by Ilana B. Gelfman
In Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021), the Massachusetts Appeals Court considered a case in which a tenant appeared for a summary process trial after failing to file a timely answer. Uniform Summary Process Rule 3 requires a tenant to file his or her answer “no later than the first Monday after the Monday entry day.” Yet the tenant, Jorge Ortiz-Vazquez, was pro se at the time his answer was due and did not meet the deadline.
The Appeals Court determined that the trial court should have permitted Mr. Ortiz-Vazquez to file a late answer and to raise affirmative defenses against eviction. The Appeals Court explained that to “correctly balance the legitimate interests of both parties,” a trial court must consider the “substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Ortiz-Vazquez, 99 Mass. App. at 485. If the trial court had properly balanced the parties’ interests, it would have permitted Mr. Ortiz-Vazquez to raise all applicable defenses against eviction.
A Common Circumstance
Mr. Ortiz-Vazquez’s situation was far from exceptional. In summary process cases decided by the Housing Court in Fiscal Years 2019 and 2020, respectively, 91.3% and 91.5% of defendants appeared pro se. Housing Court Department, Fiscal Year 2019 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2019-housing-court-self-represented-represented-litigants-by-court-location/download; Housing Court Department, Fiscal Year 2020 Statistics, Commonwealth of Mass., https://www.mass.gov/doc/2020-housing-court-self-represented-represented-litigants-by-court-location/download. In general, “the vast majority of tenants in the Housing Court proceed without the benefit of counsel.” Adjartey v. Cent. Div. of Hous. Ct. Dep’t, 481 Mass. 830, 838 (2019).
This poses a serious challenge for the average tenant. Litigating pro se is extremely difficult—and especially so in summary process cases. Summary process cases move quickly. “[F]ewer than seven weeks might elapse between the time that the defendant is served with a notice to quit and the time that he or she is removed from his or her residence.” Id. at 837. Further, summary process cases are “complex.” Id. They are governed by a “web of applicable statutes and rules,” including the Uniform Summary Process Rules, the Massachusetts Rules of Civil Procedure, the summary process statute (G.L. c. 239), and other procedural and substantive laws. Id. at 836-37. “Deciding when to apply which of these rules—and how to resolve inconsistencies among them—is . . . a formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.
Under Uniform Summary Process Rule 3, a tenant’s answer is due before the first court date, when the tenant is least likely to have received any assistance (even limited advice) from an attorney. It is no surprise, then, that the vast majority of summary process defendants do not manage to file a timely answer. For instance, in March 2019 (the month Mr. Ortiz-Vazquez’s case was filed), there were 1,804 cases filed in the Housing Court Department in which the defendant did not default, and in 1,499 of those cases (83%), the defendant appeared without having filed a timely answer. Brief of Amicus Curiae City Life/Vida Urbana in Support of Defendant Appellant Jorge Ortiz-Vazquez and Requesting Reversal at 33-34, Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021). Mr. Ortiz-Vazquez, then, was not at all unusual in missing the deadline. Tenants do so more often than not.
Litigation at the Housing Court
When Mr. Ortiz-Vazquez appeared in court—only three days after the deadline for filing his answer had passed—he filed a motion requesting permission to file a late answer. Mr. Ortiz-Vazquez, a native Spanish speaker, explained that he had not filed a timely answer because he “did not have any help due to [his] langu[a]ge problems,” but that he wished to raise an eviction defense based on ongoing mold and mildew issues in his apartment. Ortiz-Vazquez, 99 Mass. App. Ct. at 476. The Housing Court denied the motion. Id. at 476-77.
The Housing Court’s reasoning was rooted in an earlier eviction action brought against Mr. Ortiz-Vazquez by his landlord. In that earlier case, Mr. Ortiz-Vazquez had failed to file a timely answer, and the Housing Court had granted him leave to file his answer late. Id. at 475. He had then prevailed after raising a defense based on the mold and mildew in his apartment. Id.
