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Fighting an Eviction in Court

 

Overview of the Eviction Process

Eviction cases are technically called summary process actions. This is because the procedures for eviction cases are designed to "process" cases in a "summary" or swift fashion.56  The purpose of a summary process case is for a judge to determine who should have possession of your apartment—you or your landlord. At the end of this chapter is a timeline that will give you a general overview of the eviction process. The timeline will give you important time frames to keep track of.57 As you can see, there are many steps that a landlord must take before she can have a sheriff or constable move you out; you do not need to move out when you get a notice to quit.

Getting a Summons and Complaint

To start an eviction case in court, a landlord must serve you with a summary process summons and complaint . This document must tell you why the landlord is evicting you and why your landlord terminated your tenancy.58  The summons and complaint cannot be served on you until after your tenancy has been properly terminated.59  See a sample copy of a Summary Process Summons and Complaint, Form 19. This sample will show you the information you need to pay attention to on your summons.

The summons and complaint must be served by a sheriff or a constable who is authorized by law to serve court papers.60  A sheriff or constable must personally hand you a summons and complaint or leave it at your apartment.61 You may find it under your door, in the entrance hallway, or in your mailbox. If a summons and complaint is left at your apartment instead of handed to you personally, the landlord must also send you a copy by first-class mail.62  If a summons and complaint is not served by someone legally authorized to serve court papers, you may ask a court to dismiss the case.63

Important Dates

As soon as you get a summons and complaint, you will need to pay attention to four important dates:

  • Entry Date
  • Answer Date
  • Original Trial Date
  • Rescheduled Trial Date

The Summons and Complaint (see Form 19) will show you where you will find these dates. Form 19 is a sample; this form may vary from court to court.

  • Entry Date
    Before a landlord gives a summons and complaint to a sheriff to serve, the landlord must choose an entry date . An entry date is the deadline by which your landlord must actually enter or file the complaint with the court and prove that she has actually served it on you.64  An entry date can be any Monday at least seven days, but not more than 30 days, after the date that you were served a summons. If the entry date is a legal holiday, the complaint is entered on the next day the court is open.65

    When the landlord files a summons and complaint, she must attach a notice to quit , if it is legally required, and other necessary papers.66  If the landlord fails to file the necessary papers by the entry date, you should ask a judge to dismiss the case.

  • Answer Date
    The answer date is the date by which you must deliver to the court and your landlord (or the landlord's lawyer, if she has one) a document called an answer. 67  The answer is the written document you use to tell the court your side of the story. The answer date is sometimes shown on the summons and complaint. If it is not clear from the summons and complaint, contact the clerk and ask her when your answer is due. You can use the form Booklet 3: Answer. Before filling it out, read the section in this chapter called Filing Your Answer.
  • Original Trial Date
    The summons tells you the day that your case is scheduled for a trial ( original trial date ). It will usually be the second Thursday after the entry date , although it may be different in some courts.68  If you file discovery with the court and your landlord or landlord's lawyer (if she has one) by the answer date , the court will automatically reschedule the original trial date and postpone it for two weeks. See the section in this chapter called Getting Information Through Discovery.
  • Rescheduled Trial Date
    If you request discovery from your landlord, your original trial date will automatically be postponed for two weeks to a rescheduled trial date.69

    Note on Postponing Your Case:

    If you know that you will not be able to appear in court on your trial date, you should ask your landlord to postpone ( continue ) the case to another date. If the landlord agrees, ask the court to make sure that the date has been changed. If your landlord refuses to continue the case and you have a good reason for a postponement—for example, you will be in the hospital on the trial date—explain your situation to the court clerk and ask for a continuance .70

Transferring to Housing Court

If you live in an area with a housing court and your landlord files an eviction case in a district court, you have a right to transfer your case to a housing court.71  The advantage of transferring an eviction case to housing court is that judges in housing court are generally more familiar with housing laws than judges in district or superior courts, who handle many different types of cases. Housing courts also have the staff and expertise to better help people who do not have a lawer to complete the process.

There are five housing courts in Massachusetts.72  To figure out whether there is one in your area, see Chapter 15: Using the Court System. To transfer your case, you only have to do two things:

  1. Fill out a Transfer form (Booklet 5).
  2. Deliver the form to the district court, the housing court, and your landlord (or her lawyer). Keep a copy for yourself. You can deliver this form up until the day before the original trial date.73

If you transfer your case to housing court, your case may be postponed and the housing court will contact you about the rescheduled trial date.74  Even if you transfer your eviction case to housing court, however, you must still file your answer and discovery on the answer date listed on the summons. If the case has not been transferred by the answer date, you must file your answer and discovery with the district court.

