an attorney if the court continued the case for thirty days.