Fort Point Investments, LLC v. Kirunge-Smith

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

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error or other formal error, please notify the Reporter of

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22-P-1185 Appeals Court

FORT POINT INVESTMENTS, LLC vs. HOPE KIRUNGE-SMITH & another.1

No. 22-P-1185.

Middlesex. October 13, 2023. – March 4, 2024.

Present: Wolohojian, Desmond, & Sacks, JJ.

Summary Process, Appeal. Landlord and Tenant, Eviction.

Judgment, Relief from judgment, Enforcement. Practice,

Civil, Summary process, Relief from judgment, Execution.

Summary Process. Complaint filed in the Eastern Division

of the Housing Court Department on March 29, 2021.

A motion to vacate a default judgment was heard by Michael

E. Malamut, J., and the reissuance of an execution for

possession was ordered by him.

Alexander H. Loomis for the defendants.

Eleftherios S. Papadopoulos for the plaintiff.

Mark Martinez, for Massachusetts Law Reform Institute,

amicus curiae, submitted a brief.

Joel Feldman, for Heisler & Feldman, P.C., amicus curiae,

submitted a brief.

1 Avery Goldman.

2

SACKS, J. The defendants in this procedurally tangled

summary process case appeal from a Housing Court judge's order

(1) denying their motion for relief from the default judgment

entered against them and (2) declining to recall a second

execution for possession that was issued after the landlord

returned the first execution unused. We affirm the portion of

the order denying the motion for relief from judgment. We

conclude, however, that reissuance of the execution was barred

by G. L. c. 235, § 23, second par., which provides generally

that an execution for possession in a summary process action

shall not be issued later than three months after judgment. The

execution must therefore be recalled.2

Background. The defendants (tenants) rented an apartment

in Cambridge from the plaintiff (landlord). In March 2021, the

landlord, asserting non-payment of rent, commenced this summary

process action. The tenants, who were self-represented, did not

appear on either the original or the rescheduled trial date. On

August 30, 2021, a default judgment entered, and on September

22, 2021, at the landlord's request, an execution for possession

and damages issued.

Nearly six months later, on March 15, 2022, the landlord

moved for reissuance of the execution. In its motion, the

2 We acknowledge the amicus letter-briefs submitted by Joel

Feldman, Esq., and by the Massachusetts Law Reform Institute.

3

landlord asserted that (1) it had refrained from levying on the

execution while it attempted, unsuccessfully, to "work with the

[tenants] to resolve their balance"; (2) in November 2021, when

it attempted to schedule a levy, it discovered that the original

execution issued by the clerk was defective because it was

missing the premises' address; and (3) the landlord had then

mailed the execution to its counsel to return to the court, but

the execution was lost in the mail for some time and had

expired.3 The expired execution was attached to the motion.

On May 17, 2022, a judge issued an order allowing the

motion to reissue the execution. Treating the tenants' ensuing

motion to vacate that order as a motion for reconsideration, he

denied it. On June 16, 2022, the second execution issued. The

tenants filed a notice of appeal and moved for a stay of levy on

the second execution pending appeal.

On June 24, 2022, the tenants moved to vacate the default

judgment. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).

They asserted that their default resulted from excusable neglect

attributable to one tenant's serious medical issues, and that

the landlord's acceptance of funds from the Commonwealth's

3 By statute, "[n]o sheriff, constable, officer, or other

person shall serve or levy upon any such execution for

possession later than three months following the date of the

issuance of the execution." G. L. c. 235, § 23, second par.

Here, the face of the execution stated its expiration date,

December 21, 2021.

4

residential assistance for families in transition program (RAFT

funds) barred the landlord from evicting them.

On June 30, 2022, at a hearing on the tenants' motions, the

parties orally agreed that the tenants could remain in the

apartment for two more months, provided that they timely made

use and occupancy payments for July and August. There was also

discussion of the tenants waiving their right to appeal. The

judge stated that he would reduce the agreement to writing and

issue it as an order. The resulting order stated, among other

things, that the tenants waived all further appeals.