Filing Your Answer

After you receive a summons and complaint, you must fill out a document called an answer.75  The answer tells your side of the story and outlines what laws protect you. An answer includes:

  • Defenses: The legal reasons why you should not be evicted. Defenses are very important because they can help you win your case.
  • Counterclaims: Your legal claims for money against your landlord. Counterclaims are important because you can use them to reduce the amount of rent you owe your landlord. If your landlord owes you more money than you owe her, you cannot be evicted in a non-payment or no-fault eviction case.

You can obtain an Answer form from the court, write your own answer, or use the form at Booklet 3.76  This answer form lists the most common defenses and counterclaims tenants can use to prevent an eviction. When you fill out the answer form, do not be afraid to list all defenses supported by the facts. If you want to add more defenses after you file your answer in court, you will have to ask permission from a judge, and she might not grant it. See the section in this chapter called Important Legal Defenses and Counterclaims.

You must file your answer with the court and then give a copy to your landlord or, if she has a lawyer, to the lawyer by the answer date . If the answer date falls on a legal holiday, you may file your answer on the next day court is open.77

Showing Up in Court

Even if you have not filed an answer, you should still show up for trial . When you go to court, bring your answer and ask the judge to allow you to file it. Be prepared to tell the judge why you have not yet filed it. If the judge lets you file your answer on your trial date, the landlord will then have the option to proceed with the case that day or have the trial postponed for one week.78

If you do not show up in court on your trial date, you will be defaulted . An entry of a default judgment in the court records means that you automatically lose your case, unless you can get the court to "remove" the default.79

If you have defaulted, the court should send you a notice that a default judgment has been entered against you.80  You can go to court to ask the judge to remove the default. In most cases, a judge will remove the default if you have a good reason for not having come to court on your trial day and if you had valid defenses or counterclaims. Examples of good reasons for not appearing in court include no notice of hearing, serious and documented illness, or your landlord's having told you the case was worked out and that you did not have to go to court. Lack of transportation or not wanting to miss work may not be considered good reasons. For information about how to remove a default, see the section in this chapter called Removing a Default Judgment.

If you appear in court on the trial date, but the landlord does not appear, the court should dismiss the case.81  If you file an answer and neither you nor your landlord show up for trial, the case will be dismissed seven days after the trial date, unless either party requests a new trial date within the seven-day period.82  If no one requests a new trial date, you win and you get to stay in the apartment. If you have made counterclaims and the landlord fails to appear in court, she should be found in default and you should be awarded damages for your counterclaims.

Getting Information Through Discovery

As a tenant facing eviction, you have a right to get information and documents from the landlord to help you prepare and prove your case. This is called discovery . Discovery is an important legal process. If you request discovery, a court will postpone your eviction hearing for two weeks in order to give the landlord time to answer your questions and send you documents. If you do not request discovery, you must go to court on the original trial date listed on the summons.

There are three kinds of discovery you can use:

  1. Interrogatories: A written list of up to 30 questions that a landlord must answer in writing and under oath.
  2. Request for Production of Documents: A written request for copies of documents that are in the landlord's possession.
  3. Request for Admissions: A written request asking the landlord to admit or deny certain statements.83

There is a sample form for Discovery at the end of this book (see Booklet 4). You must file your discovery papers with the court and deliver a copy to your landlord or her attorney on or by the answer date. Your papers must also include a notice to the landlord that the trial has been postponed for two weeks.84

Getting the Information

Your landlord must respond to your discovery within 10 days of receiving it.85  If your landlord does not respond within 10 days or does not completely answer questions or give you the documents you requested, you have five days to ask the court to order the landlord to give you this information. To do this, you must file what is called a Motion to Compel Discovery (find at the end of Booklet 4). If a judge grants your motion and the landlord does not comply with the judge's order, the court can impose a variety of sanctions, including prohibiting the landlord from opposing certain defenses or counterclaims, dismissing the case entirely,86 or postponing it until the landlord complies with your request.87

Reviewing the Information

When you receive the discovery you have requested from your landlord, read through all of the documents carefully. As you read through everything, try to:

  • Identify statements or information that back up your case. For example, if you ask the landlord whether you offered to pay all the rent you owed, she may admit that you did try to cure the non-payment.
  • Watch for contradictions in your landlord's story. For example, your landlord may deny knowing about bad conditions, but give you receipts during discovery that show that she hired people to make certain repairs.
  • Look for information that backs up your landlord's case and think about ways to counter this information. For example, your landlord claims that you violated your lease by keeping a pet. But you may be able to prove that your landlord knew about your dog when you first moved in and, in fact, gave you permission to keep your pet.

