Fort Point Investments, LLC v. Kirunge-Smith

NOTICE: All slip opinions and orders are subject to formal
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22-P-1185 Appeals Court

FORT POINT INVESTMENTS, LLC vs. HOPE KIRUNGE-SMITH & another.1

No. 22-P-1185.

Middlesex. October 13, 2023. – March 4, 2024.

Present: Wolohojian, Desmond, & Sacks, JJ.

Summary Process, Appeal. Landlord and Tenant, Eviction.
Judgment, Relief from judgment, Enforcement. Practice,
Civil, Summary process, Relief from judgment, Execution.

Summary Process. Complaint filed in the Eastern Division
of the Housing Court Department on March 29, 2021.

A motion to vacate a default judgment was heard by Michael
E. Malamut, J., and the reissuance of an execution for
possession was ordered by him.

Alexander H. Loomis for the defendants.
Eleftherios S. Papadopoulos for the plaintiff.
Mark Martinez, for Massachusetts Law Reform Institute,
amicus curiae, submitted a brief.
Joel Feldman, for Heisler & Feldman, P.C., amicus curiae,
submitted a brief.

1 Avery Goldman.
2

SACKS, J. The defendants in this procedurally tangled

summary process case appeal from a Housing Court judge's order

(1) denying their motion for relief from the default judgment

entered against them and (2) declining to recall a second

execution for possession that was issued after the landlord

returned the first execution unused. We affirm the portion of

the order denying the motion for relief from judgment. We

conclude, however, that reissuance of the execution was barred

by G. L. c. 235, § 23, second par., which provides generally

that an execution for possession in a summary process action

shall not be issued later than three months after judgment. The

execution must therefore be recalled.2

Background. The defendants (tenants) rented an apartment

in Cambridge from the plaintiff (landlord). In March 2021, the

landlord, asserting non-payment of rent, commenced this summary

process action. The tenants, who were self-represented, did not

appear on either the original or the rescheduled trial date. On

August 30, 2021, a default judgment entered, and on September

22, 2021, at the landlord's request, an execution for possession

and damages issued.

Nearly six months later, on March 15, 2022, the landlord

moved for reissuance of the execution. In its motion, the

2 We acknowledge the amicus letter-briefs submitted by Joel
Feldman, Esq., and by the Massachusetts Law Reform Institute.
3

landlord asserted that (1) it had refrained from levying on the

execution while it attempted, unsuccessfully, to "work with the

[tenants] to resolve their balance"; (2) in November 2021, when

it attempted to schedule a levy, it discovered that the original

execution issued by the clerk was defective because it was

missing the premises' address; and (3) the landlord had then

mailed the execution to its counsel to return to the court, but

the execution was lost in the mail for some time and had

expired.3 The expired execution was attached to the motion.

On May 17, 2022, a judge issued an order allowing the

motion to reissue the execution. Treating the tenants' ensuing

motion to vacate that order as a motion for reconsideration, he

denied it. On June 16, 2022, the second execution issued. The

tenants filed a notice of appeal and moved for a stay of levy on

the second execution pending appeal.

On June 24, 2022, the tenants moved to vacate the default

judgment. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).

They asserted that their default resulted from excusable neglect

attributable to one tenant's serious medical issues, and that

the landlord's acceptance of funds from the Commonwealth's

3 By statute, "[n]o sheriff, constable, officer, or other
person shall serve or levy upon any such execution for
possession later than three months following the date of the
issuance of the execution." G. L. c. 235, § 23, second par.
Here, the face of the execution stated its expiration date,
December 21, 2021.
4

residential assistance for families in transition program (RAFT

funds) barred the landlord from evicting them.

On June 30, 2022, at a hearing on the tenants' motions, the

parties orally agreed that the tenants could remain in the

apartment for two more months, provided that they timely made

use and occupancy payments for July and August. There was also

discussion of the tenants waiving their right to appeal. The

judge stated that he would reduce the agreement to writing and

issue it as an order. The resulting order stated, among other

things, that the tenants waived all further appeals.

