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On an order issued after the payment hearing, or if there was no payment hearing, upon being informed by the plaintiff that a defendant who has been ordered to pay has failed to obey the order, the clerk shall schedule the matter before the court for enforcement proceedings and shall issue a Notice to Show Cause to the plaintiff, who must arrange for the Notice to Show Cause to be served by an officer duly qualified to serve it. The court may provide for any other means of service in individual cases as is deemed appropriate. The Notice to Show Cause shall indicate the date and time of hearing.
Upon hearing, the court shall take such action, permitted by law, as it deems appropriate to the end that orders of payment are complied with promptly and satisfaction of the judgment in the case is not frustrated. Such enforcement proceedings may be conducted either by a judge or by a magistrate, but a magistrate shall have no authority to enter an adjudication of civil contempt or to issue an order of incarceration. When enforcement proceedings are conducted by a magistrate and it appears that such action may be required, the magistrate shall refer the matter to a judge, who shall make an independent determination whether to enter an adjudication of civil contempt and may issue an order of incarceration or such other order as may be appropriate to enforce payment of the judgment. If a judge is available at the time of such referral, the matter may immediately be placed before the judge.
Unless the court orders otherwise, a defendant who asserts that he or she is presently unable to pay the amount of the judgment in full shall complete a financial statement on a form provided by the court and signed under the penalties of perjury prior to being examined by the court. The financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case, and to the parties in the case. If the court previously determined that at that time the defendant was financially able to comply with the court's payment order, the burden of proof shall be on the defendant to establish that he or she is currently unable to comply with the court's payment order.
If, after a small claim is filed, the defendant moves out of the judicial district where the action was brought, the court may, on request of the plaintiff, transfer the action to the division of the court in the judicial district to which the defendant has moved. If the court orders such a transfer, the docket entries and the original papers in the case shall be forwarded to said court, without payment of an entry fee, and the case shall proceed in that court as though originally entered therein.
Within ten days of full payment of a judgment, the plaintiff shall file an Acknowledgment of Satisfaction of Judgment with the court. Upon the filing of such acknowledgment, the clerk shall recall any outstanding execution.
At the request of the defendant, and upon notice to the plaintiff, a judge or magistrate may order the entry of a docket notation indicating full satisfaction of the judgment if the defendant files an affidavit stating that he or she has made full payment of the judgment, and that the plaintiff has been requested to file an acknowledgment of satisfaction of the judgment and refuses to do so, or that the present address of the plaintiff is unknown. The defendant shall accompany such affidavit with canceled checks or money orders for the full amount of the judgment written by the defendant and made payable to and endorsed by the plaintiff, or cash receipts for the full amount of the judgment made out to the defendant and signed by the plaintiff, or other documents demonstrating the plaintiff’s receipt of full payment of the judgment. Any such docket notation shall establish a rebuttable presumption of full payment of the judgment.
2009 Amendments. Paragraph (d) now authorizes transfer to the appropriate court when the defendant moves from the original court’s geographical jurisdiction, whether before or after judgment.
Paragraph (e) requires for the first time in Massachusetts that the plaintiff file an acknowledgment of satisfaction with the court once a judgment is paid in full. Paragraph (f) provides a remedy to the defendant where plaintiff fails to file an acknowledgment. These additional provisions are necessitated by the difficulty that defendants increasingly experience in proving that a judgment that appears in a credit report was satisfied, sometimes years before.
2001 Amendments. Paragraph (a) is amended to eliminate the directive to the clerk to “make such inquiry into the matter [of non-payment], if any, as he deems useful.” Since a clerk may later preside over enforcement proceedings as a magistrate, such informal contacts are best avoided since they might well involve ex parte discussions that would be inconsistent with a magistrate’s responsibilities under S.J.C. Rule 3:12, Canon 3.
Paragraph (b) reflects the recommendation of the Trial Court Committee on Small Claims Practices and Procedures that magistrates be authorized to preside over proceedings to enforce small claims judgments, but not to enter adjudications of civil contempt or to make orders of incarceration. When such steps appear necessary, the matter is to be transferred to a judge “immediately,” which assumes no need for rescheduling or further notice if a judge is then available.
While it is expected that most proceedings to enforce small claims judgments will be conducted by magistrates, paragraph (b) preserves the authority of judges to preside over such enforcement hearings ab initio.
New paragraph (c) makes it a matter of routine for a defendant who claims to be unable to pay the judgment in full to complete a sworn financial statement. The specific assignment of the burden of proof in paragraph (c) restates current case law. Roy v. Leventhal, 5 Mass. App. Ct. 792 (1977). See also G.L. c. 215, § 34 (in Probate Court contempt proceedings, “the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges violation”). The defendant’s financial statement shall be treated as confidential information in terms similar to those of Rule 401(d) of the Supplemental Rules of the Probate Court. See Rule 7(g) and the Commentary thereto.