Wednesday, February 02, 2005

In Which I Learn That, In Massachusetts, Due Process is More a "Guideline" Than a Rule

Recently, I opened some mail from the Brockton Clerk of Courts, and I found inside a judgment against me. Apparently, some debt collector sued me, and I lost automatically (by default) for not showing up. The rub, of course, is that I had no idea I had been sued nor did I know anything about the hearing I apparently missed. The court is supposed to send two notices, one via certified mail and one via first-class mail. But I never got the certified notice, which can be proved by my never having signed for it. And I never got the first-class notice either, though I really don't know why, since I never got it.

So, a friend's brother-in-law, a practicing lawyer here in Mass, told me that I needed to go to the Clerk of Courts office and file a motion to have the default removed. He said it would be no problem. After I won my motion and got a new hearing date, he advised that I could negotiate with the debt collector for perhaps a quarter of what I owed, because it's too much trouble for them to have to go to court again on the same case, one in which they're making very little money anyway.

So, today, I show up at 9:00 am in court, as ordered. When I finally get to go up, around 11:00 am, the rest of the time spent sitting around listening to the magistrate adjudicate against all the people who didn't show up, the magistrate tells me that the fact that the first-class notice was not returned is, in Massachusetts, prima facie evidence that I was served. Therefore, even though the court knew I never got the certified letter, the court can still just assume I got the first-class letter, even though I didn't.

According the magistrate, I have to give him some evidence or proof that I didn't get the letter to convince him I didn't. Which, of course, is impossible, because all I know is that I didn't get it. I don't have any idea why. It could have gotten lost in the mail. I could have accidentally thrown it out because it was stuck in with a bunch of circulars, which almost happened to me once (I had a hunch that something was stuck in the circulars, and there was). Hell, there are no lights at the mailbox shed, so I could have just dropped it in the dark, since it's dark by the time I get home in the winter. Who knows? How can I possibly prove to the magistrate that something didn't happen when I only know it didn't happen because of the judgment I later received? I don't even know when I should have gotten the summons to try to figure out why I didn't get it.

So, I tell the magistrate that he is violating my 4th-Amendment right to due process. I wasn't made aware of my court date and there is no evidence that contradicts that I was. That the court sent me a summons in no way proves that I ever received the summons. I never had the opportunity to have my day in court, face my accuser, and present my defense. But the magistrate sticks to his line that sending me a summons is prima facie evidence that I got it.

Which I didn't.

So, despite what my friend's brother-in-law told me, the default wasn't reversed, and I have to pay the full amount. Without ever having had the chance to defend myself. In fact, since the judgment included no information about what debt I was being sued for, I don't even know if I actually owe the money or not. There was an account number on the summons, which I never got, but not on the judgment. They showed me the number at court but I don't know my freakin' account numbers, so it won't be until I can get home tonight that I can try to match it up and even determine if this debt is really mine or not.

But not knowing what account I am being sued over also invalidates my 4th Amendment right to due process, I learn, when the magistrate tells me that I would have to give him a defense in order for him to overturn the default anyway. That is to say, in order to have my day in court and present my defense, I have to present my defense to the magistrate. In order to have a defense, I would have to know what I was being sued over. In order to know what I was being sued over, I would have had to have the summons*. So, once again, in a neat legal tautology, I have to have gotten the summons in order to overturn the default on the grounds that I didn't get the summons. And, it doesn't matter anyway, because not getting the summons doesn't matter, since legally I got the summons whether, in reality, I got it or not.

As such, my right to due process was taken away from me involuntarily through no fault of my own. I never got a summons. Therefore I missed the hearing and a default judgment was made against me. At that point, I am screwed, even though I don't even know about the case yet. Because it is impossible to get the default overturned. I was, in effect, tried, convicted, and sentenced without even knowing I was on trial.

So much for my so-called "right" to due process. Yay for the Constitution!

I made these points to the magistrate, and when I told him it violated my 4th Amendment rights, he just curtly said, "I don't agree." I then pointed out that the law, and the court, are assuming that I am acting in bad faith when there is no reason to think so, especially as I took steps to deal with the situation (such as filing my motion to have the default vacated) as soon as I knew about it. You might think that a person who is responsible for emergency planning for the entire Commonwealth and who has security clearance could be trusted to be acting in good faith. Guess not.

After getting bent over without reach-around in public by the magistrate, the lawyer for the debt collector told me that he had thought the magistrate was going to throw me in jail for arguing with him. Apparently, asserting that the Constitution, the document upon which all law in this nation is based, guarantees that the government can't try me in secret without telling me, not only didn't actually cause my rights to be upheld, but instead almost lead to my incarceration. Awesome!

On a funny side note, after the sham of a "hearing," the opposing lawyer asked me where I went to law school. He thought, because I was wearing a suit and because of my arguments. That was a bit flattering, though it didn't help the last bits of faith I had in American government and the Constitution die.

*BTW, I did actually contact the debt collector's lawyers before the hearing in order to find out what account the suit was over. Every time, I got put on hold and shunted to voice mail. I left messages, but never got a return call. I don't think that is an accident.


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