USA Massachusetts

USA Statutes : massachusetts
Title : PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
Chapter : TITLE IV. CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 246: Section 1. Actions maintainable; trustees Section 1. Trustee process may be used in accordance with the applicable rules of court in connection with the commencement of all personal actions except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander and libel, or for assault and battery; and any person may be summoned as trustee of the defendant therein; but except in the case of a complaint which contains a statement that the action is upon a judgment, a contract for personal services, for goods sold and delivered, or for money due under a contract in writing, or to recover damages on account of the operation of a motor vehicle not registered in the commonwealth, no summons and complaint in any action seeking damages in excess of one thousand dollars shall be served upon any alleged trustee unless there shall have been filed by the plaintiff, if other than a city or town of the commonwealth named therein, in the court wherein such action is commenced, a bond with a surety company authorized to do business in the commonwealth as surety, or with sureties approved by a justice, associate justice or special justice of such court, said bond to be in a penal sum in such amount as the court which approves the trustee process shall require but not less than two hundred and fifty dollars and to be conditioned upon payment to the defendant, if the plaintiff fails to recover or if such action is discontinued, of all costs which may be awarded to the defendant and all damages which he may sustain by reason of such attachment, but not exceeding the penal sum of the bond, nor unless there shall have been endorsed on the complaint by the justice, associate justice or special justice who approved said bond, or by the clerk of such court, the fact that the bond required by this section has been filed in such court. An individual who is not an inhabitant of the commonwealth, or a foreign corporation or association, shall not be so summoned unless he or it has a usual place of business in the commonwealth. The amount paid by the plaintiff to a surety company for becoming surety on such a bond shall be taxed in his costs if he prevails in the action. No bond shall be required to be filed as provided herein in an action brought hereunder by the attorney general on behalf of the commonwealth or any department, board, commission, office or officer thereof. Trustee process may likewise be issued in actions to enforce an order for alimony, maintenance or child support by the filing of a complaint and following the procedures set forth in section thirty-six A of chapter two hundred and eight, and no bond shall be required to be filed as otherwise provided herein in such actions.
Chapter 246: Section 10. Answer; filing; contents Section 10. A person summoned as trustee shall file his answer within twenty days after service of the trustee summons upon him, unless the court otherwise directs. The answer shall disclose plainly, fully and particularly what goods, effects or credits, if any, of the defendant were in the hands or possession of the trustee when he was served with process.
Chapter 246: Section 11. Answer under oath; written declarations Section 11. Such answer shall be signed and sworn to by the trustee, or, in lieu of being sworn to, shall contain his written declaration, subject to the penalty prescribed by section one A of chapter two hundred and sixty-eight, that the answer is made under the penalties of perjury.
Chapter 246: Section 12. Interrogatories; answer Section 12. The plaintiff may from time to time examine the alleged trustee upon written interrogatories filed in the clerk’s office. The answers thereto shall be signed, sworn to and filed in said office within seven days after notice to the trustee or his attorney of the filing of the interrogatories, unless the court otherwise orders. If the answers are not so filed, the court may make such order as the case may require.
Chapter 246: Section 13. Discharge of trustees Section 13. If the answer of the alleged trustee shows that at the time of service of the trustee summons upon him he had not in his hands or possession any goods, effects or credits of the defendant, and the plaintiff declines to examine him, or if upon examination his answer appears to be true, he shall be discharged.
Chapter 246: Section 14. Admissions by trustees; interrogatories Section 14. A person summoned as trustee who admits that he has in his hands any goods, effects or credits of the defendant, or who wishes to submit the question to the court whether he is chargeable upon the facts, may make a written statement, on oath, of such facts as are material. The plaintiff may then examine him, on oath, upon written interrogatories, and the statement, interrogatories and answers shall be filed in the clerk’s office.
Chapter 246: Section 15. Corporations; appearance and answer Section 15. A corporation summoned as trustee may appear and answer by its cashier, treasurer, clerk or such other officer or employee as it shall appoint or as the court shall require to attend for that purpose, and his answer and examination, on oath, shall be received as the answer and examination of the corporation.
Chapter 246: Section 16. Truth of answer Section 16. The answer and statements of a trustee, on oath, shall be considered as true in determining how far he is chargeable; but either party may allege and prove any facts material in determining such question and not stated or denied by the trustee.
Chapter 246: Section 17. Questions of fact; trial Section 17. A question of fact arising upon such additional allegations may be tried and determined by the court, or it may be submitted to a jury in such manner as the court orders.
Chapter 246: Section 18. Default of trustee Section 18. A person who, being duly summoned as a trustee, neglects to appear and answer as hereinbefore provided shall be defaulted and adjudged a trustee.
Chapter 246: Section 19. False answers; penalty Section 19. If a person summoned as trustee, his executor or administrator, or if an officer, agent or other person who appears and answers for a corporation so summoned, knowingly and wilfully swears falsely in his answer or upon his examination, he shall be liable to the plaintiff in the trustee process, or to his executor or administrator, for the full amount due on the judgment recovered therein, with interest, to be paid out of his own goods and estate.
Chapter 246: Section 2. Venue Section 2. If, in an action in the supreme judicial or superior court in which trustee process is used, all the persons named in the summons as trustees dwell or have usual places of business in one county, the action shall be brought in that county; otherwise it may be brought in any county where any one of the trustees dwells or has a usual place of business.
Chapter 246: Section 20. Effect of attachment Section 20. The goods, effects or credits of the defendant intrusted to, or deposited in the hands or possession of, a person summoned as his trustee shall, except as hereinafter provided, be attached and held to respond to the final judgment, as if they had been attached upon an original writ of attachment; provided, that any moneys of the defendant deposited in any account designated as a payroll account shall not be subject to attachment hereunder. Any defendant who deposits moneys in such payroll account with intent to evade attachment by trustee process shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the house of correction for not more than three months, or both. If such a deposit or deposits are made by a corporation, the president and the treasurer and any other officer or agent causing such deposit or deposits to have been made shall be subject to prosecution as defendants under this section, and each of such persons shall be jointly and severally civilly liable to the plaintiff for any loss suffered by the making of such deposit or deposits.
Chapter 246: Section 20A. Attachment of wages; proceedings outside commonwealth against resident debtors and employers prohibited Section 20A. No person shall send out of this commonwealth by assignment, transfer, or in any other manner, with or without consideration, or institute in a foreign court any action upon a claim against a resident debtor of this commonwealth, with the intent of depriving such resident debtor of the benefit of the exemptions and protection accorded by this commonwealth to wage earners whose wages are in the hands of their employers, so long as such resident debtor and the employer holding such wages intended to be reached by such proceedings are within the jurisdiction of the courts of this commonwealth.
Chapter 246: Section 21. Liability of executors, etc.
, as trustees Section 21. Debts, legacies, goods, effects or credits due from or in the hands of an executor or administrator as such may be attached in his hands by trustee process.
Chapter 246: Section 22. Liability as trustee of assignee in insolvency Section 22. After a dividend on the estate of an insolvent debtor has been declared, it may, unless it is upon a claim for wages which would have been exempt from attachment by trustee process in the hands of the insolvent debtor, be so attached in the hands of the assignee.
Chapter 246: Section 23. Liability of receivers Section 23. Funds, credits or dividends due from or in the hands of receivers appointed by a court may be so attached after an order has been made for their distribution.
Chapter 246: Section 24. Money, etc.
, due but not payable; attachment Section 24. Money or any other thing due to the defendant absolutely and without any contingency may be so attached before it has become payable, but the trustee shall not be compelled to pay or deliver it before the time appointed by the contract.
Chapter 246: Section 25. Conveyances void as to creditors; persons having property as trustees Section 25. A person summoned as trustee having goods, effects or credits of the defendant in his possession by a conveyance or title void as to the creditors of the defendant may be adjudged a trustee, although the defendant could not maintain an action therefor against him.
Chapter 246: Section 26. Mutual demands between trustee and defendant; liability of trustee Section 26. A trustee may retain or deduct from the goods, effects or credits in his hands all liquidated demands or judgments against the defendant of which, had he not been summoned as trustee, he might have availed himself upon a trial or by the set-off of judgments or executions between himself and the defendant, and he shall be liable for the balance only after all mutual demands, excluding therefrom any claim on either side for unliquidated damages for wrongs or injuries, between himself and the defendant have been adjusted.
Chapter 246: Section 27. Liability of trustee before knowledge of service Section 27. If, after the service of process on the trustee, but before he has knowledge thereof, he makes any payment in good faith or becomes liable to a third person by reason of the goods, effects or credits in his hands, or delivers such goods, effects or credits to the defendant or to any other person who may be entitled thereto, he shall be allowed therefor in the same manner as if the payment or delivery had been made, or as if the liability had been incurred, before the service of process.
Chapter 246: Section 28. Wages and pensions; exemptions; exceptions Section 28. If wages for personal labor or personal services of a defendant are attached for a debt or claim, an amount not exceeding $125 out of the wages then due to the defendant for labor performed or services rendered during each week for which such wages were earned but not paid shall be reserved in the hands of the trustee and shall be exempt from such attachment. Except as otherwise permitted by law, amounts held by a trustee for a defendant in a pension shall be reserved in the hands of the trustee and shall be exempt from attachment. For the purpose of this section, the word “pension” shall mean any annuity, pension, profit sharing or other retirement plan subject to the federal Employee Retirement Income Security Act of 1974, any plan maintained by one or more self-employed individuals as a Keogh Plan, so-called, any plan maintained by a corporation or other business organization pursuant to section 401(a) of the Internal Revenue Code but not subject to the federal Employee Retirement Income Security Act of 1974, any Simplified Employee Plan, annuity plan to which the provisions of section 403(b) of the Internal Revenue Code apply or an Individual Retirement Account or Annuity maintained by an individual, or any annuity or similar contract distributed from or purchased with assets distributed from any of the foregoing; provided, however, that this definition shall not apply to sums deposited, determined without regard to deposits pursuant to a rollover or transfer except to the extent protection under this section would have been limited in the absence of a rollover or transfer, in any plan maintained by an individual, whether or not self-employed, during the five year period preceding the individual’s declaration of bankruptcy or entry of judgment in excess of 7 per cent of the total income of such individual for such period. The amount reserved under this section shall be paid by the trustee to the defendant in the same manner and at the same time as such amount would have been paid if no such attachment had been made. Every writ of attachment shall contain a statement of the amount exempted from attachment under this section and also a direction to the trustee to pay over the exempted amount as provided in this section.
The provisions of this section shall not apply in any proceeding to attach wages or a pension to satisfy a divorce, separate maintenance or child support order of a court of competent jurisdiction, and in such actions, including an action for trustee process to enforce a support order under section 36A of chapter 208, the provisions of federal law limiting the amounts which may be trusteed, assigned or attached in order to satisfy an alimony, maintenance or child support order shall apply in lieu of said provisions of this section.
Chapter 246: Section 28A. Monies held by banks or similar institutions; exemption; limitations Section 28A. Five hundred dollars of any natural person in any account or accounts in a trust company, savings bank, cooperative bank, credit union, national banking association or any other banking institution doing business in the commonwealth shall be exempt from attachment by trustee process. A joint account shall be treated for the purposes of this section as if each depositor owned one half of the amount thereof. Every trustee summons served on such an institution shall describe such exemption with reference to this section. Upon service of such a summons the trustee shall answer as subject to attachment only so much money of the defendant as exceeds five hundred dollars.
No business, trust or organization shall be entitled to the exemption hereunder, and no natural person shall be entitled to more than a five hundred dollar exemption at any one time. In any action the plaintiff may apply to the court for further attachments upon proof by certified records of the trustee or trustees that the defendant has received an exemption not authorized hereunder or that the five hundred dollar exemption of the defendant has been in whole or in part exhausted or exceeded.
Chapter 246: Section 29. Offer of judgment; costs Section 29. If, after wages for personal labor or services have been attached in connection with a civil action, the defendant is defaulted, or if the defendant makes an offer of judgment in accordance with an applicable rule of court and the plaintiff accepts such offer or fails to secure a judgment more favorable than the offer, the plaintiff shall recover no costs except the entry fee and the officer’s fee for service of process.
Chapter 246: Section 3. Change of venue Section 3. If, in an action in the supreme judicial or superior court in which trustee process is used in connection with the commencement thereof, the court finds that the trustee was made a party in order to give the court jurisdiction of the action in the county where the trustee dwells or has a usual place of business, and that neither the plaintiff nor the principal defendant dwells or has a usual place of business therein, it may, upon motion of the defendant at any time before trial, order the action and all papers relating thereto transferred to a county where some one of the principal parties dwells or has a usual place of business, upon terms. The action shall thereupon be entered and prosecuted in the same court for that county as if originally brought therein, and all prior proceedings otherwise regularly taken shall thereafter be valid.
Chapter 246: Section 30. Attaching exempt wages; penalty Section 30. Whoever wilfully causes, or aids and abets in causing, wages for personal services exempt from attachment to be attached by trustee process in order to unlawfully hinder or delay their payment to the person to whom they belong shall, on complaint of the person injured thereby or of the guardian or other person having the lawful custody of any such person incompetent to act, be punished by a fine of not more than fifty dollars, to the use of the person injured thereby.
Chapter 246: Section 31. Bonds; savings banks as trustees Section 31. If a savings bank is charged as trustee, and the court finds that the answer creates a doubt as to the identity of the defendant, it may require the plaintiff to give bond, with surety approved by the court, conditioned to indemnify such bank from any loss by reason of payment by it pursuant to the court’s order.
Chapter 246: Section 32. Claims not attachable by trustee process Section 32. No person shall be adjudged a trustee in the following cases:First, By reason of having drawn, accepted, made or endorsed a negotiable bill, draft, note or other security which at the date of the summons was negotiable to a holder in due course under the provisions of chapter one hundred and six.
Second, By reason of having received or collected money or any other thing as a sheriff or other officer upon an execution or other legal process in favor of the defendant in the trustee process, although it may have been demanded of him by the defendant.
Third, By reason of having money in his hands as a public officer, for which he is accountable to the defendant merely as such officer.
Fourth, By reason of money or any other thing due from him to the defendant, unless it is, at the time of service of the summons upon him, due absolutely and without any contingency; provided, however, that nothing herein shall prevent the attachment by means of trustee process of an obligor’s wages, pension or other compensation for employment in an action pursuant to section thirty-six A of chapter two hundred and eight.
Fifth, By reason of a debt due from him upon a judgment, so long as he is liable to an execution thereon.
Sixth, By reason of money or credits due for the wages of personal labor or services of the wife or minor children of the defendant.
Seventh, By reason of money or credits due or accruing to the defendant as wages or lay as a seaman; but this clause shall not apply to the wages or lay due or accruing to a fisherman.
Eighth, By reason of money or credits due for the wages of personal labor or services of the defendant, unless such attachment is made in an action brought upon a judgment, is upon money or credits not exempt from execution pursuant to section thirty-four of chapter two hundred and thirty-five and is authorized in advance by written permission endorsed upon the complaint and signed by a justice, associate justice or special justice of the court in which the action is commenced. Application to said justice, associate justice or special justice of the court for permission for said attachment shall be made only after ten days’ written notice has been delivered or sent by registered mail, return receipt requested, to the defendant at his last known address, place of business or employment. Such notice shall contain the name of the plaintiff, the name of the court in which the action is to be commenced, the nature of the claim, the time and place such application will be made, and shall inform the defendant that he is entitled to be present and be heard at said time and place if he objects to the granting of said application. A copy of said notice and a certificate of the person sending or delivering said notice shall be evidence thereof. Notwithstanding the preceding provisions relating to notice, if said justice, associate justice or special justice finds in his discretion that compliance with said provisions relating to notice will unreasonably delay and hinder justice, he may authorize the attachment with a shorter notice, or without notice, to the defendant. The provisions of this paragraph shall not apply to actions for trustee process to enforce support obligations pursuant to section thirty-six A of chapter two hundred and eight.
Chapter 246: Section 33. Claims by third persons Section 33. If a person claiming, by assignment from the defendant or otherwise, goods, effects or credits in the hands of a supposed trustee enters an appearance, he shall be admitted as a party in order to determine his title to such goods, effects or credits, and may allege and prove any facts which have not been stated or denied by the supposed trustee. Such allegations shall be tried and determined as provided in section seventeen upon depositions or oral testimony as the court orders. If he does not voluntarily enter an appearance, the court may issue an order of notice to him.
Chapter 246: Section 34. Assignments as security for debts Section 34. If it appears that the claimant holds a valid assignment from the principal defendant only as security for a debt, the court shall, at the request of the plaintiff, ascertain and determine the amount due upon such debt at the time of service upon the trustee, and the claimant shall have judgment and execution for the amount so found to be due him and for his costs; and after said judgment and execution have been satisfied, the residue, if any, of the goods, effects or credits in the hands of the trustee shall be subject to the attachment in the trustee process. If judgment by default has been rendered against the trustee and it appears that he has paid over, upon execution issued on the original judgment, any part of the goods, effects or credits in his hands liable to attachment, he shall be liable to the adverse claimant only for the residue in his hands.
Chapter 246: Section 35. Actions pending by defendant against trustees; continuance Section 35. If, while an action is pending, the defendant is summoned in another action as trustee of the plaintiff, the earlier action may proceed so far as to ascertain by a verdict, award or otherwise the amount due from the defendant, and it shall not be delayed on account of the trustee process, unless the court continues it for judgment until the termination of the trustee process or until the attachment therein is dissolved by the discharge of the trustee, by the satisfaction of the judgment or otherwise. The court may, upon application of the plaintiff in the trustee process, so continue such pending action upon terms.
Chapter 246: Section 36. Actions not continued; liability of judgment debtor as trustee Section 36. If the action is not so continued and judgment is rendered against the defendant, he shall not afterward, while liable to an execution thereon, be adjudged a trustee on account of the demand so recovered against him.
Chapter 246: Section 37. Defendant in pending action adjudged trustee; proceedings Section 37. If, before final judgment in such pending action, the defendant therein is adjudged a trustee in the trustee process, and pays thereon the money demanded in the pending action, or any part thereof, such fact shall be stated on the record of the action, and judgment therein shall be rendered for the costs due to the plaintiff and for the part of the debt or damages remaining due and unpaid.
Chapter 246: Section 38. Counterclaim by defendant in pending action; proceedings Section 38. If, while an action is pending, the plaintiff is summoned as trustee of the defendant on account of a counterclaim filed therein, such pending action shall be subject to the three preceding sections in the same manner and with the same effect as if it were an action brought upon such counterclaim by the defendant against the plaintiff.
Chapter 246: Section 39. Form of judgment charging trustee Section 39. If a person is adjudged a trustee, the amount for which he is chargeable need not be specified in the judgment.
Chapter 246: Section 4. Venue in district courts Section 4. No person shall be held to answer as a trustee in an action in a district court, except as provided in section fifty-four of chapter two hundred and eighteen, in any county other than that where he dwells or has a usual place of business; and if a person summoned as trustee in such court is out of the county at the time of the service of the trustee summons upon him, and does not return before final judgment in the action, he shall not be chargeable as trustee.
Chapter 246: Section 40. Second attachment; recovery by defendant Section 40. If the goods, effects and credits in the hands of a person adjudged a trustee are not demanded of him by force of the execution within thirty days after final judgment, they shall be liable to another attachment, whether made before or after the judgment; or if there has been no such second attachment, they may be recovered by the defendant.
Chapter 246: Section 41. Liability of trustee after thirty days Section 41. If no such second attachment of the goods, effects and credits has been made, and no action has been brought therefor by the defendant, and if they have not been paid or delivered to the defendant before they are demanded of the trustee by the officer, the trustee shall be liable to pay and deliver the same, when so demanded, although said thirty days have expired.
Chapter 246: Section 42. Demand on absent trustee; service Section 42. If the trustee cannot be found in the commonwealth by the officer to whom the execution is committed for service, a copy of the execution left at his dwelling house or at his last and usual place of abode, with a notice to him, endorsed thereon and signed by the officer, that he is required to pay and deliver, toward satisfying the execution, the goods, effects and credits for which he is liable shall be a sufficient demand for the purposes of the two preceding sections.
Chapter 246: Section 43. Effect of judgment against trustee Section 43. The judgment against a trustee shall acquit and discharge him from all demands by the defendant, his executor or administrator, for all goods, effects and credits paid, delivered or accounted for by the trustee by force of such judgment.
Chapter 246: Section 44. Discharge of trustee; actions by defendant Section 44. If a person summoned as trustee is discharged, the judgment shall be no bar to an action brought against him by the defendant for the same demand.
Chapter 246: Section 45. Action to satisfy judgment upon default of trustee Section 45. If a person adjudged a trustee does not, upon demand, pay over to the officer goods, effects or credits sufficient to satisfy the execution and if the execution is not otherwise satisfied, the plaintiff may commence an action in the court in which the judgment was rendered to have the original judgment, or the amount remaining unsatisfied, satisfied from the goods and estate of the trustee or trustees. Such an action may be commenced at any time after thirty days from the date of judgment.
Chapter 246: Section 46. Default of trustee; judgment in absence of answer or examination in original action Section 46. If a trustee duly served with a summons and complaint issued under the previous section fails to appear and answer, he shall be defaulted; and if he did not answer, and was not examined in the original action, judgment shall be rendered against him upon such default for the whole amount remaining unsatisfied on the judgment against the defendant.
Chapter 246: Section 47. Default of trustee; judgment in case of answer or examination in original action Section 47. If a trustee defaulted in an action brought under section forty-five has answered or been examined in the original action, judgment shall be rendered upon the facts stated in such answer or examination for any part remaining in his hands of the goods, effects or credits for which he was chargeable as trustee, or for so much thereof as is necessary to satisfy the amount then remaining due on the original judgment.
Chapter 246: Section 48. Appearance of trustee; proceedings; judgments Section 48. In a proceeding brought under section forty-five, if the trustee appears and answers, he may be examined; but if he has been examined in the original action, he shall be examined again only by order of the court. A trustee may prove any matter necessary or proper for his defense; and any judgment rendered against him shall express the amount for which he is chargeable.
Chapter 246: Section 49. Limitations Section 49. No action provided under section forty-five shall be brought against a person adjudged a trustee unless he is served within two years after judgment in the original action; or, if the money or other thing is not payable when the judgment is rendered, unless he is served within one year after such money or other thing becomes payable.
Chapter 246: Section 4A. Change of venue in district courts Section 4A. Whenever the venue of an action in a district court is based upon the residence or usual place of business of an alleged trustee, which action could not otherwise be properly brought in that district, the court may on motion of any party thereto transfer such action for trial and final disposition to any other district court in which the action might have been commenced had there been no trustee alleged.
Chapter 246: Section 4B. Venue in actions to enforce support orders Section 4B. Notwithstanding any other provision of law to the contrary, in an action to enforce a support order pursuant to section thirty-six A of chapter two hundred and eight, the action shall be brought in the court which issued the order for alimony, maintenance or child support.
Chapter 246: Section 5. Trustee summons; service Section 5. The trustee summons shall be served in accordance with the applicable rule of court.
Chapter 246: Section 50. Death of trustee before judgment satisfied Section 50. If a person summoned as trustee in his own right dies before the judgment recovered by the plaintiff has been fully satisfied, the goods, effects and credits in his hands at the time of the attachment shall remain bound thereby, and his executor or administrator shall be bound thereby, as if the summons were originally served on him.
Chapter 246: Section 51. Death of trustee before judgment; proceedings; prior examination of deceased Section 51. If a person so summoned dies before judgment in the original action, his executor or administrator may appear voluntarily or may be cited to appear, as in other cases. The further proceedings shall then be conducted in the same manner as if the executor or administrator had been originally summoned as trustee, except that the examination of the deceased, if any has been filed, shall have the same effect as if he were living.
Chapter 246: Section 52. Default judgments; payments Section 52. If the executor or administrator does not appear, the plaintiff, instead of suggesting the death of the trustee, may take judgment against him by default or otherwise as if he were living, and the executor or administrator shall pay upon the execution the amount which the deceased would have been liable to pay to the defendant, and shall be thereby discharged for the amount so paid. If he does not voluntarily pay the amount in his hands, the plaintiff may proceed against him in the manner provided in section forty-five.
Chapter 246: Section 53. Death of trustee after judgment Section 53. If a person summoned as trustee dies after judgment in the original action, his executor or administrator may pay upon the execution the amount which the deceased would have been liable to pay were he living, and he shall be discharged from all further demands on account thereof in the manner before mentioned. If he refuses to make such payment, the plaintiff may proceed against him as provided in section forty-five.
Chapter 246: Section 54. Death within thirty days after judgment Section 54. If a person, against whom as trustee execution has been issued, is not living at the expiration of thirty days after final judgment in the trustee process, a demand, for the purpose of holding the attachment, may be made upon the executor or administrator of such deceased person within thirty days after his appointment, and shall have the same effect as if made within thirty days after the judgment.
Chapter 246: Section 55. Service of execution Section 55. If an executor or administrator as such is adjudged a trustee, the execution shall not be served on his own goods or estate nor on his person, and he shall be liable for the amount in his hands only in like manner and to the same extent as he would have been liable to the defendant if there had been no trustee process.
Chapter 246: Section 56. Failure of executor or administrator to pay amount charged; remedies Section 56. If, after final judgment against an executor or administrator for a sum certain due from him as trustee, he fails to pay the same, the original plaintiff in the trustee process shall have the same remedy for recovering the amount, either upon a suggestion of waste or by an action on the administration bond, as the defendant in the trustee process would have had upon a judgment recovered by himself for the same demand against the executor or administrator.
Chapter 246: Section 57. Proceedings if trustee is charged for specific property Section 57. If a person is charged as trustee by reason of personal property other than money, which he holds or is bound to deliver to the defendant, he shall deliver it, or so much thereof as may be necessary, to the officer holding the execution, who shall sell the property and apply and account for the proceeds in the same manner as if the property had been taken on execution.
Chapter 246: Section 58. Determination of value of property delivered Section 58. The value of any property so delivered shall be ascertained and fixed, as between the trustee and defendant, in like manner and upon the same principles as if delivered to the defendant. Upon application of either party, the court may, pending the original action or civil action under section forty-five, determine the value, and make any other order relative to such property and to the delivery thereof necessary or proper to protect the rights of the trustee or of the defendant.
Chapter 246: Section 59. Delivery of specific property according to contract Section 59. If a person summoned as trustee is bound by contract to deliver specific property to the defendant at a certain time and place within the commonwealth, he shall not be required by reason of the trustee process to deliver it at any other time or place; and he may, notwithstanding such process, tender or deliver it to the person entitled thereto under the contract at the time and place therein mentioned, unless he has been previously adjudged a trustee on account thereof.
Chapter 246: Section 6. Foreign corporations; service Section 6. When a foreign corporation having a usual place of business in the commonwealth is summoned as a trustee in an action against one of its employees, service of the summons may be made as provided in section thirty-eight or thirty-nine of chapter two hundred and twenty-three, or upon any paymaster or other officer or agent of the corporation whose duty it is to pay such employee, and such service shall be as binding upon the corporation as if it had been made upon the commissioner of revenue or the commissioner of insurance.
Chapter 246: Section 60. Property held by trustee as security; tender by attaching creditor Section 60. If the court finds that property in the hands of a person summoned as trustee is mortgaged, pledged or in any way liable for the payment of a debt to the person so summoned, it may allow the attaching creditor to pay or tender the amount due to the trustee, who shall thereupon deliver the property, in the manner before provided, to the officer holding the execution.
Chapter 246: Section 61. Property held for other than security purposes Section 61. If the court finds that the property is held for any purpose other than to secure the payment of money and that the contract, condition or other thing to be performed is such that it can be performed by the attaching creditor without damage to the other parties, it may make an order for the performance thereof by him. Upon such performance, or upon a tender, the trustee shall deliver the property, in the manner before provided, to the officer holding the execution.
Chapter 246: Section 62. Property received by officer; disposal; proceeds Section 62. Property received by an officer under either of the two preceding sections shall be sold and disposed of as if it had been taken on execution, except that from the proceeds of the sale the officer shall repay to the attaching creditor the amount paid by him to the trustee for the redemption of the property, with interest thereon, or shall indemnify the creditor for any other act or thing by him done or performed pursuant to the order of the court for the redemption of the property.
Chapter 246: Section 63. Sale by trustee of property held for security Section 63. The preceding sections shall not prevent the trustee from selling the property in his hands for payment of the claim for which it is mortgaged, pledged or otherwise liable at any time before the amount due him is paid or tendered as provided in section sixty or sixty-one, if such sale would be valid as between him and the defendant.
Chapter 246: Section 64. Failure of trustee to deliver property Section 64. If a trustee refuses or neglects to deliver any property in his hands when lawfully required by the officer serving the execution, he shall, after deducting the amount of any lien he has on such property, be liable to the plaintiff in a proceeding under section forty-five.
Chapter 246: Section 65. Common carriers as trustees; liability for nondelivery Section 65. When a common carrier, summoned as trustee in a civil action, has in his or its possession goods shipped by or consigned to a defendant in such action, such carrier, in the absence of collusion or fraud on his or its part, shall not, except as otherwise provided in chapter one hundred and eight, be held liable to the owner or consignee by reason of his or its failure to transport and to deliver said goods, until the attachment is dissolved or the carrier is discharged as trustee.
Chapter 246: Section 66. Bonds; persons entitled to file Section 66. A person having an interest by assignment or otherwise in money or credits attached by the trustee process in an action against another may, at any time before final judgment, dissolve such attachment or a part thereof by giving bond, in a sum not exceeding the damages demanded, with sufficient sureties to be approved in writing by the plaintiff or his attorney, by a master in chancery or by a justice of a court, if the attachment is made within the jurisdiction thereof, conditioned to pay to the plaintiff, within thirty days after final judgment or after a special judgment entered under section twenty-five of chapter two hundred and thirty-five, the amount for which the trustee may be charged, not exceeding the value of the property in his hands, or so much thereof as will satisfy the amount which may be recovered by the plaintiff. If there are several trustees, such bonds may be made to apply to one or more. The provisions of sections one hundred and twenty-five and one hundred and twenty-six of chapter two hundred and twenty-three, relative to notice, hearing, fees and the filing of the bond, shall apply to bonds given under this section.
Chapter 246: Section 67. Delivery of property by trustee; limitation of action on bond Section 67. After the filing of such bond, the trustee may deliver to the person by whom or in whose behalf as principal the bond was given the money or other thing in his hands, or that part thereof to which the bond applies, and shall not after such delivery be liable to the plaintiff therefor, nor shall any execution therefor issue against him. No action on such bond shall be commenced after the expiration of six years from the date thereof.
Chapter 246: Section 68. Allowable to trustee Section 68. A person summoned as a trustee in the supreme judicial or superior court, who appears and answers pursuant to this chapter, shall be allowed his costs for travel and term fees, and such further amount for counsel fees and other necessary expenses as the court may allow; if summoned in a district court, he shall be allowed the costs fixed by section twenty-six of chapter two hundred and sixty-one. If there has been a trial between the plaintiff and the alleged trustee upon an issue of fact, the court may award costs to either party.
Chapter 246: Section 69. Payable out of effects Section 69. If a person is adjudged a trustee, his costs and charges shall be deducted from the goods, effects and credits in his hands, and he shall be chargeable for the balance only to be paid on the execution. If such goods, effects and credits are not of sufficient value to discharge the costs taxed in his favor, he shall have judgment and execution against the plaintiff for the balance of such costs, after deducting the amount disclosed, in the same manner as if he had been discharged.
Chapter 246: Section 7. Partnerships; service Section 7. If co-partners are summoned as trustees and the partnership is properly described in the trustee summons, service of the trustee summons upon one partner shall be sufficient.
Chapter 246: Section 70. Payable by plaintiff Section 70. If a person summoned as trustee is discharged, he shall have judgment and execution for his costs and charges against the plaintiff.
Chapter 246: Section 71. Persons absent from commonwealth Section 71. If a person so summoned is out of the commonwealth at the time of service of process upon him and appears and answers within ten days of his return, he shall be allowed his costs and charges.
Chapter 246: Section 72. Persons out of county Section 72. If a person so summoned does not dwell or have a usual place of business in the county where the action is brought, he shall, if he appears at any time in the original action or in a proceeding under section forty-five, be allowed his costs and charges, which shall be retained or recovered as before provided.
Chapter 246: Section 73. Trustees neglecting to appear; liability for costs Section 73. A person so summoned, who dwells or has a usual place of business in the county where the action is brought and who neglects, without sufficient reason, to appear and answer within the time provided, shall be liable, if the plaintiff recovers judgment and does not otherwise receive his costs, for all costs for the plaintiff’s travel and term fees until he appears.
Chapter 246: Section 74. Recovery of costs Section 74. If a person so summoned does not pay the costs when demanded by the officer serving the execution, the officer shall state the fact in his return, and if it also appears by the return that the costs have not been paid, the court shall award a new execution against him for the costs.
Chapter 246: Section 75. Several trustees; liability for costs Section 75. If several persons are summoned as trustees who are liable for costs under any provision of the two preceding sections, the second execution shall be awarded against them jointly; and if any one pays more than his proportion, the others shall contribute equally to indemnify him for the excess.
Chapter 246: Section 76. Actions against trustees Section 76. If, while an action by the trustee process is pending, the original defendant therein or any other person brings an action against the alleged trustee to recover the goods, effects or credits or any part thereof in his hands or possession, costs in the later action shall be in the discretion of the court.
Chapter 246: Section 77. Action against defaulting trustee; liability for costs Section 77. If a person summoned as trustee, who dwells or has a usual place of business in the county where the action is brought, is defaulted in the original action, and if a proceeding under section forty-five is brought against him, he shall be liable out of his own goods and estates for all costs in such proceeding, although he is not adjudged a trustee, except as provided in the following sections.
Chapter 246: Section 78. Action against defaulting trustee; costs, nonliability, recovery precluded Section 78. He shall not be liable for costs under section seventy-seven, nor shall he be entitled to recover costs, if the court finds that he had goods, effects or credits in his hands liable to attachment, and has paid and delivered, on the execution issued on the original judgment, the full amount thereof.
Chapter 246: Section 79. Action against defaulting trustee; costs, nonliability, recovery Section 79. He shall not be liable for costs under section seventy-seven if he was prevented from appearing in the original action by his absence from the commonwealth or by any other sufficient cause, but the court may allow him his costs as if he had appeared in the original action.
Chapter 246: Section 8. New trustees; successive services Section 8. The plaintiff may at any time insert the names of other trustees in the summons, and cause the summons to be served upon them; and after service upon a trustee, a plaintiff may cause the summons to be again served upon the same trustee in the same manner and with the same effect as if he had not been previously served. A summons served upon a trustee after service upon the defendant shall be again served upon the defendant.
Chapter 246: Section 80. Action against defaulting trustee; execution against trustee for costs Section 80. If a person summoned as trustee is held liable to pay from his own estate the costs as before provided, and if he is at the same time liable for the plaintiff’s costs in the original action, one execution shall be issued against him for both amounts.
Chapter 246: Section 81. Action against several defaulting trustees; liability for costs Section 81. If several trustees are liable in an action brought under section forty-five and the plaintiff fails to join all of the trustees in one action, he shall recover no more costs than if he had so joined them, and the court may apportion the costs among all the trustees liable therefor.
Chapter 246: Section 82. Adverse claimants Section 82. If an adverse claimant is admitted as a party, the court may award costs between him, the plaintiff and the supposed trustee, or any of them.
Chapter 246: Section 83. Costs where damages less than ten dollars Section 83. If the damages recovered in an action brought under trustee process do not exceed ten dollars, exclusive of all costs in any former action, the plaintiff shall recover no costs.
Chapter 246: Section 9. Proceedings if trustees discharged Section 9. The plaintiff may proceed in the action against the defendant if the defendant has been served with process although all the trustees have been discharged.
Chapter 247: Section 1. Distrained or impounded beasts Section 1. A person whose beasts have been distrained or impounded in order to recover a penalty or forfeiture supposed to have been incurred by their going at large or to obtain satisfaction for damages alleged to have been done by them may cause them to be replevied.
Chapter 247: Section 10. Damages; assessment; rate Section 10. If the goods when replevied had been taken on execution, or if they had been attached and judgment is afterward rendered for the attaching creditor, and if in either case the service of the execution is delayed by reason of the replevin, the damages to be assessed for the defendant upon a judgment for a return shall be at the rate of not less than twelve per cent a year on the value of the goods for the time during which the service of the execution was so delayed.
Chapter 247: Section 11. Money recovered by officer after replevin of goods attached, etc.
; disposition Section 11. Money recovered by an officer in an action of replevin for goods attached or taken on execution by him or recovered by him in an action upon the replevin bond shall be applied as follows:First, To pay the lawful fees and charges of the officer and the reasonable expenses of the action of replevin and of the action on the bond, so far as such expenses are not reimbursed by the costs recovered.
Second, To pay to the creditor at whose suit the goods were attached or taken on execution the amount recovered by him in that action, or so much thereof as remains unpaid, with interest thereon at the rate of twelve per cent a year for the time during which the money has been withheld from him, or the service of his execution has been delayed by reason of the replevin.
If the attaching creditor in such case does not recover judgment in the action in which the attachment was made, or if a balance remains of the money so recovered by the officer after paying what is due to the creditor, such money shall be applied in the same manner as the surplus, if any, of the proceeds of sale would and ought to have been applied had the goods been sold on execution.
Chapter 247: Section 12. Application of amounts received by creditor Section 12. All amounts received by such creditor from the proceeds of the sale of goods attached or taken on execution and afterward returned, or received by him for the value of goods not returned, or recovered from the officer for the insufficiency of the sureties on the bond, shall be applied to the discharge of the judgment recovered by the creditor; and all amounts received as interest or damages for the delay of his execution shall be applied, one half to the sole use of the creditor, and the other half in discharge of the judgment.
Chapter 247: Section 13. Judgment for plaintiff Section 13. If the court finds that the goods were unlawfully taken or attached or unlawfully detained by the defendant, the plaintiff shall have judgment for his damages caused thereby and for costs.
Chapter 247: Section 14. Sureties on bond; approval Section 14. Sureties on a replevin bond may be approved in writing by the officer who serves the writ or by the defendant or by a justice of a district court or by a master in chancery, and, if approved otherwise than by the officer, he shall not be responsible for their sufficiency.
Chapter 247: Section 15. Approval of sureties; proceedings Section 15. If such sureties are to be approved by a justice of a district court or by a master in chancery, the officer who serves the writ shall give written notice to the defendant or to the person from whose custody the property has been taken, stating the time and place of hearing thereon and the names and residences of the proposed sureties, allowing not less than one hour before the time appointed for the hearing and at the rate of one hour additional for each mile of travel.
Chapter 247: Section 16. Fees of master Section 16. The fee of the master for the hearing and decision shall be as prescribed in section twenty-three of chapter two hundred and sixty-two; and, if the bond is approved, such fee shall be taxed in the plaintiff’s costs, if he prevails in the action.
Chapter 247: Section 17. Defects in bond; dismissal of action Section 17. An action of replevin shall not be dismissed by reason of a defect in the form or substance of the bond taken therein, if the court is satisfied that such bond was intended in good faith as a compliance with the law requiring a bond to be taken before service of the writ and if the plaintiff, within such time and upon such terms as the court orders, files a new bond such as is required by law, approved by the court or in the manner provided in section fourteen.
Chapter 247: Section 18. Actions against sureties; serving and entering writ; limitations Section 18. An action shall not be maintained against a surety on a replevin bond, unless the writ is served on him within one year after the final judgment in the action of replevin. If the writ of replevin is not entered, an action on the bond shall not be maintained against a surety unless it is entered within one year after the return day of the writ of replevin.
Chapter 247: Section 19. Damages; assessment Section 19. Damages in replevin shall be assessed by the jury by which the cause is tried, if there is a trial by jury; otherwise, by the court or by a jury impanelled therefor.
Chapter 247: Section 2. Bond Section 2. Before the officer serving the writ delivers the beasts to the plaintiff, he shall take from the plaintiff or a person in his behalf a bond payable to the defendant in a sum equal to double the value of the beasts, with sufficient sureties, conditioned to prosecute the replevin to final judgment and to pay such damages and costs as the defendant shall recover and to return the beasts if such shall be the final judgment.
Chapter 247: Section 20. Judgment for return of goods attached Section 20. If the goods replevied had been attached, they shall, upon a judgment for a return, be held liable to the attachment until final judgment in the action in which they were attached, and for thirty days thereafter, so that they may be taken on execution. If such final judgment is rendered before the return of the goods, or if the goods when replevied were seized and held on execution, they shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if the goods had not been replevied.
Chapter 247: Section 21. Writ of return; form Section 21. The writ of return in actions of replevin shall be substantially in the form heretofore established and used in like cases.
Chapter 247: Section 22. Effect of foregoing provisions Section 22. The foregoing provisions shall not preclude the defendant from his remedy on the replevin bond, nor, except as provided in section fourteen, from his remedy against the officer for the insufficiency of the sureties on the bond, to recover the value of the goods and the loss or damage caused by the replevin, although he has endeavored to recover the same by the writ of return as before provided.
Chapter 247: Section 3. Amount of bond; appraisal of property Section 3. The writ shall require that the bond be given for double the value of the beasts but shall not express the amount for which it shall be given. If the parties do not agree as to the value of the beasts, it shall be ascertained by three disinterested appraisers, who shall be appointed and sworn by the officer, and the penalty of the bond shall be double the value ascertained by such appraisers or by a majority of them.
Chapter 247: Section 4. Return of writ Section 4. The officer shall return such bond with the writ to the court to which the writ is returnable, for the use of the defendant; and he shall include in his return, endorsed on the writ, a certificate of the appointment of the appraisers, of the appraisal and of the expenses thereof.
Chapter 247: Section 5. Judgment for defendant Section 5. If the court finds that the beasts were lawfully taken or distrained, the defendant shall have judgment for the amount found to be due from the plaintiff for the penalty or forfeiture or for the damages for which the beasts were impounded, with the legal fees, costs, charges and expenses incurred by reason of the distress, and with the costs of the action of replevin; or, instead thereof, the court may render a judgment for a return of the beasts, to be held by the defendant irrepleviable by the plaintiff, and for the damages for the taking of the beasts by the replevin and for the defendant’s costs. If so returned, the beasts shall be held and disposed of as if they had not been replevied.
Chapter 247: Section 6. Judgment for plaintiff Section 6. If the court finds that the beasts were unlawfully taken or distrained, the plaintiff shall have judgment for damages caused by such taking and detaining and for costs.
Chapter 247: Section 7. Goods unlawfully taken, detained or attached Section 7. If goods exceeding twenty dollars in value are unlawfully taken or detained from the owner or person entitled to their possession, or if goods of that value, which have been attached on mesne process or taken on execution, are claimed by a person other than the defendant in the action in which they have been so attached or taken, the owner or such other person may cause them to be replevied.
Chapter 247: Section 8. Bond; amount; appraisal of goods Section 8. Except as otherwise provided in section thirty-seven of chapter two hundred and fifty-five, before the officer serving the writ delivers the goods to the plaintiff, he shall take from the plaintiff or a person in his behalf a bond payable to the defendant in a sum equal to double the value of the goods, with sufficient sureties, conditioned to prosecute the replevin to final judgment and to pay such damages and costs as the defendant shall recover and to return the goods if such shall be the final judgment. The officer shall appraise the goods and return the writ in the manner provided in sections three and four; but if the writ is returnable to the superior court, the bond shall be left with the clerk of the court for the use of the defendant.
Chapter 247: Section 9. Judgment for defendant Section 9. If the court finds that the defendant is entitled to a return of the goods, judgment shall be rendered therefor and for the damages caused by the taking by the replevin and for costs.
Chapter 248: Section 1. Persons entitled to writ; exceptions Section 1. Whoever is imprisoned or restrained of his liberty may, as of right and of course, prosecute a writ of habeas corpus, according to this chapter, to obtain release from such imprisonment or restraint, if it proves to be unlawful, unless—First, He has been committed for treason or felony, or on suspicion thereof, or as accessory before the fact to a felony, and the cause has been plainly expressed in the warrant of commitment.
Second, He has been convicted or is in execution upon legal process, civil or criminal.
Third, He has been committed on mesne process in a civil action in which he was liable to arrest and imprisonment, unless excessive and unreasonable bail was required.
Chapter 248: Section 10. Return of writ Section 10. Any person to whom the writ is directed shall receive it, and, upon payment or tender of the charges demandable for its execution, shall make due return thereof within five days after receiving it.
Chapter 248: Section 11. Contents of return Section 11. The person in whose custody the prisoner is found shall state in writing, plainly and unequivocally, to the court or justice before whom the writ is returnable—First, Whether the prisoner is in his custody or power or under his restraint.
Second, If the prisoner is in his custody or power or under his restraint, his specific authority for and the true and whole cause of such imprisonment or restraint, with a copy of the writ, warrant or other process, if any, upon which the prisoner is detained.
Third, If the prisoner has been in his custody or power or under his restraint, and has been transferred to that of another, particularly to whom, when, why and by what authority such transfer was made.
The statement shall be signed by him and, unless he is a sworn public officer and makes the statement in his official capacity, shall be sworn to by him.
Chapter 248: Section 12. Production of prisoner Section 12. The person who makes the statement shall at the same time produce the prisoner, if in his custody or power or under his restraint, according to the command of the writ, unless prevented by the illness or infirmity of the prisoner.
Chapter 248: Section 13. Illness preventing production of prisoner Section 13. If by reason of the illness or infirmity of the prisoner he cannot without danger be taken to the place appointed for the return of the writ, that fact shall be stated in the statement and, if proved, the judge may proceed to the place where the prisoner is confined and there make his examination; or he may postpone the examination or may make such other order in the case as law and justice require.
Chapter 248: Section 14. Return before justice of court Section 14. If the court to which the writ is returnable is not sitting for the transaction of business when the writ is returned, the return shall be made before a justice thereof. If the writ is returned before a justice when the court is sitting for the transaction of business, he may adjourn the case into the court, to be there heard and determined.
Chapter 248: Section 15. Causes of imprisonment; examination Section 15. After the writ has been returned, the prisoner may deny any of the facts set forth in the statement and may allege any other material facts; and the court or justice shall examine summarily and without delay the causes of the imprisonment or restraint, hear the evidence produced by any persons interested or authorized to appear and dispose of the prisoner as law and justice require, and may adjourn the examination from time to time.
Chapter 248: Section 16. Notice to persons interested in continuing imprisonment Section 16. If it appears from the return of the writ or otherwise that the prisoner is detained on a process under which another person has an interest in continuing his imprisonment or restraint, he shall not be discharged until notice has been given to such other person or his attorney, if within the commonwealth. If such person or his attorney is not within the commonwealth the court may order notice to be given to him.
Chapter 248: Section 17. Notice; prisoners held for crimes Section 17. If it appears from the return of the writ or otherwise that the prisoner is imprisoned on a criminal accusation, he shall not be discharged until notice has been given to the attorney general or other attorney for the commonwealth.
Chapter 248: Section 18. Custody of prisoner pending examination Section 18. Until judgment is given, the court or justice may remand the prisoner, bail him to appear from day to day, commit him to the sheriff of the county, or place him under such other care and custody as the circumstances of the case require.
Chapter 248: Section 19. Bail Section 19. If the prisoner is detained for a cause or crime for which he is bailable, he shall be admitted to bail if sufficient bail is offered; and if not, he shall be remanded with an order of the court or justice expressing the amount in which he shall be held to bail and the court at which he shall be required to appear; and any magistrate authorized to admit to bail may, at any time before the sitting of said court, bail the prisoner pursuant to such order.
Chapter 248: Section 2. By whom issued Section 2. The writ may be issued, irrespective of the county in which the person is imprisoned or restrained, by the supreme judicial or the superior court, by a probate or a district court or by a judge of any of said courts.
Chapter 248: Section 20. Prisoners committed in civil actions for want of bail; bail Section 20. If the prisoner has been committed on mesne process in a civil action for want of bail, and it appears that the amount for which bail was required is excessive and unreasonable, the court or justice shall decide how much bail is reasonable, and shall order that on giving such bail the prisoner shall be discharged.
Chapter 248: Section 21. Prisoners committed on criminal charges; bail Section 21. If a person is committed to jail on a criminal accusation for want of bail, a justice of the superior court or of a district court or a trial justice may issue a writ of habeas corpus and cause the prisoner to be brought before him, when it is necessary for the purpose of admitting him to bail pursuant to chapter two hundred and seventy-six.
Chapter 248: Section 22. Remanding prisoner Section 22. If the prisoner is lawfully imprisoned or restrained and is not entitled to be admitted to bail, he shall be remanded to the person from whose custody he was taken or any other person or officer authorized by law to detain him.
Chapter 248: Section 23. Discharging prisoner Section 23. If no legal cause is shown for the imprisonment or restraint, the court or justice shall discharge the prisoner.
Chapter 248: Section 24. Imprisonment after discharge Section 24. No person who has been discharged upon a habeas corpus shall be again imprisoned or restrained for the same cause, unless indicted therefor, convicted thereof, or committed for want of bail by a court of record having jurisdiction of the cause; or unless, after a discharge for defect of proof or for some material defect in the commitment in a criminal case, he is again arrested on sufficient proof and committed by legal process.
Chapter 248: Section 25. Scope of chapter Section 25. This chapter shall not affect the power of the supreme judicial court, or the superior court, or a justice thereof, to issue a writ of habeas corpus in its discretion, and thereupon grant bail to a person for whatever cause he has been committed or restrained, or to discharge him as law and justice require. The court shall have no power to issue a writ of habeas corpus, at its discretion for—a person who has been committed by the governor and council, the senate, or the house of representatives in the manner and for the causes mentioned in the constitution, or a person who is imprisoned or restrained of his liberty pursuant to a criminal conviction.
