NICASTRO LAW, L.L.C.

Judge allows temporary ban on evictions in Massachusetts to remain in place. Federal judge lets state’s moratorium on evictions, foreclosures stand By: State House News Service September 11, 2020 A U.S. District Court judge allowed the state’s temporary ban on evictions and foreclosures to remain in place, issuing a ruling on Sept. 10 in which parties on both sides of the issue saw positives. Judge Mark Wolf told attorneys on Sept. 10 that he would not intervene to lift the ban, according to both the lawyer representing plaintiffs and a state lawmaker who co-authored the original moratorium. Wolf plans to explain his decision in detail in a forthcoming written opinion, according to the online court docket. Gov. Charlie Baker signed a moratorium in April blocking most evictions and foreclosures for several months, aiming to avoid housing disruptions during the COVID-19 pandemic. He later extended its expiration to Oct. 17. Three landlords sued the state, alleging the ban breaches the Constitution’s contracts clause and prevents them from exercising rights to free speech, petitioning the judiciary, and acquiring compensation for unlawful land taking. “While we are currently awaiting the written ruling, my understanding is that today Judge Wolf indicated he would be denying every challenge that was made by the landlords against the eviction moratorium statute itself,” said Rep. Mike Connolly, who co-authored the legislation. “I think this affirms the principle that we as legislators are protecting the public health when we act to ensure housing stability during a pandemic.” MASSLAWYERSWEEKLY.COM Federal judge lets state’s moratorium on evictions, foreclosures stand

Great News!! Housing Court expands e-filing to a civil cases. By: Pat Murphy August 14, 2020 The Housing Court has announced the extension of e-filing capability to all civil cases beginning Aug. 17. “The expansion of electronic filing to include all civil cases is part of a continuous effort by the Trial Court to expand our electronic, [e-filing] and remote capabilities across all departments,” said Trial Court Chief Justice Paula M. Carey and Court Administrator Jonathan S. Williams in a joint statement. “This is both part of our mission to facilitate more efficient document filing and also to expand virtual operations and reduce courthouse visits to ensure the health and safety of the public and our staff during the pandemic.” According to the court, the expanded e-filing will be available on a “permissive basis” to attorneys and self-represented litigants, unless otherwise noted. The court issued a standing order Jan. 27, 2020, implementing mandatory electronic filing for attorneys in summary process and small claims cases. The court’s website states that order remains in effect. To initiate the filing process, the filer will need to register and set up a payment account with Tyler, the court’s online service provider. To file a document, the filer inputs the case information including the applicable Housing Court Division, case category (small claims, summary process) and case type (cause, no cause, foreclosure or non-payment). After filling out the parties’ information, the filer uploads their documents with the appropriate filing codes and submits payment. Once submitted, an “envelope number” is assigned and the filer will receive notice if the envelope has been approved or rejected by the Housing Court. The court clarified that pleadings will continue to be accepted in person and via regular mail unless otherwise noted. Information and materials for attorneys and pro se litigants can be found on the court’s e-filing page at https://www.mass.gov/guides/efiling-in-the-housing-court. MASSLAWYERSWEEKLY.COM Housing Court expands e-filing to all civil cases

Times are tough for Landlords right now. Tenants are given relief. Courts are closed. Evictions are all on hold and Lenders are working with Borrowers on forbearance. Tenant restaurant owners are turning in their keys to their Landlords and walking away from their businesses in some cases. Closed for good! What a change from a few months ago! AOL.COM Coronavirus: How the law can protect you if you can't pay your rent or mortgage

Even though there is a court-ordered pause on tenant evictions and removals, which will continue through mid-April, there is pending legislation on Beacon Hill to halt ALL evictions during the COVID-19 emergency. A coalition of 61 community groups, including bilingual groups and labor unions are calling for swift action from state lawmakers and Gov. Charlie Baker. DOTNEWS.COM Tenant activists, labor groups urge speedy legislation on eviction pause

There is nothing much worse than feeling unequal, unloved or loved less than your other siblings by your own parents. Often, during the probate process, upon the death of a parent, the unfairness from childhood memories rears its head. As a Probate Attorney it is heart wrenching to watch siblings in this type of pain. A great article here on how to diffuse these common probate problems. https://www.wayforth.com/blog/3-common-family-inheritance-fights #inheritance #probate #estateplanning WAYFORTH.COM Family Inheritance Fights: How to Defuse 3 Common Probate Flashpoints

Good Job--DA Rachel Rollins. I agree with her decision. It's about time. Suffolk DA moves to vacate more convictions linked to Dookhan By: Associated Press November 17, 2020 Lawyers Weekly Article: Suffolk County District Attorney Rachael S. Rollins has moved to throw out 108 more convictions tainted by the misconduct of former drug lab chemist Annie Dookhan, she announced on Nov. 17 Rollins said the cases are “forever tainted” by Dookhan, who was convicted of tampering with evidence and sentenced to three years in prison. Thousands of convictions across the state have already been tossed because of Dookhan’s actions. “No defendant impacted by this ignominious chapter of Massachusetts law enforcement history should continue to bear the burden of Dookhan’s deceit, her sad and desperate need for attention, and the enormous amount of harm she inflicted upon so many,” Rollins said. With the coronavirus pandemic disrupting court operations, it was not sensible to allocate resources to the cases, she said. Furthermore, the defendants face mandatory minimums that “make it infinitely easier to persuade and leverage defendants to plead guilty,” Rollins said. A study commissioned by late Supreme Judicial Court Chief Ralph D. Gants this year found that Black and Latino defendants are more likely to get hit with charges that carry mandatory minimum prison time. MASSLAWYERSWEEKLY.COM Suffolk DA moves to vacate more convictions linked to Dookhan