Preparing for the Hearing

Before your eviction case goes to court, you should prepare your case. The more prepared you are, the better you will be able to present your side of the story to a judge. Here are some things you can do to help you prepare:

  • Take pictures of any serious defects or code violations in your apartment. Mark on the back of each photo the date when the picture was taken.
  • Collect any documents that you need to prove your case and bring them to court with you. Bring the originals if you can.
  • Get copies of any Board of Health inspection reports. Be sure that the reports state that they are signed "under the penalties of perjury" by the person who inspected the premises.88
  • Prepare a list of the questions you want to ask your landlord.89
  • If you have any witnesses, notify them of the time and place they should be in court.90
  • Prepare a brief statement that summarizes for the court how the landlord violated the law and why you should not be evicted. Use your answer form to help you.

If you have time, it may be helpful to observe some eviction cases the week before your trial date. For more tips about getting ready for court, read the section in Chapter 15: Using the Court System called Preparing for Trial.

Going to Court

Going to court is not something that most of us look forward to. For those who are not familiar with court, it can be an intimidating place. When you go into a courtroom, you will see lawyers in business suits sitting up front near the judge, separated from the defendants and plaintiffs. The lawyers and judge talk in unfamiliar terms, and there is a great deal of mumbling at the judge's bench that you will be unable to hear or understand.

If you are representing yourself ( pro se ), you will need to pay very close attention to what is happening. Read Chapter 15: Using the Court System. It will give you some practical tips that will help you in court. Here are a few more things to keep in mind that relate to eviction cases.

  • Answer When Your Name Is Called
    The first thing that will happen in court is that the clerk calls the names of all the cases. When she calls your name, say you are there. If you do not answer, you will be defaulted and you will lose your case.
  • If Your Landlord Does Not Appear
    If your landlord does not appear, the case should be dismissed . Ask the clerk to give you a copy of the order of dismissal.
  • Patience Is the Name of the Game
    After the clerk calls the entire list of cases scheduled for the day, the trials start. One of the most discouraging things about being in court is the waiting. You may have to wait for hours before your case is called. You may wind up going to court as many as three or four times, perhaps losing pay each time you go.
  • If You Go to Mediation, Know What You Want
    In housing courts, while you are waiting for your case to be called, court staff may ask you if you are interested in meeting with a mediator (also called a "housing specialist"). A housing specialist is a person who works for the court and who will try to help you and your landlord settle your dispute without a trial. If either you or your landlord does not want mediation, the case will go to trial with the judge. What is important in mediation is to advocate for what you want.

Pros and Cons of Mediation

In mediation, be careful not to approve any agreement that you know you will not be able to keep. Do not agree to move in a short time if you have no other housing available to you. Do not agree to a payment plan for back rent that is more than you can afford. If you are not able to resolve your dispute through mediation, you will still be able to have a hearing before the judge. Everything said in mediation is confidential and should not be discussed in court if there is a hearing later.91

The advantages to using mediation are that you can craft an agreement that is tailored to the exact needs of the parties. Issues that might be difficult for a judge can be decided by give-and-take. For example, you can simply agree with your landlord that the value of the clothing you lost when the roof leaked was equal to what it cost your landlord to make repairs after your child flushed several small wooden toys down the toilet, without calling witnesses and proving the exact cost of these items. Mediation usually provides a swifter and cheaper resolution to problems. It can also provide an opportunity to repair the often very personal relationships between landlords and tenants by opening channels of communication and fostering greater cooperation in the future.

The disadvantages of using mediation must also be recognized. Often, you are not on an equal footing with your landlord, so you are unable to negotiate from a position of strength. If you are fearful of retaliation or unable to maintain your position in the face of a stronger personality, mediation may be a mistake for you. In addition, many mediators are not trained in landlord-tenant law, and, unlike a judge, a mediator is not required to know the law. While it may be acceptable to ignore the legal issues in your search for an amicable agreement, you should do so only after you thoroughly understand what these issues are. You do not want to find yourself in the position of giving up too much because you are unaware of what may be due to you based on the law.92

A successful mediation will result in a written agreement between the parties. Before you sign an agreement, read it very carefully. Be sure that you can meet its terms. For example, do not agree to a payment plan for back rent that is more than you can afford. If you have no other place to live, do not agree to move in a short period of time. Make sure that you understand every word of the agreement. If you do not, ask the mediator to rewrite the agreement using clearer terms that you understand.

