U.S. BANK TRUST, N.A., trustee, 
KELLY A. JOHNSON & another.
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.
Esme 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,
pro se. Jean Mitchell, pro se. Grace C. Ross, pro se.
Present: 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 as a ground for waiver of the
appeal bond, we disagree with the defendants' suggestion
that the indigency of one codefendant may serve as a basis to
excuse another nonindigent codefendant from the requirement
to post a bond. We accordingly vacate the order declining
action on the motion to waive the appeal bond and the order
setting the appeal bond and use and occupancy payments, and
remand the matter for further proceedings consistent with
plaintiff, U.S. Bank Trust, N.A., as trustee for the LSF9
Master Participation Trust (U.S. Bank), claims title to
certain residential property located at 18 Baxter Street,
Worcester, pursuant to foreclosure of a mortgage granted by
defendant Patricia A. O'Dell on December 27, 2011.
O'Dell, together with her codefendant and daughter, Kelly
A. Johnson, who also resides at the property, challenge the
validity of U.S. Bank's title on various grounds arising
from alleged defects in the foreclosure process. After filing
a summary process complaint in the Central Division of the
Housing Court Department (Housing Court), U.S. Bank
successfully moved for summary judgment and, following entry
of judgment on November 5, 2018, the defendants timely filed
a notice of appeal. On January 9, 2019, U.S. Bank filed a
motion to set an appeal bond. On January 29, 2019, the
defendants filed a motion to waive the appeal bond. On
January 30, 2019, a judge of the Housing Court declined
action on the motion to waive the appeal bond, with the
following margin endorsement: "motion cannot be
considered as it is untimely filed (c. 239 sec. 5 &
6)." On the same day, the Housing Court judge ordered
that the ...