Breaking Case. Police Officers will be held liable for failing to protect persons from danger created or enhanced by the officer's affirmative acts, within certain parameters. Here is the article by Massachusetts Lawyers Weekly: On ‘state-created danger,’ 1st Circuit joins majority Rejects qualified immunity By: Kris Olson November 12, 2020 Police officers can be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts, the 1st U.S. Circuit Court of Appeals has decided, becoming the 10th circuit to adopt the state-created danger substantive due process doctrine. Writing for the panel, Judge Sandra L. Lynch noted that while the 1st Circuit had not previously adopted the doctrine, it had repeatedly outlined its “core elements” in earlier cases. Plaintiff’s counsel Plaintiff’s counsel Most notable of those earlier cases was 2005’s Rivera v. Rhode Island, in which the court held that the mother of a girl who had been killed after telling police repeatedly about threats to her life if she testified at a murder trial had not made out a viable state-created danger claim because the defendant officers’ actions were essential to the investigation and performed appropriately. The present case, Irish, et al. v. Fowler, et al., in which two Maine State Police detectives allegedly triggered a suspect’s rampage by leaving a misguided voicemail on his cellphone, was different, the court concluded. The 1st Circuit specified that a viable state-created danger claim has four components: A state actor must commit affirmative acts that create or enhance a danger to the plaintiff; that danger must be specific to the plaintiff and distinct from the danger to the general public; and the acts must both cause the plaintiff’s harm and shock the conscience. The 1st Circuit added that “deliberate indifference” might shock the conscience, as long as the plaintiff could show the defendant “actually knew of a substantial risk of serious harm and disregarded that risk.” Citing Rivera, the defendants in Irish argued that the use of basic law enforcement investigative tools could never serve as the “affirmative act” underlying a state-created danger claim. But Rivera “established no such thing,” the 1st Circuit clarified. The defendants also argued that violations of state law and department policy could not serve as the basis of a state-created danger claim. But the panel said that such violations “are, at the very least, relevant to determining the conscience-shocking nature of the defendants’ conduct.” The 34-page decision is Lawyers Weekly No. 01-229-20. Right time, right facts The 1st Circuit was clearly waiting for a case with an egregious enough set of facts to adopt the state-created danger doctrine, said the plaintiffs’ attorney, Scott J. Lynch of Lewiston, Maine. Previous cases in which the court stopped just short of endorsing the doctrine were lacking in one or more of the necessary elements, he added. “This case is so bad, it was the right time and the right place” to adopt the doctrine, agreed Suffolk University Law School Professor Karen Blum. To Lynch and others, the more striking part of the decision was that the court denied qualified immunity to the defendants. More than a few courts have found that officers had no way of knowing that their conduct might prevent the use of qualified immunity in the absence of a previous case with facts on “all fours” with their own situation, Lynch said. To Blum, the Irish decision is an antidote of sorts to recent Supreme Court rulings that have left the waters murky. For a plaintiff to get any kind of relief is a “step in the right direction,” she said. Specifically, Blum said it was “refreshing” to see courts take their inquiry beyond whether there is a case directly on point within the circuit. “How the 1st Circuit looked at cases that were out of the circuit is certainly very helpful to plaintiffs,” Providence attorney Georgi J. Vogel-Rosen agreed. Boston attorney Howard Friedman said that aspect of the Irish decision should encourage plaintiffs’ attorneys to broaden their research when assessing their clients’ claims. If they find a “coalescence of rules” in other circuits, that may be enough to get past qualified immunity, he said. Cases like Irish should educate people that qualified immunity “is not an absolute shield,” said Boston attorney Leonard H. Kesten, who frequently defends police officers. Efforts to reach the Maine Attorney General’s Office were unsuccessful. Unheeded warnings At approximately 11:13 a.m. on July 15, 2015, Brittany Irish reported to the Bangor Police Department that Anthony Lord, a former boyfriend, had kidnapped and raped her repeatedly the night before. After being referred to the Maine State Police, Irish repeatedly told detectives Jason Fowler and Micah Perkins that Lord “would become terribly violent” if he knew she was speaking with them. Despite what the detectives had learned about Lord, they did not perform the customary check of the sex offender registry, nor did they take steps available to them to detain Lord, the plaintiffs allege. Instead, the detectives called Lord’s cellphone, and when he did not answer, Perkins left a voicemail, identifying himself as a State Police detective and asking Lord to return his call. Irish, et al. v. Fowler, et al. THE ISSUE: Does the 1st Circuit recognize the state-created danger substantive due process doctrine, which says that police officers can be held liable for failing to protect plaintiffs from danger created or enhanced by their affirmative acts? DECISION: Yes (1st U.S. Circuit Court of Appeals) LAWYERS: Scott J. Lynch of Lynch & Van Dyke, Lewiston, Maine (plaintiffs) Christopher C. Taub and Aaron M. Frey, of the Maine Attorney General’s Office (defense) Less than two hours later, Perkins received notice of a possible suspicious fire, which turned out to be on the property of Irish’s parents. That set off a search for Lord beset by delays and missteps, according to the plaintiffs. Between 3 and 4 a.m., Irish’s mother, Kimberly, told the State Police that she wanted to go with her daughter and her daughter’s boyfriend in her car and spend the night in the State Police parking lot, but she was informed that would be a “dangerous mistake.” She was assured, falsely, that there were “officers in the vicinity” ready to respond if there were any problems. Around the same time, just six miles away, Lord was attacking a man with a hammer and stealing the man’s truck and guns. Lord then drove to Kimberly Irish’s home. Once there, he fired one round with the stolen shotgun at the front door to break the lock, hitting Brittany in the arm. Lord then kicked down the door and shot Brittany’s boyfriend nine times as Brittany watched. After her mother pushed her out a bathroom window, Brittany fled and jumped into a passing truck driven by Carleton Eddy. But before Eddy could pull away, however, Lord managed to jump into the bed of the truck and shot Eddy three times in the neck. He then pulled Brittany out of the truck. It took nine hours for