This chapter shall not affect the power of any court or magistrate to issue a writ of habeas corpus, when necessary to bring before it a prisoner for trial in a pending criminal case; or to bring a prisoner to be examined as a witness in a suit or proceeding, civil or criminal, pending before the court, if the personal attendance and examination of the witness is necessary for the attainment of justice.
Chapter 248: Section 26. Refusal of officer to deliver copy of warrant; penalty Section 26. An officer who refuses or neglects for six hours to deliver a printed copy of the warrant contained in the warrant management system or process by which he detains a prisoner to any person who demands such copy and tenders the fees therefor shall forfeit two hundred dollars to such prisoner.
Chapter 248: Section 27. Refusal to obey writ; attachment Section 27. If a person to whom a writ of habeas corpus is directed refuses to receive it, or neglects to execute it according to the provisions of this chapter and no sufficient excuse is shown therefor, the court or justice before whom the writ was returnable shall forthwith by process of attachment, as for a contempt, compel obedience to the writ, and punish the person guilty of the contempt.
Chapter 248: Section 28. Attachment; executing officers Section 28. If such attachment is issued against a sheriff or his deputy, it may be directed to a special sheriff or to some other person designated therein, who shall have full power to execute it; and if the sheriff or his deputy is to be committed upon such process, he may be committed to the jail of any county other than his own.
Chapter 248: Section 29. Refusal to obey writ; precept commanding production of prisoner Section 29. Upon the refusal or neglect of the person to whom the writ of habeas corpus is directed to receive and execute it, the court or justice may issue a precept to any officer or other person designated therein, commanding him to bring the prisoner forthwith before such court or justice, who shall thereupon discharge, bail or remand the prisoner as if he had been brought in upon the writ of habeas corpus.
Chapter 248: Section 3. Petition for writ; contents; annexed papers Section 3. The petition for the writ shall be in writing, signed and sworn to by the person for whose release it is intended, or by a person in his behalf, and shall state by whom and where the person is imprisoned or restrained, the name of the prisoner and of the person detaining him, if their names are known, or a description of them, if their names are not known, and the cause or pretence of such imprisonment or restraint, according to the knowledge and belief of the petitioner.
If the imprisonment or restraint is by virtue of a warrant or other process, a copy thereof shall be annexed, unless it appears that such copy has been demanded and refused or that, for a sufficient reason, a demand therefor could not be made.
Chapter 248: Section 30. Refusal to obey writ; penalty Section 30. Whoever refuses or neglects to receive and execute a writ of habeas corpus shall forfeit four hundred dollars to the party aggrieved thereby.
Chapter 248: Section 31. Resistance or disobedience of writ; attachment Section 31. Whoever resists the service of the writ of habeas corpus, or disobeys it when served, shall be liable to attachment as for a contempt of the court or justice before whom the writ is returnable.
Chapter 248: Section 32. Removing or concealing prisoner; penalty Section 32. Whoever, having in his custody or power a person entitled to a writ of habeas corpus, transfers him to the custody, or places him under the power or control, of another person, conceals him or changes the place of his confinement, with intent to evade the service of such writ or to avoid the effect thereof, whether the writ has been issued or not, shall forfeit four hundred dollars to the party aggrieved thereby.
Chapter 248: Section 33. Recovery of penalties; effect on actions by aggrieved parties Section 33. The recovery of any penalty imposed by the foregoing provisions of this chapter shall not bar an action at common law for false imprisonment, or for a false return to the writ of habeas corpus, or for any other injury or damage sustained by the aggrieved party.
Chapter 248: Section 34. Persons in custody of United States marshal Section 34. This chapter shall not authorize the taking of a person by writ of habeas corpus out of the custody of the United States marshal, or his deputy, who holds him by legal and sufficient process issued by any court or magistrate of competent jurisdiction; but this section shall not affect the authority of the supreme judicial court or of its justices, in accordance with the provisions of the constitution of the United States and of the commonwealth, to investigate and determine the validity and legal effect of any process which may be relied on to defeat the writ, or any other matter properly arising.
Chapter 248: Section 35. Personal liberty; how secured Section 35. No person shall be deprived of his liberty or held in custody by any person or in any place against his will or, if he is a minor, against the will of his parents, guardian or other person entitled to his custody, except by due process of law; but this section shall not apply to persons who have been legally convicted of crime and are serving sentence therefor.
Chapter 248: Section 36. Petition to obtain personal liberty Section 36. Whoever has reason to believe that another person is deprived of his liberty or held in custody in violation of the preceding section may file a petition, on the oath of the petitioner, in the probate court for the county where such person is believed to be detained, stating his name, age and general description, where, when and under what circumstances he was deprived of his liberty, where he is believed to be detained, the name of the person so depriving him of his liberty, if known, the name of his supposed custodian and any other material facts and circumstances.
Chapter 248: Section 37. Notice to custodians, etc. Section 37. Upon the filing of such petition, the court shall cause notice to be served upon all the supposed custodians or persons alleged to be detaining or holding in custody said person, as stated in said petition, or as otherwise known, ordering them to appear before said court at a time and place named therein, to be examined as said court shall order; and may cause said person to be brought before it for examination as to his desire to be released and as to any other relevant matters.
Chapter 248: Section 38. Examination of witnesses Section 38. The court may examine the witnesses separately and may permit the petitioner, parent, guardian or other person entitled to the custody of a person deprived of his liberty, in person or by counsel, to examine publicly his alleged custodian as to the condition of such person and the place where he is detained or held in custody; and may also examine separately and apart, or publicly, such person, and may make orders for his release or permitting correspondence or personal interviews between him and his friends or relatives, and may modify its orders upon notice to the parties.
Chapter 248: Section 39. Conducting examinations; assistance from district attorneys Section 39. The probate court may request the district attorney for the district where it is held to attend the examination under the preceding section, and to conduct or assist in conducting the examination. If the court is unable to obtain satisfactory information, or to satisfactorily determine the questions involved or to furnish proper relief, it shall notify the district attorney, who may institute proceedings under sections one to thirty-four, inclusive, or such other proceedings as the case may require. The provisions of said sections shall apply to all proceedings under the four preceding sections so far as appropriate.
Chapter 248: Section 4. Issuance of writ; return Section 4. The court or magistrate to whom the petition is presented shall, without delay, issue a writ of habeas corpus, substantially in the form heretofore established and used in the commonwealth, and returnable forthwith to the supreme judicial court, or a justice thereof, at such place as shall be designated in the writ.
Chapter 248: Section 40. Payment of fees Section 40. The fees for the service of process and notices and for summoning witnesses shall, upon the approval of the court or district attorney, be paid by the commonwealth if the petitioner is not able to pay them.
Chapter 248: Section 5. Form of writ Section 5. If the imprisonment or restraint is not by a sheriff, deputy sheriff or jailer, the writ shall be in the following form:COMMONWEALTH OF MASSACHUSETTS.
(Seal.
) To the sheriffs of our several counties and to their respective deputies,Greeting.
We command you that the body of , of , by , of , imprisoned and restrained of his liberty, as it is said, you take and have before a justice of our supreme judicial court at immediately after the receipt of this writ, to do and receive what our said justice shall then and there consider concerning him in this behalf; and summon said then and there to appear before our said justice to show the cause of the taking and detaining of said ; and have you there this writ with your doings thereon.
Witness at this day of in the year .
Chapter 248: Section 6. Signature of magistrate or clerk; service Section 6. If the writ is issued by the court when sitting for the transaction of business, it shall be signed by the clerk, otherwise by the magistrate issuing it, and may be served in any county by any sheriff or deputy sheriff.
Chapter 248: Section 7. Designation of custodian of prisoner Section 7. The person who has the custody of the prisoner may be designated by his office or by his own name, or, if they are unknown or uncertain, he may be described by a fictitious name and the person upon whom the writ is served shall be held to be the person intended.
Chapter 248: Section 8. Designation of prisoner Section 8. The person restrained shall be designated by name, if known; otherwise, he may be so described as to identify him.
Chapter 248: Section 9. Expense of transporting prisoner; advance payment Section 9. If the person restrained is confined in jail or is in the custody of a civil officer, the court or magistrate granting the writ shall certify thereon the amount to be paid for the expense of transporting him from the place of imprisonment, and the officer shall not be bound to obey the writ unless that amount is paid or tendered to him.
Chapter 249: Section 1 to 3. Repealed, 1975, 377, Sec. 147 Chapter 249: Section 10 to 12. Repealed, 1973, 1114, Sec. 293 Chapter 249: Section 13. Effect of chapter Section 13. This chapter shall not affect the duty of the attorney general to proceed in all cases in which he might otherwise act.
Chapter 249: Section 4. Action in the nature of certiorari; limitation; joinder of party defendant; injunction; judgment Section 4. A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court. Such action shall be commenced within sixty days next after the proceeding complained of. Where such an action is brought against a body or officer exercising judicial or quasi-judicial functions to prevent the body or officer from proceeding in favor of another party, or is brought with relation to proceedings already taken, such other party may be joined as a party defendant by the plaintiff or on motion of the defendant body or officer or by application to intervene. Such other party may file a separate answer or adopt the pleadings of the body or officer. The court may at any time after the commencement of the action issue an injunction and order the record of the proceedings complained of brought before it. The court may enter judgment quashing or affirming such proceedings or such other judgment as justice may require.
Chapter 249: Section 4A. Service upon board, commission or voluntary association Section 4A. If a defendant in an action authorized by section four is a board or commission or voluntary association having a chairman or other presiding officer, secretary or clerk, by whatever official title he is called, service upon one of such persons shall be sufficient, otherwise service shall be made upon a majority of the members of a board or commission, or, as to a voluntary association on such of its members as will fairly insure the adequate representation of all.
Chapter 249: Section 5. Action in the nature of mandamus Section 5. A civil action to obtain relief formerly available by writ of mandamus may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court.
Chapter 249: Section 6. Action in the nature of quo warranto Section 6. A person whose private right or interest has been injured or put in hazard by the exercise of a franchise or privilege not conferred by law, by a private corporation or by persons claiming to be a private corporation, whether he is a member of such corporation or not, may bring a civil action in the nature of a quo warranto in the supreme judicial or superior court in the county where the defendant has its principal place of business seeking an injunction against such exercise. A copy of the complaint shall be served on the attorney general.
Chapter 249: Section 7. Intervention by attorney general Section 7. The attorney general may intervene in such action and may demand a judgment of fine and forfeiture.
Chapter 249: Section 8. Judgment; costs Section 8. If the court finds that the defendant has not exercised a franchise or privilege not conferred by law, he shall recover costs. If the attorney general does not intervene, and the court finds that the respondent has exercised a franchise or privilege not conferred by law, judgment of forfeiture shall not be entered, but judgment shall be entered that the corporation, or the persons claiming to be such, be perpetually excluded from the exercise of such franchise or privilege, and that the directors, managers, or agents, guilty of the usurpation, pay the costs of the complainant.
Chapter 249: Section 9. Jurisdiction of actions against persons holding or claiming public office Section 9. The supreme judicial and superior courts shall have like jurisdiction of civil actions brought by the attorney general against a person holding or claiming the right to hold an office or employment, the salary or compensation of which is payable by the commonwealth, a county, city or town.
Chapter 250: Section 1, 2. Repealed, 1979, 344, Sec. 13 Chapter 250: Section 13. Convictions; effect of age on validity Section 13. Upon a proceeding to reverse or avoid a conviction of crime or to obtain the discharge of a person who is held in custody thereunder, the fact that the person was under the age of seventeen at the time of the conviction shall not affect the validity of the conviction nor entitle the person to be discharged.
Chapter 250: Section 14 to 20. Repealed, 1975, 377, Sec. 148 Chapter 250: Section 20A. Repealed, 1978, 512, Sec. 14 Chapter 250: Section 21 to 36. Repealed, 1975, 377, Sec. 148 Chapter 250: Section 3 to 8. Repealed, 1973, 1114, Sec. 295 Chapter 250: Section 9 to 12. Repealed, 1979, 344, Sec. 13 collective bargaining agreements Section 1. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. The provisions of this chapter shall not apply to collective bargaining agreements to arbitrate, which are subject to the provisions of chapter one hundred and fifty C, except as provided by the provisions of chapter one hundred and fifty-two.
Section 10. Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.
Section 11. Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections twelve and thirteen.
application; rehearing; confirmation Section 12. (a) Upon application of a party, the court shall vacate an award if:—(1) the award was procured by corruption, fraud or other undue means;(2) there was evident partiality by an arbitrator appointed as a neutral, or corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;(3) the arbitrators exceeded their powers;(4) the arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section five, as to prejudice substantially the rights of a party; or(5) there was no arbitration agreement and the issue was not adversely determined in proceedings under section two and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
(b) An application under this section shall be made within thirty days after delivery of a copy of the award to the applicant, but, if such application is predicated upon corruption, fraud, or other undue means, it shall be made within thirty days after such grounds are known or should have been known.
(c) In vacating the award on grounds other than stated in clause (5) of paragraph (a) the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with section three, or if the award is vacated on grounds set forth in clauses (3) and (4) of paragraph (a) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with section three. The time within which the agreement requires the award to be made shall be applicable to the rehearing and shall commence from the date of the order.
(d) If the application to vacate an award is denied and no motion to modify or correct the award is pending, the court shall confirm the award.
application; grounds; joinder with application to vacate Section 13. (a) Upon application made within thirty days after delivery of a copy of the award to the applicant, the court shall modify or correct the award if:—(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;(2) the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or(3) the award is imperfect in a matter of form, not affecting the merits of the controversy.
(b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected; otherwise, the court shall confirm the award as made.
(c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
Section 14. Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements in connection therewith may be awarded by the court.
Section 15. Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of an original writ of summons.
Section 16. The term “court” means any court of competent jurisdiction of this state. The making of an agreement described in section one providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this chapter and to enter judgment on an award thereunder.
Section 17. An initial application shall be made to the superior court for the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the superior court for any county. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.
Section 18. (a) An appeal may be taken from:—(1) an order denying an application to compel arbitration made under paragraph (a) of section two;(2) an order granting an application to stay arbitration made under paragraph (b) of section two;(3) an order confirming or denying confirmation of an award;(4) an order modifying or correcting an award;(5) an order vacating an award without directing a rehearing; or(6) a judgment or decree entered pursuant to the provisions of this chapter. Such appeal shall be taken in the manner and to the same extent as from orders or judgments in an action.
Section 19. This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
court Section 2. (a) A party aggrieved by the failure or refusal of another to proceed to arbitration under an agreement described in section one may apply to the superior court for an order directing the parties to proceed to arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied.
(b) Upon application, the superior court may stay an arbitration proceeding commenced or threatened if it finds that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily determined, and if the court finds for the applicant it shall order a stay of arbitration; otherwise the court shall order the parties to proceed to arbitration.
(c) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under paragraph (a), the application shall be made therein, otherwise and subject to section seventeen, the application may be made in any court of competent jurisdiction.
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect to such issue only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.
proceedings; application; determination Section 2A. A party aggrieved by the failure or refusal of another to agree to consolidate one arbitration proceeding with another or others, for which the method of appointment of the arbitrator or arbitrators is the same, or to sever one arbitration proceeding from another or others, may apply to the superior court for an order for such consolidation or such severance. The court shall proceed summarily to the determination of the issue so raised. If a claimant under section twenty-nine of chapter one hundred and forty-nine applies for an order for consolidation or severance of such proceedings, the issue shall be decided under the applicable provisions of said section twenty-nine of said chapter one hundred and forty-nine governing consolidation or severance of such actions; otherwise the issue shall be decided under the Massachusetts Rules of Civil Procedure governing consolidation and severance of trials and the court shall issue an order accordingly. No provision in any arbitration agreement shall bar or prevent action by the court under this section.
Section 3. If the arbitration agreement provides a method of appointment of arbitrators, such method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint an arbitrator. An arbitrator so appointed shall have all the powers of an arbitrator specifically named in the agreement.
Section 4. The powers of the arbitrators may be exercised by a majority thereof unless otherwise provided by the agreement or by this chapter.
conduct of hearings Section 5. Unless otherwise provided by the agreement:—(a) The arbitrators shall appoint a time and place for the hearing and cause written notice to the parties to be served personally or by registered mail not less than five days before the hearing. Appearance at the hearing shall constitute a waiver of such notice. The arbitrators may adjourn the hearing from time to time and, on request of a party and for good cause, or upon their own motion may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
(b) The parties shall have the right to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.
(c) The hearing shall be conducted by all the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.
Section 6. A party shall have the right to be represented by an attorney at any proceeding or hearing under this chapter, notwithstanding any waiver of such right prior to the proceeding or hearing.
entry on land for inspection Section 7. (a) The arbitrators may cause to be issued subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and upon application to the court by a party or the arbitrators, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action.
(b) On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.
(c) All provisions of law compelling a person under subpoena to testify are applicable.
(d) Fees for attendance as a witness shall be the same as for a witness in the superior court.
(e) Any party in an arbitration proceeding may serve upon any other party a request for the production of documents and things and for entry upon land for inspection and other purpose as permitted by and in accordance with the procedure set forth in rule thirty-four of the Massachusetts Rules of Civil Procedure in effect at the time the request is made. The enforcement and objections of such request shall be made to the arbitrators and the arbitrators only shall issue such orders as they deem necessary on objections and on requests for enforcement of production both prior to and after the commencement of the hearing.
Section 8. (a) The award shall be in writing and signed by the arbitrators concurring in the award. The arbitrators shall deliver a copy of the award to each party personally or by registered mail, or as provided in the agreement.
(b) An award shall be made within the time fixed therefor by the agreement or, if said time is not so fixed, within such time as the court orders upon application of a party. The parties may by an agreement in writing extend the time either before or after the expiration thereof. A party shall be deemed to have waived the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.
Section 9. Upon application of a party or, if an application to the court is pending under sections eleven, twelve or thirteen, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in (1) and (3) of subdivision (a) of section thirteen, or for the purpose of clarifying the award. The application shall be made within twenty days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within ten days from the notice. The award so modified or corrected shall be subject to the provisions of sections eleven, twelve and thirteen.
Chapter 252: Section 1. General provisions Section 1. If it is necessary or useful (1) to drain or flow a meadow, swamp, marsh, beach or other low land held by two or more proprietors, or (2) to remove obstructions in rivers or streams leading thereto or therefrom, or (3) to eradicate mosquitoes in any area infested thereby, including, in respect to each such purpose, purposes incidental thereto, such improvements may be made as provided in this chapter.
Chapter 252: Section 10. Financing; power of district to adopt alternative methods Section 10. The district may vote to adopt any of the three methods of financing hereinafter specified. (1) If all the members of the district agree, the district may raise by assessments upon the proprietors or by voluntary contributions and deposit with the state treasurer the total sum required to meet the estimated expense of the improvements. Such deposits shall be held by the state treasurer to the credit of the district, and payments shall be made therefrom as provided in section fourteen. (2) The district may pay the whole expense of the improvements from time to time as the work is performed and for this purpose may incur debt by a temporary loan in anticipation of the collection of assessments from the members of the district during the calendar year in which said debt is incurred or during the next succeeding calendar year. (3) The district may incur debt to the amount necessary to pay the estimated expense of the proposed improvements and may issue therefor notes or bonds, and may, if the board approves, issue notes or bonds on the condition that the first payment on account of the principal shall be deferred for a period of not more than five years from the date of issue of such notes or bonds and that the whole amount of such debt shall be payable within a period of not more than twenty-five years after such notes or bonds are issued.
Indebtedness incurred by the district under the provisions of this section or of section fourteen A shall be subject to chapter forty-four and to other provisions of the General Laws applicable to notes and bonds of districts except as otherwise provided in sections one to fourteen B, inclusive. Money received from the sale of notes or bonds issued under this section shall be deposited with the state treasurer and held by him to the credit of the district. If the district issues notes or bonds and thereafter the general court makes an appropriation to cover such part, if any, of the expenses of the improvements as it shall deem to be for the benefit of the public health of the commonwealth as a whole, the state treasurer may, in his discretion, make all or any part of such appropriation available to redeem notes or bonds of the district and shall hold the balance, if any, to the credit of the district to be used for payment of the expense of the improvements. If, after payment of the total expense of the improvements, money remains in the hands of the state treasurer to the credit of the district the same shall be paid to the treasurer of the district and shall be used to redeem outstanding notes or bonds which shall be cancelled by said district treasurer and not reissued. Bonds or notes issued under this section shall be the general obligations of the district by which they are issued.
Chapter 252: Section 11. Assessments; collections Section 11. The clerk of the district shall certify to the assessors of the town or towns in which the land of the district lies all sums of money voted to be raised and all sums payable annually on account of the principal and interest due on bonds or notes issued under the provisions of section nine or ten, together with the amount to be paid by each proprietor according to the determination made under section seven, and said clerk shall also file an attested copy of such certification with the board. The amounts so certified shall be assessed upon the lands of the several proprietors within the area, and be committed to the collector of taxes of the town wherein the land assessed is situated, who shall have and exercise the same powers and duties in relation to the collection of such assessments as he has and exercises relative to the collection of town taxes. The collector shall remit weekly to the district treasurer all sums collected by him on account of such assessments. An assessment made hereunder shall be a lien upon the land assessed therefor, and such lien shall take effect upon the recording of the description, plan and estimate under section seven, and shall continue for a period of two years from July first of the year of assessment.
Chapter 252: Section 12. Commissioners; powers and duties Section 12. If sections one to seven, inclusive, have been complied with, and payment of the expense of the improvements has been arranged under section nine or ten, the commissioners shall carry out said improvements in such manner as the board may approve. The commissioners may employ suitable persons to perform the work under their direction. So far as may be necessary to effect the improvements as approved by the board, the commissioners may take on behalf of the district, in the manner provided by chapter seventy-nine, lands, easements and rights in lands, if the improvements are for a public use, and may purchase and convey real and personal property both within and beyond the limits of the commonwealth. Any person damaged in his property by any action under this or the following section may recover his damages from the district in the manner provided by said chapter seventy-nine and such damages shall constitute a part of the total expense of the improvements.
Chapter 252: Section 13. Erection of temporary dams; aggrieved parties; notice; appeal Section 13. If the commissioners find it necessary or expedient to lower or raise the water to obtain a view of the land or for the more convenient or expeditious removal of obstructions, they may open the flood gates of any mill or make other needful passages through or around the dam thereof, or erect a temporary dam on the land of a person not a party to the proceedings, and may maintain such dam or passages as long as necessary for such purposes; but before so doing, they shall give to such person reasonable written notice of their intention. If such person appeals from their decision and gives reasonable written notice thereof to any commissioner, the commissioners shall suspend all proceedings upon his land until such appeal is determined; provided, that the petition therefor is entered in the superior court for the county where the greater part of the land improved lies not later than thirty days after the time of giving such notice.
Chapter 252: Section 14. Expenses; submission to the board; approval; payment Section 14. The commissioners shall at least once a month at such time as the board may require submit to it the accounts and vouchers for expenses incurred in meeting the cost of required improvements under sections one to fourteen B, inclusive. Such accounts and vouchers shall be inspected by the board and if it approves the same it shall forward them to the county treasurer or to the state treasurer, as the case may be, for payment from any funds which may be available for the purpose. Expenses for maintenance or for further improvements incurred under the direction of the prudential committee of the district as provided in section fourteen A shall be paid by the district treasurer on presentation by the prudential committee of accounts and vouchers for such expenses; provided, that accounts and vouchers for expenses incurred in connection with further improvements shall be subject to the approval of the board before payment. The commissioners appointed under section fourteen A to make further improvements shall present their accounts and vouchers to the board for approval in the same manner as the commissioners appointed under section five to make the original improvements.
Chapter 252: Section 14A. Reclamation districts; further improvements; procedure Section 14A. A reclamation district organized under this chapter may from time to time at a legal meeting called for the purpose, vote to undertake further improvements within the district, to raise money by assessment to meet the expense thereof and to incur debt therefor in the manner provided by section ten. Such vote shall not be passed until after completion of the original improvements. The district may also vote to request the board to appoint commissioners to carry out the proposed further improvements. Such commissioners shall be appointed by certificate of the board as provided in section five. The district may, however, authorize its prudential committee to carry out such further improvements. The commissioners or prudential committee acting under this section shall have and exercise, so far as necessary, the powers of commissioners appointed under section five to make original improvements. The clerk of the district shall notify the board of the vote taken and the commissioners or prudential committee shall submit to the board within a reasonable time the plan or plans for such improvements, which shall not be undertaken until the board approves the same. The district may assess upon its members such sums as may be necessary to pay for improvements so voted and for the maintenance of all improvements made under sections one to fourteen B, inclusive, in the manner provided in section eleven for assessment of the expense of the original improvements. Such assessment shall be subject to the same provisions as the assessment authorized in said section eleven, shall be collected in the same manner and shall be paid to the treasurer of the district.
Chapter 252: Section 14B. Additional water power or supply; prescriptive rights; necessity of vote before development Section 14B. No person obtaining an additional water power or water supply by the doing of any work contemplated by sections one to fourteen B, inclusive, shall gain a prescriptive right to the use thereof, nor be entitled to any compensation for the taking thereof under said sections by the removal of any dam or flashboards or by the changing of the height or dimensions of any dam. No water power may be developed in a reclamation district organized under this chapter except by vote of the district and approval by the board.
Chapter 252: Section 14C. Injury to improvements; penalty; damages Section 14C. Whoever obstructs or injures any ditch, tide gate, dike or other structure constructed or used for any purpose authorized by any provision of sections one to fourteen B, inclusive, shall be punished by a fine of not less than ten dollars. The state reclamation board may also recover, in the name of the commonwealth, for any such obstruction or injury, in an action of contract, the amount of the damages sustained by reason thereof, and the provisions of section five A, relative to the disposition of money therein referred to, shall govern the disposition of money recovered in such action.
Chapter 252: Section 15. General provisions Section 15. A town or person owning low land, ponds, swamps, quarries, mines or mineral deposits, which, on account of adjacent lands belonging to other persons or occupied as a highway, cannot be approached, worked, cultivated, drained or used to advantage in the ordinary manner without crossing such land or highway, may construct roads, drains, ditches, tunnels and railways thereto and, when the construction of such improvements is required by public convenience and necessity, may take the land of such other persons for the location of such improvements as hereinafter provided.
Chapter 252: Section 16. Petition; security Section 16. A party desiring to make such improvements shall file a petition therefor with the county commissioners for the county where the greater part of the land lies, setting forth the names of the persons interested, if known to the petitioner, and also in detail the nature of the proposed improvement and the situation of the adjoining land. The petitioner shall give such county security satisfactory to the commissioners that he will indemnify such county from all damages and charges which it is obliged to pay by reason thereof.
Chapter 252: Section 17. Notice Section 17. The commissioners at their first meeting after the filing of the petition shall order notice of the time and place of meeting, to consider the petition, to be published once in each of three successive weeks in a newspaper, if any, published in the county; otherwise, in a newspaper published in an adjacent county. They shall also give notice thereof to the clerk of each town where the land lies.
Chapter 252: Section 18. Laying out; taking; damages Section 18. If, after examination, inspection and a hearing, they find that the improvements prayed for are required by the public convenience and necessity they shall so lay out and establish the same as to do as little injury as practicable, and if it is necessary to take private property for such improvements may take it on behalf of such county under chapter seventy-nine. Any person sustaining damage in his property by the laying out or establishment of such improvements shall be entitled to recover the same under said chapter.
Chapter 252: Section 19. Benefits; duty of commissioner to assess Section 19. The commissioners shall assess the amount awarded as damages upon the persons for whose use the improvements are to be made, in proportion to the benefit to be received by each; but no person shall be assessed an amount greater than the benefit to be received by him. The provisions of chapter eighty relative to the abatement and collection of betterments shall apply to assessments made under this section.
Chapter 252: Section 2. State reclamation and mosquito control board Section 2. One employee of the department of environmental protection designated by its commissioner, one employee of the department of food and agriculture designated by its commissioner, and one employee of the department of environmental management designated by its commissioner, shall constitute the state reclamation and mosquito control board, in this chapter called the board. The designation of any member of said board may be revoked at any time, and in such case or in case of the resignation or disability of any member his successor shall be designated in the same manner as in the original designation. The board shall serve in the department of food and agriculture, and the members thereof shall receive no additional compensation for service on said board, but shall be entitled to their reasonable traveling and other expenses incurred in the performance of their duties.
Chapter 252: Section 20. Repairs Section 20. If it is necessary to repair an improvement so made, a majority of the persons benefited by it may cause such repairs to be made, and may by bill in equity compel contribution on the basis of the award from the owner of each parcel of land for the use of which the improvement was made.
Chapter 252: Section 21. Petition to mayor and aldermen or selectmen Section 21. If the land mentioned in section fifteen lies entirely in one town, the petition may be made to the mayor and aldermen or selectmen thereof, who shall proceed thereon in all respects as above provided for county commissioners, except that they need not give notice to their town. Such petition shall be filed in the office of the town clerk before proceedings are had thereon; and the petition with the order thereon shall be recorded in said office within two months after the order has been made.
Chapter 252: Section 22. Fees Section 22. The mayor and aldermen or selectmen shall each receive two dollars for each day’s service upon such petition, and the city or town clerk shall receive for recording a petition or order thereon the fee provided by clause (68) of section thirty-four of chapter two hundred and sixty-two.
Chapter 252: Section 23. Appeal Section 23. A party aggrieved by the refusal of the mayor and aldermen or selectmen to make such order, may, within one year thereafter, petition the county commissioners, who shall thereupon proceed in all respects as though the petition had been originally filed with them.
Chapter 252: Section 24. Establishment; proceedings Section 24. With the approval of the state reclamation board, hereinafter called the board, any city or town along the seacoast of the commonwealth may, in a city by vote of the city council and in a town by vote of the selectmen, establish a greenhead fly control project within its area, and any two or more adjoining such cities or towns may, by like votes, form a district within their combined areas.
In those areas where district greenhead fly control projects have been formed, the board shall appoint three district commissioners, who shall be sworn to the faithful performance of their duties. The board shall fix the compensation of said commissioners at a sum not to exceed five dollars per day of actual service, and shall allow them actual traveling and other expenses incurred in the performance of their duties. Such compensation and expenses shall be charged to and paid by the district. Any commissioner may be removed by the board for cause and the board may fill vacancies. The certificate of appointment of said commissioners shall be revoked by the board when the objects for which they have been appointed have been accomplished. The duties of the commissioners shall be established by the board.
The votes of said cities and towns to form a district shall be binding for a period of not longer than five years, and any city or town having voted to form a district may withdraw from the district, on any anniversary date of its original vote in paragraph one, by like vote not more than sixty days nor less than ten days prior thereto and notification to the board.
Any city or town may, with the approval of the board, vote as in paragraph one to become a member of an existing district greenhead fly control project.
The city, town or district shall determine the maximum annual amount to be expended in carrying out its individual project, and shall forthwith notify the board of such determination.
In the case of a district greenhead fly control project the maximum annual cost shall be determined by the commissioners, and the board shall determine the proportionate share of such annual cost, which shall be borne by each of the constituent municipalities, apportioned as hereinafter set forth, and shall forthwith notify the treasurer of each member city or town of such determination.
One third of such cost shall be borne by the several municipalities within a district in proportion to the entire salt marsh area contained within their respective boundaries, a similar one third based on the foregoing provision shall be borne by the commonwealth, subject to appropriation, and further subject to the direction and control of the board, and the remaining one third of such cost shall be borne by the several municipalities within the district in proportion to their respective taxable valuations as last established by the general court as a basis of apportionment for state and county taxes. A city or town establishing such a project within its area shall bear the entire cost thereof.
Each of the municipalities comprising such a district shall pay its share of such cost, as so determined, and each city or town establishing such a project shall pay its entire cost, into the state treasury. Any city, town or district may in any year anticipate its liability for such cost, and may raise, appropriate and deposit the amount thereof with the state treasurer, and any sums so deposited shall be credited against its said liability.
Subject to appropriation, there shall annually be expended from the state treasury, under the direction and control of the board, and, where necessary or advisable, in advance of the payment by any city or town of the amount of its liability under the foregoing paragraph, sums not in the excess of the maxima respectively established for said projects, for the elimination or control of the greenhead fly nuisance within the area of each, in accordance with such plans and by means of such methods of control as may be prepared and devised by the board to effect the greatest measure of relief. There may also be disbursed for the furtherance of such a project any other sums voluntarily deposited with the state treasurer by any persons, groups or associations for said project purposes.
Chapter 252: Section 3. Board; investigations; reports Section 3. The board may investigate the question of utilizing wet lands, including meadows, swamps, marshes, beaches and other low lands, and may ascertain what lands, if any, may advantageously be drained for agricultural or industrial uses, the protection of the public health, the utilization of deposits therein, or for other purposes. It may publish and disseminate facts of general interest ascertained in the conduct of any such investigation, and may make and publish surveys of tracts of land in need of drainage, showing their situation, areas and outlets, the best methods and the cost of draining them, the uses to which they are best adapted, and such other details as it deems advisable. It shall make an annual report.
Chapter 252: Section 4. Board; power to employ engineers, etc.
; expenses Section 4. In carrying out the provisions of this chapter, the board may employ necessary engineers, assistants, or other agents, who may enter on land which the board desires to survey or examine. The board shall also be allowed other necessary expenses incurred in the performance of its duties.
Chapter 252: Section 4A. Proceedings under Secs. 1 to 14C; parties; petition; notice Section 4A. The commonwealth, acting through one or more state departments, and any city, town or district, or any combination thereof, to the extent of their ownership of any area described in section one, may be parties, in their proprietary capacity, to proceedings under sections one to fourteen C, inclusive, in respect to any purpose set forth in said section one, to the same extent as individual proprietors. Said bodies politic, or any combination thereof, may also institute proceedings under said sections in their governmental capacity, in any case where it appears that the public health, safety or convenience will be promoted by improvements to effect any of said purposes, but in such proceedings no district shall be organized, and the improvements shall be constructed and maintained as provided in section five A. The petition in such a proceeding need cover only matters pertinent to the project therein set forth, and the provisions of section five requiring that the petitioners constitute a majority ownership of the lands affected shall not apply to such petition. Individuals and corporations qualifying as proprietors may join in any petition authorized in this section. Action by any such body politic hereunder shall be taken by the administrative head of the state department or commission, or by the mayor, selectmen, or prudential committee or other governing body, as the case may be. Notice of the hearing before said board on such a petition shall be given as provided in the first paragraph of section five to all petitioners and to the administrative heads of such state departments and commissions, mayors of such cities, selectmen of such towns, and the prudential committees or other governing bodies of such districts, as the said board may determine, and to all other known proprietors of lands to be affected by such improvements. Cities, towns and districts are hereby authorized to raise and appropriate money for such purposes.
Chapter 252: Section 5. Petition to the board; investigation; appointment and compensation of district commissioners Section 5. The proprietors of any area described in section one or a majority in interest either in value or area may petition the board setting forth their desire to improve such area, the necessity or desirability of such improvements, the objects to be accomplished, a general description of the lands proposed to be affected and the names of known owners of said lands. Upon receipt of said petition and of a sum sufficient to meet its expenses therefor, the board shall proceed to make such investigations and such surveys of said lands as may be necessary to determine the approximate area and boundaries thereof, the need of the proposed improvements, the probable benefit, if any, to the public health, the agricultural or other uses to which the lands can be put and their probable value for such uses after the improvements are completed, and in general the practicability and advisability of undertaking the proposed improvements. Any unexpended balance of the amount so received shall be reimbursed to the contributors in proportion to their contributions. If such improvements appear to the board to be advisable and practicable, the board shall give notice of the petition therefor by publication in a newspaper published in the county where the greater part of the land lies and by registered mail to each known proprietor, stating the date of a hearing to be held by the board not less than seven days after the publication of said notice and the date of mailing notices to the proprietors. After the hearing, if the board approves the proposed improvements, it shall determine whether or not the organization of a reclamation district is necessary to construct and maintain said improvements.
If the board decides that a district should be organized, it shall issue a certificate appointing three, five or seven district commissioners, who shall be sworn to the faithful performance of their duties, and shall authorize said commissioners to form a reclamation district under the following section. The board shall fix the compensation of said commissioners, which shall not exceed ten dollars for each day of actual service, and shall allow them necessary traveling expenses incurred in the performance of their duties. Such compensation and expenses shall be paid by the district and the district shall reimburse the contributors to the expenses of the board the amounts of their several contributions less any unexpended balances returned to them as hereinbefore provided, and said expenditures shall be a part of the total expense of the improvements. Any commissioner may be removed by the board for cause and the board may fill vacancies. The certificate of appointment of said commissioners shall be revoked by the board when the objects for which they were appointed have been accomplished. For the purpose of this and the eleven following sections, a mortgagor or mortgagee in possession shall be deemed a proprietor.
Chapter 252: Section 5A. Improvements; undertaking without forming district; commissioners; powers; mosquito control Section 5A. If the board determines that the proposed improvements should be undertaken and that their construction and maintenance may be effected without the formation of a district, and in every such case where the board is petitioned by a body politic in its governmental capacity under section four A, it shall notify all persons and bodies politic to be benefited thereby of the estimated expense of constructing the proposed improvements, including land damages, if any, and of the maintenance thereof. Upon receipt of sums of money sufficient to cover such estimated construction expense, or of any money which can be used for such purposes to the advantage of the contributors, the board shall designate an identifying name under which said improvements shall be made and shall deposit the money so received with the state treasurer, who shall hold such money in a special fund or funds for such purpose, and shall disburse the same on warrants drawn by the board. Said fund shall be known as the Mosquito and Greenhead Fly Control Fund. Notwithstanding the provisions of section twenty A of chapter fifty-nine or any other general or special law to the contrary, the state treasurer shall assess the members of any mosquito control district up to one hundred percent of the amount determined by the board to be necessary during any fiscal year for the expenditures on behalf of said district and for the cost of the board. The board shall thereupon issue a certificate appointing one or more commissioners, who shall be sworn to the faithful performance of their duties, and shall authorize said commissioners to proceed to make the improvements, which may be made at such places, either within or without the commonwealth, as may be necessary or convenient to make the improvements effective; and said commissioners shall thereupon proceed so to do. The board shall fix the compensation of said commissioners and shall allow them their necessary travel and other expenses necessarily incurred in the performance of their duties. Such compensation and expenses shall constitute a part of the expense of making and maintaining such improvements. Any commissioner may be removed by the board for cause and the board may fill vacancies. The board may discharge the commissioners when the improvements are completed and may appoint others to care for maintenance. Any excess funds received under authority of this section shall be returned to the contributors thereof in proportion to the contributions. If the sums so estimated are not sufficient to complete such improvements, the board shall determine the amount of the estimated additional cost thereof and shall notify the original contributors of their shares of such additional cost. The board shall instruct the commissioners not to continue with such improvements until such additional funds are received by the board, and such commissioners, after receipt of such instructions, shall incur no further expense in connection with such improvements until authorized so to do by the board. If one or more, but less than all, of several petitioners provide their respective proportions of the fund estimated as necessary to make such improvements, the board may appoint commissioners to make such portion of such improvements as, in its opinion, will benefit the contributors. For the purpose of effecting such improvements and providing for their maintenance as provided in this section, the board shall have all the powers conferred by sections two, three, four, five, except the last paragraph thereof, and eight, and the commissioners by it appointed shall have all the powers conferred upon district commissioners under sections twelve and thirteen, including the power to purchase land for the construction of buildings thereon and the purchase of other property for the purpose of storage and maintenance of equipment and other related uses and all construction and erection of buildings on such lands shall be subject to the provisions of section forty of chapter one hundred and thirty-one, where applicable, when taking by eminent domain, land or other property or any interest therein, the commissioners so appointed shall take or acquire the same in the name and on behalf of the city or town wherein the land or other property or interests are situated, but not until such city or town has duly authorized such taking, has assumed all liability for damages therefor and has complied with all provisions of law applicable to land takings by cities or towns. All amounts for which a city or town may be liable hereunder, together with interest and costs, may be contributed by persons or bodies politic benefited by such improvements in proportion to their respective benefits or otherwise. Any city or town included in an area designated by an identifying name, under any general or special law, as a mosquito control project for the purposes of this section, which has withdrawn from membership in such project may, with the approval of the board and upon such conditions as the board may prescribe, vote to become a member of the existing mosquito control project within its area. Notwithstanding any general or special law to the contrary, all mosquito control projects constituted hereunder shall be assessed annually by the Mosquito and Greenhead Fly Control Fund relative to their proportional share of expenses for the administration of the state reclamation board.
Notwithstanding the provisions of any general or special law to the contrary, expenditures and other financial uses charged to said fund shall not be subject to appropriation, and shall include salaries and other costs of state employees, operational expenses, acquisition of capital equipment and property, and other expenses deemed necessary to the state reclamation board’s successful operation as determined by the director of said board. Revenue and other financial sources credited to said fund shall include funds made available pursuant to this chapter, and interest income from investments made by the treasurer on behalf of the fund. For the purpose of accommodating timing discrepancies between the receipt of revenues and related expenditures, notwithstanding the provisions of any general or special law to the contrary, the board may incur expenses and the comptroller may certify for payment amounts in anticipation of receipts. The board shall annually certify to the comptroller that expenditures for the fiscal year do not exceed related assessments.
Notwithstanding the provisions of subsection (f) of section 6B of chapter 29 of the General Laws, the Mosquito and Greenhead Fly Fund, and any expenditure accounts associated with the fund, shall not be subject to indirect cost assessments by the comptroller.
Chapter 252: Section 5B. Mosquito breeding areas; designation as public nuisance; control programs Section 5B. The board of health of a city or town not included in an area designated by an identifying name for the purpose of section five A, or the commissioners appointed to make improvements on behalf of a mosquito control district under such a name, as provided in said section, may determine any area infested by mosquitoes, or likely to produce mosquitoes within the limits of any such city or town or of such district, to be a public nuisance, and may serve upon the owner, occupant or person in charge of such area, written notice of the presence of such nuisance with a statement that such mosquitoes cause a public nuisance, together with directions to abate the same, giving the methods of treatment for the abatement thereof, and stating a time within which the nuisance shall be abated in accordance with the methods given therein. If the person so notified refuses or neglects to abate such nuisance the board of health or the commissioners, as the case may be, may abate such nuisance in such manner as may be approved by the board, and may maintain such works as may be necessary to prevent its recurrence, and said boards of health or commission may employ all necessary assistants for this purpose, who may enter upon public or private property, if such entry is necessary for this purpose.
The board of health may delegate its authority to another agency; provided, however, that said board shall notify the state reclamation board of such delegation; and, provided further, that said agency shall annually file a detailed report of its mosquito control program with said reclamation board.
Chapter 252: Section 6. Reclamation district; formation Section 6. The district commissioners, in this and the ten following sections called the commissioners, after being sworn, shall call a meeting of the proprietors of the lands to be improved, by giving in such manner as the board may order, a notice to each known proprietor, signed by the commissioners and setting forth the time and place of a meeting for the purpose of organizing a reclamation district to carry out the proposed improvements and maintain the same after they are completed. The notice shall be in the form of a warrant specifying the matters upon which action is to be taken at the meeting. The chairman of the commissioners or another commissioner designated by him shall call the meeting to order and shall determine whether or not proprietors constituting a majority in interest, in either value or area, are present or represented by proxies duly executed and placed in the hands of other proprietors prior to said meeting. Lacking such a majority, the meeting shall have no power to act, but the commissioners may, in the manner above provided, call additional meetings for the same purpose. The meeting shall elect a temporary clerk, who shall be sworn, and a moderator. The moderator shall submit to the proprietors present the question of accepting sections one to fourteen B, inclusive, and of organizing a reclamation district, and if a majority of those present in person or by proxy and voting on the question, vote to accept and to organize such district the provisions of said sections shall take full effect. The vote shall be recorded and a copy thereof shall be filed with the board. The meeting may then proceed to act upon the other articles, if any, contained in the warrant. Such district shall at the same meeting elect by ballot a district clerk and a district treasurer, who may be the same person, to hold office until one year from the next succeeding annual meeting and at each annual meeting after the first a clerk and treasurer shall be elected by ballot for one year. There shall also be elected by ballot a prudential committee of three members who shall hold office, one for three years, one for two years, and one for one year, from the next succeeding annual meeting. At each annual meeting after the first a member of said committee shall be elected by ballot for three years. The aforesaid officers of the district shall hold office until their successors are elected and qualified. The district may also, at the first or any subsequent meeting, borrow for preliminary or current expenses such sums as may be necessary and may issue therefor notes payable in not more than two years from their dates. Notes issued under this provision shall be subject to the provisions of chapter forty-four and to the other requirements for district notes imposed by section ten. The proceeds of such notes shall be held by the treasurer of the district, and payments therefrom shall be made only on vouchers duly approved by a majority of the prudential committee.
Subsequent meetings of the district shall be called by the clerk at the request of the commissioners or any two or more proprietors, or, in case the clerk neglects or refuses to call a meeting when so requested such meeting may upon application by said commissioners or two or more proprietors be called upon a warrant from a justice of the peace directed to one of the applicants and requiring him to give notice of said meeting as hereinafter provided. Notices of meetings shall be given by posting copies of the warrant in two or more public places within the district or by mailing copies of said warrant to each known proprietor at least seven days before the time set for the meeting. At each meeting a moderator shall be chosen who shall have the powers of the moderator of a town meeting so far as may be necessary. The clerk shall preside at each meeting after the first until a moderator is chosen.
The officers of the district shall be sworn to the faithful performance of their duties. Any vacancy occurring in the office of clerk, treasurer, or member of the prudential committee may be filled by the district for the remainder of the unexpired term at any legal meeting called for the purpose, or in case of a vacancy in the office of clerk or treasurer or disability affecting either of said officers the prudential committee may appoint a person to fill said vacancy until an election can be held or the disability is removed. Such temporary appointee shall be sworn and shall perform the duties of the office to which he is appointed during his tenure thereof.
The prudential committee shall have charge of expenditures on account of the district for maintenance of the improvements made under sections one to fourteen B, inclusive, and shall exercise the authority conferred upon the district by law except as otherwise expressly provided, and subject to the by-laws of the district and such instructions, rules and regulations as the district may impose by its vote.
The treasurer shall give bond for the faithful performance of his official duties in a sum and with sureties approved by the prudential committee. He shall receive all money belonging to the district except as otherwise specified in this and the ten following sections and shall make payments and account for the same in accordance with the requirements of sections one to fourteen B, inclusive, and of chapter forty-four so far as applicable, under direction of the district or of the prudential committee. A temporary treasurer appointed to fill a vacancy, as above provided, shall give bond in the same manner as the treasurer.
A district organized under the provisions of this section may adopt by-laws consistent with the laws applicable to such district and subject to the approval of the board. Such by-laws may provide for proxy voting by the members at any or all meetings of the district. The district shall have such rights and powers as may be necessary and proper for operating and maintaining the improvements made by the commissioners, and for making, operating and maintaining such further improvements as may be authorized under section fourteen A. The members of the district shall be the proprietors from time to time of lands lying within its limits. No such district shall dissolve without specific authorization by the general court, which shall not be given until provision has been made for payment of the obligations of said district.
Chapter 252: Section 6A. Reclamation district; liability insurance Section 6A. Any district established under this chapter may pay a proper charge for effecting insurance providing an indemnity or protection of such district or of any officer or employee of such district, whose services as such is approved by the commissioners thereof, against loss by reason of liability to pay damages to others for bodily injuries, including death at any time resulting therefrom, or for damage to property caused by any act which is within the scope of his official duties or employment including the operation of any motor or other vehicle equipment or vessel owned or leased by such district, and to pay the proper charge for effecting insurance to cover the district’s liability to pay workers’ compensation and to pay the proper charge to prevent loss by reason of destruction or damage to buildings or personal property by fire or other causes normally covered by fire insurance policies, and to pay the proper charge for effecting insurance to prevent loss by reason of damage to motor vehicles owned by such district.
Chapter 252: Section 7. Surveys and investigations; expense of improvements; hearings; recording of improvements Section 7. As soon as the district shall have been organized under the provisions of section six the commissioners shall, under the direction of the board, cause the necessary surveys and investigations to be made and shall prepare a plan showing in detail the boundaries of the district and the improvements to be effected. On the basis of such surveys and investigations the commissioners shall prepare an estimate of the total expense of the proposed improvements and shall determine the percentage of such expense to be paid by each proprietor, based on the estimated special benefit to his land in excess of the damage thereto by the use thereof for the proposed improvements. If such damage to the land of any proprietor exceeds the special benefit thereto they shall award him damages for such excess. They shall report their plan, estimate and determination to the board, which shall approve, disapprove or modify such plan and estimate. The commissioners shall also notify each proprietor of such determination by delivering a copy thereof at his residence or by sending the same by registered mail to his last known address and shall certify to the board the date on which such notice is given. If any proprietor is aggrieved by the determination of the commissioners he may, within fifteen days after notice thereof, file with the board his objections thereto and if no such objections are filed by any proprietor within the fifteen days above specified then the determination of the commissioners shall be final. The board shall, within thirty days after receiving notice of objections by any proprietor against the determination, notify all the proprietors that such objections have been received and shall hold a hearing thereon, but such hearing shall not be held within seven days after notice is given to all the proprietors that objections have been filed. If objections are made by more than one proprietor all such objections shall be considered in one hearing. After such hearing the board may confirm or modify the determination and shall notify the proprietors of its decision. If any proprietor is dissatisfied with the action of the board he may petition the superior court in the county in which the greater part of the land included within the district is situated, making all the proprietors who have not joined in his petition parties respondent and praying for a revision of such decision, provided that such petition shall be entered not later than thirty days after notice of the decision. The court sitting without jury shall hear the petition and shall confirm or alter the percentages previously determined to be payable by any or all said proprietors, as justice may require. Such petition shall not operate to suspend or delay other proceedings by the board or commissioners on the land to be improved. The expenses incurred under this section shall constitute a part of the total expense of the improvements and shall be paid by the district in the same manner as the remainder of such expense.
