CITY OF TAUNTON v. MICHAEL O'DONNELL, TRUSTEE of BOSTON FINANCIAL TRUST.

This is a tax foreclosure action on a parcel of real property in Taunton, Massachusetts. On April 19, 2012, the City of Taunton (City) filed its Complaint to Foreclose Tax Lien. Michael O’Donnell, Trustee for Boston Financial Trust (O’Donnell), filed his Tax Lien Answer on June 7, 2013. The City filed its Motion for General Default and Affidavit of Legal Fees on July 24, 2013. On July 24, 2013, a Tax Lien hearing and a Motion for Legal Fees hearing were scheduled for August 1, 2013, but on July 31, 2013, both hearings were continued to August 8, 2013, when both hearings were again continued to August 15, 2013. On August 15, 2013, the hearings were held and O’Donnell was defaulted in open court for failure to appear and defend. Notice of entry of default against O’Donnell was sent to O’Donnell and to counsel for the City. On December 6, 2013, the City’s Motion for General Default was allowed and final judgment was entered against O’Donnell, foreclosing his right to redeem, on December 18, 2013 (Judgment). O’Donnell filed his Motion to Vacate Judgment on December 18, 2013. The court entered its Order Denying Motion to Vacate on January 31, 2014. As one, but not the sole, reason for denying the Motion to Vacate Judgment, the Order stated that “[d]uring that four-month period [between the entry of default and the entry of the Judgment O’Donnell] made no motion to remove the default.”

On or about March 13, 2014, a pleading entitled “Motion to Remove Default” that bore a date stamp of August 21, 2013 (the August 2013 Motion to Remove Default) and a pleading entitled “Affidavit to Remove Default” were called to the court’s attention. Both pleadings were purportedly misfiled with another tax matter and were not entered on the docket in this case. No certificate of service for these pleadings was filed, and neither was served upon the City.

By an order dated March 13, 2014, the August 2013 Motion to Remove Default and the Affidavit to Remove Default were docketed in this action as of August 21, 2013, and O’Donnell was given leave to file and serve upon the City a Motion for Reconsideration of the Motion to Vacate Judgment within ten days of the date of the order. The City was given ten days after service of the Motion for Reconsideration to file its opposition. Pursuant to Land Court Rule 9, after the filing of the Motion for Reconsideration and any opposition, the court reserved the option to either decide the Motion for Reconsideration without hearing or set the Motion down for a hearing that may, in the court’s discretion, include the taking of further evidence.

On March 25, 2014, O’Donnell filed his “Motion to Remove Default” and his Affidavit in Support of Motion to Remove Default. Pursuant to its March 13, 2014 order, the court treats the “Motion to Remove Default” as a motion for reconsideration under Land Court Rule 9 (Motion for Reconsideration). On April 7, 2014, the City filed City of Taunton’s Opposition to Defendants’ Motion to Reconsider (Entitled “Motion to Remove Default”) and Motion to Strike Defendants’ Motion to Remove Default That Was Purportedly Filed on August 21, 2013 (Opposition and Motion to Strike). In its Opposition and Motion to Strike, the City moved, pursuant to Mass. R. Civ. P. 77(c), to strike the August 2013 Motion to Remove Default and the Affidavit to Remove Default.

By an order dated April 11, 2014, the court held that under Rule 77(c), it was obligated to determine the question raised by the City, namely, whether the August 2013 Motion to Remove Default and the Affidavit to Remove Default were really filed on August 21, 2013 or at any time before the court’s January 31, 2014 Order Denying Motion to Vacate. Therefore, the court set down O’Donnell’s Motion for Reconsideration and the City’s Motion to Strike for an evidentiary hearing.

At a status conference on April 25, 2014, the court determined that the two issues on which it would hear evidence were (a) the City’s claims under Mass. R. Civ. P. 77(c) challenging the validity of the filing of the pleading entitled “Motion to Remove Default” that bore a date stamp of August 21, 2013 and a pleading entitled “Affidavit to Remove Default,” and (b) the dispute between the parties as to the alleged June 11, 2012 payment of $20,000 set forth in the Motion for Reconsideration. The remaining issues set forth in the Motion for Reconsideration would be decided without hearing. The court also determined that no Land Court personnel would be deposed or called to testify and no internal Land Court communications would be discoverable; copies of external emails between Land Court personnel and the parties were made part of the case file and available for examination. The objections of both parties were noted for the record. The court also disclosed that the original versions of the pleadings entitled “Motion to Remove Default” that bore a date stamp of August 21, 2013 and “Affidavit to Remove Default” had disappeared from the case files, but that copies remained in the files. On May 6, 2014, the court stipulated to certain facts, which will be incorporated into the factual findings below. By its Order Allowing in Part and Denying in Part Plaintiff City of Taunton’s Motion for Discovery and Allowing Defendant’s Motion for Clarification and Discovery, dated May 22, 2014, the court stipulated to certain additional facts, which will be incorporated into the factual findings below.