The tenants, denying that they had agreed to vacate the

apartment or to waive their right to further appeals, filed a

motion for clarification and renewed their motion for a stay

pending appeal. In the same motion, they argued that the second

execution should be recalled, because its issuance was barred by

the prohibition in G. L. c. 235, § 23, second par., against

issuing an execution for possession more than three months after

judgment.

The judge denied the tenants' rule 60 (b) motion and their

separate motion seeking clarification, a stay pending appeal,

and recall of the second execution. The tenants then filed

another notice of appeal, and a single justice of this court

allowed the tenants' motion to stay levy on the second execution

pending appeal.
5

Discussion. 1. The rule 60 (b) motion. The tenants argue

that the judge misapplied the standard for determining excusable

neglect and thus abused his discretion in denying their rule

60 (b) motion for relief from judgment. To address this

argument, we must first recount in more detail what the record

shows of the circumstances leading to the default judgment and

the tenants' motion to vacate it.4

a. The default judgment and rule 60 (b) motion. The

action was commenced in March of 2021. The tenants did not

timely file an answer. On the date originally set for trial,

July 23, 2021, the tenants did not appear and were defaulted.

Later that day, one of the tenants appeared in court and told

the judge she had not received notice of the trial date and had

not known when the answer was due.5 Crediting these assertions,

the judge issued an order in open court allowing the tenants an

additional week to file an answer and discovery requests and

rescheduling the trial for August 27, 2021.

4 Although the judge concluded that the tenants, at the June
30, 2022 hearing, waived their right to appeal, he did so before
a transcript of that hearing was available. That transcript now
having been produced, we have reviewed it carefully and conclude
that the tenants did not waive their right to appeal any of the
orders now before us. To the extent the judge found as fact to
the contrary, the finding was clearly erroneous.

5 It appears she was in court for a case management
conference in a prior summary process action, before the same
judge, involving the same parties. The details of that action
are not relevant here.
6

The tenants did not, however, file any answer or discovery

requests, and on the rescheduled trial date, they did not appear

and were again defaulted. The landlord submitted an amended

account of its damages, and on August 30, 2021, the default

judgment entered, awarding the landlord possession as well as

damages and costs. On September 22, 2021, at the landlord's

request, an execution issued for possession and the amount due.

There was no further docket activity until March 16, 2022,

when the landlord returned the execution as defective and,

because it had expired, moved for reissuance of the execution.

At an April 7, 2022 hearing on the motion, the tenants told the

judge that they were seeking alternative affordable housing

elsewhere and asked that the reissuance of the execution be

delayed on equitable grounds. The judge continued the hearing

to April 21, to allow the tenants time to obtain documents to

support their argument. The judge also told the tenants that if

they filed a rule 60 (b) motion before the April 21 hearing, he

would hear the motion on that date.

The hearing was subsequently postponed until May 17, 2022,

by which time the tenants had neither filed a rule 60 (b) motion

nor furnished evidence satisfactory to the judge that they were

sufficiently close to obtaining alternative housing to warrant

an equitable stay. The judge therefore allowed the motion to

reissue the execution; the tenants moved for reconsideration;
7

the judge denied that motion in a written decision; and, on June

16, 2022, the second execution issued.

Only thereafter, on June 24, 2022, did the tenants file

their rule 60 (b) motion. That motion, unsupported by any

affidavits, asserted the following. In late July 2021, due to

one tenant's serious medical issues, they had entrusted to a

third party the mailing of their late answer and a motion to

reschedule the trial. They did not know why neither the court

nor the landlord received those papers. They called the Housing

Court clerk several times and were told that the trial had not

been rescheduled but that they would "get a notice." They

received no such notice, however, and the medical issues made it

impossible for either of them to attend court on the August 27

trial date. They received no notice of the entry of the default

judgment. Their motion also indicated, however, that they knew

by mid-February of 2022, if not earlier, that the original

execution had been issued.

b. Excusable neglect standard. Rule 60 (b) (1) authorizes

relief from judgment in cases of excusable neglect, provided the

motion is made "within a reasonable time, and . . . not more

than one year after the judgment . . . was entered." Mass. R.

