What Kind of Justice Will Michael Elbery Find in Judge Fein's Berkshire County Housing Court?
A Tenant - Michael Elbery Given an 18 Hours Notice by phone to Appear for Court for TRO Hearing!
Will Al Wilcox and Company Retaliate - see end
At about 4:00pm. Tuesday afternoon, June 6, 2017, Michael Elbery's phone rang; it was an assistant clerk magistrate from the Berkshire County Housing Court that expressed her sympathies for her "understanding that you people down there had your water shut off by the landlord." The Assistant Clerk Magistrate continued in a rush over the phone to Michael Elbery, that "we want to know what happened, please be in Berkshire Superior Housing Court tomorrow (Wednesday) to tell the Housing Court about the Landlord turning off the tenant's water to the Building."
Michael Elbery expressed thanks to this woman assistant magistrate, because, initially, this phone call from the Housing Court seemed like a pleasant surprise and the Court was going out their way to investigate the Criminal Conduct of Landlord Al Wilcox on Monday - Tuesday (June 5/6-17), when this new landlord decided he had the right to shut the water off in the entire 4-Unit Apartment Building at 120 Old Pleasant St., Lee, Mass.. That illegal shutting off of the water at 120 Old Pleasant St., Lee, Mass. caused three tenants in three different apartments to go without water, including drinking water, bathroom water, washing water, etc.
Then, Michael Elbery started to catch up with this "fast caller" and said, "wait a minute, if their is a court hearing someone had to file a complaint or some legal papers". Michael Elbery further responded that Landlord, Al Wilcox did in violation of Massachusetts criminal and civil law shut off the water in the building but he, Michael Elbery, didn't file any papers with any court about the incident.
The fast Assistant Clerk Magistrate slowed a bit and disclosed that a "Lynn Bertelli" filed a complaint. Michael Elbery followed up that Bertelli is Wilcox's wife and partner- landlord and new owner of the Apartment Building he has lived in since 2011 at 120 Old Pleasant st., Lee, Mass.. Let's see, that's a lot of rent to pay on the first of the month and at June 1, 2017, Michael Elbery paid another month's rent to these new landlords.
Michael Elbery then asked, "what is the landlord's complaint against me?" The Assistant Clerk Magistrate responded, you'll find out at 9:00am., I am not telling you anything, we don't have to give you any notice." "If you don't show up at 9:00am we will hold the hearing without you."
Michael Elbery complained, "If I don't get the papers Bertelli filed until the hearing starts how can I prepare my case and have my evidence ready for the hearing?"
That's all they give White Men in today's United States, we are reduced in our courts to second rate citizens, who are treated with a different standard of law, as if we are the enemy.
Whether it is Judge Fein, as indicated on the Mass. Court System's web site, or a Judge Fields, as the Assistant Clerk Magistrate claimed, by phone, will preside at the 6-7-17 Housing Court TRO Hearing, a paying tenant is never a defendant in TRO (Temporary Restraining Order Hearing). A tenant-at-will (Michael Elbery is under the law a tenant at will) is subject to an Eviction, even if he pays his rent timely, like Michael Elbery always has and does. At June 6, 2017 Michael Elbery is now paid a month in advance starting June 1, 2017. In other words, a landlord never files a TRO against a tenant, the landlord files for an eviction; in Massachusetts this process to vacate an apartment starts with the landlords serving the tenant with a "Notice to Quit" which give the tenant between 30-60 days to leave without the landlord engaging in an Eviction Proceeding in Court. What are these people planning for Michael Elbery?
Here is the Massachusetts Law on TRO's (Rule 65 of the MRCP). What is "the immediate and irreparable loss or damage" that Wilcox and Bertelli will claim is caused by this 65 year old retired tenant, Michael Elbery? They can't claim they have not been paid every month for their rent.
Well, the Berkshire Housing Court will not claim that Michael Elbery is criminally liable for needlessly shutting off the tenants water for a day. According to the Assistant Clerk Magistrate, the Court knows that Al Wilcox criminally shut off the water to the 4 - unit Apartment Building causing the tenants to be without basic necessity of life, namely water.
The worst part about the water being needlessly shut off by the landlord Wilcox is that we had no way of knowing when the water would, if ever be turned back on. It was only the threat of arrest by the police, because the shutting off of the tenants water supply is a criminal offense in Massachusetts, that Wilcox was forced to turn the water back on the next day.