The court held an evidentiary hearing and heard testimony on September 3, 2014, September 11, 2014, September 18, 2014 (which was continued due to a medical emergency), and October 17, 2014. Exhibits 1 through 55 were marked. Stipulated facts were read into evidence. The court heard sworn testimony from Roger W. Cochran, Jr., Paul Cochran, Alexis Eon, Katherine Grein, City of Taunton Assessor, Julie Bertram, City of Taunton Assistant Treasurer/Collector, Shannon Valentino, City of Taunton Law Department, Michael O’Donnell, Nancy McCann, and Edward J. Walsh, City of Taunton Chief of Police. The court also determined that all pleadings and affidavits previously filed in this action would be treated as part of the record of this evidentiary hearing. The court heard closing arguments. Both parties were given the opportunity to file proposed findings; the City filed Plaintiff’s Proposed Findings of Fact and Conclusions of Law on November 3, 2014. These findings and order follow.

Findings of Fact

Based on the exhibits, stipulated facts, pleadings, testimony, and its assessment of credibility, the court makes the following findings of fact.

1. This action concerns real property located at 115 Tremont Street, in Taunton, Massachusetts (the Property). On April 19, 2012, the City of Taunton (City) filed its Complaint to Foreclose Tax Lien. The Complaint alleged that the property was taken by the City on December 18, 2007, and named Reintegration Services, Inc., fka Baystate Affordable Housing, as a person having interest in the property. The City filed its Motion to Amend on January 4, 2013, requesting that its Complaint be amended by striking “Reintegration Services, Inc. fka Baystate Affordable Housing, Inc.” and substituting “Boston Financial Trust,” as a person having interest in the property. The Motion to Amend was allowed on March 5, 2013. Defendants Commonwealth of Massachusetts, Taunton Municipal Lighting, and Boston Financial Trust were all successfully served by certified mail between March 21, 2013, and April 8, 2013. Citation by Deputy Sheriff on Michael O’Donnell, Trustee for Boston Financial Trust, was issued on May 17, 2013, and returned on June 6, 2013. Michael O’Donnell, Trustee for Boston Financial Trust (O’Donnell), filed his Tax Lien Answer on June 7, 2013. Docket.

2. The City filed its Motion for General Default and Affidavit of Legal Fees on July 24, 2013. On July 24, 2013, a Tax Lien hearing and a Motion for Legal Fees hearing were scheduled for August 1, 2013, but on July 31, 2013, both hearings were continued to August 8, 2013, when both hearings were again continued to August 15, 2013. On August 15, 2013, the hearings were held and O’Donnell was defaulted in open court for failure to appear and defend. Notice of entry of default against O’Donnell was sent to O’Donnell and to counsel for the City. Docket.

3. O’Donnell knew of the entry of the default as of August 19, 2013, after he spoke to John Harrington of the Land Court. He spoke again to Mr. Harrington on August 20, 2013, either in person at the Land Court or by phone, and asked Mr. Harrington how the default could be removed. Mr. Harrington said he would check. Exh. 19; Michael O’Donnell Testimony.

4. On August 23, 2013, Mr. Harrington spoke to and emailed O’Donnell, advising O’Donnell that Deputy Recorder Ellen M. Kelley had said that he should advise O’Donnell “that in order to have the default which entered in this case against you on August 15, 2013 [removed], you must file a motion to remove the default. A copy of this motion should be mailed by first-class mail to plaintiff’s counsel no later than ten days before the day you have selected for the hearing of the motion.” Mr. Harrington also left a voicemail for O’Donnell. Exh. 17, 18; Michael O’Donnell Testimony.

5. That same day at 3:55 pm, O’Donnell sent an email to Mr. Harrington complaining about the default. In the email, he did not state that he had filed any motion to remove the default. Exh. 18; Michael O’Donnell Testimony.

6. On August 26, 2013, Mr. Harrington and O’Donnell exchanged emails about the default. In that exchange, O’Donnell did not state that he had filed any motion to remove the default. Exh. 18; Michael O’Donnell Testimony.

7. On December 6, 2013, the City’s Motion for General Default was allowed. Final judgment was entered against O’Donnell, foreclosing his right to redeem, on December 16, 2013 (Judgment). Docket; Michael O’Donnell Testimony.

8. The City entered the Property on December 17, 2013 and began removing the items at the Property. Exh. 19; Michael O’Donnell Testimony.

9. On December 18, 2013, O’Donnell filed his Motion to Vacate Judgment and Emergency Motion for Restraining Order, each accompanied by separate Affidavits of Michael O’Donnell. The court issued a temporary restraining order and set the preliminary injunction motion down for an evidentiary hearing. Docket, Exhs. 19, 20; Michael O’Donnell Testimony.