Civ. P. 60 (b). In Berube v. McKesson Wine & Spirits Co., 7

Mass. App. Ct. 426 (1979), we stated that motions seeking such
8

relief should "be measured against a consideration, among other

relevant circumstances, of at least the following factors:

"(1) whether the offending party has acted promptly after
entry of judgment to assert his claim for relief therefrom;
(2) whether there is a showing either by way of affidavit,
or otherwise apparent on the record, that the claim sought
to be revived has merit; (3) whether the neglectful conduct
occurs before trial, as opposed to during, or after the
trial; (4) whether the neglect was the product of a
consciously chosen course of conduct on the part of
counsel; (5) whether prejudice has resulted to the other
party; and (6) whether the error is chargeable to the
party's legal representative, rather than to the party
himself; for the courts have been reluctant to attribute to
the parties the errors of their legal representatives"
(quotation and citation omitted).

Id. at 430-431. See Care One Mgt., LLC v. Brown, 98 Mass. App.

Ct. 589, 594 (2020) (same). Rule 60 (b) motions "are commended

to the judge's discretion, and a judge's decision will not be

overturned, except upon a showing of a clear abuse of

discretion" (quotations and citation omitted).6 Care One Mgt.,

LLC, supra.

i. Timeliness. The judge's order denying the rule 60 (b)

motion stated that it was filed two months after the April 21,

2022 date by which he invited them to file it -- a date that he

set so the motion could be heard before he reached the

landlord's request to issue a second execution. Although the

6 Nine months after this appeal was docketed, and after it
was fully briefed, the judge issued a supplemental memorandum
further explaining his reasons for denying the rule 60 (b)
motion. We have not considered the supplemental memorandum.
9

tenants correctly argue that the judge had not expressly set

that date as a deadline, we take the judge to have concluded

that the filing of the motion two months later, on June 24,

2022, was unreasonably late.

The judge had ample basis to do so. The rule 60 (b) motion

was filed nearly ten months after entry of the default judgment;

at least four months after the tenants became aware that the

original execution had issued; more than three months after the

landlord's motion for reissuance of the execution made clear to

the tenants that a default judgment had entered and that the

landlord still sought to enforce it; and more than a month after

the judge had heard and allowed the motion to reissue the

execution, and then invested additional judicial resources in

hearing and issuing a written decision on the tenants' motion

for reconsideration. We cannot say the judge abused his

discretion in viewing the rule 60 (b) motion as untimely.

ii. Meritorious claim. The tenants' rule 60 (b) motion

argued, as explained in more detail infra, that the landlord's

acceptance of RAFT funds created a contract that barred the

landlord from proceeding with the eviction. The judge rejected

this argument on the ground, among others, that there was no

evidence the landlord had ever agreed to such terms. For

somewhat different reasons, we conclude that the argument was
10

not so meritorious, on this record, as to tip the balance in

favor of vacating the judgment.7

The tenants relied on language contained in a RAFT award

letter dated April 22, 2021, addressed to them and the landlord,

apparently issued by a RAFT administering agency. The letter

stated that the tenants' application for RAFT assistance had

been approved in a specified amount. The letter was on a form

issued by the Department of Housing and Community Development

(DHCD),8 and further stated that by accepting RAFT funds, the

landlord agreed to the following terms, among others:

"I agree not to pursue eviction based on rent amounts
reimbursed by these funds and agree to dismiss any pending
eviction case that is based on or seeks to recover the
reimbursed arrears. I may bring an eviction case in the
future if [p]articipant fails to pay future rent due after
the date of this award.

. . .