Based on that prior case, the Housing Court believed that Mr. Ortiz-Vazquez should have known to file his answer by the deadline when his landlord brought a second summary process action. Id. at 476-77. The Housing Court denied Mr. Ortiz-Vazquez’s motion to file a late answer. Id. at 476. And the Housing Court went further, ruling at trial that the absence of an answer meant that Mr. Ortiz-Vazquez “was precluded from asserting affirmative defenses.” Id. at 478. The Housing Court “said that the tenant was free to pursue his conditions-based claims in an independent action,” but that he could not pursue them as a defense to the pending summary process action. Id. at 477.
In so ruling, the Housing Court denied Mr. Ortiz-Vazquez an important defense to eviction—and precluded him from utilizing a crucial tool for ensuring compliance with the State Sanitary Code. In 1965 the Legislature enacted G.L. c. 239, § 8A, which “grants the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 191-93 (1973). After early efforts to vest enforcement of the State Sanitary Code solely in public agencies proved ineffective due to lack of resources, “[t]he statute’s authorization of rent withholding ‘was [intended] to provide a tenant with [a] means of enforcing the state sanitary code or local health regulations, but without the necessity for a timid tenant to initiate court proceedings.’” Id. at 193-94 (quoting 52 Mass. L.Q. 205, 228). Under the statute, a tenant like Mr. Ortiz-Vazquez can withhold rent due to bad conditions and then raise a conditions-based counterclaim and defense to any resulting eviction for nonpayment of rent. The counterclaim and defense reflect “the public policy of Massachusetts,” which “strongly favors the safety and habitability of homes.” Trustees of Cambridge Point Condo. Trust v. Cambridge Point, LLC, 478 Mass. 697, 707 (2018).
By preventing Mr. Ortiz-Vazquez from raising affirmative defenses, the Housing Court effectively denied him the right to withhold rent and defend himself based on bad conditions, as he had done in the prior eviction action (based on the same mold and mildew that he stated still plagued his apartment). The Housing Court also precluded him from raising any other applicable affirmative defenses, from retaliation to breach of the warranty of habitability to unlawful discrimination. Mr. Ortiz-Vazquez was unable to defend himself at trial, and the Housing Court entered judgment in favor of the landlord. Ortiz-Vazquez, 99 Mass. App. Ct. at 478.
Vacatur by the Appeals Court
The Massachusetts Appeals Court vacated the judgment against Mr. Ortiz-Vazquez. Id. at 486. In doing so, the Appeals Court provided guidance to tenants, landlords, and trial courts alike.
The Appeals Court rejected the test that the Housing Court applied to deny Mr. Ortiz-Vazquez’s motion: “that the tenant knew or should have known about the need to file a timely answer.” Id. at 484. The Appeals Court agreed that this was “an appropriate consideration,” but nonetheless held that the Housing Court had abused its discretion because it had failed to “balance the procedural unfairness to the landlord against the substantial prejudice to the tenant arising from the denial of his statutory right to present an affirmative defense.” Id. at 484-85. Properly balanced, “the prejudice to the tenant far outweighed any inconvenience to the landlord.” Id. at 485. The prejudice to the landlord if the Housing Court had granted the tenant’s motion would have been minimal. Id. By contrast, the denial significantly prejudiced the tenant, and “[p]rohibiting the tenant from asserting affirmative defenses to eviction and to the landlord’s claim for back rent . . . [wa]s inconsistent with the legislative intent behind the statutory scheme and public policy.” Id. at 482.
The Appeals Court also considered and rejected the landlord’s contention that “defenses [that] are not properly raised pretrial” in an answer “must be waived at the trial if objected to by landlords.” Id. at 485 n.25. The Appeals Court explained that Uniform Summary Process Rule 5, which governs counterclaims, “states that the consequence of failing to file a counterclaim with the answer constitutes waiver ‘unless the court shall otherwise order on motion for cause shown.’” Id. at 481 (quoting Uniform Summary Process Rule 5). By contrast, “Rule 3, which governs answers, is silent as to the consequence of the failure to file a timely answer.” Id. at 480-81. The Appeals Court reasoned that “[b]ecause the drafters set forth in the rules a consequence for the failure to assert a counterclaim, but not a consequence for the failure to file an answer, it follows that the right to assert affirmative defenses is not waived when an answer is not filed.” Id. at 481.
