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I just received a notice that denied my motion to vacate a wrongful eviction. Can we appeal?

Everett, MA |

We never received a notice stating we had a court date, nor any letter from a constable( I thought the law stated the landlord had to send a certified letter, if the constable didn't have the letter directly). This has happened before with mail from court going missing, when the landlord is trying to evict tenants. We weren't able to plead our case because all the judge cared about is if we really didn't get notice. But we sent rent withholding documents to the landlord, and four days later he gave us an eviction letter. In court all the landlord was saying was problems he had with my fiance's father , but in the response letter to vacate said this was not retaliation! The landlord did this on purpose so we wouldn't be able to bring our case in front of the judge and how is that justice?

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Attorney answers 2

Posted

I interpret your question as asking how you can appeal an adverse decision on your motion to remove a default. Your landlord would have had to have served you with a notice to quit, by constable or certified mail. Fourteen days or more later, the landlord would have had to have served you with a summary process complaint, which would have to be served by a constable. When he filed the complaint in court, he would have had to have filed the notice to quit, with proof that it was served, and a return of service on the complaint. The complaint typically is served by either giving it to you in hand, or putting a copy on or under your door, plus mailing a copy first class mail. The method and date should be on the return of service. Look carefully at these documents. Try a "motion for reconsideration" if you find any new evidence that supports your position that you weren't served one or both of those documents.

It sounds like you would have had counterclaims for retaliation and for whatever caused you to withhold rent. If you can't get the default removed, you can still bring these as a separate civil action, including a small claims action. Since these counterclaims may include attorney fees, you may find an affordable lawyer either for the whole case (if the default is removed) or your separate complaint.

Yes, you can appeal the judges failure to remove the default, or his failure to act on your motion to reconsider. One leading case is Berube v. McKisson Wines and Spirits.

You will definitely have a better chance on any of these options with a lawyer.

The foregoing answer does not establish an attorney client relationship, is not confidential, and should not be relied upon in place of an actual consultation with an attorney. Mr. Boone is licensed to practice in Massachusetts, before the U.S. Tax Court, and the Federal District Court of Massachusetts. Most initial consultations are free. Further information is available on my profile and at www.boonehenkofflaw.com.

Asker

Posted

I just went to the court house and they said there was nothing I could do. I'm still in shock that judge said this wasn't retaliation, when we had no problems what so ever, until we were advised to put our rent in an escrow account and send a withholding letter. We always posted are rent and were never an issue with other tenants or the landlord. Now it seems we have days to pack up and find a new place to live

Jefferson W. Boone

Jefferson W. Boone

Posted

You can appeal. You can file a motion for reconsideration. You are in the District Court, rather than a housing court (none available for Everett). Many district court judges and clerk's offices are less familiar with summary process law than they should be. You do have the right to appeal the judges decision. As I said before, you need the assistance of a lawyer. Additionally, even if you can't stop the eviction, you can still sue the landlord for damages. The default could probably not be held against you on a subsequent suit against the landlord. Counterclaims are not compulsory in summary process actions.

Thomas J Callahan

Thomas J Callahan

Posted

And you have time limits here. Get an attorney ASAP.

Posted

Unfortunately, whenever you withhold rent, an eviction case is virtually certain to follow, and it is a bad idea to get into this situation without having a lawyer ready to work for you.

You have the right to appeal, but in order to stay the eviction while the appeal is pending, you will have to post an appeal bond. if you are of low income this may just be the equivalent of your rent, or even a reduced amount based on the conditions in the premises. You need to act IMMEDIATELY to get a lawyer if you want to appeal. In the alternative, you can move and bring any claims for a refund of rent based on the bad conditions as a small claims or other civil action.

Disclaimer: This site exists to provide information only. It is not legal advice. Answering your question does not create an attorney-client relationship. I am a Massachusetts lawyer. Any information provided on this site does not, except as explicitly stated, imply familiarity with laws or procedures peculiar to your state which may differ from those where I practice.