January 2, 2020

Housing Court, Southeast Division



This is a summary process action in which the Plaintiff is seeking to recover possession of 96A Old South Road, Nantucket, Massachusetts ("Premises") from the Defendant as a holdover tenant at sufferance after foreclosure. Summary judgment on the underlying summary process action was entered on November 8, 2019 (Chaplin, FJ.). On November 18, 2019 the Defendant filed a Notice of Appeal. On November 21, 2019 Plaintiff filed a motion to Set the Appeal Bond to which the Defendant duly filed opposition. The matter was then set for hearing on December 4, 2019.

On the aforementioned date Defendant appeared and argued in support of her motion to waive the appeal bond. She provided no evidence however concerning her financial condition or her ability to post a bond or to make current ongoing use and occupancy payments during the pendency of the appeal. With respect to the underlying aspects of her appeal, after reviewing the pleadings and listening to oral argument the Court is not convinced as to the substantive basis of her appeal.

It is well established in the Commonwealth that in order to secure a waiver of an appellate bond a party must meet a two pronged test showing that (s)he is: 1. Indigent and 2. Has a non-frivolous defense to advance on appeal. See Tamber v Desrochers, 696 N.E. 2d 969, 971 (1998). The underlying intent of an appeal bond is to protect both sides in an ongoing dispute from the insolvency or inability to pay a final judgment.

In the present case, the Defendant through her pleadings and oral argument has failed to convince the Court of either her indigency or the meritorious aspect of her appeal.

The Court in granting summary judgment on behalf of the Plaintiff found that the Defendant failed to show the existence of a genuine issue of material fact. It would be reasonably expected that if there were underlying substantive or procedural issues concerning either the foreclosure or the summary process that the Defendant would have presented same to the Court at or before that time. The Defendant failed to convince the Court of that argument.

Given the above, the Court finds that the Defendant has failed to meet her burden in seeking to be relieved of either the appeal bond or monthly use and occupancy payments going forward.

The Court proceeded to take evidence from the Plaintiff concerning the setting of an Appeal Bond under the auspices of M.G.L. c. 239 s.6. The Plaintiff presented evidence that the foreclosure was completed and the Plaintiff took legal title to the premises on July 18, 2016. The Defendant has continued to occupy the premises as a tenant at sufferance since that date. The Plaintiff presented evidence concerning the monthly rental value of the premises using information gathered from Ann Quinlin a licensed real estate broker and certified Residential Specialist with over 22 years of experience. Ms. Quinlin, who is familiar with the Nantucket market, testified at a hearing held on February 13, 2019. According to her testimony Ms. Quinlin stated that the main structure on the property had a fair rental value of $4,500.00 to $5,000.00 per month and the smaller structure had a rental value of $1,200.00 to $1,500.00 per month. The Plaintiff seeks a midpoint value of $5,750.00 per month for use and occupancy.

The Defendant has not offered any admissible evidence to contradict or rebut the testimony of Ms. Quinlin as to the monthly value of the premises. There was no testimony however, concerning the interior condition of the premises and as such the Court concludes that based upon the 20 plus year age of the property a certain dimunition on value and condition has occurred and must be applied towards the overall value of the premises.

As such the Court finds and sets the prospective monthly use and occupancy of the premises to be $5,500.00. The Court also finds that the Defendant has remained in possession of the premises since July 18, 2016 to present date totaling 41 months.

Based upon the above it is ORDERED that:

1. The Defendants Motion to Waive Appeal Bond and Costs is DENIED.

2. The appeal bond is set in the amount of $228,031.48 (41 months possession x $5500.00 use and occupancy plus 14 day period between July 18, 2016 and July 31, 2016 [Note 1]) payable ten (10) days from the date of receipt of this order via certified funds to the Plaintiff's Counsel said sums to be held in escrow and duly accounted for at the final disposition of this matter and;

3. Defendant shall also pay to plaintiff Counsel the sum of $5,500.00 per month commencing February 1, 2020 and shall pay the Plaintiff $5,500 on January 15, 2020 which represents use and occupancy for the month of January and continuing to pay $5,500 per month on the first of each month thereafter until the final disposition of this matter said sums to be held in escrow and duly accounted for at the final disposition of this matter and;

4. Failure to deposit said sums as obligated above shall result in the dismissal of Defendant's appeal upon motion of the Plaintiff.


[Note 1] The per diem rental amount is calculated as follows: $5,500 x 12 = $66,000 / 365 = $180.82