police to free Brittany and apprehend Lord. The District Court below concluded that the plaintiffs had presented triable issues of fact as to whether the detectives had violated their substantive due process rights under a state-created danger theory. However, the court also found that the defendants were shielded by qualified immunity because existence of the state-created danger doctrine was not clearly settled law in the 1st Circuit, especially since two circuits — the 5th and 11th — had rejected the doctrine. The lower court judge dismissed the case, viewing it as “not within the court’s purview to select between the majority and minority rules.” No qualified immunity With respect to whether the defendants could avail themselves of qualified immunity, the 1st Circuit noted that its determination turned on the second prong of the test, whether the unlawfulness of the defendants’ conduct was “clearly established at the time.” lynch-sandra“A circuit split does not foreclose a holding that the law was clearly established, as long as the defendants could not reasonably believe that we would follow the minority approach.” — Judge Sandra L. Lynch The defendants reiterated their argument below that, because the 1st Circuit had not previously recognized the state-created danger doctrine, the law was not clearly established. But the court called that argument “simply incorrect.” The landscape was far different in 1997, when the 1st Circuit decided a case on which the defendants were relying, Soto v. Flores, the panel added. At that point, the 1st Circuit had never discussed the “contours” of the doctrine, and the history of the doctrine was “uneven,” Lynch explained. “All this had changed by the time Detective Perkins left the voicemail for Anthony Lord,” Lynch wrote. By July 2015, the 1st Circuit had discussed the state-created danger doctrine at least a dozen times, even if it had never found it applicable to the facts of a specific case, Lynch noted. Nor did it matter that the 5th and 11th circuits had rejected the state-created danger doctrine. “A circuit split does not foreclose a holding that the law was clearly established, as long as the defendants could not reasonably believe that we would follow the minority approach,” Lynch wrote. The panel called Rivera a “critical warning bell” that officers could be held liable under the state-created danger doctrine when their non-essential affirmative acts enhance a danger to a witness. The 1st Circuit also called “wrong” the defendants’ premise that they were immune from suit because no factually similar cases alerted them that their conduct was impermissible, identifying factually similar cases from the 9th and 7th circuits that it said gave the defendants notice that they could be held liable for violating the Due Process Clause. The panel added that the officers were also on notice that they could be liable for a constitutional violation for failing to take steps to mitigate a danger they had created and misleading the victim about the level of police protection she had. The defendants’ “apparent utter disregard for police procedure” could also contribute to a jury’s conclusion that, with their deliberate indifference to a danger they knowingly created, the defendants engaged in conduct that “shocks the conscience.” RELATED JUDICIAL PROFILES Lynch, Sandra L MASSLAWYERSWEEKLY.COM On ‘state-created danger,’ 1st Circuit joins majority

Massachusetts Housing court Judge determines that Tenants are entitled to 90-day notice in a foreclosure eviction. Massachusetts Lawyers weekly article gives the update. Housing Court judge parses rights of ‘at will’ occupants malmut-michael-judge A bank that acquired a Winthrop home in a foreclosure sale was required to give 90-days’ notice of eviction to those living on the property as tenants at will, a Housing Court judge has ruled. The mortgagor in the case had allowed his daughter, Cheryl Lovering-Manfra, and her family to live in the home with the understanding that they would make payments on a mortgage originally held by World Savings Bank. After default, the holder of the mortgage by assignment, plaintiff Wilmington Trust National Association, instituted foreclosure proceedings and obtained title to the property as the highest bidder at auction. In a summary process action to obtain possession, the plaintiff provided the defendant Manfra family with 72-hour “courtesy notice” to quit the property. The defendants argued that they were entitled to a three-month notice of eviction pursuant to the G.L.c. 186A, the Massachusetts Tenant Protections in Foreclosed Properties Act. Judge Michael E. Malamut agreed, even though the Manfras’ occupancy did not arise from a “bona fide tenancy” as defined by the MTPFPA. “Nevertheless, the Manfras are still tenants,” Malamut wrote. “By virtue of G.L.c. 186, §13, their tenancy at will was not terminated by the foreclosure (as it would have been at common law) and survives until proper termination. In order to terminate their tenancy, the owner in foreclosure must serve on the Manfras the notice to quit applicable to a tenant at will, which under G.L.c. 186, §12, is a three-month notice to quit for a tenant at will for an indefinite term holding by incidents of tenancy (in other words, without ‘rent reserved’).” The 10-page decision is Wilmington Trust National Association v. Lovering, et al., Lawyers Weekly No. 17-011-20. Guidance would be appreciated Defense attorney Jacob T. Simon of Swampscott said the case calls into question what has been standard practice by banks in foreclosure proceedings. “I used to work for the banks,” Simon said. “The 72-hour notice would always be the standard procedure for serving notices to quit post-foreclosure.” Going forward, eviction defense attorneys should consider the applicability of Lovering in post-foreclosure eviction cases involving atypical living arrangements without determined rental periods, Simon suggested. “If there’s a foreclosure in that home, those tenants may have more rights than they otherwise might have thought,” he said, adding that he had already been informed by plaintiff’s counsel that the bank intends to appeal. Framingham real estate attorney Richard D. Vetstein said the case may have limited utility given the unusual fact pattern “The judge correctly points out that the relevant statute is not a model of clarity, so with the inartfully drafted language, I understand why he gave the occupants the benefit of the doubt with the longer notice period,” he said. In a similar case Vetstein handled several years ago, a Housing Court judge ruled that the occupants of a foreclosed property were entitled to a 90-day notice to quit. “Guidance from the Appeals Court or SJC or legislative clarity would be very much appreciated at this point,” he said. Brookline attorney Inessa Shur represents property