The tenants, denying that they had agreed to vacate the

apartment or to waive their right to further appeals, filed a

motion for clarification and renewed their motion for a stay

pending appeal. In the same motion, they argued that the second

execution should be recalled, because its issuance was barred by

the prohibition in G. L. c. 235, § 23, second par., against

issuing an execution for possession more than three months after

judgment.

The judge denied the tenants' rule 60 (b) motion and their

separate motion seeking clarification, a stay pending appeal,

and recall of the second execution. The tenants then filed

another notice of appeal, and a single justice of this court

allowed the tenants' motion to stay levy on the second execution

pending appeal.

5

Discussion. 1. The rule 60 (b) motion. The tenants argue

that the judge misapplied the standard for determining excusable

neglect and thus abused his discretion in denying their rule

60 (b) motion for relief from judgment. To address this

argument, we must first recount in more detail what the record

shows of the circumstances leading to the default judgment and

the tenants' motion to vacate it.4

a. The default judgment and rule 60 (b) motion. The

action was commenced in March of 2021. The tenants did not

timely file an answer. On the date originally set for trial,

July 23, 2021, the tenants did not appear and were defaulted.

Later that day, one of the tenants appeared in court and told

the judge she had not received notice of the trial date and had

not known when the answer was due.5 Crediting these assertions,

the judge issued an order in open court allowing the tenants an

additional week to file an answer and discovery requests and

rescheduling the trial for August 27, 2021.

4 Although the judge concluded that the tenants, at the June

30, 2022 hearing, waived their right to appeal, he did so before

a transcript of that hearing was available. That transcript now

having been produced, we have reviewed it carefully and conclude

that the tenants did not waive their right to appeal any of the

orders now before us. To the extent the judge found as fact to

the contrary, the finding was clearly erroneous.

5 It appears she was in court for a case management

conference in a prior summary process action, before the same

judge, involving the same parties. The details of that action

are not relevant here.

6

The tenants did not, however, file any answer or discovery

requests, and on the rescheduled trial date, they did not appear

and were again defaulted. The landlord submitted an amended

account of its damages, and on August 30, 2021, the default

judgment entered, awarding the landlord possession as well as

damages and costs. On September 22, 2021, at the landlord's

request, an execution issued for possession and the amount due.

There was no further docket activity until March 16, 2022,

when the landlord returned the execution as defective and,

because it had expired, moved for reissuance of the execution.

At an April 7, 2022 hearing on the motion, the tenants told the

judge that they were seeking alternative affordable housing

elsewhere and asked that the reissuance of the execution be

delayed on equitable grounds. The judge continued the hearing

to April 21, to allow the tenants time to obtain documents to

support their argument. The judge also told the tenants that if

they filed a rule 60 (b) motion before the April 21 hearing, he

would hear the motion on that date.

The hearing was subsequently postponed until May 17, 2022,

by which time the tenants had neither filed a rule 60 (b) motion

nor furnished evidence satisfactory to the judge that they were

sufficiently close to obtaining alternative housing to warrant

an equitable stay. The judge therefore allowed the motion to

reissue the execution; the tenants moved for reconsideration;

7

the judge denied that motion in a written decision; and, on June

16, 2022, the second execution issued.

Only thereafter, on June 24, 2022, did the tenants file

their rule 60 (b) motion. That motion, unsupported by any

affidavits, asserted the following. In late July 2021, due to

one tenant's serious medical issues, they had entrusted to a

third party the mailing of their late answer and a motion to

reschedule the trial. They did not know why neither the court

nor the landlord received those papers. They called the Housing

Court clerk several times and were told that the trial had not

been rescheduled but that they would "get a notice." They

received no such notice, however, and the medical issues made it

impossible for either of them to attend court on the August 27

trial date. They received no notice of the entry of the default

judgment. Their motion also indicated, however, that they knew

by mid-February of 2022, if not earlier, that the original

execution had been issued.

b. Excusable neglect standard. Rule 60 (b) (1) authorizes

relief from judgment in cases of excusable neglect, provided the

motion is made "within a reasonable time, and . . . not more

than one year after the judgment . . . was entered." Mass. R.