What is really going on with Wilcox? Wilcox is trying to create a legal situation whereby he can enter Michael Elbery's Apartment #7 at any time and take over Elbery's apartment with the Force of Law of the Housing Court Judge, and then Wilcox can engage in more illegalities. The illegality is not another water pipe like the one Wilcox punctured from the vacant Apartment #9 (above Michael Elbery's apartment) on June 5, 2017 causing his fraudulent excuse to turn of the water in the entire building. All that was necessary to stop the water leak caused buy the copper water pipe Wilcox pieced with a sharp tool from the upstairs "plumbing trap" that houses the water pipes to Apartment #9 that is over Michael Elbery's Apartment #7 was to turn off the water in the vacant apartment #9. Each of the 4 Apartments in the building have their on water shut-off valve (located in the cellar ceiling and easily identified because of the fluorescent yellow handles) as is required by Massachusetts law. Wilcox would be forced by threat of arrest by the police to do just that, after first making the water meter operable, again, and allowing the water to run at 120 Old Pleasant St., Lee, Mass..
Read the 93A letter sent by Michael Elbery to landlords Wilcox and Bertelli; Landlord Al Wilcox wants to kill tenant Michael Elbery, in order to save himself a sizable sum of money to remove the "chipping and peeling" Lead Paint in the Apartment Michael Elbery rents from Wilcox and wife, Bertelli. Wilcox wants to illegally remove the Lead Paint covered walls in Apartment #7, Old Pleasant St., Lee, Mass. where Michael Elbery lives, but Wilcox does not want to obey the Lead Paint Removal laws that are very costly. Wilcox is a local elected official in the good town of Tyringham, Mass., and thinks the laws are for everybody else to obey, but him.
Also see the Hyperlink on this Web Site dedicated to the illegalities of these local yokel landlords which will further explain, in detail, how greedy Al Wilcox and his landlord wife, Lynn Bertelli, want to enter the apartment #7 that Michael Elbery rents from them and illegally remove the Lead Paint covered walls in his Apartment. Wilcox is going to replace those Lead Paint Covered walls with plaster board and forever cover-up the Lead Paint Law Violations in apartment #7 and at the same time cover up all the water-logged studs that make up the framing wall in apartment #7.
That's right, the reason the Federal Government and the State of Massachusetts Legislature enacted the Lead Paint Laws was to protect the citizenry from people like Al Wilcox. If Wilcox is empowered by the Judge at Berkshire County Housing Court to enter Michael Elbery's apartment, every time Wilcox declares a phony emergency, then the Housing Court Judge will be empowering Wilcox to illegally remove the "peeling and chipping" Lead Paint Plaster Walls in Michael Elbery's apartment which will Kill Michael Elbery, or at a minimum, cause him to be "Constructively Evicted".
When removing Lead Paint covered walls, the Lead Paint particles filter through the air and land on every surface of the apartment and make the apartment unlivable. If the tenant, in this case Michael Elbery, doesn't immediately move out of the apartment he will suffer the consequences via his health. Lead Paint is poison. Wilcox has demanded, now for 6 months, that he "get right in there" (apt. #7) and remove the Lead Paint and Cover up the evidence with plaster board and at the same time Wilcox will cover up the water logged framing studs that should cause the Building to be condemned.
Need a little help in tying everything together?
MOTIVE - The reason Wilcox punctured the copper water pipe in the vacant upstairs #9 Apartment (that apt. #9 is directly above apartment #7) was to have feeble excuse to shut off the water in Michael Elbery's Apartment #7, in order to Force Michael Elbery out of that apartment, so Wilcox could avoid the Mass. Lead Paint Removal Laws and tear down the Lead Paint Covered Plaster walls in Apartment #7 and remove the Lead Paint without spending $10,000.00, or more, paying legally mandated Lead Paint Testers, Inspectors, and Lead Paint Removers to do the job. In the process, Wilcox would quickly nail up some plaster board in place of the old fashioned plaster (that is covered by Lead Paint) and also cover up all the water logged framing in the Northwest corner of the Apartment Building at 120 Old Pleasant St., Lee, Mass. that causes that framing in the building to be structurally unsafe and should be condemned; the water logged framing studs need to be replaced as do the sills and other structural components.
When Wilcox turned off the water on June 5, 2017, he said to Michael Elbery, "Now you don't have any water, what are you going to do now?" Then Wilcox said, "when are you getting out of here?"
Wilcox Problem - Wilcox had a problem with his objective in forcing tenant, Michael Elbery, illegally out of Apartment #7, so he, Wilcox, could save money on Lead Paint Removal. Each apartment has the standard "yellow handle water shut off valve", located "in line" in the water pipes, that run along the ceiling in the Apartment Building cellar. Wilcox used the water leak caused by his puncturing the soft copper water pipe in the vacant Apartment #9 to cause a flood in Michael Elbery's apartment and have feeble excuse to shut off the water in the entire Apartment Building by shutting off the Main Water Valve at the inside of the water line at the Water Meter.
