TLC 71252

November 25, 1992

Hampden, ss.



On October 9, 1992 the defendant Rita S. Kolaczyk, acting through her guardian, Kristen Kolacyczyk, filed a motion to remove a default judgment. The Court has treated the motion as a petition to vacate the final judgment entered in the above numbered tax lien case. I deny the petition.

A hearing was held at the Land Court on October 3, 1992 at which counsel for the guardian, for the City of Worcester and for the Intervenor, Stepping stone Realty, Inc. each argued the proper course for the Court to take. No evidence was introduced, and the parties rely on affidavits submitted to the Court and their oral arguments.

On all the evidence I find and rule as follows:

1. The Land Court entered a final judgment on April 21, 1992 which forever foreclosed and barred all rights of redemption under the deed given by the Collector of Taxes for the City of Worcester, in the County of Worcester, dated May 28, 1982 and recorded with Worcester District Deeds, Book 7508, Page 256.

2. The taking had been made by the City by an instrument of taking dated May 28, 1982 and recorded on July 13, 1982 in Book 7508, Page 256, for the non-payment of the 1981 real estate taxes in the amount of $1339.88.

3. The city filed its complaint to bar the rights of redemption on January 27, 1984, and service was had on the defendant by certified mail. No answer was filed in the proceedings. The city took no further action pursuant to the taking and the filing of the complaint, partly because of administrative changes in the city, presumably also because the booming economy did not present the economic problems which cities and towns face today.

4. A motion for general default having been allowed on July 10, 1985, a final judgment was entered by this Court on April 21, 1992 upon the city's motion.

5. Thereafter the Housing Court Department, Worcester County Division entered findings and orders that the defendant immediately vacate the premises at 75 South Street in Worcester, the premises being unfit for human habitation and posing an immediate threat to the health and safety of the defendant. The city also was ordered to provide relocation assistance and to board and secure the premises in order to prevent reoccupation and to render the premises secure.

6. The City thereafter sold the premises at a public auction to the intervenor Stepping Stone Realty, Inc. for the sum of $33,000. Subsequent to its purchase SSR has expended $28,492.94 in rehabilitating the premises.

7. At the time of the Land Court proceedings the city had no knowledge of the possible incompetency of the defendant. It was in the period between the entry of the final decree in the Land Court foreclosure and the auction that the defendant's daughter Kristenapproached the city to inquire about purchasing the premises and was informed that only the taxpayer could redeem the property since the daughter was to go on National Guard duty, the auction was postponed.

8. The defendant's daughter Kristen sought a temporary guardianship of the defendant on June 22, 1992, but the Worcester Probate Court deferred action on the guardianship until the report of a guardian ad litem was completed as well as a medical evaluation. Subsequently on or about July 29, 1992 Kristen Kolaczyk sought a commitment of the defendant pursuant to the provisions of G. L. c. 123, § 12 and the defendant was committed to Worcester State Hospital for ten days. A subsequent hearing extended the commitment. Finally the daughter was appointed permanent guardian on September 11, 1992, Worcester Probate Court Docket No. 92P-1801GI .

The determinative date governing the validity of the tax title decree is April 21, 1992 (if not the earlier date of the general default). The year from the entry of the decree had not expired when the defendant sought to have the decree vacated so there is no statutory bar to the exercise of the court's discretion if it appears warranted. The expiration of the year generally does prevent the vacation of the decree other than by the petitioner, customarily a municipality, General Laws c. 60 § 69A. The statute specifically authorizes the entry or the maintenance of a petition for reversal or modification of the decree up to a year from the date thereof if the property stands in the name of a deceased person or person under guardianship or conservatorship. However, at the time the Land Court final decree was entered, the taxpayer was not under guardianship and the city had no knowledge of her incompetency which in any event has not been shown in either 1985 or April of this year. In Sharon v. Kafka, 18 Mass. App. Ct. 541 (1984) Justice Dreben in writing for the Appeals Court stated:

" Incapacity or mental illness might serve as a ground for a judge's exercise of discretion to vacate a judgment where a petition is brought within the one-year limit. See Herlihy v. King, 310 Mass. 457 , 459 (1941). Under the statutory language we think the judge here was given no power to exercise such discretion after that time. See Lancaster v. Foley, 15 Mass. App. Ct. 967 , 969, (1983)."

Justice Dreben went on to say however that there might be circumstances which would justify vacating the decree even after the expiration of the year such as a denial of due process of law. In discussing the rule of Covey v. Somers 351 U. S. 141, 146-147 (1956) she stated that if there was factual showing that the petitioner was 'incompetent' and 'without the protection of a guardian', and that 'the town authority knew her to be an unprotected incompetent' when notice was sent to her, the vacating of the decree on due process grounds might be permitted.

In the present case there is no evidence that the City of Worcester or its personnel knew the taxpayer to be incompetent at the time the complaint was filed in the Land court at the time of the general default or at the time the final decree was entered. The property was sold to SSR on August 22, 1992 at which time there apparently was a temporary commitment of the decedent to the Worcester State Hospital, but no permanent guardian was appointed until the following month. There is nothing in the record before me to suggest that the City of Worcester had any knowledge at any crucial period of time which requires the vacating of the decree for due process reasons. It is worthy to note that § 69 of chapter 60 which allows the vacation of a decree at the discretion of the court upon the petition filed by the petitioner at any time has an exception for the intervening rights of an innocent purchaser for value. The same rule should apply here where there has been no showing that at the time of the auction. The bona fide purchaser for value had any knowledge of incompetency.

The Intervenor having expended nearly $61,500 is entitled to be protected. Accordingly, I find and rule that the city of Worcester had no knowledge at the time the final decree was entered by the Land Court on April 21, 1992 that the defendant taxpayer was incompetent. The title passed absolutely to the city upon entry of the decree, and events which occurred thereafter do not compel the vacation of the decree. If there were no bona fide purchaser for value, I might exercise my discretion to do so upon a firm showing that the guardian would be in a position to obtain the financing to reimburse the city but because of the rights of SSR I find and rule that it would be inequitable to do so. The petition to vacate the final decree is denied.