TLC 72650, 72652 and 73251

September 7, 1988

Essex, ss.



These three actions concern a complaint by Barbara Szczawinski filed to vacate final tax decrees entered in favor of the City of Lynn. In two of the instances, that in Tax Lien Case No. 72650 relating to premises at 61-63 Essex Street, and that in Tax Lien Case No. 72652 relating to the premises at 535 Summer Street, the complaints to vacate the judgments were filed within one year of the date of the entry of the decree foreclosing her right of redemption. In the third case, Tax Lien Case No. 73251, which concerns the premises at 527-529 Summer Street, the final decree was entered on June 24, 1985, and the tax payer failed to move within the period of one year to vacate the judgment as required by G.L. c. 60, §69A. This section provides as follows:

§ 69A. Time for Vacating, etc. of Decree Entered under § 69 by Person Other Than Petitioner.

No petition to vacate a decree of foreclosure entered under section sixty-nine and no proceeding at law or in equity for reversing or modifying such a decree shall be commenced by any person other than the petitioner except within one year after the final entry of the decree if the decree is entered on or after September first, nineteen hundred and forty-five or within one year after said date if the decree was entered prior to said date. If said foreclosure petition was filed for an unoccupied or abandoned building as set forth in sections one and eighty-one A, no petition to vacate a decree of foreclosure entered under section sixty-nine and no proceedings at law or equity for reversing or modifying such a decree shall be commenced by any person other than the petitioner except within ninety calendar days after the final entry of the decree, or within one year of the final entry of the decree, if the decree was entered prior to the effective date of this section. For any decree relating to a property which stands in the name of a deceased person or person under guardianship or conservatorship, a petition may be maintained for reversal or modification of such decree up to one year from the date of decree. (Amended by 1984, 465, § 3, approved Jan. 7, 1985, effective 90 days thereafter.)

The trial was held at the Land Court in all three matters on August 23, 1988. The proceedings were electronically recorded, and the plaintiff was the only witness. Her testimony was unrebutted. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

I will make certain findings as to each particular parcel as well as general findings which apply to all of the property of the tax payer here in controversy. Accordingly, on all the evidence I find and rule as follows:

1. The plaintiff's husband has been convicted of being a book maker and has been fined, but not jailed.

2. The plaintiff now lives on Caressa Terrace in Lynn. She previously lived at 8 Willow Terrace in Swampscott. She formerly worked in the loan department at St. Michael's Credit Union which was located where there presently is an office of the Century Bank at the corner of Summer Street and Western Avenue in Lynn. In May of 1984 state authorities made a "raid on the credit union" since they understood plaintiff's husband was using its facilities for illegal purposes. Thereafter, Massachusetts Share Insurance ran the credit union where the plaintiff continued to work and signed for mail which came to it. However, all such mail, even that addressed to the plaintiff, was delivered to the officer in charge of running the credit union.

3. The plaintiff was indicted by federal authorities for alleged violations of transactions in excess of $10,000, was tried over a period of two months in the spring of 1988, the trial concluded in May, at which she was acquitted.

4. She described her state of mind during this four year period as being a "basket case"; she was under a doctor's care, but she did not consult a psychiatrist. However, she appeared to the Court to be gaunt and extremely nervous and upset. During the travail of recent years, the witness lost 30 pounds and has had physical and emotional problems. At times she has had difficulty functioning. Professionally, she is a nurse.

5. The plaintiff had been described in a newspaper as being a convicted bookie, but the person referred to was her husband's niece.

6. The plaintiff financially is able to pay all sums due the City of Lynn including the taxes, interest and charges, together with reasonable attorney's fees, and is prepared to do so.

7. The complaint in Tax Lien Case No. 72650 concerns the premises at 61-63 Essex Street which were acquired by the plaintiff from Charles V. Carone, et al, by deed dated May 3, 1979 and recorded with Essex South District Deeds in Book 6588, Page 250. The deed described the grantee as living at 3 Light Street in Lynn, but at the trial the plaintiff denied she had ever lived at that address. The premises were taken by the City of Lynn by instrument dated February 28, 1983 and recorded in Book 7083, Page 520. The plaintiff admitted that she had signed the notice from this Department of the filing by the City. The final decree for foreclosure was entered on June 8, 1987 and the present complaint to vacate followed on November 6, 1987 within the statutory period.

