Rule text
(a) Applicability.
In addition to the requirements of Rule 55, the provisions of this rule shall apply to the entry of default for failure to appear or otherwise defend and to the entry of judgment after default in all actions subject to the requirements of Rule 8.1.
(b) Default.
(1) Affidavit required.
When requesting a default, or upon request of the clerk for the purpose of entering a default, counsel for the plaintiff shall sign, serve, and file an affidavit stating that (i) counsel has personally reviewed the documentation filed and served pursuant to Rule 8.1; (ii) the documentation meets all requirements of Rule 8.1(c)-(f) (with any exceptions specifically stated); and (iii) the documentation establishes the plaintiff's entitlement to judgment in the amount claimed by the plaintiff. A self-
represented plaintiff shall sign, serve, and file an affidavit with the same content. In entering a default, the clerk may rely upon the affidavit.
(2) Non-entry of default. If the plaintiff has not complied with the requirements of Rule 8.1 and subdivision (b)(1) of this rule, the clerk shall not enter a default against the defendant and shall so notify the parties. The court shall dismiss the complaint without prejudice on or after the 30th day after the date of notice by the clerk unless the plaintiff shows cause, with notice to the defendant, why the complaint should not be dismissed.
(c) Judgment. No default judgment against the defendant shall enter unless the clerk (if under Rule 55(b)(1)) or court (if under Rule 55(b)(2)) determines that the documentation filed and served by the plaintiff pursuant to Rule 8.1 and the affidavit pursuant to subdivision (b)(1) of this rule establish the plaintiff's entitlement to judgment in the amount claimed by the plaintiff. In entering a default judgment, the clerk or court may rely upon the affidavit pursuant to subdivision (b)(1) of this rule.
(d) Service. The plaintiff's request for entry of default judgment must be served on the defendant in accordance with Rule 5(b). The plaintiff must file proof of service of the request with the clerk or court. If service is to be made by mailing the request to the defendant's residential address, the plaintiff shall, within three months prior to the request, reverify the defendant's current residential address and shall file a new address verification affidavit pursuant to Rule 8.1(e).
Notes
Rule History
Adopted May 22, 2018, effective January 1, 2019.
Reporter's Notes
(2019) Rule 8.1 and Rule 55.1, effective in 2019, apply to collection actions against consumers involving debts arising out of revolving credit agreements. Rule 8.1 requires the plaintiff to (1) file with the complaint documentation regarding the debt, (2) verify the defendant's address prior to commencement of the action, and (3) certify that the statute of limitations has not expired. Rule 55.1 (1) prohibits entry of default against a defendant where the documentation required by Rule 8.1 has not been provided; (2) requires a determination that the plaintiff is entitled to judgment in the amount claimed prior to entry of a default judgment; and (3) requires reverification of the defendant's address under specified circumstances prior to entry of a default judgment.
Collection actions involving credit cards make up a significant portion of the civil actions commenced in the Massachusetts courts, with many of them filed in the District Court and Boston Municipal Court. Many of these cases proceed to judgment by default, sometimes raising questions whether the plaintiff has used a current address for service of process.
Requiring additional documentation with the complaint is a recognition that consumers in the past often lacked critical information needed when sued for credit card debts. When an assignee of the debt is named as plaintiff in the action and a complaint is served on the defendant, the defendant
may have difficulty in ascertaining the identity of the original creditor. The documentation will help consumers to identify the original creditor in instances where an assignee is seeking to collect an assigned debt and the documentation will help to confirm the amount owed. The requirement of address verification mandates extra steps to help to ensure that an address used by a plaintiff to serve a defendant is as accurate as can reasonably be expected.
The addition of special requirements in litigation involving certain types of debts is not a new phenomenon in Massachusetts. Additional documentation and address verification requirements for certain types of debts have been applicable in small claims cases since 2009 (Rules 2(b), Uniform Small Claims Rules) and in civil actions on the regular civil docket in the District Court and Boston Municipal Court since 2015 (Boston Municipal Court and District Court Joint Standing Order No. 2-15).