362 Mass. 870

June 22, 1972

This is an action in tort wherein the plaintiff seeks to recover for the conversion of a motor vehicle and a penalty of fifty per cent of the fair market value of the motor vehicle under the provisions of G. L. c. 255B, Section 20A, subsec. E. In addition, the plaintiff seeks to recover a penalty of $500 under the provisions of sub-sec. E. The case was tried before a judge without a jury. The plaintiff excepted to the denial of his requests for rulings. A finding was entered for the defendant. The pertinent evidence was as follows. The plaintiff had purchased a used automobile from the defendant and entered into a retail instalment sale agreement with him. The car was purchased in December, 1966, for $2,240 plus finance charges, and monthly payments were to commence on January 13, 1967. The plaintiff failed to make his monthly payments in January and March, 1967. During March, 1967, the plaintiff talked to an employee of the defendant, and informed him that "he could not afford the automobile, that there was nothing wrong with the automobile, that he (plaintiff) would bring it back to him; . . . [the employee] told him to bring it back." The plaintiff, following the return of the automobile, saw it displayed in the defendant's automobile sales lot, and it was sold to a third party for $2,295 on March 30, 1967. The defendant used the proceeds to discharge the plaintiff's consumer note with Fall River Trust Company. The provisions of c. 255B, Section 20A, are designed to protect the rights of retail buyers who default under a retail instalment sales contract when a motor vehicle, subject to a security interest, is repossessed. Central to the plaintiff's contention is his request for a ruling that "[a] finding . . . that the plaintiff voluntarily returned the . . . motor vehicle to the defendant would warrant a ruling as a matter of law that [the] plaintiff did not waive rights under . . . [G. L. c. 225B, Sections 20A, 20B)." The voluntary return of a motor vehicle under G. L. c. 255B does not constitute an act of repossession which is a prerequisite to the application of the statute. Cf. Newbern v. Morris, 233 Ark. 938. Therefore, the plaintiff's requests for rulings which assumed this fact were properly denied. Cf. Fuentes v. Shevin, 407 U.S. 67.

Exceptions overruled.


362 Mass. 870

June 27, 1972

This case, initiated by a bill for declaratory relief in the county court, is here by way of reservation and report by the single justice on a case stated. The plaintiff is the Rent Control Board of Cambridge. The defendants are landlords and tenants. The question before us arises out of conflicting judicial determinations

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involving facets of Cambridge rent control. On February 24, 1972, a judge of the Superior Court, in Gifford v. Healy, Superior Court, Middlesex County, Docket No. 33159, continued a restraining order enjoining the plaintiff from voiding rent control adjustments by its predecessor William J. Corkery as rent control administrator of Cambridge. On March 2, 1972, a judge of the Third District Court of Eastern Middlesex, in the case of Akerman v. Corkery, Equity Docket No. 17 of 1971, entered findings nullifying rent adjustments made by Corkery. There are claims of report and appeals from the judgment entered in accordance with these findings. On March 17, 1972, the plaintiff requested the Superior Court judge to dissolve the February restraining order in the light of the District Court decision of March 2, 1972, which the judge declined to do. On May 22, 1972, the plaintiff adopted a regulation governing determination of "fair net operating income." The bill seeks a determination as to whether the decree of the Superior Court or the judgment of the District Court is binding. We have reviewed the original papers in Gifford v. Healy, supra, as well as the case before us and arguments submitted on briefs by the parties. Lengthy discussion of the matter is not required. Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686 , 702-703, sufficiently defined the term "fair net operating income" (which is the nub of this controversy as it appears in St. 1970, cc. 842 and 843). It is clear to us without further elucidation that the findings and rulings of the District Court judge are in accordance with both the cited statutes and that decision, and that the action of the Superior Court judge in preventing by restraining order the nullification of illegal rent adjustments by the predecessor rent control administrator is not. A decree is to enter in the county court declaring (1) that the judgment entered by the judge of the District Court was correctly entered; (2) that the interlocutory decree of February 24, 1972, entered by the judge of the Superior Court is improper; and (3) that the plaintiff may inform tenants and landlords that rent adjustments made by its predecessor are null and void.

So ordered.