Civ. P. 60 (b). In Berube v. McKesson Wine & Spirits Co., 7

Mass. App. Ct. 426 (1979), we stated that motions seeking such

8

relief should "be measured against a consideration, among other

relevant circumstances, of at least the following factors:

"(1) whether the offending party has acted promptly after

entry of judgment to assert his claim for relief therefrom;

(2) whether there is a showing either by way of affidavit,

or otherwise apparent on the record, that the claim sought

to be revived has merit; (3) whether the neglectful conduct

occurs before trial, as opposed to during, or after the

trial; (4) whether the neglect was the product of a

consciously chosen course of conduct on the part of

counsel; (5) whether prejudice has resulted to the other

party; and (6) whether the error is chargeable to the

party's legal representative, rather than to the party

himself; for the courts have been reluctant to attribute to

the parties the errors of their legal representatives"

(quotation and citation omitted).

Id. at 430-431. See Care One Mgt., LLC v. Brown, 98 Mass. App.

Ct. 589, 594 (2020) (same). Rule 60 (b) motions "are commended

to the judge's discretion, and a judge's decision will not be

overturned, except upon a showing of a clear abuse of

discretion" (quotations and citation omitted).6 Care One Mgt.,

LLC, supra.

i. Timeliness. The judge's order denying the rule 60 (b)

motion stated that it was filed two months after the April 21,

2022 date by which he invited them to file it -- a date that he

set so the motion could be heard before he reached the

landlord's request to issue a second execution. Although the

6 Nine months after this appeal was docketed, and after it

was fully briefed, the judge issued a supplemental memorandum

further explaining his reasons for denying the rule 60 (b)

motion. We have not considered the supplemental memorandum.

9

tenants correctly argue that the judge had not expressly set

that date as a deadline, we take the judge to have concluded

that the filing of the motion two months later, on June 24,

2022, was unreasonably late.

The judge had ample basis to do so. The rule 60 (b) motion

was filed nearly ten months after entry of the default judgment;

at least four months after the tenants became aware that the

original execution had issued; more than three months after the

landlord's motion for reissuance of the execution made clear to

the tenants that a default judgment had entered and that the

landlord still sought to enforce it; and more than a month after

the judge had heard and allowed the motion to reissue the

execution, and then invested additional judicial resources in

hearing and issuing a written decision on the tenants' motion

for reconsideration. We cannot say the judge abused his

discretion in viewing the rule 60 (b) motion as untimely.

ii. Meritorious claim. The tenants' rule 60 (b) motion

argued, as explained in more detail infra, that the landlord's

acceptance of RAFT funds created a contract that barred the

landlord from proceeding with the eviction. The judge rejected

this argument on the ground, among others, that there was no

evidence the landlord had ever agreed to such terms. For

somewhat different reasons, we conclude that the argument was

10

not so meritorious, on this record, as to tip the balance in

favor of vacating the judgment.7

The tenants relied on language contained in a RAFT award

letter dated April 22, 2021, addressed to them and the landlord,

apparently issued by a RAFT administering agency. The letter

stated that the tenants' application for RAFT assistance had

been approved in a specified amount. The letter was on a form

issued by the Department of Housing and Community Development

(DHCD),8 and further stated that by accepting RAFT funds, the

landlord agreed to the following terms, among others:

"I agree not to pursue eviction based on rent amounts

reimbursed by these funds and agree to dismiss any pending

eviction case that is based on or seeks to recover the

reimbursed arrears. I may bring an eviction case in the

future if [p]articipant fails to pay future rent due after

the date of this award.

. . .