Apartment #9 Water Valve Sticks Out Like "Fluorescent Yellow" - It was never a problem to anybody involved (Wilcox, his employee Frank, Michael Elbery, or the Le Provost the plumber) as to where the 4 "fluorescent yellow shut off levers/valves" to each of the 4 apartments are in the Apartment Building cellar; they stand out like, well, Fluorescent yellow. Michael Elbery went into the cellar with the plumber he hired to fix the copper pipe Wilcox punctured. The plumber had access to the punctured copper water pipe from the plumbing trap in the ceiling of Apartment #10's ceiling. The plumber agreed with Michael Elbery that there was no need to shut off the water in his Apartment #7 or the rest of the units in the Building. While in the cellar with the plumber we observed that someone had also shut off the water valve (yellow handle down) to Apartment #9 which had the punctured copper water pipe. Wilcox showed up and confirmed the simple task of identifying the water valve to Apartment #9.
Wilcox also knew that he could not get away with turning off the water valve to Michael Elbery's Apartment #7 because it would have been too simple for Michael Elbery to turn the valve back on. The "yellow handled water shut off valves" are marked with arrows "ON", "OFF"; the "yellow handles (levers)" only move 90 degrees. If Wilcox kept returning to the Building and continued to shut off just the water valve for Apartment #7, then Michael Elbery would keep calling the police, reporting that Wilcox was committing more crimes.
Likewise, shutting off the water valve at the water meter is easily remedied. Just turn the valve lever at the inside water line at the water meter and presto, as soon as, Wilcox is gone the Apartment Building has water (the water valve for Apartment #9 was in the "OFF" position or pointed down).
Wilcox Shuts Off the Water Into the Building
by shutting off the water meter. Michael Elbery went down into the cellar to
turn the water back on because Wilcox was gone by 9:00pm. on 6-5-17, but the "Main Shut Off
Valve" at the Water Meter was NON-FUNCTIONING. Whether the "Main Water Valve Lever"
was moved "up or down" it did nothing, it was made non-functional because the
water meter was shut off. Wilcox had a plumber go into to the cellar before he
left the premises on the evening of June 5, 2017 and had the water line into the
building shut off or the water meter shut off. Either way, Wilcox had gone out
of his way to make sure the water to the entire building at 120 Old Pleasant
St., Lee, Mass. remained off. The Police made Wilcox return to 120 Old
Pleasant St. and turn the water back on the next day, so that the 3 tenants at
120 Old Pleasant St., Lee, Mass. could have water again.
Read the 93A letter filed by Michael Elbery that includes the illegalities of landlord Al Wilcox and Lynn Bertelli through May of 2017, that 93A letter has to be updated to include Wilcox's crime by shutting off the Apartment Building water, as admitted via the Assistant Clerk Magistrate during phone call to Michael Elbery, as above.
Day in Pittsfield Housing Court - 6-7-2017 - No Due Process of Law
Michael Elbery arrived at the Berkshire Superior Court building at about 8:30am. (Wednesday 6-7-2017)., so he could acquire the "Affidavits" or "Verified Complaint" required for a Hearing on a TRO to be filed by the Controlling Massachusetts Law, M.R.C.P. Rule 65. Because Michael Elbery was not ordered to the Housing Court until 4:00pm. the prior afternoon (Tuesday) and was refused any information as to the Landlord - Bertelli's grounds for a TRO against him, Elbery arrived early and asked the Housing Court Clerk for the Affidavits or complaint or any documentation the Court had so to have a hearing. The Clerk said, "Nothing was filed!"
The Housing Court Clerk told Michael Elbery impatiently , "there is nothing filed yet, just have a seat and your name will called as the defendant."
That's right at 9:00am. the Housing Court still did not have an Application (Affidavits or Verified Complaint) to support the TRO Hearing in the Pittsfield Housing Court. The Housing Court Session started at 9:00am., and a Housing Court Moderator named James Burdell greeted Michael Elbery, while asking him if he would allow him to mediate between him and the plaintiff, Bertelli/Wilcox. Michael Elbery readily agreed to a non-binding mediation. However, it took some coxing before Bertelli finally agreed to mediation, instead of a Court Hearing.
Mr. Burdell revealed that there was no Judge that day seated in Berkshire County Housing Court that holds court only one day a week, Wednesday. The Berkshire County Housing Court is a satellite of the Western Mass. Housing Court in Springfield, Mass.
The Housing Court Mediator handed Michael Elbery the paperwork that Bertelli finally submitted at 9:00am. to support or provide grounds for her Application for TRO.
