Mass. Unif. Small Claims R. 9

(a) Order to show cause

On an order issued after the payment hearing, upon being informed by the plaintiff that a defendant who has been ordered to pay has failed to obey the order, the clerk shall schedule the matter before the court for enforcement proceedings and shall issue a Notice to Show Cause to the plaintiff. The plaintiff must arrange for the Notice to Show Cause to be served by an officer duly qualified to serve it. The court may provide for any other means of service in individual cases as is deemed appropriate. The Notice to Show Cause shall indicate the date and time of hearing.

(b) Enforcement

After hearing, the court shall take such action, permitted by law, as it deems appropriate to enforce its payment orders. Such enforcement proceedings may be conducted either by a judge or a magistrate, but a magistrate shall have no authority to enter an adjudication of civil contempt or to issue an order of incarceration. When enforcement proceedings are conducted by a magistrate and it appears that such action may be required, the magistrate shall refer the matter to a judge, who shall make an independent determination whether to enter an adjudication of civil contempt and, if the defendant is found to be in contempt, may issue an order of incarceration or such other order as may be appropriate to enforce payment of the judgment. If a judge is available at the time of such referral, the matter may immediately be placed before the judge. A judge shall not enter an adjudication of civil contempt or any sanction for contempt based on the defendant’s failure to make payments on a judgment unless (i) the court has previously ordered the Defendant to make payments on a judgment after a payment review hearing, (ii) the defendant has failed to make the ordered payments, and (iii) at the time that the order for civil contempt or sanction for contempt issues, the judge finds that the plaintiff has proven defendant’s ability to make the ordered payments on the judgment without relying on exempt income or assets.

(c) Defendant's move to another district

If, after a small claim is filed, the defendant moves out of the judicial district where the action was brought, the court may, on request of the plaintiff, transfer the action to the division of the court in the judicial district to which the defendant has moved. If the court orders such a transfer, the docket entries and the original papers in the case shall be forwarded to said court, without payment of an entry fee, and the case shall proceed in that court as though originally entered therein.

(d) Execution

Execution shall issue to the plaintiff upon written request after the payment hearing, or, where the judgment creditor has waived payment review hearing, by motion with service on all other parties, 30 days or more after entry of judgment. Execution shall be in accordance with the statutory requirements for execution on civil judgments generally; provided, however, that execution shall in no way affect the procedure for enforcement of judgments under these rules, except that double satisfaction of judgments shall not be allowed. No execution may levy against exempt assets or income.

Commentary

2009 Amendments.

Paragraph (d) now authorizes transfer to the appropriate court when the defendant moves from the original court’s geographical jurisdiction, whether before or after judgment.

Paragraph (e) requires for the first time in Massachusetts that the plaintiff file an acknowledgment of satisfaction with the court once a judgment is paid in full. Paragraph (f) provides a remedy to the defendant where plaintiff fails to file an acknowledgment. These additional provisions are necessitated by the difficulty that defendants increasingly experience in proving that a judgment that appears in a credit report was satisfied, sometimes years before.

2001 Amendments.

Paragraph (a) is amended to eliminate the directive to the clerk to “make such inquiry into the matter [of non-payment], if any, as he deems useful.” Since a clerk may later preside over enforcement proceedings as a magistrate, such informal contacts are best avoided since they might well involve ex parte discussions that would be inconsistent with a magistrate’s responsibilities under S.J.C. Rule 3:12, Canon 3.

Paragraph (b) reflects the recommendation of the Trial Court Committee on Small Claims Practices and Procedures that magistrates be authorized to preside over proceedings to enforce small claims judgments, but not to enter adjudications of civil contempt or to make orders of incarceration. When such steps appear necessary, the matter is to be transferred to a judge “immediately,” which assumes no need for rescheduling or further notice if a judge is then available.

While it is expected that most proceedings to enforce small claims judgments will be conducted by magistrates, paragraph (b) preserves the authority of judges to preside over such enforcement hearings ab initio.

New paragraph (c) makes it a matter of routine for a defendant who claims to be unable to pay the judgment in full to complete a sworn financial statement. The specific assignment of the burden of proof in paragraph (c) restates current case law. Roy v. Leventhal, 5 Mass. App. Ct. 792 (1977). See also G.L. c. 215, § 34 (in Probate Court contempt proceedings, “the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges violation”). The defendant’s financial statement shall be treated as confidential information in terms similar to those of Rule 401(d) of the Supplemental Rules of the Probate Court. See Rule 7(g) and the Commentary thereto.