A clerk refuses to accept my documents for filing in Massachusetts, what should I do?

4 April 2015

Initially, you must diagnose what the problem is.  Is this a case of some legitimate impropriety with the filing and the clerk’s office has the right or obligation to reject it or is it a clerk’s office overstepping its authority?  To investigate this, you will need to be able to articulate exactly why the clerk is refusing the documents/papers.  You will need to pay close attention to why the clerk is rejecting the documents.  Preferably write down the exact reasons and take down citations or request the clerk’s office put the reasons in some informal writing, which it will not likely do.  Once you have the exact reasons, you can research its validity or seek legal advice. 

The general rule is that, absent a law, order, or rule, the clerk’s office must accept and file documents filed with it.  Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court, § 7.11, 4th ed.  Is there a law, order, or rule that supports the clerk’s office’s refusal?  Is the clerk’s office citing a law or rule to you?  If so, it may be proper for it to reject the filing.   

For example, if you are filing a suit with the clerk’s office, one requirement is that a completed statement of damages form must accompany it.  Mass. Gen. Laws c.218, § 19A(a).  Another is, absent indigence, that the filing fee is paid. Mass. Gen. Laws c.262, § 2.  If you are trying to file a complaint without these items, the clerk’s office is not supposed to accept the filing.  The point is, there are some valid reasons and incidences where a clerk’s office should reject a filing.

However, there are also incidences where a clerk’s office is overstepping its boundaries and must accept the documents/papers for filing.  In the author’s opinion and observation, the issue usually is that the clerk’s office is inappropriately evaluating the filing itself and interjecting its own legal opinion into the mix.  See e.g. Gorod v. Tabachnick, 428 Mass. 1001 (1998); Davis v. Tavachnick, 425 Mass. 1010 (1997); Morales v. Commonwealth, 424 Mass. 1010 (1997).  And sometimes, the clerk is simply not performing his duties and meeting its professional responsibilities.  See generally, In the Matter of Clerk-Magistrate Robert E. Powers, 465 Mass. 63 (2013) (finding sufficient cause existed for the removal of the clerk magistrate of Barnstable District Court).

If this happens, the first course of action is to file a motion with the clerk’s office to ask the court to order the clerk’s office to accept the document/paper for filing.  Costello v. Board of Appeals of Lexington, 450 Mass. 1004 (2007); Davis v. Tavachnick, 425 Mass. 1010 (1997); Morales v. Commonwealth, 424 Mass. 1010 (1997).  If you need to take this route, you must be astute and show emotional intelligence.  This is because you are working through and filing the motion with the very office that you are opposing.  Also, you can assume that the clerk’s office will be presenting its case to the judge without your presence and has a great deal of credibility with the judge.  Finally, keep in mind, the judge is human and may be reluctant to order people he relies and works with daily to take an action they do not want to do.  This whole effort will be a delicate one of which you may want to seek counsel to navigate.

Keep in mind, that although there may not be a practical way of implementing this, a judge may permit and accept papers to be filed with the court (judge) as opposed to the clerk’s office.  Mass. R. Civ. P. 5(e).  So if there is some way, like in the court room and on the record, and not one that will land you in jail or otherwise be inappropriate, to approach the judge directly and seek to have the papers filed with the court, it is possible if the judge agrees. 

In the event that the clerk’s office does not accept the motion to ask the court to order the clerk’s office to accept the documents/papers, because it acts as the gatekeeper and is the office you must file documents with, then the next avenue is a writ of mandamas.  Burnham v. Clerk of the First District Court of Essex, 352 Mass. 466, 467 (1967).  This is an action to compel a governmental official to perform his duty.  For this, it is highly advised to hire legal counsel because this is a separate legal action in and of itself. 

   

Overall, if you do find yourself in a situation where a clerk is refusing your filings, it is a tough position to be in.  In the event that you are involved in a dispute with a clerk’s office or have other concerns with how you are being treated in the court system, feel free to give this office a call.

What are the different courts in Massachusetts and which one do I sue someone in?

13 March 2015

There are many different courts in Massachusetts, the Land Court, Probate and Family Court, Housing Court, Juvenile Court, Small Claims Court (which is really part of the District Court), District Court, Boston Municipal Court (which is almost just the same as the District Court), Superior Court.  There is also the Medical Malpractice Tribunal, Department of Industrial Accidents, Department of Unemployment Assistance, and the Massachusetts Commission against Discrimination, which most are agencies but arguably function somewhat like a court in a sense because they decide important legal issues.  This is not to mention the appeals courts, where you bring appeals of decisions of the lower or “trial” courts, which are the Massachusetts Appeals Court and the Supreme Judicial Court.  (There are “appeals” that are brought from agencies to either the District Court or the Superior Court and Small Claims appeals are brought to the District Court.)  There is also the Massachusetts Appellate Division, which hears appeals from decisions in the District Court, but is formally considered part of the District Court.