How was Bertelli able to reserve a hearing date on June 6, 2017 for hearing on June 7, 2017, when she had not filed any of the required legal documents with the Court???
During the mediation room discussion, the were 4 people; the mediator, James Burdell, Michael Elbery, and Bertelli and Wilcox. Bertelli did 90% of the talking for their side. Bertelli was allowed to read off her alleged Affidavits that allegedly supported her Application for a TRO with alleged legal grounds.
Michael Elbery, after listening to the dull tone of Bertelli reading her fiction, let out a Loud "Objection" to the alleged evidence in the form of an alleged Affidavit that Bertelli was reading in the mediation room. The Grounds for Michael Elbery's "Objection" was, as he expressed loudly, "Hearsay" and "Double Layer Hearsay". The mediator Burdell agreed that Bertelli's Affidavits were illegal and not Evidence in a Court of Law, but Burdell said "let's see if we can agree to something to resolve this problem with the Lead Paint the Plaintiff' wants to Remove from your apartment."
That became the issue before mediator Burdell, Bertelli and Wilcox's demand to get into Apartment #7 to remove the Lead Paint (illegally).
Bertelli after finishing reading her 2 pages of Inadmissible Evidence (Hearsay and Double Layer Hearsay), was then allowed to complain that she and her husband, (Al Wilcox) were not allowed by Michael Elbery to take down the kitchen plaster walls in his apartment, so they could remove the Lead Paint Violations.
However, Lynn Bertelli, had to confess that she was not present at the underlying events she described in her alleged Affidavits in support of her Application for a TRO. Lynn Bertelli in the process admitted that she presented no EVIDENCE or GROUNDS FOR THE HOUSING COURT to ACT or even Consider ISSUING a TRO to make Michael Elbery allow the Landlords in his Apartment, so they could Kill him removing the Lead Paint in Violation of the Mass. Lead Paint Laws.
The highlight to the moderation was when Al Wilcox finally spoke and admitted that he turned the water off in the entire building at 120 Old Pleasant st., Lee, Mass., but he claimed it was "o.k." because he did not know where the water shut off to Apt. #9 was in the cellar. Wilcox Admitted to a crime. A Landlord commits a felony when he turns off the water to an Apartment Building. Wilcox wasn't satisfied in shutting off the water at the inside of the water meter; Wilcox had a plumber in black truck show up and disconnect the meter meter, so none of the tenants could go down in the cellar of the Apartment Building and turn the water back on. The water shut off valve for apartment #9 was already in the "off" position as Wilcox had instructed earlier in the day when the pipe was punctured by Wilcox upstairs when Wilcox punctured it with a pointed steel tool (an all). In other words, Wilcox knew exactly how to shut off the water to apartment #9, and therefore, lied to the Court (perjury) and Wilcox's silly defense to his crime of shutting off the water to a building with tenants is no defense.
Michael Elbery explained to the mediator, Burdell, that the reason why we are in Court is because the landlords want to Illegally remove the Lead Paint Violations and cover up the water rotten framing studs in the Northwest Corner of the Apartment Building that forms the corner of that building where his Apartment #7 and the upstairs Apartment #9 are located. And these same Landlords want to do this removal of the Lead Paint in Apartment #7 in Violation of Mass. Lead Paint Removal Laws, so they can save a lot of MONEY. But in the Process of Violating the Lead Paint Laws to SAVE MONEY the Landlords will make the Apartment I rent from them UNLIVABLE. Should I remain in that apartment during and after the Landlords remove the Lead Paint in Violation of the Mass. Lead Paint Laws, then I will be Killed from the Lead Paint that pollutes my Apartment.
Burdell wrote an agreement between the parties which dictates that the same Massachusetts Lead Paint Laws have to be Complied with and Obeyed by Wilcox and Bertelli regarding the Lead Paint they seek to remove in Apartment #7.
The Court mediator, Burdell, was a little puzzled when Michael Elbery alerted him that these landlords, Bertelli and Wilcox, have never served him a "Notice to Quit". Michael Elbery explained that these landlords are so adverse to the legal procedures that govern there landlord apartment rental business that they refuse to make use of the means that Mass. Law provides them which is a "Notice to Quit". A "Notice to Quit" simply is an order by the Landlord to a "tenant at will", as is Michael Elbery, that they no longer want to rent to him and that he must be out of the apartment in 30 days or face an Eviction Process in Court. Michael Elbery instructed at this mediation hearing that these landlords could have had him out of that Apartment #7 long ago, but these landlords don't like law. Landlords, Bertelli and Wilcox, would rather commit crimes by shutting off the water in the building trying to illegally force Michael Elbery out of the Apartment.