The logic of the Uniform Summary Process Rules reflects the reality of litigation in Housing Court. “Residential tenants facing eviction are rarely sophisticated, knowledgeable, or prepared to navigate the legal system. They view an eviction, where they are unrepresented, as an opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)). Thus, “the doctrine of waiver is disfavored in the Housing Court.” Id. at 485 n.25.
The reasoning in Ortiz-Vazquez will apply in most summary process cases where a tenant fails to file a timely answer. The prejudice to the tenant arising from the preclusion of his or her defenses will almost always outweigh any inconvenience to the landlord.
That said, the Appeals Court did not decide if “[t]here may be circumstances where a judge may justifiably deny the tenant’s motion to file a late answer and bar the tenant from raising affirmative defenses to eviction (such as when the judge permits the tenant to file a late answer and he fails to do so, when there is an egregious delay in filing an answer, or when the affirmative defenses raised by the tenant amount to unfair surprise).” Id. at 482. Mr. Ortiz-Vazquez’s case was ordinary, and the Appeals Court did not reach whether the result might be different in extraordinary circumstances.
In such circumstances, one possible rule that might control is Uniform Summary Process Rule 10, which provides: “If the defendant appears but has failed to file a timely answer, no default shall enter.” Mr. Ortiz-Vazquez argued that barring affirmative defenses amounts to a prohibited “default,” and the Appeals Court gave some credence to the argument by acknowledging that “[t]he prohibition on defaults in the rule and the concomitant right to trial on the merits—without any qualifying language—demonstrates an intent to allow tenants to defend evictions on any available basis.” Ortiz-Vazquez, 99 Mass. App. Ct. at 481. Ultimately, however, the Appeals Court declined to “address the tenant’s claim that the [Housing Court] defaulted him in violation of Rule 10(a) of the Uniform Rules of Summary Process.” Id. at 486 n.27. In the future, a court might consider whether barring affirmative defenses amounts to a default—and whether Rule 10 prohibits such a bar even in an extraordinary case.
In an extraordinary case, a court might also reconsider the landlord’s argument regarding waiver. Although “waiver is disfavored in the Housing Court,” id. at 485 n.25, the doctrine might apply where a tenant has done something more than failing to file a timely answer when he or she had reason to know of the deadline. A court might also consider whether, in an exceptional case, striking an affirmative defense would be appropriate as a sanction. In addition, if it is ever appropriate to bar an affirmative defense, then courts might examine whether all defenses are treated equally or whether certain defenses—such as a domestic violence defense under the Violence Against Women Act or a reasonable accommodation claim under anti-discrimination statutes—might be raised as a matter of right, regardless of whether the circumstances would warrant barring other defenses.
“[P]residing over cases involving pro se litigants can be challenging, not least because ‘[w]hile judges must apply the law without regard to a litigant’s status as a self-represented party, our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses.’” Id. at 479 (quoting I.S.H. v. M.D.B., 83 Mass App. Ct. 553, 560-61 (2013)). This challenge arises again and again in summary process actions, where the rules are complex, the litigation is fast-paced, and the majority of defendants proceed pro se. In Ortiz-Vazquez, the Appeals Court determined that by missing the deadline for filing an answer, a tenant does not thereby relinquish the right to raise his or her defenses. Practitioners will be watching carefully to see if this decision is a harbinger of a broader trend of case law ensuring that tenants have the “opportunity to show up in court and simply tell the judge their story.” Id. at 485 n.25 (quoting G. Warshaw, Massachusetts Landlord-Tenant Law § 8:10 (Supp. 2020)).
Ilana B. Gelfman is a Senior Attorney at Greater Boston Legal Services, where she focuses on housing issues and appellate litigation. Prior to working at GBLS, Ilana was a law firm partner, a federal judicial clerk, and a legal services attorney.