10. The court held the evidentiary hearing on O’Donnell’s Emergency Motion for Preliminary Injunction on January 6, 2014. The evidence at the hearing was directed to whether there were tenants on the Property. Docket; Order Denying Motion for Preliminary Injunction.

11. On January 14, 2014, O’Donnell filed his Memorandum in Support of Motion for Injunction along with the Affidavit of Michael O’Donnell in Support of Motion of Injunction, and his Memorandum in Support of Motion to Vacate Decree along with the Affidavit of Michael O’Donnell in Support of Motion to Vacate Decree, to which he attached a copy of the docket in this action. In neither of these affidavits did O’Donnell state that he had filed a motion to remove the default in August 2013, even though no such motion appeared on the docket. Docket; Exhs. 21, 22; Michael O’Donnell Testimony.

12. The court issued its Order Denying Motion for Preliminary Injunction and its Order Denying Motion to Vacate on January 31, 2014. In the Order Denying Motion to Vacate, the court stated as one of the grounds for denial that “[d]uring that four-month period [between entry of default and the Judgment, O’Donnell] made no motion to remove the default.” Order Denying Motion to Vacate; Michael O’Donnell Testimony.

13. On February 10, 2014, O’Donnell’s Motion to Remove Default and the Affidavit of Michael O’Donnell in Support of Motion to Remove Default were filed. Although filed on February 10, 2014, each of these is dated January 28, 2014. The Motion to Remove Default states: “Boston Financial Trust was under the impression that the Default was removed by the Sessions Clerk.” O’Donnell’s Affidavit states: “I, and Boston Financial Trust believed the Default entered on August 15, 2013 was removed.” Neither document mentions the filing of a motion to remove the default in August 2013. Docket; Exhs. 13, 14, 23, 24; Michael O’Donnell Testimony.

14. The City’s Law Department received copies of the Motion to Remove Default and the Affidavit of Michael O’Donnell in Support of Motion to Remove Default on February 11, 2014. These copies each bore original signatures of O’Donnell. Shannon Valentino, Legal Assistant in the Law Department, date stamped each of these copies. The envelope in which these copies were delivered bore a postmark of January 29, 2014. The two date-stamped copies along with the envelope in which they were delivered to the Law Department were marked as exhibits. Exhs. 12, 13, 14; Shannon Valentino Testimony.

15. On February 11, 2014, the court denied the Motion to Remove Default. The docket entry for the denial states: “Pursuant to Land Court Rule 6, the Court decides this motion without hearing. The Motion to Remove Default is DENIED. These exact issues were raised and decided in the defendant’s Motion to Vacate Judgment, which was denied on January 31, 2014.” Docket; Exh. 23.

Motion to Remove Default and Affidavit

16. On February 12, 2014, a person identifying himself as “Ed Cochran” appeared at the front desk of the Land Court and requested the file in tax foreclosure case 12 TL 144137, Town of Winchendon v. Roger W. Cochran, Jr. (the Cochran Action). This person completed the Land Court’s form for requesting files. That form states that the person requesting the file was “Ed Cochran,” with an address of 19 Vine Street, Winchendon, the address of the property that is the subject of the Cochran Action. The request form listed a telephone number of 774-432-1436. Exh. 1.

17. On February 26, 2014, a woman identifying herself as the niece of Roger W. Cochran, Jr. appeared at the Land Court and spoke to Mr. Harrington. Mr. Harrington went through the Cochran Action file. He discovered in the file a pleading for this action entitled “Motion to Remove Default,” bearing an original signature of O’Donnell, dated August 20, 2013, and bearing a Land Court date stamp of August 21, 2013. Stapled to this motion was a document entitled “Affidavit to Remove Default,” also signed by O’Donnell (although no one can recall if it bore an original signature) and dated August 20, 2013, but bearing no date stamp. Neither document included a certificate of service. May 6, 2014 Stipulation; May 22, 2014 Stipulation; Exhs. 15, 16, 26.

18. It is the protocol of the Land Court to date and time stamp each document that would be considered filed, whether or not such document is stapled to another document. The Land Court does not date and time stamp attachments, exhibits, or certificates of service relating to one document, whether or not these are stapled to the document. May 22, 2014 Stipulation.

19. On February 27, 2014, at 9:56 am, O’Donnell emailed Mr. Harrington. In the email, O’Donnell stated, in relevant part: I received a call from someone that was at Land Court with you the other day. She was saying that I filed something in her uncles Tax Lien case, and wanted to know my interest in it. I believe she said it was in Winchester. This is the second time that I received a call about this, the other time was a few months ago, from her brother I believe. She said that she was going to send me a copy of the information. I do not have anything in the area. And I believe that Boston Financial doesn’t either. Do you have the case number?