If you are unable to resolve your dispute through mediation, you still have the right to use the court system. Everything said in mediation is confidential and should not be discussed in court. If information from the mediation is used in court, be sure to object to its use by asking the judge to disregard it.

Agreements for Judgments

If you reach a settlement, you must put it in writing and file it with the court as an Agreement for Judgment . Before you sign this document, read it very carefully. Be sure you understand its terms and can carry them out. For example, if you have agreed to a payment plan for back rent, make sure it is realistic, because, if you do not keep to the agreement, a landlord may be able to evict you. In addition, once you have signed the agreement, it will be very difficult to make any changes. At the request of a party, the agreement can be enforced by the court.

Preparing Your Case

Preparing to go to court is 90% of the battle. The other 10% is what happens the day you go to court. The more prepared you are, the better off you will be. Use the What to Bring to Court Checklist, which you will find in Booklet 1, and read Preparing for Trial in Chapter 15: Using the Court System.

Putting On Your Case

When your case is called for trial, you, your witnesses, and your landlord will be sworn in. Your landlord will put on her case first.93  She can put on her case by testifying herself or by calling you or someone else as a witness. You have the right to question (cross-examine) your landlord or any other witness she calls to testify.

After the landlord has finished her case, it is your turn to put on your case. You should tell your story to the judge and give her all the documents that back up what you are saying. The more documents you have proving what you say, the stronger your case will be. (Make sure you save copies of everything for yourself.) The section in this chapter called Important Legal Defenses and Counterclaims will give you specific information about how to prove your claims. Be prepared to be cross-examined and answer questions by the landlord, her lawyer, or the judge.

If you do not have a lawyer, the judge may push you in an effort to speed the case along, and you may find it difficult to tell your full story. Some judges only want to know how much the rent is and whether you always paid it on time. If you are well organized and you stick to the point, it will be easier to get the judge's attention and tell your story. Although you do have the right to be heard, do not expect the court to be a friend. In fact, it may be helpful to take some friends to court for support.

The Court's Decision

After you and your landlord each tell your side of the story, the judge will make a decision. This decision is called a judgment . The judge may announce a decision immediately after the trial, or will say that the case will be "taken under advisement" and send you a written decision in the mail. If you do not get a judgment within several days of the trial, call the court clerk. Tell her the case number and the day you were in court and ask her if a judgment has been made. The official judgment will be entered, or take effect, at 10:00 a.m. on the day after the court makes its decision.94

Read the decision carefully. If you want to challenge the decision, you have a right to appeal it within 10 days of the date the judgment was entered. If you lose the case and do not appeal the court's decision, a clerk will send the landlord an execution . An execution is the court's eviction order.

If your landlord wins the case, the execution gives your landlord permission to have a sheriff or constable physically move you out. If you win your counterclaims in the case, you may get an execution that says that you are entitled to money damages from your landlord. For information about how to collect money from your landlord, see the section called Enforcing Court Judgments in Chapter 15: Using the Court System.

Endnotes

56 . The rules for eviction cases in court are the Uniform Summary Process Rules (U.S.P.R.), which are reprinted at the end of this book.

57 . U.S.P.R. 2(c) specifies Thursdays to be the day for summary process cases, but some courts also schedule summary process cases for other days of the week. Other days may also be used for eviction cases. Check with your court.

58 . U.S.P.R. 2(d). The reason should be stated in the complaint form following the words "unlawfully and against the right of said landlord/owner because." Mass. R. Civ. P. 12(b)(6). See also the commentary to U.S.P.R. 2(d).

59 . G.L. c. 239, §1.

60 . Mass. R. Civ. P. 4(c); U.S.P.R. 2(b). See also G.L. c. 220, §7.

61 . See G.L. c. 223, §31; U.S.P.R. 2(b).

62 . U.S.P.R. 2(b).

63 . Mass. R. Civ. P. 12(b)(5); Hart v. Huckins , 6 Mass. 399 (1810); Inhabitants of Brewer v. Inhabitants of New Gloucester , 14 Mass. 216 (1817). In fact, it is a crime to impersonate a constable, sheriff, or other authority, G.L. c. 268, §33. It might be worthwhile to check whether the constable's license has expired.

64 . Late filing is not permitted without the written assent of the defendant or the defendant's attorney. U.S.P.R. 2(e). See also District Court Bulletin, 2-89 (May 12, 1989). Note that Mass. R. Civ. P. 77(c), which requires clerks to file any papers offered, is inconsistent with U.S.P.R. 2 and therefore does not apply to summary process actions. U.S.P.R. 1.

