TLC 69993

September 17, 1987

Suffolk, ss.



This cause came on to be heard on June 19, 1987 on the respondent's petition under G.L. c. 60, §69A to vacate a final decree issued on January 31, 1986 foreclosing the respondent's right of redemption of a tax foreclosure. The respondent asks that because of a denial of due process she be allowed to file a late answer and that the foreclosure decree be vacated.

I find as follows:

1. On January 5, 1980, the respondent and her son, Reverend Claude James, purchased the property at 9 Inwood Street in Dorchester, Massachusetts, as recorded in Suffolk County Registry of Deeds in Book 9354, Page 145.

2. On September 22, 1983, the City of Boston filed a petition to foreclose on the parcel at 9 Inwood Street for nonpayment of real estate taxes.

3. The title examiner's report filed March 6, 1984 described the property as owned by Reverend Claude James and Gladys James, as joint tenants, both of 4 Waterlow Street, Dorchester.

4. Service by certified mail was unsuccessfully attempted on both Reverend Claude James and Gladys James at 400 Columbus Avenue, Dorchester and at 9 Inwood Street, Dorchester, throughout the fall of 1984.

5. A January 22, 1985 City of Boston Law Department letter acknowledged unsuccessful service on the Reverend Claude James and Gladys James and informed this Court that further investigation had now revealed that the parties could be served at 4 Waterlow Street, Dorchester and requested special notice at the 4 Waterlow Street address.

6. A May 21, 1985 City of Boston Law Department letter to this Court acknowledged unsuccessful service at the 4 Waterlow Street address and also disclosed that Claude James had died on November 26, 1966. This letter requested sheriff service be made on Gladys James at the 4 Waterlow Street address.

7. On July 15, 1985, sheriff service was made on Gladys James at the 4 Waterlow Street address by leaving at her last and usual place of abode an attested copy of the Petition for Foreclosure.

8. A Motion for General Default was filed by the City of Boston and allowed on September 26, 1985.

9. On January 31, 1986, a final decree was issued foreclosing the respondent's right of redemption on the property at 9 Inwood Street.

10. On June 15, 1987, the respondent filed motions to vacate the final decree to allow a late filed answer.

11. In March of 1984 when the title examiner's report was filed, service could have been successfully made by the City of Boston at 4 Waterlow Street as listed in the report, however, it was not until ten months later, in January of 1985, that the City of Boston notified the Court of the 4 Waterlow Street address. By the time service was made at 4 Waterlow Street in the spring of 1985, the respondent and her ailing son, Reverend Claude James had moved to Pennsylvania on the advice of a doctor.

12. The City of Boston relied on a directory listing Claude James and Gladys James as husband and wife and upon further inquiry determined that Claude James, the respondent's husband, had died in 1966. A closer inspection would have demonstrated the existence of another Claude James as this property was purchased by the Reverend Claude James and his mother in 1980, fourteen years after the death of the Claude James the City was attempting to serve.

13. Reverend Claude James, son of the respondent Gladys James, died in Pennsylvania on August 28, 1986, never having received notice of the foreclosure proceedings. The City made no attempts after May 21, 1985 at service on the Reverend Claude James.

14. The respondent, Gladys James, the sole owner after her son's death in August of 1986, has never received actual notice of these proceedings.

15. Service by publication was never made.

General Laws c. 60, §69A provides:

No petition to vacate a decree of foreclosure... shall be commenced... except within one year after the entry of the decree....

However, the Supreme Judicial Court has acknowledged that under certain circumstances a decree issued pursuant to c. 60, §69A can be vacated after the one year period. Sharon v. Kafka, 18 Mass. App. Ct. 541 (1984). "If there was a denial of due process, the stricture of §69A would not apply." Id. at 544. The United States Supreme Court and Massachusetts Courts have determined due process to be met when the form of notice is "reasonably calculated to give... actual notice of the proceedings and an opportunity to be heard." (Citations omitted), Commonwealth v. Olivo, 369 Mass. 62 , 68 (1975).

In consideration of the foregoing, I rule that the respondent was not afforded due process and accordingly if the respondent pays all unpaid taxes, interests and costs to the City of Boston within thirty days of this Judgment or any Judgment after final appeal, the final decree of foreclosure shall be vacated upon notice of such payment by this Court.

Judgment accordingly.