8. In Tax Lien Case No. 72652, the premises in question are now known as and numbered 535 Summer Street and adjoin those at the corner of Western Avenue and Summer Street on which the office of the Century Bank and its drive-in teller are situated. The adjoining properties continue to be leased by the plaintiff to the Bank as were those premises described in this tax lien proceeding and that of the third case to be hereinafter discussed. After the entry of the final decree of foreclosure on June 9, 1987, the Bank ceased to pay rent to the plaintiff. The City of Lynn accepted payment in full from the plaintiff after the entry of the decree of foreclosure, but the day following payment the City refunded the sums which it had earlier accepted. When the plaintiff attempted to reverse the decision at the meeting of the public property subcommittee of the city council, she testified that the council members talked among themselves but never permitted her counsel or herself an opportunity to be heard. While the registered mail receipt received by the Court-was signed in the name of the plaintiff, she denied that the signature was hers and it appears not to be.

9. In Tax Lien Case No. 73251, the parcel adjoins that covered by Tax Lien Case No. 72652 and is the lot situated at the corner of Summer Street and Breed's Square, numbered 527-529 Summer Street and comprising a portion of the parking area originally leased to the Bank which has now stopped paying rent to the plaintiff on both of the Summer Street parcels. This taking was made by the City by instrument dated February 28, 1983 and recorded with said Deeds Book 7084, Page 36 and was against a prior owner in the chain of title. The tax was for the tax year 1980, the year in which the premises had been conveyed and possibly the then buyer, not the plaintiff, neglected to make the required payment to the City. The plaintiff acquired title in the fall of 1983, and for unexplained reasons either her counsel did not find the outstanding tax title at the time of the conveyance to her or someone neglected to pay it. The complaint was filed in this Court on August 30, 1984. This was a particularly traumatic time since it followed the so-called "raid" on the credit union. Thereafter, the mail was dealt with as set forth above, and it is unclear whether the plaintiff ever received notice of the proceedings, or if she did if she were able to cope with the problem in view of the pendency of the criminal proceedings.

The Court clearly has discretion to allow complaints to vacate final decrees of foreclosure when they are brought by a party other than the municipality within one year of the entry of the decree. If the moving party is the original petitioner, then, of course, the one year limitation does not apply. The Appeals Court drew a sharp distinction based on the language of the applicable statute in Sharon v. Kafka, 18 Mass. App. Ct. 541 , 543 (1984) as to complaints to vacate filed before or after the one year period. I think it is clear on the basis of my findings, that the plaintiff was incapacitated to such an extent that the judgments should be vacated in the two instances where the plaintiff sought relief within the one year limit. However, under the unusual circumstances of this case as viewed in the light of the practice of having all correspondence delivered to the officer in charge after control of the credit union was assumed by others and the physical and mental turmoil generated in the plaintiff by the events of the past four years and in general fairness, I hereby find and rule that the final decrees in each of the above numbered cases will be vacated upon the payment in each instance to the City of Lynn of all amounts due for taxes, interest, other charges and attorney's fees. I see no reason to treat the cases differently because of the happenstance of the difference in timing.

Counsel for the plaintiff emphasizes that the City has accepted payment from other owners where decrees of foreclosure have been entered. I assume that such payments were accepted in good faith and for reasons the City deemed satisfactory. The municipal authorities, as the Court, treated each case on its merits, but they must be careful to avoid any implication that the decision is based on grounds irrelevant to the merits of the controversy. In the present instance, I must conclude that the City believed the plaintiff's actions to have been tainted by illegality, and it was for this reason the City refused redemption. No criminal behavior has in fact been proven on the part of the plaintiff. If this inference is removed from the proceedings, the cases are reduced to the common denominator of non-payment and inattention to the Land Court proceedings by an individual suffering from the stress of the events outlined above. There is nothing in chapter 60 which disqualifies the plaintiff from being allowed to make the required payments, and I find in my discretion that she is entitled to do so.

Judgment accordingly.