NORFOLK FINANCIAL CORPORATION v. CLINTON B. PERRY

CAMPBELL, J. The sole issue raised by the defendant-appellant, Clinton B. Perry ("Perry"), is whether the District Court erred in denying his motion to vacate judgment, brought pursuant to Mass. R. Civ. P. 60(b)(4), where such judgment was void due to improper service and lack of personal jurisdiction.

We agree with Perry that denial of his motion was error. We vacate the default judgment that entered against him and return this matter to the District Court for further proceedings consistent with this opinion.

On April 15, 2011, the plaintiff-appellee, Norfolk Financial Corporation ("Norfolk"), filed a collection action against Perry. On May 13, 2011, Norfolk filed its return of service on the summons and complaint. That return of service indicates that on or about May 11, 2011, a deputy sheriff served the summons and complaint by leaving it at Perry's "last and usual" place of abode and by mailing a copy to him at the same address.

Perry failed to file an answer or otherwise respond. As a result, Norfolk moved for entry of a default judgment. Default judgment for damages entered against Perry on June 23, 2011.

On March 18, 2019, Perry moved through counsel, pursuant to Mass. R. Civ. P. 60(b)(4), to vacate the default judgment. In support of his motion, Perry averred under the pains and penalties of perjury that he was unaware of the proceedings. He indicates that on May 11, 2011, he did not live at the address appearing on the summons and in the complaint. He states he had not lived there since his marriage in 2009. Further, he avers he was unaware of the judgment against him until the summer of 2018. The judgment appeared on a credit report he received while trying to purchase a home.

Norfolk did not file a written opposition to Perry's motion. The court conducted a hearing on April 16, 2019. [Note 1] On April 18, 2019, denial of Perry's motion entered on the docket. He filed a timely notice of appeal on April 26, 2019.

After the entry of final judgment, a party may file a motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b)(4). Among the grounds a party may raise is a claim that the "judgment is void" due to improper service of process. See Uzoma v. Okereke, 88 Mass. App. Ct. 330, 330-331 (2015); Wang v. Niakaros, 67 Mass. App. Ct. 166,

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172 (2006) ("[A]cquisition of personal jurisdiction over a defendant cannot be satisfied without proper service of process or an appropriate substitute."); Fleishman v. Stone, 57 Mass. App. Ct. 916, 916 (2003). "There is no time limit with respect to rule 60(b)(4) motions based on void judgments." Uzoma, supra at 331, citing Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983).

While most Mass. R. Civ. P. 60(b) motions are left to the discretion of the motion judge, see Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227 (1979), a judge does not have discretion to deny a request for relief from a void judgment and must vacate it. See Wang, supra at 169; Fleishman, supra, citing Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 533 (1997). This Division reviews de novo the denial of a motion brought pursuant to Mass. R. Civ. P. 60(b)(4). See Dumas v. Tenacity Instruction Inc., 95 Mass. App. Ct. 111, 114 (2019) (de novo review of rule 60(b)(4) motion for lack of personal jurisdiction).

Norfolk filed its return of service with the court. The actions of an officer as set forth in a return of service are prima facie evidence of the existence of the facts set forth therein, and the party raising the issue of personal jurisdiction carries the burden of demonstrating, by affidavits or otherwise, that there was not personal jurisdiction over him. See Farley v. Sprague, 374 Mass. 419, 423-424 (1978). See also Blair v. City of Worcester, 522 F.3d 105, 112 (1st Cir. 2008) ("Under Massachusetts law, an affidavit is sufficient to refute the prima facie presumption created by a return of service."); Dumas, supra at 115 ("The defendant can rebut the prima facie evidence with sufficiently detailed affidavits."). As such, Perry carried the burden of demonstrating that the court lacked personal jurisdiction over him.

Perry filed an uncontroverted affidavit claiming he never received service of process; he had not lived at the residence listed in the summons for almost two years (before it was left at what Norfolk claimed to be his "last and usual" abode); and, he did not learn of this cause of action until the summer of 2018. "When a defendant files a motion for relief from a default judgment under Mass. R. Civ. P. 60(b)(4), 365 Mass. 828 (1974), alleging that the judgment is void because of improper service of process, the judge is bound to accept the defendant's uncontroverted affidavits as true." Dumas, supra at 111. Here, where Norfolk filed no opposition, the court was obliged to accept Perry's uncontroverted affidavit as true. See Farley, supra at 425. "[T]he judge was not free simply to reject [the defendant's] affidavit[] in this regard." Dumas, supra at 116-117. As a result, the judge was obliged to set aside the judgment entered against the moving party. Id.; Metivier v. McDonald's Corp., 16 Mass. App. Ct. 916, 918 (1983).

The denial of Perry's motion to vacate the default judgment is reversed, and the default judgment is vacated. The matter is returned to the District Court for further proceedings consistent with this opinion.