STRANGE - it was never explained how the "peeling and chipping" lead paint in Apartment #7 could be classified as a condition causing an "immediate and irreparable loss or damage" as required by Rule 65 of the MRCP to cause a TRO to be issued be issued by the Court! The prior landlord, his maintenance man - Al Vincent, and the new owner, Al Wilcox, all knew that the Lead Paint was "chipping and peeling" off the old fashioned plaster walls of Apartment #7, not only did they know the entire building was loaded with lead paint but they knew the 2 1/2 year water leak caused by the missing gutter in the northwest corner of the Apartment Building at 120 Old Pleasant St., Lee, Mass. also caused all the framing studs and sills to be water logged and worthless. I personally let Wilcox in my apartment around September of 2016 and showed him the "Chipping and Peeling" lead Paint and told him what everybody already knew, that the framing needs to be replaced and the building condemned and that the Cost to fix all these problems in the northwest corner of the Apartment Building at 120 Old Pleasant St. would be about $50, 000.00., before lawsuits.
That's right, the grounds for the landlord's TRO was old news and the only damage they will suffer is if they have to Comply with the Mass. Lead Paint Removal Laws and also fix the structurally unsound framing in the Apartment Building that should be Condemned.
THE CASE WAS CONTINUED FOR A WEEK UNTIL JUNE 14, 2017
The Tri-Town (includes Lee, Mass.) Board of Health refused to do Lead Paint Test; per that same letter the Tri-Town Board of Health is requiring by the Landlords, Bertelli and Wilcox, to hire Mass. Licensed Lead Paint Inspectors, Testers to oversee the Lead Paint Removal Job at Apartment #7 and to Comply with all Lead Paint Removal Laws in Massachusetts. The Tri - Town Board of Health requires per their Report that the Landlords, Bertelli and Wilcox, hire, only, Massachusetts Licensed Lead Paint Testing and Removal Individuals to do the Lead Paint Removal in Apartment #7 at 120 Old Pleasant St., Lee, Mass.
On June 9, 2017, Michael Elbery, the tenant in Apartment #7 at 120 Old Pleasant St., Lee, Mass., hired a Massachusetts Lead Paint Tester/Inspector to Officially Document that the walls the Landlords want to rip out of his apartment are Covered with Lead Paint. The Massachusetts Licensed Lead Paint Inspector, Terry Miller, further submitted a "Lead Paint Risk Assessment Report" which not only Officially Documents that the Landlords have a serious Lead Paint Problem in their Apartment #7 at 120 Old Pleasant St., Lee, Mass., but the Landlords have just started, involuntarily, ( because their tenant - Michael Elbery hired the Licensed Tester while they weren't looking) on a long Lead Paint Removal Process that must be signed off by Licensed Personnel at every step of the Lead Paint Removal Process.
"The law of the case - Nothing has Changed"
Licensed Lead Paint Inspector, Terry Miller, provided the Massachusetts Law, "Mass. DEP's - Notice to Property Owners and Tennants: Tennant's Rights and Responsibilities" that controls Apartment #7 at 120 Old Pleasant St., Lee, Mass. and how the The Lead Paint Removal shall be done and what the Rights of the Tenants are according to Mass. Law.
***Mass. Licensed Lead Paint Inspector, Terry Miller, also provided, as required by Mass. Law that now that Lead Paint in Apartment #7 at 120 Old Pleasant St. has been Officially documented it is mandated by Mass. law that a "Comprehensive Lead Paint Inspection" must be performed by a Licensed Person.
That's right the Landlords, Bertelli and Wilcox, can no longer avoid the Mass. Lead Paint Laws, thanks to Tennant, Michael Elbery, hiring Terry Miller, who is a "Licensed Lead Paint Tester" and "Inspector". The State of Mass. Knows of your Lead Paint Violations in Apt. #7 of 120 Old Pleasant St. and the Landlords, Bertelli and Wilcox, must Comply with those Laws.
To Start with the Landlords must do as mandated by Mass. Lead Paint Laws, as Follows:
Have a Licensed "Comprehensive Lead Paint Test" Done in Apt. #7 and the Common areas of the Apt. Building at 120 Old Pleasant St., Lee, Mass.
Provide a 10 - Day Notice to All Tenants in the building that list all Licensed Persons who will do the various steps of the Lead Paint Removal Job.
The owners of the Apartment Building at 120 Old Pleasant St., Lee, Mass. are now liable to remove, in Compliance with the Mass. Lead Paint Laws, the newly Officially Documented Lead Paint Violations.
The Landlords must provide the Tenant, Michael Elbery, Temporary housing while Apartment #7 is being De-Leaded.
