481 Mass. 1050

April 10, 2019


Summary Process. Housing Court. Supreme Judicial Court, Superintendence of inferior courts.

The petitioner, Marjorie Y. Evans, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm. [Note 2]

The respondent, Federal Home Loan Mortgage Corporation (Freddie Mac), purchased Evans's home at a foreclosure sale in March 2015 and then commenced a summary process eviction action against Evans in October 2015. The summary process trial was continued several times, at least in part because of discovery disputes between the parties, but was eventually scheduled to commence on June 8, 2016. On that day, Evans filed a motion for a continuance and for a reasonable accommodation on the basis of a disability. [Note 3] Before the judge ruled on these motions, Evans left the court house. The judge denied the motions, and because Evans was not present for trial, a default judgment for possession entered against her. Evans's motion to vacate the judgment was denied, and she subsequently filed a notice of appeal. Over the next several months, Evans filed numerous motions to stay execution of the judgment, in both the Housing Court and the Appeals Court, to allow her time to pursue her appeal. She successfully secured a stay, but was ordered to make monthly use and occupancy payments while the appeal was pending. After Evans failed to make use and occupancy payments for several months, Freddie Mac levied on its execution for possession of the property on May 4, 2017. On that same day, Evans filed, and the single justice denied, a G. L. c. 211, § 3, petition as well as another motion to stay.

In her appeal to this court, Evans argues, among other things, that the Housing Court judge erred in denying her request for a reasonable accommodation; erred in violating a Federal Bankruptcy Court automatic stay order; and, more generally, violated her right to due process. She asks the court for various forms of relief, including reversing the Housing Court's "erroneous rulings" and vacating the Housing Court's void judgments. The petitioner has not, however, met her burden "to demonstrate the absence or inadequacy of other remedies," as she must for the purposes of G. L. c. 211, § 3. Russell v. Nichols, 434 Mass. 1015, 1016 (2001). In fact, she has not even addressed the issue. As we further explain today in the Adjartey case, we recognize the challenges that self-represented litigants may face in summary process actions, but this does negate the statutory requirement. Relief under G. L. c. 211, § 3, is "properly denied

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where there are adequate and effective routes other than [G. L.] c. 211, § 3, by which the petitioning party may seek relief." Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996). This applies to self-represented litigants as well as those who are represented by counsel. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983) (unrepresented litigants are bound by same rules of procedural and substantive law as represented litigants).

For example, Evans could have sought review of the denial of her motion to vacate void judgments, which she filed pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), in a direct appeal. See Brown v. Federal Nat'l Mtge. Ass'n, 481 Mass. 1036, 1037 (2019) (denial of motion to vacate void judgment can be addressed in direct appeal). This is equally true of the denial of any recusal request. See Hilton v. Central Div. of the Hous. Court Dep't, 481 Mass. 1047(2019). Similarly, if Evans believed she was prejudiced by a judge's erroneous denial of her requests for reasonable accommodations, she could have raised that claim in a direct appeal. [Note 4] To the extent that Evans argues that the Housing Court denied her request for assembly of the record, thus preventing her from pursuing her appeal, her argument on this point is not well developed. And while the Housing Court docket does indicate that a motion to assemble the record was denied, the basis for the denial is not clear; in any event, the denial of such a motion is also subject to appellate review in the form of a direct appeal. See, e.g., Gorod v. Tabachnick, 428 Mass. 1001, 1001-1002, cert. denied sub nom. Davis v. Tabachnick, 525 U.S. 1003 (1998). See also Skandha v. Clerk of the Superior Court for Civ. Bus. in Suffolk County, 472 Mass. 1017, 1018 (2015) (detailing "variety of . . . practical and legal steps" available when seeking to compel assembly of record).

The single justice did not err or abuse her discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

Maryanne Reynolds, Assistant Attorney General, for the Central Division of the Housing Court Department.

Brian Linehan for Federal Home Loan Mortgage Corporation.

Marjorie Evans, pro se.

Christine Hilton, pro se.

John Schumacher, pro se.

Annette Bent, pro se.

Mychelyne Oliveira, pro se.


[Note 1] The petitioner also named the Worcester Division of the Housing Court Department (now part of the Central Division, see St. 2017, c. 47, § 78) as a respondent. The court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

[Note 2] This case is one of three that we decide today that involve self-represented litigants engaged in summary process proceedings in the Central Division of the Housing Court Department. See Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830 (2019); Hilton v. Central Div. of the Hous. Court Dep't, 481 Mass. 1047 (2019). The petitioner in this case is also a petitioner in both the Adjartey and the Hilton cases. To the extent that she raises issues here that are also raised and addressed in those cases, we do not address them separately here.

[Note 3] The accommodation that Evans sought was a postponement of the proceedings to allow her to obtain counsel because, she argued, appearing pro se put significant stress on her health. This was not the first time that Evans had made such a request.

[Note 4] We make clear today in Adjartey, 481 Mass. at 846-849, that where a party in a Housing Court case is found to have a disability, the court is required to provide that party with reasonable accommodation for that disability. Without passing on the merits of the decisions in this case not to grant the petitioner's accommodation requests, we note that at least as to the request associated with the summary process trial, the judge set forth in writing her reason for denying the request.