TLC 57965-A

March 4, 1980

Suffolk, ss.

Sullivan, J.


Pursuant to G. L. c. 60, § 69, Barr Shoe Co., Inc. (Barr) has petitioned this court to vacate a final decree entered by default in favor of the City of Chelsea in Tax Lien Case No. 57965; the decree foreclosed Barr's right to redeem under the deed given by the Collector of Taxes for said City dated March 15, 1979 and registered with the Suffolk County Registry District as document no. 344570 and noted on Certificate of Title No. 71534. The premises described in said Certificate of Title were taken by the City on March 15, 1979 for the nonpayment of 1977 real estate taxes. A petition to foreclose all rights of redemption was filed in this court on October 25, 1979. Barr was defaulted for failure to appear or answer, and a final decree was entered on January 23, 1980.

In support of this petition Barr claims that the City's failure to use the "address best known" to the Collector of Taxes in sending to Barr a demand pursuant to G. L. c. 60, § 16 or a notice of the intention to take renders the taking invalid. Barr did, however, receive notice of the petition filed in the Land Court to foreclose Barr's equity of redemption, a copy of which was forwarded to its attorneys who inadvertently failed to file an appearance or answer.

G. L. c. 60, § 69 provides that the court may, in its discretion, vacate a foreclosure decree if the property has not been sold to an innocent purchaser for value. The granting of the petition to vacate rests largely but not entirely in the discretion of the court. Bucher v. Randolph, 307 Mass. 391 , 393 (1940). Such petitions should only be granted, after careful consideration, where required to accomplish justice. Russell v. Foley, 278 Mass. 145 , 148 (1932). Although ordinarily a petition to vacate will not be granted on grounds that could have been raised at the original trial, Lynch v. Boston, 313 Mass. 478 , 481 (1943), it is within the court's discretion to allow the petition. Ryan v. Hickey, 240 Mass. 46 , 48 (1921).

Where, as here, the failure to raise an issue is caused by the inadvertent failure of an attorney, the Supreme Judicial Court has enunciated the following rule:

It would not be the exercise of sound discretion to vacate a judgment merely to relieve a party from the consequence of intelligent or intentional carelessness or laxity in the observance of established principles on his own part or that of his attorney. There must appear some merit in the contentions subsequently to be made ... by the party invoking the exercise of that discretion .... The petitioner in such a proceeding must show that he has a substantial and meritorious cause which requires further inquiry or trial in the courts. Such a cause means one worthy of judicial investigation because raising a material question of law meriting discussion and decision, or a real controversy as to essential facts arising from conflicting or doubtful evidence.

Russel v. Foley, supra.

In its petition Barr has raised substantial questions as to the validity of the City's tax taking. Because the fault of its attorneys should not preclude Barr from raising these issues, the ends of justice require the reopening of the litigation, particularly in view of the rapidity with which the foreclosure proceeding was conducted. The decree foreclosing Barr's right of redemption is therefore vacated, and the court grants to Barr the right to file an answer to the Petition to Foreclose within twenty days from the date of this decision.

Decree accordingly.