What Happens When a Tenant Does Not Show Up On Eviction Trial Day? by Peter Mark Heintzelman, Esq. (1999 Copyrighted - all rights reserved) After the tenant has been properly served with a notice to quit and eviction summons and complaint, and the case is properly entered into Housing Court, the landlord appears at court on the day of trial, only to find the tenant does not show up. What next? In the Worcester Housing Court, where over 70 evictions per Thursday are scheduled, the court first requires both landlords and tenants to check-in with the clerks. When both sides appear, the court file is placed in the mediation stack. The four court mediators take those cases first into mediation (Always attempt mediation). In the meantime, the court officer will call cases scheduled that day for motions, into the courtroom for the motion session. After the motion session is completed, then the court officer will call the default list. If your tenant has not appeared on eviction trial date, by the time the default list is called, the court officer will call your case, and other cases where only one side or the other appears on trial date. The clerk/magistrate of the court will then go on record, and call the cases outloud in the courtroom. When your case name is called, answer that you are present. If the tenant has not appeared, the clerk will look into the court file to verify that the eviction complaint (called summary process summons and complaint) and the notice to quit are both in the file and are in proper form. If so, the clerk will cause an entry of default to be made in the case, pursuant to Rule 10(a) of the Uniform Summary Process Rules of Procedure. Pursuant to Rule 10(d), you will need to fill out and file a "Military Affidavit" form ( provided by the Clerk's Office), where you sign confirming the tenant not to be in the active military service, confirming whether or not the tenant remains in the rental premises, and what, if any, rental payments have been received by the landlord subsequent to the commencement of the eviction action. Subject to the landlord's compliance with the above, a default judgment for possession and damages owed, shall enter in favor of the landlord "at 10:00 a.m. on the next business day" following the entry of default, according to Rule 10(d). The Court mails to both parties a written notice of the entry of a default judgment. After a trial judgment or after the entry of a default judgment, there exists a ten day appeal period, under General Laws, Ch. 239, section 5. The landlord must wait, and calendar, for the ten day appeal period to expire, before obtaining an "execution"; that piece of paper from the Court which lets the landlord then hire a constable or sheriff to focibly eject the tenant, if necessary from the premises. The execution shall be not only for possession, but also will indicate the damages (rent arrears) awarded the landlord, plus court costs. To obtain the execution for possession and damages owed, the landlord must file a written application for issuance of execution (another form you need to acquire from the court clerk's office) once the ten day appeal period has expired. Usually, within a business day or two, you will receive from the court the execution. At any time, the no-show tenant may later file with the court a motion to remove the default. Rule 10(c) provides: "A default ... may be removed at the court's discretion, on its own initiative or on motion of either party in writing, at any time prior to the entry of judgment on such default ...." Such motions are typically heard, for Worcester cases, on Thursday mornings. The tenant is required to file such written motion with the court and serve the landlord a copy of the motion. Hearings on tenant's motions to remove default generally go like this: Court to Tenant: "Why weren't you here on the original trial date?" Tenant to Court: "Because ... (explanation)." Court to Tenant: "If you had been here on the trial date, what would you have presented at trial to show a justifiable defense and/or counterclaim, which might have caused you to prevail?" Tenant to Court: (explanation). Court to Landlord: "Do you object to the removal of the default, and if so, why?" Landlord to Court: (explanation). After such examination, the Court will determine, in its discretion, whether it will allow the tenant to remove the default, reopen the case, and if so, the Court typically makes the case go forward with trial that same day, unless the landlord requests a continuance to get prepared for trial. More times than not, if the tenant presents to the Court a reasonable explanation of why the tenant failed to appear on trial date, the Court will allow the default to be removed: the Court's objective - to preferably resolve a landlord-tenant dispute based upon the case merits, not upon procedural "technicalities", like a tenant failing to appear at trial. Because motions to remove defaults, at least in the Worcester Housing Court, are fairly regularly granted, a landlord, then, should be prepared to go forward to trial on the date the motion to remove default is scheduled, so be prepared. In opposition to the granting of such motion to remove default, a landlord can attempt to request the court to have the tenant deposit the rent arrears in Court, to show their bona fide good intentions in the case, but such request is not regularly granted by the Court. The removal of default process, then, is fairly pro-tenant, and upsets many landlords who took time out of work/life to be present on the trial date, only to find that the tenant may show up later and be allowed to reopen their case. More and more tenants are becoming aware of this "delay tactic", by not appearing at Court on trial day, and filing a motion to remove default just before the ten day appeal period expires, causing a further week or two delay in the eviction trial date. Although the process seems unfair to landlords, who under numerous laws and rules of procedure, see their cases dismissed for the landlord's noncompliance with technical rules, the tenants seem to "get away with" compliance with rules because of the process. The rules of procedure, however, grant to the judge, in the judge's discretion, the right to remove the default: so, if you do not like the rule, don't blame the Court, seek to change the rules! Just as importantly, be resigned to the likelihood a default may be removed, and remain ready for trial. |