owners in evictions as part of her landlord and tenant practice. In the foreclosure sale context, Shur said she typically represents third-party buyers, which are not subject to the same statutory requirements that were at issue in Lovering. Shur said the decision essentially recognizes an avenue for relief that at-will tenants would not otherwise have. She explained that the defendants could not establish a bona fide tenancy under Chapter 186A, leaving Chapter 186 as the sole statutory basis for claiming entitlement to a three-month notice to quit. “The judge here found that, given the defendants were able to establish a tenancy, the tenancy needs to be properly terminated according to Chapter 186,” Shur said. Fall River foreclosure and bankruptcy attorney Glenn F. Russell Jr. said he agreed with Malamut’s decision. “We know that the leasehold was not terminated by the foreclosure,” Russell said. Kevin P. Polansky represented the plaintiff bank. The Boston attorney did not respond to a request for comment. Post-foreclosure eviction According to court records, Cheryl Lovering-Manfra’s parents in 2007 executed a mortgage on their home in Winthrop to secure a loan from World Savings Bank. In 2010, Cheryl’s father, Richard Lovering, and her husband, Kevin Manfra, agreed among themselves and without authorization from the lender that the Manfras would move into the home and that Kevin and Cheryl would assume the obligation to make mortgage payments. In exchange, Lovering agreed to live elsewhere and promised to convey title to the property to Kevin and Cheryl at some point in the future. The Manfras made mortgage payments on the property from 2010 until August 2014, after which the loan went into default. Lovering failed to cure the default. “If there’s a foreclosure in that home, those tenants may have more rights than they otherwise might have thought.” In the meantime, Wells Fargo Bank became holder of the mortgage as a successor to World Savings Bank. In May 2018, Wells Fargo assigned the mortgage to the plaintiff, which in June 2019 foreclosed on the premises. The following month, the plaintiff acquired the property as the highest bidder at the foreclosure sale. The plaintiff then filed a summary process action pursuant G.L.c. 239, §1, seeking to recover the property from the defendants. In serving the defendants a 72-hour courtesy notice to quit, the plaintiff asserted that the defendants were tenants at sufferance with no legal right to occupancy as a result of the foreclosure. In opposing eviction, the defendants argued that the plaintiff’s notice to quit was insufficient. Statutory notice required In granting summary judgment to the defendants, Malamut first clarified the defendants’ status. As defined by Massachusetts law, he concluded that, at the time of the foreclosure, the Manfras were tenants at will based on “incidents of tenancy.” “They were obligated to the owner of the Premises, Richard Lovering, to pay the monthly mortgage payments and did make such payments regularly, at least from 2010 through 2014,” Malamut wrote. He observed that, under the circumstances, had Richard Lovering as owner of the property wanted to terminate the Manfras’ tenancy before foreclosure, he would have had to provide them with 90-day notice to quit pursuant to the state law governing estates at will, in particular G.L.c. 186, §11. On the other hand, Malamut noted, the defendants were “clearly” not tenants under a bona fide lease or tenancy within the meaning of G.L.c. 186A, §1, of the Massachusetts Tenant Protections in Foreclosed Properties Act. He reached that conclusion based on the fact that Cheryl Manfra-Lovering is Richard Lovering’s daughter, and the statute expressly provides that a lease or tenancy shall not be considered bona fide “unless: (1) the mortgagor, or the child, spouse or parent of the mortgagor under the contract, is not the tenant; and (2) the lease or tenancy was the result of an arms-length transaction.” The judge said that raised the question of whether any other definition found in G.L.c. 186A, §1, entitled the Manfras to be treated as “tenants” even though they were relatives of the mortgagor. Malamut explored whether that question could be answered in the affirmative based on the statute’s definition of “tenant” as including those who at the time of foreclosure are entitled to occupy housing pursuant to a “bona fide lease or tenancy or tenancy at will.” Malamut acknowledged that the language at issue could be read in the disjunctive, meaning that “bona fide” modified “lease or tenancy” but not “tenancy at will.” “In other words, a person can be a ‘tenant’ for purposes of G.L.c. 186A if the person is either a tenant ‘under a bona fide lease or bona fide tenancy,’ which the Manfras clearly are not, or a ‘tenant at will,’ which the Manfras are,” the judge wrote. But Malamut found that interpretation was not faithful to the text of the statute and concluded a bona fide tenancy under Chapter 186A arises from either a bona fide lease or a bona fide tenancy at will. “Therefore, under G.L.c. 186A, the Manfras as non-bona fide tenants at will are not entitled to the special notice and termination for cause provisions of G.L.c. 186A, §§ 2-4,” he wrote. But Malamut recognized that even if the defendants were not entitled to relief under the MTPFPA, G.L.c. 186, §13, operates to ensure the survival of a tenancy at will in the case of foreclosure “until proper termination.” In that regard, he pointed to G.L.c. 186, §12, as calling for three months’ notice to “determine” an estate at will for an indefinite term. Wilmington Trust National Association v. Lovering, et al. THE ISSUE: Must a bank that acquired a Winthrop home in a foreclosure sale provide 90-day statutory notice of eviction to those living at the property as tenants at will? DECISION: Yes (Housing Court) LAWYERS: Kevin P. Polansky of Nelson Mullins, Boston (plaintiff) Jacob T. Simon of Swampscott (defense) “A 72-hour courtesy notice, which would be applicable to an owner in foreclosure, is not applicable to a tenant whose tenancy survives the foreclosure,” he wrote. The plaintiff argued that the defendants had waived the argument that the bank’s notice to quit was invalid by appearing in the case through counsel, answering the complaint, and participating in discovery. Malamut was unconvinced. “While the propriety of the notice to quit is an issue that certainly could have been raised earlier, and saved the parties time spent in litigation, it is not a service of process issue,” Malamut wrote. “Wilmington Bank was aware the Manfras were obligated, between themselves and Richard Lovering, for the payment of the monthly mortgage payments. … Small errors in the notice to quit will not deprive the court of jurisdiction over a case, but filing the wrong notice to quit is a defense to a summary process action.”