"Nothing in this [a]greement precludes the owner/agent from
using any and all remedies available under law, including
the institution of eviction proceedings against the
[p]articipant, if the [p]articipant fails to pay any future
rent due after the date of this award or otherwise violates
the terms of tenancy."

7 The tenants urge us, even apart from their rule 60 (b)
appeal, to reach the merits of this argument and finally resolve
it in their favor. We decline to do so. What consequences flow
from accepting RAFT funds is an issue of potentially broad
significance, the resolution of which requires, among other
things, a fuller record of the statutory basis of the program
and of landlords' relationship to it.

8 DHCD's functions were transferred to the new Executive
Office of Housing and Livable Communities by St. 2023, c. 7.
11

The tenants also relied on a DHCD guidance document summarizing

these terms.9

We will assume arguendo, unlike the judge, that the

landlord, by accepting RAFT funds paid on the tenants' account,

contractually bound itself "not to pursue eviction based on rent

amounts reimbursed by these funds and . . . to dismiss any

pending eviction case that is based on or seeks to recover the

reimbursed arrears." Even if that were so, however, the problem

for the tenants here is that they did not establish that the

eviction sought to recover rent amounts for which the landlord

received RAFT funds. Only some of the arrears were paid off by

9 DHCD's 2021 RAFT "Policy Guidelines [Frequently Asked
Questions]" document stated in relevant part that
"[l]andlords/owners will continue to sign a contractual document
and agree not to evict for any payments provided by RAFT. The
landlord may still evict after the RAFT payment is received if
the tenant does not pay any future rent due." Also, attached to
the tenants' appellate brief is a 2021 letter from DHCD's chief
counsel, addressed to a different Housing Court judge in an
unrelated case, discussing the RAFT award letter terms quoted
supra. The letter opined that if the RAFT funds accepted by the
property owner are not sufficient to pay the full amount due,
"the property owner is expected to either enter into a repayment
agreement with the tenant . . . or waive whatever [remaining]
amounts . . . are owed." The letter does not state that such an
agreement or such a waiver is required by RAFT award terms or by
law, nor does the letter itself have the force of law. In any
event, because the letter was not before the judge on the rule
60 (b) motion, we do not consider it further or otherwise rule
on the obligations of landlords that accept RAFT funds.
12

RAFT funds, and the landlord appeared entitled to pursue this

action to recover the arrears that remained.

More specifically, the rent ledger attached to the tenants'

motion showed that as of April 8, 2021 (ten days after the

action was commenced), the tenants were $16,040.07 in arrears on

their rent.10 After further charges and payments, on May 3,

2021, the landlord received a RAFT arrears payment of

$13,633.79, but this still left the tenants $2,679.64 in

arrears. On or about February 22, 2022, the landlord received a

second RAFT arrears payment of $12,658.34, but the tenants

submitted no evidence that this eliminated the arrears they had

accumulated by that time, or any evidence of their account

balance or arrearages during 2022.11

10That ledger contained no information for any earlier
date. Based on a separate ledger including entries only through
December 1, 2020, the tenants argued that in the past the
landlord had improperly charged them for gas and electricity,
but they submitted nothing establishing that any such amounts
were included in the arrearages reflected on the more recent
ledger. On appeal the tenants argue for the first time that
their arrearages included amounts for parking and storage,
nonpayment of which they assert could not be a ground for
eviction. They did not make this argument in their rule 60 (b)
motion, and therefore we do not consider it.

11Although we do not rely upon the point, the landlord's
counsel represented to the judge at the rule 60 (b) hearing that
at no point in the case had the RAFT payments completely
eliminated the arrears and "zeroed the [tenants'] balance."
13

In short, it appeared that, throughout the case, the

landlord was seeking to recover some rent arrearages that had

not been covered by RAFT payments.12 The judge could thus

properly view the tenants' claim that the RAFT award terms

contractually barred the landlord from pursuing the case as

insufficiently meritorious on this record to warrant rule 60 (b)

relief.