"Nothing in this [a]greement precludes the owner/agent from

using any and all remedies available under law, including

the institution of eviction proceedings against the

[p]articipant, if the [p]articipant fails to pay any future

rent due after the date of this award or otherwise violates

the terms of tenancy."

7 The tenants urge us, even apart from their rule 60 (b)

appeal, to reach the merits of this argument and finally resolve

it in their favor. We decline to do so. What consequences flow

from accepting RAFT funds is an issue of potentially broad

significance, the resolution of which requires, among other

things, a fuller record of the statutory basis of the program

and of landlords' relationship to it.

8 DHCD's functions were transferred to the new Executive

Office of Housing and Livable Communities by St. 2023, c. 7.

11

The tenants also relied on a DHCD guidance document summarizing

these terms.9

We will assume arguendo, unlike the judge, that the

landlord, by accepting RAFT funds paid on the tenants' account,

contractually bound itself "not to pursue eviction based on rent

amounts reimbursed by these funds and . . . to dismiss any

pending eviction case that is based on or seeks to recover the

reimbursed arrears." Even if that were so, however, the problem

for the tenants here is that they did not establish that the

eviction sought to recover rent amounts for which the landlord

received RAFT funds. Only some of the arrears were paid off by

9 DHCD's 2021 RAFT "Policy Guidelines [Frequently Asked

Questions]" document stated in relevant part that

"[l]andlords/owners will continue to sign a contractual document

and agree not to evict for any payments provided by RAFT. The

landlord may still evict after the RAFT payment is received if

the tenant does not pay any future rent due." Also, attached to

the tenants' appellate brief is a 2021 letter from DHCD's chief

counsel, addressed to a different Housing Court judge in an

unrelated case, discussing the RAFT award letter terms quoted

supra. The letter opined that if the RAFT funds accepted by the

property owner are not sufficient to pay the full amount due,

"the property owner is expected to either enter into a repayment

agreement with the tenant . . . or waive whatever [remaining]

amounts . . . are owed." The letter does not state that such an

agreement or such a waiver is required by RAFT award terms or by

law, nor does the letter itself have the force of law. In any

event, because the letter was not before the judge on the rule

60 (b) motion, we do not consider it further or otherwise rule

on the obligations of landlords that accept RAFT funds.

12

RAFT funds, and the landlord appeared entitled to pursue this

action to recover the arrears that remained.

More specifically, the rent ledger attached to the tenants'

motion showed that as of April 8, 2021 (ten days after the

action was commenced), the tenants were $16,040.07 in arrears on

their rent.10 After further charges and payments, on May 3,

2021, the landlord received a RAFT arrears payment of

$13,633.79, but this still left the tenants $2,679.64 in

arrears. On or about February 22, 2022, the landlord received a

second RAFT arrears payment of $12,658.34, but the tenants

submitted no evidence that this eliminated the arrears they had

accumulated by that time, or any evidence of their account

balance or arrearages during 2022.11

10That ledger contained no information for any earlier

date. Based on a separate ledger including entries only through

December 1, 2020, the tenants argued that in the past the

landlord had improperly charged them for gas and electricity,

but they submitted nothing establishing that any such amounts

were included in the arrearages reflected on the more recent

ledger. On appeal the tenants argue for the first time that

their arrearages included amounts for parking and storage,

nonpayment of which they assert could not be a ground for

eviction. They did not make this argument in their rule 60 (b)

motion, and therefore we do not consider it.

11Although we do not rely upon the point, the landlord's

counsel represented to the judge at the rule 60 (b) hearing that

at no point in the case had the RAFT payments completely

eliminated the arrears and "zeroed the [tenants'] balance."