65 . Mass. R. Civ. P. 6(a).

66 . U.S.P.R. 2(d).

67 . U.S.P.R. 3 requires that the answer date be the Monday after the Monday entry date. Note that filing by mail is not complete until it is received. Courts also have the discretion to allow the late filing of answers, as allowed in U.S.P.R. 10(a) and otherwise. Under U.S.P.R. 3, answer forms must be made available from the court.

68 . As described in U.S.P.R. 2(c), the trial is scheduled for the second Thursday after the entry date (although courts are permitted to schedule trials for other days as well.)

69 . U.S.P.R. 7(b).

70 . Mass. R. Civ. P. 40. You may also file with the court a written motion for a continuance requesting that the trial be postponed. You should include an affidavit (sworn statement) stating the reasons for the postponement. If you are unable to obtain a continuance and you are "defaulted," you should file a motion to remove the default.

71 . G.L. c. 185C, §20. Housing courts have full equitable powers and the same powers as a superior court. Although district courts generally do not have equitable powers, they are given full equitable powers in summary process cases. G.L. c. 218, §19; G.L. c. 185C, §3. In housing court, you have a right to a jury trial. U.S.P.R. 8. A jury trial must be requested when the transfer form is filed.

72 . See generally G.L. c. 185C.

73 . U.S.P.R. 4. If the case has been postponed for two weeks in the district court because discovery was filed, the case can still be transferred the day before the rescheduled trial date.

74 . U.S.P.R. 4 requires that the case be scheduled "forthwith." In practice, the transfer may add two weeks or more of delay. Check with your local housing court to see whether your case will be rescheduled.

75 . U.S.P.R. 3.

76 . The answer form included at the end of this book is generally more useful than the form supplied by the court because it includes all of the most commonly used defenses and counterclaims and has complete instructions for its use.

77 . Mass. R. Civ. P. 6(a).

78 . U.S.P.R. 10(a).

79 . U.S.P.R. 10(c).

80 . U.S.P.R. 10(e).

81 . U.S.P.R. 10(b).

82 . U.S.P.R. 10(a) and (b).

83 . U.S.P.R. 7.

84 . U.S.P.R. 7(b).

85 . U.S.P.R. 7(c). Note that if discovery is being objected to, the motion for a protective order must be filed within five days of the discovery request.

86 . U.S.P.R. 7(d).

87 . U.S.P.R. 7(e).

88 . A report so signed is admissible in evidence without the need to have the inspector present, and is prima facie evidence that the conditions stated in the report exist. G.L. c. 239, §8A. The Board of Health is required to provide this certification on every inspection report. 105 C.M.R. §410.821(A)(8). Note that where a landlord fails to appeal an order of the Board of Health under the administrative appeal process set forth by the state Sanitary Code, the Board's decision becomes final and the landlord is barred from collaterally attacking the decision in a subsequent court action. Lezberg v. Rogers , 27 Mass. App. Ct. 1158 (1989).

89 . Try to state these questions in a way that would require your landlord to answer in short (preferably "yes" or "no") answers that are helpful to your case. For example, if you are claiming that your landlord is evicting you because you called the Board of Health, you might want to ask (among other things): "You didn't start this eviction until after I called the Board of Health, did you?" rather than "Why are you evicting me?"

90 . You may require people to appear, testify, and bring evidence to court by using a subpoena. Mass. R. Civ. P. 45. Anyone can serve a subpoena, but you must serve it according to state law. You can also have a constable serve a subpoena and seek court payment of the cost if you think you may qualify for low-income assistance by filing an Affidavit of Indigency (Booklet 9).

91 . G.L. c. 233, §23C. Also see Supreme Judicial Court Rules, Rule 1:18 Uniform Rules on Dispute Resolution, adopted May 1, 1998, Rule 9, about confidentiality.

92 . Supreme Judicial Court Rules, Rule 1:18 Uniform Rules on Dispute Resolution, adopted May 1, 1998, Rule 6(i), provides that "[i]n dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral [mediator, housing specialist, clerk magistrate] has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case."

93 . If you have filed a motion to dismiss that is to be heard on the trial date, you should remind the judge of this. Since this is a "pre-trial" motion, it would be heard before the landlord begins her case. Also, since you would be the "moving party," you would speak first.

94 . U.S.P.R. 10(d).

 


Produced by Faye B. Rachlin
Created July 2008


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