iii. When neglectful conduct occurred. The tenants'

neglectful conduct occurred before judicial and opposing-party

resources had been invested in a trial, a factor that ordinarily

presents a better case for rule 60 (b) relief. See Berube, 7

Mass. App. Ct. at 429 (rule more forgiving "where the mischief

leading to the judgment occurs at the pretrial stage"). On the

other hand, even after the tenants became aware of the default

judgment and the execution, they disregarded the judge's

invitation to seek rule 60 (b) relief, and instead raised other

issues necessitating additional hearings, before ultimately

filing their rule 60 (b) motion. Although the tenants were

entitled to raise those other issues, their doing so before

12The default judgment entered on August 30, 2021, awarded
damages of only $2,027. The tenants' rule 60 (b) motion did
not, however, advance any argument based on any discrepancy
between that amount and the greater amount shown as due on the
ledger attached to their motion.
14

filing the rule 60 (b) motion -- which might have mooted those

issues -- could be viewed as unnecessarily burdening the court.

iv. Whether conduct was consciously chosen. The judge did

not go so far as to say that the tenants' failure to appear for

trial "was the product of a consciously chosen course of

conduct." Berube, 7 Mass. App. Ct. at 431. He did, however,

observe that the tenants "made no effort" to demonstrate

excusable neglect. He evidently did not credit the tenants'

vague, unsworn suggestions that they might have been uncertain

about the August 27, 2021 trial date, or that medical issues

prevented both of them from appearing in court on that date.13

See Cicchese v. Tape Time Corp., 28 Mass. App. Ct. 72, 75 (1989)

(judge could properly consider absence of affidavit establishing

reason for default).

v. Remaining Berube factors. As for prejudice to the

other party, see Berube, 7 Mass. App. Ct. at 431, vacating the

judgment might have exposed the landlord to the risk of further

uncollectable rent arrearages,14 but the judge did not expressly

consider this factor. The last Berube factor -- whether the

13Although the tenants' motion asserted that supporting
affidavits were attached, and cited considerable caselaw for the
proposition that affidavits were desirable or even required in
these circumstances, no affidavits were attached.

14At hearing on the rule 60 (b) motion, in response to the
judge's question, the landlord represented that the then-current
arrearage was "upwards of $12,000."
15

neglect was chargeable to counsel rather than the party, see id.

-- was not relevant here, where the tenants were self-

represented at all times through their filing of this appeal.

In light of all the foregoing, the judge did not abuse his

discretion in denying the tenants' rule 60 (b) motion.

2. Reissuance of execution. The tenants argue that G. L.

c. 235, § 23, second par. (§ 23), barred the judge from ordering

the execution to reissue in June of 2022, which was more than

three months after the entry of judgment. Section 23's second

paragraph provides

"Executions for possession of premises rented or
leased for dwelling purposes obtained in actions pursuant
to chapter two hundred and thirty-nine shall not be issued
later than three months following the date of judgment,
except that any period during which execution was stayed by
order of the court or by an agreement of the parties filed
with the court shall be excluded from the computation of
the period of limitation. Such executions shall be made
returnable within three months after the date of issuance
and shall state the date of issuance and the return date.
No sheriff, constable, officer, or other person shall serve
or levy upon any such execution for possession later than
three months following the date of the issuance of the
execution." (Emphasis added.)

Section 23 thus provides both an issuance period and a levy

period. Any execution for possession must be issued within

three months after judgment, although the running of that period

may be tolled by a court order or by a filed agreement of the
16

parties. And any levy on such an execution must occur within

three months after its issuance.15

Although the tenants did not raise their § 23 argument

before the judge ordered the execution to reissue, as would have

been preferable, they did assert it -- and they requested that

the execution be recalled -- in their motion for clarification

and for a stay pending appeal.16 The judge addressed the

argument at a time when he could have granted effective relief;