Exh. 25; Michael O’Donnell Testimony.

20. That same day at 3:41 pm, Mr. Harrington emailed O’Donnell, describing his conversation of the day before and informing O’Donnell that the Motion to Remove Default and the Affidavit to Remove Default would be filed with this case. Exh. 26; Michael O’Donnell Testimony.

21. On March 4, 2014, O’Donnell sent Mr. Harrington an email responding to Mr. Harrington’s February 27th email, stating, in relevant part: “I have been sick and did not make it back in there. I am trying to head in there today. Thank you for straightening that out. The fax that she sent me is dated November 2013. The motion papers that she faxed is not time stamped like mine, why is that?” O’Donnell did not produce the fax referred to in this email at his deposition, even though it was requested, and he did not produce it at the evidentiary hearing. He testified that he gave a copy of the fax to Mr. Harrington; no such fax appears in the file of this case. The court does not credit O’Donnell’s testimony and finds that this fax does not exist. Exh. 27; Michael O’Donnell Testimony.

22. The Motion to Remove Default and the Affidavit to Remove Default were docketed in this action as of August 21, 2013, the date of the date stamp, as it is the Land Court’s practice to docket any document as of the date that it was date stamped, whether the document is actually docketed on that date or on a later date. On March 25, 2014, Land Court personnel discovered that that the original Motion to Remove Default and the original Affidavit to Remove Default were missing from the file in this case. There remained copies. Docket; May 6, 2014 Stipulation; May 22, 2014 Stipulation.

23. O’Donnell testified that he filed the Motion to Remove Default and the Affidavit to Remove Default with the Land Court on August 21, 2013. As discussed below, the court does not credit this testimony. The court does credit O’Donnell’s testimony that he did not serve the Motion to Remove Default and the Affidavit to Remove Default on the City, nor did he ever mark the motion up for hearing. Michael O’Donnell Testimony.

24. Roger W. Cochran, Jr., the defendant in the Cochran Action, and his brother Paul Cochran both testified. Roger Cochran has lived in the house at 19 Vine Street for more than 40 years. Paul Cochran lives about a mile to a mile and a half from his brother Roger, and sees him at least once a week. Each of them testified that they have no relative named “Ed Cochran,” and no one named “Ed Cochran” has ever lived with Roger W. Cochran, Jr. Roger Cochran further testified that he never discussed the Cochran Action with any of his relatives. The court credits the testimony of Roger W. Cochran, Jr. and Paul Cochran. Roger W. Cochran, Jr. Testimony; Paul Cochran Testimony.

25. Alexis Eon testified. She has been employed by Verizon Wireless for 20 years, with the current title of Analyst, Executive Relations. Among her duties is to act as keeper of the records for Verizon Wireless in response to subpoenas. She responded to a subpoena from the City. For the period January 1, 2012 to the date of the evidentiary hearing, Verizon Wireless does not have records of a customer named Ed Cochran at 19 Vine Street, Winchendon. The telephone number on the request form filled out by the person identifying himself as Ed Cochran is not an active Verizon Wireless telephone number issued to a customer. Instead, it is an internal routing number that is never issued to a customer. No Verizon Wireless customer can make a call using that number or receive a call at that number. The court credits Ms. Eon’s testimony. Exhs. 1, 2; Alexis Eon Testimony.

26. The court finds that the person who obtained the file in the Cochran Action on February 12, 2014 was not named Ed Cochran and is not a relative of and does not live with Roger W. Cochran, Jr. This person provided a false name, address, and telephone number on the request form.

27. O’Donnell denied that he sent someone to the Land Court to pose as Ed Cochran. Michael O’Donnell Testimony. The court does not credit his testimony.

28. The court further finds that the woman who identified herself to Mr. Harrington as the niece of Roger W. Cochran, Jr. on February 26, 2014 was not truthful; she is not Mr. Cochran’s niece.

29. O’Donnell denied that he sent someone to the Land Court to pose as the niece of Roger W. Cochran, Jr. Michael O’Donnell Testimony. The court does not credit his testimony.

30. With the Motion for Reconsideration, O’Donnell submitted his Affidavit in Support of Motion to Remove Default, dated March 20, 2014 (the March 2014 Affidavit). O’Donnell testified that Exhibit E to the March 2014 Affidavit is a copy of the August 2013 Motion to Vacate Judgment. The court does not credit O’Donnell’s testimony. Although the text of Exhibit E is identical to the text of the Motion to Remove Default found in the Cochran Action file, the documents have significant differences. There is a space between the caption and title on the Motion to Remove Default; there is no space between the caption and title on Exhibit E. The space between the text and the signature block on Exhibit E is greater than that space on the Motion to Remove Default. Finally, no telephone number appears on the Motion to Remove Default, but there is a telephone number written in hand on Exhibit E. The Court finds that Exhibit E is not a true and correct copy of the Motion to Remove Default. Exhs. 9, 15; Michael O’Donnell Testimony.