13

In short, it appeared that, throughout the case, the

landlord was seeking to recover some rent arrearages that had

not been covered by RAFT payments.12 The judge could thus

properly view the tenants' claim that the RAFT award terms

contractually barred the landlord from pursuing the case as

insufficiently meritorious on this record to warrant rule 60 (b)

relief.

iii. When neglectful conduct occurred. The tenants'

neglectful conduct occurred before judicial and opposing-party

resources had been invested in a trial, a factor that ordinarily

presents a better case for rule 60 (b) relief. See Berube, 7

Mass. App. Ct. at 429 (rule more forgiving "where the mischief

leading to the judgment occurs at the pretrial stage"). On the

other hand, even after the tenants became aware of the default

judgment and the execution, they disregarded the judge's

invitation to seek rule 60 (b) relief, and instead raised other

issues necessitating additional hearings, before ultimately

filing their rule 60 (b) motion. Although the tenants were

entitled to raise those other issues, their doing so before

12The default judgment entered on August 30, 2021, awarded

damages of only $2,027. The tenants' rule 60 (b) motion did

not, however, advance any argument based on any discrepancy

between that amount and the greater amount shown as due on the

ledger attached to their motion.

14

filing the rule 60 (b) motion -- which might have mooted those

issues -- could be viewed as unnecessarily burdening the court.

iv. Whether conduct was consciously chosen. The judge did

not go so far as to say that the tenants' failure to appear for

trial "was the product of a consciously chosen course of

conduct." Berube, 7 Mass. App. Ct. at 431. He did, however,

observe that the tenants "made no effort" to demonstrate

excusable neglect. He evidently did not credit the tenants'

vague, unsworn suggestions that they might have been uncertain

about the August 27, 2021 trial date, or that medical issues

prevented both of them from appearing in court on that date.13

See Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 75 (1989)

(judge could properly consider absence of affidavit establishing

reason for default).

v. Remaining Berube factors. As for prejudice to the

other party, see Berube, 7 Mass. App. Ct. at 431, vacating the

judgment might have exposed the landlord to the risk of further

uncollectable rent arrearages,14 but the judge did not expressly

consider this factor. The last Berube factor -- whether the

13Although the tenants' motion asserted that supporting

affidavits were attached, and cited considerable caselaw for the

proposition that affidavits were desirable or even required in

these circumstances, no affidavits were attached.

14At hearing on the rule 60 (b) motion, in response to the

judge's question, the landlord represented that the then-current

arrearage was "upwards of $12,000."

15

neglect was chargeable to counsel rather than the party, see id.

-- was not relevant here, where the tenants were self-

represented at all times through their filing of this appeal.

In light of all the foregoing, the judge did not abuse his

discretion in denying the tenants' rule 60 (b) motion.

2. Reissuance of execution. The tenants argue that G. L.

c. 235, § 23, second par. (§ 23), barred the judge from ordering

the execution to reissue in June of 2022, which was more than

three months after the entry of judgment. Section 23's second

paragraph provides

"Executions for possession of premises rented or

leased for dwelling purposes obtained in actions pursuant

to chapter two hundred and thirty-nine shall not be issued

later than three months following the date of judgment,

except that any period during which execution was stayed by

order of the court or by an agreement of the parties filed

with the court shall be excluded from the computation of

the period of limitation. Such executions shall be made

returnable within three months after the date of issuance

and shall state the date of issuance and the return date.

No sheriff, constable, officer, or other person shall serve

or levy upon any such execution for possession later than

three months following the date of the issuance of the

execution." (Emphasis added.)

Section 23 thus provides both an issuance period and a levy

period. Any execution for possession must be issued within

three months after judgment, although the running of that period

may be tolled by a court order or by a filed agreement of the

16

parties. And any levy on such an execution must occur within

three months after its issuance.15

Although the tenants did not raise their § 23 argument

before the judge ordered the execution to reissue, as would have

been preferable, they did assert it -- and they requested that

the execution be recalled -- in their motion for clarification

and for a stay pending appeal.16 The judge addressed the

argument at a time when he could have granted effective relief;

he issued an order rejecting the argument and denying the

15Although not at issue in this case, other statutes also

bear on the time for issuing summary process executions relative

to the time for appealing a judgment and while an appeal is

pending. See G. L. c. 231, § 115; G. L. c. 235, § 16; G. L.

c. 239, § 5 (a), (e), (h). See also Rule 13 of the Uniform

Summary Process Rules (1980); Mass. R. Civ. P. 62 (d), 365 Mass.

