TLC 43714

February 21, 1980

Suffolk, ss.

Fenton, J.


Daisy Oxley (Oxley) has petitioned this court under G. L. c. 60, § 69A, to vacate a tax foreclosure decree entered in favor of the City of Boston (the City) which foreclosed Oxley's right of redemption to premises at 147 Marcella Street in Boston, Suffolk County, Massachusetts (the premises).

In considering the petition it is helpful to review the uncontroverted matters of record in the files of the tax lien case before this court which set forth the chronology of events that preceded the present petition. The court, therefore, judicially notices the following facts contained in documents of record in Tax Lien case No. 43714.

On March 31, 1967, the City filed in this court a petition to foreclose a tax lien on the premises which had been taken by the City on December 2, 1964, by instrument dated on said date and recorded on December 16, 1964, in Suffolk County Registry of Deeds in Book 7913, Page 132. The taking by the City was for nonpayment of 1963 taxes assessed to Daisy Johnson [Note 1] in the amount of $49.90. After proper notice was sent by the court to all parties appearing of record to have an interest in the premises, an answer was filed pro se by Belle Graves on July 28, 1967, admitting that taxes were due and claiming the right to redeem. On February 14, 1969, Attorney Bernard M Reisman filed an appearance on behalf of Belle Graves. He had previously appeared for her on November 15, 1968, at a hearing on a motion to assign without filing a formal appearance.

The case was assigned for hearing on February 3, 1969, but was continued by agreement to February 14, 1969. On that date this court entered a finding that Belle Graves be allowed to redeem the premises upon payment to the City of $1,311.72 on or before August 15, 1969, with interest to the date of payment. The City's motion for a decree of foreclosure, filed on October 22, 1969, was continued seven times by agreement to determine if petitioner was entitled to a widow's abatement, it having been discovered that she was the third "wife" of a polygamist. Finally the motion for decree of foreclosure under the provisions of G. L. c. 60, § 69 was allowed after hearing on October 13, 1976, but did not enter until December 8, 1978.

On June 8, 1979, Daisy Oxley (petitioner), through an attorney from Greater Boston Elderly Legal Services, filed a petition under the provisions of G. L. c. 60, § 69A to vacate the decree foreclosing the tax title on the premises which was seasonably filed under the one year limitation provisions of § 69A. In substance the petition alleged that Oxley had lived on the premises since 1959 and in keeping with her limited income had done all that she could to pay taxes through the years. The petition also alleged that her memory of events in the tax foreclosure process was unclear and that she had not received any notices about the tax case in recent years. The petition was assigned for hearing on June 20, 1979, but was continued by agreement on five occasions to give the petitioner the opportunity to obtain mortgage financing or to investigate the possibility of some form of abatement. On January 31, 1980, a hearing on the petition to vacate was held at which petitioner and her counsel were present along with Brenda G. Matthis who had purchased the premises at an auction sale on August 29, 1979. No motion to intervene had been filed by Matthis and she is not a party to this proceeding.

On all the information furnished to the court I find the uncontroverted facts to be as follows:

The petitioner, who has used the names Oxley, Johnson and Graves at different times, is 71 years old and has lived on the premises continuously since 1959. Her "husband", a polygamist, died in 1963. She last held a regular job in 1967. Since that time she has received disability income of $87.00 every two weeks. Since 1972 she has also received Supplemental Social Security Income of $337.43 monthly. The building located at 147 Marcella Street in Roxbury is a three-family dwelling with three rooms on each floor. The petitioner resides alone on the first floor and has one tenant on the third floor whose monthly rent is $125.00. The second floor has been uninhabitable for two years due to its disrepair. The property was assessed for $2,900.00 in 1964, the year of the tax taking, and the assessment has not changed in the interim. The total amount certified in the City's tax title account is $7,095.94 which includes taxes from 1963 through 1978 together with interest. At the date of the hearing total taxes together with interest due including uncertified amounts were $8,716.05. Since the tax taking in 1964 petitioner has paid $500.00 on account of 1966 taxes, $50.00 on account of 1967 taxes, $50.00 on account of 1968 taxes, $100.00 on account of 1969 taxes, $291.71 on account of 1972 taxes, and $510.70 on account of 1973 taxes. In 1974 and 1975 she received a widow's abatement and paid the balances due in full for those years. In 1977 she paid all taxes due except for a balance of $100.00. Since filing the petition to vacate the petitioner has made three payments of $75.00 each to the City. There are pending before the City applications for hardship abatements for the years 1978, 1979 and 1980.