31. Shannon Valentino testified. She is a Legal Assistant with the City’s Law Department. One of her duties is to get the mail sent to the Law Department. The Law Department has a mailbox in a public area off the main lobby of City Hall. The mailbox has no lock or cover. Her daily routine is to walk to the mailbox, take the mail, return to her office, open the mail, and immediately date-stamp the contents. Shannon Valentino Testimony.

32. As part of discovery for this evidentiary hearing, the City noticed O’Donnell’s deposition for July 7, 2014. O’Donnell did not attend the deposition. On July 8, 2014, Ms. Valentino opened an envelope addressed to the Law Department. This envelope had a printed return address for Rockland Trust that was crossed out by hand and under which was written “BFT c/o 73 Main St Taunton MA.” The envelope appeared to bear postage from a postage meter dated June 28, 2014, in red ink, and a United States Postal Service (USPS) cancellation in black ink with a date that appears to be either June 26 or 28, 2014. Inside was a letter from O’Donnell to counsel for the City dated June 28, 2014. The letter read: “Attorney Buffington: It appears that you are attempting to Depose me. The notice does not comply with Massachusetts Rules of Civil Procedure. Please be advised that I am unavailable on july 7th. I am available on July 1,2, or 3.” O’Donnell testified that he mailed this letter to the Law Department. Exhs. 10, 11; Shannon Valentino Testimony; Michael O’Donnell Testimony; Plaintiff’s Motion for Sanctions for Failure of Michael O’Donnell to Attend His Own Deposition.

33. Ms. Valentino date-stamped the letter, and also saved and date-stamped the envelope. She saved and date-stamped the envelope because it appeared dirty and had what appeared to be multiple postmarks. She didn’t know if it had come off the floor. The court credits Ms. Valentino’s testimony. Exhs. 10, 11; Shannon Valentino Testimony.

34. Nancy McCann testified. She is a forensic handwriting and document examiner. She has her own business, McCann Associates, 223 Commonwealth Avenue, Boston. She has been trained to examine all aspects of documents, including their authenticity. She has been engaged in this profession for 20 years. She apprenticed with Joan McCann, Document Examiner, from 1992 to 1994, was a Senior Associate from 1994 to 1999, and became a partner in 1999. She has passed the Level I and Level II tests of the Association of Forensic Document Examiners, has 240 hours of seminar/classroom instruction between 1993 and the present, and has taken other seminars. She is a member of the Association of Certified Fraud Examiners and the Association of Forensic Document Examiners. She has taught multiple seminars and courses for law schools, lawyers, and law enforcement. She has testified multiple times in state and federal courts in Massachusetts, Rhode Island, Vermont, and Maine. The court credits her testimony and recognizes Ms. McCann as an expert witness in the field of document examination and authentication. Exh. 32; Nancy McCann Testimony.

35. Ms. McCann was retained by the City in April 2014 to examine the copy of the Motion to Remove Default, in particular the August 23, 2013 date stamp on the copy. She compared that document (marked as Exhibit 15) with exemplars of original date stamps from each of the four date-stamp machines at the Land Court (marked as Exhibits 33, 34, 35, and 36). She also compared the date stamp on the Motion to Remove Default with the date stamps on other documents filed by O’Donnell in this action. Exhs. 8, 9, 15, 19, 20, 21, 24, 33, 34, 35, 36; Nancy McCann Testimony.

36. Ms. McCann was not able to examine the ink on the date stamp on the Motion to Remove Default, as the original copy had disappeared and was not available. She compared the letters, font styles, and location on the page of the date stamp on the Motion to Remove Default to those of the date stamps on other uncontested documents and on the exemplars. She is familiar with the date stamp machines used by the Land Court, and testified that those machines only allow date stamps in a fixed position. Exhs. 8, 9, 15, 19, 20, 21, 24, 33, 34, 35, 36; Nancy McCann Testimony.

37. Based on her examination of the Motion to Remove Default, the original date stamp exemplars, and the comparison documents, she concluded that the placement on the page of the date stamp on the Motion to Remove Default is not consistent with where the Land Court date stamp machines place date stamps on a page. The stamp on the Motion to Remove Default is placed lower on the page than any of the date stamp examples—it is approximately 7 centimeters from the top of the page to the bottom of the stamp on the Motion to Remove Default, while the original exemplars average 4 centimeters from top of page to bottom of stamp. It is possible to scan an image of a date stamp onto the page, but because she did not have the original Motion to Remove Default, she could not compare the ink on the date stamp on that document. The court credits Ms. McCann’s testimony. Exhs. 8, 9, 15, 19, 20, 21, 24, 33, 34, 35, 36; Nancy McCann Testimony.