829 (1974); Adjartey v. Central Div. of Hous. Court Dep't, 481

Mass. 830, 857-860 (2019). Here, the judgment against the

tenants was a default judgment, which was not directly

appealable. See Rule 12 of the Uniform Summary Process Rules

(2004); Adjartey, supra at 856. Although the tenants were

entitled to proceed as they did, by moving to vacate the default

judgment and then appealing the order denying that motion, such

an appeal does not by itself stay issuance of the execution.

See Adjartey, supra at 856 n.15, 858.

16The tenants did not label their motion as one seeking to

recall the execution, but we look to the motion's substance, not

solely to its label. See Care & Protection of Rashida, 488

Mass. 217, 233, 236 (2021), S.C., 489 Mass. 128 (2022). Where

the motion requested not merely a stay pending appeal but also

recall of the execution, the judge's order, insofar as it denied

the latter request, was properly appealed to a panel of this

court.

17

motion, and the tenants timely appealed from that order.17 With

the issue thus properly before us, we agree with the tenants

that § 23 barred reissuance of the execution in this case.

The language of § 23 is straightforward, as is its

application to the facts before us. After judgment for

possession issued on August 30, 2021, the original execution for

possession timely issued on September 22, 2021 -- within § 23's

three-month issuance period. The landlord, however, did not

cause levy on the execution to occur during § 23's three-month

levy period. Instead, after the levy period expired, the

landlord, on March 16, 2022, returned the execution to the court

and moved for its reissuance. But that was well outside of

§ 23's three-month issuance period, and the running of that

period had not been tolled "by order of the court or by an

agreement of the parties filed with the court," as § 23 permits.

Therefore, the issuance period had expired, and under § 23 the

17Although the judge expressed doubt that his orders

regarding the execution were appealable, we note that "[w]hile

the issuance of an execution ordinarily may be a ministerial

act, questions of law may be involved which require invocation

of the judicial power, and decisions thereon by the [trial

court] are reviewable by [the appellate courts]" (quotation and

citation omitted). Boston v. Santosuosso, 308 Mass. 202, 206

(1941). See generally First Nat'l Bank of Boston v. Bernier, 50

Mass. App. Ct. 756 (2001) (reviewing and reversing order

allowing late issuance of execution).

18

judge had no authority to order the execution to issue or

reissue.18

The judge concluded that, for two reasons, the landlord's

delay in requesting reissuance was excusable, so that § 23 did

not bar reissuance. First, the judge stated, "the initially

issued execution was incomplete through the fault of the

[c]ourt," in that the execution lacked the address of the

premises at issue. The judge certainly had the authority to

order the defective execution amended, had the landlord timely

requested it. See Chesebro v. Barme, 163 Mass. 79, 81-82

(1895).19 But the landlord did not do so, despite having

discovered the defect at some unspecified time in November

2021.20 And § 23 contains no exception to the three-month

18This view of § 23 is not new. Attached to the tenants'

brief are copies of seven separate orders enforcing § 23's

issuance period. The orders were issued by judges of the

Housing Court between 2003 and 2019, a single justice of this

court in 2000, and a single justice of the Supreme Judicial

Court in 1988.

19In Chesebro, the court said, "the general principle is

that, when the judgment is recovered in a court having

jurisdiction, and the execution is issued by the proper officer,

irregularities either in the mode of issuing it or in the

document itself do not make it void, and that it may be dealt

with by the court upon motion of either party, and amended or

annulled, as justice may require." 163 Mass. at 81-82.

20The landlord could have accompanied such a request with a

motion, or a written agreement signed by the parties, to stay

issuance of the corrected execution. This could have stopped

any further running of the three-month issuance period until

19

issuance period for a case in which the initial execution is

defective.