In divorce, wife can’t be ordered to take higher-paying job Appeals Court limits alimony remedy for under-employment By: Pat Murphy October 29, 2020 In amending a judgment of divorce nisi, a judge could not order the wife to take a job in her former profession to remedy her under-employment, the Appeals Court has found. Essex Probate & Family Court Judge Randy J. Kaplan ordered defendant John A. Pavlo to pay alimony to plaintiff Vasiliki S. Pavlo as part of the entry of a judgment of divorce nisi. The judge later determined that the plaintiff was under-employed because she was pursuing a career as a part-time preschool teacher even though she had an accounting degree and had previously worked as a bookkeeper. Accordingly, Kaplan amended the judgment by requiring the plaintiff to seek full-time employment as a bookkeeper. But an Appeals Court panel concluded that Kaplan exceeded her authority under the Massachusetts Alimony Reform Act. “Income attribution, and not an order requiring the wife to obtain work in a specific field, was the remedy for the judge’s properly-supported findings that the wife was underemployed based on her own lack of reasonable efforts,” the panel wrote in an unpublished decision. The eight-page decision is Pavlo v. Pavlo, Lawyers Weekly No. 81-151-20. Leveling the playing field? The plaintiff is represented by Salem attorney Jennifer B. Koiles. “A judge can attribute income to a party but cannot force someone to work,” Koiles said of the decision. “A judge especially cannot force someone to work outside their desired field.” ❝ koiles“A judge can attribute income to a party but cannot force someone to work. A judge especially cannot force someone to work outside their desired field.” — Jennifer B. Koiles, Salem Koiles said she also represents payors of alimony and thinks the ruling will “level the playing field” in that regard. “It gives the payor the ability to go back to the spouse and [incentivize] them to go back to work and earn an income that is commensurate with their abilities,” she said. Koiles said she also argued that the judge’s order violated the 13th Amendment, which among other things prohibits “involuntary servitude.” “The Appeals Court didn’t have to reach that issue,” she said. “But other courts that have had to address this issue have gone that way.” Koiles said her research revealed that courts in both California and Georgia have considered the issue and found orders requiring someone to work a particular job are unconstitutional. Defense counsel Alfred P. Farese III of Everett said in an email that he had not been trial counsel and only argued the case for the husband on appeal. According to Farese, the trial judge issued a temporary order requiring the wife simply to obtain a job commensurate with her training and skills. “[The] wife refused to do so prior to trial, during trial and post-trial,” Farese wrote. “It appears from the record that the court was seeking to establish a ‘market value’ for her services as a bookkeeper. There was no requirement that she remain employed by anyone, but simply to make the effort to see what she could earn.” By refusing to comply with the judge’s orders, the wife was attempting to shift the burden of proof to the defendant as to her earning capacity, Farese said. “It is that shift of the burden of proof that Dr. Pavlo believes was improper,” Farese wrote. Matthew T. Barach, a family law attorney in Framingham, said the Massachusetts Alimony Reform Act does not allow a judge to dictate the employment of a recipient or payor. “It is clear that what the statute does allow Probate & Family Court judges to do is assess whether a party is under-employed and attribute to them income they could potentially be earning in determining what alimony should be,” he said Barach added that the case is important because it tells Probate & Family Court judges that there are limits on their authority under the state alimony law regarding what they can order parties to do. ❝ joyce“The basic human right of being able to decide your own destiny and what you do in your pursuit of happiness is something that comes up against a spouse’s right to support from a former spouse and a child’s right to the support of his or her parents.” — Kimberley J. Joyce, Wellesley Wellesley’s Kimberley J. Joyce agreed that the Appeals Court “got it exactly right.” “In the domestic relations realm, you can’t order somebody to maintain a job, let alone any particular job,” Joyce said. “The basic human right of being able to decide your own destiny and what you do in your pursuit of happiness is something that comes up against a spouse’s right to support from a former spouse and a child’s right to the support of his or her parents. That’s the push-pull that we see here, and it’s a very common one.” Divorce nisi According to court records, the plaintiff filed for divorce in 2015 after 11 years of marriage. The defendant is a successful orthodontist; the plaintiff has an accounting degree and for a period worked part time as a bookkeeper for the defendant’s practice. In March 2017, the lower court entered a temporary order that required the wife to seek part-time employment. After a trial in April 2018, Judge Kaplan entered a judgment of divorce nisi, ordering the defendant to pay alimony. Pavlo v. Pavlo, Lawyers Weekly No. 81-151-20 (8 pages) THE ISSUE: Could a judge in amending a judgement of divorce nisi order the wife to take a job within her former profession as a bookkeeper to remedy her under-employment? DECISION: No (Appeals Court) LAWYERS: Jennifer B. Koiles and Paula A. Occhino, of Koiles & Associates, Salem; Clinton Dalton of Boston (plaintiff) Alfred P. Farese III of Everett (defense) In her findings, Kaplan wrote that the plaintiff was “employable … but that she has failed to make reasonable efforts to find employment.” Specifically, Kaplan found that in response to the March 2017 order, the plaintiff applied for a single job at her children’s school and “made no efforts to obtain employment commensurate with her skills.” Concluding that the plaintiff “could earn substantially more with reasonable efforts,” the judge ordered her to “seek full time employment as a bookkeeper” and document her efforts to do so. In the interim, Kaplan attributed income of $32,000 to the plaintiff. The plaintiff moved for reconsideration, seeking leave to obtain full employment in a field of her choice. According to the plaintiff, she had obtained a level of training in early education and wanted to complete that training to become a full-time Montessori preschool teacher. The judge denied the motion, explaining that the wife had an obligation to maximize her earning potential in order to determine the appropriate amount of the defendant’s alimony obligation. At the same time, Kaplan granted the defendant’s motion to amend the divorce judgment to require the plaintiff to “accept any offer of employment as a bookkeeper that is commensurate with her education and experience.” ‘Clear path’ to a remedy On appeal, the plaintiff argued that the only remedy available to the judge was to attribute income to her based on a determination of her earning capacity. The Appeals Court panel, as a first principle, recognized that alimony is “a creature