38. Ms. McCann was also asked to examine the envelope that was delivered to the City’s Law Department in July 2014 and that O’Donnell testified that he sent, marked as Exhibit 11 (the July 2014 envelope) and the envelope with the January 29, 2014 USPS stamp, marked as Exhibit 12, in which O’Donnell sent the Law Department his Motion to Remove Default and Affidavit, dated January 28, 2014, and that the City received on February 11, 2014 (the January 2014 envelope). In particular, she was asked to determine the authenticity of the Pitney Bowes postage meter stamp and the USPS cancellation stamp on the July 2014 envelope and the authenticity of the USPS stamp on the January 2014 envelope. Exhs. 11, 12, 13, 14; Nancy McCann Testimony.

39. Ms. McCann compared the two envelopes to eight exemplar envelopes that she randomly pulled from her own mail that bore Pitney Bowes and USPS stamps. The comparison envelopes were placed in two plastic sleeves which were marked as Exhibits 37 and 38. She examined the Pitney Bowes and USPS stamps on the January and July 2014 envelopes and on the exemplar envelopes under a stereoscopic microscope at 15x to 60x magnification. Using the microscope, she compared the ink on the Pitney Bowes and USPS stamps on the January and July 2014 envelopes to the ink on the Pitney Bowes and USPS stamps on the exemplar envelopes. Exhs. 11, 12, 37, 38; Nancy McCann Testimony.

40. Her examination disclosed that the ink on the stamps on the exemplar envelopes, when viewed under a microscope, is solidly-colored red or black. This is consistent with the envelopes having been run through a Pitney Bowes machine or the USPS cancelling machine, both of which she is familiar with, and both of which imprint their respective stamps with ink. Exhs. 39, 40, 41, 42; Nancy McCann Testimony.

41. When viewed under a microscope, the ink on the Pitney Bowes and USPS stamps on the January and July 2014 envelopes was different. Magnified, the ink on those stamps separated into a series of colored dots. These dots are consistent with an image created by an inkjet printer. An inkjet printer creates color images, including shades of red and black, by spraying dots of four different colors, black, cyan, magenta, and yellow, in combinations that, combined together, create an image in the desired color. Exhs. 43, 44, 45, 46; Nancy McCann Testimony.

42. Based on this examination and her professional experience, Ms. McCann reached the opinion that the Pitney Bowes stamp and the USPS stamp on the July 2014 envelope and the USPS stamp on the January 2014 envelope were not placed there by a Pitney Bowes postage meter or by the USPS, but are consistent with an image created on a computer and then scanned or printed onto the two envelopes with an inkjet printer. Nancy McCann Testimony. The court credits Ms. McCann’s testimony and opinion.

43. Based on this evidence, the court finds that O’Donnell created a back- dated USPS cancellation stamp on the January 2014 envelope and delivered it or had it delivered to and placed in the City Law Department’s mail box in an attempt to give the City the false belief that he served the Motion to Remove Default and the Affidavit of Michael O’Donnell in Support of Motion to Remove Default not on February 11 or 12, 2014, but on January 29, 2014, before the court issued its Order Denying Motion to Vacate on January 31, 2014.

44. Based on this evidence, the court finds that O’Donnell created a back- dated Pitney Bowes postage meter date and USPS cancellation stamp on the July 2014 envelope and delivered it or had it delivered to and placed in the City Law Department’s mail box in an attempt to give the City the false belief that he mailed his letter to the Law Department before the date of his July 7, 2014 deposition.

45. Edward J. Walsh testified. He is the Chief of Police for the City of Taunton. He has been a police officer in Taunton for 25 years and chief for five years. He has also spent 27 years in military intelligence.

46. Chief Walsh compared the August 21, 2013 date stamp on the Motion to Remove Default, Exhibit 15, to approximately 30 other documents stamped with a Land Court date stamp that were in the City Law Department files, and with the Land Court date stamp exemplars marked as Exhibits 33, 34, 35, and 36. Based on his examination, it appeared to him that while the August 21, 2013 date stamp on the Motion to Remove Default looked like a legitimate Land Court date stamp, its location on the page was different from the location of the date stamps on all of the other stamped documents and the exemplars—it was farther down the page. Exhs. 15, 33, 34, 35, 36; Edward Walsh Testimony.

