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Commonwealth v. One Hundred Twenty-Five Thousand Dollars

Appeals Court of Massachusetts

June 29, 2015

Commonwealth
v.
One Hundred Twenty-Five Thousand Dollars & others. [1]

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The interveners -- Gerson Peguero, Rafael Delossantos, and Yadannis Valdez -- appeal from a default judgment entered in a civil forfeiture action. We affirm.

Background.

On July 2, 2010, Doriel Rivera was indicted for distribution of a class B controlled substance (subsequent offense) and furnishing false information (the 2010 case). Bail was set at $100,000. On September 16, 2011, Rivera was indicted on charges of forging motor vehicle documents, driving with a suspended license (subsequent offense), and failing to appear in the 2010 case (the 2011 case). Bail was set at $25,000. On January 25, 2012, Peguero and Delossantos each posted $50,000 for Rivera's bail in the 2010 case, and Valdez posted $25,000 for Rivera's bail in the 2011 case. All three paid with bank checks. On February 10, 2012, the Commonwealth moved for a hearing on the source of the funds. The bail money in both cases was frozen pending such a hearing. On March 9, 2012, Rivera pleaded guilty to the charges in both cases and was sentenced.

On March 19, 2012, the Commonwealth filed a complaint pursuant to G. L. c. 94C, § 47, for forfeiture of the $125,000 posted for Rivera's bail in the two cases. The complaint was filed with an affidavit and several police reports.[2] In one report, a State trooper reported that he met with Delossantos at his place of business.[3] Delossantos stated that he did not know Rivera[4] and that he had posted the bail money at the request of his mother. When asked where the money came from, Delossantos stated that Rivera's mother had given him cash, totaling $50,000, on three separate occasions. Delossantos did not remember where the first transaction occurred; the latter two took place at his shop. Delossantos had no contact information for Rivera's mother, whom he could not identify,[5] and stated that he agreed to post the bail for Rivera because Rivera's mother " did not have a bank account of her own, only cash." Four days later, Delossantos reported to the trooper that he believed that Rivera's mother was in the Dominican Republic, and that he did not know the woman who had given him the cash.

The State police also questioned Peguero about the $50,000 he posted. Peguero stated that he was acquainted with Rivera and had met him a few times at Delossantos's shop. He was approached by Rivera's cousin and asked to post bail for Rivera. Peguero paid $15,000 from his own bank account and received $35,000 in cash from Rivera's mother. Peguero could not recall where or when he had received this cash from Rivera's mother, whose name he did not know and for whom he had no contact information. Peguero told the trooper that, in addition to himself and Delossantos, " Rivera's girlfriend had also played a role" in obtaining Rivera's bail money.

Peguero, Delossantos, and Valdez moved to intervene in the civil forfeiture action.[6] All three were represented by the same attorney. In his affidavit in support of the motion, Peguero swore that he posted $50,000 bail " to help my friend Doriel Rivera," and that the remainder " was posted by two mutual friends of Doriel Rivera," Valdez and Delossantos. Peguero averred that the $50,000 " came directly from my bank account," from money he earned through his employment.[7] Valdez's affidavit stated that she contributed $25,000 " to help my friend Doriel Rivera post bail." Valdez earned the money through her employment, where she was earning $20.57 per hour as an international account representative. Delossantos's affidavit stated that the $50,000 he posted " came from my bank account." He stated that he owned a custom auto shop, but not that the money represented income from that endeavor.

Following allowance of their motion to intervene, Valdez, Peguero, and Delossantos filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). They argued that dismissal was required because the police failed to obtain a warrant before seizing the funds, and because the Commonwealth failed to demonstrate " probable cause to believe that the bail money was connected to any unlawful activity" at the time it instituted the action. On July 11, 2013, the motion was denied without hearing.

Approximately five months later, Valdez obtained new counsel, who filed an answer and jury demand on her behalf. However, the answer was stricken for failure to seek or obtain leave to file a late answer. On January 13, 2014, all three interveners were defaulted for their failure to answer the complaint. Valdez moved to set aside the default and for leave to file a late answer; the motion was denied because " no good cause has been shown to warrant removal of the default." Peguero and Delossantos also moved to set aside the default and for leave to file a late answer; their motion also was denied.

On February 19, 2014, Valdez moved to vacate the order of preliminary seizure as to her claim to $25,000. The motion was denied because Valdez " ha[d] no standing to challenge the claims in this case" in light of the denial of her motion to vacate the default and for leave to file a late answer. On April 1, 2014, the court allowed the Commonwealth's motion for default judgment under Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009).

Discussion.

" When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules . . ., the clerk shall enter his default." Mass.R.Civ.P. 55(a) , 365 Mass. 822 (1974). Under the rule, " a defendant failing to answer a complaint in timely fashion shall be defaulted." Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74, 546 N.E.2d 384 (1989).

Here, the interveners were required to file a responsive pleading within ten days after receiving notice of the court's denial of their motion to dismiss. Mass.R.Civ.P. 12(a)(2), 365 Mass. 754 (1974). They never filed an answer; therefore, they were in default as of July 25, 2013. The court may set aside the default " [f]or good cause shown," Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), which " requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses." Johnny's Oil Co. v.Eldayha, 82 Mass.App.Ct. 705, 708, 978 ...


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