So after all that, had Wilcox just cooperated with tenant, Michael Elbery, and given him a chance to move out, Landlord's Wilcox and Bertelli, could have Violated all the Mass. Lead Law Removal Laws they were so intent on breaking, so to save themselves MONEY. Theses Landlords are GREEDY. NOW, the illegal Lead Paint Violations are documented and are going to the HOUSING COURT.
The Pittsfield HOUSING COURT JUDGE
Will the Housing Court Judge help the Landlords Violate the Law and give them a Court Order to enter Michael Elbery's Apartment, so the Landlords can rip the Lead Paint Covered Walls out of his Apartment in violation of law and causing Michael Elbery "irreparable harm to his health"? If the Housing Court Judge gives the landlords their Court Order that allows them into Michael Elbery's apartment, the landlords will not Comply with the Mass. Lead Paint Removal Laws, and it will be the same as the Judge Evicting Michael Elbery who is, as the landlords admit, a tenant who always pays his rent on the first of the month and is Prepaid this month of June 2017.
On June 13, 2017, Wilcox again tries to "Con" Michael Elbery with lies about law and the Board of Health inspectors and Lead Paint Tester. In the parking lot of the Apartment complex Wilcox tries to convince Michael Elbery that the Board of Health will allow him to simply paint over the wall which has "chipping and peeling" Lead Paint. That is not allowed Wilcox.
Wilcox also claims he needs me, Michael Elbery, to leave for 4 hours while his worker, Franky, works in my Apartment #7; Wilcox needs me, Michael Elbery, to leave so he can knock the plaster walls down (those plaster walls are covered by Lead Paint), and in the process make the apartment unlivable due to the lead particles that filter through the air and land indiscriminately on all surfaces and thus poisoning the Apartment with Lead. That's why the Mass. Legislature passed the Lead Paint Removal Laws, so unprincipled and unethical, greedy people like and Al Wilcox and his wife, Lynn Bertelli are prevented from killing tenants.
The June 14, 2017 Hearing at Pittsfield Housing Court Before Judge Robert Fields
" Unbiased Compliance with the law is Justice" and that is how Judge Fields Decided on the Case that Bertelli initiated in Housing Court.
Housing Court is a serious management job; it was a new experience to Michael Elbery. It was nothing like the Federal Court or the Mass. Superior Courts or even the District Courts. The Housing Court had to Deal with dozens of cases that day. The clerk read the docket list for the day and there were at least 2 dozen cases called.
Michael Elbery Filed a "Motion to Dismiss" the TRO with Supporting Exhibits because the Plaintiff's Application for TRO was supported only by "Hearsay", additionally the plaintiff raised no facts that showed an "immediate or irreparable harm" would result to them that is required of Rule 65 of the M.R.C.P. to issue a TRO.
The Housing Judge Fields would not address this issue of dismissal raised by the Defendant, Michael Elbery, but instead heard the plaintiff Bertelli about their desire to get into apartment #7 to do their "repair work" (lead paint removal). Bertelli made false claims that apartment #7 had a hole in the bathroom wall, so to convince the Judge that she and her husband, Al Wilcox, should be granted a Court Order to enter Michael Elbery's apartment on grounds that were not related to lead paint. Michael Elbery quickly objected to plaintiff Bertelli's alleged testimony which was all hearsay and the judge stopped her testimony because, as the grounds raised by the defendant, she was not at 120 Old Pleasant St., Lee, Mass., and did not witness anything that she was testifying to.
Co-Landlord, Al Wilcox, took over with his totally hearsay testimony about seeing the Board of Health Inspector when he was at Michael Elbery's apartment door; Wilcox was in the front of the Building and never saw the Board of Health Inspectors at Apartment #7 while they were talking to Michael Elbery for a few seconds. Wilcox claimed he saw Michael Elbery with a video camera video taping the Board of Health Inspectors; there was no video. The Board of Health Inspector had his picture taken. Michael Elbery didn't Object to the Wilcox Hearsay because he thought he would get a chance to testify and counter both, Bertelli and Wilcox's, fabricated testimonies, but the case moved so quickly that the false testimony raised by Wilcox and Bertelli became irrelevant.
Al Wilcox Confesses to Felony Crime in Open Court
The Highlight of the Housing Hearing came when Judge Fields asked Landlord, Al Wilcox, "did you turn off the water to the Apartment Building" (at 120 Old Pleasant St., Lee, Mass). Amazingly, Wilcox admitted in Open Court that he turned off the water to the Entire 4 Unit Apartment Building that included 3 different occupied apartments and 3 separate tenants. Wilcox admitted to a Crime. It is a criminal offense in Massachusetts to try and force a tenant, Michael Elbery, out of a Building by shutting off the water in the Building. Wilcox shut the water off on all the tenants not just Michael Elbery.
