Buyer’s Remorse: I didn’t want that 209A order!

Posted on October 24th, 2007, by Dmitry Lev

Many remorseful plaintiffs, those who at one time obtained 209A Restraining Orders against their husbands, girlfriends, mothers, etc, but have long since had the order vacated or expired, are now coming around to realize the amount of future damage that they caused to those on the receiving end. That damage may mean being denied a future job opportunity, or having to undergo an extra thorough investigation when attempting to purchase a firearm, or an unfavorable determination of bail in an unrelated criminal matter — the list goes on and on. These remorseful plaintiffs are seeking ways to make peace with their mistakes, and at the same time help the defendants clean up their records. These remorseful plaintiffs, at times joined by their once hated defendants, are on a pilgrimage to expunge. Encouraged without a doubt by the often incorrectly quoted case law that allows a limited opportunity to expunge the records of certain fraudulently obtained 209A Orders, the remorseful plaintiffs are calling lawyers, court clerks, and the evening news looking for that magic button that they can push, or that magic motion that they can file, to expunge those records for good.

For a more detailed overview of the relatively new law allowing expungement of 209A Orders, see Green Light to Expunge. In short, expungement may only be had in cases that where “fraud on the court” was perpetrated. This fraud must be proven by “clear and convincing” evidence, which is a rather high standard of proof, though not as high as “beyond a reasonable doubt.” The plaintiff coming forward a year later, saying “I made a mistake, I shouldn’t have gotten this restraining order” is not going to meet the expungement requirement. Nor will the plaintiff saying “my husband’s future career prospects are now at risk” be sufficient to expunge. This type of buyer’s remorse may be enough to get an existing order vacated, which is usually done in any event at the request of the plaintiff, but buyer’s remorse will not be enough to expunge.

What, then, is fraud? The legal definition used in Massachusetts courts is, “where a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense,” taken from a 1994 case of Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29. Well, Gesundheit! In a 209A case, let us take two extremes and allow the splendid variety of real life cases to fill in the rest. If the plaintiff accused the defendant of throwing the family cat at the plaintiff on December 5, 2004, but in fact many people can testify that the family never had a cat, on top of that the judge can observe that the defendant has no arms due to a birth defect, and on top of that there are plane tickets showing that the defendant was in Morocco on that date — here there is an excellent chance of establishing that the 209A order was obtained by fraud on the court. An extreme case, no doubt. On the other hand, the plaintiff merely failing to show up to the 10 day hearing will never in itself be sufficient to establish fraud.

But what of buyer’s remorse? If a plaintiff admits to lying in her affidavit or testimony, will that be sufficient to meet the fraud standard? While there has been no case law discussing this exact situation, it is more than likely that the plaintiff’s outright admission to having lied will suffice to establish fraud. (This is very different than the plaintiff saying that she merely exaggerated, and that the defendant did not punch her but merely pushed her — there is still physical abuse here!) Should every remorseful plaintiff run to court and admit that they may have lied? Consider the risk to the plaintiff. Affidavits in support of restraining orders are signed under oath. All testimony in 209A proceedings is taken under oath as well. Perjury, of course, is the act of lying under oath in a judicial proceeding, which in Massachusetts is a felony punishable by up to TWENTY YEARS in the state prison. Is every little lie made during the course of a restraining order hearing going to be prosecuted to the fullest extent, or even prosecuted at all? As a practical matter, no. But that risk, that exposure is out there, and must be carefully weighed.

On a slightly different note, on the bottom of the second page of a 209A order in the section that is checked when the order is vacated there is a statement to the effect that “all records of this orders will be destroyed by law enforcement agencies.” THIS IS NOT EXPUNGEMENT. This is merely something that police departments do internally to avoid falsely arresting someone for a violation of a 209A order that no longer exists. This does not apply to the Statewide Domestic Violence Registry, and does not affect CORI records or what appears on certain types of background checks. Sure enough, there forever lives a record of even a vacated 209A order unless it is expunged for fraud or until our legislature designs a better system.