January 31, 2020

Housing Court, Northeast Division

Fairlie A. Dalton, J.


This matter came before the court today on the defendants' motion to dismiss this case. After hearing, the motion is DENIED.

The defendants occupied the subject rental premises pursuant to a renewed lease. The monthly rent as of September 1, 2019 was $1,350, due on the first.

The parties agree and the plaintiff's ledger confirms that no rent was paid in September or on October 1, leading to an arrearage of $2,700. The landlord served a fourteen day notice to quit for non-payment of rent on October 3, 2019 by constable to each defendant. The defendants paid $1,350 on October 16, leaving a balance of $1,350. Another $1,350 became due on November 1, which was not paid. The balance was now $2,700 again. The landlord served a summons and complaint with an account annexed of $2,700 by constable on each defendant on November 6. $1,350 was paid on November 19, reducing the arrearage to $1,350. The summons and complaint was filed with the court on November 21. The defendants paid another $1,350 on November 26.

Because the tenants had a lease, pursuant to G.L. c. 186 §11, they could have cured and stopped the eviction case from going forward to trial by paying all the rent/use and occupancy due with interest and the costs of suit by the day the answer was due (December 2). [Note 1] Mr. Sekulagala contacted the plaintiff's attorney after the November 26 payment. The attorney told him that he would dismiss the case if the tenants paid $197 in costs by the end of November because all rent/use and occupancy and costs would have been paid and they would have cured pursuant to the statute. [Note 2] Mr. Sekulagala refused to pay the costs because he felt that they should not have to do so because they had gotten caught up with the rent, although not before the case was filed in the court.

On December 1, another month's rent/use and occupancy became due. It was not paid. The defendants did not appear for trial on December 6. A default judgment entered against them on December 9 for $1,350 unpaid rent with costs and interest. Nothing was paid for January until a bank check dated January 13, 2020 was tendered by the defendants. The landlord returned the bank check immediately by constable.

The court finds that the defendants did not cure the arrearage and costs pursuant to G.L. c. 186 §11 at any time during the case. In fact, they refused to do so despite being told of their right to do so. Therefore, it was proper for the plaintiff to proceed with the case. The default judgment entered accordingly.

The plaintiff filed a written request for the execution on December 31, 2019. The court issued the execution on January 3, 2020 for $1,350 in unpaid rent with costs and interest. The plaintiff served a 48-hour notice dated January 8, 2020 to levy on the execution on January 14. The constable so levied. The defendants filed their motion to dismiss the case with the court on January 21, 2020.

The defendants denied receiving the summons and complaint, despite constable service on November 16, 2019 to each defendant by leaving at the last and usual address and by mailing a copy to each defendant. G.L. c. 41 §94 provides that service by a constable is prima facie evidence of receipt unless the defendant can show affirmative evidence of non-receipt. None was shown in this case. The defendants also denied receiving a copy of the default judgment mailed to each of them by the court on December 9. The court notes that no returned mail has been received from the Post Office. In addition, the plaintiff's attorney reports that his conversation with Mr. Sekulagala regarding paying the costs occurred in response to the defendants' receipt of the summons and complaint. The court finds that the defendants' claim that they did not receive the summons and complaint is not credible.

Ms. Mukasa objected to the service of the 48-hours notice of levy on the execution because it was not served to her in hand. It is not required to be served in hand.

Finally, Mr. Sekulagala's claim that they had received more than one notice to quit is not credible. The plaintiff denied serving any notice to quit except for the October 3, 2019 notice which was entered with the case. Because it was not cured, there would have been no reason to serve another notice to quit. The defendants did not have a copy of any other notice to quit to support their claim.


Based on the above, the defendants' motion to dismiss this case is DENIED.


[Note 1] The plaintiff here did not seek interest as part of the cure amount.

[Note 2] In fact, the actual costs were higher than $197. Because the case was e-filed, the administrative fee charged by the vendor would be added to the costs. The plaintiff here did not seek that additional amount.