 

Needless to say, there are a lot of courts to choose from, but for most litigation, not falling under the specialties handled by some of the agencies above, you have the Small Claims Court, District Court, and the Superior Court.

Which one is the right one to file your suit in?  For the right answer, see a qualified, local attorney.  But here are some general guidelines to start the thinking process. 

 

Small claims has a limit of $7,000.00 with some small exceptions and there are some cases you cannot bring there, like defamation claims.  Subject to the exceptions, the small claims court cannot award more than the $7K limit.  The rules of evidence are relaxed and it is designed for a person untrained in the law to be able to present their case using common sense.  There is a right of appeal for the defendant, but generally not for the plaintiff.  If you want a case decided and do not want to get tripped up by legal rules, etc. this is a good place to go.

The District Court has a “procedural limit” of $25,000.00.  This means that you should only bring cases where you expect to win less than $25K, but if for some reason you are awarded more, the court has the power to grant the relief.  If you seek equitable relief, which means that you want to make someone do something or not do something, the District Court can award this but it has to be related to or brought with a claim for money damages generally.  If you do not file in Small Claims, the District Court is probably where most disputes raised by regular individuals are brought (by their lawyers).  Do not think you can simply file a suit in District Court and sit back and wait for a trial and then just use your common sense; that will not work.  You have to follow rules and be proactive.  If you do file suit in this court pro se, you better get acquainted with the rules of civil procedure and follow them and treat the new case like a part-time job.  For almost all people, a lawyer is necessary to navigate the District Court.

Lastly, there is the Superior Court that is designed to decide cases where the expected damages are over $25K.  It has equitable powers (as described above) without restriction.  The rules of this court are more complicated than even the district court.  They play for keeps in the Superior Court.  The author advises that no non-lawyer should bring any case pro se in Superior Court.  You can read Mass. Gen. Laws c. 231 § 6F, which only the Superior Court has the power to employ, as one reason not to.

If you believe you have a claim and are deciding what court to pursue it in or you have been served with the complaint and need help in navigating the rules of court, feel free to give the author a call.

A 1099C form just came in the mail, is this cancellation of debt (COD) income? And if so, what are the tax ramifications?

19 February 2015

This is the time of year that people are taking a look at the tax documents they have received and one of these can be a 1099C from.  This is an entity claiming that it forgave/cancelled debt owed by you to it.  The cancellation of this debt is generally taxable.  (But wait for the good news below.)  It is called cancellation of debt income.

Receiving a 1099C form and being informed for the first time that COD income can be taxable can startle and confuse many people.  The idea that cancelled debt can be taxable is not known by most Americans.  The author can recall learning about COD income in tax class in law school and being surprised by the idea.  But, it is a reality.  Let’s take a brief look at what can be done about it.

The bad news first.  In 2007 Congress passed The Mortgage Forgiveness Debt Relief Act.  Basically, it was a law that declared COD income from the forgiveness of mortgage debt to not be taxable, for many at least.  This gave most Americans the guarantee that if their bank forgave the deficiency after a foreclosure, forgave mortgage debt as the result of a deed in lieu deal, or for some other reason mortgage debt was forgiven, it was not taxable.  However, this expired in 2014, so if you are receiving a 1099C this year (2015) you will not have the benefit of this Act.

The good news is that for most Americans the COD income will still not be taxable.  This is because most Americans are balance sheet insolvent.  What does that mean?  It means that most Americans owe more than they own.  It means if they produced an individual balance sheet with all of their debts on one side and all of their assets on another, the debts would outweigh the assets.

You see, pursuant to tax law, COD income is only taxable to the extent of someone’s solvency.  The way this author understands it, and said in a different way, COD income is not taxable to the extent someone’s debt outweighs their assets.  And if you are like most Americans, your debts will outweigh your assets more than the amount of the COD income you just received.  This is one time that you are glad you are not rich like one of the sharks on Shark Tank. 

Keep in mind, this blog just touches the surface of the subject and you should not rely on it to make decisions.  A better explanation comes from the IRS itself here http://www.irs.gov/Individuals/The-Mortgage-Forgiveness-Debt-Relief-Act-and-Debt-Cancellation.  Even this IRS information is not enough to equip an individual to prepare their own tax return involving COD income.  If you have received a 1099C form, this author recommends to hire an excellent, competent tax professional (this is not something to go to H & R Block about) and be prepared to pay more than you usually do to have your taxes prepared.

In the event that you have financial and legal matters that you need legal advice for, feel free to contact the author to consider an engagement.