Home Robert Wilkinson, Plaintiff v. Bollak Fokum, Defendant


January 8, 2020

Housing Court, Southeast Division



This matter came before the Court on Plaintiff's Motion for Relief from Judgment. Defendant Fokum appeared and was represented by counsel and Plaintiff was also represented by counsel. After presentation by the parties via written motion, opposition, oral argument and through documentary evidence after drawing reasonable inferences therefrom the Court finds the following;

1. That the Plaintiff is the owner of property located at 284 Duane Avenue, 1st floor (Apt. RR), North Dartmouth, MA where the Defendant formally resided.

2. That for various reasons to include non-payment of rent the Plaintiff terminated the tenancy of the Defendant via a notice to quit dated November 16, 2018.

3. That the Defendant received said notice via in hand service on November 17, 2018.

4. That a summary process summons and complaint was served in hand to the Defendant on December 3, 2018.

5. That said summary process summons and complaint return of service contained a scriveners error identifying "Bolla K." Fokum" as "Bollak" Fokum. The Court finds this error to be de minimus in nature and results in no prejudice to Defendant.

6. That a default judgment entered against the Defendant in this Court on December 24, 2018.


In considering the motion of Defendant under Mass.R.Civ.P. 60(b)(4) the Court is authorized to exercise discretion in determining whether a judgment is void under two conditions. First if the Court rendering judgment lacks jurisdiction or if the Court acted in a manner inconsistent with due process of law.

First, in considering the issue of jurisdiction this is a summary process action involving property and parties within the Courts geographic jurisdiction and I find that the Court has personal, geographic and subject matter jurisdiction.

Secondly, with respect to the issue of due process, I find that the Plaintiff has complied with all requirements of statute concerning requisite notice in this matter and the Defendant's opportunity to be heard and find no basis to void the judgment under these facts. I did not find the affidavit filed by Defendant in support of her motion to be credible. The return of service provided by the constable on the summary process summons and complaint while technically incorrect due to a scrivenor's error did state that it was served in hand to the Defendant and I find that it provided the Defendant with adequate notice of the proceedings against her. "The return of the constable is prima facie evidence of the facts stated in it." Ryan v. Sylvester, 358 Mass. 18 , 20 (1970). As such I find that the Defendant was adequately noticed of the proceedings and either failed or refused to appear and contest the underlying eviction.

In regard to the Defendant's claims under Mass.R.Civ.P. 60(b)(6), the Court notes that particular rule is intended to authorize the granting of relief for "any other reason justifying relief from the operation of the judgment." On this point, Defendant's primary argument is that she did not receive notice of the summary process action, was unable to present any defenses that she may have had to the claims asserted by the Plaintiff and as a result she has been harmed by an unjust result. As stated earlier, the Court did not find the statements contained within her affidavit to be credible on the issue of whether she had received notice of the proceedings against her. As a result, the Court finds that she has not met the burden of showing that she should be relieved from the obligations imposed by the judgment entered against her. Finally from an equitable standpoint, based upon the findings by the Court, the Defendant received the benefit of possession of the premises at issue for the months of September through December of 2018 which form the basis of the judgment against her.

In sum, Defendant has failed to provide the Court with a reasonable basis, legal or equitable, for relieving her of the judgment entered over a year ago. The Plaintiff met all the requirements deemed necessary to secure the judgment and is now entitled to collect upon same.

For the above stated reasons,

1. The Motion for Relief from Judgment is DENIED.