Law Office of Michael B. Mangano

We Can Help (978) 416-0121

Monthly Archives: December 2011

You are browsing the site archives by month.

What to Expect During an Eviction Proceeding in Massachusetts.

Everyone who has to appear in court to argue an eviction knows the date and time, but not much else. Most people do not know the specifics of what actually happens nor what to expect from the very time they walk in. This article will run down some of the important things to know before you go to court to argue your summary process case. There is no reason to be kept in the dark. Every court has their own quirky rules so this article is designed to give you the nuts and bolts only.

The Basics:

One of the most important things, and this should go without saying, show up on time. You do not want to be late for any court appearance; showing up late will set a bad example. Sure, you will still probably be able to be heard, but do you really want to take that chance? Most Summary Process hearings start at 9:00am. This means that you and many others will be rushing the doors of the courthouse for first call, and you all have to go through security. Since so many people have to be at the same place at the same time, there is usually a bottleneck at the security checkpoint. You should plan on being at the courthouse at least a half hour early to avoid missing first call.

Second common sense thing to know: dress appropriately. Please do not wear sweatpants and flip-flops. This should, however, not affect the outcome of your case, but keep in mind that you will be surrounded by people wearing suits. I am not saying you have to wear a suit, just dress appropriately. Appearance is important in our society, especially in a courthouse. Think of it this way, you want to blend in with the right people.

Final common sense thing to know: turn your phone off. If you must bring it with you, turn it OFF. Do not turn it to vibrate. If it rings in court you run the risk of having it confiscated.

Once Inside:

Once you have arrived and found the Housing Court Department, you can go into the Clerk’s office to determine which courtroom the cases will be heard in and obtain a list of cases that will be heard that day. It is a good idea to review that list (the docket) to make sure your name is listed. If it is not listed, you should immediately ask an employee of the Housing court and they will help you resolve the issue. It is possible that your case was filed in the District court which has the same authority to hear eviction cases.

Once you confirm your case is on the docket and the appropriate courtroom, you can find a seat in the courtroom for first call. If the courtroom is still locked, wait outside until a staff member opens the door to announce first call. When everyone has filed into the courtroom, the Clerk will begin reading the list of cases for the day. He/She will read both the plaintiff’s name (the person bringing the action) and the defendant’s name (the person responding), and each party must respond with their respective title when the clerk reads their name, which is either “plaintiff” or “defendant.” This is the court’s way of taking attendance.

After the Clerk confirms that both parties are present, they will either assign your case immediately to the judge or to a housing specialist. The Clerk will tell you whether you should appear before the judge or the hosing court specialist after both parties have checked in. After you confirm with the Clerk that you are present, you can leave if you can do so quietly without disturbing anyone. Outside the courtroom find yourself a place to sit and wait.

After everyone has been checked in and assigned to either the judge or the housing specialist, it becomes a waiting game. Some people like to call it a “cattle call.” This means that you sit and wait to be called into the courtroom or the hosing specialist’s office.

Most summary process cases (evictions) are heard by the housing specialist fist. They typically callout the names’ of the parties and bring you into an office. In the office the housing specialist will introduce himself and ask each party to do the same. After everyone is introduced, they will ask the plaintiff to run down the facts of the case and what they are seeking. The defendant then responds with their interpretation and any defenses they have to the eviction. This should be a calm, civil discussion. The housing specialist, who is essentially a mediator, has no authority to bind the parties, so they will most likely allow you to say anything you want if it is in the interest of a settlement. The housing specialist will also tell you what is legal and what is not with regards to a settlement. Don’t be quick to dismiss this process. If you know the outcome will be the same before a judge or if you know that you have no legal argument, don’t waste the court’s time. This type of behavior will only irritate the judge. Most cases resolve during this process. The most common reasons are: you are taking a risk leaving the decision to a judge; and, you can usually work out the same agreement with the housing specialist. If and when an agreement for judgment is made, the housing specialist will put your agreement for judgment in writing for both parties to sign. After the document is signed, it goes to the judge for final decision and to confirm that everything contained within the agreement is lawful. That is it, you can leave if you agree to judgment with the housing specialist. If there was a problem with the agreement for judgment, a member of the court will notify you at a later date and what would be needed to correct the problem.

If your case was assigned immediately to the judge or if you were unable to reach an agreement for judgment with the help of the housing specialist, you will have an opportunity to be heard by a judge. At this point, you should have a seat in the courtroom and wait for your case to be called. Please keep in mind that if you have no lawful reason for not agreeing to judgment with the help of the housing specialist, you run the risk of irritating the judge.

