U.S. BANK NATIONAL ASSOCIATION AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST v. MICHELE FAITH, JACQUELINE FAITH, PETER FAITH and MICHAEL FAITH v. SILVA REALTY GROUP, INC., Third-Party Defendants

On November 29, 2019, defendants Michele Faith, Jacqueline Faith, Peter Faith and Michael Faith ("Defendants") timely filed a Notice of Appeal from a judgment for possession entered against them on November 22, 2019. The facts of this case are set forth in the Court's Memorandum of Decision on Plaintiff's Motion for Summary Judgment, Chaplin, F.J., dated November 21, 2019. [Note 1] At all relevant times the parties were represented by counsel.

Together with their Notice of Appeal, Defendants also filed a Motion to Stay Execution of Use and Occupancy Pending Appeal and Request for Waiver of Bond. [Note 2] In response, plaintiff U.S. Bank National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust ("Plaintiff"), filed a written opposition and Cross-Motion to Set an Appeal Bond, which motions were extensively argued by counsel at a 2 ½ hour hearing held on January 16, 2020.

I. THE APPEAL BOND

The Defendants are the former owners of the property located at 114 Hawthorn Street, New Bedford, Massachusetts (the "Property") and their adult children. The Property consists of a 5,000 square foot home containing six (6) bedrooms and four (4) bathrooms. Because the Defendants are the former owners of the Property, and because this is a post-foreclosure eviction in which the Plaintiff has obtained a judgment to recover possession of the foreclosed Property, the conditions that attach to the appeal bond are governed by G.L. c. 239, §6.

G.L. c. 239, §6 provides in relevant part that:

". . . the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff. If the action is for possession of land after purchase, the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day that the purchaser obtained title to the premises until the delivery of possession thereof to him, together with all damage and loss which he may sustain by withholding of possession of the land or tenement demanded, and by any injury done thereto during such withholding with all costs."

The Court reads G.L. c. 239, §6 to require that the bond include a "reasonable amount as rent" from the date the plaintiff obtains title where, as here, the final judgment includes a money judgment for unpaid use and occupancy. In addition, Section 6 entitles the plaintiff to a bond order that conditions the entry of the appeal upon the defendant's payment of "a reasonable amount as rent" for the use and occupancy or the premises from the date of judgment and continuing for each day thereafter until possession is obtained.

a. Timeliness

G.L. c. 239, §6 does not have a specific provision whereby an indigent defendant can move to waive the appeal bond; however, the Court rules that the bond waiver provisions set forth in G.L. c. 239, §5 also apply to Section 6 bonds. See Home Sav. Bank of Am., FSB v. Camillo, 45 Mass. App. Ct. 910 (1998). Pursuant to G.L. c. 239, §§5(a) and 5(e), a motion to waive bond "shall, together with a notice of appeal and any supporting affidavits" be filed within 10 days after the entry of judgment. G.L. c. 239, §5(e) (emphasis added).

Here, while Defendants' notice of appeal and motion to waive appeal bond were filed within 10 days, Defendants filed their supporting affidavits of indigency 56 days later. The Court finds no reasonable excuse for Defendants' failure to timely file their supporting affidavits, particularly in light of the other multiple, voluminous filings made by Defendants during the same 56 day period; however, the Court recognizes that the 10-day period prescribed by Section 5 for filing supporting affidavits is not a jurisdictional prerequisite to consideration of such affidavits. U.S. Bank Tr., N.A. v. Johnson, 96 Mass. App. Ct. 291 , 296 (2019). [Note 3] Accordingly, the Court considered the affidavits of indigency filed by Defendants on the day of the hearing. The Defendants did not attend the hearing. After denying such affidavits as to the waiver of "normal fees and costs" [Note 4] the Court deferred ruling on Defendants' request for waiver of the appeal bond as "extra fees and costs" until such time as the Court ruled on the parties' respective motions to waive or set the appeal bond.

b. Indigency and Nonfrivolous Defense

There is a paucity of appellate decisions offering guidance to trial court judges as to the setting or waiving of an appeal bond in summary process cases, particularly in the context of post-foreclosures. Moreover, the patchwork of single justice decisions on issues related to the appeal bond are inconsistent. It is clear, however, that under the provisions of G.L. c. 239, §§5-6, the Court shall waive the appeal bond only if it is satisfied that the defendant is indigent and that s/he has a defense or issue to present on appeal that is not frivolous. Adjartey v. Cent. Div. of Hous. Court Dep't, 481 Mass. 830 , 858 (2019); U.S. Bank Tr., N.A. v. Johnson, 96 Mass. App. Ct. 291 , 294 (2019); Tamber v. Desrochers, 45 Mass. App. Ct. 234 (1998).

i. Indigency

In a case involving multiple defendants, the Court must separately analyze each defendant's indigency. U.S. Bank Tr., N.A. v. Johnson, 96 Mass.App.Ct. at 292. "That [one defendant] may be excused by her indigency from the bond requirement does not resolve the question whether [a codefendant] should be excused from the bond requirement as well (if she is not indigent)." Johnson at 298.