47. Chief Walsh purchased, using his own money, a Rapidprint date stamp machine, model AR-E. This is the same model as the date stamp machines used by the Land Court, and this particular machine had a serial number within the range of serial numbers of the Land Court’s machines. Using that machine, he attempted to place a date stamp on a sheet of paper in the same location as the date stamp on the Motion to Remove Default. He was unable to do so by placing the sheet of paper into the machine. The machine places a date stamp approximately 4 centimeters from the top of the page. He then folded the piece of paper and inserted it in the machine, to see if the stamp could be placed in the same location as on the Motion to Remove Default. The stamp could be placed in the same location, but the ink smeared. Exhs. 33, 34, 35, 36, 47, 48; Edward Walsh Testimony.

48. Chief Walsh then attempted to reproduce a date stamp in the same location as on the Motion to Remove Default by other means. He took a photograph with his cellphone of an original Land Court date stamp on a document in the Law Department files, downloaded the photograph to his computer, manipulated the image, and then placed the image on a form pleading document in Word format that he took from the Massachusetts Practice series and printed it out. He did this using Photoshop and other programs on his computer; he did not use any specialized programs and or any specialized computer skills. He created and printed three separate documents in an attempt to reproduce the date stamp in a color most approximating the color of the original Land Court date stamp exemplars; all three test documents were admitted as exhibits along with the document from which he took the photograph. Exhs. 49, 50, 51, 52; Edward Walsh Testimony.

49. The court credits Chief Walsh’s testimony. Based on his testimony and the test documents marked as exhibits, the court finds that the August 21, 2013 date stamp on the Motion to Remove Default, Exhibit 15, could not have been placed on that document by a Land Court date stamp machine; it is in a location on the page on which a date stamp cannot be placed. Instead, it was placed on that document by someone who scanned a color image of an original Land Court date stamp, placed it on the document using a computer in the way that Chief Walsh did, and then printed out the document with the date stamp on it.

50. The court further finds that O’Donnell had the ability and means to have placed the August 21, 2013 date stamp on the Motion to Remove Default, Exhibit 15, using a computer. The evidence is that he did the same thing to place a Pitney Bowes stamp and USPS stamps on the January and July 2014 envelopes.

51. Based on the foregoing findings of fact, the court does not credit O’Donnell’s testimony, both in person and by affidavit, that he filed the Motion to Remove Default and the accompanying Affidavit to Remove Default with the Land Court on August 21, 2013 and that the Land Court did not docket these pleadings because they were misfiled in the Cochran Action file. The court notes particularly that O’Donnell never claimed that he had filed the Motion to Remove Default and Affidavit to Remove Default even after the Judgment was entered and even after he knew the Motion and Affidavit did not appear on the docket in this action, despite filing multiple motions, affidavits, and memoranda between December 2013 and February 2014. The court also notes the lack of a date stamp on the Affidavit to Remove Default, contrary to the Land Court procedure to date stamp all pleadings when received, even those attached to other pleadings.

52. The court finds, rather, that the following occurred. Sometime in early February 2014, after the court issued its January 31, 2014 Order Denying Motion to Vacate in which the court relied in part on his failure to move to remove the default, O’Donnell created the Motion to Remove Default and the Affidavit to Remove Default, and, using his computer, placed on it the image of a Land Court date stamp bearing the date August 21, 2013. He also created the Affidavit to Remove Default. He signed both documents and stapled the Affidavit to the Motion to Remove Default.

53. He then had a confederate posing as “Ed Cochran” go to the Land Court on February 12, 2014, and request the file in the Cochran Action. The reason for requesting this file is that its case number, 12 TL 144137, is one digit different from the case number of this action, 12 TL 144107. This confederate placed the Motion to Remove Default and the Affidavit to Remove Default in the Cochran Action file.

54. He then had another confederate, a woman, contact Mr. Harrington, identify herself as Roger Cochran’s niece, and claim that she had found the Motion to Remove Default and Affidavit to Remove Default misfiled in the Cochran Action file. O’Donnell also contacted Mr. Harrington at this time, late February 2014, to claim that he had been previously contacted by this alleged niece about the misfiled pleadings.

55. O’Donnell’s purpose in this scheme was to try to convince the Land Court that he had filed the Motion to Remove Default and Affidavit to Remove Default days after the default had been entered in August 2013, and that it was the Land Court’s mistake that the Motion and Affidavit were not docketed. This mistake would then form the basis of a further motion to vacate the Judgment.

June 11, 2012 Check for $20,000

56. On or about June 11, 2012, O’Donnell obtained an official check, or cashier’s check, from Sovereign Bank, payable to O’Donnell in the amount of $20,000.00 (2012 Check). Exhs. 9, 55; Michael O’Donnell Testimony.

57. O’Donnell testified that he sent the 2012 Check to the City in July 2012 as a payment for real estate taxes on the Property. He testified that he either mailed it or had someone deliver it to the City for him. Michael O’Donnell Testimony.