Petitioner has obtained a commitment for a mortgage loan in the amount of $5,000.00 for twenty years at an interest rate of 14 1/4 percent from the Provident Institution for Savings. Counsel for the bank has assured the court that the bank understands that the proceeds of the loan will be used by the petitioner to pay back taxes and that it is further understood by the bank that the mortgage will be subject to fiscal year 1978, 1979 and 1980 taxes which are currently the subject of abatement applications. In addition to the proceeds of the mortgage loan, petitioner's counsel has been able to obtain more than $1,200.00 for her from charitable sources which will be applied to the outstanding tax account. The City neither opposes nor assents to the petition to vacate but has agreed, if it is allowed, that the City will enter into an agreement with petitioner to receive $5,000.00 on account of the outstanding tax title and will accept $100.00 per month beginning March 1, 1980, until the outstanding balance is paid in full.

Subsequent to the filing of the petition to vacate the City conducted an auction sale of the premises on August 29, 1979. An announcement was made at the sale that all bids would be subject to the pending petition to vacate. There were four bidders at the sale and the property was sold to Brenda G. Matthis of Boston, Massachusetts, who made the highest bid of $3,600.00. Ms. Matthis gave a deposit of $500.00 at the time of the sale and paid a balance of $3,100.00 to the City within the required 21 day period. She also made a payment in the amount of $1,011.60 to the City in lieu of taxes for the balance of the fiscal year 1980. Although the City accepted payment in full for the auction price from Ms. Matthis, it has not yet delivered a deed to the premises to her. Anticipating acquisition of title to the premises, Ms. Matthis did not execute a new lease for the apartment premises she currently occupies in Boston. Her intention in purchasing the property was to repair and renovate it so that she could move in and occupy all three floors. If the petition to vacate is allowed the City will immediately return to Ms. Matthis all sums of money it received from her but without interest. The City will then look to the petitioner for payment of real estate taxes through fiscal year 1981 since title was held by the City on January 1, 1980, the assessment date.

At the hearing counsel for the petitioner advised the court that she was not raising any questions of law or fact with respect to any phase of the tax title procedures. In any event the court finds that either she or her counsel of record received notice of all proceedings.

A petition to vacate a tax foreclosure decree is addressed to the exercise of the court's discretion. The granting of such a petition rests largely but not exclusively in the discretion of the court. Bucher v. Randolph, 307 Mass. 391 (1940). Russell v. Foley, 278 Mass. 145 (1932). A petition to vacate is extraordinary in nature and ought to be granted only after careful consideration and in instances where it is required to accomplish justice. Russell v. Foley, id. at 148. Although the court is troubled by the fact that there has been a tax delinquency extending over 16 years and also by the fact that the petitioner has used different names at different times during these tax proceedings, it is also aware that she is trying to save the home she has occupied since 1959. The original tax taking in 1964 was for nonpayment of $49.90. A substantial part of the total amount presently owed consists of accrued interest.

Petitioner is a widowed elderly woman, not in the best of health, who exists on Supplemental Social Security Income. Through the years she has made some effort to make partial payments on account of the tax obligation. She now has the assistance of the Greater Boston Elderly Legal Services office which is attempting to obtain hardship abatements for her. Furthermore, after many months of unsuccessful effort she has now obtained mortgage financing which, together with contributions obtained from charitable sources, will enable her to pay more than $6,000.00 on the outstanding tax obligation. The City has agreed to accept a minimum of $5,000.00 to be applied to the outstanding tax balance together with the sum of $100.00 per month beginning March 1, 1980. Although Ms. Matthis purchased the premises at public auction in August, 1979, and paid to the City the purchase price of $3,600.00 together with a payment in lieu of taxes, she was fully aware of the pendency of the petition to vacate and realized that if it was allowed she would not acquire title to the property. In any event, all money received from her will be returned to her in full.

Taking all of the foregoing into consideration, the court is of the opinion that this is an occasion where it will exercise its discretion and grant the petition in order to accomplish substantial justice.

Accordingly, the court orders that the petition to vacate be allowed.

Decree accordingly.


[Note 1] Petitioner has used various names at different times. She was also known as "Daisy Johnson" (her maiden name) and "Belle Graves" (her mother's name).