March 31, 2020

Housing Court, Southeast Division

Donna Salvidio, First Justice


This case has been extensively litigated by the parties. Accordingly, a brief history of the motions that are the subject of this ruling is warranted. On February 12, 2020, defendants Michele Faith and Michael Faith (the "Defendants") [Note 1] filed a second notice of appeal (the "2nd Notice of Appeal") together with a second Motion to Waive Appeal Bond and Other Costs (the "2nd Motion to Waive Bond") relative to this Court's post-judgment finding that Defendants had surrendered possession of the subject property to the plaintiff, U.S. Bank National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust (the "Plaintiff"). Previously, this Court granted summary judgment in favor of Plaintiff on its claim for possession and damages following a foreclosure. [Note 2] Defendants had earlier appealed from the underlying Judgment [Note 3] and filed a motion to waive the appeal bond (the "1st Motion to Waive Bond") in connection therewith. [Note 4] Defendants' appeal from the Judgment remains pending.

After the Judgment entered, but before the hearing on Defendants' 1st Motion to Waive Bond, Defendants sent Plaintiff a key to the property together with a letter stating they surrendered "custody" of the property to Plaintiff. [Note 5] In response, Plaintiff filed a Motion to Dismiss Defendants' Appeal as Moot, or in the Alternative for Clarification of its Rights (the "Motion for Clarification"), which motion requested, inter alia, clarification of Plaintiff's rights following Defendants' surrender of the key. On January 16, 2020, a hearing was held on Defendants' 1st Motion to Waive Bond as well as on Plaintiff's Motion for Clarification. The effect of Defendants' surrender was relevant to whether, as a condition of the appeal bond, Defendants should be required to pay ongoing use and occupancy for the property during the pendency of their appeal.

On February 4, 2020, the Court denied Defendants' 1st Motion to Waive Bond and set an appeal bond, which bond order established the terms of the bond and periodic payment(s) due thereunder. [Note 6] On the same date, the Court issued a written ruling on Plaintiff's Motion for Clarification, which ruling found Defendants had since surrendered physical possession of the property to Plaintiff. It is the Court's February 4, 2020 ruling on Plaintiff's Motion for Clarification (the "Ruling") that is the subject of the Defendants' 2nd Notice of Appeal.

In response to Defendants' filing of their 2nd Notice of Appeal, Plaintiff filed a motion to strike same (the "Motion to Strike") together with an opposition to Defendants' 2nd Motion to Waive Bond. It is the Plaintiff's Motion to Strike and the Defendants' 2nd Motion to Waive Bond that are the subject of this decision. Plaintiff contends that Defendants have no right of appeal concerning the Ruling because it is neither an interlocutory ruling nor a final judgment. Plaintiff argues that since the Ruling is not an appealable order, Defendants' 2nd Notice of Appeal therefrom is a legal nullity and must be stricken. It follows that without a proper notice of appeal, there is no need to set or waive an appeal bond.

Defendants filed a written opposition to the Motion to Strike. They argue that the Ruling oversteps the Appeals Court's jurisdiction to hear Defendants' appeal on the issue of physical and legal possession. Defendants contend the Ruling is a final, appealable order because it completely adjudicates the rights of the parties as to possession and effectively moots their appeal.

I. Ruling on Plaintiff's Motion to Strike

After a review of the papers submitted by both parties and based on the authorities cited by Plaintiff in its incorporated memorandum of law [Note 7], Plaintiff's Motion to Strike is ALLOWED and Defendants' 2nd Notice of Appeal is ordered stricken. Whether examined under the Uniform Summary Process Rules or under the Massachusetts Rules of Civil Procedure, the Ruling is not a final judgment. In a summary process case, there is no entitlement by rule or statute to any appeal other than from final judgment. See G.L. c. 239, §5; see also Uniform Summary Process Rule 12. The Ruling is also not an interlocutory order, as it was entered after judgment. Here, the Ruling merely clarified and confirmed what had already taken place by Defendants' own conduct after Judgment entered and following Defendants' appeal therefrom. The Ruling was necessary to the Appeal Bond Order, because the issue of whether the Defendants had surrendered possession of the property was critical to whether Defendants should have to pay ongoing use and occupancy during the pendency of their appeal. Having found that the Defendants had surrendered physical possession by their own acts following entry of Judgment, the Court did not require Defendants to pay use and occupancy as a condition of the appeal bond from the date they surrendered the key to Plaintiff.

II. Ruling on Defendants' 2nd Motion to Waive Bond

For the same reasons, it also follows that Defendants' 2nd Motion to Waive Bond is DENIED. A motion to waive appeal bond is necessarily predicated on there being a judgment and an appeal therefrom. See G.L. c. 239, §5(a) and (e). Since the Ruling is not an appealable order and the Court has stricken the 2nd Notice of Appeal, there is no need for an appeal bond, and, therefore, no basis for wavier of such bond.



[Note 1] There are four (4) co-defendants in the underlying action; only two (2) of whom joined in and filed the 2nd Notice of Appeal. Co-defendants Peter Faith and Jacqueline Faith did not appeal the ruling that is the subject of the present motion to strike.

[Note 2] 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 3] See Docket No. 173.

[Note 4] See Docket No. 174.

[Note 5] For the factual basis of the Court's Ruling, see orders dated February 4, 2020.

[Note 6] The Appeal Bond Order required that Defendants pay the judgment amount together with use and occupancy only to the date of their surrender of the key. Defendants sought review of the Appeal Bond Order from a single justice, who waived the bond and rescinded that portion of the order which required Defendants to make a single use and occupancy payment. See Docket No. 212.

[Note 7] See Docket Nos. 207 and 209 (duplicate).