Advisory  Implementation of Mass. R. Civ. P. 8.1, Special requirements for certain consumer debts and Mass. R. Civ. P. 55.1, Special requirements for defaults and default judgments for certain consumer debts

Date:	12/19/2018
Organization:	Executive Office of the Trial Court
Referenced Sources:	Civil Procedure Rule 8.1: Special requirements for certain consumer debts Civil Procedure Rule 55.1: Special requirements for defaults and default judgments for certain consumer debts

Implementation of Mass. R. Civ. P. 8.1 special requirements for certain consumer debts

A. The Clerk is not required to review incoming cases to determine the applicability of, or plaintiff’s compliance with, Rule 8.1

Whether Rule 8.1 applies to an incoming case, and, if so, whether the plaintiff has complied with the rule (e.g., has included with the complaint the four required forms) has no effect on the commencement of an action. The failure to attach the documentation required pursuant to this rule will become relevant only upon the request for a default under Rule 55.1.

B. The applicability of Rule 8.1 to an incoming case will be indicated by the plaintiff by means of the check box

As referenced above, the Statement of Damages form (applicable to the Boston Municipal Court and District Court) and the Civil Action Cover Sheet (applicable to the Superior Court) have been revised to include a check box for use by the plaintiff to indicate whether a case is governed by Rule 8.1.

Any question whether Rule 8.1 applies raises an issue of law, and therefore will require a judicial determination.

C. Cases in which the plaintiff has indicated that Rule 8.1 applies will be identified in MassCourts by a unique case category

Use of this case category may be helpful to Clerks concerning what steps a Clerk must take, under Rule 55.1, in cases where the plaintiff requests a default, discussed below, particularly in high-volume courts.  Rule 55.1 applies only to cases to which Rule 8.1 applies.

Implementation of Mass. R. Civ. P. 55.1

A. Entry of default

1. If the plaintiff requests a default in a case that plaintiff has indicated is governed by Rule 8.1, then, in compliance with Rule 55.1, before entering the default, the Clerk MUST confirm that the Plaintiff has filed a Rule 55.1 Affidavit which includes proof of service.                 

2. The Clerk MAY:

• Rely exclusively on the Rule 55.1 Affidavit; or
• Confirm that the Plaintiff has
  • Filed and served with the complaint the documents required under Rule 8.1; and
  • Made service f the complaint and required documents at the defendant’s verified address or in-hand.

3. The Clerk MUST ALSO confirm that plaintiff has complied with the other requirements for entry of default applicable to all cases under Mass. R. Civ. P. 55(a).

4. If the Clerk does not enter a default because of non-compliance with Rule 55.1, the Clerk MUST:

• Send to the parties a copy of the Notice of Non-Entry of Default;
• Track (enter as tickler in MassCourts) the case for entry of the judgment of dismissal on or after the 30^th day after the date of the Notice of Non-Entry of Default;
• If the case is dismissed, send the parties a Notice of Entry of Judgment of Dismissal in the usual manner;
• If the plaintiff files a Request to show cause why dismissal should not be entered before the case is dismissed, the Clerk must schedule such hearing before a judge and send notice thereof to the parties.              

B. Entry of default judgment

1. Applicability of Mass. R. Civ. P. 55(b)(1) and (b)(2)

If the clerk enters default in a case to which Rule 55.1 applies, and if the case is governed by Mass. R. Civ. P. 55(b)(1) (i.e., it is a “sum certain” case), the clerk MUST proceed with the entry of default judgment in accordance with the latter rule.

If the clerk enters default in a case to which Rule 55.1 applies, but the case is one in which entry of default judgment requires a judicial assessment hearing under Mass. R. Civ. P. 55(b)(2), the Clerk MUST schedule such a hearing before a judge. 

If the clerk does not enter default for plaintiff’s non-compliance with Rule 55.1, or for any other reason, the issue of default judgment will be moot as no default has been entered.

2. Determination of Entitlement to Judgment and Judgment Amount under Rule 55.1

 Rule 55.1(c) imposes a prerequisite for the entry of default judgment in these cases: 

No default judgment against the defendant shall enter unless the clerk (if under Rule 55(b)(1)) or court (if under Rule 55(b)(2)) determines that the documentation filed and served by the plaintiff pursuant to Rule 8.1 and the affidavit pursuant to subdivision (b)(1) of this rule establish the plaintiff’s entitlement to judgment in the amount claimed by the plaintiff.

However Rule 55.1 also provides:

In entering a default judgment, the clerk or court may rely upon the affidavit pursuant to subdivision (b)(1) of this rule.

The Rule 55.1 affidavit addresses both plaintiff’s compliance with Rule 8.1 and plaintiff’s “entitlement to judgment in the amount claimed.” Thus, if the plaintiff has filed this affidavit, the clerk is not required to make an independent determination on these matters before entering default judgment. ¹

¹ The situation appears to be different for judges. That is, notwithstanding the “reliance” provision in Rule 55.1(c), judges conducting assessment hearings under Mass. R. Civ. 55(b)(2) (i.e., in all non-“sum certain” default cases) are required, under the provisions of that rule and related case law, to determine the plaintiff’s entitlement to the amount claimed before entering a default judgment. There is no provision in Rule 55(b)(2) authorizing a judge to rely solely on plaintiff’s Rule 55.1 affidavit of compliance to determine entitlement to the amount claimed.