he issued an order rejecting the argument and denying the

15Although not at issue in this case, other statutes also
bear on the time for issuing summary process executions relative
to the time for appealing a judgment and while an appeal is
pending. See G. L. c. 231, § 115; G. L. c. 235, § 16; G. L.
c. 239, § 5 (a), (e), (h). See also Rule 13 of the Uniform
Summary Process Rules (1980); Mass. R. Civ. P. 62 (d), 365 Mass.
829 (1974); Adjartey v. Central Div. of Hous. Court Dep't, 481
Mass. 830, 857-860 (2019). Here, the judgment against the
tenants was a default judgment, which was not directly
appealable. See Rule 12 of the Uniform Summary Process Rules
(2004); Adjartey, supra at 856. Although the tenants were
entitled to proceed as they did, by moving to vacate the default
judgment and then appealing the order denying that motion, such
an appeal does not by itself stay issuance of the execution.
See Adjartey, supra at 856 n.15, 858.

16The tenants did not label their motion as one seeking to
recall the execution, but we look to the motion's substance, not
solely to its label. See Care & Protection of Rashida, 488
Mass. 217, 233, 236 (2021), S.C., 489 Mass. 128 (2022). Where
the motion requested not merely a stay pending appeal but also
recall of the execution, the judge's order, insofar as it denied
the latter request, was properly appealed to a panel of this
court.
17

motion, and the tenants timely appealed from that order.17 With

the issue thus properly before us, we agree with the tenants

that § 23 barred reissuance of the execution in this case.

The language of § 23 is straightforward, as is its

application to the facts before us. After judgment for

possession issued on August 30, 2021, the original execution for

possession timely issued on September 22, 2021 -- within § 23's

three-month issuance period. The landlord, however, did not

cause levy on the execution to occur during § 23's three-month

levy period. Instead, after the levy period expired, the

landlord, on March 16, 2022, returned the execution to the court

and moved for its reissuance. But that was well outside of

§ 23's three-month issuance period, and the running of that

period had not been tolled "by order of the court or by an

agreement of the parties filed with the court," as § 23 permits.

Therefore, the issuance period had expired, and under § 23 the

17Although the judge expressed doubt that his orders
regarding the execution were appealable, we note that "[w]hile
the issuance of an execution ordinarily may be a ministerial
act, questions of law may be involved which require invocation
of the judicial power, and decisions thereon by the [trial
court] are reviewable by [the appellate courts]" (quotation and
citation omitted). Boston v. Santosuosso, 308 Mass. 202, 206
(1941). See generally First Nat'l Bank of Boston v. Bernier, 50
Mass. App. Ct. 756 (2001) (reviewing and reversing order
allowing late issuance of execution).
18

judge had no authority to order the execution to issue or

reissue.18

The judge concluded that, for two reasons, the landlord's

delay in requesting reissuance was excusable, so that § 23 did

not bar reissuance. First, the judge stated, "the initially

issued execution was incomplete through the fault of the

[c]ourt," in that the execution lacked the address of the

premises at issue. The judge certainly had the authority to

order the defective execution amended, had the landlord timely

requested it. See Chesebro v. Barme, 163 Mass. 79, 81-82

(1895).19 But the landlord did not do so, despite having

discovered the defect at some unspecified time in November

2021.20 And § 23 contains no exception to the three-month

18This view of § 23 is not new. Attached to the tenants'
brief are copies of seven separate orders enforcing § 23's
issuance period. The orders were issued by judges of the
Housing Court between 2003 and 2019, a single justice of this
court in 2000, and a single justice of the Supreme Judicial
Court in 1988.

19In Chesebro, the court said, "the general principle is
that, when the judgment is recovered in a court having
jurisdiction, and the execution is issued by the proper officer,
irregularities either in the mode of issuing it or in the
document itself do not make it void, and that it may be dealt
with by the court upon motion of either party, and amended or
annulled, as justice may require." 163 Mass. at 81-82.

20The landlord could have accompanied such a request with a
motion, or a written agreement signed by the parties, to stay
issuance of the corrected execution. This could have stopped
any further running of the three-month issuance period until
19

issuance period for a case in which the initial execution is

defective.

