MA appellate court: counsel might be needed for evicted children

12/20/2019, Litigation, Housing - Evictions

In Bank of N.Y. Mellon v. Benoit, 2019 Mass. App. Unpub. LEXIS 851 (2019), a homeowner was foreclosed and then she and her children were subjected to a summary eviction where she defaulted and then tried to remove the default.  On appeal of the trial court’s refusal to remove the default, the Court of Appeals found no merit to her case but vacated the default as to her children:


The nature and tenor of the pleadings filed by Benoit in the Housing Court and the brief she filed on appeal raise questions as to whether she was able to identify or raise appropriate defenses. The minor children relied on Benoit to represent their interests here and in the trial court. Whether their interests were adequately represented by Benoit has not yet been addressed in this proceeding, and the pleadings before us raise a substantial and obvious question as to Benoit's ability to do so. See Adjartey, 481 Mass. at 848-849; Kiman v. New Hampshire Dep't of Corrections, 451 F.3d 274, 283-284 (1st Cir. 2006).  Remand is therefore required as to the minor children. See generally Guardianship of K.N., 476 Mass. 762, 766-767, 73 N.E.3d 271 (2017) (discussing equitable authority of judge of Probate and Family Court to appoint counsel for indigent party in complex case where parent may be unable to represent interests of child); G. L. c. 185C, § 2 (outlining broad statutory and equitable powers of Housing Court). On remand, the judge may wish to consider whether Benoit's unidentified disability, or any condition made evident in the pleadings, see note 10, supra, affected Benoit's ability to represent the minor children.