HARBOR GROUP MANAGEMENT CO., LLC v. JOSEPH MOLLOY & Another. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-278
HARBOR GROUP MANAGEMENT CO., LLC
vs.
JOSEPH MOLLOY & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In May 2019, the plaintiff brought a summary process action
for nonpayment of rent against two tenants occupying an
apartment in Danvers. The complaint identified one of the
tenants as "Joseph Molloy" as named on the lease. A constable
served the complaint on the tenants by leaving it at the Danvers
apartment and by mailing a copy of the complaint to that same
address. A default judgment against "Joseph Molloy" entered on
May 30, 2019.2 That default judgment awarded possession to the
plaintiff and required Joseph Molloy to pay back rent of
1 Michelle Wang.
2 The judgment entered on May 30, 2019, was against only Joseph
Molloy. A second final judgment entered against the other
tenant, Michelle Wang, on June 27, 2019, made nunc pro tunc to
May 30, 2019.
$2,915.01 as well as fees and costs for a judgment totalling
$3,111.31. After an execution issued, the tenants apparently
were evicted, as indicated by a July 2019 docket entry
memorializing the filing of an inventory from that eviction.
According to an uncontested affidavit from Joseph Molloy,
the appellant before us, he is a long-time resident of
Marshfield who never lived at the Danvers apartment. He swore
in the affidavit that he never was served with the summary
process complaint and that he had no knowledge of this
litigation until bill collectors started dunning him in
September 2019 for the unpaid back rent owed in the judgment
that had entered against "Joseph Molloy." Molloy's affidavit
also offered a theory for the mix-up, namely that his brother
John Molloy, a disbarred attorney with financial problems who
lived in the Danvers area, had used Joseph's name when signing
the lease. According to Joseph Molloy, his brother even
admitted this to him after the fact.
Based on the affidavit, Joseph Molloy filed a motion
pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974),
seeking to vacate the default judgment as void for lack of
service. Joseph Molloy filed his motion on December 4, 2019,
that is, only six months after the default judgment entered, and
less than three months after Joseph learned of the litigation.
It therefore was timely. See Mass. R. Civ. P. 60 (b) (4) (where
2
party argues judgment is void, "motion shall be made within a
reasonable time"). The precise trajectory of the court's
handling of the motion to vacate is somewhat unclear on the
Housing Court docket. For example, the docket notes that the
motion was scheduled to be heard on two dates, but was
"resolved" without being heard and with no ruling being noted.
In any event, the motion to vacate was denied on August 17,
2021, after Joseph Molloy failed to attend a scheduled hearing
by Zoom (the onset of the COVID-19 pandemic having long since
occurred). Nevertheless, after Joseph Molloy filed a motion to
reschedule the hearing (based on his attorney's claim that he
had no notice of the Zoom hearing), the motion to vacate the
default judgment was marked up for another hearing on November
29, 2021, which both parties attended. By order dated December
20, 2021, the judge denied that motion. Although the judge
faulted Joseph for not diligently prosecuting his motion, he
denied the motion on the merits. Specifically, even though the
plaintiff offered nothing to contest Joseph Molloy's affidavit
that he had never entered a lease for the Danvers apartment,
never lived at the Danvers apartment and never had been served
with the complaint, the judge rejected his sworn statements and
his argument that he was entitled to have the default judgment
vacated. In declining to credit the sworn statements, the judge
3
found it significant that Joseph apparently had never reported
his brother for identity theft.
On appeal, Joseph Molloy argues that, for purposes of his
motion to vacate, the judge was bound to accept his uncontested
affidavit that he was never served. See Dumas v. Tenacity
Constr., Inc., 95 Mass. App. Ct. 111, 111 (2019) ("When a
defendant files a motion for relief from a default judgment
under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974),
alleging that the judgment is void because of improper service
of process, the judge is bound to accept the defendant's
uncontroverted affidavits as true"). The plaintiff, who chose
not to participate in this appeal, makes no argument to the
contrary even though the filing of the affidavit put the burden
on the plaintiff to prove proper service. See Dumas, supra at
117. Under the circumstances of this case, we agree with Joseph
Molloy that the judge erred in denying his motion to vacate the
default judgment against him. See Farley v. Sprague, 374 Mass.
419, 425 (1978) (where "the plaintiff failed to controvert the
allegations of the defendant's affidavit concerning his alleged
residence and the insufficiency of the attempted service of
process on him, the defendant was entitled to relief from the
default judgment entered against him"). We therefore reverse
4
that order and remand this matter for further proceedings
consistent with this memorandum and order.3
So ordered.
By the Court (Milkey,
Massing & Henry, JJ.4),
Clerk
Entered: May 3, 2023.
3 To ensure that our memorandum and order is not misunderstood,
we note that we take no position on the ultimate merits of
whether Joseph Molloy could be liable for the unpaid rent. As
he points out, the allowance of the motion to vacate does not
resolve that issue; it simply provides him his day in court.
Conversely, nothing in this memorandum and order should be taken
as suggesting that -- where people are alleging that they are
being unfairly dunned for a judgment against someone who assumed
their identity -- vacating that judgment is their only available
avenue of relief.
4 The panelists are listed in order of seniority.
5