After reviewing the affidavits of indigency submitted by each of the Defendants, the Court finds that on the face of their affidavits, codefendants Michele Faith, Jacqueline Faith and Michael Faith are indigent within the meaning of G.L. c. 261, §§27A-27G. The Court finds that codefendant Peter Faith is not indigent based on the face of his affidavit of indigency and its supplement. [Note 5] The Court finds that to the extent additional inquiry may have been required at the hearing to determine whether Peter Faith "is unable to pay the fees and costs of the proceeding in which he is involved or is unable to do so without depriving himself or his dependents of the necessities of life, including food, shelter and clothing", he waived such inquiry by failing to attend. [Note 6] Accordingly, the Court finds codefendant Peter Faith is not indigent and cannot be excused from the requirement of posting a bond.

ii. Nonfrivolous Defense

The Defendants articulate as grounds for their appeal that despite declarations by defendants Michele Faith and Michael Faith under oath in their 2012 Chapter 7 bankruptcy that they intended to surrender the Property, rather than reaffirm their mortgage debt or redeem the Property, and despite that their personal liability on the mortgage loan was subsequently discharged, they are not barred from challenging the validity of the foreclosure. Because the issue identified by Defendants is not settled law, the Court finds that Defendants have a non-frivolous issue to present on appeal. See U.S. Bank Tr., N.A. v. Johnson, 96 Mass. App. Ct. 291 , 297 (2019) ("The idea of frivolousness is something beyond simply lacking merit; it imports futility, not 'a prayer of a chance'", quoting Pires v. Com., 373 Mass. 829 , 838 (1977)).

II. RULING SETTING BOND AND CONDITIONS OF APPEAL

a. Conditions of Bond

As the Court does not find Peter Faith indigent, the Court shall not waive the appeal bond. The purpose of an appeal bond is to "provide security for a party who has obtained a judgment for possession of property during the pendency of an appeal, and the purpose of the waiver of the bond requirement is to preserve the rights of indigent defendants in such actions who wish to pursue a nonfrivolous defense on appeal, despite their inability to post the ordinarily required bond." Johnson at 298. That some of his codefendants are entitled to a waiver of the appeal bond based on their claims of indigency does not determine the appeal bond for all purposes of the appeal. Id. As the Appeals Court stated in Johnson, "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." Johnson at 292.

Accordingly, Defendants' Motion to Stay Execution of Use and Occupancy Pending Appeal and Request for Waiver of Bond is DENIED and Plaintiff's Cross-Motion to Set an Appeal Bond is ALLOWED. The Court sets the appeal bond at $26,978.64, the amount of the judgment, exclusive of costs and interest.

In accordance with the requirements of G.L. c. 239, §6, it is ORDERED that within six (6) days of the date of this Order, as a condition for the entry of this action in the Appeals Court, the nonindigent codefendant, Peter Faith, shall deposit with the Clerk of Court such bond in the amount of $26,978.64, with such surety or sureties approved by the Court, or secured by cash or its equivalent.

b. Conditions of Maintaining Appeal

Under G.L. c. 239, §§5 and 6, the Court must ordinarily establish the fair rental value of the premises, and as a condition of maintaining the appeal the Court must require that the defendants pay a "reasonable amount as rent" during the pendency of the appeal until possession is obtained by the plaintiff. Under the unusual circumstances of this case, however, the Court finds that Defendants voluntarily surrendered physical possession of the Property on December 18, 2019. [Note 7] Therefore, the Court finds that Defendants are responsible for use and occupancy only during the intervening period between the date of entry of judgment (November 22, 2019) and the date of Defendants' surrender of possession (December 18, 2019). The Court previously determined after an evidentiary hearing on Plaintiff's pre-judgment motion for use and occupancy that the fair rental value of the Property for use and occupancy is $2,200.00 per month. Accordingly, as a condition of the appeal bond the Defendants shall pay intervening use and occupancy of $1,952.91. [Note 8]

In accordance with the requirements of G.L. c. 239, §§5 and 6, it is ORDERED that as a condition of maintaining their appeal Defendants shall pay the Plaintiff $1,952.61 on or before 3:00 P.M Eastern Standard Time on February 21, 2020 for intervening use and occupancy of the Property. Such payment shall be in the form of a certified or bank check or money order payable to Plaintiff and mailed or delivered to Plaintiff's attorney, Christine M. Kingston, Esq., at One Post Office Square, 30th Floor, Boston, MA 02109.

If, during the pendency of this appeal, codefendant Peter Faith does not post such bond, or, having deposited such bond, the Defendants fail to make the required use and occupancy payment as set forth in this Order, then upon motion the Plaintiff may request that the appeal be dismissed and that execution issue forthwith.

SO ORDERED.