Home VIJAI B. PANDEY vs. WILLIAM J. PUDLO & others. [Note 1]

416 Mass. 1008

November 4, 1993

Practice, Civil, Appeal, Party pro se. Supreme Judicial Court, Superintendence of inferior courts.

Vijai B. Pandey, pro se.

Frank P. Buendo, Jr, for the defendants.

This is an appeal from a decision of a single justice denying relief under G. L. c. 211, Section 3 (1992 ed.), without a hearing. There was no error and therefore we affirm.

The principal basis for denying relief was the failure of the plaintiff to use ordinary appellate review. We have said repeatedly that relief under G. L. c. 211, Section 3, is not a substitute for ordinary appellate review. See Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009 , 1010 (1983) and cases cited.

Since the plaintiff commenced this action for legal malpractice, he has failed to appeal. A Superior Court judge allowed a motion of the defendants to remove a default judgment. The plaintiff did not appeal but many months later sought reconsideration of the judge's action. When the belatedly filed motion for reconsideration was denied, the plaintiff appealed to a single justice of the Appeals Court who denied relief under G. L. c. 231, Section 118, first par. (1992 ed.). The plaintiff did not pursue his case in the Superior Court. Had he done so, he would then have been entitled to appeal in the ordinary course. Therefore, he was not entitled to relief under G. L. c. 211, Section 3.

The plaintiff has been appearing pro se but he is held to the same standards to which litigants with counsel are held. Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985).

Judgment affirmed.


[Note 1] David G. Carlson and Carlson & Pudlo, P.C.


416 Mass. 1008

DECEMBER 10, 1993.

Uniform Commercial Code, Secured creditor, Sale of collateral. Practice, Civil, Damages.

Charles E. Chase for the defendant.

Paul S. Samson (Isaac H. Peres with him) for the plaintiff.

We granted the plaintiff's application for further appellate review and shall not repeat the facts as delineated in the opinion of the Appeals Court. 34 Mass. App. Ct. 266 (1993). We agree with the reasoning and

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the result of the Appeals Court. We write only to speak to the application of the case of Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273 (1986).

Nothing in Miller precludes the adoption of the approach taken by the Appeals Court, i.e., where the creditor has failed to live up to the requirements of the Uniform Commercial Code (Code) in selling the debtor's assets, "a rebuttable presumption [arises] that the fair value of the collateral and the amount of the debt were the same," 34 Mass. App. Ct. at 271. The plaintiff creditor failed to give the required notice to the defendant guarantor of the time and place of the disposition of the collateral. See G. L. c. 106, Section 9-504 (3) (1992 ed.). We have not had to face the question of a creditor's rights to damages when a creditor has violated a Code requirement as here. See In re Replogle, 929 F.2d 836, 839 (1st Cir. 1991).

The opinion of the Appeals Court in this case follows the teaching of Miller on the two principal issues (apart from summary judgment) decided there: (1) the guarantor has a right to challenge the commercial reasonableness of the disposition of the collateral by the secured party; and (2) in the circumstances, there can be no waiver of the commercial reasonableness defense. 34 Mass. App. Ct. at 269-271.

Accordingly, the judgment is vacated as to the amount of the damages and the case is remanded to the Superior Court for further proceedings on the assessment of damages consistent with this opinion.

So ordered.