As soon as the percentages payable as aforesaid by said proprietors in the case of original and of further improvements have been finally determined in accordance with this section the board shall on behalf of the reclamation district cause to be recorded in the registry of deeds of every county or district in which the benefited area is situated a description sufficiently accurate for identification of such area, a copy of a plan to which reference shall be made and also an estimate of the total amount to be assessed on each parcel of land within such area, all as set forth in section two of chapter eighty. No original or further improvements shall be approved by the board until after such recording.
Chapter 252: Section 8. Expenses; contribution by state Section 8. Should the board be of the opinion that a part of the expense of the improvements made under sections one to fourteen B, inclusive, should be paid by the commonwealth for the benefit of the public health of said commonwealth as a whole it shall estimate the amount which in its opinion should be so paid and shall include the same in its estimates under section four of chapter twenty-nine.
Chapter 252: Section 9. Meeting; choosing method of financing; bonds Section 9. As soon as possible after the recording of the description, plan and estimate as provided in section seven, the commissioners shall request the clerk to call a meeting of the district for the purpose of deciding upon a method of financing such improvements in accordance with this or the following section; provided, that the commissioners may in their discretion insert an article covering this question in the warrant for the meeting called to organize the district and the district at said meeting or any adjournment thereof may decide upon a method of financing. Any action under this chapter which involves expenditure by the district shall require a vote of proprietors representing a majority in interest both in acreage and value of the area included in the district. The commissioners shall, if the district so votes, petition the county commissioners of the county where the greater part of the land lies, annexing a certified copy of the petition under section five and of the determination of the board thereon, and a statement of the estimated expense of the proposed improvements and shall request the county commissioners to vote to pay in the first instance the total expense involved in making the improvements approved by the board, and the said county commissioners may so vote. To defray any expense incurred by said county commissioners under such vote, the county treasurer, with the approval of the county commissioners, may issue bonds or notes of the county to an amount not exceeding such expense, payable in such period, not exceeding twenty-five years from their dates of issue, as the county commissioners may determine. Such bonds or notes shall be signed by the county treasurer and countersigned by a majority of the county commissioners. The county may sell the said securities at public or private sale upon such terms and conditions as the county commissioners may deem proper, but not for less than their par value. The first payment on account of the principal may, if the county commissioners so decide, be deferred for not more than five years after the date of issue of the bonds or notes, but such bonds or notes shall be subject to the provisions of chapter thirty-five except as otherwise provided herein. Payments on account of principal and interest shall be made by the county and repaid to the county by the district.
Chapter 253: Section 1. Erection Section 1. A person may, as hereinafter provided, erect and maintain a water mill and a dam to raise water for working it, upon and across any stream not navigable.
Chapter 253: Section 10. Annual and gross damages; assessment by jury Section 10. They shall also determine by their verdict what amount, if any, to be paid annually to the plaintiff, would be a just and reasonable compensation for the damages that may be thereafter caused by the dam, so long as it is used in conformity with the verdict; and also what amount in gross would be a just and reasonable compensation for all damages thereafter to be caused by such use of the dam and for the right to maintain and use it forever as aforesaid.
Chapter 253: Section 11. Plaintiff; right to elect gross amount Section 11. The plaintiff may, within three months after the verdict has been recorded elect, by a writing filed in the clerk’s office, to take the amount so awarded in gross, instead of such annual compensation.
Chapter 253: Section 12. Gross amount; time for payment Section 12. The owner or occupant of the mill or dam shall, within three months after such election, pay to the plaintiff or secure to his satisfaction said amount with interest from the date of the verdict. After the expiration of said three months, and until payment of said damages and interest, such owner or occupant shall lose all benefit of the provisions of this chapter.
Chapter 253: Section 13. Annual compensation Section 13. If the plaintiff does not file an election, as aforesaid, he and all persons claiming under him shall, so long as the dam is kept up and maintained, be entitled to receive from the owner or occupant of the mill the annual compensation so established by the jury, unless the amount is increased or diminished upon a new petition, as hereinafter provided.
Chapter 253: Section 14. Damages; lien on mill Section 14. The person who is entitled to receive said annual compensation or gross damages shall have a lien therefor, from the time of the commencement of the original action, on the mill and mill dam with their appurtenances and on the land under and adjoining the same and used therewith; but such lien shall not extend to any amount due more than three years before the commencement of an action therefor.
Chapter 253: Section 15. Recovery of damages; enforcement of lien Section 15. Such person may recover, in contract in the superior court from the person who owns or occupies the mill when the action is brought, the whole amount due and unpaid for the three years last preceding, and costs, although the amount recovered is less than one hundred dollars.
Chapter 253: Section 16. Sale on execution Section 16. The execution issued on such judgment, if not otherwise satisfied, may, within thirty days after judgment, be levied on the land so subject to the lien; and the officer may thereupon sell, in the manner provided for the sale of land on execution, such land or so much thereof as is necessary to satisfy the execution and the expenses of the levy. Such sale shall be valid against any claim which has accrued within the time covered by the lien.
Chapter 253: Section 17. Redemption Section 17. A person who is entitled to the land so sold may redeem the same within one year after the sale, upon paying to the purchaser or to the person holding under him the amount paid therefor, with interest at the rate of twelve per cent a year.
Chapter 253: Section 18. Costs Section 18. The party prevailing upon such action shall be entitled to costs, except as otherwise provided.
Chapter 253: Section 19. Remedies Section 19. No action shall be maintained at common law for the recovery of damages for the erection, maintenance or use of a mill or mill dam, if a remedy therefor is provided in this chapter.
Chapter 253: Section 2. Dams; injury to existing mill; prohibition Section 2. Such dam shall not be erected to the injury of a mill lawfully existing above or below it on the same stream, nor to the injury of a mill site on the same stream on which a mill or mill dam has been lawfully erected and used, unless the right to maintain a mill on such last mentioned site has been lost by abandonment or otherwise; nor shall a mill dam be erected or raised to the injury of any such mill site which has been occupied as such by the owner thereof, if, within a reasonable time after commencing such occupation, he completes and puts in operation a mill for the working of which the water of such stream is applied; nor shall a mill or dam be placed on the land of any person without such grant, conveyance or authority from the owner as would be necessary to convey land.
Chapter 253: Section 20. Existing mills and dams; effect of this chapter Section 20. This chapter shall not, except as herein expressly provided, affect the right to keep up, maintain and use any lawfully existing water mill and mill dam; but if the owner or occupant thereof makes any material change by raising the dam or by altering the machinery or the manner of using the water, so as to cause additional damage to the land of another, it shall be considered a new mill or dam, in respect to such additional damage, and the remedy for compensation therefor shall be substantially the same as in the case of a new dam.
Chapter 253: Section 21. Reassessment; new action Section 21. If either party is dissatisfied with the annual compensation established by proceedings upon a civil action under this chapter or corresponding provisions of earlier laws, a new action may be commenced for the increase or diminution of such compensation or for ascertaining the gross amount of the damages, and the action shall be conducted substantially in the manner provided for an original action; but if a plaintiff has declined to accept gross damages which have been awarded to him, they shall not be again assessed within ten years thereafter.
Chapter 253: Section 22. Reassessment; parties; time Section 22. Such new action may be maintained by and against either of the parties to the original action or by and against a person lawfully holding under either of them, but it shall not be brought until the expiration of one month after the payment of the year last preceding was due.
Chapter 253: Section 23. Costs; avoidance by offer to pay increased compensation Section 23. The owner of the mill or dam may, within said month, offer in writing to the owner of the land any increase of said annual compensation; and if the owner of the land does not agree to accept it, but brings an action to obtain an increase, he shall pay the costs, unless he recovers a greater annual compensation than was so offered.
Chapter 253: Section 24. Costs; avoidance by offer to accept smaller compensation Section 24. The owner of the land may, within said month, offer in writing to the owner of the mill or dam to accept a smaller amount than that established as said annual compensation; and if the owner of the mill or dam does not agree to pay such reduced compensation, but brings an action to obtain a diminution thereof, he shall pay the costs, unless the annual compensation is reduced by the verdict to an amount less than the offer.
Chapter 253: Section 25. Offer to tenants Section 25. Such offers may be made by or to the respective tenants or occupants of the land and of the mill or dam, in like manner and with like effect as if made by or to the respective owners, except that no agreement founded thereon shall bind said owners unless made with their consent.
Chapter 253: Section 26. Acceptance of offer; effect Section 26. If the offer so made by either party is accepted by the other, it shall establish the annual compensation to be thereafter paid, as if it had been established by a judgment in a civil action, if a memorandum of such offer and acceptance and of the agreement, signed by the respective parties or by persons authorized by them, is filed and recorded in the office of the clerk of the court in which the former judgment was rendered, with a note of reference on the record of the former judgment to the book in which the agreement is recorded.
Chapter 253: Section 27. Verdict; effect upon action for new damages Section 27. If, upon an action by the owner of the land, the jury return a verdict that he is not entitled to any annual compensation, the judgment thereon shall not bar a new action for damages alleged to have arisen after such verdict and for compensation for damages thereafter sustained.
Chapter 253: Section 28. Tender; effect on costs Section 28. In every civil action brought by the owner of land alleged to be injured by a mill dam, the defendant may bring into court and there tender any amount which he considers proper to be paid to the plaintiff for the damages incurred up to the time of such tender, and may also offer to pay any certain annual compensation for the damages which may be thereafter caused by the dam. If the plaintiff does not accept the amount so tendered with his costs to that time, he shall, unless he recovers greater damages or greater annual compensation than was so offered, be entitled to his costs to the time of the tender, and the defendant shall be entitled to his costs after said time.
Chapter 253: Section 29. Tender; judgment upon acceptance; costs Section 29. If the plaintiff accepts the amount so offered for the past damage and for future annual compensation, he shall have judgment therefor and for costs to that time; or the plaintiff may accept either the amount tendered for past damages or the offer for future annual compensation, and proceed to trial on the residue of the complaint under the same liability for costs.
Chapter 253: Section 3. Height of water Section 3. The height to which the water may be raised and the period of time for which it may be kept up in each year may be determined by jury.
Chapter 253: Section 30. Action; joinder of parties Section 30. Two or more persons who are jointly or separately interested in the land injured may join in a civil action, and the jury may assess joint or several damages as the interest and title of the plaintiffs may require; and judgment and execution shall conform thereto.
Chapter 253: Section 31. Repealed, 1973, 1114, Sec. 313 Chapter 253: Section 32. Reversal of judgment for plaintiff; new action; time limit Section 32. If a judgment for the plaintiff is reversed for error, the plaintiff, or any person claiming under him, may commence a new action for the same cause within one year after the reversal of the judgment, and recover all damages sustained during the three years last preceding or at any time after the commencement of the original action.
Chapter 253: Section 33. Overflowing public ways; petition Section 33. If a person who owns, erects or maintains a water mill or a dam to raise water for working such mill upon or across a stream not navigable desires to raise, erect or maintain a dam at such a height or in such a manner as to overflow or otherwise injure an existing public way, he may apply by petition to the commissioner of environmental protection, hereinafter called the commissioner, stating the height at which it is desired to maintain such dam and the ways which may be injured thereby, and asking for the alteration, change of grade or specific repairs of such ways.
Chapter 253: Section 34. Notice Section 34. Notice of the hearing upon such petition shall be given to the towns where the ways are situated, and to the owners or occupants of the land affected thereby, in like manner as notice of the laying out of highways is given.
Chapter 253: Section 35. Change of grade of ways; power of commissioner to order Section 35. The commissioner may, after a hearing, order such alteration, repairs or change of grade of such ways as will in his judgment enable the petitioner to raise, erect and maintain such dam without overflowing or otherwise injuring such ways, and they may give written direction and authority to the petitioner to make at his own expense such alterations, changes of grade and repairs within a reasonable time. He shall record all such orders and shall cause certified copies thereof to be filed and recorded in the office of the clerk of each town in which such alterations, changes of grade or repairs are ordered.
Chapter 253: Section 36. Damages; duty of commissioner to assess Section 36. The commissioner shall assess and order the petitioner to pay all damages sustained by any person or town by reason of the alterations, changes of grade or repairs ordered by him, and any person or town aggrieved by such assessment may, on application within one year from the entry of such order, have the damages assessed by a jury in the manner provided in chapter seventy-nine.
Chapter 253: Section 37. Costs Section 37. The costs of proceedings under the preceding four sections shall be paid by the petitioners, who may be required by the commissioner to give bond with sufficient sureties for the payment thereof.
Chapter 253: Section 38. Order of commissioner; compliance; exoneration from criminal liability Section 38. The order of the commissioner, duly issued under section thirty-five, shall authorize the petitioner to do all acts necessary to be done in compliance therewith; and if it is shown that the petitioner has substantially complied with such order, no indictment shall be maintained for the flowage of, or injury to, the ways mentioned in such order, which may be caused by the dam.
Chapter 253: Section 39. Dam to flow cranberry land; erection; license Section 39. An owner or lessee of land appropriated or which he desires to appropriate to the cultivation and growth of cranberries may erect and maintain a dam upon and across a stream to flow and irrigate said land, subject to this chapter so far as applicable; but he shall not erect and maintain a dam across a navigable stream or across the outlet of a great pond, without a license therefor from the department of environmental management.
Chapter 253: Section 4. Overflow or injury to land; action for compensation; limitation; venue Section 4. The owner or occupant of land which has been overflowed or otherwise injured by such dam may bring a civil action to obtain compensation therefor. Such action shall be commenced within three years next after the event complained of in the superior court for the county where the land or any part thereof lies; but if the land overflowed or injured is outside the commonwealth such action shall be brought in the superior court for the county where the dam or any part thereof is maintained.
Chapter 253: Section 40. Expense; apportionment; appeal Section 40. If a dam has been so erected or maintained or if a person has at his own expense made, kept open or repaired any ditches or drains for the improvement or cultivation of such tract of land, any owner or lessee of a like tract, who uses such dam, ditches or drains or who by more remote means receives benefit thereby for the flowing, irrigating or draining of such last mentioned tract, shall pay to the person who has erected or maintained such dam or incurred such expense his proportionate part thereof, which shall be determined by the aldermen of the city or the selectmen of the town and certified to such owner or lessee. Any person aggrieved by such determination may within three months after notice thereof appeal therefrom to the superior court for the county where the dam, ditches or drains are situated, and shall be entitled to a jury trial; but before taking his appeal he shall give one month’s notice, in writing, to the aldermen or selectmen of his intention so to appeal, and shall therein specify particularly his objections to the determination, to which specification he shall be confined upon the hearing by jury. If such owner or lessee fails to pay to the person entitled such proportionate part as finally determined, within said three months if there is no appeal, otherwise within seven days after final determination, he shall pay double the amount so determined with all expenses arising from such failure; and such person may recover the same in contract in his own name. But no covenants or agreements by or between the owners or lessees of such land shall be affected by this section.
Chapter 253: Section 41. Ice ponds; erection of dams; consent of owners; damages Section 41. An owner or lessee of land used for an ice pond may erect and, between November first and March first, maintain a dam across a stream not navigable, for the purpose of making an ice pond by flowing adjoining land, subject to this chapter so far as applicable, if he annually pays to the owner of land which may be overflowed or injured thereby the amount of the tax which may from time to time be assessed on such land; but such dam shall not be erected without the consent of all of the owners of the land which would be flowed by it, unless the person proposing to erect it shall furnish to such owners as do not consent to the erection security, satisfactory to them or approved by a justice of a court of record or by a master in chancery, for the payment of any damages which may be caused by flowing the land of such owners.
Chapter 253: Section 42. Land flowed; compensation Section 42. A domestic reservoir corporation may flow the land of other persons by its reservoir dam, and a person whose land or property has been flowed or injured by such dam, unless compensation has been otherwise made, may obtain compensation therefor as provided in this chapter.
Chapter 253: Section 43. Security Section 43. The court in which an action for such compensation is pending shall, if requested by the plaintiff, require such corporation to give satisfactory security for the payment of all damages and costs which may be awarded thereon, and if the court finds that the security has become insufficient, it shall require the corporation to give further security. If the corporation neglects for one month or for such further time as the court allows to comply with any such order, it shall lose all rights under this chapter, and the court may restrain it from flowing or injuring such land or property until such security has been given.
Chapter 253: Section 44. Definitions applicable to Secs. 44 to 48B Section 44. For the purposes of sections 44 to 48B, inclusive, the following words shall have the following meanings:—“Appurtenant works”, structures, either in dams or separate therefrom, including, but not limited to, spillways; reservoirs and their rims; low level outlet works; and water conduits, including tunnels, pipelines or penstocks, either through the dams or their abutments.
“Commissioner”, the commissioner of the department of environmental management or his authorized designee.
“Dam”, any artificial barrier, including appurtenant works, which impounds or diverts water, and which (1) is 25 feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or watercourse, to the maximum water storage elevation or (2) has an impounding capacity at maximum water storage elevation of 50 acre feet or more. Any other artificial barrier, including appurtenant works, the breaching of which could endanger property or safety, may be designated by the commissioner as a dam, and shall be subject to sections 44 to 50, inclusive. The word “dam” shall not mean any of the following: (1) any appurtenant works which temporarily impounds or diverts water used on land in agricultural use as defined pursuant to section 131 of chapter 40, (2) any barrier or appurtenant works which has a size classification of small or low hazard potential classification that is used on land in agricultural use as defined in said section 131 of said chapter 40, and (3) any barrier which is not in excess of 6 feet in height, regardless of storage capacity, or which has a storage capacity at maximum water storage elevation not in excess of 15 acre feet, regardless of height. The commissioner shall make such determination by taking into consideration factors such as height, type of structure, condition of structure, volume of the impoundment, extent of development downstream, and other factors deemed appropriate by the commissioner.
“Department”, the department of environmental management, as established in section 1 of chapter 21.
“Owner”, the person or persons, including any individual, firm, partnership, association, syndicate, company, trust corporation, municipality, agency, political or administrative subdivision of the commonwealth or any other legal entity of any kind holding legal title to a dam, but excluding the United States, its agencies or any person who operates a dam owned by the United States.
“Unsafe dam”, a dam whose condition, as determined by the commissioner, is such that a high risk of failure exists.
“Water storage elevation”, the maximum elevation without encroaching on the approved freeboard at maximum design flood.
Chapter 253: Section 45. Dam registration form; failure to file; penalties; notice on transfer of legal title or change Section 45. The owner of any dam shall file with the commissioner on or before July 1, 2003, and before operating any dam constructed thereafter, on such form or forms prescribed by the commissioner, a dam registration form containing the name of the owner, the location and the dimensions of the dam and such other information as the commissioner may require by regulation. A registration form shall not be deemed received by the commissioner until all information specifically required by statute or regulation is submitted. Failure to file a dam registration form by the time prescribed shall subject the owner to fines prescribed by regulation, and an inspection by the commissioner who may enter the property of the owner to obtain the requisite information. The registered owner of any dam shall notify the commissioner, by registered or certified mail, return receipt requested, of the transfer of legal title of the dam and any of changes for which the department may require notice by regulation, not later than 10 days after the date of such transfer or change. Upon receipt and approval of the dam registration form, the department shall issue a certificate of registration to each dam owner.
Chapter 253: Section 45A. Construction or alteration of dams; permit approval Section 45A. No person shall construct or materially alter a dam without applying for and receiving permit approval from the department. The approved permit shall be recorded at the registry of deeds in the county where the dam lies prior to commencement of construction. The application for a permit shall be made on such form or forms as prescribed by the commissioner. The application shall be accompanied by plans, specifications and related documents certified by a registered professional civil engineer. The commissioner shall approve or deny an application within 60 days after receipt. Construction of the dam shall be performed under the supervision of a registered professional civil engineer retained by the applicant and shall conform with the permit and its accompanying plans, specifications and related documents. The commissioner may require the engineer to submit periodic construction reports and drawings upon completion. If, after investigation of such periodic construction reports, the commissioner determines that construction does not conform to such plans and specifications, the commissioner may order the discontinuance of the project until such time as he is satisfied that the work shall be performed in accordance with such plans. The engineer shall certify, upon completion of the work, that the dam has been constructed in accordance with the permit.
Chapter 253: Section 46. Dam inspection form; evaluation, examination and tests; costs and penalties Section 46. The owner of any dam shall cause to be filed with the commissioner, on or before January 1, 2004, and periodically thereafter, as required by regulation, in accordance with the hazard potential classification of the dam, as noted in the certificate of the registration, on a form or forms prescribed by the commissioner, a dam inspection form, containing information relative to the present condition, safety and adequacy of the dam and such other information as the commissioner may require by regulation, signed by a registered professional civil engineer. Failure to file a dam inspection form by the time prescribed, according to the classification of the dam, shall subject the owner to fines prescribed by regulation, and an inspection by the commissioner who may enter the property of the owner to perform his own inspection. The cost of the inspection plus interest shall be assessed against the owner. If the commissioner determines the dam to be unsafe after receiving the dam inspection form, after the commissioner’s inspection, or at any other time, the commissioner may within a period of time fixed by regulation order the owner of the dam to: (1) take immediate corrective action, including the alteration, repair or removal of the dam or drawing down of the impounded water to abate a threat to safety and property; or (2) cause a thorough evaluation of the dam by a registered professional civil engineer, who shall recommend the course of action necessary to bring the dam into a safe condition and establish a time schedule by which the work shall be accomplished. The evaluation shall include such tests as the commissioner may require. The commissioner shall record notice of such order in the registry of deeds in the county where the dam lies. The cost of such recording, plus interest from the date of recording, may be assessed against the owner. If the commissioner orders an evaluation, the owner shall meet with the representatives of the commissioner to establish the course of action and schedule for completion. Notice of such work and schedule for completion shall be provided to the owner and recorded by the commissioner in the registry of deeds in the county where the dam lies. The commissioner may inspect the work to the extent necessary to establish compliance with the order. When the work has been completed, the owner shall file plans and descriptions of the work with the commissioner as actually constructed, together with any other pertinent and required data. The commissioner may make examinations and tests as he deems necessary. The costs of the examinations and tests may be assessed against the owner plus interest from the date of the assessment. Proof of prior satisfactory inspection of a dam within the appropriate time period for that dam, as defined by the inspection schedule established under regulations promulgated by the commissioner, may be deemed sufficient for the purpose of filing the dam inspection form required by this section. In no case shall this provision allow a dam to exceed the maximum time period between inspections as established by regulation.
Chapter 253: Section 46A. Dam approval; certificate of compliance Section 46A. When a dam has been deemed safe, removed, or constructed pursuant to an order of the commissioner; or a dam has been evaluated, constructed, repaired or altered to the satisfaction of the commissioner under a properly issued permit, the commissioner shall issue a certificate of compliance to the owner approving the dam but subject to such terms and conditions, if any, as the commissioner deems necessary for the protection of life and property. Such certificate shall be recorded by the owner in the registry of deeds in the county where the dam lies.
Chapter 253: Section 47. Unsafe or inadequate dams; action by commissioner; enforcement; regulations Section 47. (a) If the owner fails to take corrective action or fails to file an evaluation report, within the time specified in the order, as required in section 46, or if the owner of the dam cannot be determined, the commissioner may take such action as he deems necessary to repair or mitigate the unsafe condition and put the dam in an acceptable structural and operational condition in accordance with the existing rules and regulations of the department. Any emergency action taken by the owner of a dam pursuant to the commissioner’s order or any emergency action taken by the commissioner may be taken without any prior filing with the conservation commission under section 40 of chapter 131. If water has been drawn off or the structure has been altered pursuant to an order by the commissioner, the impoundment shall not be refilled without approval of the commissioner. The commissioner may enter private property to take action to enforce sections 44 to 47, inclusive. The commissioner may enter into contracts to take actions, draw off water or make temporary repairs without complying with the competitive bidding requirements in chapter 149, if such action is necessary to abate a threat to safety or property.
(b) Any person performing substantial repairs without complying with sections 44 to 48A, inclusive, or who fails to comply with the provisions of this chapter or of any order, regulation or requirement of the department relative to dam safety, shall be fined an amount not to exceed $500 for each offense, to be fixed by the court. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense.
(c) The attorney general, upon notice by the commissioner, shall institute an action to recover such fine and to enjoin the alteration, construction and use of such structure.
Chapter 253: Section 48. Costs; lien; enforcement Section 48. The commissioner shall make such orders as he may deem just as to the payment by the owner to the commonwealth or other party of the costs and expenses incurred by them under the preceding 4 sections, with interest, from the time they were paid by the commonwealth. Notice shall be given to the state treasurer and the owner or other party for the amount due to the commonwealth. Any action taken by the commissioner pursuant to section 47 shall create a lien upon the lot of land on which the dam is situated and upon the buildings and structures on said lot to secure payment for all costs incurred by the commissioner in correcting the unsafe condition, plus interest. The attorney general, upon notice by the commissioner, shall institute an action to enforce such lien.
Chapter 253: Section 48A. Dam inspection and regulation program; effectiveness report Section 48A. During each fiscal year, the department of environmental management shall prepare a report on the overall effectiveness of the dam inspection and regulation program under sections 44 to 48, inclusive, including, but not limited to, the number of inspections conducted per year, a listing of identified deficient dams in the commonwealth and steps taken to remedy deficiencies. The department shall submit the report to the joint committee on natural resources and agriculture and to the senate and house committees on ways and means, and shall make it available to all interested parties.
Chapter 253: Section 48B. Liability of owner Section 48B. The owner of a dam shall be responsible for liability for damage to property of others or injury to persons, including but not limited to loss of life, resulting from the operation, failure of or misoperation of a dam. The provisions of sections 44 to 48, inclusive, shall not relieve from or lessen the responsibility of any person owning, or operating a dam from any damages to persons or property caused by dam defects, nor shall the commissioner be held liable by reason of the inspections required or permits issued.
Chapter 253: Section 49. Acts of commissioner; effect on liability of owners Section 49. No order, approval, request or advice of the commissioner shall impair the legal duties and obligations of the owners of reservoirs, reservoir dams or mill dams or their liability for the consequences of their illegal acts or of the neglect or mismanagement of their servants or agents.
Chapter 253: Section 5, 6. Repealed, 1973, 1114, Sec. 299 Chapter 253: Section 50. Jurisdiction Section 50. The supreme judicial and the superior courts shall have jurisdiction to enforce the six preceding sections.
Chapter 253: Section 50A. Roll dams; warning signs; failure to comply Section 50A. The department of environmental management shall, subject to the appropriation of funds for such purpose, erect signs in the vicinity of all roll dams owned or under the control of the commonwealth or any of its political subdivisions to warn boaters of the location of said dams. For the purposes of this section a roll dam shall mean any broad crested weir, sharp crested weir or design head weir, the purpose of which is to change the flow of rivers from a critical to a noncritical flow.
Failure to comply with the provisions of this section shall not be used as evidence in any action commenced under the provisions of chapter two hundred and fifty-eight.
Chapter 253: Section 51. Power of majority Section 51. If a mill which is owned by joint tenants or tenants in common, or the dam or appurtenances of such mill, require repairs or rebuilding in whole or in part, and all the proprietors do not agree to join therein, a majority in interest of the proprietors may cause the work to be done at the expense of the whole in proportion to their respective interests.
Chapter 253: Section 52. Meeting of proprietors Section 52. One or more of the proprietors may call a meeting by a notice signed by the person or persons who call it, addressed to each of the other proprietors, stating that the mill, dam or appurtenances require repairs or rebuilding and that their attendance is requested at a meeting of the proprietors thereof at the mill at a time named to consult and agree upon the measures to be taken for such purpose.
Chapter 253: Section 53. Notice Section 53. The notice shall be served by an officer qualified to serve civil process by delivering an attested copy thereof to each proprietor, or by leaving such copy at his last and usual place of abode, not less than seven nor more than thirty days before the day appointed for the meeting, and such officer’s return, specifying the persons on whom he has served the notice and the time and manner of the service on each, shall be sufficient evidence thereof.
Chapter 253: Section 54. Repairs and rebuilding; mills and dams Section 54. At such meeting, or at any adjournment thereof, the majority in interest of the proprietors of the mill may take measures to cause the mill or the dam or appurtenances thereof to be repaired or rebuilt, as they shall consider most for the interest of all concerned therein.
Chapter 253: Section 55. Expense of work; apportionment Section 55. Each proprietor shall, upon demand, after the work is completed, pay to the proprietors by whom it has been advanced his just and equal part of the expense of such repair or rebuilding, in proportion to his share or interest in the mill, with interest from the time of the advance.
Chapter 253: Section 56. Lien for advancements Section 56. The proprietors who advance the money so expended shall have a lien therefor on the rents and profits of the mill and may retain so much thereof as belongs to any proprietor indebted to them for such advance, to be applied to the payment of his debt; or they may maintain an action for the debt or for as much thereof as has not been received from the rents and profits.
Chapter 253: Section 57. Guardian; powers Section 57. The guardian of a proprietor may act for him in calling or attending a meeting of the proprietors, and may there vote and do all such other acts as the ward could do if competent to act.
Chapter 253: Section 58. Tenants and remainderman; apportionment of expenses Section 58. If part of the mill is held by a tenant for life or years, the amount due for the repairs and other expenses on that part of the mill shall be apportioned on the tenant for life or years and on the remainderman or reversioner in proportion to the value of their respective interest; and the person to whom the money is due from such remainderman or reversioner shall have a lien on the rents and profits belonging to him after his estate comes into possession, if not sooner paid, notwithstanding any limitation by lapse of time.
Chapter 253: Section 59. Mortgagor and mortgagee; apportionment of expenses Section 59. A mortgagee in possession shall be considered a proprietor for the purposes of this chapter; but if the action is brought against the mortgagor before his right of redemption has been foreclosed, he shall also be liable for all amounts so due on account of his share of the mill, so far as the same have not been recovered from the mortgagee. All amounts paid on this account by the mortgagee shall be allowed, between him and the mortgagor, as so much paid for repairs or improvements.
Chapter 253: Section 60. Tenant in tail Section 60. A tenant in tail of a part of a mill shall, for the purposes of this chapter, be considered the proprietor thereof in fee simple.
Chapter 253: Section 61. Advancement for repairs; recovery Section 61. All amounts due from one or more proprietors to another for money advanced under this chapter may be recovered in a civil action. The amount so recovered shall be apportioned by the court among the plaintiffs, if more than one, according to their respective rights.
Chapter 253: Section 62. Contracts; effect of this chapter Section 62. This chapter shall not affect any contract or agreement by or between the proprietors of a mill as to the repair or rebuilding thereof.
Chapter 253: Section 63, 64. Repealed, 1931, 426, Sec. 39 Chapter 253: Section 7. Jury Section 7. Such action shall be tried by a jury and, if either party requires it, the jury shall, under the direction of the court, view the land alleged to be injured.
Chapter 253: Section 8. Assessment of damages Section 8. If the jury finds that the plaintiff has suffered the injury complained of it shall assess the amount of damages sustained within three years last preceding the commencement of the action and to the date of their verdict, taking into consideration any damage caused by the dam to other land of the plaintiff as well as the damage caused thereby to the land overflowed reduced by any benefit caused thereby to the plaintiff’s land.
Chapter 253: Section 9. Height of dam; determination by jury Section 9. If it is alleged in the plaintiff’s complaint that the dam has been raised to an unreasonable height, or that it ought not to be kept up and closed during the whole year, the jury shall determine by their verdict how much, if at all, the dam shall be lowered and whether it shall be left open, and, if so, during what part of the year.
Section 1. A person to whom a debt is due for personal labor performed in the erection, alteration, repair or removal of a building or structure upon land or improvement or alteration to real property, by virtue of an agreement with, or by consent of, the owner of such building or structure, or of a person having authority from or rightfully acting for such owner in procuring or furnishing such labor, shall, under the provisions of this chapter, other than section four, have a lien upon such building or structure and upon such interest in such real property, land, building, structure, or improvement owned by the party authorizing or consenting to said work, for not more than thirty days’ work actually performed for the ninety days next prior to his filing a statement as provided in section eight.
A person or his assignee, agent, authorized representative or third party beneficiary, to whom amounts are due or for whose benefit amounts are computed and due for, or on the basis of, the personal labor of such person, may file a lien to secure the payment of such unpaid amounts including interest and agreed penalties for failure to pay the same.
Section 10. The lien of any person may, so far as his interest is concerned, be dissolved by a notice signed by him, stating that his lien is dissolved, filed in the registry of deeds where the notice of the contract is filed under which contract the lien is claimed.
validity of lien Section 11. The lien shall be dissolved unless a civil action to enforce it is commenced within ninety days after the filing of the statement required by section eight. The validity of the lien shall not be affected by an inaccuracy in the description of the property to which it attaches, if the description is sufficient to identify the property, or by an inaccuracy in stating the amount due for labor or material unless it is shown that the person filing the statement has wilfully and knowingly claimed more than is due him.
enforcement Section 12. Any person, including the owner, in interest in connection with a written contract covered by section two or section four may cause to be recorded in the registry of deeds in the county or district where the land lies a bond of a surety company authorized to do a surety business in Massachusetts and in a penal sum equal to the contract sum or, if the contract does not contain a contract sum, in a penal sum equal to that person’s fair estimate of the contract sum, all as set forth in the certificate on the bond. The bond shall describe the land in such detail as is required in a common conveyance of land, and shall be in the following form:—Know All Men By These Presents:That we ____________ of ____________ in the County of ________ and Commonwealth of Massachusetts, as principal, and ________ a surety company organized under the laws of ________ and authorized to do business in the Commonwealth as a surety company, are holden and stand firmly bound and obliged unto ________ Register of Deeds for the ________ District, County of ____________, in the principal sum of __________ Dollars ($ ) to be paid unto said Register and his successors in said office, to which payment, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
Whereas, said principal is interested in the erection, alteration, repair or removal of a building or structure on a certain lot of land situated within the ___ Registry District in the Commonwealth, bounded and described as follows:(Insert description)and desires to free said land from liens for all labor and all labor and materials entitled to lien protection under chapter 254 and amendments thereto;NOW, THEREFORE, the condition of this obligation is such that if the Principal shall pay for all labor and for all labor and materials entitled to lien protection under chapter 254 and amendments thereto under the contract referred to in the Certificate in this bond, irrespective of any agreement made between him and the owner or any other persons now interested or who may hereinafter be interested therein, then the above written obligation shall be null and void, otherwise to remain in full force and effect.
This bond is made for the use and benefit of all persons entitled to file the documents for lien protection as provided in Massachusetts General Laws, chapter 254 and they and each of them are hereby made Obligees hereunder, and in case of the failure of the principal to carry out the provisions of this bond made for their use and benefit they and each of them may sue hereon in their own name.
Signed, sealed and delivered this ____ day of ____, (insert year). Principal By Surety ByCertificate____, principal on the above bond, hereby certify that the (estimated) contract price for the proposed work to be performed on the land described in the above bond under a written contract between ____ and ____ dated ____, ____, (insert year), is ____ Dollars ($ ).
(Signed) After the recording of any such bond no lien under this chapter shall thereafter attach in favor of any person entitled to the benefit of such bond and not named as a principal thereon for labor or for labor and materials performed under the contract in respect to which such bond is given.
The register of deeds shall refuse to record the said bond if it be defective in form or substance, but no party to any such bond shall be discharged by any defect therein as against any party who has in good faith allowed his lien to be dissolved by lapse of time in reliance on the bond. The bond may be enforced by a civil action in the superior court or district court brought by any party in interest. An attested copy of the complaint shall be filed and recorded in the registry of deeds. No suit or action on the bond shall be commenced after the expiration of ninety days after the claimant filed the statement required by section 8. Such bond shall not create any rights which the claimant would not have had, or impair any defense which the obligors would have had, in an action to enforce a lien.
Section 13. The rights of an attaching creditor shall not prevail as against a lien under section one, nor against the claim of a lienor where notice or notices of contract have been filed or recorded in the registry of deeds under sections two and four prior to the recording of the attachment. An attachment recorded prior to the filing or recording of the notice of contract shall prevail against a lien, other than for personal labor, to the extent of the value of the buildings and land as they were at the time when the labor was commenced or the material furnished for which the lien is claimed, and in case of a sale under section eighteen the court shall determine what proportion of the proceeds of the sale, as derived from the value of the property at such time, shall be held subject to the attachment. If the attaching creditor recovers judgment, the proceeds so held subject to his attachment, or as much thereof as may be necessary, shall be applied upon his execution, and the residue, if any, shall be disposed of in the same manner as if there had been no such attachment. If the interest of the owner of the property is attached after the filing of the notice, the proceeds of any sale of the property under said section eighteen, after discharging all prior liens and claims, shall be applied to satisfy the execution of the attaching creditor, provided the lienor or the officer making the sale has actual notice of the attachment. Several attaching creditors as between themselves shall be paid according to the order of their attachments. Liens of a trustee or trustees of a fund or funds, described in section one, providing coverage or benefits for persons shall be considered as liens for personal labor.
materials; form of bond Section 14. Any person in interest may dissolve a lien under this chapter by recording or causing to be recorded in the registry of deeds in the county or district where the land lies, a bond of a surety company authorized to do business in Massachusetts and in a penal sum equal to the amount of the lien sought to be dissolved conditioned for the payment of any sum which the claimant may recover on his claim for labor or labor and materials. Upon the recording of the bond, the lien shall be dissolved. Notice of the recording shall be given to the claimant by serving on the claimant a copy of the notice of recording together with a copy of the bond by an officer qualified to serve civil process or by delivering same to the claimant. The claimant may enforce the bond by a civil action commenced within ninety days after the later of the filing of the statement required by section 8 or receipt of notice of recording of the bond, but such bond shall not create any rights which the claimant would not have had, or impair any defense which the obligors would have had, in an action to enforce a lien.
The bond shall be in the following form:Know All Men By These Presents:That we, ___ as principal and ___ duly organized to transact business as a surety within the Commonwealth of Massachusetts, as surety, are holden and stand firmly bound and obliged unto ___ in the penal sum of ___ Dollars ($___), to the payment of which we bind ourselves, our heirs, successors and assigns, jointly and severally by these presents.
Whereas, under date of ___, the said obligee recorded a notice of contract in the registry of deeds, as Instrument #___, in Book ___ at Page ___ upon premises more fully described in said notice, andWhereas, the principal desires to dissolve said lien in accordance with the provisions of section fourteen of chapter two hundred and fifty-four of the General Laws.
Now, therefore, the condition of this obligation is such that if the said principal shall pay to the said obligee all sums which shall be adjudged in favor of the said obligee in an action brought under the provisions of said section fourteen, this obligation shall be void, otherwise to remain in full force and effect.
In witness whereof, the aforesaid principal and surety have executed this instrument under seal this ___ day of ___ (insert year).
Principalby___________________________________________________________________ Suretyby ___________________________________________________________________ ___.
Section 15. If it appears to the court that no person is entitled to a lien, or that every lien has been discharged by payment thereof, judgment shall be entered to the effect that the lien is dissolved, and a certificate to that effect shall be sent forthwith by the clerk to the register of deeds. Such certificate shall be filed and recorded in the manner provided in sections eight and nine.
discharging lien Section 15A. If any person in interest, including but not limited to an owner, contractor, or mortgage holder, claims (a) that any person who has provided labor or materials or has agreed to provide funding, financing or payment for labor or materials, refuses to continue to provide such funding, financing or payments of labor or materials solely because of the filing or recording of a notice of contract pursuant to section two or a statement of claim referencing a lien under section one, or (b) it appears from the notice of contract or a statement of account that the claimant has no valid lien by reason of the character of, or the contract for, the labor or materials or rental equipment, appliances or tools furnished and for which a lien is claimed, or (c) that a notice or other instrument has not been filed or recorded in accordance with the applicable provisions of this chapter, or (d) that for any other reason a claimed lien is invalid by reason of failure to comply with any provision of this chapter, or (e) that any party’s rights are foreclosed by a judgment or release, or (f) that any party wrongfully refuses to execute a notice of completion as required by section two A or improperly files or records a notice of termination under section two B, such person may apply to the superior court for the county where such land lies or in the district court in the judicial district where such land lies, for an order (i) ruling on the matter involved or (ii) summarily discharging of record the alleged lien or notice as the case may be. The holder of any recorded mortgage upon the affected property shall receive notice of and be entitled to appear and be heard in any proceeding brought under this section. An order of notice to appear and show cause why the relief demanded in the complaint should not be granted shall be served upon the necessary parties no later than seven days prior to the date of the scheduled hearing. If the necessary parties cannot be found, such service may be made as the court shall direct. The application shall be made upon a verified complaint accompanied by other written proof of the facts upon which the application is made. Upon granting or denying the application, the court shall enter a final judgment on the matter involved or expeditiously order such further proceedings as are just.
Section 17. A claim due absolutely and without condition, although not payable at the time of determination, shall be allowed with a rebate of interest to the time when it would become payable. If the owner has failed to perform his part of the contract and by reason of such failure the other party is, without his own default, prevented from completely performing his part thereof, he shall be entitled to a reasonable compensation for as much as he has performed, in proportion to the price stipulated for the whole.
Section 18. If a lien is established the court shall order a sale of the property to be made by an officer qualified to serve civil process. The court may order a sale of a part of the property sufficient to satisfy the claims allowed, if such part can be set off from the residue and sold without damage to the whole.
Section 19. The officer shall give notice of the time and place of sale as provided for sales of land on execution or as ordered by the court.
Section 2. A person entering into a written contract with the owner of any interest in real property, or with any person acting for, on behalf of, or with the consent of such owner for the whole or part of the erection, alteration, repair or removal of a building, structure, or other improvement to real property, or for furnishing material or rental equipment, appliances, or tools therefor, shall have a lien upon such real property, land, building, structure or improvement owned by the party with whom or on behalf of whom the contract was entered into, as appears of record on the date when notice of said contract is filed or recorded in the registry of deeds for the county or district where such land lies, to secure the payment of all labor, including construction management and general contractor services, and material or rental equipment, appliances, or tools which shall be furnished by virtue of said contract. Said notice may be filed or recorded in the registry of deeds in the county or registry district where the land lies by any person entitled under this section to enforce a lien, and shall be in substantially the following form:Notice is hereby given that by virtue of a written contract dated ___, between ___, owner, and ___, contractor, said contractor is to furnish or has furnished labor and material or rental equipment, appliances or tools for the erection, alteration, repair or removal of a building, structure, or other improvement on a lot of land or other interest in real property described as follows:(INSERT DESCRIPTION)Such person may file or record the notice of contract at any time after execution of the written contract whether or not the date for performance stated in such written contract has passed and whether or not the work under such written contract has been performed, but not later than the earliest of: (i) sixty days after filing or recording of the notice of substantial completion under section two A; or (ii) ninety days after filing or recording of the notice of termination under section two B; or (iii) ninety days after such person or any person by, through or under him last performed or furnished labor or materials or both labor and materials.
Section 20. An interest in land sold under this chapter may be redeemed within ninety days after such sale in the manner provided for sales of land on execution.
Section 21. If all the claims against the property covered by the lien were ascertained at the time of ordering the sale and if the proceeds of the sale are sufficient therefor, the court may order the officer to distribute them, after deducting all lawful charges and expenses of such officer, to and among the several creditors to the amount of their respective debts, with interest, or, if insufficient, to distribute the same among the lien creditors pursuant to this chapter in proportion to the amount due to each, regardless of the date upon which each such lien creditor filed a notice of contract. If all the claims were not ascertained at the time of ordering the sale or other sufficient cause is shown, the court may order the officer to bring the proceeds of the sale into court to be disposed of according to its decree. If the whole cannot be conveniently distributed at one time, the court may make successive orders of distribution. If there is a surplus of the proceeds of the sale after making all payments before mentioned, it shall be paid over to the owner of the property; but, before it is so paid over, it may be attached or taken on execution in like manner as proceeds from a sale on execution. Notwithstanding the foregoing, proceeds of the sale shall be distributed to mortgagees entitled to priority pursuant to this chapter in the amounts given priority thereunder, before proceeds are distributed to creditors whose liens arise under this chapter.
Section 22. Costs shall be in the discretion of the court and shall be paid from the proceeds of the sale or by any of the parties, as it may order.
action to enforce lien Section 23. If the person for whom the labor has been performed or furnished or the material has been furnished dies or conveys away his estate or interest before the commencement of a civil action to enforce a lien, it may be commenced and prosecuted against his heirs or against the persons holding the estate or interest which he had in the land at the time when the labor or material was performed or furnished. If the action was commenced in the lifetime of such person, it may be prosecuted against his executor, administrator, heirs or assigns as if the estate or interest has been mortgaged to secure the debt.
Section 24. If the creditor dies without having commenced such action, it may be commenced and prosecuted by his executor or administrator, or if he dies after having commenced it, it may be so prosecuted.
Chapter 254: Section 25. Estate less than fee simple; effect of sale Section 25. If the person for whom the labor has been performed or with whom the original contract has been entered into for the whole or any part of the erection, alteration, repair or removal of a building or structure upon land, or for furnishing material therefor, has an estate less than a fee simple in the land or if the property is subject to a mortgage or other encumbrance, the lien shall bind such person’s whole estate and interest in the property, and such estate or interest may be sold and the proceeds applied according to this chapter.
Chapter 254: Section 26. Remedies Section 26. This chapter shall not prevent a person entitled to a lien under it from maintaining a civil action as if he had no lien.
Chapter 254: Section 27. Written contract; form of notice Section 27. A person entering into a written contract with the owner of land or flats for reclaiming or raising the level thereof by suction, hydraulic or any other form of dredging, or for furnishing material therefor, or the trustee or trustees of any fund or funds, described in section one, providing coverage or benefits for persons, shall have a lien upon the interest of the owner in said land or flats as appears of record at the date when notice of said contract is filed or recorded in the registry of deeds for the county or district where such land or flats lie, to secure the payment of all labor and material which shall thereafter be furnished by virtue of said contract. Said notice shall be in substantially the following form:Notice is hereby given that by virtue of a written contract dated , between , owner, and , contractor, said contractor is to furnish labor and material for reclaiming or raising the level of land or flats described as follows: Chapter 254: Section 28. Subcontractor; written contract; notice; filing; form Section 28. Whoever, subsequent to the date of the original contract, furnishes labor or material, or both labor and material, under a written contract with a contractor contracting as provided in section twenty-seven, or with a sub-contractor of such contractor, may file in the registry of deeds for the county or district where such land or flats lie a notice of his contract substantially in the following form:Notice is hereby given that by virtue of a written contract dated , between , contractor (or sub-contractor), and , said is to furnish labor or material, or both labor and material, in the reclaiming or raising the level, by , contractor, for , owner, of land or flats described as follows:Upon filing a notice, as hereinbefore provided, and giving actual notice to the owner of such filing, the sub-contractor shall have a lien to secure the payment of all labor and material, which he shall thereafter furnish, upon the interest of the owner, as appears of record at the time of such filing, in the lot of land or flats reclaimed or improved in the manner described in section twenty-seven.
Such notice may also be filed by a person, or his assignee, agent, authorized representative or third party beneficiary to whom amounts are due or for whose benefit amounts are computed and due for or on the basis of that person performing labor under a written contract with a contractor, or with a subcontractor of such contractor.
Chapter 254: Section 29. Laws applicable to Sec. 27 or 28 Section 29. All the provisions of this chapter relative to liens for the erection, alteration, repair or removal of a building or structure or for furnishing material therefor, attaching under the provisions of section two or four, shall apply, so far as apt, to liens attaching under section twenty-seven or twenty-eight.
definitions; notice; filing; form; certified mail Section 2A. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meaning:—“Substantial completion”, that work under the written contract is sufficiently complete so that it can be occupied or utilized for its intended use.
“Written contract”, any written contract enforceable under the laws of the commonwealth.
Upon or after substantial completion of any contract subject to the provisions of section two, the owner and contractor shall execute and file or record in the appropriate registry of deeds a notice of substantial completion in substantially the following form:Notice of Substantial CompletionNotice is hereby given that the work performed by virtue of a written contract dated ___ between ___ as owner, and ___ ___ as contractor, for the erection, alteration, repair or removal of a building, structure, or other improvement of real property described below, has been substantially completed as of the date of filing or recording of this notice. The lot of land or other interest in real property which is the subject of such contract is described as follows:(Insert description)The undersigned owner hereby states that he has served written notice of the recording or filing of this notice of substantial completion upon every person who has filed or recorded prior to the date this notice is filed or recorded notice of contract under section four of chapter two hundred and fifty-four of the General Laws.
The undersigned contractor hereby states that he has served written notice of the recording or filing of this notice of substantial completion upon every person who has entered into a written contract directly with the contractor or who has given written notice of identification to the contractor prior to the date this notice is filed or recorded as provided in said section four of said chapter two hundred and fifty-four of the General Laws.
A copy of such notice, indicating the date of filing or recording, shall be mailed by certified mail return receipt requested by the owner to every person who has filed a notice of contract under section four and by the contractor to every person who has entered into a written contract directly with the contractor and every person who has given written notice of identification to the contractor claiming by, through, or under him as provided in section four.
