Housing litigants frustrated by Jury Trial decisions

Boston Statehouse
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BOSTON (SHNS) – When Charles L. Brace started facing eviction after a contentious foreclosure on his Worcester home, he checked off a specific box on the court form: “I claim my right to a trial by jury.”

A few months later, Brace said, a Housing Court judge told the retired police officer that his case would proceed without a jury trial because he had waived his right after filing paperwork a day late — a delay that Brace insists resulted from undelivered mail.

Brace faces possible removal from his home of the past two decades following a foreclosure that he believes raised multiple red flags. Now, the process will play out without Brace able to make his case before a jury of his peers.

“A judge arbitrarily, as a punishment, decided to take away, to waive, my jury trial, to write down that I waived it,” Brace said in an interview. “I never waived it. I’ve been in law enforcement for 28 years. I understand what the hell ‘clearing the docket’ is. That’s what’s happening here.”

Brace is a client at HSI Trust Home Savers in Worcester, a nonprofit consumer advocacy and counseling center. And in the eyes of HSI Trust’s founder and executive director, Bruce Boguslav, the case is part of a larger pattern.

Boguslav, who contacted the News Service to highlight Brace’s situation and another foreclosure involving Auburn resident Steve Okanlawon, said he thinks Housing Court judges are trying to speed cases through the process and denying defendants access to jury trials or discovery along the way.

Boguslav alleges that courts for years have at times failed to fulfill demands for jury trials, but that the issue has grown “rampant” in recent months amid a backlog in cases fueled by the COVID-19 pandemic.

“It’s made very clear by the judges that it’s not based on anything other than how long jury trials will take. They make a point of it,” Boguslav told the News Service. “Every judge I’ve heard do this, and it’s now like four, don’t even try to couch the fact that it’s all about time.”

Court officials declined to comment on particulars of individual cases but defended the Housing Court as working professionally and fairly.

“While it is not appropriate for me to comment on specific cases, Housing Court judges, clerks and staff work very hard to ensure that litigants are treated fairly and that cases that come before them get a thorough review,” Housing Court Chief Justice Timothy Sullivan said in a statement to the News Service. “Cases in the Housing Court are handled in a deliberative and considered way.”

The “Biggest Backlog”

The Massachusetts Constitution declares that parties “have a right to a trial by jury” in many cases, though judges have authority to waive jury trials and limit discovery at their discretion based on circumstances such as whether a defendant is disruptive or misses important deadlines.

Summary process rules governing court proceedings require demands for jury trials to be filed “no later than the date on which the defendant’s answer is due” in courts where the option is available, such as Housing Court.

In Brace’s case, he filed paperwork one day late, he said, because a mailed notice the court sent him went undelivered.

As Brace recalls it, a judge approved his motion to file late and acknowledged his request for a jury, but a second judge later told him that his jury trial had been waived and that he should consider himself “lucky” his late paperwork was even accepted.

Like it did to so many other aspects of public life, the pandemic upended court operations. Massachusetts courts halted jury trials for nearly a year. In May, the Housing Court began deploying six-person juries in civil cases rather than the typical 12-person juries to maximize how many events can take place.

Many evictions and foreclosures that might have been filed under more normal circumstances also did not advance on a typical timeline while varying versions of state and federal moratoria remained in effect.

Top court officials said last week that the system is equipped to handle the re-acceleration of activity, even as Trial Court Chief Justice Paula Carey noted that jury trials represent the “biggest backlog.”

The Baker administration and court leaders together launched an eviction diversion initiative in October 2020, when Gov. Charlie Baker and lawmakers allowed the state’s eviction moratorium to expire, connecting tenants and landlords with rental aid, legal assistance, and mediation.

“We began to take many steps to prepare to manage any crisis that might come our way,” Sullivan said during a briefing about the program’s status. “Filings are substantially down over what our historic numbers would be, so we believe we can certainly manage the case flow long term very effectively.”

“We’re working,” Carey added. “We’ve got a great team, as Chief Sullivan said, notably in the Housing Court, but all across the Trial Court that’s really working on the backlog of jury trials.”

The News Service inquired if any data existed that could demonstrate jury trial trends in Housing Court, and a spokesperson for the state Trial Court system replied that they did not have that information available.

That parallels what the courts told HSI Trust, according to correspondence the nonprofit shared with the News Service.

The group asked for information showing the number of cases filed, parties who requested a jury trial, jury trials that ultimately took place, executions issued and dispositions. On Sept. 13, Trial Court Administrator John Bello replied with links to online databases listing eviction and foreclosure cases filed and executed by month. The data do not reference jury trials.

“The Mass. Trial Court regularly provides a significant amount of information regarding foreclosures on mass.gov,” Bello wrote to Boguslav. “Compilation of more detailed information would be overly burdensome.”

Brace purchased his home at 36 Moreland St. in 2002, and for years, he has been investigating concerns he has about the mortgage on the home. He said those include document dates that do not line up, signatures from people who were not present at events, and a wrong middle initial listed in his name.

“I had three cars. I’ve sold all my cars. I’ve sold every possible thing of value. I’ve used up all the money I’ve saved in retirement, every quarter,” he said. “It took me all the money I had just to get this far, and then the slap in the face is: by the way, you’re not going to have a jury trial.”

Okanlawon, the other HSI Trust client that spoke to the News Service, said the judge in his case scheduled a jury trial for Sept. 29, a date Okanlawon felt was too soon to give him time for the discovery process.

On Thursday, six days before the jury trial was scheduled to take place, the court postponed it indefinitely.

“A lot of people are going through this, mostly because we’re either Black, Hispanic, we’re low-income. They are running us through the courts and threatening us,” Okanlawon said. “They are picking quick dates, quick court dates, that we basically just breeze through.”

The vast majority of defendants in eviction cases, including those that involve residents who refuse to leave their homes following foreclosures, go through the legal battle without an attorney. In the more than 21,000 residential eviction cases for failing to pay rent filed since the start of 2020, nearly 93 percent of defendants are pro se, compared to just 15 percent of plaintiffs, according to Trial Court data.

Adam Sherwin, a property attorney who has represented landlords in court, said he has not observed many requests for jury trials but knows from experience that they have “always stalled a Housing Court matter.”

“I haven’t seen any judge necessarily take it away from a litigant, but they will many times — and this is before everything with COVID, it happened before COVID and it’s still going on — many times, if it’s a pro se party and it’s someone who’s representing themselves, it’s very common for the court to encourage them to reconsider doing a jury trial,” Sherwin said. “It’s also not uncommon for a judge to strike a jury trial demand if the litigant hasn’t followed any of the court procedures or if they haven’t done what they’re supposed to do to get ready for that trial.”

Disputes about access to jury trials have gone before state Appeals Courts in the past. In one case decided in 2017, justices ruled that a Housing Court judge in the Boston Division was wrong to strike a tenant’s demand for a jury trial because the tenant did not file a pre-trial memorandum.

The defendant had asked court employees to help her understand what requirements she faced and that they replied she should appear for the trial date. The Appeals Court determined the defendant’s jury demand “should not have been struck before considering lesser sanctions.”

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