58. The 2012 Check was never cashed. O’Donnell testified that he first became aware that the 2012 Check had never been cashed in January or February 2014. Michael O’Donnell Testimony; Julie Bertram Testimony.

59. O’Donnell stopped payment on the 2012 Check in March 2014 and Santander Bank, the successor to Sovereign Bank, issued a new official check payable to him in the amount of $20,000 on April 17, 2014. Exh. 54; Michael O’Donnell Testimony.

60. Julie Bertram testified. She is the Assistant Treasurer/Collector for the City. She has worked in the Treasurer/Collector’s office for nine years. Her principle duty is to receive and enter real estate tax payments to the City. The procedure in the Treasurer/Collector’s office when receiving a check is to run the check through a machine that photocopies the check and to record the check number and dollar amount. Ms. Bertram checked the records of the Treasurer/Collector’s office and found no record of the office’s ever having received the 2012 Check. The last payment her office received for real estate taxes on the Property was in August 2009. The court credits Ms. Bertram’s testimony. The City never received the 2012 Check. Exh. 9; Julie Bertram Testimony.

61. Between June 2012 and January or February 2014, O’Donnell never made any inquiry with the City as to whether the 2012 Check had been received or cashed. He does not recall if he informed counsel for the City in this action that he had submitted the 2012 Check to the City, either in his June 2013 answer to the complaint or at any other time. Michael O’Donnell Testimony.

62. The Court does not credit O’Donnell’s testimony that he submitted the 2012 Check to the City, in July 2012 or at any other time. While the 2012 Check appears to be a genuine official check issued by Sovereign Bank in June 2012, O’Donnell never submitted the 2012 Check to the City.

63. Based on the foregoing, the court finds that O’Donnell’s testimony, that he filed the Motion to Remove Default and the Affidavit to Remove Default in August 2013, that he did not create these two documents with a false date stamp and have them placed in the file in the Cochran Action, and that he submitted the 2012 Check to the City, was not truthful.

Conclusions of Law

The evidence in this proceeding was heard for the purpose of deciding two motions: the City’s Motion to Strike, and O’Donnell’s Motion for Reconsideration. In its Motion to Strike, the City seeks to strike from the docket in this action the August 2013 Motion to Remove Default and Affidavit to Remove Default. The Motion to Strike is based on Rule 77(c) of the Massachusetts Rules of Civil Procedure. Rule 77(c) provides:

The clerk shall date-stamp all papers whatsoever received by him, whether by hand or by mail. Any paper so received, whether stamped or not, shall be deemed to have been filed as of the date of receipt. If at any subsequent time, any party disputes the fact of such filing, the court shall determine the question, taking whatever evidence it deems appropriate. Proof of mailing shall constitute prima facie proof of receipt.

Mass. R. Civ. P. 77(c) (emphasis supplied).

The August 2013 Motion to Remove Default and the Affidavit to Remove Default have no certificate of service or other proof of mailing; therefore, there is no prima facie proof that the Land Court received these documents on August 21, 2013 as the date stamp suggests. Based on the foregoing findings of fact, the court finds that the August 2013 Motion to Remove Default and the Affidavit to Remove Default were not filed with the Land Court on August 21, 2013. Rather, they are false documents created in February 2014 and planted in a Land Court file in a scheme by O’Donnell to perpetrate a fraud upon this Court. The court determines that the Motion to Remove Default and the Affidavit to Remove Default shall be stricken from the docket in this action. The Motion to Strike is allowed.

The Motion for Reconsideration makes several arguments for vacating the Judgment and reopening this action. Arguments about the August 2013 Motion to Remove Default have been disposed of above. The Motion for Reconsideration also argues that the Judgment should be vacated because the City did not credit O’Donnell with the $20,000 payment represented by the 2012 Check. The court has found that the City never received the 2012 Check. Thus, there was no $20,000 payment that the City failed to account for, and that alleged payment cannot provide a basis for vacating the Judgment. The remainder of the arguments in the Motion for Reconsideration have been considered and rejected in previous motions by O’Donnell to vacate the Judgment. The Motion for Reconsideration is denied.

Conclusion

City of Taunton’s Motion to Strike Defendants’ Motion to Remove Default That Was Purportedly Filed on August 21, 2013 is ALLOWED. The Motion to Remove Default and the Affidavit to Remove Default, both docketed as of August 21, 2013, are hereby STRICKEN from the docket. The defendant’s Motion to Remove Default, docketed March 25, 2014, is DENIED.

Since the Judgment entered in this action, defendant Michael O’Donnell, in various capacities, has filed a motion for preliminary injunction, a motion to vacate the Judgment, a Motion to Remove Default, and the Motion to Remove Default decided by this Order, all of which have been denied. No further motions to reconsider or to vacate the Judgment shall be filed in this action without first obtaining leave of the court.

SO ORDERED.