Because it was not a criminal Court and Wilcox's crime was not before the Housing Court, the details of his crime of shutting off the water in the entire building for a day were never exposed in Court. However, Wilcox and company shut off the water meter making the "Main Shut Off Valve" at the inside of the water meter inoperable or non-functional. Michael Elbery went into the cellar of the Building after Wilcox and his gang (they were upstairs in the vacant Apartment #9 where Wilcox, had earlier punctured the water pipe accessing it from the plumbing trap) left the area and went home for the night at about 9:00pm. The Main Water Shut Off Valve moves as a lever back and forth, but it was not functioning because no water was reaching the other side of the water meter
Wilcox, during testimony at both the mediation hearing of June 7, 2017 and the June 14, 2017 hearing before Judge Fields, kept claiming the water pipe "broke" requiring the water to be shut off. Because the case narrowed so fast to a "legal issue" caused by the Lead Inspector's Mass. DEP Mandate, the Court never learned that Wilcox deliberately punctured the copper water pipe from the plumbing trap in vacant Apartment #9 which is directly overhead from Apt. #7. Michael Elbery never got a chance to tell the Court that he, Michael Elbery, grabbed the punctured copper water pipe when the plumber he hired from Le Provost removed it to replace it with a new copper water pipe. Copper is a relatively soft metal that can easily be punctured with a sharp steel tool, like an all.
Michael Elbery made point during testimony before Judge Fields that it is undisputed by the landlords that he is always paid his month's rent on the first of the month; Michael Elbery also testified that he paid this month's rent, June of 2017, on June 1, 2017 and that whether it was June 5, when Wilcox punctured the water pipe from the plumbing trap in the newly vacant upstairs apartment #9 or the date of the hearing, June 14, 2017, Michael Elbery is prepaid until June 30, 2017.
Judge Fields asked the landlords, "did you just buy the Building?" The reply by Wilcox was in the affirmative. Testimony during the hearing revealed that Michael Elbery had lived there for 6 years, since July 2011.
Once the judge was alerted that Apartment #7 had been inspected a few days prior for lead paint the case quickly became an "Issue of Law" controlled by the Orders of the Mass. DEP and Lead Paint Inspector and the Tri Town Board of Health. The next step was for the Landlords to do a "Comprehensive Lead Paint Test" by the Licensed Inspector. This is the law by Mass. Dept. of Environmental Protection per Exhibit D provided to the Court. The Lead Paint Inspector, Terry Miller, found that Apt. #7 was loaded with lead paint.
Judge Fields verbally ordered the landlords to Comply with the Mass. Lead Paint Removal laws and "do not go in there" ( apartment #7), "get the Comprehensive Lead Paint Test done." And there was Justice as prescribed by Massachusetts Law.
Michael Elbery alerted the court that he would be out of Apartment #7 at 120 Old Pleasant st., Lee, Mass. in the near future and that he would have been gone from that residence, if not for the sports hernia caused by a swollen intestine. In other words, Michael Elbery was not physically able to even look for another location until June of 2017.
See also Judge Field's Court Order
Epilogue: Landlords, Al Wilcox and Lynn Bertelli, corrupt the Mass. Licensed Lead Paint Inspector
It didn't make any difference that Michael Elbery and society received an unbiased and fair hearing before Judge Robert Fields in the Berkshire County Housing Court on the Lead Paint violations that landlords Al Wilcox and Lynn Bertelli have at 120 Old Pleasant St., Lee, Mass. That's because landlords, Al Wilcox and Lynn Bertelli, are "Home Rule Gangsters," and for reasons not known, are able to intimidate and "influence peddle" people in Berkshire County. Those landlords presumed that all the findings in the Housing Court would be in their favor; they presumed wrong and the law was enforced by the Court of Judge Fields.
But Judge Fields decision in the Housing Court did not stop landlords, Wilcox and Bertelli. They simply took an alternative means of corruption because they failed to corrupt the Housing Court.
Al Wilcox and Lynn Bertelli are determined not to spend money on Lead Paint removal. Michael Elbery was contacted by Licensed Lead Paint Inspector, Terry Miller, during the second week of July of 2017, and Miller told him during that phone conversation that he had changed his inspection determination of the Lead Paint violations in my Apartment #7 at 120 Old Pleasant St., Lee, Mass. Miller had done only a preliminary lead paint test that I, Michael Elbery, paid for on June 9, 2017. During that lead paint inspection, Terry Miller exclaimed that the Kitchen, alone, in Apartment #7 constituted a "high risk" lead paint abatement and major lead paint removal job.