The judge's second reason for excusing the landlord's delay

was that "the parties were in negotiations for a possible

resolution of [t]enants' arrears through RAFT assistance by

[l]andlord's forbearance during the time of the continuing post-

COVID urgency." No doubt, settlements of summary process cases,

even after judgment, are preferable to physical evictions on

levy of execution. But § 23 contains no exception to the three-

month issuance period for a case in which the parties have been

engaged in settlement negotiations.

Of course, what § 23 does allow is for the running of the

three-month issuance period to be tolled for "any period during

which execution was stayed by order of the court or by an

agreement of the parties filed with the court." If the parties

here wanted more time to pursue settlement negotiations, then,

at any time within the three-month issuance period, they could

have filed with the court a written agreement to stay issuance

of execution for whatever period they wished, or either party

could have moved for an order staying such issuance.21 Had the

such time as the landlord was prepared to move forward, or for

such time as the parties agreed or as was otherwise ordered.

21Apart from the issuance period, whether § 23 may also be

read to allow the running of the three-month levy period to be

20

execution already been issued at the time the landlord

determined that it wanted more time to negotiate, then the

landlord could have returned the execution to the court along

with either a written agreement for a stay of issuance or a

motion for such a stay. The landlord availed itself of none of

these options. Instead, it allowed the three-month issuance

period to lapse.

Although other statutes may affect the time for issuance or

reissuance of a summary process execution for possession, the

judge did not discuss how those statutes may apply in light of

§ 23, nor have the parties done so on appeal. We therefore

merely note the existence of such statutes and leave for another

day the questions they raise.22 One such statute is G. L.

c. 235, § 17, which provides in part: "An original execution

shall not issue after the expiration of one year after the party

is first entitled to take it out; and an alias or other

tolled by a court-filed agreement or a judge's order is a

question not presented by this case and on which we express no

view.

22Similarly, we express no view on whether a landlord's

only remedy if an execution is unavailable is to file another

summary process action. See Duross v. Scudder Bay Capital, LLC,

96 Mass. App. Ct. 833, 839-840 (2020) (discussing G. L. c. 239,

§ 7, and preclusive effect of summary process judgment on

subsequent litigation).

21

successive execution[23] shall not issue after the expiration of

five years from the return day of that which preceded it."24

Another such statute, G. L. c. 235, § 19, provides: "If a

judgment remains unsatisfied after the expiration of the time

for taking out execution thereon, the creditor may obtain a new

execution by motion to the court in which such unsatisfied

judgment was rendered, or he may at any time after the judgment,

subject to [G. L. c. 260, § 20], bring a civil action thereon."25

See First Nat'l Bank of Boston v. Bernier, 50 Mass. App. Ct.

756, 759-760 (2001) (discussing relationship between §§ 17 and

19).

Conclusion. So much of the order dated August 5, 2022, as

denied the tenants' request to recall the execution as untimely

is reversed; the order is otherwise affirmed, and the matter is

An "alias execution" is "[a] second execution issued to

23

enforce a judgment not fully satisfied by the original writ."

Black's Law Dictionary 714 (11th ed. 2019).

"Section 17 has been a part of our statutes in several

24

versions since 1692. St. 1692–3, c. 24, § 3. The critical time

limitation language of § 17 has not varied in its essential

command since that time." First Nat'l Bank of Boston v.

Bernier, 50 Mass. App. Ct. 756, 757 (2001). Section 17 was last

amended in 1948, by St. 1948, c. 113. In contrast, the language

of § 23 with which we are concerned here was added in 1987, by

St. 1987, c. 357, § 1.

General Laws c. 260, § 20, provides: "A judgment or

25

decree of a court of record of the United States or of any state

thereof shall be presumed to be paid and satisfied at the

expiration of twenty years after it was rendered."

22

remanded to the Housing Court where a new order shall enter

recalling the execution.

So ordered.