U.S. BANK TRUST, N.A., trustee, 
KELLY A. JOHNSON & another. 
Heard: July 8, 2019.
PROCESS. Complaint filed in the Worcester County Division of
the Housing Court Department on October 5, 2017. A
motion to set an appeal bond was heard by Diana H. Horan, J.
matter was reported to a panel of this court by Milkey, J.
Caramello for Harvard Legal Aid Bureau.
Rosenbloom for City Life/Vida Urbana.
Strauss for Community Legal Aid, Inc.
A. Johnson, pro se.
W. Seeley, Jr., for the plaintiff.
following submitted briefs for amici curiae: Dawn R. Duncan,
Mitchell, pro se.
C. Ross, pro se.
Green, C.J., Maldonado, & Hand, JJ.
matter comes before us on a report and referral by a single
justice of this court, pursuant to Mass. R. Civ. P. 64, as
amended, 423 Mass. 1410 (1996), and Rule 2:01 of the Rules of
the Appeals Court (1975). In his memorandum and order of
referral, the single justice framed three questions for
consideration: (1) whether the time period prescribed by G.
L. c. 239, § 5, to file a motion for waiver of an appeal bond
for an appeal from a judgment for possession in a summary
process action is jurisdictional; (2) whether the
plaintiff's failure to produce the original note secured
by the mortgage it foreclosed to acquire its title to the
property raises a nonfrivolous appellate issue, thereby
justifying waiver of an appeal bond for an indigent
defendant; and (3) whether the indigency of one, but not
both, defendants in a summary process action may justify a
waiver of the appeal bond requirement. For the reasons that
follow, we conclude that, though the ten-day period
prescribed by G. L. c. 239, § 5, to file a motion for a
waiver of the appeal bond is mandatory, it is not
jurisdictional, as illustrated by circumstances such as those
in the present case, in which the question of indigency
cannot be determined as an abstract question but, instead,
depends on the amount of the required appeal bond and any
required payments for use and occupancy during the pendency
of the appeal, as compared to the resources available to the
moving defendant. We also conclude that the defendants have
raised a nonfrivolous issue for appellate consideration on
the summary judgment record presented to the motion judge.
Finally, while we agree that defendant Kelly A. Johnson has
standing to raise her indigency ...