However, in the interim, Landlords Lynn Bertelli and Al Wilcox had contacted Terry Miller and caused Miller to change his mind and to decide that Apartment #7 at 120 Old Pleasant St., Lee, Mass. had merely a "moderate risk" lead paint abatement problem not a major "high risk" lead paint abatement problem.
How he came to that new decision can only be due to influence peddling or bullying of Terry Miller at the hands of Al Wilcox and Lynn Bertelli because Miller was due to do his "Comprehensive Lead Paint Test" on July 19, 2017. Not only had Miller changed his mind about the seriousness and size of the lead paint abatement job in Apartment #7, but he made his new decision and evaluation of the lead paint problem in Apt. #7 without doing his "Comprehensive Lead Paint Testing" as ordered by Judge Fields. The evidence tells us that Wilcox and Bertelli dictated Miller's findings regarding lead paint problem at Apt. #7, 120 Old Pleasant St., Lee, Mass. without Miller doing his legally required "Comprehensive lead Paint Test".
Did Miller even do a Comprehensive Lead Paint Test in Apt. #7 as scheduled on July 19, 2017? Doesn't seem he needed to because he already determined that the lead paint problem, now, only constituted a "moderate lead paint abatement" job. And it all ties in, because Al Wilcox just finished a 2 hour class that allows landlords to remove "moderate risk lead paint abatements" without hiring a costly Licensed lead Paint Remover.
Per Mass. Lead Paint laws and 105 CMR: Department of Public Health in Mass., a "moderate lead paint abatement job" can be no larger than two square feet of peeling and chipping of lead paint. There is at least 100 square feet of lead paint peeling and chipping in Apartment #7, just on the kitchen walls. Here are the pictures ( lead paint 1, lead paint 2, lead paint 3, lead paint 4, lead Paint 5, lead paint 6, lead paint 7) to prove it and the Tri-Town Board of Health agreed there was a "high risk" lead paint abatement job at that same Apartment #7.
Mass. Lead Paint Inspector, Terry Miller, by fraudulently making decision that the apartment #7 at 120 Old Pleasant St., Lee, Mass. had, now, only a "moderate risk" lead paint abatement problem Caused Michael Elbery to be "Constructively Evicted". Michael Elbery moved out of Apt. #7 a few days later.
See Defendant's Motion to Dismiss
Exhibit A in Support of Motion to Dismiss - letter Tri-Town Board of Health, 6-8-17
Exhibit B in Support of Motion to Dismiss - Tri-Town Board of Health Assessment Report, 6-8-17
Exhibit C in Support of Motion to Dismiss - Mass. Licensed Lead Paint Inspector's Original Lead Paint Inspection, 6-9-17
Exhibit D in Support of Motion to Dismiss - Mass DEP Order, Next, a "Comprehensive Lead Paint Inspection Conducted" by Mass. Licensed Inspector
Exhibit E in Support of Motion to Dismiss - Mass. DEP Order - Landlord Required to Provide Housing during Lead Paint Removal
Exhibit F in Support of Motion to Dismiss - Mass. DEP Notice Lead Paint Hazards - Tenants Entitled to Receive a 10-Day Notice
Exhibit G in Support of Motion to Dismiss - Mass. DEP Notice, Only Licensed De-Leading on this High Risk Job do to massive required Lead Paint Scraping/Stripping
Exhibit H in Support of Motion to Dismiss - Mass. Licensed Lead Paint Inspector's Risk Assessment Report, outline Supervised Lead Paint Process
Exhibit I in Support of Motion to Dismiss - Tenant, Michael Elbery's, first, 1-4-17, writen Notice to Landlords to Repair in Compliance with Law Lead Paint in Apt. #7
Exhibit J-1 in Support of Motion to Dismiss - 93A letter - Alerting Landlords of pending suit due their Violations of Law, April, 6, 2017.
Exhibit J-2 in Support of Motion to Dismiss - 93A letter Updated with more and continued illegalities of the Landlords, dated May 1, 2017.
WHAT IS NEXT? RETALIATION - THEY WANT TO GET EVEN
No, Wilcox has come to learn that he can only bang the side of the Apartment Building with hammers so long and that his yelling outside Michael Elbery's Apartment is not doing enough Damage.
Wilcox doesn't like the night, it scares him. They are around at hours when almost everybody is asleep.
They drive a little black car and now observe Michael Elbery from behind the black truck across the street, the same truck driven by the plumber who turned the water back on at 6:00am on June 6, 2017. The same plumber who turned the water meter off in the cellar of 120 Old Pleasant St., Lee, Mass.
Their First Move will be Vandalism, it will be Directed at Michael Elbery's Truck Tires, sometime after 6-22-17.
Hey, I will be watching and if I catch you I have the right to defend my property.