Massachusetts Real Estate Lawyer Blog
In a recent opinion entered by the Appeals Court of Massachusetts, Webster Bank v. Ragge, Mass. App. Ct. (2014), the court ruled on a situation involving the enforcement of a default judgment in a real estate foreclosure case.
A default judgment is what happens when a party institutes a legal claim, action, or lawsuit, and the other party in the case, most likely the defendant, does not respond. When there is a failure to respond within the statutorily established period of time, the moving party then files a motion for default judgment. This causes the court to review the relevant moving papers, or motions and attached evidence, and decide whether finding for that party based on the evidence presented is proper. If so, the court enters a default judgment. This allows the party that wins the default judgment to then file something in order to enforce that judgment against the other party.
Thus, in this case, according to the opinion, Webster Bank instituted an action against the defendant, seeking to enforce a mortgage and promissory note while the defendant was out of the country. The appeals court stated that a return of service indicated that the service of the complaint and other documents were left for the defendant at his home.
The defendant then allegedly denied being served with the complaint, although he attended a hearing on the motions and for other matters. According to the court, he made no argument at that time that he had not been properly served. The defendant then purportedly failed to answer the complaint, or to respond to notices from the court. The court then entered a default judgment against the defendant. The defendant then appealed the default judgment.
In its opinion, the appeals court stated that the defendant did not set forth any meritorious defense or other good reason to justify his failure to answer the complaint or otherwise defend the action.
In order to defeat a default judgment, an individual must demonstrate excusable neglect or other circumstances that are extraordinary or unique, not merely a typical sort of oversight. The court found that no such special circumstance was shown.
The court then turned to the defendant’s argument that he could remove the default subject to a servicemember action. The court found that there was no statement that the defendant had been a member of the armed forces, and that therefore he did not have a valid servicemember action defense.
The last argument the appeals court addressed was the defendant’s challenge that the foreclosure was improper because there was no copy of the mortgage. The court noted that the complaint alleged that the mortgage did in fact contain the power of sale, and that since there was no answer in the action denying that assertion, the accepting of that allegation as true by the lower court judge could not be held in error.
Thus, the court affirmed the lower court’s decision that denied the motion to vacate the judgment and denied the motion for relief from judgment. The default judgment order was thus affirmed.
This opinion is illustrative of the principle that you absolutely cannot ignore foreclosure proceedings, or any other legal proceedings for that matter. Especially when it comes to real estate matters, lawsuits will not just disappear, and they must be addressed. In many cases, hiring a lawyer will be your best shot at preserving any potential legal arguments you may have and will ensure that you pursue the best outcome under the circumstances.
The lawyers at Pulgini & Norton offer detail-oriented and client-centered representation in Boston property transactions. Our real estate lawyers draft agreements and negotiate provisions with your needs and goals in mind. We will work to overcome or prevent any foreseeable hurdles and protect your interests, while working towards a timely closing or resolution of your matter. We represent clients in Brookline, Lowell, and Malden, among other Massachusetts communities. Contact us today by calling 781-843-2200 or contact us online for a consultation.
More Blog Posts:
Massachusetts Appeals Court Sides with Bank in Nantucket Foreclosure Case, Massachusetts Real Estate Lawyer Blog, published March 26, 2015
Massachusetts Appeals Court Upholds ATB Decision in Tax Abatement Case, Massachusetts Real Estate Lawyer Blog, published March 16, 2015