The failure of the owner or contractor to give notice of the filing or recording of the notice of substantial completion to those persons so entitled shall not prejudice the rights of third parties who rely upon said notice of substantial completion in good faith and without actual knowledge of such failure of notice.
form; certified mail Section 2B. If, prior to the filing or recording in the registry of deeds and delivery of the copies of the notice of substantial completion described in section two A, any contract subject to the provisions of section two shall have been terminated, the owner shall execute and file or record in the appropriate registry of deeds a notice of termination in substantially the following form:Notice of TerminationNotice is hereby given that a written contract dated ___ between ___ as Owner and ___ as Contractor for the erection, alteration, repair or removal of a building, structure or other improvement of real property described below, has been terminated. The lot of land or other interest in real property which is the subject of such contract is described as follows:(Insert description)The undersigned owner hereby states that he has served written notice of the recording or filing of this notice of termination upon the contractor and every person who has filed or recorded prior to this date a notice of contract under section four of chapter two hundred and fifty-four of the General Laws.
A copy of such notice, indicating the date of filing or recording, shall be mailed by certified mail return receipt requested by the owner to every person who has filed or recorded a notice of contract under section four and to the contractor. Upon receipt of such notice from the owner, the contractor shall deliver a copy of such notice to every person who has entered into a written contract directly with the contractor or who has given to the contractor written notice of identification in accordance with said section four.
The failure of the owner or contractor to give notice of the filing or recording of the notice of termination to those persons so entitled shall not prejudice the rights of third parties who rely upon said notice of termination in good faith and without actual knowledge of such failure of notice.
Chapter 254: Section 30. Recording; duty of register of deeds Section 30. All liens for labor and notices of contract, and instruments pertaining thereto, filed as provided for in this chapter, shall be recorded by the register of deeds, who shall enter the names of the parties affected thereby in the grantor and grantee indexes.
Any notice or other instrument required or permitted to be filed or recorded by this chapter in the registry of deeds or in the land registration district of the land court that is in the form required by this chapter and executed before a notary public, justice of the peace or other officer entitled by law to take acknowledgements with respect to instruments, whether executed within or without the commonwealth, by a person purporting to hold the position of president, vice president, treasurer, clerk, secretary, or any assistant to the foregoing, principal, partner, proprietor, trustee, attorney or other similar position, of the entity entitled to record or file such instruments on behalf of such entity acting in its own capacity or as a general partner or co-venturer, or as assignee, agent or authorized representative, shall be binding upon such entity and shall be entitled to be recorded or filed, and no vote of the entity affirming such authority shall be required to permit recording or filing. A certificate of the acknowledgement or other proof of due execution shall be endorsed upon or annexed to such instrument, and filed or recorded with it.
Such notices, and all other instruments required or permitted by this chapter to be filed or recorded in the registry of deeds, affecting registered land shall be filed and registered in the manner prescribed by section seventy-eight of chapter one hundred and eighty-five. Such notices, and all other instruments required or permitted by this chapter to be filed or recorded in the registry of deeds, affecting unregistered land shall be indexed in a separate book to be kept for that purpose.
If registered land is included with unregistered land in any such notice or other instrument, an attested copy thereof shall be filed with the assistant recorder and registered.
Chapter 254: Section 31. Apportionment; priority; proceedings; public contracts Section 31. In the event that a general contractor or a subcontractor on any construction work is adjudged a bankrupt, or makes a general assignment for the benefit of creditors, or if a receiver is appointed on account of the insolvency of the general contractor or of a subcontractor, at a time when there are sums due or which later become due from the person contracting for the work on account of the work of such general contractor or when there are sums due or which later become due from the general contractor on account of the work of such subcontractor, each person furnishing labor or labor and materials to such general contractor or such subcontractor shall have a lien each in proportion to the amount of his respective claim on all such sums due or which later become due in connection with the particular construction work, provided, that a lien on any such sums arising out of the recording or filing of a document or notice in accordance with the provisions of this chapter or in accordance with any other applicable provisions of the general laws shall have priority over any lien secured pursuant to this section, and provided further, that such lien shall not take effect unless written notice thereof is given to the person owing such sums. Proceedings to enforce a lien secured under this section shall be by a civil action in the superior court within one year after the adjudication of bankruptcy, or the assignment for the benefit of creditors or the appointment of a receiver, and the plaintiff shall bring his action in his own behalf and in behalf of all other persons in interest who shall become parties. All other parties in interest may appear and have their rights determined in such action, and, at any time before entry of final judgment, upon the suggestion of any party in interest that any other person is or may be interested in the action, or of its own motion, the court may summon such person to appear in said cause on or before a day certain or be forever barred from any rights thereunder. The court may in its discretion provide for notice to absent parties in interest. The other provisions of this chapter shall not apply to any such civil action. The provisions of this section shall not apply to any contract with the commonwealth or with any political subdivision thereof or any other public instrumentality.
Chapter 254: Section 32. Void and unenforceable covenants, promises, etc.
; exceptions Section 32. A covenant, promise, agreement of understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance or other improvement to real property, including moving, demolition and excavating connected therewith, purporting to bar the filing of a notice of contract or the taking of any steps to enforce a lien as set forth in this chapter or purporting to subordinate such rights to the rights of other persons is against public policy and is void and unenforceable, but this section shall not apply to:(1) waivers of liens given by any person named as a principal on a lien bond provided under section twelve in connection with an interim or final payment received by such persons;(2) statements by persons entitled to file documents under this chapter of amounts due or paid to them;(3) dissolutions of liens under section ten;(4) partial waivers and subordinations of liens given by persons who have filed or recorded notices of contract under section two substantially in the following form with no material deviation therefrom:Partial Waiver and Subordination of Lien COMMONWEALTH OF MASSACHUSETTS: Date: __________________________ COUNTY Application for Payment No: _________ OWNER: _______________________________ CONTRACTOR: _________________________ LENDER/MORTGAGEE: ________________ 1. Original Contract Amount: _________ 2. Approved Change Orders: _________ 3. Adjusted Contract Amount: _________ (line 1 plus 2) 4. Completed to Date: _________ 5. Less Retainage: _________ 6. Total Payable to Date: _________ (line 4 less line 5) 7. Less Previous Payments: _________ 8. Current Amount Due: _________ (line 6 less line 7) 9. Pending Change Orders: _________ 10. Disputed Claims: _________ The undersigned who has a contract with ___ for furnishing labor or materials or both labor and materials or rental equipment, appliances or tools for the erection, alteration, repair or removal of a building or structure or other improvement of real property known and identified as ___ located in ___ (city or town), ___ County, Commonwealth of Massachusetts and owned by ___, upon receipt of ___ ($___) in payment of an invoice/requisition/application for payment dated ___ does hereby:(a) waive any and all liens and right of lien on such real property for labor or materials, or both labor and materials, or rental equipment, appliances or tools, performed or furnished through the following date: ___ (payment period), except for retainage, unpaid agreed or pending change orders, and disputed claims as stated above; and(b) subordinate any and all liens and right of lien to secure payment for such unpaid, agreed or pending change orders and disputed claims, and such further labor or materials, or both labor and materials, or rental equipment, appliances or tools, except for retainage, performed or furnished at any time through the twenty-fifth day after the end of the above payment period, to the extent of the amount actually advanced by the above lender/mortgagee through such twenty-fifth day.
Signed under the penalties of perjury this ___ day of ___, ___.
The giving of a partial waiver and subordination of lien by any contractor under this section shall not affect the lien rights of any other person claiming a lien under any section of this chapter.
Chapter 254: Section 33. Mortgagee’s right to withhold funding, financing or payment for labor and materials Section 33. Except with respect to any construction project containing or designed to contain at least one but not more than four dwelling units, the filing or recording of documents claiming a lien under section two, or the filing or recording of a statement pursuant to section eight in furtherance of a lien arising pursuant to section one, shall not itself be grounds for a mortgagee to withhold sums for the funding, financing or payment for the labor or labor and materials for which any such notice or statement is filed or recorded or to require dissolution of such notice or statement before providing further funding, financing or payments, and any covenant, promise, agreement or understanding relative to the improvement or alteration to real property to withhold such funding, financing or payment or to require dissolution of such notice or statement before providing further funding, financing or payments solely on that ground is against public policy and void and unenforceable; provided, however, that nothing contained in this chapter shall obligate a mortgagee to disburse sums for the funding, financing or payment for the labor or labor and materials for which any such notice or statement is filed or recorded unless such mortgagee has received an accurately completed and valid partial waiver and subordination of lien in the form set forth in clause (3) of section thirty-two from the person who filed or recorded such notice or statement; provided, further that nothing in this chapter shall in any manner limit or restrict the right of any mortgagee to withhold any and all sums for the funding, financing, or payment for labor or labor and materials based upon: (a) the failure of the owner to comply with any other terms, conditions or requirements in any agreement providing for the funding of the loan, the repayment of the loan or of any mortgage securing any such agreement or (b) the filing or recording of documents claiming a lien under section four, if the right to withhold is contained in any agreement providing for the funding of the loan, the repayment of the loan, or any mortgage securing such agreement, except that such right to withhold shall not be effective to bar the filing of a notice of contract or the taking of any steps to enforce a lien.
form; indirect contractual relationship; notice of identification Section 4. Whoever furnishes labor, including subcontractor construction management services, or who furnishes material, or both labor and material, or furnishes rental equipment, appliances or tools, under a written contract with a contractor, or with a subcontractor of such contractor, may file or record in the registry of deeds for the county or district where such land lies a notice of his contract substantially in the following form:Notice is hereby given that by virtue of a written contract dated ___, between ___ ___ contractor (or subcontractor) and ___ said ___ is to furnish or has furnished labor or material, or both labor and material, or is to furnish or has furnished rental equipment, appliances or tools, in the erection, alteration, repair or removal of a building, structure or other improvement of real property by ___, contractor, for ___, owner, on a lot of land or other interest in real property described as follows:(Insert description) As of the date of this notice, an account of said contract is as follows:1. contract price _______ 2. agreed change orders _______ (indicate whether addition or subtraction) 3. pending change orders: _______ (indicate whether addition or subtraction) 4. disputed claims _______ (indicate whether addition or subtraction) 5. payments received _______The regular mailing address of the party recording or filing this notice is as follows: ___Such person may file or record the notice of contract at any time after execution of the written contract whether or not the date for performance stated in such written contract has passed and whether or not the work under such contract has been performed, but not later than the earliest of: (i) sixty days after filing or recording the notice of substantial completion under section two A; or (ii) ninety days after filing or recording of the notice of termination under section two B; or (iii) ninety days after the last day a person entitled to enforce a lien under section two or anyone claiming by, through or under him performed or furnished labor or materials or both labor and materials to the project or furnished rental equipment, appliances or tools.
Such notice may also be filed by a person or his assignee, agent, authorized representative or third party beneficiary to whom amounts are due or for whose benefit amounts are computed and due for or on the basis of the labor of that person performing labor under a written contract with a contractor, or with a subcontractor of such contractor and the person filing such notice shall not be required to itemize the amount of the contract, the amount of pending changes in the contract, the amount of outstanding claims or the amount paid in such notice.
Upon filing or recording a notice, as hereinbefore provided, and giving actual notice to the owner of such filing, the subcontractor shall have a lien upon such real property, land, building, structure or improvement owned by the party who entered into the original contract as appears of record at the time of such filing, to secure the payment of all labor and material and rental equipment, appliances or tools which he is to furnish or has furnished for the building or structure or other improvement, regardless of the amount stated in the notice of contract. Such lien shall not exceed the amount due or to become due under the original contract as of the date notice of the filing of the subcontract is given by the subcontractor to the owner.
If the person claiming a lien under this section has no direct contractual relationship with the original contractor, except for liens for labor by persons defined in section one of this chapter, the amount of such lien shall not exceed the amount due or to become due under the subcontract between the original contractor and the subcontractor whose work includes the work of the person claiming the lien as of the date such person files his notice of contract, unless the person claiming such lien has, within thirty days of commencement of his performance, given written notice of identification by certified mail return receipt requested to the original contractor in substantially the following form:Notice of IdentificationNotice is hereby given to ___, as contractor, that ___, as subcontractor/vendor, has entered into a written contract with ___ to furnish labor or materials, or labor and materials, or rental equipment, appliances or tools to a certain construction project located at ___ (Street Address), ___ (Town or City), Massachusetts. The amount or estimated amount of said contract is $___. (No amount need be stated for contracts for the rental of equipment, appliances or tools).
The amount stated in any such notice of identification shall not limit the amount of the lien. Any inaccuracy in the naming of the contractor or other information in such notice shall not affect its validity provided there shall be actual notice.
Section 5. A lien upon land for the erection, alteration, repair or removal of a building or other structure or other improvement of real property or a lien established under section seventy-six of chapter sixty-three, section six of chapter one hundred and eighty-three A, or subsection (a) of section twenty-nine of chapter one hundred and eighty-three B shall be enforced by a civil action brought in the superior court for the county where such land lies or in the district court in the judicial district where such land lies. The plaintiff shall bring his action in his own behalf and in behalf of all other persons in interest who shall become parties. An attested copy of the complaint, which shall contain a brief description of the property sufficient to identify it, and a statement of the amount due, shall be filed in the registry of deeds and recorded as provided in section nine within thirty days of the commencement of the action, or such lien shall be dissolved. All other parties in interest may appear and have their rights determined in such action, and at any time before entry of final judgment, upon the suggestion of any party in interest that any other person is or may be interested in the action, or of its own motion, the court may summon such person to appear in such cause on or before a day certain or be forever barred from any rights thereunder. The court may in its discretion provide for notice to absent parties in interest. The terms “party in interest” and “person in interest”, as used in this chapter, shall include mortgages and attaching creditors.
procedure Section 5A. When the amount of a lien under section six of chapter 183A or under section 29 of chapter 183B has been established by a court, the court shall enter an order authorizing the sale of the real estate to satisfy such lien. The lienor may do all acts authorized by such order, but no sale pursuant to such order shall be effectual unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to appear not less than twenty-one days before the date of such sale, in a newspaper published in the town where the land lies or, if no newspaper is published in such town, in a newspaper published in the county where the land lies, and this provision shall be implied in every court order for sale hereunder in which it is not expressly set forth. A newspaper which by its title page purports to be printed or published in such town, city or county, and having a circulation therein, shall be sufficient for the purpose.
For a lien under chapter 183A, such form shall be printed in substantially the following form:SALE OF REAL ESTATE UNDER GLM 183A:6By virtue of a Judgment and Order of the ___ Court (docket no. ___) in favor of ___ against ___ establishing a lien pursuant to GLM 183A:6 on the real estate known as Unit ___ of the ___ Condominium for the purpose of satisfying such lien, the real estate will be sold at Public Auction at ___ o’clock ___. M. on the ___ day of ___ A.
D. (insert year) at . The premises to be sold are more particularly described as follows:Description: (Describe premises exactly as in the deed, including all references to title, restrictions, encumbrances, etc.
)Terms of sale: (State the amount, if any, to be paid in cash by the purchaser at the time and place of the sale, and the time or times for payment of the balance or the whole as the case may be.
)Other terms to be announced at the sale.
(Signed)___ ___Lienholder___(insert year)For a lien under chapter 183B, such form shall be printed in substantially the following form:SALE OF REAL ESTATE UNDER GLM 183B:29By virtue of a Judgment and Order of the ___ Court (docket no, ___) in favor of ___ against ___ establishing a lien pursuant to GLM 183B:29 on the time-share known as ___ of the ___ for the purpose of satisfying such lien, the time-share will be sold at Public Auction at ___ o’clock ___.
M. on the ___ day of ___ A.
D. 19___ at ___. The premises to be sold are more particularly described as follows:Description: (Describe premises exactly as in the deed, including all references to title, restrictions, encumbrances, etc.
)Terms of sale: (State the amount, if any, to be paid in cash by the purchaser at the time and place of the sale, and the time or times for payment of the balance or the whole as the case may be.
)Other terms to be announced at the sale.
(Signed)___ ___Lienholder___ 19Such notice of sale in the above form, published in accordance with the provisions of this section, together with such other or further notice, if any, required by the court, shall be deemed a sufficient notice of the sale and the premises shall be deemed to have been sold, and the deed thereunder shall convey the premises, subject to, and with the benefit of, all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, and first mortgages recorded prior to the recording of the complaint, whether or not reference to such restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, or first mortgages is made in the deed; but no purchaser at such sale shall be bound to complete the purchase if there are encumbrances, other than those included in the notice of the sale, which are not stated at the sale and included in the auctioneer’s contract with the purchaser. Notwithstanding the foregoing, the premises shall be deemed to have been sold, and the deed thereunder shall convey the premises, as otherwise provided above but free of said first mortgages, if as of the date of such sale there are unpaid common expense assessments, costs, or reasonable attorneys’ fees the lien for which is given priority over said first mortgages in subsection (c) of section six of chapter one hundred and eighty-three A. Any sale pursuant to this section shall convey the premises free of any right of redemption.
The person or entity selling, or their attorney, may cause a copy of the notice and an affidavit, stating that the requirements of the court order and of this section have been complied with, to be recorded with a note of reference thereto on the margin of the record of the complaint previously recorded, and such affidavit or a certified copy of the record thereof shall be admitted as evidence that the sale was duly executed.
For the purposes of this section, the term “recorded” shall mean recorded in the registry of deeds or land registration office for the county or district where the land lies.
Section 6. No lien shall attach to any land, building or structure thereon owned by the commonwealth, or by a county, city, town, water or fire district.
Section 7. (a) No lien under section one shall avail against a mortgage duly registered or recorded unless the work or labor performed is in the erection, alteration, repair or removal of a building, structure, or other improvement to real property which erection, alteration, repair, removal, or improvement was actually begun prior to the recording of the mortgage.
(b) No lien under section two shall avail as against a mortgage duly registered or recorded to the extent of amounts actually advanced or unconditionally committed (i) prior to the filing or recording of the notice of contract, and (ii) after the filing or recording of the notice of contract but within twenty-five days after the last day of the period stated in an accurate duly executed partial waiver and subordination of lien in the form required by section thirty-two, except for the amount of retainage accurately stated in such partial waiver and subordination of lien.
(c) No lien under section four shall avail against a mortgage actually existing and duly registered or recorded to the extent of the amount actually advanced or unconditionally committed prior to the filing or recording in the registry of deeds of the notice required by section four.
(d) No lien under section two or four of this chapter shall avail as against a purchaser, other than the owner or person acting for or on behalf of, or with the consent of such owner who entered into the written contract on which the lien is based, whose deed or other instrument of title was duly registered or recorded prior to the filing or recording of such notices under said section two or four.
dissolution of lien Section 8. Liens under sections two and four shall be dissolved unless the contractor, subcontractor, or some person claiming by, through or under them, shall, not later than the earliest of: (i) ninety days after the filing or recording of the notice of substantial completion under section two A; (ii) one hundred and twenty days after the filing or recording of the notice of termination under section two B; or (iii) one hundred and twenty days after the last day a person, entitled to enforce a lien under section two or anyone claiming by, through or under him, performed or furnished labor or material or both labor and materials or furnished rental equipment, appliances or tools, file or record in the registry of deeds in the county or district where the land lies a statement, giving a just and true account of the amount due or to become due him, with all just credits, a brief description of the property, and the names of the owners set forth in the notice of contract. A lien under section one shall be dissolved unless a like statement, giving the names of the owner of record at the time the work was performed or at the time of filing the statement, is filed or recorded in the appropriate registry of deeds within the ninety days provided in said section. Nothing in this section shall prohibit the filing or recording of a statement under this section prior to the filing or recording of the notices under section two A or two B.
Section 9. Any notice or any statement provided for in this chapter shall remain in the custody of the register and be open to public inspection. He shall record it in a book kept therefor, but the items of the account, except the total amount claimed due, may be omitted from the record.
Chapter 255: Section 1 to 7C. Repealed, 1957, 765, Sec. 2 Chapter 255: Section 12 to 12B. Repealed, 1966, 284, Sec. 4 Chapter 255: Section 12C. Consumer note; non-negotiability; violations; penalty; construction of section Section 12C. If any contract for sale of consumer goods on credit entered into in the commonwealth between a retail seller and a retail buyer requires or involves the execution of a promissory note, such note shall have printed on the face thereof the words “consumer note”, and the holder of such a note cannot be a holder in due course thereof within the meaning of Article 3 of chapter 106. For the purposes of this section “consumer goods” means tangible personal property used or bought for use primarily for personal, family or household purposes.
Whoever obtains a note in violation of this section shall be punished by a fine of not less than one hundred nor more than five hundred dollars.
If a note is obtained in violation of this section, no finance, delinquency, collection, repossession or refinancing charges may be recovered in any action or proceeding based on such contract for sale.
The provisions of this section shall not apply to any notes executed in connection with any financing which is insured under Federal Housing Administration regulations.
Chapter 255: Section 12D. Repealed, 1966, 284, Sec. 4 Chapter 255: Section 12E. Repealed, 1981, 733, Sec. 3 Chapter 255: Section 12F. Creditors in consumer loan transactions; defenses of borrower Section 12F. As used in this section the following words shall, unless the context requires otherwise, have the following meanings:“Organization,” a corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association.
“Person related to,” with respect to an individual means (a) the spouse of the individual, (b) a brother, brother-in-law, sister, or sister-in-law of the individual, (c) an ancestor or lineal descendant of the individual or his spouse, and (d) any other relative, by blood or marriage, of the individual or his spouse who shares the same home with the individual.
“Person related to,” with respect to an organization means (a) a person directly or indirectly controlling, controlled by or under common control with the organization, (b) an officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization, (c) the spouse of a person related to the organization, and (d) a relative by blood or marriage of a person related to the organization who shares the same home with him.
A creditor in consumer loan transactions shall be subject to all of the defenses of the borrower arising from the consumer sale or lease for which the proceeds of the loan are used, if the creditor knowingly participated in or was directly connected with the consumer sale or lease transaction.
Without limiting the scope of the preceding paragraph, a creditor shall be deemed to have knowingly participated in or to have been directly connected with a consumer sale or lease transaction if: (a) he was a person related to the seller or lessor; (b) the seller or lessor prepared documents used in connection with the loan; (c) the creditor supplied forms to the seller or lessor which were used by the consumer in obtaining the loan; (d) the creditor was specifically recommended by the seller or lessor to the borrower and made two or more loans in any calendar year, the proceeds of which are used in transactions with the same seller or lessor, or with a person related to the same seller or lessor; or (e) the creditor was the issuer of a credit card which may be used by the consumer in the sale or lease transaction as a result of a prior agreement between the issuer and the seller or lessor.
Chapter 255: Section 12G. Credit life or accident and health or involuntary unemployment insurance charges; prepayment; refunds; death benefits; disclosure statements; violations Section 12G. Except as otherwise provided in section ten of chapter two hundred and fifty-five B, section fourteen A of chapter two hundred and fifty-five C and subsection C of section twenty-six of chapter two hundred and fifty-five D, in the event the charge or any portion thereof for life insurance under a policy issued pursuant to clause (c) of the first paragraph of section one hundred and thirty-three of chapter one hundred and seventy-five or for accident and health insurance under a policy issued pursuant to clause (j) of the first sentence of subdivision (A) of section one hundred and ten of chapter one hundred and seventy-five, or for involuntary unemployment insurance under a policy issued pursuant to clause (a) of section one hundred and seventeen D of chapter one hundred and seventy-five which unless otherwise authorized shall be the only types of insurance authorized in connection with a loan for personal, family or household purposes, is paid by the borrower or borrowers to the creditor, it shall not be deemed to constitute a charge in violation of sections ninety A, one hundred, one hundred and fourteen A, and one hundred and fourteen B of chapter one hundred and forty.
The creditor may make a charge for said life insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said creditor pursuant to the provisions of section one hundred and seventeen C of chapter one hundred and seventy-five. The amount of said insurance shall at no time exceed the greater of the scheduled or actual amount owing on the loan exclusive of unearned finance charges. Said charge may be collected either as a single premium on scheduled insured balances or periodically on actual monthly insured balances.
The creditor may make a charge for said accident and health insurance or said involuntary unemployment insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said creditor pursuant to the provisions of said section one hundred and seventeen C or section one hundred and seventeen D of said chapter one hundred and seventy-five. Said charge may be collected either as a single premium on scheduled insured balances or periodically on outstanding balance basis, using a monthly term rate that is actuarially consistent with the applicable single premium rate filed with said commissioner, which monthly rate shall be applied each month to the sum of the remaining insured monthly benefits. For interest bearing loans, other than pre-computed loans, a uniform monthly rate filed with said commissioner may be applied to the remaining monthly loan balances of all insured loans, exclusive of unearned finance charges, which uniform monthly rate shall produce, for the aggregate of all said insured loans, an aggregate premium that is actuarially consistent with the aggregate premium that would result from using said applicable single premium rates filed with said commissioner applied to the total of the monthly benefits on all said insured loans. All group accident and health insurance policies shall have a waiting period of thirty days and shall have benefits which are not retroactive. No group involuntary unemployment insurance policy shall have a waiting period in excess of thirty-one days.
In the event of prepayment of the loan, there shall be a refund of any unearned charges for said life insurance or accident and health insurance or involuntary unemployment insurance computed on a method which is at least as favorable to the borrower or borrowers as the actuarial method, which for single premiums shall be defined as a refund of unearned premium equal to the premium cost of coverage equal to the remaining scheduled benefits for a term equal to the remaining period from the date of said prepayment to the originally scheduled termination date of coverage, computed at the schedule of rates in effect when the charge for said insurance was made. If said prepayment is made other than on an installment due date it shall be deemed to have been made on the first installment due date if said prepayment is made before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of said prepayment.
The amount of death benefit payable shall be computed as of the date of death and shall, subject to any dollar limit specified in the group policy, include not less than the equivalent of six past due monthly payments on the loan if and to the extent that payments are past due whether from delinquency, deferral, extension or other reason. No anticipated delinquency value shall be included in the amount of coverage on which said life insurance premiums are calculated. In the computation of said benefit, the assumed amount of said insurance shall not be less than the lesser of (1) the maximum amount of said insurance specified in the group policy, or (2) the actual outstanding principal balance of the indebtedness including the equivalent of up to six past due monthly payments if and to the extent that payments are past due. Notwithstanding the previous sentence, in the event an excess charge is made for said insurance, said amount of death benefit shall at no time be less than the amount for which a charge has been paid by the insured.
Every disclosure statement under the provisions of chapter one hundred and forty D involving said life insurance or accident and health insurance or involuntary unemployment insurance issued pursuant to this section shall contain all or part of the following language, corresponding to the types of insurance offered, printed in ten point boldface type:YOU CANNOT BE DENIED CREDIT SIMPLY BECAUSE YOU CHOOSE NOT TO BUY CREDIT INSURANCE. CREDIT LIFE INSURANCE AND CREDIT ACCIDENT AND HEALTH INSURANCE AND CREDIT INVOLUNTARY UNEMPLOYMENT INSURANCE ARE NOT REQUIRED TO OBTAIN CREDIT. INSURANCE WILL NOT BE PROVIDED UNLESS YOU SIGN AND AGREE TO PAY THE ADDITIONAL CHARGE.
The enrollment for said insurance shall not be a condition of obtaining financing nor shall it be a condition of entering into a loan. The denial of credit for failure to enroll for said insurance shall constitute a violation of chapter ninety-three A and chapter one hundred and seventy-six D.
Said involuntary unemployment insurance shall not be offered in connection with a consumer credit transaction subject to this section until the credit decision has been made and communicated to the credit applicant; provided, however, nothing in this sentence shall prohibit making pamphlets available to credit applicants, responding to questions by credit applicants concerning said insurance, or providing credit applications which contain a written offer of insurance to credit applicants.
This section shall not apply to insurance for which no identifiable charge is made to the borrower or borrowers. This section shall not apply to said life insurance or accident and health insurance in connection with a loan for personal, family or household purposes secured by a first lien on real property; provided, however, this section shall apply to said involuntary unemployment insurance in connection with a loan for personal, family or household purposes secured by a first lien on real property.
Chapter 255: Section 12H. Definitions; delinquency or late charge; annual fee Section 12H. As used in this section the following words, unless the context requires otherwise, shall have the following meanings:—“Charge card”, any card, plate, coupon book, or other single device existing for the purpose of being used from time to time upon presentation to obtain goods or services and which is issued pursuant to a charge card agreement.
“Card issuer”, any person who issues a charge card pursuant to a charge card agreement, or the agent of such person with respect to such card.
“Cardholder”, any person to whom a charge card is issued or any person who has agreed with the card issuer to pay obligations arising from the issuance of a charge card to another person.
“Charge card agreement”, an agreement signed by a person in the commonwealth pursuant to which such person may obtain goods or services upon presentation of a charge card from time to time and under the terms of which no finance charge may be assessed and the payment for such goods or services is due in full upon receipt of a monthly statement.
No card issuer under a charge card agreement may assess a delinquency charge, late charge or similar charge upon a cardholder which shall exceed one and one-half per cent per month computed upon an unpaid balance; provided, however, that no such charge shall be assessed on an unpaid balance until such balance has been outstanding for a period of not less than ninety days after written notice of such balance has been sent in a monthly statement mailed or delivered to the cardholder.
A card issuer, whether located within or without the commonwealth, may assess an annual fee provided that the cardholder is notified of the amount of any such fee on or with the billing statement for the billing period prior to that in which the annual fee is billed to the cardholder’s account. A cardholder may cancel his charge card agreement at any time during this period without penalty. If the cardholder cancels the agreement at any other time during the year, he shall receive a refund on a pro-rata basis of two-thirds of the annual fee; provided, however, that for the purposes of this section a cancellation is not effective until the cardholder pays in full any outstanding balance.
Chapter 255: Section 12I. Repealed, 2002, 248 Chapter 255: Section 12J. Actions for failure to disclose real property was insulated with urea formaldehyde foam prohibited Section 12J. No cause of action shall arise or be maintained against a seller, lessor, real estate broker or salesperson, lender or mortgagee of real property by statute or at common law, for failure to disclose to a buyer or tenant that the real property has been insulated with urea formaldehyde foam insulation.
Chapter 255: Section 13. Repealed, 1966, 284, Sec. 4 Chapter 255: Section 13A. Repealed, 1957, 765, Sec. 2 Chapter 255: Section 13B, 13C. Repealed 1966, 284, Sec. 4 Chapter 255: Section 13D to 13F. Repealed 1957, 765, Sec. 2 Chapter 255: Section 13G. Repealed 1966, 284, Sec. 4 Chapter 255: Section 13H. Repealed 1957, 765, Sec. 2 Chapter 255: Section 13I. Default under consumer credit transactions; enforcement; notice; curing of default; deficiency judgment Section 13I. (a) In any consumer credit transaction involving a loan that is secured by a non-possessory security interest in consumer goods a provision relating to default is enforceable only to the extent that the default is material and consists of the debtor’s failure to make one or more payments as required by the agreement, or the occurrence of an event which substantially impairs the value of the collateral.
(b) After a default under a consumer credit transaction by a debtor the secured creditor may not bring an action against the debtor or proceed against the collateral until he gives the debtor the notice required by this section. Said notice shall be deemed to be delivered when delivered to the debtor or when mailed to the debtor at the debtor’s address last known to the creditor. If a debtor cures a default after receiving such notice and again defaults, the creditor shall give another notice before bringing action or proceeding against the collateral with respect to the subsequent default, but no notice is required in connection with a subsequent default if, within the period commencing on the date of the consumer credit transaction subject to this section and the date of the subsequent default, the debtor has cured a default after notice three or more times.
(c) The notice shall be in writing and shall be given to the debtor ten days or more after the default. The notice shall conspicuously state the rights of the debtor upon default in substantially the following form:The heading shall read:—“Rights of Defaulting Debtor under Massachusetts Law.
” The body of the notice shall read:—“You may cure your default in (describe transaction in a manner enabling debtor to identify it) by paying to (name and address of creditor) (amount due) before (date which is at least twenty-one days after notice is mailed). If you pay this amount within the time allowed you are no longer in default and may continue with the transaction as though no default had occurred.
If you do not cure your default by the date stated above, the said creditor may sue you to obtain a judgment for the amount of the debt or may take possession of the collateral.
If the said creditor takes possession of the collateral, you may get it back by paying the full amount of your debt plus any reasonable expenses incurred by the said creditor if you make the required payment within twenty days after he takes possession.
”(d) No court shall enter a deficiency judgment against a debtor which includes a finance charge or insurance premiums allocable to instalments due after repossession. A debtor whose goods have been repossessed shall not be liable in a civil action for a deficiency unless the secured party files an affidavit signed either by the purchaser at the sale or by the secured party stating the price for which the goods were sold and the date and place of sale. Such affidavit shall be filed with the complaint.
(e) Unless the secured creditor has first notified the debtor that he has elected to accelerate the unpaid balance of the obligation because of default, brought action against the debtor, or proceeded against the collateral, the debtor may cure a default consisting of a failure to pay money by tendering the amount of all unpaid sums due at the time of tender, without acceleration, plus any unpaid delinquency or deferral charges. Cure shall restore the debtor to his rights under the agreement as though the defaults cured have not occurred, subject to the provisions of subsection (b).
Chapter 255: Section 13J. Repossession of collateral under a consumer credit transaction; hearing; redemption; disposition; deficiency; insurance proceeds; determination of value Section 13J. (a) Subject to the provisions of this section a secured creditor under a consumer credit transaction may take possession of collateral. In taking possession the secured creditor under a consumer credit transaction may proceed without a prior hearing only if the default is material and consists of the debtor’s failure to make one or more payments as required by the agreement or the occurrence of an event which substantially impairs the value of the collateral, and only if possession can be obtained without use of force, without a breach of peace and, unless the debtor consents to an entry, at the time of such entry, without entry upon property owned by, or rented to the debtor.
(b) Except as provided in subsection (a), a creditor under a consumer credit transaction may proceed against collateral only after a prior hearing. In any proceeding where possession of the collateral is part of the relief sought by a creditor no court shall allow a secured creditor to take possession of collateral until the right of the creditor to take possession has been determined at a hearing at which the debtor has an opportunity to be heard, having been notified in writing of such hearing at least seven days in advance thereof.
(c) The debtor under a secured consumer credit transaction may redeem the collateral from the creditor at any time within twenty days of the creditor’s taking possession of the collateral, or thereafter until the creditor has either disposed of the collateral, entered into a contract for its disposition, or gained the right to retain the collateral.
(d) The creditor may after gaining possession sell or otherwise dispose of the collateral. Unless displaced by the provisions of this section and section thirteen I, the rights and obligations of the parties, including redemption and disposition of the collateral shall be governed by the provisions of Part 6 of Article 9 of chapter 106. Notwithstanding the provisions in Part 6 of Article 9 of chapter 106, if, in connection with a consumer credit transaction which involves an unpaid balance of two thousand dollars or less and which is at the time of default secured by a non-possessory security interest in consumer goods, the creditor takes possession of or accepts surrender of the collateral, the debtor shall not be liable for any deficiency. If the agreement between the creditor and debtor provides that the debtor is to obtain insurance protecting the collateral against fire, theft, collision or other hazards and naming the creditor as loss payee and if, prior to the repossession or surrender of the collateral, loss or damage occurs which would give rise to insurance proceeds under the terms of the policy in force, then nothing in this section shall be deemed to limit the creditor’s rights to so much of the insurance proceeds as does not exceed the fair market value of the collateral existing just prior to the loss or damage and, if insurance as required by the agreement is not in force at the time of the loss or damage, nothing in this section shall be deemed to limit the creditor’s rights in proceeding against any third party who is responsible for the loss or damage in the name of the debtor or otherwise. For the purposes of this section the unpaid balance of a consumer credit transaction shall be that amount which the debtor would have been required to pay upon prepayment.
(e) (1) If the unpaid balance of the consumer credit transaction at the time of default was two thousand dollars or more the creditor shall be entitled to recover from the debtor the deficiency, if any, resulting from deducting the fair market value of the collateral from the unpaid balance due and shall also be entitled to any reasonable repossession and storage costs, provided he has complied with all provisions of this section.
(2) In a proceeding for a deficiency the fair market value of the collateral shall be a question for the court to determine. Periodically published trade estimates of the retail value of goods shall, to the extent they are recognized in the particular trade or business, be presumed to be the fair market value of the collateral.
(f) Any secured creditor obtaining possession of a motor vehicle under the provisions of this section shall, within one hour after obtaining such possession, notify the police department of the city or town in which such possession occurred, giving such police department a description of the vehicle involved.
Chapter 255: Section 13K. Personal service contracts between certain schools and students; termination notice provisions required; applicability; violations; penalties Section 13K. Every written contract between a trade school, business school, vocational school, technical school, correspondence school, dance studio, professional or proprietary school, except a proprietary school which has the authority to grant degrees, and any person who is to receive physical, mental or emotional benefit therefrom shall contain the following notice on the front of said contract above the place for the student’s signature in a type size at least as large as the largest type size appearing in any other part of the said contract:1. You may terminate this agreement at any time.
2. If you terminate this agreement within five days you will receive a refund of all monies paid, provided that you have not commenced the program.
3. If you subsequently terminate this agreement prior to the commencement of the program, you will receive a refund of all monies paid, less the actual reasonable administrative costs described in paragraph 7.
4. If you terminate this agreement during the first quarter of the program, you will receive a refund of at least seventy-five per cent of the tuition, less the actual reasonable administrative costs described in paragraph 7.
5. If you terminate this agreement during the second quarter of the program, you will receive a refund of at least fifty per cent of the tuition, less the actual reasonable administrative costs described in paragraph 7.
6. If you terminate this agreement during the third quarter of the program, you will receive a refund of at least twenty-five per cent of the tuition, less the actual reasonable administrative costs described in paragraph 7.
7. If you terminate this agreement after the initial five day period, you will be responsible for actual reasonable administrative costs incurred by the school to enroll you and to process your application, which administrative costs shall not exceed fifty dollars or five per cent of the contract price, whichever is less. A list of such administrative costs is attached hereto and made a part of this agreement.
8. If you wish to terminate this agreement, you must inform the school in writing of your termination, which will become effective on the day such writing is mailed.
9. The school is not obligated to provide any refund if you terminate this agreement during the fourth quarter of the program.
This section shall not apply to public and nonprofit schools and shall not affect the provisions of section forty-eight of chapter ninety-three or section fourteen of chapter two hundred and fifty-five D, which provides a right of cancellation for certain contracts.
Whoever fails to comply with this section shall be deemed to have committed an unfair and deceptive practice under section two of chapter ninety-three A.
Whoever violates the provisions of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months, or both.
Chapter 255: Section 13L. Prepayment; refund of charges Section 13L. Except as otherwise provided in section one hundred of chapter one hundred and forty, section sixteen of chapter two hundred and fifty-five B, section nineteen of chapter two hundred and fifty-five C, and subsection B of section thirteen of chapter two hundred and fifty-five D, if a loan contract, for personal, family or household purposes, is prepaid in full by cash, a new loan, refinancing or otherwise before the final installment date, the borrower shall receive a refund of the precomputed charges computed on a method which is at least as favorable to the borrower as the actuarial method, so-called. If prepayment is made other than on an installment due date, it shall be deemed to have been made on the first installment due date if the prepayment is before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of prepayment. Where the amount of the credit for anticipation of payment is less than one dollar, no refund need be made.
LIENS ON VESSELS Chapter 255: Section 14. General provisions Section 14. If by virtue of a contract, express or implied, with the owners of a vessel or with the agents, contractors or sub-contractors of such owners, or with any of them, or with a person who has been employed to construct, repair or launch a vessel or to assist therein, money is due for labor performed, materials used or labor and materials furnished in the construction, launching or repairs of, or in the construction of the launching ways for, or for provisions, stores or other articles furnished for or on account of such vessel in the commonwealth, the person to whom such money is due shall have a lien upon the vessel, her tackle, apparel and furniture to secure the payment of such debt, and such lien shall be preferred to all others on such vessel, except that for mariners’ wages, and shall continue until the debt is satisfied.
LIENS ON VESSELS Chapter 255: Section 14A. Storage and incidental expenses Section 14A. If by virtue of a contract, express or implied, with the owners of a vessel of not more than forty feet in length, or with the agents, contractors or subcontractors of such owners, or with any of them, or with a person who has been employed to construct, repair or launch a vessel, or to store said vessel, either in wet storage or on land, or to assist therein, money is due for storage furnished for or on account of such vessel in the commonwealth, which shall include such labor performed and such materials furnished, including stands and cradles, as may be necessary and incidental to said storage, the person to whom such money is due shall have a lien upon the vessel, her tackle, apparel and furniture to secure the payment of such debt, and such lien shall be preferred, together with liens provided under section fourteen, to all others on such vessel, except that for mariners’ wages, and shall continue until the debt is satisfied.
LIENS ON VESSELS Chapter 255: Section 15. Statement; effect of filing; fees Section 15. Such lien shall be dissolved unless the person claiming it within thirty days after the vessel departs from the port at which she was when the debt was contracted, files in the office of the clerk of the city or town where the vessel was at such time, a statement, subscribed and sworn to by him or by a person in his behalf, giving a true account of the demand claimed to be due to him, with all just credits, the name of the person with whom the contract was made, the name of the owner of the vessel, if known, and the name of the vessel or a description thereof sufficient for identification. The statement shall be recorded by such clerk in a book kept by him for that purpose, and the fees therefor shall be as provided by clause (55) of section thirty-four of chapter two hundred and sixty-two.
LIENS ON VESSELS Chapter 255: Section 16. Inaccuracies of description; effect on lien Section 16. A place in which the vessel is wholly or partly constructed shall be held to be the port where she was when the debt was contracted. The lien shall not be affected by any inaccuracy in the description of the vessel, if she can be recognized thereby, nor in stating the amount due for labor or materials, unless it is found that the person filing the statement has knowingly claimed more than is due.
LIENS ON VESSELS Chapter 255: Section 17. Enforcement; procedure Section 17. A person having such lien, unless the contract described in section fourteen or fourteen A, as the case may be, is a maritime contract and the enforcement of the lien is within the exclusive jurisdiction of the courts of the United States, may enforce the lien by a civil action in the superior court for the county where the vessel was at the time when the debt was contracted or where the vessel is at the time the action is commenced. The subsequent proceedings shall, except as hereinafter provided, be as prescribed in chapter two hundred and fifty-four so far as applicable. Upon the commencement of such action, a writ of attachment shall issue against such vessel, her tackle, apparel and furniture; the attachment may be dissolved as in any civil action but such dissolution shall not dissolve the lien.
LIENS ON VESSELS Chapter 255: Section 18, 19. Repealed, 1973, 1114, Sec. 328 LIENS ON VESSELS Chapter 255: Section 20. Proceeds of sale; distribution Section 20. If money is due to more than one person holding such lien and all parties interested have been summoned to appear, the claims of all shall be marshalled, and the court shall make such order as may be necessary to prevent the enforcement of a double lien for the same labor, materials, stores, storage, provisions or other articles, and to secure the rights of each. The proceeds from the sale of the vessel, after deducting all costs and expenses, shall be distributed among the several claimants according to the amount of their respective debts, except that, if such proceeds are insufficient to satisfy the liens of all, those who have liens for labor shall receive a percentage on their respective claims one third greater, as near as may be, than those who have liens for materials, stores, storage or other articles.
LIENS ON VESSELS Chapter 255: Section 21. Payment by owner of vessel Section 21. If a contractor or sub-contractor unreasonably neglects or refuses to pay for labor procured by him to be performed in constructing, repairing or launching a vessel upon which a lien exists therefor and the owner or other person who made the agreement with such contractor or sub-contractor pays the debt secured by the lien, he shall have the same claim against such contractor or sub-contractor as if the lien had been enforced by judgment.
LIENS ON VESSELS Chapter 255: Section 22. Foreign vessels; effect of this chapter Section 22. The eight preceding sections shall not affect any lien on foreign vessels which exists independent of statute.
OTHER LIENS Chapter 255: Section 23. Repealed, 1977, 284, Sec. 2 OTHER LIENS Chapter 255: Section 24. Domestic animals; care and custody Section 24. Persons having proper charges due them for pasturing, boarding or keeping horses or other domestic animals which are brought to their premises or placed in their care by or with the consent of the owners thereof shall have a lien on such animals for such charges.
OTHER LIENS Chapter 255: Section 25. Garage keepers; effects of liens on motor vehicles obtained by fraud; etc.
; lien for charges reimbursed by insurance company Section 25. Persons maintaining public garages for the storage and care of motor vehicles brought to their premises or placed in their care by or with the consent of the owners thereof and persons engaged in performing work upon or in connection with the inspection, reconditioning and repairing of motor vehicles shall have a lien upon such motor vehicles for proper charges due them for the storage, work and care of the same.
If the owner of such motor vehicle obtains possession of the same by fraud, trick or by check, draft or order upon any depository or bank which is not honored, the lien on said motor vehicle shall not be deemed to have been discharged and the lien holder may thereafter continue to enforce said lien until the proper charges due him have been paid.
In any instance where a lien arises under this section for charges due that are to be paid or reimbursed by an insurance company licensed in the commonwealth, upon written notice by the holder of such lien to the insurance company, the check or draft issued by such insurance company for such charges shall name the holder of the lien, together with the holder of a security interest as defined by ARTICLE 9 of chapter one hundred and six, as a loss payee, unless otherwise provided by law. The holder of a security interest that does not have priority over the lien established under this section shall be required to endorse any check or draft issued for payment of such charges by such insurance company over to the holder of such lien, whether or not such lien has then been released by the holder; provided, however, that the holder of a security interest other than the lien provided by this section, may, within two business days of notice of a request to endorse any such check require the owner of the vehicle to make said vehicle available for inspection at a time and place convenient to the owner and lienholder, to reinspect the repaired vehicle, and, as a prerequisite for such endorsement, the holder of such security interest may require the holder of the lien established under this section to provide it with an itemized list of repairs and other services which it certifies, in writing, have been completed or provided, and a copy of any repair certification form required by law to be provided to the insurance company.
Nothing in this section shall affect or modify the provisions of any direct payment plans implemented by an insurer pursuant to section thirty-four O of chapter ninety.
OTHER LIENS Chapter 255: Section 25A. Manufactured housing communities operators Section 25A. Persons maintaining manufactured housing communities for the rental of sites to be occupied by manufactured homes and vehicles, for the furnishing of facilities in connection therewith, and for the storage and care of manufactured homes brought to their premises or placed in their care by and with the consent of the owners thereof, shall have a lien upon such manufactured homes and the contents thereof for proper charges due them for such rental, facilities, storage and care, and any tax assessed by reason of such manufactured home having occupied a site in such manufactured housing community.
OTHER LIENS Chapter 255: Section 26. Enforcement Section 26. A person who has a lien, which is not described in sections fourteen to twenty-two, inclusive, or in chapter two hundred and fifty-four, for money due to him on account of work and labor, storage, care and diligence, or money expended on or about personal property under a contract express or implied, if such money is not paid, in the case of a lien described in section twenty-four, twenty-five or twenty-five A within ten days, or in other cases within sixty days, after a demand in writing delivered to the debtor or left at his usual place of abode, if within the commonwealth, or mailed postpaid to him at his usual place of abode without the commonwealth, may bring a civil action in the superior court or in a district court within the jurisdiction of which the plaintiff resides or has his usual place of business to have the property sold to satisfy the debt.
OTHER LIENS Chapter 255: Section 27, 28. Repealed, 1975, 377, Sec. 151 OTHER LIENS Chapter 255: Section 29. Order for sale Section 29. If, upon a default or a trial it is found that a lien exists upon the property and that the property ought to be sold for the satisfaction of the debt, the court may make an order for such sale, determine and record the amount then due and award costs to the prevailing party. Any proceeds of the sale remaining after satisfying the debt, costs and charges, shall be paid to the owner upon demand.
OTHER LIENS Chapter 255: Section 30. Repealed, 1931, 426, Sec. 123 OTHER LIENS Chapter 255: Section 31. Effects of Secs. 24 to 29 Section 31. Sections twenty-four to twenty-nine, inclusive, shall not restrict the right of a person who has a lien upon property to hold or dispose of it in any other lawful manner.
OTHER LIENS Chapter 255: Section 31A. Spinners and others; work and materials Section 31A. A lien on account of work, labor and materials furnished in the spinning, throwing, manufacturing, bleaching, mercerizing, dyeing, printing, finishing or otherwise processing of cotton, wool, silk, artificial silk or synthetic fibers, or of leather goods or hides, or of goods of which cotton, wool, silk, artificial silk or synthetic fibers form a component part and the processing of wood, metals, paper, paperboard, plastic and plastic components and the processing of any material for use in electrical components and assembly of same covering the addition of materials and labor furnished in printing, cutting, milling, extruding, combining and sewing, as against goods in the lienor’s possession, shall extend to any unpaid balance of account for work, labor and materials furnished in the course of any such process in respect of any other such goods of the same owner whereof the lienor’s possession has terminated. The lien created hereby shall have priority over any title, lien, interest or encumbrance of any owner and shall not be surrendered or waived except by express written agreement of the parties involved. The word “owner”, as used in this and in the following section, shall include a factor, consignee or other agent intrusted with the possession of the goods held under said lien or of a bill of lading consigning the same to him with authority to sell the same, and delivered by such factor, agent or consignee to the lienor for the purposes aforesaid.