of statute” governed by the Alimony Reform Act. With respect to the question at hand, the panel pointed out that the statute does not “include any provision authorizing a judge to require a spouse, whether the payor or the recipient of alimony, to work at a specific job or in a specific field.” The panel emphasized that the plaintiff did not contest the lower court’s finding that her current earnings did not reflect reasonable diligence on her part. In such a case, the panel wrote, G.L.c. 208, §53(f), provides a “clear path” to the appropriate remedy: the attribution of income to the under-employed spouse, with the possibility of a commensurate adjustment to the payor spouse’s alimony obligation. “Our courts have consistently recognized income attribution as the proper means of ensuring that a spouse be required to pay alimony according to that spouse’s capacity, ‘with reasonable effort,’ to earn income,” the panel wrote. “Although ‘[l]ess frequently,’ we have also affirmed the attribution of income to an unemployed or underemployed support recipient who failed to make reasonable efforts to earn to his or her capacity.” Given the lack of a statutory basis for the lower judge’s order, the panel vacated that part of the amended judgment requiring the plaintiff to seek full-time employment as a bookkeeper. On the other hand, the panel found no reason to disturb the finding that the plaintiff was not earning to her capacity. Accordingly, the panel remanded the matter for the Probate & Family Court to determine the wife’s present earning capacity.” MASSLAWYERSWEEKLY.COM In divorce, wife can’t be ordered to take higher-paying job

Jury trials have started back up this week for state courts. Here is an article on of first week of jury trials from Lawyers Weekly: "While the numbers may not be what litigators want to hear, the first jury trials in state court since the pandemic hit have received positive reviews from both the judges and attorneys who participated. “The process was flawless,” said Judge John F. Coffey who presided over the drunken-driving case Commonwealth v. Jones on Jan. 12 in Lowell District Court. “There were no breakdowns, and all the jurors felt safe.” That same day, Hanover criminal defense attorney James M. Milligan Jr. obtained not-guilty verdicts for his client, Frank Willey, in another drunken-driving case heard by a jury in Plymouth District Court. Milligan said he gave “a lot of credit” to Judge James M. Sullivan, the court officers, the clerk’s office and maintenance staff. “[The trial] was about as seamless as it could have gone,” he noted. Like Milligan, Chelmsford attorney Robert W. Normandin, who represented the defendant in Jones, had nothing but high praise for the staff at Lowell District Court in ensuring a safe and efficient process. “The facilities people at the Lowell Judicial Center and court officers did an amazing job,” Normandin said. “Everybody that came into the building felt safe. There was plenty of Plexiglas and plenty of sanitizing of the witness box.” Welcome relief Phase 1 of the plan for resuming jury trials in state courts, which involves conducting a limited number of trials with six-person juries in a limited number of courthouses, began Jan. 11 as scheduled. That was welcome relief as the Trial Court originally targeted Oct. 23 for the startup, before delaying its plans until the week of Nov. 30 and then once more to January. The commencement of Phase 1 began paying immediate dividends in terms of resolving the backlog of both civil and criminal cases created by the pandemic’s disruption of court operations. According to the Trial Court, there were four civil cases scheduled to be heard by juries in Middlesex Superior Court in Woburn during the opening week of Phase 1. With those trial dates looming, the court reported that each of the civil cases settled the first week in January. Judge Sullivan said that the preparation by court personnel was critical in how smoothly the jury trial in his courtroom proceeded. “It went far smoother than anyone expected, including myself,” Sullivan said. Because of space concerns, jury empanelment in Commonwealth v. Willey was conducted in the jury pool room, he said. “It’s set up to hold between 80 and 100 people,” Sullivan said. “What we did was break it up and space it out to do the voir dire of a dozen or so jurors at a time.” General voir dire was conducted in an open room with Plexiglas partitions between trial participants and jurors, Sullivan said, adding that individual voir dire was held in an alcove partitioned off of the jury room. A Middlesex Superior Court jury box designed to allow social distancing A Middlesex Superior Court jury box designed to allow social distancing “We were able to empanel a jury out of the very first group of jurors, which was a very, very pleasant surprise,” the judge said. “A lot of that was due to the questionnaires and summonses that were sent out, which gave jurors the ability to opt out. The jurors that showed up were not looking to get out of jury duty. They were ready, willing and able.” Judge Coffey said that the process for jury empanelment in the case he presided over took only a little longer than a normal jury trial, and that 40 people showed up for jury duty. “We did half of [the empanelment] in the jury pool room so that we didn’t have the whole venire up in the courtroom,” Coffey said. Normandin agreed that the empanelment process worked remarkably well. “We had two sets of voir dire questions,” he said. “There were the standard OUI-type questions and a second set of questions aimed at COVID-type issues. That piece of it went very well.” Milligan said he found that sidebars were not an issue. “We did sidebar conferences as we normally would — up at the judge’s bench,” Milligan said. “We just maintained our distance.” He said trial participants had to be more conscious of keeping their voices up because of their masks. “Nobody was allowed to remove their mask,” Milligan said. “A little bit is lost in terms of the ‘theatrics’ of a trial, particularly for lawyers who are animated in making a point. You don’t get to see that smirk. More importantly, it’s harder to see a juror’s reaction to a question, whether they’re smiling or look perplexed.” Likewise, Normandin said the wearing of facemasks generally wasn’t a problem, though it was at times difficult to understand prospective jurors during the voir dire portion of empanelment due to both the masks and the Plexiglas barriers. Judge Coffey noted that there was only one witness called in Jones, a police officer who removed her facemask in the witness box. “She was surrounded by Plexiglas,” Coffey said. “After she took off her mask, she put on a face shield just to make everyone more comfortable. So everybody could see her face and expressions.” The judge added that the new courthouse in Lowell has upgraded technology that allows jurors to view evidence such as photographs via an overhead projector. “We had four photographs introduced into evidence, and with the overhead the jurors didn’t have to touch the photographs,” Coffey said Persistent concerns But despite the smooth process, Normandin said he worries that persistent fears over the COVID virus could skew the makeup of