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U.S. Bank Trust, N.A. v. Johnson

Appeals Court of Massachusetts, Worcester

October 24, 2019

U.S. BANK TRUST, N.A., trustee, [1]
v.
KELLY A. JOHNSON & another.[2]

          Heard: July 8, 2019.

         Summary 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.

         The matter was reported to a panel of this court by Milkey, J.

          H. Esme Caramello for Harvard Legal Aid Bureau.

          Alexa Rosenbloom for City Life/Vida Urbana.

          Uri Strauss for Community Legal Aid, Inc.

          Kelly A. Johnson, pro se.

          Donald W. Seeley, Jr., for the plaintiff.

          The 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.

          GREEN, C.J.

         This 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 this opinion.[3]

         Background.

         The 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.[4] 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 ...


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