OTHER LIENS Chapter 255: Section 31B. Spinners and others; enforcement Section 31B. If any part of the amount for which goods are held under said lien remains unpaid for a period of ten days after the earliest item of said amount becomes due and payable, the lienor may sell said goods at public auction, first publishing a notice of the time and place of said sale once in each of two successive weeks in a newspaper published in the town, if any, otherwise in the county, in which said goods are situated, the last publication to be not less than five days prior to the sale and, if the residence or business address of the owner of said goods is known or can be ascertained, sending by registered mail a copy of such notice to said owner at such address at least five days before the day of sale; provided, that if said goods are readily divisible, no more thereof shall be so sold than is necessary to discharge the underlying indebtedness and cover the expenses of the sale. The proceeds of said sale shall be applied to the payment of said indebtedness and said expenses and the balance, if any, shall be paid to the owner or person entitled thereto. The remedy herein provided to enforce said lien shall be in addition to any other provided by law.
OTHER LIENS Chapter 255: Section 31C. Jewelers Section 31C. A person engaged in performing work upon any watch, clock, silverware or jewelry for a price shall have a lien upon such watch, clock, silverware or jewelry for the amount of any account that may be due for such work; provided, however, that he gives to the person delivering to him such watch, clock, silverware or jewelry a receipt for the same having printed thereon in clear legible type the following:“Items receipted pursuant to section thirty-one C of chapter two hundred and fifty-five of the General Laws, must be claimed within one year of such receipt, may be subject to sale”.
The place of business or person performing such work shall post this section in a clear and conspicuous manner that may be easily read by the public and a copy thereof shall be made available upon request to any person delivering a watch, clock, silverware or jewelry. Such lien shall also include the value or agreed price, if any, of all materials furnished by the lienor in connection with such work, whether added to such article or articles or otherwise. If any such account remains unpaid for one year after the completion of the work, the lienor may, upon thirty days’ notice in writing to the owner specifying the amount due and informing him that payment of such amount within thirty days will entitle him to redeem the article or articles covered by such lien, sell the same at public or bona fide private sale to satisfy the account. The proceeds of the sale, after paying the expenses thereof, shall be applied in satisfaction of the indebtedness secured by such lien and the balance, if any, shall be paid over to the owner. Such notice may be served by mail, directed to the owner’s last known address, or, if the owner or his address be unknown, it may be posted in two public places in the town where the property is located. The remedy herein provided to enforce such lien shall be in addition to any other provided by law.
OTHER LIENS Chapter 255: Section 31D. Articles of clothing or household goods; cleaning or storing Section 31D. Any person engaged in cleaning, pressing, glazing, washing, dyeing or performing similar work on articles of clothing or household goods, or, with or without furnishing materials or supplies, in making alterations or repairs thereon, or placing any of such articles in storage at the request of the owners thereof, for a price shall have a lien upon any such articles coming into his possession for such purposes for the amount of any account that may be due for such work or storage. Such lien shall also include the value or agreed price, if any, of all materials furnished by the lienor in connection with such work, or storage, whether added to such article or articles or otherwise. If any such account remains unpaid for ninety days after the completion of the work, or after the expiration of the agreed term of storage, if any, or in the absence of such agreement, after the expiration of one hundred and twenty days from the date of storage, the lienor, upon notice in writing to the owner specifying the amount due and informing him that payment of such amount within thirty days will entitle him to redeem the article or articles covered by such lien, may, at the expiration of thirty days from the date of said notice, give said article or articles to a duly organized charitable corporation, or sell the same or any part thereof, at public or bona fide private sale to satisfy the account. The proceeds of the sale, after paying the expenses thereof, shall be applied in satisfaction of the indebtedness secured by such lien, and the balance, if any, shall be paid over to the owner on demand. Such notice may be served by mail, directed to the owner’s last known address, or, if the owner’s address be unknown, it may be posted in two public places in the town where he resided at the time such articles were delivered to the lienor. The word “owner” as used herein shall mean the person causing such articles to come into the possession of the lienor. The remedy herein provided to enforce such lien shall be in addition to any other provided by law.
OTHER LIENS Chapter 255: Section 31E. Aircraft facilities; aircraft repairs; filing of lien Section 31E. Persons, including but not limited to the commonwealth and any department, commission, division, agency, or branch thereof, maintaining public landing, parking, storage, and tie-down facilities for the landing, parking, storage, and tie-down of aircraft brought to their premises on an airport or placed in their care by or with the consent of the owners thereof, shall have a lien upon such aircraft for proper charges due them for the landing, parking, storage, and tie-down and care of the same, which lien may be enforced as provided in sections twenty-six to thirty-one, inclusive.
Any person who lawfully repairs an aircraft within the commonwealth shall have a lien upon such aircraft for proper charges due to him, which lien may be enforced as provided in sections twenty-six to thirty-one, inclusive.
Any person entitled to a lien under this section, shall within sixty days after last furnishing of labor, money, material or supplies for the production of, altering or repairing of said personal property, file in the office of the federal aviation administration aircraft registry, a statement in writing verified by oath, showing the amount of labor, money, material or supplies furnished for the producing, storage, parking, servicing, altering or repairing of said personal property, the name of the person for, and by whom labor, money, material or supplies, was furnished, and specifying the registration number of said aircraft. Unless the person entitled to such lien shall file such statement within the time aforesaid, he shall be deemed to have waived his rights thereto; provided, however, that the lien provided for in this section shall not attach to any personal property after it has been purchased by an innocent purchaser for value, and has passed into his possession unless the lien shall have been filed with the federal aviation administration aircraft registry before the property was purchased by such purchaser, or he shall have received written notice, from the party entitled to the lien, of his intention to file the same.
OTHER LIENS Chapter 255: Section 31F. Paintings, photographs and other personal property Section 31F. Any person engaged in performing work upon any painting, photograph or other piece of personal property for a price shall have a lien upon such painting, photograph or other piece of personal property for the amount of any account that may be due for such work; provided, however, that he gives to the person delivering to him such painting, photograph or other piece of personal property a receipt for the same having printed thereon in clear legible type the following:“These items are receipted pursuant to the provisions of sections thirty-one B and thirty-one F of chapter two hundred and fifty-five of the General Laws and must be claimed within one year of such receipt or such items may then be subject to sale”.
The place of business or person performing such work shall post this section in a clear and conspicuous manner so that it may be easily read by the public and a copy thereof shall be made available upon request to any person delivering a painting, photograph or other piece of personal property. The lien described in this section shall include the value or agreed price, if any, of all materials furnished by the lienor in connection with such work, whether added to such article or otherwise. If any such account remains unpaid for one year after the completion of the work, the lienor may give thirty days’ notice in writing to the owner specifying the amount due and informing him that failure to make payment of such amount within said thirty days shall entitle the lienor to sell the article covered by such lien, at public or bona fide private sale to satisfy the account. Such notice may be served by mail, directed to the owner’s last known address or, if the owner or his address be unknown, it may be posted in two public places in the town where any such property is located. The proceeds of the sale, after paying the expenses thereof, shall be applied in satisfaction of the indebtedness secured by such lien. The balance of the proceeds, if any, shall be paid over to the owner. The remedy herein provided to enforce such lien shall be in addition to any other provided by law.
OTHER LIENS Chapter 255: Section 31G. Molders; lien on customer dies, molds, forms, engraving plates, original art or patterns Section 31G. (a) As used in this section, the words “customer” and “molder” shall be as defined in section 320 of chapter 94.
(b) Molders shall have a lien, dependent on possession, on all dies, molds, forms, engraving plates, original art or patterns in their hands belonging to a customer, for the balance due them from the customer for any manufacturing or fabrication work, and in the value of all material related to the work. The molder may retain possession of the die, mold, form, engraving plate, original art or pattern until the charges are paid. The lien created hereby shall have priority over any title, lien, interest or encumbrance in the die, mold, form, engraving plate, original art or pattern and shall not be surrendered or waived except by express written agreement of the parties involved. The lien provided by this section shall not apply if within 30 days of delivery of the product or products subject to such lien, the customer has provided the molder with written notice of defect and returned the products due to a defect.
(c) Before enforcing the lien for purposes of sale pursuant to this section, notice in writing shall be given to the customer whether delivered in hand or sent by registered mail to the last known address of the customer. This notice shall state that a lien is claimed for the damages set forth in or attached to the writing for manufacturing or fabrication work contracted or performed for the customer. This notice shall also include a demand for payment.
(d) If the molder has not been paid the amount due within 60 days after the notice has been received by the customer as provided in subsection (c), the molder may sell the die, mold, form, engraving plate, original art or pattern at a public auction. The sale may be subject to a customer’s rights under federal patent or copyright law.
(e) Before a molder may sell the die, mold, form, engraving plate, original art or pattern, the molder shall notify the customer by registered mail, return receipt requested. The notice shall include the following information:— (1) the molder’s intention to sell the die, mold, form, engraving plate, original art or pattern 30 days after the customer’s receipt of the notice; (2) a description of the die, mold, form, engraving plate, original art or pattern to be sold; (3) the time and place of the sale; and (4) an itemized statement for the amount due.
(f) If there is not a return of the receipt of the mailing or if the postal service returns the notice as being nondeliverable, the molder shall publish notice of the molder’s intention to sell the die, mold, form, engraving plate, original art or pattern in a newspaper of general circulation in the city or town where the customer’s last known place of business is located. The notice shall include a description of the die, mold, form, engraving plate, original art or pattern.
(g) The proceeds of said sale, after paying the expenses thereof, shall be applied to the payment of the indebtedness. Any excess shall be paid to any lien holder known to the molder at the time of the sale and any remainder to the customer, if the customer’s address is known, or to the state treasurer for deposit in the General Fund if the customer’s address is unknown to the molder at the time of the sale. The remedy herein provided to enforce the lien shall be in addition to any other remedy provided by law.
OTHER LIENS Chapter 255: Section 32. Dissolution of liens on personalty; manner Section 32. Liens claimed by public warehousemen and others upon personal property for storage thereof, by innkeepers, boarding house keepers and lodging house keepers upon the baggage and effects of guests, boarders or lodgers, by stable keepers and others for the boarding, keeping or pasturage of horses or other domestic animals, by persons maintaining public garages for the storage and care of motor vehicles, by agents, consignees and factors for advances, disbursements or expenses upon merchandise, by attorneys at law upon books, papers, documents or other personal property, and by any other persons for money due to them on account of work and labor, care and diligence, or money expended on or about personal property under a contract express or implied, may, except as otherwise provided in section thirty-four, be dissolved as provided in the following section.
OTHER LIENS Chapter 255: Section 33. Dissolution of liens on personalty; procedure Section 33. A person who owns or has an interest in any personal property upon which such a lien has been claimed may, at any time after a civil action is brought for its enforcement and before the property is lawfully sold to satisfy said lien, dissolve the lien upon his interest in the whole or any part of said property by giving bond to the person claiming the lien, with sufficient sureties, who shall be approved in writing by the claimant or by his attorney, or by a justice of a district court or master in chancery, conditioned to pay to such person within thirty days after the final judgment or order of sale of said property or the interest therein or part thereof for which said bond may be given, an amount fixed as the value of said interest or such part thereof as may be necessary to satisfy the amount for which said interest or part thereof may be subject to said lien. The property upon which the lien is to be dissolved shall be described in the bond. If the parties do not agree as to the value of the property or of the part to be released from said lien, the value may be determined in accordance with the provisions of sections one hundred and twenty-five and one hundred and twenty-six of chapter two hundred and twenty-three. If the said property, or the part to be released from said lien, consists of books, papers, documents or other similar property and the parties do not agree upon the amount for which said bond shall be given, it may be fixed in like manner at such amount as may be reasonable, giving due consideration to the amount for which said lien is claimed, and upon the delivery of the bond in accordance with the provisions hereof the lien upon the property described therein shall be dissolved. The person claiming a lien upon said personal property shall, upon demand therefor, furnish the person owning or having an interest in said property with a statement of the amount and reasons, or other considerations, for which the lien is claimed.
OTHER LIENS Chapter 255: Section 34. Termination of certain liens of bailees Section 34. The lien of a bailee of personal property exceeding twenty dollars in value to secure a claim for which he has a lien, shall, if the amount of such claim has been agreed upon or otherwise established, terminate upon tender, at any time before the property is lawfully sold to satisfy the lien, by the bailor or upon his behalf, or by any other person otherwise having the right of possession, of a bond in a penal sum equal to twice the amount of such claim, signed by a surety company qualified to act in the commonwealth, or by sureties approved by a justice of a district court or a master in chancery in the county where the property is held, and conditioned to pay the amount found due on such claim to the bailee within thirty days after final judgment, or order of sale of such property. In any suit to replevy any such property held to secure such a claim, a bond as described herein shall satisfy the requirements of section eight of chapter two hundred and forty-seven.
OTHER LIENS Chapter 255: Section 35. Priority between certain liens Section 35. As against a conditional vendor or lessor, or person claiming under him, the lien of a bailee of the vendee or lessee or person claiming under him on property exceeding twenty dollars in value, for consideration furnished, without actual notice of the conditional sale or lease, shall prevail; except that the lien of such a bailee on property delivered to him subsequent to the breach of a condition of the sale or lease shall not prevail if the conditional vendor or lessor or person claiming under him makes demand in writing on the bailee for the property within ninety days from the date of the bailment.
OTHER LIENS Chapter 255: Section 36. Recovery of personalty held under lien Section 36. If personal property exceeding twenty dollars in value is detained from the owner, or person otherwise entitled to its possession, under the claim of a lien, and the contract under which the alleged claim arose did not specifically state in writing the aggregate amount of charges to accrue for the services or materials to be furnished, the owner or such other person may cause the said property to be replevied in the manner and subject to the provisions set forth in sections seven to twenty-two, inclusive, of chapter two hundred and forty-seven, so far as the same may be applicable, except as is otherwise provided in the three following sections.
OTHER LIENS Chapter 255: Section 37. Bond; hearing on sufficiency of sureties Section 37. Before the officer serving the writ delivers the goods to the plaintiff he shall take from the plaintiff, or from a person acting in his behalf, a bond payable to the defendant in such sum and with such surety or sureties as may be satisfactory to the defendant, or as may be approved by a justice of a district court or a master in chancery in the county where the action is brought. If the sureties are to be so approved, the officer who serves the writ shall give written notice to the defendant or to the person from whose custody the property has been taken, stating the time and place of hearing thereon and the names and residences of the proposed sureties, allowing not less than one hour before the time appointed for the hearing and at the rate of one hour additional for each mile of travel. The amount of the bond required shall not exceed twice the sum for which a lien is claimed by the defendant. If the defendant or his agent or attorney does not appear in person, and does not state in writing the amount of his claim, no bond shall be required.
OTHER LIENS Chapter 255: Section 38. Trial of claim Section 38. If the court finds that the defendant has a lien on the property but that the defendant is not otherwise entitled to possession of the property, judgment shall be rendered for the defendant for the amount due under the contract, together with, or deducting, costs as determined by the following section. Upon payment of this amount to the defendant the bond provided for in the preceding section shall be held satisfied, and shall be delivered up to the plaintiff.
OTHER LIENS Chapter 255: Section 39. Costs Section 39. In actions of replevin brought under section thirty-six, costs shall be taxed against the plaintiff in cases where the court decides that the claim of the defendant for which he asserted a lien was no greater than the amount due under the contract. In all other cases costs shall be taxed against the defendant.
OTHER LIENS Chapter 255: Section 39A. Vehicles; sale for storage; procedure Section 39A. Any motor vehicle removed from the scene of an accident and placed for storage in the care of a garage, which in this section shall also include a parking lot or other place for the storage of motor vehicles, by a member of the state police force, by a member of the metropolitan district police, by a member of the police force of any city or town or by any inspector, supervisor, investigator, examiner or instructor appointed by the registrar of motor vehicles under section twenty-nine of chapter ninety, shall be so stored at the prevailing rates. At the time such motor vehicle is so placed the officer or person placing it shall furnish the owner or operator of such garage the name and address of the registered owner of said motor vehicle; and if such information is not then available, said officer or person shall obtain such information and forthwith notify in writing the said owner or operator.
Upon receipt of such information the owner of the garage shall notify the registered owner of the motor vehicle by registered mail, return receipt requested, that such motor vehicle has been placed in his care as provided by this section, and shall inform him of the storage rates therefor, and shall inquire if he is to continue to hold the motor vehicle subject to such storage rates.
If the registered owner of the motor vehicle assents to the continued storage of such motor vehicle, the owner of the garage shall continue to hold said motor vehicle in storage and shall have a lien thereon, as provided in section twenty-five.
If the registered owner of the motor vehicle fails to answer said notice within twenty-one days after receipt thereof, the motor vehicle shall continue to be stored at the prevailing rates.
If, after the expiration of sixty days from the date when the vehicle was brought to the garage or placed in the care of the owner of said garage, the owner of the motor vehicle has not claimed said vehicle, the owner of the garage may give notice to the owner by registered mail at his last known place of abode stating the amount of the storage charges and informing him that if the vehicle is not claimed within twenty-one days the vehicle will be sold. If the owner does not claim the vehicle within said twenty-one days, the owner of the garage may sell said motor vehicle at public or private sale after publishing notice of such sale for three successive weeks in a newspaper published or having a circulation in the city or town in which the property is located; provided that he shall notify the chief of police in the city or town in which the garage is located at least five days prior to such sale that the vehicle is to be sold. Upon such sale the owner of the garage may deduct therefrom his charges for storage and the costs of sending notices and of holding the sale, and shall furnish the registered owner of such motor vehicle a statement of the amount received at such sale, together with the amount of his charges and costs, and the balance, if any. If the owner of the garage knows the address of the registered owner of said motor vehicle he shall pay such balance to him; if not, he shall deposit the same with the clerk of the district court who shall give him a receipt therefor and deposit said balance in a savings bank in the name of the justice of the district court in trust for said owner of the motor vehicle.
OTHER LIENS Chapter 255: Section 39B. Repealed, 1983, 674 OTHER LIENS Chapter 255: Section 40 to 47. Repealed 1957, 765, Sec. 2 Chapter 255: Section 7D. Interest of landlord in crops; subordination of liens; assignment or agreement concerning Section 7D. No assignment of, or agreement affecting, the rights or interest of a landlord or owner of real property, occupied by a tenant or person planting on shares, in crops growing or to be grown on such real property, or agreement for the subordination of a prior lien or encumbrance on real or personal property, shall be valid except as between the parties thereto unless and until recorded or registered as hereinafter provided. Each such instrument affecting real property shall be recorded or registered in the registry of deeds for each district in which any portion of such real property is situated, and each such instrument relative to the subordination of a prior lien or encumbrance upon personal property shall be recorded in each office where the instrument subordinated is recorded. A reference to the record of any deed or other instrument affected or subordinated contained in any instrument recorded or registered under authority of this section shall be noted upon the margin of each record of such deed or other instrument.
Chapter 255: Section 7E to 11. Repealed, 1957, 765, Sec. 2 Section 1. In this chapter, unless the context otherwise requires, the following words shall have the following meanings:—“Commissioner”, the commissioner of banks.
“Finance charge”, the cost of credit determined in accordance with the provisions of section four of chapter one hundred and forty D.
“Holder”, the retail seller of the motor vehicle under or subject to a retail instalment contract, or, if the contract is purchased by a financing agency or other assignee, the sales finance company or other assignee.
“Motor vehicle”, any self-propelled, motored device in, upon or by which any person is, or may be, transported or drawn upon a highway and which is used or bought for use primarily for personal, family or household purposes. The term does not include self-propelled tractors, trucks other than those purchased for personal or family non-business use, all commercial trailers and semitrailers, buses, earth-moving and construction machinery or equipment, power shovels, road building machinery or equipment, implements of husbandry and other agricultural machinery or equipment, or machinery or equipment not designed primarily for highway transportation but which may incidentally transport persons on a highway, or devices which move upon or are guided by a track, or travel through the air.
“Retail buyer” or “buyer”, a person who buys or agrees to buy a motor vehicle from a retail seller for use primarily for personal, family or household purposes and who executes a retail instalment contract in connection therewith, or any legal successor in interest to such person, notwithstanding that he may have entered into one or more extension or refinancing agreements.
“Retail instalment contract” or “contract”, an agreement, signed by the buyer in this state, pursuant to which the title to, the property in or a lien upon a motor vehicle, which is the subject matter of a retail instalment sale, is retained or taken by a retail seller from a retail buyer as security, in whole or in part, for the buyer’s obligation. The term includes a chattel mortgage, a conditional sales contract and a contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of the motor vehicle upon full compliance with the terms of the contract.
“Retail instalment sale” or “sale”, a sale of a motor vehicle by a retail seller to a retail buyer for a total sale price payable in two or more instalments, payment of which is secured by a retail instalment contract.
“Retail seller” or “seller”, a person who sells a motor vehicle to a retail buyer under or subject to a retail instalment contract.
“Sales finance company”, (1) a bank as defined in section one of chapter one hundred and sixty-seven, a national banking association, (2) any person engaged, in whole or in part, in the business of purchasing retail instalment contracts from one or more retail sellers and (3) a retail seller engaged, in whole or in part, in the business of holding retail instalment contracts acquired from retail buyers. The term “sales finance company” does not include the pledgee of an aggregate number of such contracts to secure a bona fide loan thereon.
unemployment insurance charges; prepayment; refunds; death benefits; disclosure statements; violations Section 10. The amount, if any, included for insurance on the motor vehicle purchased by the holder of the retail instalment contract, shall not exceed the applicable premiums chargeable in accordance with the rates filed with the commissioner of insurance. If dual interest insurance on the motor vehicle is purchased by the holder, it shall, within thirty days after execution of the retail instalment contract, send or cause to be sent to the buyer a copy of the policy or policies of insurance, written by an insurance company authorized to do business in the commonwealth. The buyer shall have the privilege of purchasing such insurance from an agent or broker of his own selection, but in such case the inclusion of the insurance premium in the retail instalment contract shall be optional with the seller. If the buyer selects his own licensed agent or broker, there shall be no obligation on the seller or sales finance company to forward a copy of the policy or policies to the buyer.
In the event the charge or any portion thereof for life insurance under a policy issued pursuant to clause (c) of the first paragraph of section one hundred and thirty-three of chapter one hundred and seventy-five, or for accident and health insurance under a policy issued pursuant to clause (j) of the first sentence of subdivision (A) of section one hundred and ten of chapter one hundred and seventy-five or for involuntary unemployment insurance under a policy issued pursuant to clause (a) of section one hundred and seventeen D of chapter one hundred and seventy-five, which unless otherwise authorized shall be the only types of insurance authorized in connection with a retail installment contract, is paid by the buyer or buyers to the seller, it shall not be deemed to constitute a charge in violation of section fourteen.
The seller may make a charge for said life insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said seller pursuant to the provisions of section one hundred and seventeen C of chapter one hundred and seventy-five. The amount of said insurance shall at no time exceed the greater of the scheduled or actual amount owing on the contract exclusive of unearned finance charges. Said charge may be collected either as a single premium on scheduled insured balances or periodically on actual monthly insured balances.
The seller may make a charge for said accident and health insurance or said involuntary unemployment insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said seller pursuant to the provisions of said section one hundred and seventeen C or section one hundred and seventeen D of said chapter one hundred and seventy-five. Said charge may be collected either as a single premium on scheduled insured balances or periodically on outstanding balance basis, using a monthly term rate that is actuarially consistent with the applicable single premium rate filed with said commissioner, which monthly rate shall be applied each month to the sum of the remaining insured monthly benefits. For interest bearing contracts, other than pre-computed contracts, a uniform monthly rate filed with said commissioner may be applied to the remaining monthly debt balances of all insured contracts, exclusive of unearned finance charges, which uniform monthly rate shall produce, for the aggregate of all said insured contracts, an aggregate premium that is actuarially consistent with the aggregate premium that would result from using said applicable single premium rates filed with said commissioner applied to the total of the monthly benefits on all said insured contracts. All group accident and health insurance policies shall have a waiting period of thirty days and shall have benefits which are not retroactive. No group involuntary unemployment insurance policy shall have a waiting period in excess of thirty-one days.
In the event of prepayment of the contract, there shall be a refund of any unearned charges for said life insurance or accident and health insurance or involuntary unemployment insurance computed on a method which is at least as favorable to the buyer or buyers as the actuarial method, which for single premiums shall be defined as a refund of unearned premium equal to the premium cost of coverage equal to the remaining scheduled benefits for a term equal to the remaining period from the date of said prepayment to the originally scheduled termination date of coverage, computed at the schedule of rates in effect when the charge for said insurance was made. If said prepayment is made other than on an installment due date it shall be deemed to have been made on the first installment due date if said prepayment is made before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of said prepayment. The holder of the contract shall refund said unearned charges in the event of said prepayment.
The amount of death benefit payable shall be computed as of the date of death and shall, subject to any dollar limit specified in the group policy, include not less than the equivalent of six past due monthly payments on the contract if and to the extent that payments are past due whether from delinquency, deferral, extension or other reason. No anticipated delinquency value shall be included in the amount of coverage on which said life insurance premiums are calculated. In the computation of said benefit, the assumed amount of said insurance shall not be less than the lesser of (1) the maximum amount of said insurance specified in the group policy, or (2) the actual outstanding principal balance of the indebtedness including the equivalent of up to six past due monthly payments if and to the extent that payments are past due. Notwithstanding the previous sentence, in the event an excess charge is made for said insurance, said amount of death benefit shall at no time be less than the amount for which a charge has been paid by the insured.
Every disclosure statement under the provisions of chapter one hundred and forty D involving said life insurance or accident and health insurance or involuntary unemployment insurance issued pursuant to paragraphs two to eight, inclusive, of this section shall contain all or part of the following language, corresponding to the types of insurance offered, printed in ten point boldface type:YOU CANNOT BE DENIED CREDIT SIMPLY BECAUSE YOU CHOOSE NOT TO BUY CREDIT INSURANCE. CREDIT LIFE INSURANCE AND CREDIT ACCIDENT AND HEALTH INSURANCE AND CREDIT INVOLUNTARY UNEMPLOYMENT INSURANCE ARE NOT REQUIRED TO OBTAIN CREDIT. INSURANCE WILL NOT BE PROVIDED UNLESS YOU SIGN AND AGREE TO PAY THE ADDITIONAL CHARGE.
The enrollment for said insurance shall not be a condition of obtaining financing nor shall it be a condition of entering into a retail installment contract. The denial of credit for failure to enroll for said insurance shall constitute a violation of chapter ninety-three A and chapter one hundred and seventy-six D.
Said involuntary unemployment insurance shall not be offered in connection with a consumer credit transaction subject to this section until the credit decision has been made and communicated to the credit applicant; provided, however, nothing in this sentence shall prohibit making pamphlets available to credit applicants, responding to questions by credit applicants concerning said insurance, or providing credit applications which contain a written offer of insurance to credit applicants.
Said paragraphs two to eight, inclusive, shall not apply to insurance for which no identifiable charge is made to the buyer or buyers.
Section 11. The holder of a retail installment contract may, if the contract so provides, collect a delinquency and collection charge on each installment in default for a period of not less than fifteen days in an amount not in excess of five percent of each installment or five dollars, whichever is less, and assess and collect a charge, not to exceed ten dollars, for any check, draft or order for the payment of money submitted in accordance with said contract which is returned unpaid or not honored by a bank or other depository.
exceptions; buyer’s written acknowledgment Section 12. No retail instalment contract shall be signed by any party thereto when it contains blank spaces to be filled in after it has been signed, except that, if delivery of the motor vehicle is not made at the time of the execution of the contract, the identifying numbers or marks of the motor vehicle or similar information, and the due date of the first instalment, may be inserted in the contract after its execution. The buyer’s written acknowledgment, conforming to the requirements of section thirteen, of delivery of a copy of a contract shall be conclusive proof of such delivery and of compliance with this section in any action or proceeding by or against an assignee of the contract without knowledge to the contrary when he purchases the contract.
deliver; effect; cancellation of contract Section 13. The seller shall deliver to the buyer, or mail to him at his address shown on the contract, a copy of the contract signed by the seller. If the seller fails to deliver or mail to the buyer on or before the time of the delivery of the motor vehicle a copy of the contract signed by the seller, the buyer shall have the right to refuse to take delivery of the motor vehicle and shall be entitled to receive an immediate refund of all payments made and redelivery of the motor vehicle or vehicles traded in to the seller on account or in contemplation of the contract, or if said motor vehicle or vehicles so traded in have been sold by the seller in a bona fide sale, which sale shall not take place for at least ten days unless the seller has delivered to the buyer a full and complete copy of the contract as required herein, the proceeds thereof, less the expenses incurred by the seller in connection with such sale including the cost of any repairs made to such property to make it ready for sale; provided, however, that if delivery of the motor vehicle is accepted by the buyer he shall have no further right of cancellation, but shall be entitled to the benefit of penalties otherwise provided for herein. The foregoing provisions shall not entitle a buyer to cancel an order or a contract or to receive any refund thereunder except under the circumstances set forth in the preceding sentence.
Section 14. A retail seller may charge, receive and collect for any new or used motor vehicle, a finance charge not in excess of an annual percentage rate of twenty-one per cent.
Such finance charge shall be computed on the amount financed as determined under chapter one hundred and forty D on contracts payable in successive monthly instalments substantially equal in amount.
On contracts providing for instalments extending for a period less than or greater than one year, the finance charge shall be computed proportionately. The finance charge may be computed on the basis of a full month for any fractional month period in excess of fifteen days.
When a retail instalment contract provides for unequal or irregular instalments, the finance charge shall be no more than the effective rate provided in this section, having due regard for the schedule of instalments.
The finance charge shall be inclusive of all charges incident to investigating and making the contract, and for the extension of the credit provided for in the contract and no fee, expense or other charge whatsoever shall be taken, received, reserved or contracted for except as provided in this section and in section eleven and section seventeen and for those items expressly provided for in the retail instalment contract as set forth in chapter one hundred and forty D.
instalment contract Section 15. After the payment of all sums for which the buyer is obligated under a retail instalment contract, the holder of such contract shall mail to the buyer at his last known address, good and sufficient instruments to indicate payment in full and to release all security in the motor vehicle.
Section 16. Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may pay in full at any time before maturity the debt of any retail installment contract, and in so paying such debt shall receive a refund credit thereon for such anticipation. Such refund credit shall be computed on a method which is at least as favorable to the buyer as the actuarial method, so-called. If the prepayment is made other than on an installment due date, it shall be deemed to have been made on the first installment due date if the payment is before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of prepayment. Where the amount of the credit for anticipation of payment is less than one dollar, no refund need be made.
refinancing; computation of rates; rebates Section 17. The holder of an instalment sale contract may, upon agreement with the buyer, defer the scheduled payment of all or part of any unpaid instalment payment or payments, or renew the unpaid total of payments of such contract. The agreement for such deferment or renewal shall be in writing and signed by the parties thereto.
For such renewal the holder may contract for and collect a refinance charge. Such refinance charge shall be computed on the amount obtained by adding to the unpaid total of payments of the contract the insurance cost incidental to refinancing, and by deducting any rebate computed in accordance with the provisions of section sixteen which may be due to the buyer for prepayment incidental to refinancing, at the rate of the finance charge in the original contract, for the term of the renewal contract, and subject to the provisions of this chapter governing computation of the original finance charge; provided, however, that the holder shall not be allowed the acquisition cost of twelve dollars and fifty cents.
For such deferment the holder may contract for and collect a deferment charge. Such deferment charge shall not exceed an amount equal to one per cent per month simple interest on the amount of the instalment or instalments, or part thereof, deferred for the period of deferment. Such period shall not exceed the period from the date when such deferred instalment or instalments, or part thereof, would have been payable in the absence of such deferment, to the date when such instalment or instalments, or part thereof, are made payable under the agreement for deferment; except that a minimum charge of one dollar for the period of deferment may be made in any case where the deferment charge, when computed at such rate, amounts to less than one dollar. Such agreement may also provide for the payment by the buyer of the additional cost to the holder of the contract of premiums for continuing in force, until the end of such period of deferment, any insurance coverages provided for in the contract. No deferment charge shall be made on any instalment for which a default charge has been made unless the default charge on such instalment is rebated in full. If a contract is prepaid in full during a deferment period the buyer shall receive, in addition to the refund required under section sixteen, the refund of that portion of the deferment charge applicable to any unexpired months of the deferment period.
Section 18. A sales finance company may purchase a retail instalment contract from a seller on such terms and conditions and for such price as may be mutually agreed upon; and no filing of the assignment, no notice to the buyer of the assignment, and no requirement that the seller be deprived of dominion over payments upon the contract or over the vehicle if repossessed by the seller, shall be necessary to the validity of a written assignment of a retail instalment contract as against creditors, subsequent purchasers, pledgees, mortgagees or encumbrancers of the seller.
Unless the buyer has notice of actual or intended assignment of a retail instalment contract, payment thereunder made by the buyer to the last known holder of such contract shall be binding upon all subsequent holders or assignees.
receipts for payments Section 19. Upon written request from the buyer, the holder of a retail instalment contract shall give or forward to the buyer a written statement of the dates and amounts of payments and the total amount unpaid under such contract. The buyer shall be entitled to only one such statement in any six-month period free of charge. The holder shall be entitled to the sum of fifty cents for each additional written statement requested by the buyer before supplying such additional written statement. A buyer shall be given a written receipt for each cash payment.
to buyer’s defenses against seller Section 19A. The holder of a retail installment contract or other person acting in his behalf, shall be subject to all defenses, real and personal, which the retail buyer may have against the retail seller thereof.
transfer Section 2. No person, other than a bank as defined in section one of chapter one hundred and sixty-seven, a national banking association, federal savings bank, federal savings and loan association, federal credit union, or any bank, trust company, savings bank, savings and loan association or credit union organized under the laws of any other state of the United States, shall engage in the business of a sales finance company without first obtaining from the commissioner a license to carry on said business in the city or town where the business is to be transacted as provided herein. The application for such license shall be in writing, shall contain such information as the commissioner may determine and shall be accompanied by an investigation fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven. The commissioner may reject any application for a license or any application for the renewal of a license if he is not satisfied that the financial responsibility, character, reputation, integrity and general fitness of the applicant and of the owners, partners or members thereof, if the applicant be a partnership or association, and of the officers and directors, if the applicant be a corporation, are such as to command the confidence of the public and to warrant the belief that the business for which the application for a license is filed will be operated lawfully, honestly and fairly. Such license shall be for a period of one year from November first. Each license shall plainly state the name of the licensee and the city or town with the name of the street and number, if any, of the place where the business is to be carried on, and shall be posted in a conspicuous place in the office where the business is transacted. The fee for such license shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven. If a licensee desires to carry on business in more than one place, he shall procure a license for each place where the business is to be conducted. Such license shall not be transferable nor assignable. Any change of location of an office of a licensee shall require the prior approval of the commissioner. Such request for relocation shall be in writing setting forth the reason or reasons for the request, and shall be accompanied by a relocation investigation fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven.
contract Section 20. A provision in a retail instalment contract (1) for confession of judgment, power of attorney therefor, or wage assignment; (2) for the subsequent inclusion of title to or a lien upon any goods, other than the motor vehicle which is the subject matter of the retail instalment sale or accessories therefor or special or auxiliary equipment used in connection therewith, or in substitution, in whole or in part, for any such accessory or special or auxiliary equipment, as security for payment of the deferred payment price; (3) whereby, in the absence of the buyer’s default, the holder may accelerate the maturity of any part or all of the total of payments; (4) whereby a seller or holder of the contract, or other person acting on his behalf, is authorized to enter the buyer’s premises unlawfully, or to commit any breach of the peace in the repossession of a motor vehicle; (5) whereby the buyer waives any right of action against the seller or holder of the contract, or other person acting on his behalf, for any illegal act committed in the collection of payments under the contract or in the repossession of the motor vehicle; (6) whereby the buyer executes a power of attorney appointing the seller or holder of the contract, or other person acting on his behalf, as the buyer’s agent in the collection of payments under the contract or in the repossession of the motor vehicle; or (7) whereby the seller is relieved from liability for any legal remedies which the buyer may have had against the seller under the contract, or any separate instrument executed in connection therewith, shall not be enforceable.
payment; curing of default Section 20A. (a) An agreement of the parties in a retail installment contract defining default is enforceable only to the extent that the default is material and consists of the buyer’s failure to make one or more installments as required by the agreement; or the occurrence of an event which substantially impairs the value of the collateral.
(b) After a default by a buyer under a consumer credit transaction, the secured creditor may not bring an action against the buyer or proceed against the collateral until he gives the buyer the notice described in this section. The notice so required shall be deemed to be delivered when delivered to the debtor or when mailed to the debtor at the debtor’s address last known to the creditor. If a buyer cures a default after receiving notice and again defaults, the creditor shall give another notice before bringing an action or proceeding against the collateral with respect to the subsequent default, but no notice is required in connection with a subsequent default if, within the period commencing on the date of the consumer credit transaction subject to this section and the date of the subsequent default, the debtor has cured a default after notice three or more times.
(c) The notice shall be in writing and shall be given to the buyer ten days or more after the default. The notice shall conspicuously state the rights of the buyer upon default in substantially the following form:—The heading shall read:—“Rights of Defaulting Buyer under the Massachusetts Motor Vehicle Installment Sales Act.
” The body of the notice shall read:—“You may cure your default in (describe transaction in a manner enabling buyer to identify it) by paying to (name and address of creditor) (amount due) before (date which is at twenty-one days after notice is mailed). If you pay this amount within the time allowed, you are no longer in default and may continue on with the transaction as though no default had occurred.
If you do not cure your default by the date stated above, the said creditor may sue you to obtain a judgment for the amount of the debt or, if applicable, may take possession of the collateral.
If the creditor takes possession of the collateral, if any, you may get it back by paying the full amount of your debt plus any reasonable expenses incurred by the said creditor if you make the required payment within twenty days after he takes possession.
”(d) During the twenty-one day period after delivery of the notice required by this section the creditor may not because of that default accelerate the unpaid balance of the obligation, bring action against the buyer, or proceed against the collateral.
(e) Unless the secured creditor has first notified the buyer that he has elected to accelerate the unpaid balance of the obligation because of default, brought action against the buyer, or proceeded against the collateral, the buyer may cure a default consisting of a failure to pay money by tendering the amount of all unpaid sums due at the time of tender, without acceleration, plus any unpaid delinquency or deferral charges. Such a cure shall restore the buyer to his rights under the agreement as though the defaults had not occurred subject to the provisions of subsection (b).
hearing; redemption; disposition; deficiency; insurance proceeds; determination of value Section 20B. (a) Subject to the provisions of this section and section 20A a secured creditor under a consumer credit transaction may take possession of collateral. In taking possession the secured creditor under a consumer credit transaction may proceed without a prior hearing only if the default is material and consists of the debtors failure to make one or more payments as required by the agreement or the occurrence of an event which substantially impairs the value of the collateral and only if possession can be obtained without use of force, without breach of peace and unless the debtor consents to an entry, at the time of such entry, without entry on property owned by or rented to the debtor.
(b) Except as provided in subsection (a) a creditor under a consumer credit transaction may proceed against collateral only after a prior hearing. In any proceeding where possession of the collateral is part of the relief sought by a holder no court shall allow a secured creditor to take possession of collateral until the right of the creditor to take possession has been determined at a hearing at which the buyer has an opportunity to be heard having been notified in writing of said hearing at least seven days in advance thereof.
(c) The buyer under a secured consumer credit transaction may redeem the collateral from the holder at any time within twenty days of the creditor’s taking possession of the collateral, or thereafter until the creditor has either disposed of the collateral, entered into a contract for its disposition, or gained the right to retain the collateral in satisfaction of the buyer’s obligation.
(d) The creditor may after gaining possession sell or otherwise dispose of the collateral. Unless displaced by the provisions of this section and section twenty A the rights and obligations of the parties, including the redemption and disposition of the collateral shall be governed by the provisions of Part 6 of Article 9 of chapter 106. Notwithstanding the provisions in Part 6 of Article 9 of chapter 106, if, in connection with a consumer credit transaction which involves an unpaid balance of two thousand dollars or less and which is at the time of default secured by a non-possessory security interest in consumer goods, the creditor takes possession of or accepts surrender of the collateral, the debtor shall not be liable for any deficiency. If the agreement between the creditor and debtor provides that the debtor is to obtain insurance protecting the collateral against fire, theft, collision or other hazards and naming the creditor as loss payee and if, prior to the repossession or surrender of the collateral, loss or damage occurs which would give rise to insurance proceeds under the terms of the policy in force, then nothing in this section shall be deemed to limit the creditor’s rights to so much of the insurance proceeds as does not exceed the fair market value of the collateral existing just prior to the loss or damage and, if insurance as required by the agreement is not in force at the time of the loss or damage, nothing in this section shall be deemed to limit the creditor’s rights in proceeding against any third party who is responsible for the loss or damage in the name of the debtor or otherwise. For the purposes of this section the unpaid balance of a consumer credit transaction shall be that amount which the debtor would have been required to pay upon prepayment.
(e) (1) If the unpaid balance of the consumer credit transaction at the time of default was two thousand dollars or more the creditor shall be entitled to recover from the debtor the deficiency, if any, resulting from deducting the fair market value of the collateral from the unpaid balance due and shall also be entitled to any reasonable repossession and storage costs, provided he has complied with all provisions of this section.
(2) In a proceeding for a deficiency the fair market value of the collateral shall be a question for the court to determine. Periodically published trade estimates of the retail value of goods shall, to the extent they are recognized in the particular trade or business, be presumed to be the fair market value of the collateral.
Section 20C. Any creditor obtaining possession of a motor vehicle under the provisions of this chapter shall, within one hour after obtaining such possession, notify the police department of the city or town in which such possession occurred, giving such police department a description of the vehicle involved.
Section 21. Whoever violates any provision of this chapter or any rule or regulation made thereunder by the commissioner shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both.
effect Section 22. A violation of sections nine to fourteen, inclusive, or eighteen to twenty, inclusive, by any person shall bar his recovery of any finance charge, delinquency or collection charge or refinancing charge on the retail instalment contract involved.
Section 23. Any waiver of the provisions of this chapter shall be unenforceable and void.
Section 24. If any provision of this chapter or the application thereof to any person or circumstance is held unconstitutional, the remainder of the section and the application of such provision to other persons or circumstances shall not be affected thereby.
Section 25. A transaction subject to the provisions of this chapter shall also be subject to the provisions of chapter one hundred and forty D and in the event of a conflict between the provisions of this chapter and said chapter one hundred and forty D, the provisions of said chapter one hundred and forty D shall control.
commissioner, accountant; preservation of business records; service of subpoena; annual report, failure to file, fine Section 3. The commissioner may prescribe from time to time such rules and regulations as he deems necessary and proper for carrying out the provisions of this chapter including, but not limited to, the granting of licenses and the renewal thereof, the conduct of examinations and investigations and the keeping of records by a licensee. Such rules and regulations may contain such classifications, differentiations or other provisions, and may provide for such adjustments and exceptions for a class of transactions as, in the judgment of said commissioner, are necessary or proper to carry out the purposes of this chapter to prevent circumvention or evasion thereof or to facilitate compliance therewith. Said commissioner may, when he deems it to be in the public interest, examine the affairs of a licensee and, for said purpose, shall have free access to the premises and all business records of such licensee, may require the attendance of and examine under oath any person and shall have the power to compel the production of all such business records. Said commissioner shall assess appropriate fees, as determined annually by the commissioner of administration pursuant to section three B of chapter seven, upon the licensee for any such examination, including expenses for necessary travel outside the commonwealth for the purpose of conducting such examinations. Said commissioner of banks may cause a number of examinations of any such business records to be made by an accountant whom he may select and the cost of any such examination shall be paid by the licensee whose records are so examined.
A licensee shall keep and use such business records in such form and at such location as said commissioner shall, by regulation, determine which shall enable said commissioner to determine whether such licensee is complying with the provisions of this chapter and any applicable rules and regulations and any other law, rule or regulation applicable to the conduct of the business for which it is licensed under this chapter. Such regulations may contain provisions for the suspension or revocation of licenses for violations hereof and for such records to be recorded, copied or reproduced by photographic, photostatic, microfilm, microcard, miniature photographic, electronic, including, but not limited to, optical imaging or other process which accurately reproduces or forms a durable medium for reproducing the original record or document or in any other form or manner authorized by the commissioner; provided, however, that nothing in this section shall be construed to permit any such licensee to destroy original records or documents. Each such licensee shall preserve all such business records for as long a period as said commissioner shall prescribe by regulation. Notwithstanding the provisions of any general or special law or the Massachusetts Rules of Civil Procedure to the contrary, service of a subpoena for business records upon a licensee, delivered to an office of such licensee located within the commonwealth, shall be deemed to have been served at the location, whether within or outside the commonwealth, where such original business records and documents are kept or maintained.
Each licensee shall annually, on or before April fifteenth, file a report with said commissioner containing such information as said commissioner may require concerning its business and operations during the preceding calendar year at each licensed place of business conducted by a licensee within the commonwealth. Any licensee neglecting to file such annual report or failing to amend the same within fifteen days after notice from the commissioner directing the same shall, unless such neglect or failure is due to justifiable cause and not to wilful neglect, pay to the commonwealth fifty dollars for each day during which such neglect or failure continues.
Section 4. The commissioner, or such other of his assistants as he may designate, may summon a licensee, or any of his agents or employees, and such other witnesses as he deems necessary, and examine them relative to their transactions, may require the production of books and papers and, for such purposes may administer oaths. Whoever, without justifiable cause, fails or refuses to appear and testify or to produce books and papers when so required, or obstructs the commissioner or his representatives in the performance of their duties, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both.
Section 5. If the commissioner refuses to issue a license, he shall notify the applicant of the denial, and within twenty days thereafter he shall enter upon his records a written decision and findings containing the reasons supporting the denial, and shall forthwith give written notice thereof by registered mail to the applicant. Within thirty days after the date of such notice the applicant may appeal from such denial to the superior court for the county of Suffolk, sitting in equity. The court shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said denial and, as justice and equity may require, affirm the same or order the commissioner to issue such license.
commissioner Section 6. The commissioner, if he has reason to believe that any person other than a licensee has violated any of the provisions of this act, shall have the power to make such investigations as he shall deem necessary, and, to the extent necessary for this purpose, he may examine such person and shall have the power to compel the production of all relevant books, records, accounts and documents.
The state police and the police of the cities or towns shall carry out the directions of the commissioner in enforcing the provisions of this chapter and any rules or regulations made hereunder by him. A violation of this chapter shall also be a violation of chapter ninety-three A.
Section 7. A license may be suspended or revoked by the commissioner on the following grounds:—(1) material misstatement in application for license; (2) failure to comply with the provisions of this chapter; (3) defrauding any retail buyer to the buyer’s damage; (4) fraudulent misrepresentation, circumvention or concealment by the licensee through whatever subterfuge or device of any of the material particulars or the nature thereof required to be stated or furnished to the retail buyer under this chapter.
If a licensee is a firm, association or corporation, it shall be sufficient cause for the suspension or revocation of its license that any officer, director or trustee of a licensed firm, association or corporation, or any member of a licensed partnership, has so acted or failed to act as would be cause for suspending or revoking a license to such party as an individual. Each licensee shall be responsible for the acts of any of his employees while acting as his agent, if such licensee after actual knowledge of said acts retained the benefits, proceeds, profits or advantages accruing from said acts or otherwise ratified said acts.
Section 8. No license shall be suspended or revoked except after hearing thereon by the commissioner or such of his assistants as he may designate. The commissioner shall give the licensee at least ten days’ written notice, in the form of an order to show cause, of the time and place of such hearing by registered mail addressed to the principal place of business in this commonwealth of such licensee. The said notice shall contain the grounds of complaint against the licensee. Any order suspending or revoking such license shall recite the grounds upon which the same is based. The order shall be entered upon the records of the commissioner and shall not be effective until after thirty days’ written notice thereof given after such entry forwarded by registered mail to the licensee at such principal place of business. No revocation, suspension or surrender of any license shall impair or affect the obligation of any lawful retail instalment contract acquired previously thereto by the licensee. Within thirty days after such suspension or revocation the person aggrieved thereby may appeal to the superior court for the county of Suffolk, sitting in equity. The court shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said suspension or revocation and, as justice and equity may require, affirm the same or order that the commissioner rescind it.
Section 9. A retail instalment contract shall be in writing and shall be signed by both the buyer and the seller and shall be completed as to all essential provisions prior to the signing of the contract by the buyer. The printed portion of the contract shall be in at least eight point type. The contract shall contain, conspicuously printed or written: (1) a specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case; and (2) the following notice: “NOTICE TO THE BUYER: 1. Do not sign this contract if any of the spaces intended for the agreed terms to the extent of then available information are left blank. 2. You are entitled to an exact copy of the contract you signed. 3. Under the law, you have the following rights, among others:—(a) to pay off in advance the full amount due and to obtain a partial refund of the finance charge; (b) to redeem the property if repossessed for a default; (c) to require, under certain conditions, a resale of the property if repossessed”.
The contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of buyer as specified by the buyer, and a description of the motor vehicle, including its make, year model, model and identification numbers or marks.
Section 1. In this chapter unless the context otherwise requires, the following words shall have the following meanings:1. “Insurance agent” and “insurance broker”, respectively, an insurance agent or insurance broker duly licensed as such under chapter one hundred and seventy-five.
2. “Person”, an individual, corporation, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity, except an insurance company authorized or approved to do business within the commonwealth.
3. “Premium finance agency”, a person engaged, in whole or in part, in the business of acquiring premium finance agreements from insurance agents or brokers or other premium finance agencies, and an insurance agent or broker who is licensed as a premium finance agency and who holds premium finance agreements made and delivered by insureds to him or his order and any property and casualty insurance agent or broker, who provides premium financing only to his own customers for purposes of financing the payment of premiums on contracts of insurance, which contracts of insurance are exclusively limited to commercial policies.