The judge's second reason for excusing the landlord's delay

was that "the parties were in negotiations for a possible

resolution of [t]enants' arrears through RAFT assistance by

[l]andlord's forbearance during the time of the continuing post-

COVID urgency." No doubt, settlements of summary process cases,

even after judgment, are preferable to physical evictions on

levy of execution. But § 23 contains no exception to the three-

month issuance period for a case in which the parties have been

engaged in settlement negotiations.

Of course, what § 23 does allow is for the running of the

three-month issuance period to be tolled for "any period during

which execution was stayed by order of the court or by an

agreement of the parties filed with the court." If the parties

here wanted more time to pursue settlement negotiations, then,

at any time within the three-month issuance period, they could

have filed with the court a written agreement to stay issuance

of execution for whatever period they wished, or either party

could have moved for an order staying such issuance.21 Had the

such time as the landlord was prepared to move forward, or for
such time as the parties agreed or as was otherwise ordered.

21Apart from the issuance period, whether § 23 may also be
read to allow the running of the three-month levy period to be
20

execution already been issued at the time the landlord

determined that it wanted more time to negotiate, then the

landlord could have returned the execution to the court along

with either a written agreement for a stay of issuance or a

motion for such a stay. The landlord availed itself of none of

these options. Instead, it allowed the three-month issuance

period to lapse.

Although other statutes may affect the time for issuance or

reissuance of a summary process execution for possession, the

judge did not discuss how those statutes may apply in light of

§ 23, nor have the parties done so on appeal. We therefore

merely note the existence of such statutes and leave for another

day the questions they raise.22 One such statute is G. L.

c. 235, § 17, which provides in part: "An original execution

shall not issue after the expiration of one year after the party

is first entitled to take it out; and an alias or other

tolled by a court-filed agreement or a judge's order is a
question not presented by this case and on which we express no
view.

22Similarly, we express no view on whether a landlord's
only remedy if an execution is unavailable is to file another
summary process action. See Duross v. Scudder Bay Capital, LLC,
96 Mass. App. Ct. 833, 839-840 (2020) (discussing G. L. c. 239,
§ 7, and preclusive effect of summary process judgment on
subsequent litigation).
21

successive execution[23] shall not issue after the expiration of

five years from the return day of that which preceded it."24

Another such statute, G. L. c. 235, § 19, provides: "If a

judgment remains unsatisfied after the expiration of the time

for taking out execution thereon, the creditor may obtain a new

execution by motion to the court in which such unsatisfied

judgment was rendered, or he may at any time after the judgment,

subject to [G. L. c. 260, § 20], bring a civil action thereon."25

See First Nat'l Bank of Boston v. Bernier, 50 Mass. App. Ct.

756, 759-760 (2001) (discussing relationship between §§ 17 and

19).

Conclusion. So much of the order dated August 5, 2022, as

denied the tenants' request to recall the execution as untimely

is reversed; the order is otherwise affirmed, and the matter is

An "alias execution" is "[a] second execution issued to
23

enforce a judgment not fully satisfied by the original writ."
Black's Law Dictionary 714 (11th ed. 2019).

"Section 17 has been a part of our statutes in several
24

versions since 1692. St. 1692–3, c. 24, § 3. The critical time
limitation language of § 17 has not varied in its essential
command since that time." First Nat'l Bank of Boston v.
Bernier, 50 Mass. App. Ct. 756, 757 (2001). Section 17 was last
amended in 1948, by St. 1948, c. 113. In contrast, the language
of § 23 with which we are concerned here was added in 1987, by
St. 1987, c. 357, § 1.

General Laws c. 260, § 20, provides: "A judgment or
25

decree of a court of record of the United States or of any state
thereof shall be presumed to be paid and satisfied at the
expiration of twenty years after it was rendered."
22

remanded to the Housing Court where a new order shall enter

recalling the execution.

So ordered.