Once you are in the courtroom, the clerk or another member of the court will help everyone get settled. Just listen to what they say and they will instruct you where to go. Once your is called, step forward and introduce yourself. Do not spill your guts right away. The judge will instruct you on how to begin, however, this typically begins with the plaintiff and then the defendant. Remember to speak LOUDLY, think carefully before you respond, be respectful, and stand when you speak. You will have a chance to speak so do not interrupt anyone, especially the judge. Once the judge is satisfied that he/she has heard enough, each party is usually allowed to give a closing statement, which is a short recap.

Everything in the courtroom moves fast, a lot faster than you think. You have to know what you are going to say to be effective. Stay confident and listen to the questions that you are asked and do not volunteer anything that was not asked. It is ok to be nervous, but do not let the nerves impact the outcome of your case.

Keep in mind that each court is a little different, so ask a member of the court of any procedure that you are unsure of, they are usually more than willing to help.

Finally, the judge does not normally say how he/she is ruling at the end of the summary process hearing. They typically take everything under advisement and issue a judgment the following day. You will receive the judgment in the mail. If you do not receive the judgment in the mail, you can contact the Clerk’s office and they will be able to find it for you.

There you have it, a rundown of what to expect the day of trial. This article is long, but it does no justice to the intricacies or idiosyncrasies of the court. Most people do not spend a lot of time in court so I hope that this was some help.

Massachusetts Consumer Protection – Unfair and Deceptive Trade Practices

If you have ever felt that a business had used unfair or deceptive practices against you for personal gain and thought you had no recourse, you were wrong. Massachusetts and the United States prohibit the use of “unfair or deceptive” practices by a business. Each agency has created various consumer protection laws that seek to hold business accountable for these unfair and deceptive practices. The Federal Trade Commission regulates the wrongdoings at the federal level and the Attorney General’s Office of Consumer Protection regulates the practices at the state level.  Both of these regulatory agencies provide enforcement by the government to stop the practices and by the individual’s suit for damages.

In order to bring a consumer protection action, you must be the victim of unfair and deceptive acts that occur “in the conduct of trade or commerce.” This means that you must have been wronged by a business or a person who regularly sells the goods sold or regularly provides services sought.  Therefore, this does not cover private transactions between individuals. Such as the private sale of a used car or sale of old furniture, unless you can prove that they conduct sales of the like on a regular basis for profit.

An unfair or deceptive trade practice occurs when a seller acts unfairly to or deceives a buyer.  Yes, I know, this is a circular explanation, but the act is violated by simply that.  This means that any action by a business that is unfair or deceptive is unlawful. The statute specifically outlines some practices that are considered unfair or deceptive, such as: false advertising, misrepresentation, or deceptive pricing practices. However, if you have been wronged by a business and it is not clearly within the statute, you may still have a claim for damages if the act was unfair or deceptive.

If you feel that you are the victim of an unfair or deceptive trade practice, you should contact a lawyer who can help you fully analyze your situation. After review, you must deliver a 30-day demand letter to the merchant. This letter describes the harm you have suffered as the result of the merchant’s unfair or deceptive actions, how you want to be compensated or how you want to resolve the matter. The merchant has 30-days to respond to your offer in writing with an offer to settle.  You can find examples of these letters online through various Massachusetts agencies.

If the merchant fails to respond within the timeframe, you can proceed with a claim against the merchant. Also, if the merchant does respond and you feel that their offer is inadequate, you can proceed with filing your claim. Cases involving consumer protection matters are usually heard in the Small Claims Court, the District Court, the Housing Court, or the Superior Court. Please be aware that if the merchant does make an offer to settle and you reject it, if the court find that the original settlement was reasonable, you will be limited to the amount offered and will not be able to collect your attorney fees or costs of brining the lawsuit.

If a court finds that a merchant did not make an offer to settle or made an inadequate offer to settle, the court can grant the following if it finds that you had a valid claim: the court can award actual damages or $25.00, whichever is greater; an attorney fee; costs and fees; and between two to three times the damages if it find that the merchant’s conduct was “willful or knowing.” The whole purpose of the law is to put you in the same position you would be economically, had the merchant not breached the consumer protection law. Getting the two to three times damages only happens if you can prove that the merchant’s actions were “willful or knowing,” which can difficult.

In conclusion, if you have been wronged by a business, you are entitled to compensation. You should gather your evidence and seek the advice of counsel who will be able to organize and prepare you for what will happen next. Also, keep in mind that you may have a claim where a lawyer will represent you without a fee, as the court can grant an attorney fee as part of the judgment.