4. “Premium finance agreement”, a promissory note or other written agreement by which an insured promises or agrees to pay to, or to the order of, an insurance agent or broker the amount advanced or to be advanced under the agreement to an authorized insurer or to an insurance agent or broker in payment of premiums on an insurance contract, together with a charge as authorized and limited by law. If the premium finance agreement is payable to, or to the order of, an insurance agent or broker not licensed as a premium finance agency, payments under the agreement must be payable at the office of a premium finance agency.
5. “Commissioner”, the commissioner of banks.
application; subsidiaries Section 11. The fee for an insurance agent or an insurance broker in his application for a license under section three shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven and shall be based upon the aggregate unpaid balance of all premium finance agreements executed or purchased by the agent or broker during the forthcoming year.
Each application for a license hereunder shall be in writing and in the form prescribed by the commissioner, and shall be accompanied by an investigation fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven, said amount to be credited to the license fee if a license is granted.
If an insurance agent or an insurance broker conducts an insurance premium finance agency business under a subsidiary or different company name, it shall be considered that said business is subject to the license fee provisions of section three.
premium finance agreement Section 12. No premium finance agency, and no employee of such an agency shall pay, allow or offer to pay or allow in any manner whatsoever to an insurance agent or broker or any employee of an insurance agent or broker, or to any other person, any rebate whatsoever, either from the charge for financing specified in the premium finance agreement or otherwise, or shall give or offer to give any valuable consideration or inducement of any kind directly or indirectly, other than an article of merchandise not exceeding one dollar in value which shall have thereon the advertisement of the premium finance agency; andA filing of a premium finance agreement shall not be necessary to perfect the validity of such an agreement as a secured transaction as against creditors, subsequent purchasers, pledgees, incumbrancers, successors or assigns of the insured.
Section 13. A premium finance agreement shall be in writing on a form approved by the commissioner and shall comply with the provisions of this chapter.
Section 14. A premium finance agency shall not, except as otherwise provided by law, take or receive from an insured greater charges than are provided by section one hundred and sixty-two B of chapter one hundred and seventy-five, and the regulations issued thereunder, which charges shall commence as of the date from which the insurance company requires payment of the premium and payment was made to the insurance company for the financed policy, or the effective date of the policy, whichever is earlier.
involuntary unemployment insurance charges; prepayment; refunds; death benefits; disclosure statements; violations Section 14A. In the event the charge or any portion thereof for life insurance under a policy issued pursuant to clause (c) of the first paragraph of section one hundred and thirty-three of chapter one hundred and seventy-five or for accident and health insurance under a policy issued pursuant to clause (j) of the first sentence of subdivision (A) of section one hundred and ten of chapter one hundred and seventy-five or for involuntary unemployment insurance under a policy issued pursuant to clause (a) of section one hundred and seventeen D of chapter one hundred and seventy-five, which unless otherwise authorized shall be the only type of insurance authorized in connection with a premium finance agreement, is paid by the insured or insureds to the agent, broker or his assignee, it shall not be deemed to constitute a charge in violation of section fourteen.
The agent, broker or his assignee may make a charge for said life insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said agent, broker or assignee pursuant to the provisions of section one hundred and seventeen C of chapter one hundred and seventy-five. The amount of said insurance shall at no time exceed the greater of the scheduled or actual amount owing on the agreement exclusive of unearned finance charges. Said charge may be collected either as a single premium on scheduled insured balances or periodically on actual monthly insured balances.
The agent, broker or his assignee may make a charge for said accident and health insurance or said involuntary unemployment insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said agent, broker or assignee pursuant to the provisions of said section one hundred and seventeen C or section one hundred and seventeen D of said chapter one hundred and seventy-five. Said charge may be collected either as a single premium on scheduled insured balances or periodically on outstanding balance basis, using a monthly term rate that is actuarially consistent with the applicable single premium rate filed with said commissioner, which monthly rate shall be applied each month to the sum of the remaining insured monthly benefits. For interest bearing agreements, other than pre-computed agreements, a uniform monthly rate filed with said commissioner may be applied to the remaining monthly agreement balances of all insured agreements, exclusive of unearned finance charges, which uniform monthly rate shall produce, for the aggregate of all said insured agreements, an aggregate premium that is actuarially consistent with the aggregate premium that would result from using said applicable single premium rates filed with said commissioner applied to the total of the monthly benefits on all said insured loans. All group accident and health insurance policies shall have a waiting period of thirty days and shall have benefits which are not retroactive. No group involuntary unemployment insurance policy shall have a waiting period in excess of thirty-one days.
In the event of prepayment of the agreement, there shall be a refund of any unearned charges for said life insurance or accident and health insurance or involuntary unemployment insurance computed on a method which is at least as favorable to the insured or insureds as the actuarial method, which for single premiums shall be defined as a refund of unearned premium equal to the premium cost of coverage equal to the remaining scheduled benefits for a term equal to the remaining period from the date of said prepayment to the originally scheduled termination date of coverage, computed at the schedule of rates in effect when the charge for said insurance was made. If said prepayment is made other than on an installment due date it shall be deemed to have been made on the first installment due date if said prepayment is made before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of said prepayment.
The amount of death benefit payable shall be computed as of the date of death and shall, subject to any dollar limit specified in the group policy, include not less than the equivalent of six past due monthly payments on the agreement if and to the extent that payments are past due whether from delinquency, deferral, extension or other reason. No anticipated delinquency value shall be included in the amount of coverage on which said life insurance premiums are calculated. In the computation of said benefit, the assumed amount of said insurance shall not be less than the lesser of (1) the maximum amount of said insurance specified in the group policy, or (2) the actual outstanding principal balance of the indebtedness including the equivalent of up to six past due monthly payments if and to the extent that payments are past due. Notwithstanding the previous sentence, in the event an excess charge is made for said insurance, said amount of death benefit shall at no time be less than the amount for which a charge has been paid by the insured.
Every disclosure statement under the provisions of chapter one hundred and forty D involving said life insurance or accident and health insurance or involuntary unemployment insurance issued pursuant to this section shall contain all or part of the following language, corresponding to the types of insurance offered, printed in ten point boldface type:YOU CANNOT BE DENIED CREDIT SIMPLY BECAUSE YOU CHOOSE NOT TO BUY CREDIT INSURANCE. CREDIT LIFE INSURANCE AND CREDIT ACCIDENT AND HEALTH INSURANCE AND CREDIT INVOLUNTARY UNEMPLOYMENT INSURANCE ARE NOT REQUIRED TO OBTAIN CREDIT. INSURANCE WILL NOT BE PROVIDED UNLESS YOU SIGN AND AGREE TO PAY THE ADDITIONAL CHARGE.
The enrollment for said insurance shall not be a condition of obtaining financing nor shall it be a condition of entering into a premium finance agreement. The denial of credit for failure to enroll for said insurance shall constitute a violation of chapter ninety-three A and chapter one hundred and seventy-six D.
Said involuntary unemployment insurance shall not be offered in connection with a consumer credit transaction subject to this section until the credit decision has been made and communicated to the credit applicant; provided, however, nothing in this sentence shall prohibit making pamphlets available to credit applicants, responding to questions by credit applicants concerning said insurance, or providing credit applications which contain a written offer of insurance to credit applicants.
Each insurer writing said involuntary unemployment insurance shall file with the commissioner all relevant marketing materials that will be distributed to consumers at the time that the application for credit is taken. Said materials will be subject to the review and approval of the commissioner.
This section shall not apply to insurance for which no identifiable charge is made to the insured or insureds.
Section 15. A premium finance agreement may provide for the payment by the insured of a delinquency, collection and cancellation charge as provided in section one hundred and sixty-two B of chapter one hundred and seventy-five, and the regulations issued thereunder, and for the assessment and collection of a charge, not to exceed ten dollars, for any check, draft or order for the payment of money submitted in accordance with said agreement which is returned unpaid or not honored by a bank or other depository.
Section 16. No premium finance agreement shall contain any provision whereby(a) in the absence of default of the insured, the premium finance agency holding the agreement may, arbitrarily and without reasonable cause, accelerate the maturity of any part or all of the amount owing thereunder;(b) a power of attorney is given to confess judgment in this commonwealth; or(c) the insured relieves the insurance agent or broker or the premium finance agency holding the agreement from liability for any legal rights or remedies which the insured may otherwise have against him.
Section 17. Unless the insured has notice of actual or intended assignment of a premium finance agreement, payment thereunder by him to the last known holder of the agreement shall be binding upon all subsequent holders or assignees.
payment by insured Section 18. At any time after its execution, but not later than one year after the last payment thereunder, a premium finance agency holding a premium finance agreement shall, upon written request of the insured, give or mail to him a written statement of the dates and amounts of payments and the total amount, if any, unpaid thereunder. Such a statement shall be supplied once each year without charge; if any additional statement is requested the premium finance agency shall supply such statement at a charge not exceeding one dollar for each additional statement so supplied. An insured shall be given a receipt for a payment when made in cash.
After the payment of all sums for which an insured is obligated under a premium finance agreement the premium finance agency holding the agreement shall deliver, or mail to the insured at his last known address such one or more good and sufficient instruments as may be necessary to acknowledge payment in full and to release all interests in or rights to the insurance contracts, the premiums for which are advanced or are to be advanced under the agreement.
Section 19. Notwithstanding the provisions of any premium finance agreement to the contrary, any insured may pay it in full at any time before maturity of the final installment of the balance thereof, and in so paying such balance shall receive a refund credit thereon for such anticipation. Such refund credit shall be computed on a method which is at least as favorable to the insured as the actuarial method, so-called. If the prepayment is made other than on an installment due date, it shall be deemed to have been made on the first installment due date if the payment is before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of prepayment. Where the amount of the credit for anticipation of payment is less than one dollar, no refund need be made. The details of application and the rules for partial prepayments shall be subject to the regulations issued under the provisions of section one hundred and sixty-two B of chapter one hundred and seventy-five.
Section 2. No person, except a credit union, a bank as defined in section 1 of chapter 167, a national banking association, or a federal savings and loan association, a federal savings bank, a sales finance company as defined in section 1 of chapter 255B, and a company licensed to carry on the business of making small loans, shall engage in the business of a premium finance agency unless licensed by the commissioner, as provided in section 3; provided, however, that no property and casualty insurance agent or broker, including an insurance agent or insurance broker conducting an insurance premium financing agency business under a subsidiary or different company name, who provides premium financing only to his own customers for purposes of financing payment of premiums on contracts of insurance, which contracts of insurance are exclusively limited to commercial insurance policies, shall be required to be licensed pursuant to this section or any other section of this chapter. Such license shall allow the holder to maintain only one office from which said business may be conducted, but more than one license may be issued to any person. Any change of location of an office of a licensee shall require the prior approval of the commissioner. Such request for relocation shall be in writing setting forth the reason or reasons for the request, and shall be accompanied by a relocation investigation fee of $50. If an applicant has more than one office, he may obtain a license for each office from which he intends to conduct said business.
Section 20. A premium finance agency may, upon agreement with the insured, extend the scheduled due date or defer the scheduled due date or defer the scheduled payment of all or of any part of any instalment or instalments payable thereunder. The agreement for such extension or deferment must be in writing and signed by the parties thereto. The premium finance agency may charge and contract for the payment of an extension or deferral charge by the insured and collect and receive the same, but such charge may not exceed an amount equal to one per centum per month simple interest on the amount of the instalment or instalments, or part thereof, extended or deferred for the period of extension or deferral. Such period shall not exceed the period from the date when such extended or deferred instalment or instalments, or part thereof would have been payable in the absence of such extension or deferral, to the date when such instalment or instalments, or part thereof, are made payable under the agreement of extension or deferment. No deferment charge shall be made on any instalment for which a default charge has been made unless the default charge on such instalment is rebated in full. If a contract is prepaid in full during a deferment period the buyer shall receive, in addition to the refund required under section nineteen, the refund of that portion of the deferment charge applicable to any unexpired months of the deferment period.
finance charges; deficiency; notice of cancellation Section 21. Upon the cancellation of an insurance contract the insured shall be entitled to a refund of the finance charges, such refund to be computed on a method which is at least as favorable to the insured as the actuarial method, so-called, from the effective date of cancellation irrespective of the time when the premium finance agency is reimbursed by the insurer or insurers. Whenever the gross unearned premiums received from the insurer or insurers are insufficient to extinguish the unpaid amount financed owed to the premium finance agency it may charge and collect a finance charge for the remaining unpaid amount financed not to exceed the rates established pursuant to the provisions of section one hundred and sixty-two B of chapter one hundred and seventy-five in effect on the date of cancellation and from said date to the time when the insured shall pay such balance. A premium finance agency shall give notice of cancellation to the policyholder by delivering such notice in hand to the named policyholder, or by leaving at his last business, residence or other address known to the agency, or by forwarding such notice to said address by first class mail, postage prepaid, and a notice delivered, so left or forwarded, shall be deemed a sufficient notice. No written notice of cancellation shall be deemed effective when mailed by the agency unless the agency obtains a certificate of mailing receipt from the United States Postal Service showing the name and address of the policyholder stated in the policy, but any notice of the intent to cancel as required by section thirty-four K of chapter ninety may be given by first class mail. If a premium finance agency, or any holder of a premium finance agreement, acting under a power of attorney in connection with the cancellation of a motor vehicle liability policy, as defined in section thirty-four A of chapter ninety, gives notice of cancellation in accordance with section thirty-four K of said chapter ninety, and thereafter the insured pays the full amount then due under the premium finance agreement, such agency or holder shall forthwith notify the insurer that it is revoking the notice of cancellation. Such notice of revocation shall not be binding upon the insurer, unless it is in writing and is received by the insurer not less than three days prior to the effective date of cancellation.
Section 22. This chapter shall not affect the inclusion of a charge for insurance on a bona fide sale of property, goods or services on instalments, nor shall it apply to insurance premiums financed at not more than six dollars per one hundred dollars per annum including all fees and charges of every name, nature and description. Nothing contained in this chapter or in chapter one hundred and seventy-five shall prohibit the addition by an insurance agent or broker not licensed as a premium finance agent of a late charge for late payment of a premium so long as any such charge does not exceed one and one-half per cent of the unpaid balance per month; provided, however, that such late charge shall not be imposed in the event payment is received within forty-five days from the effective date of the policy. Such insurance agent or broker may impose such a charge only if his bills, statements or invoices issued to a policyholder state that such a charge will be made in the event of late payment.
This chapter shall not apply to policies of life, endowment and retirement income insurance or annuity contracts and contracts supplementary thereto.
Section 23. A transaction subject to the provisions of this chapter shall also be subject to the provisions of chapter one hundred and forty D and a premium finance agency subject to the provisions of this chapter shall be subject to the provisions of said chapter one hundred and forty D and in the event of a conflict between the provisions of this chapter and said chapter one hundred and forty D, the provisions of said chapter one hundred and forty D shall control.
license; fees; duration of license Section 3. Each application for a license to engage in the business of a premium finance agency shall be in writing and in the form prescribed by the commissioner, and shall be accompanied by an investigation fee to be determined annually by the commissioner of administration under the provision of section three B of the chapter seven.
The commissioner shall, within ninety days after receipt of any such application, notify the applicant (1) that such license has been approved and will be issued upon payment of the appropriate license fee or (2) that his application for such license has been denied. The commissioner may refuse to issue a license if he finds that the financial responsibility, experience, character and general fitness of the applicant or any person associated with the applicant are not such as to command the confidence of the community and to warrant the belief that the business will be conducted honestly, fairly and efficiently.
Upon receipt of the license fee the commissioner shall execute the license to engage in the business of a premium finance agency at the location specified in the application and shall transmit said license to the applicant.
The refusal of the commissioner to issue a license shall not entitle the applicant to a return of any part of the investigation fee which accompanied his application.
The fee for each license shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven except as provided in section eleven. Each license shall be issued for the calendar year and shall remain in full force and effect until the thirty-first day of December unless suspended, revoked or surrendered as provided in section five.
license; change of location Section 4. Such license shall state the name and address of the licensee. Such license shall be conspicuously posted in the specified office of the licensee and shall not be transferable, except as hereinafter provided, or assignable. Before any licensee changes such office from one location to another he shall give written notice thereof to the commissioner who, if he approves said change, shall issue without charge an endorsement indicating the change and the date thereof, which endorsement shall be attached to the license for such office and shall constitute the authority for the operation of the business under such license at such new location.
surrender of license; effect Section 5. The commissioner may forthwith revoke or suspend any license issued under this chapter if he finds after a hearing that:(a) the licensee has violated any provision of this chapter or any rule or regulation lawfully made thereunder by the commissioner;(b) the existence of any fact or condition which, if it had existed at the time of the original application for such license, clearly would have warranted the commissioner in refusing to issue such license.
The commissioner may revoke or suspend only the particular license with respect to which grounds for revocation or suspension may occur or exist, or, if he shall find that such grounds for revocation or suspension are of general application to all offices, or to more than one office, operated by such licensee, he shall revoke or suspend all of the licenses issued to such licensee or such number of licenses as such grounds apply to, as the case may be.
The commissioner shall have sufficient cause to suspend or revoke a license whenever he learns from the commissioner of insurance or from any other source that the licensee has failed to return the full amount of a return premium to the person whose insurance policy has been cancelled or to his assignee, as required by section one hundred and seventy-six A of chapter one hundred and seventy-five.
Any licensee may surrender any license by delivering to the commissioner written notice that he thereby surrenders such license, but such surrender shall not affect the licensee’s civil or criminal liability for acts committed prior to such surrender.
A revocation or suspension or surrender of any license shall not impair or affect the obligation of an insured under any lawful premium finance agreement previously acquired or held by the licensee.
Whenever the commissioner revokes or suspends a license, he shall forthwith execute in duplicate a written order to that effect, and shall file one copy of such order in the office of the secretary of state and mail one copy to the licensee. A suspension or revocation of a license shall not be subject to the provisions of chapter thirty A.
After revocation or surrender of a license an applicant may reapply for a license in the same manner as for an original license, as provided in section three.
records; confidential communications; annual report Section 6. The commissioner may prescribe from time to time such rules and regulations as he deems necessary and proper for carrying out the provisions of this chapter including, but not limited to, the granting of licenses and the renewal thereof, the conduct of examinations and investigations and the keeping of records by a licensee. Such rules and regulations may contain such classifications, differentiations or other provisions and may provide for such adjustments and exceptions for a class of transactions as, in the judgment of said commissioner, are necessary and proper to carry out the purposes of this chapter, to prevent circumvention or evasion thereof or to facilitate compliance therewith. Said commissioner may, when he deems it to be in the public interest, examine the affairs of a licensee and, for said purpose, shall have free access to the premises and all business records of such licensee, may require the attendance of and examine under oath any person and shall have the power to compel the production of all such business records. Said commissioner shall assess appropriate fees, as determined annually by the commissioner of administration pursuant to section three B of chapter seven, upon the licensee for any such examination, including expenses for necessary travel outside the commonwealth for the purpose of conducting such examinations. Said commissioner may cause a number of examinations of any such business records to be made by an accountant whom he may select and the cost of any such examination shall be paid by the licensee whose records are so examined.
All reports of examinations and investigations and all correspondence and memoranda concerning or arising out of such examinations and investigations, including any duly authenticated copy or copies thereof in the possession of a licensee or the division of banks and loan agencies shall be confidential communications and shall not be made public unless said commissioner determines it to be in the public interest, in which event he may publish or authorize the publication of a copy of any such report or other material referred to in this section or any part thereof in such manner and to such extent as he may deem proper. A violation of this chapter shall also be a violation of chapter ninety-three A.
A licensee shall keep and use such business records in such form and at such location as said commissioner shall, by regulation, determine which shall enable said commissioner to determine whether such licensee is complying with the provisions of this chapter and any rules or regulations promulgated hereunder by said commissioner and any other law, rule or regulation applicable to the conduct of the business for which it is licensed under this chapter. Such regulations may contain provisions for the suspension or revocation of licenses for violations hereof and for such records to be recorded, copied or reproduced by photographic, photostatic, microfilm, microcard, miniature photographic, electronic, including, but not limited to, optical imaging or other process which accurately reproduces or forms a durable medium for reproducing the original record or document or in any other form or manner authorized by said commissioner; provided, however, that nothing in this section shall be construed to permit any such licensee to destroy original records or documents. Each such licensee shall preserve all such business records for as long a period as the commissioner shall prescribe by regulation. Notwithstanding the provisions of any general or special law or the Massachusetts Rules of Civil Procedure to the contrary, service of a subpoena for business records upon a licensee, delivered to an office of such licensee located within the commonwealth, shall be deemed to have been served at the location, whether within or outside the commonwealth, where the original records or documents are kept or maintained.
Each licensee shall annually, on or before April fifteenth, file a report with said commissioner containing such information as said commissioner may require concerning the business and operations during the preceding calendar year at each licensed place of business conducted by a licensee within the commonwealth. Any licensee neglecting to file such annual report or failing to amend the same within fifteen days of notice from said commissioner directing the same shall, unless such neglect or failure is due to justifiable cause and not to wilful neglect, pay to the commonwealth fifty dollars for each day during which such neglect or failure continues.
Section 8. In conducting any hearing or investigation pursuant to the provisions of this chapter, the commissioner, or any person duly designated by him, shall have the power at all times to subpoena witnesses; to take depositions of witnesses residing without the state, in the manner provided for in civil actions in courts of record; to pay such witnesses the fees and mileage for their attendance provided for witnesses in civil actions in courts of record; and to administer oaths.
Section 9. Whoever violates any provision of this chapter, or knowingly makes any incorrect statement of a material fact in any application, report or statement filed pursuant to this chapter, or knowingly omits to state any material fact necessary to give the commissioner any information lawfully required by him or refuses to permit any lawful investigation or examination, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both.
A premium finance agency’s taking or receiving from or charging an insured a greater charge than authorized in this chapter shall not invalidate the premium finance agreement or the principal balance payable thereunder but may be adjudged a forfeiture of all charges which the premium finance agreement carries with it or which have been agreed to be paid thereon, and if a greater charge has been paid by an insured, the person paying the same or his legal representative may recover from the premium finance agency twice the entire amount of the charges thus paid if action is brought within two years from the time of such payment.
Section 1. In this chapter, unless the context otherwise requires, the following words shall have the following meanings:“Commissioner”, the commissioner of banks.
“Down payment”, includes all amounts paid, in cash, credits, or the agreed value of goods, by or for the installment buyer to or for the benefit of the installment seller at or before time of the execution of the retail installment sale agreement or at the time of sale pursuant to revolving credit agreement.
“Finance charge”, the cost of credit determined in accordance with the provisions of section four of chapter one hundred and forty D.
“Gift certificate”, a writing identified as a gift certificate purchased by a buyer for use by a person other than the buyer not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods or services supplied by the seller. A gift certificate shall include an electronic card with a banked dollar value, a merchandise credit, a certificate where the issuer has received payment for the full face value for the future purchase or delivery of goods or services and any other medium that evidences the giving of consideration in exchange for the right to redeem the certificate, electronic card or other medium for goods, food, services, credit or money of at least an equal value. A gift certificate shall not include pre-paid calling arrangements, as defined in section 1 of chapter 64H of the General Laws.
“Goods”, all things movable purchased primarily for personal, family or household purposes, other than motor vehicles as defined in chapter two hundred and fifty-five B, including goods which are or are to become fixtures or which are to become incorporated into a structure and gift certificates. Goods shall not include money or choses in action.
“Holder”, a person entitled to enforce a retail installment sale agreement or revolving credit agreement against an installment buyer.
“Installment buyer” or “buyer”, a person who buys or agrees to buy goods or who obtains services or agrees to have services furnished or rendered or who obtains merchandise certificates under a retail installment sale agreement, or revolving credit agreement, or any legal successor in interest to such person, notwithstanding that he may have entered into one or more extension, refinancing or consolidation agreements.
“Installment seller” or “seller”, a person who sells or agrees to sell goods or services or both, or merchandise certificates, pursuant to a retail installment sale agreement, or revolving credit agreement.
“Merchandise certificate” or “coupon”, a writing issued by a seller, not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods or services supplied by the seller but does not include a writing issued by the seller as a gift certificate. The issuance of the merchandise certificate or coupon shall be deemed to be a transaction giving rise to indebtedness of a buyer to the seller of goods, services or insurance for a part or all of the purchase price thereof upon issuance.
“Official fees”, the fees and charges prescribed by law which are or will be paid to a public officer to perfect the security interest or lien, in or on goods or services retained or taken by a seller under a retail installment sale agreement or revolving credit agreement, and to file or record a release, satisfaction or discharge of security interest or lien.
“Retail installment sale agreement”, an agreement, other than a revolving credit agreement or agreement reflecting a sale made pursuant thereto, signed by the buyer in this commonwealth, involving a finance charge and providing for the sale of goods or the rendering of services or both, or for the issuance of merchandise certificates, for a specified amount which the buyer undertakes to pay in more than one payment subsequent to the making of the agreement, or not involving a finance charge and providing for the sale of goods or the rendering of services or both, or for the issuance of merchandise certificates, for a specific amount which the buyer undertakes to pay in five or more installments subsequent to the making of the agreement. A retail installment sales agreement shall not include an agreement signed by a nonresident buyer in the commonwealth if such buyer has agreed that the law of his state shall apply. “Retail installment sale agreement” shall also include any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the value of goods involved and it is agreed that the bailee or lessee will become, or for no other or for a nominal consideration has the option to become the owner of the goods upon full compliance with his obligations under the contract. A retail installment sale agreement shall not include an agreement which provides (a) for the payment of the total sale price in no more than three monthly installments and (b) a finance charge not in excess of one dollar and (c) no collateral security for the seller.
“Revolving credit agreement”, an agreement, other than a retail installment sale agreement, signed by the buyer in this commonwealth pursuant to which the buyer may purchase at retail, goods or services or merchandise certificates on credit from time to time and under the terms of which a finance charge is to be computed in relation to the buyer’s balance from time to time. A revolving credit agreement shall not include an agreement signed by a nonresident buyer in the commonwealth if the buyer has agreed that the law of his state shall apply. A revolving credit agreement shall be deemed to be signed by the buyer if, after a request for an account, such agreement is in fact signed by the buyer, or if that account is used by the buyer, or if another is authorized by the buyer to use it, or if, after receiving notice of a change in the terms of an established account pursuant to which a credit card has previously been issued by the creditor, that account is thereafter used by the buyer, or another person is thereafter authorized by the buyer to use it.
“Sales finance company”, (1) a bank as defined in section one of chapter one hundred and sixty-seven, or a national banking association or a savings and loan association, (2) any person other than an installment seller engaged, in whole or in part, in the business of purchasing retail installment sale agreements or revolving credit agreements of one or more retail sellers. The term “sales finance company” shall not include the pledgee of an aggregate number of such agreements to secure a bona fide loan thereon.
“Security interest”, any property right or title in goods which are the subject of a retail installment sale agreement or revolving credit agreement taken or retained to secure performance of any obligation of the buyer under agreement, and any renewal or extension thereof, notwithstanding shipment or delivery to the buyer.
“Services”, any work, labor, or other services, purchased primarily for personal, family or household purposes, or furnished or agreed to be furnished in the delivery, installation, repair or improvement of goods, including but not limited to alterations, or improvements upon or in connection with real property, but excluding insurance of all types.
Section 10. No seller, sales finance company or holder shall at any time take or receive any retail installment sale agreement from a buyer or from any surety or guarantor for the buyer which contains:(1) Blank spaces for terms required by this chapter or for terms upon which the parties at the consummation of the sale have agreed to the extent of then available information except that the finance charge and the annual percentage rate must always be disclosed;(2) Any confession of judgment or any power or warrant of attorney to appear for the buyer or for any surety or guarantor for him to confess judgment;(3) Any schedule of payments under which any one installment, except the down payment, is not equal or substantially equal to all other installments, excluding the down payment, or under which the intervals between any consecutive installments except the down payment differ substantially, unless (a) the buyer is given an absolute right upon default in any such excess or irregular installments to have the schedule of unpaid installments, including that in default, revised to conform in both amounts and intervals to the average of all preceding installments and intervals, or (b) unless the time and amounts of installments relate to the uneven seasonal income of the buyer and a statement appears in the contract to that effect.
(4) Any provision for repossession of the goods or for the acceleration of the time when any part or all of the total of payments becomes payable other than for default of the buyer;(5) Any provision by which a buyer grants authority to the holder to unlawfully enter the installment buyer’s premises or commit any breach of peace in the repossession of the collateral, if any;(6) Any waiver of rights or remedies which the installment buyer may have against the seller or holder of the retail installment sale agreement, or other person acting in his behalf;(7) Any provision whereby the installment buyer executes a power of attorney appointing the seller or holder of the retail installment sale agreement, or other person acting in his behalf, as the buyer’s agent in the collection of payments under the agreement or in the repossession of the collateral security;(8) Any assignment, or order for payment, of any salary, wages, commission or other compensation for services or any part thereof earned or to be earned;(9) Any provision limiting, excluding, modifying or in any manner altering the term of any express warranty made a part of the basis of the bargain between the parties.
Section 10A. No retail establishment offering goods and services for sale shall discriminate against a cash buyer by requiring the use of credit by a buyer in order to purchase such goods and services. All such retail establishments must accept legal tender when offered as payment by the buyer.
agreements prohibited Section 11. A. No fee, expense or other charge whatsoever shall be taken, received, reserved or contracted for, except as provided in this section and in sections sixteen to twenty-two, inclusive, and except for official fees, and for the items expressly provided for in the retail installment sale agreement as set forth in section nine.
B. An installment seller may, in a retail installment sales agreement, contract for, and if so contracted for the holder thereof may charge, receive, and collect a finance charge computed on the original amount financed of the contract or obligation not in excess of an annual percentage rate of twenty-one per cent.
C. On agreements payable in successive periodic installments substantially equal in amount, the maximum permissible finance charge shall be computed on the original amount financed. On agreements providing for installments extending for a period less than or greater than one year, the finance charge shall be computed proportionately.
The finance charge may be computed on the basis of a full month for any fractional month period in excess of fifteen days.
When a retail installment sale agreement provides for unequal or irregular installments, the finance charge shall be at the effective rate provided for in this section, having due regard for the schedule of installments.
The date on which the finance charge begins to accrue shall be deemed to be a different date from the date of the transaction if the goods or services purchased are not available for delivery on the date of the transaction and the date such finance charge shall begin to accrue shall be the date when such goods or services are available for delivery.
D. No installment seller shall permit any person, or any husband and wife jointly or severally, to be obligated, either directly or contingently to said seller, under more than one retail installment sales agreement executed at the same time.
return Section 11A. The buyer shall have the right to return to the seller at any time all merchandise certificates or coupons which have not been exchanged for goods or services, and the seller shall thereupon credit the buyer with the full face amount thereof and all finance charges and any insurance charges thereon.
statement required Section 11B. Any written agreement for the purchase of a merchandise certificate or coupon, any newly printed merchandise certificate or coupon, and any cover or envelope containing a merchandise certificate or coupon shall contain the following statement appearing conspicuously on the face thereof:You may return any unused merchandise certificates or coupons at any time and receive full credit on your account.
agreement Section 12. A. When any payment is made on account of any retail installment sale agreement, the person receiving such payment shall, if the payment is made in cash, give the buyer a complete written receipt therefor. If the buyer specifies that the payment is made on one of several obligations, the receipt shall so state.
B. Any person may purchase a retail installment sale agreement from a seller or holder on such terms and conditions and for such price as may be mutually agreed upon. Unless written notice has been given to the buyer of actual or intended assignment of a retail installment sale agreement, the buyer may pay or tender any amount due thereunder or give any notice required or permitted by the agreement, to the last known holder of the agreement and such payment, tender or notice shall be binding upon any subsequent holder as fully as if made to him.
Section 13. A. Notwithstanding the provisions of any retail installment sale agreement to the contrary, a buyer may pay it in full at any time before the maturity of the final installment thereof, and, if he does so, shall receive and be entitled to receive a refund credit thereon and, if the retail installment sale agreement included an amount for insurance, a further refund credit thereon for such anticipation, whether or not the maturity of the scheduled payment of the agreement was accelerated by the holder by reason of a buyer’s default.
B. Except as provided in subsection C, a refund credit shall be computed on a method which is at least as favorable to the buyer as the actuarial method, so-called. If the prepayment is made other than on an installment due date it shall be deemed to have been made on the first installment due date if the prepayment is before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of prepayment. In the event a contract has been extended and is prepaid in full during an extension period the buyer shall receive, in addition, the refund of that portion of the extension charge applicable to any unexpired months of the extension period.
C. Where the amount of credit for anticipation of payment is less than one dollar, no refund need be made.
D. On contracts payable in substantially equal successive monthly installments, commencing two or more months after the date of the contract, the computational period for refund shall commence with the date of the contract or, if the goods are delivered or services performed ten days or more after the date of the contract, the computational period shall commence with the date of delivery or performance of the services.
refund of deposits; reclamation of goods by seller Section 14. A. The buyer shall have the right to cancel the retail installment sale agreement for other than the seller’s breach:(1) Until the seller has signed and delivered to the buyer, or mailed to him at his address shown on the agreement a copy of the agreement signed by the seller or a memorandum as provided in subsection F of section nine; or as provided in subsection A of section eighteen, except that such right of cancellation relative to the memorandum under subsection A of section eighteen shall be limited to the particular memorandum only, and not to preexisting valid agreements; or(2) Which is signed by the seller, and which has been consummated by a party thereto at a place other than the address of the seller, which may be his main office or branch thereof, if the buyer, not later than midnight of the third business day following execution of the agreement, notifies the seller that he is cancelling, and such cancellation shall be effective thereupon.
B. Notice of cancellation under this section shall be given in writing to the seller at the place of business of the seller as set forth in the agreement by ordinary mail posted, by telegram sent or by delivery, not later than midnight of the third business day following execution of the agreement or the date a completed agreement signed by the seller is delivered to the buyer, whichever is later.
C. In the event of cancellation pursuant to this section the installment seller shall within ten business days of the receipt of any valid notice of cancellation (i) refund all payments made, including any down payment made under the agreement; (ii) return any goods or property traded in to the seller on account of or in contemplation of the agreement, in substantially as good condition as when received by the seller; (iii) cancel and return any copies of the agreement and any negotiable instrument signed by the buyer with a notation indicating that it has been cancelled; and (iv) take any action necessary or appropriate to terminate promptly any security interest created in connection with the agreement.
The seller shall be entitled to reclaim and the buyer shall return whenever possible or hold at the seller’s disposal any goods received by the buyer under the agreement. The buyer may, at his option, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk. If the buyer does make the goods available to the seller and the seller does not pick them up within twenty days of the date of the buyer’s notice of cancellation, the buyer may retain or dispose of the goods without any further obligation. If the buyer fails to make the goods available to the seller, or if the buyer agrees to return the goods to the seller and fails to do so, then the buyer shall remain liable for performance of all obligations under the contract.
The seller shall within ten business days of receipt of the buyer’s notice of cancellation notify the buyer whether the seller intends to repossess or to abandon any shipped or delivered goods.
Section 15. No retail installment sale agreement shall provide for or create a security interest in (a) personal property other than the goods sold or worked on under a retail installment sale agreement unless such goods become affixed to such personal property; (b) after-acquired collateral other than accessions to the goods sold or worked on; or (c) goods subject to a prior retail installment sale agreement or agreements unless two or more such agreements are consolidated under a single agreement pursuant to section eighteen.
Any agreement made in violation of this section may be declared void by the supreme judicial or superior court in equity upon petition of the installment buyer.
Section 16. A. A holder may by agreement with the buyer extend the due date of all or any part of one or more installments under an existing retail installment sale agreement, a refinancing agreement or a consolidation agreement.
B. Except as provided in paragraph C, an extension agreement(1) Shall be in writing and signed by the parties;(2) Shall incorporate by reference the agreement to which the extension agreement applies;(3) Shall state the terms of the extension;(4) May provide for an extension charge not to exceed one per cent of each installment for each month from the date when such installment or part thereof would otherwise have been payable to the date when such installment or part thereof is made payable under the extension agreement; provided, that when any such charge is made, no delinquency charge as provided in section twenty shall be charged unless an installment as extended is not paid by the end of the grace period beyond the extended due date;(5) May provide that the buyer shall pay the additional cost, if any, for insurance coverage provided in the extension; and(6) Shall clearly set forth the fact of any extension charge, the amount extended, the date to which, or the time period for which payment is extended, the amount of the charge for the extension, and the amount for the additional cost of insurance, if any, resulting from the extension.
C. If the extension agreement extends the due date of only one installment, it need not be in writing but shall be subject to the provisions of clauses (4) and (5) of paragraph B. If no charge is made for the extension agreement, the agreement shall not be subject to paragraph B.
Section 17. A. A holder may by agreement with the buyer refinance the unpaid balance of a single retail installment sale agreement, refinancing agreement or consolidation agreement to provide for a new schedule of the times or amounts of the payments or both.
B. A refinancing agreement, as described in paragraph A shall be in writing, and shall be dated and signed by the parties, and(1) May provide for a finance charge which shall not exceed the rates provided in section eleven applied to the sum of (a) the unpaid total of payments of the agreement being financed, less the refund credit for finance charge provided in section thirteen and (b) any additional cost for continuing insurance coverage under the agreement being refinanced and for official fees;(2) Shall incorporate by reference the agreement being refinanced and shall clearly set forth and itemize the unpaid total of payments being refinanced, the refund credit, the amount to be refinanced, the finance charge, additional cost for insurance or official fees or both, the total sum payable under the refinancing agreement, the amounts and times of installment payments, annual percentage rate;(3) Shall comply with the provisions of subsection A, clauses (1) through (5), inclusive, of subsection D, and subsection E of section nine, and of sections ten, eleven, twelve, thirteen, fifteen and twenty-one; and(4) Shall not include within the amount financed, as defined by section one of chapter one hundred and forty D, any amounts representing the consideration for any transaction, retail installment sale, loan, or other extension of credit other than the retail installment sale then being refinanced.
agreement; payments; termination of security interest Section 18. A. If a buyer purchases goods or services from a seller from whom he has previously purchased goods or services under one or more retail installment sale agreements, and the amounts due under any such previous agreement have not been fully paid, any such subsequent purchase may, by agreement of the parties, be added on to one or more of the previous agreements. Each subsequent add-on purchase shall be a separate retail installment sale agreement subject to all the provisions of this chapter with respect to retail installment sale agreements except that in lieu of the buyer executing a retail installment sale agreement as provided in this chapter, the seller shall, before the due date of the first installment under the consolidated agreement, prepare and deliver to the buyer, or the buyer shall otherwise have in his possession at the time of the subsequent purchase, a written memorandum, sales slip or an account book, or any combination thereof, setting forth with respect to each subsequent purchase all information and items required by section nine, the outstanding balance of the previous agreement or agreements and the consolidated total of payments owed with the number of installments required to pay it, and the amount and time of each payment, in which information the amounts and times of installment payments need not be separately stated if the amount of and time between payments are substantially equal and the amount of the scheduled final installment payment may be stated as the remaining unpaid balance. The consolidated total of payments to be paid by the buyer in the new schedule of installments shall include unpaid total of payments.
If a finance charge imposed at the time of any subsequent add-on purchase is based in whole or in part upon an outstanding balance of a previous agreement, due regard shall be given to the refund credit as provided in section thirteen in determining that outstanding balance.
In the event of prepayment in full of a consolidated agreement where a finance charge was not imposed based in whole or in part upon an outstanding balance of a previous agreement or agreements, due regard shall be given for any refund credit not theretofore computed and given for each previous agreement.
B. If debts arising from two or more retail instalment sale agreements or sales under revolving credit agreements are consolidated into one debt payable on a single schedule of payments, and the debt is secured by security interests taken with respect to one or more of the sales, payments received by the seller or holder after the consolidation are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been first applied to the payment of the debts arising from the sales first made. To the extent debts are paid according to this section, security interests in items of property terminate as the debts originally incurred with respect to each item is paid. If the debts consolidated arose from two or more sales made on the same day, payments received by the seller are deemed, for the purpose of determining the amount of the debts secured by the various security interests, to have been applied first to the payment of the smallest debt.
credit prohibited; exceptions; notice to buyer; violations Section 18A. (1) No retail installment sale agreement may be modified in any way by the parties or by a holder, nor shall the amount financed or unpaid balance as defined in chapter one hundred and forty D, or any other amount owing under any retail installment sale agreement ever become due and owing under any extension of credit or obligation other than the original retail installment sale agreement, except as provided in sections sixteen, seventeen and eighteen; provided, however, that this section shall not apply to any transactions between the buyer and any person not a party to nor a holder of the retail installment sale agreement.
(2) If any retail installment sale agreement or other extension of credit is in violation of this section any person entitled to enforce such agreement or extension is liable to the buyer or buyers in an amount equal to the sum of twice the amount of the finance charge in connection with said agreement or extension, except that the liability shall not be less than five hundred dollars. For purposes of this paragraph, the finance charge shall be the greater of: (a) the total finance charge provided for in said agreement or extension; (b) the total finance charges billed, collected and sought to be collected under said agreement or extension; or (c) the initial principal amount of credit extended, not the amount of the credit line, under said agreement or extension times the annual percentage rate in effect during the first period on which interest accrues under said agreement or extension.
(3)(a) The provisions of subsections (1) and (2) shall not apply to a fixed rate closed-end extension of credit or fixed rate closed-end obligation if the buyer has been furnished a statement in the following form, as a separate document, accurately completed by the creditor, and has freely signed said statement.
NOTICE TO BUYERSTATE LAW PROVIDES THAT YOU DO NOT HAVE TO CONSOLIDATE YOUR RETAIL INSTALLMENT SALE AGREEMENT WITH THE LOAN WHICH YOU ARE NOW APPLYING FOR.
If you do agree to consolidate your retail installment sale agreement, your combined new loan will cost $ ___ more/less in finance charges. SECURITY INTEREST: IF WE TAKE A MORTGAGE IN YOUR HOME, YOU COULD LOSE YOUR HOME IF YOU DO NOT MEET YOUR LOAN PAYMENTS OR OTHER OBLIGATIONS IN YOUR AGREEMENT WITH US.
I/We have read and understand the above statements and I/we want to have my/our retail installment sale agreement consolidated with the loan which I/we are now applying for.
___ Buyer___ Buyer___ Date(b) The provisions of subsection (1) and (2) shall not apply to an open-end or variable rate closed-end extension of credit, or to an open-end or variable rate closed-end obligation if the buyer has been furnished a statement in the following form, as a separate document, accurately completed by the creditor, and has freely signed said statement.
NOTICE TO BUYERSTATE LAW PROVIDES THAT YOU DO NOT HAVE TO CONSOLIDATE YOUR RETAIL INSTALLMENT SALE AGREEMENT WITH THE LOAN OR REVOLVING CREDIT AGREEMENT WHICH YOU ARE NOW APPLYING FOR.
You now owe a pay off balance of $ on your retail installment sale agreement as of the date of this agreement. You are now paying a finance charge of $ per month on each $100 outstanding at an ANNUAL PERCENTAGE RATE OF % on your retail installment sale agreement.
If you do agree to consolidate your retail installment sale agreement, you will be paying a finance charge of $ ___ per month on each $100 outstanding at an initial ANNUAL PERCENTAGE RATE OF ___% on your combined loan or revolving credit agreement.
This amount may increase or decrease based upon the index used to determine the initial Annual Percentage Rate, which is disclosed in the accompanying disclosure statement. You should also know that it may take you longer to pay off your combined new loan or revolving credit agreement than it would to pay off your retail installment sale agreement.
SECURITY INTEREST: IF WE TAKE A MORTGAGE IN YOUR HOME, YOU COULD LOSE YOUR HOME IF YOU DO NOT MEET YOUR LOAN PAYMENTS OR OTHER OBLIGATIONS IN YOUR AGREEMENT WITH US.
I/We have read and understand the above statements and I/we want to have my/our retail installment sale agreement consolidated with the loan or revolving credit agreement which I/we are now applying for.
___ Buyer___ Buyer___ Date(4) The commissioner may prescribe the method of computation for all disclosure statements required by subsection (3).
Section 19. A. Within six months after the execution of the retail installment sale agreement or revolving credit agreement and within every six-month period thereafter until the buyer has discharged all his obligations under the agreement, the holder shall send to the buyer upon request a statement of account which shall list the following items designated as such:(1) The amounts paid by or on behalf of the buyer, setting forth any refund and any payment of charges for delinquencies, expenses of repossession and extensions, to the date of the statement of account;(2) The amounts, if any, which have become due but remain unpaid, setting forth any charges for delinquencies, expenses of repossession and extensions;(3) The number of installment payments and the dollar amount of each installment not due but still to be paid and the remaining period the agreement is to run.
B. The buyer shall be entitled to only one such statement in any six-month period free of charge. The holder shall be entitled to the sum of one dollar for each additional written statement requested by the buyer before supplying such additional written statement.
C. If the buyer requests information for income tax purposes as to the amount of the finance charges, the holder shall provide such information without charge once in every calendar year.
transfer Section 2. No person, other than a bank as defined in section one of chapter one hundred and sixty-seven or a national banking association, federal savings bank, federal savings and loan association or federal credit union, shall engage in the business of a sales finance company without first obtaining from the commissioner a license to carry on said business in each city or town where the business is to be transacted as provided herein. The application for such license shall be in writing and shall contain such information as the commissioner may, from time to time, determine. The commissioner may reject any application for a license or any application for the renewal of a license if he is not satisfied that the financial responsibility, character, reputation, integrity and general fitness of the applicant and of the owners, partners or members thereof, if the applicant be a partnership or association, and of the officers and directors, if the applicant be a corporation, are such as to command the confidence of the public and to warrant the belief that the business for which the application for a license is filed will be operated lawfully, honestly, fairly and efficiently. Such licenses shall expire annually on November first. Each license shall plainly state the name of the licensee and the city or town with the name of the street and number, if any, of the place where the business is to be carried on, and shall be posted in a conspicuous place in the office where the business is transacted. Each application for a license shall be accompanied by an investigation fee. Investigation fees and license fees shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven. If a licensee desires to carry on business in more than one place, he shall procure a license for each place where the business is to be conducted. Such license shall not be transferable or assignable. Any change of location of a place of business of a licensee shall require the prior approval of the commissioner. Such request for relocation shall be in writing setting forth the reason or reasons for the request and shall be accompanied by a relocation investigation fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven.
Any person who sells or agrees to sell goods or services or both or merchandise certificates where the sale is secured by a mortgage on real property located in the commonwealth having thereon a dwelling house with accommodations for 4 or less separate households and occupied or to be occupied, in whole or in part, by the obligor on the mortgage debt shall first obtain from the commissioner a license under chapter 255E.
check charge Section 20. The holder of a retail installment sale agreement may, if the agreement so provides, collect a delinquency and collection charge on each installment in default for a period of not less than fifteen days in an amount not in excess of five percent of each installment or five dollars, whichever is less, and assess and collect a charge, not to exceed ten dollars, for any check, draft or order for the payment of money submitted in accordance with said agreement which is returned unpaid or not honored by a bank or other depository.
payment; curing of default Section 21. (a) An agreement of the parties in a retail installment contract defining default is enforceable only to the extent that the default is material and consists of the buyer’s failure to make one or more installments as required by the agreement; or occurrence of an event which substantially impairs the value of the collateral.
(b) After a default by a buyer under a consumer credit transaction, the secured creditor may not bring an action against the buyer or proceed against the collateral until he gives the buyer the notice described in this section. The notice so required shall be deemed to be delivered when delivered to the debtor or when mailed to the debtor at the debtor’s address last known to the creditor. If a buyer cures a default after receiving notice and again defaults, the creditor shall give another notice before bringing an action or proceeding against the collateral with respect to the subsequent default, but no notice is required in connection with a subsequent default, if within the period commencing on the date of the consumer credit transaction subject to this section and the date of the subsequent default, the debtor has cured a default after notice three or more times.
(c) The notice shall be in writing and shall be given to the buyer ten days or more after the default. The notice shall conspicuously state the rights of the buyer upon default in substantially the following form:—The heading shall read:—“Rights of Defaulting Buyer Under the Massachusetts Retail Installment Sales Act.
” The body of the notice shall read:—“You may cure your default in (describe transaction in a manner enabling buyer to identify it) by paying to (name and address of creditor) (amount due) before (date which is at least twenty-one days after notice is mailed). If you pay this amount within the time allowed, you are no longer in default and may continue on with the transaction as though no default had occurred.
If you do not cure your default by the date stated above, the said creditor may sue you to obtain a judgment for the amount of the debt or, if applicable, may take possession of the collateral.
If the said creditor takes possession of the collateral, if any, you may get it back by paying the full amount of your debt plus any reasonable expenses incurred by the said creditor if you make the required payment within twenty days after he takes possession.
”(d) During the twenty-one day period after a delivery of the notice required by this section the holder may not because of that default accelerate the unpaid balance of the obligation, bring action against the buyer, or proceed against the collateral.