the jury pool and prevent the empanelment of juries that represent a fair cross-section of the community. “A lot of the people that we would want to have in a jury trial are not coming in because of their COVID fears.” — Robert W. Normandin, Chelmsford “The end result is that I am very concerned about jury trials at this stage,” said Normandin, whose client was found guilty on an OUI charge. “It is not about the safety once you get into the building; it’s about the pre-screening and those people who are willing to go into the building. A lot of the people that we would want to have in a jury trial are not coming in because of their COVID fears.” Normandin said he was “shocked” by the guilty verdict in his client’s case. “This was a case that I was confident that the jury would return a not-guilty verdict in a very short period of time,” he said. “Here, it was an hour-and-a-half deliberation.” Some criminal defense attorneys anxious for a jury to hear a client’s case have other concerns. Brookline attorney Frances I. Tucker said she recently had a jury trial scheduled for Jan. 26 that was canceled with no reason given. The case was to be heard in the West Roxbury Division of Boston Municipal Court, but the clerk-magistrate told her there would be no jury trials in West Roxbury during the month of January. Tucker said the assistant district attorney in her client’s case has since agreed to continue the matter until mid-March. “I don’t know if conditions are going to be that much better in the courts in mid-March,” Tucker said. Because the trial date had been set in September, Tucker said she had been reasonably hopeful that the case would go before a jury as scheduled on Jan. 26. “It’s not the first time the case had been put over,” she said. “The case is well over a year old.” The defense attorney surmised that the cancellation was due to West Roxbury not being one of the courts included in the Trial Court’s Phase 1 reopening plans. “I don’t know when they are planning new trials,” Tucker said." MASSLAWYERSWEEKLY.COM Week 1 of state’s jury trial rollout receives good marks

This is a good result for the disabled elderly tenant, though it took several years to get through the court process and to also uphold Judge Winik's finding through the appeal process, it appears the elderly woman was able to retain her Section 8 benefits. Home / Courts and Agencies / Appeals Court / Termination of Section 8 benefits violated fair housing laws Termination of Section 8 benefits violated fair housing laws Tenant’s disability prevents discovery of son’s contraband By: Eric T. Berkman December 17, 2020 The Boston Housing Authority improperly terminated the Section 8 benefits of an elderly disabled woman whose mobility issues apparently prevented her from discovering that her son hid contraband in her apartment, the Appeals Court has found. Police discovered heroin, drug paraphernalia and a high-capacity firearm magazine in plaintiff Flavia Moretalara’s Jamaica Plain apartment after they arrested her son. The BHA terminated the plaintiff’s subsidized housing benefits pursuant to a lease provision that required her to stop guests from engaging in illegal activity on the premises, though the BHA also had a policy requiring it to reasonably accommodate a tenant’s disability in making such decisions. GBLS attorney prevails in case GBLS attorney prevails in case A Housing Court judge enjoined the termination, finding a causal nexus between the tenant’s disability and the lease violation. The judge also found that the BHA failed to provide a legally tenable reason why the tenant had not proposed a reasonable accommodation plan where the tenant had hired a personal care attendant to help monitor the premises while promising that her son would stay away from the apartment. The Appeals Court upheld the decision. “Through its own informal process and three administrative hearings, the BHA has had ample opportunity to try to justify its decision to terminate the plaintiff’s Section 8 benefits. For the reasons set forth above, we conclude that the BHA has not done so,” Judge James R. Milkey wrote for the court. “Moreover, as noted, the BHA’s own policies establish a presumption in the plaintiff’s favor with regard to the import of the plaintiff’s disabilities. … Under these circumstances, we conclude that it is appropriate to affirm the judgment of the Housing Court.” The 25-page decision is Moretalara v. Boston Housing Authority, Lawyers Weekly No. 11-181-20. Important reinforcement Boston Housing Authority spokesperson Lydia Agro said in a prepared statement that the BHA pursued its appeal because it believed the Housing Court ruling was inconsistent with applicable law and regulations and because of the seriousness of the conduct in question. “Currently, we are reviewing the Appeals Court decision with an eye towards reconciling the decision with BHA’s interpretation of these laws and regulations as well as the operation of our Section 8 program,” Agro stated. “In this regard, our goal remains to interpret the laws and regulations applicable to our program accurately and to do all we can to eliminate from our communities the type of criminal activity that is featured in this case.” Plaintiff’s counsel Deena Zakim, a staff attorney with Greater Boston Legal Services, said she was thrilled for her client. “She persevered through this case for several years, bouncing between the housing authority and the Housing Court, [and] can finally breathe and enjoy the safety and stability of her home,” Zakim said. Zakim also said the decision reinforces that the duty of housing authorities to comply with fair housing laws trumps judicial deference to authorities’ exercise of discretion in “one strike” eviction and termination cases. That is only fair, she continued, since tenants who rely on in-home care cannot avoid allowing caretakers into their residences, making their tenancies more vulnerable to misconduct than tenants without disabilities. camara-laura“In situations where there is a clear link between an individual’s disability and their inability to properly monitor or control the behavior of others, a reasonable accommodation of that disability must be provided.” — Laura F. Camara, Justice Center of Southeast Massachusetts Laura F. Camara, senior staff attorney with the Justice Center of Southeast Massachusetts in Brockton, said the decision makes clear to public and subsidized housing providers across the state that their obligations under state and federal anti-discrimination laws do not end simply because there are allegations of drug use or violent criminal activity. “In situations … where there is a clear link, or nexus, between an individual’s disability and their inability to properly monitor or control the behavior of others, a reasonable accommodation of that disability must be provided,” said Camara, who has represented a number of public and subsidized housing tenants facing eviction under such circumstances. Susan A. Silverstein, a senior attorney with the AARP Foundation in Washington, D.C., which submitted an amicus brief in the case, echoed Zakim’s comment that, as a result of the decision, many tenants with disabilities who rely on caregivers in order to remain independent in