(e) Unless the secured creditor has first notified the buyer that he has elected to accelerate the unpaid balance of the obligation because of default, brought action against the buyer, or proceeded against the collateral, the buyer may cure a default consisting of a failure to pay money by tendering the amount of all unpaid sums due at the time of tender, without acceleration, plus any unpaid delinquency of deferral charges. Cure shall restore the buyer to his rights under the agreement as though the defaults cured had not occurred subject to the provisions of subsection (b).
redemption; disposition; deficiency; insurance proceeds; determination Section 22. (a) Subject to the provisions of this section and section twenty-one, on default by the buyer a secured creditor under a consumer credit transaction may take possession of collateral. In taking possession the secured creditor under a consumer credit transaction may proceed without a prior hearing only if the default is material and consists of the debtors failure to make one or more payments as required by the agreement or the occurrence of an event which substantially impairs the value of the collateral, and only if possession can be obtained without use of force, without breach of peace and unless the debtor consents to an entry, at the time of such entry, without entry on property owned by or rented to the debtor.
(b) Except as provided in subsection (a), a creditor under a consumer credit transaction may proceed against collateral only after a prior hearing. In any proceeding where possession of the collateral is part of the relief sought by a holder no court shall allow a secured creditor to take possession of collateral until the right of the creditor to take possession has been determined at a hearing at which the buyer has an opportunity to be heard having been notified in writing of said hearing at least seven days in advance thereof.
(c) The buyer under a secured consumer credit transaction may redeem the collateral from the holder at any time within twenty days of the creditor’s taking possession of the collateral, or thereafter until the creditor has either disposed of the collateral, entered into a contract for its disposition, or gained the right to retain the collateral in satisfaction of the buyer’s obligation.
(d) The creditor may after gaining possession sell or otherwise dispose of the collateral. Unless displaced by the provisions of this section and section twenty-one the rights and obligations of the parties, including redemption and disposition of the collateral shall be governed by the provisions of Part 6 of Article 9 of chapter 106. Notwithstanding the provisions in Part 6 of Article 9 of chapter 106, if, in connection with a consumer credit transaction which involves an unpaid balance of one thousand dollars or less and which is at the time of default secured by a non-possessory security interest in consumer goods, the creditor takes possession of or accepts surrender of the collateral, the debtor shall not be liable for any deficiency. If the agreement between the creditor and debtor provides that the debtor is to obtain insurance protecting the collateral against fire, theft, collision or other hazards and naming the creditor as loss payee and if, prior to the repossession or surrender of the collateral, loss or damage occurs which would give rise to insurance proceeds under the terms of the policy in force, then nothing in this section shall be deemed to limit the creditor’s rights to so much of the insurance proceeds as does not exceed the fair market value of the collateral existing just prior to the loss or damage and, if insurance as required by the agreement is not in force at the time of the loss or damage, nothing in this section shall be deemed to limit the creditor’s rights in proceeding against any third party who is responsible for the loss or damage in the name of the debtor or otherwise. For the purposes of this section the unpaid balance of a consumer credit transaction shall be that amount which the debtor would have been required to pay upon prepayment.
(e) (1) If the unpaid balance of the consumer credit transaction at the time of default was one thousand dollars or more the creditor shall be entitled to recover from the debtor the deficiency, if any, resulting from deducting the fair market value of the collateral from the unpaid balance due and shall also be entitled to any reasonable repossession and storage costs, provided he has complied with all provisions of this section.
(2) In a proceeding for a deficiency the fair market value of the collateral shall be a question for the court to determine. Periodically published trade estimates of the retail value of goods shall, to the extent they are recognized in the particular trade or business, be presumed to be the fair market value of the collateral.
Section 22A. No seller shall directly or indirectly in connection with the retail sale of goods or services, and for the purpose of evading any of the provisions of this chapter, arrange for a loan or aid or assist any buyer in obtaining a loan from any person, the proceeds of which are to be used in whole or in part for the purchase of such goods or services.
Section 24. No act, agreement or statement of any buyer in any retail installment sale agreement or revolving credit agreement shall constitute a valid waiver of any benefit or protection afforded by the provisions of this chapter.
Section 25. Any holder of a retail installment sale agreement, or of a note evidencing indebtedness arising out of such agreement, shall be subject to the provisions of this chapter.
defenses against seller Section 25A. The holder of a retail installment sale agreement, or other person acting in his behalf, shall be subject to all defenses, real and personal, which the installment buyer may have against the installment seller thereof.
Section 26. A. Where a seller or sales finance company undertakes to provide or supply insurance on the goods sold, or on which services were rendered, under a retail installment sale agreement or revolving credit agreement, at the buyer’s expense, the amount charged any buyer for such insurance shall not exceed the premium actually payable by the seller or sales finance company and in no event more than the premium chargeable in accordance with the rates, if any, filed with the commissioner of insurance. The foregoing shall not apply to credit life insurance or credit accident and health insurance, referred to in subsection C, which shall be the only credit life insurance and accident and health insurance authorized in connection with any retail installment sale agreement, or revolving credit agreement.
B. If dual interest insurance on the goods is purchased by the holder he shall, within thirty days after the execution of the retail installment sale agreement or revolving credit agreement, send or cause to be sent to the buyer a copy of the policy or policies of insurance, written by an insurance company authorized to do business in the commonwealth, or a certificate of insurance clearly setting forth the nature of the insurance coverage. The buyer shall have the privilege of purchasing such insurance from the agent or broker of his own selection, but in such case the inclusion of the insurance premium in the retail installment sale agreement or revolving credit agreement shall be optional with the seller. If the buyer selects his own licensed agent or broker there shall be no obligation on the seller or sales finance company to forward a copy of the policy or policies or any certificate to the buyer.
C. In the event the charge or any portion thereof for life insurance under a policy issued pursuant to clause (c) of the first paragraph of section one hundred and thirty-three of chapter one hundred and seventy-five, or for accident and health insurance under a policy issued pursuant to clause (j) of the first sentence of subdivision (A) of section one hundred and ten of chapter one hundred and seventy-five or for involuntary unemployment insurance under a policy issued pursuant to clause (a) of section one hundred and seventeen D of chapter one hundred and seventy-five, which unless otherwise authorized shall be the only types of insurance authorized in connection with a retail installment sale agreement or revolving credit agreement, is paid by the buyer or buyers to the seller, it shall not be deemed a charge in violation of sections eleven or twenty-seven.
The seller may make a charge for said life insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said seller pursuant to the provisions of section one hundred and seventeen C of chapter one hundred and seventy-five. The amount of said insurance shall at no time exceed the greater of the scheduled or actual amount owing on the agreement exclusive of unearned finance charges. Said charge may be collected either as a single premium on scheduled insured balances or periodically on actual monthly insured balances.
The seller may make a charge for said accident and health insurance or said involuntary unemployment insurance based on a rate which shall not exceed the premium charged by the insurer pursuant to said insurer’s schedule or schedules of premium rates currently on file with the commissioner of insurance for said insurance on obligations to said seller pursuant to the provisions of said section one hundred and seventeen C or section one hundred and seventeen D of said chapter one hundred and seventy-five. Said charge may be collected either as a single premium on scheduled insured balances or periodically on outstanding balance basis, using a monthly term rate that is actuarially consistent with the applicable single premium rate filed with said commissioner, which monthly rate shall be applied each month to the sum of the remaining insured monthly benefits. For interest bearing agreements, other than pre-computed agreements, a uniform monthly rate filed with said commissioner may be applied to the remaining monthly debt balances of all insured agreements, exclusive of unearned finance charges, which uniform monthly rate shall produce, for the aggregate of all said insured agreements, an aggregate premium that is actuarially consistent with the aggregate premium that would result from using said applicable single premium rates filed with said commissioner applied to the total of the monthly benefits on all said insured agreements. All group accident and health insurance policies shall have a waiting period of thirty days and shall have benefits which are not retroactive. Credit accident and health insurance may be offered only in those cases where the original amount of the retail installment sale agreement, exclusive of finance charges, exceeds five hundred dollars. No group involuntary unemployment insurance policy shall have a waiting period in excess of thirty-one days.
In the event of prepayment of the retail installment sale agreement or revolving credit agreement, there shall be a refund of any unearned charges for said life insurance or accident and health insurance or involuntary unemployment insurance computed on a method which is at least as favorable to the buyer or buyers as the actuarial method, which for single premiums shall be defined as a refund of unearned premium equal to the premium cost of coverage equal to the remaining scheduled benefits for a term equal to the remaining period from the date of said prepayment to the originally scheduled termination date of coverage, computed at the schedule of rates in effect when the charge for said insurance was made. If said prepayment is made other than on an installment due date it shall be deemed to have been made on the first installment due date if said prepayment is made before that date, and in any other case it shall be deemed to have been made on the next preceding or next succeeding installment due date, whichever is nearer to the date of said prepayment. The holder of the agreement shall refund said unearned charges in the event of said prepayment.
The amount of death benefit payable shall be computed as of the date of death and shall, subject to any dollar limit specified in the group policy, include not less than the equivalent of six past due monthly payments on the agreement if and to the extent that payments are past due whether from delinquency, deferral, extension or other reason. No anticipated delinquency value shall be included in the amount of coverage on which said life insurance premiums are calculated. In the computation of said benefit, the assumed amount of said insurance shall not be less than the lesser of (1) the maximum amount of said insurance specified in the group policy, or (2) the actual outstanding principal balance of the indebtedness including the equivalent of up to six past due monthly payments if and to the extent that payments are past due. Notwithstanding the previous sentence, in the event an excess charge is made for said insurance, said amount of death benefit shall at no time be less than the amount for which a charge has been paid by the insured.
Every disclosure statement under the provisions of chapter one hundred and forty D involving said life insurance or accident and health insurance or involuntary unemployment insurance issued pursuant to this subsection shall contain all or part of the following language, corresponding to the types of insurance offered, printed in ten point boldface type:YOU CANNOT BE DENIED CREDIT SIMPLY BECAUSE YOU CHOOSE NOT TO BUY CREDIT INSURANCE. CREDIT LIFE INSURANCE AND CREDIT ACCIDENT AND HEALTH INSURANCE AND CREDIT INVOLUNTARY UNEMPLOYMENT INSURANCE ARE NOT REQUIRED TO OBTAIN CREDIT. INSURANCE WILL NOT BE PROVIDED UNLESS YOU SIGN AND AGREE TO PAY THE ADDITIONAL CHARGE.
The enrollment for said insurance shall not be a condition of obtaining financing nor shall it be a condition of entering into a retail installment sales agreement or revolving credit agreement. The denial of credit for failure to enroll for said insurance shall constitute a violation of chapter ninety-three A and chapter one hundred and seventy-six D.
Said involuntary unemployment insurance shall not be offered in connection with a consumer credit transaction subject to this section until the credit decision has been made and communicated to the credit applicant; provided, however, nothing in this sentence shall prohibit making pamphlets available to credit applicants, responding to questions by credit applicants concerning said insurance, or providing credit applications which contain a written offer of insurance to credit applicants.
This subsection shall not apply to insurance for which no identifiable charge is made to the buyer or buyers.
D. Any cancellation, surrender, or other refunds, and all dividends, received under non-group policies by the seller or any holder of the agreement shall forthwith be remitted to the buyer, or credited against any amounts then due under the agreement by the buyer to the seller or holder except to the extent applied toward payment for similar insurance protecting the interests of the buyer and the holder or either of them.
Section 27. A. Every revolving credit agreement shall contain the following notice appearing conspicuously directly above the space reserved in the agreement for the signature of the buyer: Notice of Buyer:(1) Do not sign this agreement if any of the spaces intended for the agreed terms are left blank.
(2) You are entitled to a copy of this agreement at the time you sign it.
(3) You may at any time pay off the full unpaid balance under this agreement.
(4) You may under certain circumstances redeem the property, if repossessed because of your default, and you may, under certain conditions, require a resale of the property if repossessed.
(5) The seller has no right to unlawfully enter your premises or commit any breach of the peace to repossess goods purchased under this agreement.
(6) You may cancel a purchase under this agreement if it has been signed by a party thereto at a place other than the address of the seller which may be his main office or branch thereof; provided you notify the seller in writing at his main office or branch, by ordinary mail posted, by telegram sent or by delivery, not later than midnight of the third business day following a purchase under this agreement.
If the seller does not take a security interest in goods purchased pursuant to the revolving credit agreement, clauses (4) and (5) need not be included in the notice, and if the agreement was not signed by the buyer at a place other than the address of the seller, which may be his main office or any branch thereof, one of which must be shown on the agreement, clause (6) need not be included in the notice.
B. (1) An installment seller or holder thereof under a revolving credit agreement may assess a finance charge upon the installment buyer which shall not exceed one and one-half per cent per month computed upon the outstanding unpaid balance thereunder from month to month, which need not be a calendar month, or other regular period. The outstanding unpaid balance shall be determined consistent with clause (3). If the amount of any finance charge is less than fifty cents for any month, fifty cents may be assessed, provided that no finance is assessed for a zero balance. An installment seller or a holder of a revolving credit agreement may, pursuant to such agreement, charge, receive and collect a delinquency charge on any payment not paid in full within fifteen days of its due date in an amount equal to ten percent of the outstanding balance or ten dollars, whichever is less; provided, however, that no such delinquency charge shall be charged, received or collected unless said installment seller or holder, at least thirty days prior thereto, shall have mailed a notice informing its installment buyers of the change in terms of such agreement providing for the charging, receiving and collecting of such delinquency charge and disclosing the amount of such delinquency charge that may be imposed under said agreement.
(2) Finance charges may be computed under revolving credit agreements within a range of not in excess of ten dollars on the basis of the median amount within the selected range, provided that such finance charge is applied to all unpaid balances within such range.
(3) (a) In the event that a finance charge is imposed, it shall be computed upon (i) the previous balance after all payments on account, returns and other credits made or given during the billing cycle shall have been first deducted; provided, however, that returns and other credits may be deducted only to the extent that the purchase to which the credit or return relates has been reflected in the previous balance; or (ii) the average daily balance determined by adding the daily balances on the account for each day in the billing cycle, and dividing this total by the number of days in the billing cycle. Any such delinquency charge shall not be included in the computation of said finance charge.
[There is no subclause (b).
] Section 28. After payment of all sums for which the buyer is obligated under a retail installment sale agreement, if the notice of the security interest has been filed or recorded or if the buyer so requests, the holder of such contract shall mail to the buyer, at his last known address, good and sufficient instruments to indicate payment in full and to release all security in the collateral, if any.
Section 29. A. The violation of sections nine, ten, eleven, thirteen, fifteen, sixteen, seventeen, eighteen, twenty-six or twenty-seven by any person shall bar his recovery of any finance charge, delinquency or collection charge or refinancing charge on the retail installment sale agreement or on the revolving credit agreement, or on the sale pursuant to a revolving credit agreement, but such violation shall not bar his right to (a) recover from the buyer an amount equal to the unpaid principal balance or (b) repossess the goods and recover from the buyer an amount equal to the unpaid balance less the proceeds of any disposition of the goods.
B. Subsection A shall not apply to any violation which any holder shall establish by a preponderance of the evidence to be the result of accident or bona fide error in (a) any mathematical computation, (b) the layout or format, size of type or order of clauses contained in such retail installment sale or revolving credit agreement, or (c) the failure to furnish the buyer any statement required by section nineteen or by subsection D of section twenty-seven.
C. An agreement made by any person subject to this chapter which violates the provisions of this chapter may be declared void by the supreme judicial or superior court upon a civil action brought by the buyer.
records; annual report Section 3. The commissioner may prescribe from time to time such rules and regulations as he deems necessary and proper for carrying out the provisions of this chapter including, but not limited to, the granting of licenses and the renewal thereof, the conduct of examinations and investigations and the keeping of records by a licensee. Such rules and regulations may contain such classifications, differentiations or other provisions and may provide for such adjustments and exceptions for a class of transactions as in the judgment of said commissioner are necessary and proper to carry out the provisions of this chapter, to prevent circumvention or evasion thereof or to facilitate compliance therewith. Said commissioner may, whenever he deems it to be in the public interest, examine the affairs of a licensee and, for said purpose, shall have free access to the premises and all business records of such licensee, may require the attendance of and examine under oath any person and shall have the power to compel the production of all such business records. Said commissioner shall assess appropriate fees, as determined annually by the commissioner of administration pursuant to section three B of chapter seven, upon the licensee for any such examination, including expenses for necessary travel outside the commonwealth for the purpose of conducting such examinations. Said commissioner of banks may cause a number of examinations of any such business records to be made by an accountant whom he may select and the cost of any such examination shall be paid by the licensee whose records are so examined.
A licensee shall keep and use such business records, in such form and at such location as said commissioner shall, by regulation, determine, which shall enable the commissioner to determine whether such licensee is complying with the provisions of this chapter and any rules or regulations promulgated hereunder by said commissioner and any other law, rule or regulation applicable to the conduct of the business for which it is licensed under this chapter. Such regulations may contain provisions for the suspension or revocation of licenses for violations hereof and for such records to be recorded, copied or reproduced by photographic, photostatic, microfilm, microcard, miniature photographic, electronic, including, but not limited to, optical imaging, or other process which accurately reproduces or forms a durable medium for reproducing the original record or document or in any other form, or manner authorized by the commissioner; provided, however, that nothing in this section shall be construed to permit any such licensee to destroy original records or documents. Each such licensee shall preserve all such business records for as long a period as the commissioner shall prescribe by regulation. Notwithstanding the provisions of any general or special law or the Massachusetts Rules of Civil Procedure to the contrary, service of a subpoena for business records upon a licensee, delivered to an office of such licensee located within the commonwealth, shall be deemed to have been service at the location, whether within or outside the commonwealth, where the original business records or documents are kept or maintained.
Each licensee shall annually, on or before April fifteenth, file a report with the commissioner containing such information as said commissioner may require concerning the business and operations during the preceding calendar year at each licensed place of business conducted by a licensee within the commonwealth. Any licensee neglecting to make such annual report or failing to amend the same within fifteen days of notice from the commissioner directing the same shall, unless such neglect or failure is due to justifiable cause and not due to wilful neglect, pay to the commonwealth fifty dollars for each day during which such neglect or failure continues.
Section 30. Whoever violates any provision of this chapter shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both.
Section 31. A transaction subject to the provisions of this chapter shall also be subject to the provisions of chapter one hundred and forty D and a retail seller or holder subject to the provisions of this chapter shall be subject to the provisions of said chapter one hundred and forty D and in the event of a conflict between the provisions of this chapter and said chapter one hundred and forty D, the provisions of said chapter one hundred and forty D shall control.
Section 32. Any notice required to be given under this chapter shall be deemed delivered when it is mailed by certified mail to the buyer.
Section 4. The commissioner, or such of his assistants as he may designate, may summon a licensee, or any of his agents or employees, and such other witness as he deems necessary, and examine them relative to their transactions, may require the production of books and papers and, for such purposes, may administer oaths. Whoever, without justifiable cause, fails or refuses to appear and testify or to produce books and papers when so required, or obstructs the commissioner or his representatives in the performance of their duties, shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months, or both.
Section 5. If the commissioner refuses to issue a license, he shall notify the applicant of the denial, and within twenty days thereafter he shall enter upon his records a written decision and findings containing the reasons supporting the denial, and shall forthwith give written notice thereof by registered mail to the applicant. Within thirty days after the date of such notice the applicant may appeal from such denial to the superior court for the county of Suffolk, sitting in equity. The court shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said denial and, as justice and equity may require, affirm the same or order the commissioner to issue such license.
commissioner Section 6. The commissioner, if he has reason to believe that any person other than a licensee has violated any of the provisions of this chapter, shall have the power to make such investigations as he shall deem necessary, and, to the extent necessary for this purpose he may examine such person and shall have the power to compel the production of all relevant books, records, accounts and documents.
The state police and the police of the cities or towns shall carry out the directions of the commissioner in enforcing the provisions of this chapter and any rules or regulations made hereunder by him. A violation of this chapter shall also be a violation of chapter ninety-three A.
Section 7. A license may be suspended or revoked by the commissioner on the following grounds: (1) material misstatement in application for license; (2) failure to comply with the provisions of this chapter; (3) defrauding any retail buyer to the buyer’s damage; (4) fraudulent misrepresentation, circumvention or concealment by the licensee through whatever subterfuge or device of any of the material particulars or the nature thereof required to be stated or furnished to the retail buyer under this chapter; (5) the existence of any fact or condition which, if it had existed at the time of the original application for such license, clearly would have warranted the commissioner in refusing to issue such license.
If a licensee is a partnership, corporation or trust, it shall be sufficient cause for the suspension or revocation of its license if any partner, officer, director or trustee thereof, so acts or fails to act as to constitute cause for suspending or revoking his license if he were licensed as an individual. Each licensee shall be responsible for any acts in violation of this chapter by any of his employees while acting as his agent, if such licensee after actual knowledge of said acts retained the benefits, proceeds, profits or advantages accruing from said acts or otherwise ratified said acts.
Section 8. No license shall be suspended or revoked except after hearing thereon by the commissioner or such of his assistants as he may designate. The commissioner shall give the licensee at least ten days’ written notice, in the form of an order to show cause, of the time and place of such hearing by registered mail addressed to the principal place of business in this commonwealth of such licensee. The said notice shall contain the grounds of complaint against the licensee. Any order suspending or revoking such license shall recite the grounds upon which the same is based. The order shall be entered upon the records of the commissioner and shall not be effective until after thirty days’ written notice thereof given after such entry forwarded by registered mail to the licensee at such principal place of business. No revocation, suspension or surrender of any license shall impair or affect the obligation of any lawful retail installment sale agreement acquired previously thereto by the licensee. Within thirty days after such suspension or revocation the person aggrieved thereby may appeal to the superior court for the county of Suffolk, sitting in equity. The court shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said suspension or revocation and, as justice and equity may require, affirm the same or order that the commissioner rescind it.
contents Section 9. A. The printed terms of every retail installment sale agreement shall be set in at least eight point type, except as otherwise required herein. If the terms of a retail installment sale agreement are contained on both sides of a page, there shall appear on the first page the following words appearing conspicuously “The terms of this agreement are contained on both sides of this page.
” If the terms of a retail installment sale agreement are contained on more than both sides of one page, there shall appear on the first side of each preceding page, the following words appearing conspicuously “The terms of this agreement are contained on more than one page.
”B. Every retail installment sale agreement shall be in writing and shall include the date when signed, the name and address of both the seller and the buyer, a description of the goods or services purchased, a description of collateral securing the installment buyer’s obligations under the agreement, if any, and, at the top of the first page of the agreement appearing conspicuously the words “Retail Installment Sale Agreement—Subject to State Regulation.
”[There is no subsection C.
] D. Every retail installment sale agreement shall contain the following notice appearing conspicuously directly above the space reserved in the agreement for the signature of the buyer: Notice to Buyer;(1) Do not sign this agreement if any of the spaces intended for the agreed terms to the extent of then available information are left blank.
(2) You are entitled to a copy of this agreement at the time you sign it.
(3) You may at any time pay off the full unpaid balance due under this agreement, and in so doing you may receive a partial rebate of the finance and insurance charges.
(4) You may under certain circumstances redeem the property if repossessed because of your default, and you may, under certain conditions, require a resale of the property if repossessed.
(5) The seller has no right to unlawfully enter your premises or commit any breach of the peace to repossess goods purchased under this agreement.
If the seller takes no security interest in the goods, clauses (4) and (5) need not be included in the notice.
D1/2. Every retail installment sale agreement signed by the buyer at a place other than an address of the seller, which may be his main office or branch thereof, one of which must be shown on the agreement, shall be in writing in the same language as that principally used in the oral sales presentation, except as further provided herein and shall also contain the following statement appearing on the front page thereof in the immediate proximity to the space reserved for the buyer’s signature and in boldface type of a minimum size of ten points:You may cancel this agreement if it has been signed by a party thereto at a place other than an address of the seller, which may be his main office or branch thereof, provided you notify the seller in writing at his main office or branch, by ordinary mail posted, by telegram sent or by delivery, not later than midnight of the third business day following the signing of this agreement.
See the attached notice of cancellation form for an explanation of this right.
Each such agreement, except as further provided herein, shall have attached thereto a completed form in duplicate, which shall be easily detachable, and which shall contain in ten point boldface type the following in the same language as that used in the agreement:NOTICE OF CANCELLATION (Enter date of transaction) (Date) You may cancel this transaction, without any penalty or obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you under the agreement, and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be cancelled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this agreement; or you may if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.
To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to___________________________________________________________________ (Name of seller)at ______________________________________ not later than midnight (Address of seller’s place of business)of _________ (Date)I hereby cancel this transaction. ________________ (Date)________________________________________ (Buyer’s signature) Forms and notices of the right to cancel prescribed by rules of the Federal Trade Commission may be substituted for the forms and notices required by this subsection.
The failure to include a required or an agreed term or to deliver a copy of the agreement signed by the seller or lessor shall give the buyer the right to cancel said agreement until the omitted term is provided or the copy of the agreement delivered. In either case, the three business day time period during which the buyer may cancel shall not commence until the failure to include the terms or deliver a copy has been corrected.
The seller shall inform the buyer orally, at the time he signs the agreement, of his right to cancel and shall not misrepresent in any manner this right.
The seller shall not negotiate, transfer, sell or assign any such agreement to a finance company or other third party prior to midnight of the fifth business day following the day the agreement was signed. No negotiation, transfer, sale or assignment of any agreement shall defeat or limit the buyer’s right to cancel the agreement because of failure to include a required or an agreed term or to deliver an accurate copy of the agreement.
This subsection shall not apply to a transaction in which the buyer is accorded the right of rescission by the provisions of chapter one hundred and forty D; or the buyer has initiated the contract and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer’s handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days.
A seller of services shall not commence such service during the three business day cancellation period, and the buyer shall not be responsible for the value of work performed during such period, in the event of cancellation.
E. The seller shall deliver to the buyer, or mail to him at his address shown on the retail installment sale agreement, an executed copy thereof. Any acknowledgment by the buyer of delivery of a copy of the agreement shall be conspicuously printed or written and, if contained in the agreement, shall also appear directly to the left of the space reserved for the buyer’s signature. The buyer’s written acknowledgment, conforming to the requirements of this section, of delivery of a copy of a retail installment sale agreement shall be presumptive evidence of such delivery and of compliance with this section in any action or proceeding by or against an assignee of the agreement without knowledge to the contrary when he purchases the retail installment sale agreement.
F. Any sale otherwise subject to the provisions of this chapter which has been negotiated or entered into by mail or telephone without personal solicitation by a salesman or other representative of the seller, where the seller’s cash and deferred payment prices and other terms are clearly set forth in a catalog or other printed solicitation of business which is generally available to the public, shall not be subject to the requirements that a copy of the contract be signed by the buyer or be delivered to the buyer; provided, that the seller delivers to the buyer, before the date for the payment of the first installment, a memorandum of the purchase containing all of the essential elements of the agreement. The prohibition against blank spaces contained in section ten shall not apply to the seller where a sale is negotiated or entered into by mail.
Section 9A. In any transaction involving the modernization, rehabilitation, repair, alteration, improvement or construction of real property, a writing signed by the buyer that such work has been satisfactorily completed shall not be valid unless the work to be performed by the seller is actually completed.
Section 1. As used in this chapter the following words shall, unless the context otherwise requires, have the following meanings:—“Commissioner”, the commissioner of banks.
“Mortgage broker”, any person who for compensation or gain, or in the expectation of compensation or gain, directly or indirectly negotiates, places, assists in placement, finds or offers to negotiate, place, assist in placement or find mortgage loans on residential property for others.
“Mortgage lender”, any person engaged in the business of making mortgage loans, or issuing commitments for mortgage loans.
“Mortgage loan”, a loan to a natural person made primarily for personal, family or household purposes secured wholly or partially by a mortgage on residential property.
“Residential property”, real property located in the commonwealth having thereon a dwelling house with accommodations for four or less separate households and occupied, or to be occupied, in whole or in part by the obligor on the mortgage debt.
Section 10. Whoever violates any provision of section two or any rule or regulation made thereunder by the commissioner shall be punished by a fine of not more than $1,000, or by imprisonment for not more than six months, or both such fine and imprisonment. Each day such violation occurs or continues shall be deemed a separate offense. The penalty provision of this section shall be in addition to, and not in lieu of, any other law applicable to a licensee or other person for violating section 2 or any rule or regulation made thereunder.
Section 11. (a) Whenever the commissioner finds that any licensee or exempt person under section 2 has violated this chapter or any rule or regulation adopted thereunder, or any other law of the commonwealth applicable to the conduct of the business of making or brokering mortgage loans on residential property in the commonwealth, the commissioner may, by order, in addition to any other action authorized under this chapter or any rule or regulation made thereunder, impose a penalty upon the person which shall not exceed $5,000 for each violation, up to a maximum of $100,000 for such violation plus the costs of investigation. The commissioner may impose a penalty which shall not exceed $5,000 for each violation of this chapter, or any rule or regulation adopted thereunder, by a person other than a licensee or exempt person under section 2, plus the costs of investigation.
(b) Nothing in this section shall limit the right of any individual or entity who has been injured as a result of any violation of this chapter by a licensee, or any person other than a licensee or exempt person under section 2, to bring an action to recover damages or restitution in a court of competent jurisdiction.
(c) Any findings or order issued by the commissioner pursuant to this section shall be subject to review as provided in chapter 30A.
statement of facts; order of prohibition; service Section 12. (a) Whenever the commissioner determines that any person has, directly or indirectly, violated any section of this chapter or any rule or regulation adopted thereunder, applicable to the conduct of the business of making or brokering mortgage loans on residential property in the commonwealth, or any order issued by the commissioner under this chapter or any written agreement entered between the licensee and the commissioner, the commissioner may serve upon that person a written notice of intention:(1) to prohibit the person from performing in the capacity of a principal employee on behalf of any licensee for a period of time that the commissioner considers necessary;(2) to prohibit the person from applying for or obtaining a license from the commissioner for a period up to 36 months following the effective date of an order issued under subsection (b) or (c); or(3) to prohibit the person from any further participation, in any manner, in the conduct of the affairs of a mortgage lender or mortgage broker in Massachusetts or to prohibit the person from being employed by, an agent of, or operating on behalf of a licensee under this chapter or any other business which requires a license from the commissioner.
(b) A written notice issued under subsection (a) shall contain a written statement of the facts that support the prohibition and shall give notice of an opportunity for a hearing to be held thereon. The hearing shall be fixed for a date not more than 30 days after the date of service upon the commissioner of the request for a hearing. If the person fails to submit a request for a hearing within 20 days of service of notice under subsection (a), or otherwise fails to appear in person or by a duly authorized representative, the party shall be considered to have consented to the issuance of an order of prohibition in accordance with the notice.
(c) In the event of the consent under subsection (b), or if after a hearing the commissioner finds that any of the grounds specified in the notice have been established, the commissioner may issue an order of prohibition in accordance with subsection (a) as the commissioner finds appropriate.
(d) An order issued under subsection (b) or (c) shall be effective upon service upon the person. The commissioner shall also serve a copy of the order upon the licensee of which the person is an employee or on whose behalf the person is performing. The order shall remain in effect and enforceable until it is modified, terminated, suspended, or set aside by the commissioner or a court of competent jurisdiction.
(e) Except as consented to in writing by the commissioner, any person who, pursuant to an order issued under subsection (b) or (c), has been prohibited from participating in whole or in part in the conduct of the affairs of a mortgage lender or mortgage broker in Massachusetts may not, while the order is in effect, continue or commence to perform in the capacity of a principal employee, or otherwise participate in any manner, if so prohibited by order of the commissioner, in the conduct of the affairs of:—(1) any licensee under this chapter;(2) any other business which requires a license from the commissioner; or(3) any bank, as defined under section 1 of chapter 167 or any subsidiary thereof.
exempted entities Section 2. No person shall act as a mortgage broker or mortgage lender with respect to residential property unless first obtaining a license from the commissioner; provided, however, that any person who is employed by or associated with a licensed mortgage broker or mortgage lender in the capacity of a mortgage broker or mortgage lender under the direction of said licensed mortgage broker or mortgage lender shall not be required to obtain such license. The provisions of this chapter shall not apply to any mortgage lender making fewer than five mortgage loans within any period of twelve consecutive months; provided, however, that in computing the number of mortgage loans, there shall be counted in the loans of more than one partnership, association, trust or corporation, the majority interest of which are owned or controlled directly or indirectly by the same person or persons, partnerships, associations, trusts or corporations and including in the loans of a partnership or company not incorporated the loans of the several members thereof. The provisions of this chapter shall not apply to any person who acts as a mortgage broker fewer than five times within any period of twelve consecutive months. The provisions of this chapter shall not apply to a bank as defined in section one of chapter one hundred and sixty-seven, a national banking association, a federally chartered credit union, a federal savings and loan association, a federal savings bank, or any subsidiary or affiliate of the above, insurance company, or to any bank, trust company, savings bank, savings and loan association, credit union or insurance company organized under the laws of any other state; provided, however, that except as provided herein, such provisions shall apply to any subsidiary or affiliate, as defined by the commissioner, of any such exempted entity and of a bank holding company established in accordance with state or federal law; and provided, further, that such provisions shall not apply to any instrumentality created by the United States or any state or to any nonprofit, public or independent post-secondary educational institution within the commonwealth authorized by law to grant degrees by the commonwealth, or by any agency or instrumentality thereof, for mortgage loans made by any such educational institution to its faculty or staff, or to any nonprofit agency or corporation incorporated under the laws of the commonwealth for the purpose of assisting low to moderate income households in the purchase or rehabilitation of family residences of four units or less and which holds tax-exempt status granted under the provisions of Section 501 (c) (3) or 501 (c) 4 of the Internal Revenue Code, or to any charitable organization originally created by a last will and testament before January first, nineteen hundred and fifty which makes no more than twelve mortgage loans during a twelve month period or to a real estate broker or real estate salesman as defined in section eighty-seven PP of chapter one hundred and twelve who, in connection with services performed in a prospective real estate transaction, provides mortgage information or assistance to a buyer if such real estate broker or real estate salesman is not compensated for the same in addition to the compensation received from the seller for such real estate services. The commissioner may adopt, amend or repeal rules and regulations, which may include an adequate capitalization requirement for mortgage lenders, to aid in the administration and enforcement of this chapter.
Section 3. The application for a license shall be in writing and in the form prescribed by the commissioner and shall contain the name and address or addresses where the business of the applicant is located and if the applicant is a partnership, association, corporation or other form of business organization, the names and addresses of each member, director and principal officer thereof. Such application shall also include a description of the activities of the applicant, in such detail and for such periods, as the commissioner may require, as well as such further information as the commissioner may require. Each application for a license shall be accompanied by an investigation fee. Investigation and license fees shall be determined annually by the commissioner of administration under the provisions of section three B of chapter seven.
license denial; appeal Section 4. Upon the filing of an application for a license, if the commissioner finds that the financial responsibility, character, reputation, integrity and general fitness of the applicant, and of the partners or members thereof if the applicant is a partnership or association, and of the officers, directors and principal employees if the applicant is a corporation, are such as to warrant belief that the business will be operated honestly, fairly, soundly and efficiently in the public interest consistent with the purposes of this chapter, he shall thereupon issue the applicant a license to engage in the business of a mortgage lender or mortgage broker. If the commissioner shall not so find, he shall not issue a license and he shall notify the applicant of the denial. Within twenty days thereafter, he shall enter upon his records a written decision and findings containing the reasons supporting the denial and shall forthwith give written notice thereof by registered mail to the applicant. Within thirty days after the date of such notice, the applicant may appeal from such denial to the superior court for Suffolk county, sitting in equity. The court shall hear all pertinent evidence and determine the facts and upon the facts as so determined, review said denial and, as justice and equity may require, affirm the same or order the commissioner to issue such license. The commissioner shall approve or deny every application for a license within ninety days after the filing thereof, but any failure of the commissioner to act within such period shall not be deemed to be an approval of any such application.
requirements Section 5. Each license shall state the address at which the business is to be conducted and shall state the name of the licensee. If a licensee intends to carry on such business at any place other than the address on the license, he shall so notify the commissioner, in writing, at least thirty days prior thereto. Such notice shall contain the address of any such place and such other information as the commissioner may require; provided, however, that any such business shall at all times be conducted in the name of the licensee as it appears on the license. A copy of such license shall be prominently posted in each place of business of the licensee. Such copies for places of business at addresses other than that appearing on the license may be obtained at a reasonable cost, as determined by the commissioner. Such license shall not be transferrable or assignable and shall expire annually on June first. Any change of location or closing of a place of business of the licensee, either at the address stated on the license or at a place other than said address stated on the license, shall require prior written notice thereof to the commissioner. Such notice shall be in writing setting forth the reason therefor and shall be filed with the commissioner at least thirty days prior to any such relocation or closing. If there shall be any change among the members, officers, partners or directors of any licensee, the licensee shall notify the commissioner in a timely manner of the name, address and occupation of each new member, officer, partner or director, and provide such other information as the commissioner may require.
hearing Section 6. The commissioner may suspend or revoke any license issued pursuant to this chapter if said commissioner finds that:(i) the licensee has violated any provision of this chapter or any rule or regulation adopted hereunder, or any other law applicable to the conduct of its business; or(ii) any fact or condition exists which, if it had existed at the time of the original application for such license, would have warranted the commissioner in refusing to issue such license.
Except as provided in section seven, no license shall be revoked or suspended except after notice and a hearing thereon pursuant to chapter thirty A.
A licensee may surrender a license by delivering to the commissioner written notice that it thereby surrenders such license, but such surrender shall not affect the civil or criminal liability of the licensee for acts committed before such surrender.
No revocation, suspension or surrender of any license shall impair or affect the obligation of any pre-existing lawful contract between the licensee and any person.
from unlawful act or practice; prior notice and opportunity for hearing; temporary order Section 7. (a) If the commissioner determines, after giving notice of and opportunity for a hearing, that a licensee has engaged in or is about to engage in an act or practice constituting a violation of a provision of this chapter or a rule, regulation or order hereunder, he may order such licensee to cease and desist from such unlawful act or practice and take such affirmative action as in his judgment will effect the purposes of this chapter.
(b) If the commissioner makes written findings of fact that the public interest will be irreparably harmed by delay in issuing an order under subsection (a) he may issue a temporary cease and desist order. Upon the entry of a temporary cease and desist order, the commissioner shall promptly notify, in writing, the licensee affected thereby that such order has been so entered, the reasons therefor, and that within twenty days after the receipt of a written request from such licensee, the matter will be scheduled for hearing to determine whether or not such temporary order shall become permanent and final. If no such hearing is requested and none is ordered by the commissioner, the order shall remain in effect until it is modified or vacated by the commissioner. If a hearing is requested or ordered, the commissioner, after giving notice of and opportunity for a hearing to the licensee subject to said order, shall, by written finding of facts and conclusions of law, vacate, modify or make permanent the order.
(c) No order under this section, except an order issued pursuant to subsection (b), may be entered without prior notice of and opportunity for a hearing. The commissioner may vacate or modify an order under this section upon finding that the conditions which required such an order have changed and that it is in the public interest to so vacate or modify.
Any order issued pursuant to this section shall be subject to review as provided in chapter thirty A.
Section 8. Each licensee shall annually, on or before the fifteenth day of April, file a report with the commissioner containing such information as said commissioner may require concerning the business and operations during the preceding calendar year at each licensed place of business conducted by a licensee in the commonwealth. A licensee neglecting to file such report or failing to amend the same within fifteen days of notice from said commissioner directing the same shall, unless such neglect or failure is due to justifiable cause and not due to wilful neglect, pay to the commonwealth fifty dollars for each day during which such neglect or failure continues.
A licensee shall keep and use such business records in such form and at such location as said commissioner shall, by regulation, determine, which shall enable said commissioner to determine whether such licensee is complying with the provisions of this chapter and any rules or regulations promulgated hereunder by said commissioner and any other law, rule or regulation applicable to the conduct of the business for which it is licensed under this chapter. Such regulations may contain provisions for the suspension or revocation of licenses for violations hereof and for such records to be recorded, copied or reproduced by photographic, photostatic, microfilm, microcard, miniature photographic, electronic, including, but not limited to, optical imaging, or other process which accurately reproduces or forms a durable medium for reproducing the original record or document or in any other form or manner authorized by the commissioner; provided, however, that nothing in this section shall be construed to permit any such licensee to destroy original records or documents. Each such licensee shall preserve all such business records for as long a period as the commissioner shall prescribe by regulation. Notwithstanding the provisions of any general or special law or the Massachusetts Rules of Civil Procedure to the contrary, service of a subpoena for business records upon a licensee, delivered to an office of such licensee located within the commonwealth shall be deemed to have been served at the location, whether within or outside the commonwealth, where the original business records or documents are kept or maintained.
Each licensee shall, when directed by said commissioner, permit said commissioner or his duly authorized representative to inspect its relevant records and evidence of compliance with the provisions of this chapter or any rule or regulation issued hereunder and with any other law, rule or regulation applicable to the conduct of the business for which it is licensed under this chapter. During the course of such inspection a mortgage lender that has made 50 or more home mortgage loans in the last calendar year shall be examined for its compliance with fair lending laws including but not limited to the requirements of the federal Equal Credit Opportunity Act, Home Mortgage Disclosure Act, and the Predatory Home Loan Practices Act. For the purposes of such inspection, said commissioner or his representative shall have access to the offices and place of business, books, accounts, papers, records and files of all such licensees. Said commissioner, and any person designated by him, may require the attendance and testimony of any person whom he deems necessary relative to the conduct and operation of such business. The total cost for any such inspection, which shall be paid by the licensee within thirty days after the receipt of an invoice therefor, shall be in accordance with fees determined annually by the commissioner of administration pursuant to section three B of chapter seven, including expenses for necessary travel outside the commonwealth for the purposes of conducting such inspections.
Section 9. The commissioner may enforce the provisions of this chapter, or restrain any violations thereof, by filing a civil action in any court of competent jurisdiction.
Section 1. A person who is competent to contract by bond may subject his person and property to be taken on execution by entering into a recognizance before the superior court in any county, substantially as follows:Be it remembered that on this day of , of personally appeared before and acknowledged himself to be indebted to of in the sum of to be paid to said on the day of , (or in years, or in months, from this day) with interest from this day; and, if not then paid, to be levied upon his goods, chattels, lands and tenements, and, for want thereof, upon his body. In witness whereof said hath hereto set his hand.
The clause as to the payment of interest may be altered or omitted according to the agreement of the parties; but, unless the recognizance otherwise expressly provides, interest shall be allowed for any delay after the time for payment.
Section 2. The recognizance shall be attested by the clerk of the court, shall be recorded at length in a book kept for the purpose and the original shall then be delivered to the conusee. It shall not be taken unless the justice who takes it knows or has satisfactory evidence that the person offering to enter into it is the person whom he represents himself to be and who is described as the conusor.
Section 3. If the debt is not paid at the time named in the recognizance, the court may issue an execution in favor of the conusee for the amount due, which shall be directed, served and returned in like manner and have like effect as an execution issued upon a judgment of said court. Such execution may be levied and shall be obeyed in any county to which it is directed. The conusee shall be entitled to an alias and other successive executions as in a civil action.
Section 4. Before such execution issues, the original recognizance shall be filed with the clerk, who shall compute the amount, deducting any payments endorsed, and shall issue an execution therefor in common form except that it shall recite the recognizance and state the amount then due. Such execution may be issued by the clerk without a special order of the court.
Section 5. If the conusee dies before the debt is paid, his executor or administrator may, upon exhibiting to the clerk his letters testamentary or of administration, take out the execution and the form thereof shall be altered accordingly.
Section 6. If the conusor dies before the debt is fully paid, no execution therefor shall issue as of course, but his estate shall be liable for the debt in like manner as if judgment therefor had been rendered against him in his lifetime; and the conusee or his executor or administrator may recover the same from the executor, administrator, heirs or devisees of the conusor. Such debt may be recovered by civil action in the superior court or in a district court.
Section 7. If one or more of several conusees or conusors dies before the debt is fully satisfied, the rights and obligations of the survivors and the proceedings for the recovery of the debt shall be substantially the same as in the case of the death of one or more joint judgment creditors or debtors.
issuance Section 8. No original execution shall issue as of course upon such recognizance after the expiration of three years from the time therein named for payment of the debt or from the time of the last payment endorsed thereon, but the conusee or his executor or administrator after that time may bring a civil action in the superior court or the district court against the party liable, in like manner and with like effect as upon a judgment.
Section 9. A person who is injured by the wrongful issue or levy of an execution under this chapter may have a remedy as if the execution had been issued upon a judgment; and, except as otherwise expressly provided, the parties to such recognizance and their representatives shall be entitled and liable to the remedies provided for judgment creditors and debtors.
Section 1. Property which has been forfeited for an offence may, if no other provision is made, be seized by a person entitled to enforce the forfeiture or, except as otherwise provided, by a police officer or constable of the town where the forfeited property is found, and shall be safely kept by him until it is disposed of as hereinafter provided.
Section 10. In all other cases the court shall award costs to the prevailing party or may order the costs and charges of keeping and selling the property or any part thereof to be paid out of the proceeds.
precedent Section 11. Property which is alleged to have been forfeited may after its seizure be delivered to the owner or a person entitled to claim the same, upon his giving to the person who made the seizure a bond in double the value of the property, with sufficient surety, conditioned to restore the property, or pay the appraised value thereof if it is decreed forfeited, and to abide by and perform the final order, decree or judgment.
Section 12. The value of the property shall be determined by three disinterested persons appointed by the parties or by a justice of the peace to whom the claimant applies therefor, or, if the appraisal is made after the libel has been filed, by the court before whom it is pending.
Section 13. The person who makes the seizure shall forthwith, unless an application for an appraisal has been made by a claimant, apply to a justice of the peace, who shall appoint three disinterested persons to make an inventory and appraisal of the property seized. Such appraisers shall be sworn and shall return their inventory and appraisal to the court before whom the libel is pending.
Section 15. If appraisers appointed under section thirteen certify that property so seized is perishable and likely to depreciate in value by being kept, any district court may order a sale by auction of such property at such time and after such notice as the order, which shall be endorsed on the inventory, shall direct; but this section shall not affect the power of the court in which the libel is pending to order a sale of the property for sufficient cause at any time during the pendency of the libel.
Section 2. The person who makes the seizure shall, within fourteen days thereafter, file a libel in the superior court or in a district court, stating briefly the cause of the seizure without the details, and praying for a decree of forfeiture.
Section 3. A libel may be brought either in the superior court in the county where the offence was committed, or in a district court having jurisdiction of the offence.
Section 4. Upon the filing of a libel in the superior court, the clerk shall issue an order of notice, stating briefly the substance of the libel, which the libellant shall cause to be published twice at least in a newspaper published in the county, the first publication to be not less than fourteen days before the return day.
Section 5. If the libel is filed in a district court the court shall issue an order of notice, stating briefly the substance of the libel and the time and place appointed for the hearing, which the libellant shall cause to be posted in a public place within the jurisdiction of such court not less than seven days before the time appointed for the hearing.
Section 6. The libel shall be entered and conducted as a civil action; and if after notice no claimant appears, the court shall, upon a hearing, decree a forfeiture, restoration or other appropriate disposition of the property. If a claimant appears, he may allege and answer any matter material for his defence, and either party shall be entitled to claim a jury trial upon issues of fact as in other civil actions.
Section 7. If the libellant maintains his action, the court shall decree a forfeiture and sale of the property and a distribution of the proceeds, or other appropriate disposition thereof. If he fails to maintain it, the court shall decree a restitution of the property to the claimant.
Section 8. If property is sold under such decree, the proceeds shall be applied under the direction of the court to the payment of the expenses of the seizure, prosecution and sale; and in default of any other provision for the disposition of the residue, it shall be paid to the person who made the seizure.
Section 9. If it is found that the seizure was groundless and without probable cause, reasonable damages shall be assessed for the claimant, and the court shall render judgment for such damages with costs.
THEREOF Chapter 258: Section 1. Definitions Section 1. As used in this chapter the following words shall have the following meanings:—“Acting within the scope of his office or employment”, acting in the performance of any lawfully ordered military duty, in the case of an officer or soldier of the military forces of the commonwealth.
“Executive officer of a public employer”, the secretary of an executive office of the commonwealth, or in the case of an agency not within the executive office, the attorney general; the adjutant general of the military forces of the commonwealth; the county commissioners of a county; the mayor of a city, or as designated by the charter of the city; the selectmen of a town or as designated by the charter of the town; and the board, directors, or committee of a district in the case of the public employers of a district, and, in the case of any other public employer, the nominal chief executive officer or board.
“Public attorney”, the attorney who shall defend all civil actions brought against a public employer pursuant to this chapter. In the case of the commonwealth he shall be the attorney general; in the case of any county he shall be the district attorney as designated in sections twelve and thirteen of chapter twelve; in the case of a city or town he shall be the city solicitor or town counsel, or, if the town has no such counsel, an attorney employed for the purpose by the selectmen; in the case of a district he shall be an attorney legally employed by the district for that purpose. A public attorney may also be an attorney furnished by an insurer obligated under the terms of a policy of insurance to defend the public employer against claims brought pursuant thereto.
“Public employee”, elected or appointed, officers or employees of any public employer, whether serving full or part-time, temporary or permanent, compensated or uncompensated, and officers or soldiers of the military forces of the commonwealth. For purposes of this chapter, the term “public employee” shall include an approved or licensed foster caregiver with respect to claims against such caregiver by a child in the temporary custody and care of such caregiver or an adult in the care of such caregiver for injury or death caused by the conduct of such caregiver; provided, however, that such conduct was not intentional, or wanton and willful, or grossly negligent. For this purpose, a caregiver of adults means a member of a foster family, or any other individual, who is under contract with an adult foster care provider as defined and certified by the division of medical assistance.