their communities will be able to keep their affordable housing. “The [federal] Fair Housing Act requires housing providers to make reasonable accommodations to tenants with disabilities, including older tenants, before they can evict them for any reason,” Silverstein said. A. Joseph Ross, a landlord-tenant lawyer in Newton Center, applauded the decision. “This isn’t the first time I’ve seen the Boston Housing Authority do something quickly and not follow their own rules, particularly when they want to get someone for some reason,” he said. “And right now, when we’ve got COVID going on, it’s even less of a good time to be forcing people out onto the street.” Lease violation Moretalara, a cancer survivor, suffers from a number of medical conditions, including vertigo, which leaves her vulnerable to falls. She also has chronic pain that limits her mobility and has necessitated multiple surgeries. The plaintiff moved into her Jamaica Plain apartment in 2001, relying on a Section 8 housing choice voucher administered by the BHA to help pay for her rent. Through the years, various family members, including her son, would help care for her, staying in her second bedroom when visiting for such purposes. Boston police showed up at the plaintiff’s apartment one day in 2015 with a search warrant targeting her son. The officers found a plastic bag containing a gram of heroin in the second bedroom. They also found a high-capacity firearm magazine hidden in a safe and drug paraphernalia under the mattress and in the closet. The son was arrested. The plaintiff did not previously know of her son’s misconduct. Still, the BHA, which was authorized but not required to terminate her Section 8 benefits for serious or repeated lease violations, moved to do so pursuant to a requirement in her lease that she refrain from engaging in illegal activity and that she prevent guests from engaging in illegal activity in the premises as well. Federal law required the BHA to consider all relevant circumstances when considering terminating her benefits, including the extent to which individual family members were involved in the event leading to termination. Moretalara v. Boston Housing Authority THE ISSUE: Did the Boston Housing Authority improperly terminate the Section 8 benefits of an elderly disabled woman whose mobility issues apparently prevented her from discovering that her adult son had hidden narcotics and other contraband in her apartment? DECISION: Yes (Appeals Court) LAWYERS: Deena Zakim of Greater Boston Legal Services, Boston (plaintiff) Michael J. Louis and Angela Marcolina, of Boston Housing Authority, Boston (defense) Additionally, if the family included a person with disabilities, the BHA was required to consider a reasonable accommodation in accordance with federal law and its own policies. Meanwhile, under the BHA’s own reasonable accommodation policy — which included a presumption in the beneficiary’s favor — a Section 8 beneficiary whose disability led to the violation could request that the authority forgo termination if he or she could show an effective plan to keep the violation from recurring. Despite the plaintiff’s request that the BHA reasonably accommodate her disability by allowing her to stay in the apartment with a commitment that her son stay away, a hearing officer approved the termination, which a second hearing officer upheld and then reapproved on remand from the Housing Court. Housing Court Judge Jeffrey M. Winik reversed the hearing officers’ decisions, finding the BHA violated federal and state disability laws, and ordered the plaintiff’s benefits reinstated. The BHA appealed. Decision affirmed In affirming Winik’s judgment, the Appeals Court noted that for the plaintiff to be entitled to a reasonable accommodation, she had to show she was disabled, that there was a causal link between her disability and the lease violation, that the accommodation was reasonable, and that the proposed plan to prevent future lease violations was reasonably likely to work. The court also noted that the hearing officer was obligated to presume the accommodation was necessary and appropriate, and it was up to the BHA to rebut that presumption with substantial and legally valid evidence. Based on the record in the case, Milkey wrote, “[t]he plaintiff presented a facially plausible case that her mobility-limiting disabilities prevented her from finding items that her son secreted in a bedroom that she did not use.” In the face of the presumption in the plaintiff’s favor, Milkey continued, “the BHA failed to establish legally tenable ‘specific reasons’ why there was no causal link between her disabilities and the lease violation for which it terminated her Section 8 benefits.” Accordingly, the court concluded, Winik’s judgment should be affirmed. MASSLAWYERSWEEKLY.COM Termination of Section 8 benefits violated fair housing laws

Boston extending ban on evictions By: Mass. Lawyers Weekly Staff December 30, 2020 City officials have extended the moratorium on non-essential evictions for Boston Housing Authority public housing residents until March 1. The moratorium offers housing stability to the BHA’s public housing residents and reduces coronavirus risks associated with the processing of its non-essential eviction cases, according to a Dec. 29 announcement from the offices of Mayor Martin J. Walsh and BHA Administrator Kate Bennett. The city defines “non-essential evictions” as including all eviction proceedings except for those related to criminal activity, and those that are necessary to protect the health and safety of BHA residents, employees and others. “It’s been a difficult year, with a dueling public health and economic crisis that has hit our communities hard,” Walsh said in a statement. “This moratorium continues to serve the best interests of both our residents who struggle to make ends meet and of our city as a whole, as we fight to maintain the health and safety of our city.” The BHA was the first major housing provider in Boston to implement a moratorium on non-essential evictions in March 2020. Its previous extension was set to expire at the end of 2020. Since the start of the COVID-19 pandemic, the city of Boston and the BHA have taken certain actions to protect homeowners and renters from eviction and have made resources available to help residents stay in their homes. For example, the city has contracted with Greater Boston Legal Services to add additional attorneys to assist tenants facing eviction. In addition, the Office of Housing Stability has expanded the Housing Court Navigator Program that assists tenants who are in Housing Court and need financial, legal or other assistance. MASSLAWYERSWEEKLY.COM Boston extending ban on evictions

Call me crazy!! But wouldn't it be better to give the $8.6 million from the Cares Act directly to the landlords who have tenants facing eviction because they are behind on rent due to the pandemic, rather than give the $8.6 million to the lawyers to fight the evictions? What am I missing here? I know I am a lawyer; and I am happy for my colleagues to get business, BUT this makes absolutely no sense to me. Am I alone on this one? MASSLAWYERSWEEKLY.COM Legal aid program for tenants, landlords scaling up as eviction cases rise