“Public employer”, the commonwealth and any county, city, town, educational collaborative, or district, including any public health district or joint district or regional health district or regional health board established pursuant to the provisions of section twenty-seven A or twenty-seven B of chapter one hundred and eleven, and any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof including a local water and sewer commission including a municipal gas or electric plant, a municipal lighting plant or cooperative which operates a telecommunications system pursuant to section 47E of chapter 164, department, board and commission, which exercises direction and control over the public employee, but not a private contractor with any such public employer, the Massachusetts Bay Transportation Authority, the Massachusetts Port Authority, the Massachusetts Turnpike Authority, or any other independent body politic and corporate. With respect to public employees of a school committee of a city or town, the public employer for the purposes of this chapter shall be deemed to be said respective city or town.
THEREOF Chapter 258: Section 10. Application of Secs. 1 to 8 Section 10. The provisions of sections one to eight, inclusive, shall not apply to:—(a) any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer, or any municipal ordinance or by-law, whether or not such statute, regulation, ordinance or by-law is valid;(b) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused;(c) any claim arising out of an intentional tort, including assault, battery, false imprisonment, false arrest, intentional mental distress, malicious prosecution, malicious abuse of process, libel, slander, misrepresentation, deceit, invasion of privacy, interference with advantageous relations or interference with contractual relations;(d) any claim arising in respect of the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officer;(e) any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization;(f) any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code, or contains a hazard to health or safety, except as otherwise provided in clause (1) of subparagraph (j).
(g) any claim based upon the failure to establish a fire department or a particular fire protection service, or if fire protection service is provided, for failure to prevent, suppress or contain a fire, or for any acts or omissions in the suppression or containment of a fire, but not including claims based upon the negligent operation of motor vehicles or as otherwise provided in clause (1) of subparagraph (j).
(h) any claim based upon the failure to establish a police department or a particular police protection service, or if police protection is provided, for failure to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law, but not including claims based upon the negligent operation of motor vehicles, negligent protection, supervision or care of persons in custody, or as otherwise provided in clause (1) of subparagraph (j).
(i) an claim based upon the release, parole, furlough or escape of any person, including but not limited to a prisoner, inmate, detainee, juvenile, patient or client, from the custody of a public employee or employer or their agents, unless gross negligence is shown in allowing such release, parole, furlough or escape.
(j) any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer. This exclusion shall not apply to:(1) any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances. A permit, certificate or report of findings of an investigation or inspection shall not constitute such assurances of safety or assistance; and(2) any claim based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than he was in before the intervention; and(3) any claim based on negligent maintenance of public property; (4) any claim by or on behalf of a patient for negligent medical or other therapeutic treatment received by the patient from a public employee.
Nothing in this section shall be construed to modify or repeal the applicability of any existing statute that limits, controls or affects the liability of public employers or entities.
THEREOF Chapter 258: Section 11. Frivolous claims; costs; subsequent actions Section 11. If the judgment in any action brought under this chapter is in favor of the public employer, judgment for costs and execution thereon may issue in favor of the public employer, if the court finds the action brought by the claimant to have been frivolous or in bad faith, and final judgment on the action shall be a bar to any other or further action being brought on the same claim or subject matter.
THEREOF Chapter 258: Section 12. Enforcement of claims Section 12. Claims against the commonwealth, except as otherwise expressly provided in this chapter or by any general or special provision of law, may be enforced in the superior court.
THEREOF Chapter 258: Section 13. Indemnity of municipal officials Section 13. Any city or town which accepted section one hundred I of chapter forty-one on or before July twentieth, nineteen hundred and seventy-eight, and any other city which accepts this section according to its charter, and any town which accepts this section in the manner hereinafter provided in this section shall indemnify and save harmless municipal officers, elected or appointed from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission, except an intentional violation of civil rights of any person, if the official at the time of such act or omission was acting within the scope of his official duties or employment.
This act shall be submitted for acceptance to the voters of each town at an annual town meeting in the form of the following question which shall be placed on the official ballot to be used for the election of town officers at said meeting:—“Shall the town vote to accept the provisions of section thirteen of chapter two hundred and fifty-eight of the General Laws which provides that the town shall indemnify and save harmless municipal officers, elected or appointed, from personal financial loss and expense including reasonable legal fees and costs, if any, in an amount not to exceed one million dollars, arising out of any claim, demand, suit or judgment by reason of any act or omission except an intentional violation of civil rights of any person under any law, if the official at the time of such act or omission was acting within the scope of his official duties or employment. ” If a majority of the votes in answer to said question is in the affirmative, said provisions shall thereupon take full effect, but not otherwise.
THEREOF Chapter 258: Section 2. Liability; exclusiveness of remedy; cooperation of public employee; subsequent actions; representation by public attorney Section 2. Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable to levy of execution on any real and personal property to satisfy judgment, and shall not be liable for interest prior to judgment or for punitive damages or for any amount in excess of one hundred thousand dollars. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer or, the public employee or his estate whose negligent or wrongful act or omission gave rise to such claim, and no such public employee or the estate of such public employee shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment; provided, however, that a public employee shall provide reasonable cooperation to the public employer in the defense of any action brought under this chapter. Failure to provide such reasonable cooperation on the part of a public employee shall cause the public employee to be jointly liable with the public employer, to the extent that the failure to provide reasonable cooperation prejudiced the defense of the action. Information obtained from the public employee in providing such reasonable cooperation may not be used as evidence in any disciplinary action against the employee. Final judgment in an action brought against a public employer under this chapter shall constitute a complete bar to any action by a party to such judgment against such public employer or public employee by reason of the same subject matter.
Notwithstanding that a public employee shall not be liable for negligent or wrongful acts as described in the preceding paragraph, if a cause of action is improperly commenced against a public employee of the commonwealth alleging injury or loss of property or personal injury or death as the result of the negligent or wrongful act or omission of such employee, said employee may request representation by the public attorney of the commonwealth. The public attorney shall defend the public employee with respect to the cause of action at no cost to the public employee; provided, however, that the public attorney determines that the public employee was acting within the scope of his office or employment at the time of the alleged loss, injury, or death, and, further, that said public employee provides reasonable cooperation to the public employer and public attorney in the defense of any action arising out of the same subject matter. If, in the opinion of the public attorney, representation of the public employee, under this paragraph would result in a conflict of interest, the public attorney shall not be required to represent the public employee. Under said circumstances, the commonwealth shall reimburse the public employee for reasonable attorney fees incurred by the public employee in his defense of the cause of action; provided, however, that the same conditions exist which are required for representation of said employee by the public attorney under this paragraph.
THEREOF Chapter 258: Section 3. Venue; jurisdiction Section 3. All civil actions brought against a public employer on a claim for damages cognizable under this chapter shall be brought in the county where the claimant resides or in the county where such public employer is situated, except that in the case of the commonwealth such civil actions shall be brought in the county where the claimant resides or in Suffolk county. The superior court shall have jurisdiction of all civil actions brought against a public employer. The district court and housing court shall have jurisdiction of actions brought against housing authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen.
THEREOF Chapter 258: Section 4. Instituting claims; final denial; limitation of actions Section 4. A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing and sent by certified or registered mail, or as otherwise provided by this section. The failure of the executive officer to deny such claim in writing within six months after the date upon which it is presented, or the failure to reach final arbitration, settlement or compromise of such claim according to the provisions of section five, shall be deemed a final denial of such claim. No civil action shall be brought more than three years after the date upon which such cause of action accrued. Disposition of any claim by the executive officer of a public employer shall not be competent evidence of liability or amount of damages.
Notwithstanding the provisions of the preceding paragraph, in the case of a city or town, presentment of a claim pursuant to this section shall be deemed sufficient if presented to any of the following: mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, town clerk, chairman of the board of selectmen, or executive secretary of the board of selectmen; provided, however, that in the case of the commonwealth, or any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof, presentment of a claim pursuant to this section shall be deemed sufficient if presented to the attorney general.
The provisions of this section shall not apply to such claims as may be asserted by third-party complaint, cross claim, or counter-claim, or to small claims brought against housing authorities pursuant to sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen; provided however, that no small claim shall be brought against a housing authority more than three years after the date upon which the cause of action arose.
THEREOF Chapter 258: Section 5. Arbitration, compromise or settlement of claims; subsequent actions Section 5. The executive officer of a public employer may arbitrate, compromise or settle any claim for damages under this chapter; provided, that any award, compromise or settlement in excess of two thousand five hundred dollars shall be made only with the prior approval of the public attorney for such public employer; provided further, however, that in any case where the public employer is the commonwealth, any award, compromise or settlement in excess of twenty thousand dollars shall be made only with the prior approval of the secretary of administration and finance. The executive officer shall not arbitrate, compromise or settle any such claim before it has been presented to him in writing or after six months have passed from the date upon which such claim was presented to him.
The acceptance by the claimant of any such award, compromise or settlement shall be in writing and shall, except when procured by fraud, be final and conclusive on the claimant, and shall constitute a complete release of any claim against the public employer or against the public employee whose negligent or wrongful act or omission gave rise to such a claim, and a complete bar to any action by the claimant against such public employer or public employee, by reason of the same subject matter.
THEREOF Chapter 258: Section 6. Defense of actions; service of process Section 6. The public attorney shall defend all civil actions brought against a public employer or public employee of the commonwealth pursuant to this chapter. Service of process for such civil action shall be made upon the public attorney or, where no such public attorney has been employed for such purpose at the time service is made, service shall be made upon the executive officer of such public employer.
THEREOF Chapter 258: Section 7. Finality of judgments; subsequent actions Section 7. Any award, compromise or settlement of a civil action brought under this chapter in excess of twenty thousand dollars which has been approved by a public attorney for a public employer, or, in the case where the public employer is the commonwealth, approved by the secretary of administration and finance, shall be made final only after approval of same by a judge of the superior court having jurisdiction over the action.
The acceptance by the claimant of any such award, compromise or settlement shall be in writing and shall, except when procured by fraud, be final and conclusive on the claimant, and shall constitute a complete release of any claim against the public employer or against the public employee whose negligent or wrongful act or omission gave rise to such claim, and a complete bar to any action by the claimant against such public employer or public employee, by reason of the same subject matter.
THEREOF Chapter 258: Section 8. Insurance Section 8. A public employer may procure insurance for payment of damages incurred pursuant to this chapter.
THEREOF Chapter 258: Section 9. Indemnity of public employees Section 9. Public employers may indemnify public employees, and the commonwealth shall indemnify persons holding office under the constitution, from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an amount not to exceed $1,000,000 arising out of any claim, action, award, compromise, settlement or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes a violation of the civil rights of any person under any federal or state law, if such employee or official or holder of office under the constitution at the time of such intentional tort or such act or omission was acting within the scope of his official duties or employment. No such employee or official, other than a person holding office under the constitution acting within the scope of his official duties or employment, shall be indemnified under this section for violation of any such civil rights if he acted in a grossly negligent, willful or malicious manner.
For purposes of this section, persons employed by a joint health district, regional health district or regional board of health, as defined by sections twenty-seven A and twenty-seven B of chapter one hundred and eleven, shall be considered employees of the city or town in which said incident, claim, suit, or judgment is brought pursuant to the provisions of this chapter.
THEREOF Chapter 258: Section 9A. Actions against members of police force; indemnity Section 9A. If, in the event a suit is commenced against a member of the state police or an employee represented by state bargaining unit five, by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the affected police officer, shall provide for the legal representation of said police officer.
The commonwealth shall indemnify members of the state police or an employee represented by state bargaining unit five, respectively, from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law; provided, however, that this section shall apply only where such alleged intentional tort or alleged act or failure to act occurred within the scope of the official duties of such police officer.
No member of the state police or an employee represented by state bargaining unit five shall be indemnified for any violation of federal or state law if such member or employee acted in a wilful, wanton, or malicious manner.
Section 1. As used in this chapter, the following words shall have the following meanings, unless the context otherwise requires:—“Board”, the victim and witness assistance board as established in section four.
“Court”, a forum established under the General Laws for the adjudication of criminal and delinquency complaints, indictments and civil motor vehicle infractions.
“Crime”, an act committed in the commonwealth which would constitute a crime if committed by a competent adult including any act which may result in an adjudication of delinquency.
“Disposition”, the sentencing or determination of penalty or punishment to be imposed upon a person convicted of a crime or found delinquent or against whom a finding of sufficient facts for conviction or finding of delinquency is made.
“Family member”, a spouse, child, stepchild, sibling, parent, stepparent, dependent, as defined in section one of chapter two hundred and fifty-eight C, or legal guardian of a victim, unless such family member has been charged in relation to the crime against the victim.
“Prosecutor”, the attorney general, assistant attorneys general, district attorney, assistant district attorneys, police prosecutors, other attorneys specially appointed to aid in the prosecution of a case, law students approved for practice pursuant to and acting as authorized by the rules of the supreme judicial court, or any other person acting on behalf of the commonwealth, including victim-witness advocates.
“Restitution”, money or services which a court orders a defendant to pay or render to a victim as part of the disposition.
“Victim”, any natural person who suffers direct or threatened physical, emotional, or financial harm as the result of the commission or attempted commission of a crime or delinquency offense, as demonstrated by the issuance of a complaint or indictment, the family members of such person if the person is a minor, incompetent or deceased, and, for relevant provisions of this chapter, a person who is the subject of a case reported to a prosecutor pursuant to section eighteen of chapter nineteen A, sections five and nine of chapter nineteen C, and section fifty-one B of chapter one hundred and nineteen, and the family members of such person if the person is a minor, incompetent or deceased.
“Victim-witness advocate”, an individual employed by a prosecutor, the board, or other criminal justice agency to provide necessary and essential services in carrying out policies and procedures under this chapter.
“Witness”, any person who has been or is expected to be summoned to testify for the prosecution whether or not any action or proceeding has yet been commenced.
Section 10. Nothing in this chapter shall be construed as creating an entitlement or a cause of action on behalf of any person against any public employee, public agency, the commonwealth or any agency responsible for the enforcement of rights and provision of services set forth in this chapter.
Section 11. The rights and duties established under this chapter shall continue to be enforceable until the final disposition of the charges, including acquittal or dismissal of charges, all post-conviction release proceedings, post-conviction relief proceedings, all appellate proceedings, and the discharge of all criminal proceedings relating to restitution. If a defendant’s conviction or adjudication of delinquency is reversed and the case is returned to the trial court for further proceedings, the victim shall have the same rights that applied to the criminal or delinquency proceedings that led to the appeal or other post-conviction relief proceeding.
justice agencies Section 12. Law enforcement agencies, prosecutors, judges, probation officers, clerks and corrections officials shall assure that victims of crime are afforded the rights established in this chapter.
Unless specifically stated otherwise, the requirements to provide information to the victim may be satisfied by either written or oral communication with the victim. The person responsible for providing such information shall do so in a timely manner and shall advise the victim of any significant changes in such information.
The board shall assist the prosecutors in providing the rights set forth in this chapter by preparing for distribution to victims written materials explaining the rights and services to which they are entitled.
A victim or family member may request assistance from the board in obtaining the rights provided under this chapter by the court or by any criminal justice agency responsible for implementing such rights. In order to address the victim’s concerns, the board may seek assistance from the district attorney governing the jurisdiction in which the crime against the victim is alleged to have been committed or from the attorney general.
A victim or family member may request assistance from the district attorney or the attorney general in obtaining the rights provided under this chapter by the court or by any criminal justice agency responsible for implementing such rights.
notice to victim; no grounds for appeal of or objection to conviction Section 13. A defendant or person convicted of a criminal or delinquency offense against the victim shall have no standing to object to any failure to comply with this chapter, and the failure to provide a right, privilege or notice to a victim under this chapter shall not be grounds for the defendant or person convicted of a criminal or delinquency offense to seek to have the conviction or sentence set aside.
Section 2. Prosecutors shall not be precluded from providing, subject to appropriation, services under this chapter to any natural person or family member of such natural person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime or delinquency offense in which complaints or indictments have not been issued.
members Section 3. To provide victims a meaningful role in the criminal justice system, victims and witnesses of crime, or in the event the victim is deceased, the family members of the victim, shall be afforded the following basic and fundamental rights, to the greatest extent possible and subject to appropriation and to available resources, with priority for services to be provided to victims of crimes against the person and crimes where physical injury to a person results:(a) for victims, to be informed by the prosecutor about the victim’s rights in the criminal process, including but not limited to the rights provided under this chapter. At the beginning of the criminal justice process, the prosecutor shall provide an explanation to the victim of how a case progresses through the criminal justice system, what the victim’s role is in the process, what the system may expect from the victim, why the system requires this, and, if the victim requests, the prosecutor shall periodically apprise the victim of significant developments in the case;(b) for victims and family members, to be present at all court proceedings related to the offense committed against the victim, unless the victim or family member is to testify and the court determines that the person’s testimony would be materially affected by hearing other testimony at trial and orders the person to be excluded from the courtroom during certain other testimony;(c) for victims and witnesses, to be notified by the prosecutor, in a timely manner, when a court proceeding to which they have been summoned will not go on as scheduled, provided that such changes are known in advance. In order to notify victims and witnesses, a form shall be provided to them by the prosecutor for the purpose of maintaining a current telephone number and address. The victim or witness shall thereafter maintain with the prosecutor a current telephone number and address;(d) for victims and witnesses, to be provided with information by the prosecutor as to the level of protection available and to receive protection from the local law enforcement agencies from harm and threats of harm arising out of their cooperation with law enforcement and prosecution efforts;(e) for victims, to be informed by the prosecutor of financial assistance and other social services available to victims, including information relative to applying for such assistance or services;(f) for victims and witnesses, to a prompt disposition of the case in which they are involved as a victim or a witness;(g) for victims, to confer with the prosecutor before the commencement of the trial, before any hearing on motions by the defense to obtain psychiatric or other confidential records, and before the filing of a nolle prosequi or other act by the commonwealth terminating the prosecution or before the submission of the commonwealth’s proposed sentence recommendation to the court. The prosecutor shall inform the court of the victim’s position, if known, regarding the prosecutor’s sentence recommendation. The right of the victim to confer with the prosecutor does not include the authority to direct the prosecution of the case;(h) for victims and witnesses, to be informed of the right to request confidentiality in the criminal justice system. Upon the court’s approval of such request, no law enforcement agency, prosecutor, defense counsel, or parole, probation or corrections official may disclose or state in open court, except among themselves, the residential address, telephone number, or place of employment or school of the victim, a victim’s family member, or a witness, except as otherwise ordered by the court. The court may enter such other orders or conditions to maintain limited disclosure of the information as it deems appropriate to protect the privacy and safety of victims, victims’ family members and witnesses;(i) for victims, family members and witnesses, to be provided, subject to appropriation and to available resources, by the prosecutor with a secure waiting area or room which is separate from the waiting area of the defendant or the defendant’s family, friends, attorneys or witnesses, during court proceedings. The court shall, subject to appropriation and to available resources, designate a waiting area at each courthouse and develop any reasonable safeguards to minimize contact between victims and the defendant, or the defendant’s family, friends, attorneys or witnesses;(j) for victims and witnesses, to be informed by the court and the prosecutor of procedures to be followed in order to apply for and receive any witness fee to which they are entitled;(k) for victims and witnesses, to be provided, where appropriate, with employer and creditor intercession services by the prosecutor to seek employer cooperation in minimizing employees’ loss of pay and other benefits resulting from their participation in the criminal justice process, and to seek consideration from creditors if the victim is unable, temporarily, to continue payments;(l) for victims or witnesses who have received a subpoena to testify, to be free from discharge or penalty or threat of discharge or penalty by his employer by reason of his attendance as a witness at a criminal proceeding. A victim or witness who notifies his employer of his subpoena to appear as a witness prior to his attendance, shall not on account of his absence from employment by reason of such witness service be subject to discharge or penalty by his employer. Any employer or agent of said employer who discharges or disciplines or continues to threaten to discharge or discipline a victim or witness because that victim or witness is subpoenaed to attend court for the purpose of giving testimony may be subject to the sanctions stated in section fourteen A of chapter two hundred and sixty-eight;(m) for victims and witnesses, to be informed of the right to submit to or decline an interview by defense counsel or anyone acting on the defendant’s behalf, except when responding to lawful process, and, if the victim or witness decides to submit to an interview, the right to impose reasonable conditions on the conduct of the interview;(n) for victims, to confer with the probation officer prior to the filing of the full presentence report. If the victim is not available or declines to confer, the probation officer shall record that information in the report. If the probation officer is not able to confer with the victim or the victim declines to confer, the probation officer shall note in the full presentence report the reason why the probation officer did not make contact with the victim;(o) for victims, to request that restitution be an element of the final disposition of a case and to obtain assistance from the prosecutor in the documentation of the victim’s losses. If restitution is ordered as part of a case disposition, the victim has the right to receive from the probation department a copy of the schedule of restitution payments and the name and telephone number of the probation officer or other official who is responsible for supervising the defendant’s payments. If the offender seeks to modify the restitution order, the offender’s supervising probation officer shall provide notice to the victim and the victim shall have the right to be heard at any hearing relative to the proposed modification.
(p) for victims, to be heard through an oral and written victim impact statement at sentencing or the disposition of the case against the defendant about the effects of the crime on the victim and as to a recommended sentence, pursuant to section four B of chapter two hundred and seventy-nine, and to be heard at any other time deemed appropriate by the court. The victim also has a right to submit the victim impact statement to the parole board for inclusion in its records regarding the perpetrator of the crime;(q) for victims, to be informed by the prosecutor of the final disposition of the case, including, where applicable, an explanation of the type of sentence imposed by the court and a copy of the court order setting forth the conditions of probation or other supervised or unsupervised release within thirty days of establishing the conditions, with the name and telephone number of the probation officer, if any, assigned to the defendant;(r) for victims, to have any personal property that was stolen or taken for evidentiary purposes, except contraband, property subject to evidentiary analysis, and property the ownership of which is disputed, returned by the court, the prosecutor or law enforcement agencies within ten days of its taking or recovery if it is not needed for law enforcement or prosecution purposes or as expeditiously as possible when said property is no longer needed for law enforcement or prosecution purposes;(s) for victims, to be informed by the parole board of information regarding the defendant’s parole eligibility and status in the criminal justice system;(t) for victims, to be informed in advance by the appropriate custodial authority whenever the defendant receives a temporary, provisional or final release from custody, whenever a defendant is moved from a secure facility to a less-secure facility, and whenever the defendant escapes from custody. The victim shall be informed by the prosecutor about notification rights and the certification process required to access the criminal offender record information files. Persons requesting such notice must provide the appropriate authority with current information as to their address and telephone number;(u) for victims, to be informed that the victim may have a right to pursue a civil action for damages relating to the crime, regardless of whether the court has ordered the defendant to make restitution to the victim.
(v) for one family member of a victim of a homicide, which the matter before the court is related, to possess in the courtroom a photograph, that is not of itself of an inflammatory nature, of the deceased victim that is not larger than eight by ten inches; provided, however, that at no time may the photograph be exposed or in anyway displayed in the presence of any member of the jury, or the jury pool from which a jury is to be selected in a particular matter; provided, further, that nothing in this section shall preclude the admission into evidence of a photograph that the court deems relevant and material.
Section 4. There is hereby established a victim and witness assistance board, to consist of five members who shall serve without compensation. Notwithstanding any provision of section six of chapter two hundred and sixty-eight A to the contrary, the board shall consist of the attorney general or his designee who shall be chairman, two district attorneys who shall be appointed by the governor, and two members of the public who shall be appointed by the governor, of whom one shall be a victim. The members of the board first appointed shall serve as follows: of the district attorneys appointed by the governor, one shall serve for three years, and one shall serve for one year, of the members of the public appointed by the governor, one shall serve for three years and one shall serve for two years. The successor of each such member shall serve for a term of three years and until his successor is duly appointed and qualified, except that any person appointed to fill a vacancy shall serve only for the unexpired term. Any member of the board shall be eligible for reappointment.
The board shall by majority vote of its members, appoint an executive director who shall serve, subject to appropriation, at such rate of compensation as the board directs for a term of three years unless removed for cause by a vote of four members of the board. The executive director, subject to appropriation, shall have the power to hire such staff, subject to the approval of the board, as is needed to fulfill the powers and duties of the board. The executive director shall have such other powers and duties as the board may delegate to him.
The provisions of chapter thirty-one shall not apply to the executive director or any employee of the board.
The board shall review program plans, annual reports, and the implementation and operation of programs as described in this chapter. The board shall promulgate rules for the preparation and review of such program plans and annual reports.
In addition to the foregoing, the board shall:(a) have printed and shall make available to social service agencies, medical facilities, and law enforcement agencies, cards, posters, brochures or other materials explaining the victim and witness rights and services established under this chapter;(b) assist hospitals, clinics and other medical facilities, whether public or private, in disseminating information giving notice of the rights established under this chapter. This assistance may include providing informational materials including posters suitable to be displayed in emergency and waiting rooms;(c) assist law enforcement agencies in familiarizing all of their officers and employees with the crime victims’ rights as provided under this chapter. This assistance may include supplying informational literature on this subject to be utilized as part of the training curriculum for all trainee officers; and(d) assist all local law enforcement agencies in establishing procedures whereby expedient notification is given to victims and witnesses, as defined under this chapter, of the rights provided under this chapter. In municipalities which do not have a local law enforcement agency, the board shall establish procedures whereby it, in cooperation with the state police, shall give notice to victims of crimes as provided in this section.
attorneys; services Section 5. Each district attorney shall create and maintain, to the extent reasonably possible and subject to the available resources, a program to afford victims and witnesses of crimes the rights and services described in this chapter. Those services shall include but not be limited to the following:(a) court appearance notification services, including cancellations of appearances;(b) informational services relative to the availability and collection of witness fees, victim compensation and restitution;(c) escort and other transportation services related to the investigation or prosecution of the case, if necessary;(d) case process notification services;(e) employer intercession services;(f) expedited return of property services;(g) protection services;(h) family support services including child and other dependent care services;(i) waiting facilities; and(j) social service referrals.
Section 6. Each district attorney shall submit annually on January fifteenth to the board, the secretary of administration and finance and the house and senate committees on ways and means, a program plan to be implemented within the district attorney’s jurisdiction. The program plan shall include, but not be limited to: a description of the services to be provided to victims and witnesses in each judicial district within the district attorney’s jurisdiction; the personnel or agencies responsible for providing individual services and related administrative programs; proposed staffing for the program; proposed education, training and experience requirements for program staff and, where appropriate, the staff of agencies providing individual services and related administrative services; and a proposed budget for implementing the program. The district attorney shall include in the annual program plan a detailed report on the operation of the program, as well as a detailed report of deposits and expenditures of all funds made available to said district attorney for the preceding fiscal year and the current fiscal year, and proposed for the upcoming fiscal year, pursuant to section nine.
Section 7. The district attorney, local law enforcement agencies, local social service agencies, and court shall cooperate to afford victims and witnesses of crimes, the rights and services described in this chapter.
Section 8. The court shall impose an assessment of no less than $90 against any person who has attained the age of seventeen years and who is convicted of a felony or against whom a finding of sufficient facts for a conviction is made on a complaint charging a felony. The court shall impose an assessment of $50 against any person who has attained the age of seventeen and who is convicted of a misdemeanor or against whom a finding of sufficient facts for a conviction is made on a complaint charging a misdemeanor. The court shall impose an assessment of $45 against any person who has attained the age of fourteen years and who is adjudicated a delinquent child or against whom a finding of sufficient facts for a finding of delinquency is made. The court, including the clerk-magistrate, or the registrar of motor vehicles shall impose an assessment of $45 against any violator who fails to pay the scheduled civil assessment for a civil motor vehicle infraction or to request a noncriminal hearing within the twenty day period provided for in subsection (A) of section three of chapter ninety C, except where the person is required by law to exercise the right to pay before a justice. When multiple civil motor vehicle infractions arising from a single incident are charged, the total assessment shall not exceed $75; provided, however, that the total assessment against a person who has not attained seventeen years shall not exceed thirty dollars. In the discretion of the court or the clerk magistrate in the case of a civil motor vehicle infraction that has not been heard by or brought before a justice, a civil motor vehicle assessment imposed pursuant to this section which would cause the person against whom the assessment is imposed severe financial hardship, may be reduced or waived. An assessment other than for a civil motor vehicle infraction imposed pursuant to this section may be reduced or waived only upon a written finding of fact that such payment would cause the person against whom the assessment is imposed severe financial hardship. Such a finding shall be made independently of a finding of indigency for purposes of appointing counsel. If the person is sentenced to a correctional facility in the commonwealth and the assessment has not been paid, the court shall note the assessment on the mittimus.
All such assessments made shall be collected by the court or by the registrar, as the case may be, and shall be transmitted monthly to the state treasurer. If the person convicted is sentenced to a correctional facility in the commonwealth, the superintendent or sheriff of the facility shall deduct any part or all of the monies earned or received by any inmate and held by the correctional facility, to satisfy the victim and witness assessment, and shall transmit such monies to the court monthly. The assessment from any conviction or adjudication of delinquency which is subsequently overturned on appeal shall be refunded by the court to the person whose conviction or adjudication of delinquency is overturned. Said court shall deduct such funds from the assessments transmitted to the state treasurer. Assessments pursuant to this section shall be in addition to any other fines or restitution imposed in any disposition.
When a determination of the order of priority for payments required of a defendant must be made by the court or other criminal justice system personnel required to assess and collect such fines, assessments or other payments, the victim and witness assessment mandated by this section shall be the defendant’s first obligation.
Section 9. Any assessment imposed pursuant to section eight shall be deposited in the Victim and Witness Assistance Fund, established by section forty-nine of chapter ten. In addition, the board may also apply for and accept on behalf of the commonwealth any private grants, bequests, gifts or contributions to further aid in financing programs or policies of the division. Such funds shall be received by the state treasurer on behalf of the commonwealth and deposited into said fund; provided, that said board shall submit to the house and senate committees on ways and means, as necessary, a report detailing all such amounts as deposited into said fund. All monies deposited into said fund that are unexpended at the end of the year shall not revert to the General Fund. The proceeds of the fund shall be made available, subject to appropriation, to the district attorney victim and witness programs, to the attorney general and the parole board for programs serving crime victims and witnesses.
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:—“Claim”, an application for compensation under this chapter.
“Claimant”, a person who files a claim for compensation under this chapter.
“Crime”, an act committed by a person which, if committed by a mentally competent, criminally responsible adult who has no legal exemption or defense, would constitute a crime. Crime shall apply to an act occurring within the commonwealth, and to an act of terrorism, as defined in 18 USC section 2331, occurring outside the United States or territories against a resident of the commonwealth.
“Department”, the department of the attorney general.
“Dependent”, mother, father, spouse, spouse’s mother, spouse’s father, child, grandchild, adopted child, child born out of wedlock, brother, sister, niece or nephew, or other person who is wholly or partially dependent for support upon the victim at the time of his injury or death due to a crime alleged in a claim made pursuant to this chapter.
“Division”, the division of victim compensation and assistance within the department of the attorney general, established in section 11K of chapter 12.
“Family”, the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted child of parents, or spouse’s parents of the victim.
“Medical care”, the medical, psychological, surgical, dental, optometric, chiropractic, podiatric and hospital care provided to a victim including, but not limited to, medicines, medical, dental and surgical supplies, crutches, artificial members and appliances and training in the use of artificial members and appliances.
“Offender”, an adult or juvenile person who commits a crime as defined in this section for which a claimant seeks compensation.
“Out-of-pocket loss”, unreimbursed or unreimbursable expenses for services eligible for compensation pursuant to this chapter.
“State”, a state of the United States, the district of Columbia, the commonwealth of Puerto Rico or any other possession or territory of the United States.
“Victim”, a person who suffers personal physical or psychological injury or death:(a) as a direct result of a crime as defined in this section;(b) as a result of attempting to assist a person against whom a crime was attempted or committed; or(c) as a result of efforts to prevent a crime or an attempted crime from occurring in his presence or to apprehend a person who had committed a crime in his presence.
sources; offset Section 10. No compensation shall be awarded or paid unless the out-of-pocket expenses or legal liability of the claimant for services rendered as the result of the crime exceeds any and all of the amounts received, applied for, or to be applied for as the result of the crime from any of the following or any combination of the following:(a) insurance, disability;(b) workers’ compensation, unemployment compensation, social security benefits, veteran’s benefits, retirement benefits;(c) medicaid, medicare, free care, any other forms of public assistance including aid to families with dependent children and assistance to the aged and disabled or any successor thereto;(d) restitution in the criminal action;(e) proceeds from a civil suit; or(f) institutional gifts.
Section 11. Acceptance of any compensation under this chapter shall subrogate the commonwealth, to the extent of such compensation paid, to any right or right of action accruing to the claimant or to the victim to recover payments on account of losses resulting from the crime with respect to which the compensation has been paid, and the claimant has a continuing obligation to so notify the attorney general of such recovery. The attorney general may enforce the subrogation, and he shall bring suit to recover from any person to whom compensation is paid, to the extent of compensation actually paid under this chapter, any amount received by the claimant from any source exceeding the actual loss to the victim.
damages Section 12. Any person who: (a) submits a false or fraudulent application or claim for an award; (b) intentionally makes or causes to be made any false statement or representation of a material fact in relation to any claim pending before the division; or (c) intentionally conceals or fails to disclose information affecting the amount of or the initial or continued right to any such award shall be punished by a fine of not more than one thousand dollars or by imprisonment in a house of correction for not more than six months, or both.
The commonwealth shall, in addition, have a civil cause of action for relief against any person who violates the provisions of this chapter for the amount of damages which the commonwealth sustains by reason of such violation which shall include costs of the action and attorneys fees and, in addition, for punitive damages of not more than triple the amount of damages which the commonwealth sustains, and interest. The attorney general may bring any such action necessary to enforce this section.
Any amount reimbursed or any fine or damages paid pursuant to this section shall be paid to the victim compensation fund maintained by the treasurer.
Section 13. No person who, in good faith, provides or obtains, or attempts to provide or obtain, assistance for a victim of a crime as defined in section one, shall be liable in a civil suit for damages as a result of any acts or omissions in providing or obtaining, or attempting to provide or obtain, such assistance unless such acts or omissions constitute willful, wanton or reckless conduct.
Section 2. (a) No compensation shall be paid under this chapter unless the division finds that a crime was committed and that such crime directly resulted in personal physical or psychological injury to, or death of, the victim.
(b) No compensation shall be paid under this chapter unless the claimant demonstrates that the crime was reported to the police or other law enforcement authorities or to an agency or entity obligated by law to report complaints of criminal misconduct to law enforcement authorities. Except in the case where the division finds such report to have been delayed for good cause, such report shall have been made within five days after the occurrence of such crime.
(c) A claimant shall be eligible for compensation only if such claimant cooperates with law enforcement authorities in the investigation and prosecution of the crime in which the victim was injured or killed unless the claimant demonstrates that he possesses or possessed a reasonable excuse for failing to cooperate.
(d) A claimant shall not be eligible for compensation if such compensation would unjustly benefit the offender; provided, however, that a claimant shall not, except pursuant to regulations enacted in accordance with section four to prevent unjust enrichment, be denied compensation because of such claimant’s or victim’s familial relationship with the offender or because of the sharing of a residence by the victim or claimant and the offender.
(e) An offender or an accomplice of an offender shall not be eligible to receive compensation with respect to a crime committed by an offender. To the extent that the victim’s acts or conduct provoked or contributed to the injuries, the division shall reduce or deny an award to the claimant or claimants in accordance with regulations enacted pursuant to section four.
(f) No compensation shall be paid unless the claimant, or an individual for whose benefit a claim is made, has incurred actual out-of-pocket loss of at least one hundred dollars or has lost two continuous weeks of earnings or support or liability for compensable expenses as a direct result of the injury to or death of a victim. The foregoing provision shall not apply to a claimant who was over sixty years of age on the date of the alleged crime or was the victim of rape.
(g) The claimant may retain counsel under this chapter. Attorneys fees shall be deducted from, and not in addition to, the total award for compensation. No attorneys fees shall be paid unless the attorney submits an affidavit which sets forth the hours worked and the services rendered for representing the claimant in the claim for compensation. The division may include as part of its award, reasonable attorneys fees to be determined by the division in an amount not to exceed fifteen percent of the total award for compensation.
Section 3. (a) The maximum award for compensation to a claimant under this chapter shall be twenty-five thousand dollars. If there are two or more claimants eligible for compensation arising out of a crime committed against one individual for the same crime, each claimant shall be entitled to receive compensation to the extent of out-of-pocket loss, in proportion to the out-of-pocket losses of every other claimant. The cumulative total of all awards based on such crime shall not exceed twenty-five thousand dollars.
(b) Except as otherwise provided in this chapter, the following expenses are compensable in accordance with this section:(1) The maximum award of compensation for burial expenses shall be four thousand dollars. A legal guardian, dependent or other family member of the victim or a person who actually incurs burial expenses directly related to the death of a victim shall be eligible for compensation for such burial expenses.
(2) (A) Expenses incurred for hospital services as the direct result of injury to the victim shall be compensable in accordance with this chapter; provided, however, that when claiming compensation for hospital expenses, the claimant must demonstrate an out-of-pocket loss or a legal liability for payment of said expenses. No hospital expenses shall be paid where the expense is reimbursable by medicaid or where the services are covered by chapter one hundred and eighteen F. Every claim for compensation for hospital services shall include a certification by the hospital that the services are not reimbursable by medicaid and that the services are not covered by chapter one hundred and eighteen F. In no event shall the amounts awarded for hospital services exceed the rates for services established by the division of health care finance and policy if rates have been established for such services.
(B) Expenses incurred for physician, dental, ambulance, or other medically necessary services or prosthetic devices as the direct result of injury to the victim shall be compensable in accordance with this chapter; provided however, that when claiming compensation for such expenses, the claimant must demonstrate an out-of-pocket loss or legal liability for payment of such expenses. No physician, dental, ambulance or other necessary services or prosthetic device shall be paid where the services were reimbursable by medicaid. Every claim for compensation for physician, dental, ambulance or other medically necessary services or for prosthetic devices shall include a certification by the health care provider that the expense was not reimbursable by medicaid.
(C) A victim or, where death results from the crime, the dependents and family members of the victim, shall be eligible for compensation for reasonable mental health counseling obtained as a result of the crime.
(D) If the victim was employed or had received a bona fide employment offer at the time of the crime, he shall be eligible for compensation for loss of actual earnings due to disability from work as the result of injuries caused by the crime. In order to be eligible for lost earnings, the victim must demonstrate medical disability and causal relationship to the crime. The amount of compensation shall be based on the victim’s net earnings or expected net earnings as a result of an employment offer at the time of the crime. If the victim is a minor at the time of the crime, he shall be eligible for future lost earnings due to disability from future employment as a result of injuries caused by the crime.
(E) If the sole occupation of the victim at the time of the crime and for the preceding one year was limited to performing the duties and responsibilities of a homemaker, the victim or his dependents shall be eligible for reimbursement for the reasonable costs of maintaining such services. In order to be eligible for compensation for homemaker services in nonhomicide cases, the victim must demonstrate a medical disability which is causally related to the crime.
(F) In the case of the death of the victim as a direct result of the crime, a dependent of a victim shall be eligible for compensation for loss of the victim’s support. No compensation for loss of support shall be paid unless the claimant demonstrates either that the dependent was living with the victim at the time of the crime or, in the case of minor children of a deceased victim who were not residing in the victim’s household at the time of the crime, that the minor children received financial support directly from the victim prior to the crime or were legally entitled to receive such support, such entitlement having been established by a court order or a judicially enforceable agreement. An award for loss of support shall be based upon the victim’s actual earnings and the life expectancy of the victim.
program director; powers and duties Section 4. (a) The division of victim compensation and assistance shall administer the provisions of this chapter. Subject to appropriation, the attorney general shall designate a program director of said division. Said program director may appoint and remove, subject to the approval of the attorney general, such investigative, legal and clerical or other staff as the work of the division requires.
(b) The program director shall have the authority to promulgate rules and regulations pursuant to chapter thirty A as may be necessary to carry out the provisions of this chapter.
(c) The program director shall be authorized to apply for and receive sums which may be transmitted to the victim compensation fund maintained by the treasurer and for any other such funds as may become available to administer the requirements of this chapter.
demands Section 5. (a)(1) A claim for compensation under this chapter shall be filed within three years of the date of the crime.
(2) The claimant has the burden of proving by a preponderance of the evidence that he is eligible to receive compensation.
(3) A claim under this chapter shall be made on a claim form prescribed by the division. The claim shall be accompanied by copies of bills and other documentation supporting the claim, and shall be signed under the pains and penalties of perjury. Any claim for loss of support or other expenses incurred as the result of the death of a victim must be accompanied by proof of dependency of the claimant upon the victim. All claims must contain a release of information necessary to investigate the claim.
Law enforcement agencies, district attorneys, the departments of social services and public welfare, hospitals, physicians and other service providers shall cooperate with the department in the investigation of claims filed under this chapter.
(b) Upon receipt of a claim hereunder, the division shall acknowledge receipt of same, in writing, to the claimant or counsel of record. The division shall, thereafter, conduct an investigation of the claim to verify the information contained on the application.
The division shall be authorized to issue a written civil investigative demand, issue interrogatories, under oath, and requests for production of documents, and take oral testimony, under oath, in order to obtain information necessary to verify a claim. All information collected by the division shall be kept in accordance with the provisions of chapters four, sixty-six and sixty-six A.
A civil investigative demand may be served by certified mail, return receipt requested, and first class mail and shall be returned within twenty days from the date of service. Failure to comply with this provision may result in dismissal of the claim for compensation.
Whenever a person fails to comply with a civil investigative demand served upon him pursuant to this section, the attorney general may petition the district court of any county in which such person resides, is found, or transacts business, to enter such orders as may be necessary to carry into effect the provisions of this section. A failure to comply with an order entered under this section shall be punished as a contempt of court.
Section 6. The claimant shall have a continuing obligation to notify the division of a change in address. Failure to comply with this requirement may result in the dismissal of the claim for compensation or the termination of a proceeding set forth in this chapter.
Section 7. (a) Within fifteen days of completion of the investigation, the program director shall mail notice to the claimant or the attorney of record stating the amount of compensation to be paid or denied, and the reasons therefor, and the payees, if any. The program director may direct that warrant for payment by the department of the attorney general be made jointly to the claimant and to a provider. The notice shall contain information regarding the right of the claimant to petition for judicial review of the decision of the program director.
(b) Upon receipt of the notice of assent by a claimant, the division shall present the notice to the department of the attorney general for payment. Subject to the availability of funds appropriated for this purpose, said department of the attorney general shall cause payment to be made in accordance with the division’s award without further authorization.
Section 8. (a) Within fifteen days of the date of mailing of the notice of award or denial, a claimant aggrieved by the program director’s decision may request, in writing, a reconsideration of such decision. Said program director shall reconsider any order for which a request for reconsideration is received. Said program director may in his discretion reconsider a decision granting or denying an award or the amount of an award where there has been no request for reconsideration. After reconsideration of the award, said program director shall affirm the decision or issue an amended notice of award or denial.
(b) The program director shall notify the claimant by certified mail, return receipt required, and first class mail of the decision upon reconsideration within twenty days of the claimant’s request for reconsideration. Such notice shall include information regarding the claimant’s right to a petition for judicial review of the decision of the program director.
Section 9. (a) Within thirty days of the date of mailing of the notice of award or denial by the program director, the claimant may petition for judicial review in the district court within the judicial district in which the claimant resides or, in the case of a nonresident claimant, in the Boston municipal court. Where the claimant requests reconsideration of the decision of the program director, the petition for judicial review shall be filed within twenty days from the date of mailing of the decision of reconsideration. If no petition is filed within the time specified, the decision of the program director shall be final.
(b) The program director shall, in response to the aforesaid, within thirty days, file in such court a copy of his official decision.
(c) The district court shall schedule the matter for hearing and shall notify the parties of the date and time thereof.
(d) The review shall be conducted by the district court without a jury.
(e) For the purpose of determining the amount of compensation payable pursuant to this chapter, the chief justice for administration and management shall formulate standards for the uniform application of this chapter. The court shall take into consideration the provisions of this chapter, the rates and amounts of compensation payable for injuries and death under other laws of the commonwealth and of the United States, excluding pain and suffering. All decisions of the court on claims heard under this chapter shall be in writing, setting forth the name of the claimant, the amount of compensation and the reasons for the decision. The clerk of the court shall immediately notify the claimant in writing of the decision and shall forward to the department of the attorney general a certified copy of the decision. the department of the attorney general without further authorization shall, subject to appropriation, pay the claimant the amount determined by the court.
In determining the amount of compensation payable, the court shall determine whether because of his conduct the victim contributed to the infliction of his injury; and the court shall reduce the amount of the compensation or deny the claim altogether, in accordance with such determination; provided, however, that the court may disregard the responsibility of the victim for his own injury where such responsibility was attributable to efforts by the victim to aid a victim, or to prevent a crime or an attempted crime from occurring in his presence or to apprehend a person who had committed a crime in his presence or had in fact committed a felony.
(f) Judicial review of the finding and decisions of the program director shall be a de novo hearing of the claim.
eligible persons; burden of proof; definitions; right to jury trial [Text of section applicable as provided by 2004, 444, Sec. 3.
] Section 1. (A) A claim may be brought against the commonwealth for an erroneous felony conviction resulting in incarceration as provided in this chapter.
(B) The class of persons eligible to obtain relief under this chapter shall be limited to the following:—(i) those that have been granted a full pardon pursuant to section 152 of chapter 127, if the governor expressly states in writing his belief in the individual’s innocence, or(ii) those who have been granted judicial relief by a state court of competent jurisdiction, on grounds which tend to establish the innocence of the individual as set forth in clause (vi) of subsection (C), and if (a) the judicial relief vacates or reverses the judgment of a felony conviction, and the felony indictment or complaint used to charge the individual with such felony has been dismissed, or if a new trial was ordered, the individual was not retried and the felony indictment or complaint was dismissed or a nolle prosequi was entered, or if a new trial was ordered the individual was found not guilty at the new trial; and (b) at the time of the filing of an action under this chapter no criminal proceeding is pending or can be brought against the individual by a district attorney or the attorney general for any act associated with such felony conviction.
(C) In order for an individual to prevail and recover damages against the commonwealth in a cause of action brought under this chapter, the individual must establish, by clear and convincing evidence, that:—(i) he is a member of the class of persons defined in subsection (B);(ii) he was convicted of an offense classified as a felony;(iii) he did not plead guilty to the offense charged, or to any lesser included offense, unless such guilty plea was withdrawn, vacated or nullified by operation of law on a basis other than a claimed deficiency in the plea warnings required by section 29D of chapter 278;(iv) he was sentenced to incarceration for not less than 1 year in state prison or a house of correction as a result of the conviction and has served all or any part of such sentence;(v) he was incarcerated solely on the basis of the conviction for the offense that is the subject of the claim;(vi) he did not commit the crimes or crime charged in the indictment or complaint or any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser included felony; and(vii) to the extent that he is guilty of conduct that would have justified a conviction of any lesser included misdemeanor arising out of or reasonably connected to facts supporting the indictment or complaint, that he has served the maximum sentence he would have received for such lesser included misdemeanor and not less than one additional year in a prison.
(D) The claimant shall attach to his claim certified copies of: the mittimus that shows the claimant’s sentence to incarceration and; the warrants necessary to grant a pardon pursuant to section 152 of chapter 127 or; criminal case docket entries or documents related thereto in the case of judicial relief.
(E) For the purposes of this chapter “conviction” or “convicted” shall include an adjudication as a youthful offender, if such adjudication resulted in the youthful offender’s incarceration in a house of correction or state prison.
(F) The commonwealth and any individual filing an action for compensation under this chapter shall have the right to a jury trial on any action so filed. In the interest of doing substantial justice, with regard to weight and admissibility of evidence submitted by the claimant or the commonwealth, the court presiding at a jury-waived trial shall exercise its discretion by giving due consideration to any difficulties of proof caused by the passage of time, the death or unavailability or witnesses, or other factors not caused by the claimant, or those acting on the claimant’s or the commonwealth’s behalf. At a jury trial, the court shall consider these same factors as part of the exercise of its discretion when determining the admissibility and weight of evidence, and the court shall instruct the jury that it may consider the same factors when it weighs the evidence presented at trial. No evidence proffered by any party shall be excluded on grounds that it was seized or obtained in violation of the Fourth, Fifth or Sixth amendments to the Constitution of the United States, or in violation of Articles 12 or 14 of Part the First of the Constitution of Massachusetts.
[Text of section applicable as provided by 2004, 444, Sec. 2.
] Section 9. (A) A court granting judicial relief consistent with the criteria set forth in subclause (a) of clause (ii) of subsection (B) of section 1 shall provide a copy of this chapter to an individual seeking such relief at the time the criteria of said subclause (a) of said clause (ii) of said subsection (B) of said section 1 are satisfied. Such individual shall be required to acknowledge receipt of a copy of this chapter in writing on a form established by the chief justice for administration and management of the trial court. This acknowledgement shall be entered on the docket by the court and shall be admissible in any proceeding filed by a claimant under this chapter.
(B) The parole board, upon the issuance of a full pardon under section 152 of chapter 127, shall provide a copy of this chapter to an individual granted clemency at the time warrants necessary to grant the pardon are issued. Such individual shall be required to acknowledge receipt of a copy of this chapter in writing on a form established by the parole board, which shall be retained on file by the parole board as part of its official records and shall be admissible in any proceeding filed by a claimant under this chapter.
(C) If a claimant granted judicial relief or a full pardon shows he did not properly receive a copy of the information required by this section, he shall receive a 1 year extension on the 2 year time limit provided in section 8.