WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014-10TT v. MATTHEW VANDERHOOP

This is a post-foreclosure summary process action in which summary judgment granting possession of the subject property located at 17 Old South Road, Aquinnah, Massachusetts (the "Property") was allowed in favor of plaintiff, Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its Individual Capacity, but solely as Trustee for BCAT 2014-10TT ("Plaintiff"). Summary judgment was also granted in favor of Plaintiff on the defendant's counterclaims. Judgment entered on February 11, 2020, and the appeal period expired on February 21, 2020, pursuant to G.L. c. 239, §5(a). No timely notice of appeal having been filed by the defendant, Matthew Vanderhoop ("Defendant"), an execution for possession and costs issued on February 24, 2020.

On March 4, 2020, Defendant filed a notice of appeal together with two (2) motions (collectively, the "Motions") as follows: 1) Motion for Leave to Accept [Late] Filing of Defendant's Notice of Appeal ("Motion to Accept"); and 2) Motion and Application to Stay Levy in the Execution of Judgment (the "Motion to Stay"). The Court scheduled the Motions for hearing on March 18, 2020; however, the hearing did not take place because of actions ordered by the Governor and the Supreme Judicial Court to protect the public health regarding the COVID-19 pandemic. The parties were notified by the Court that rulings on Defendant's Motions would instead be made on the papers. Those rulings follow.

I. Defendant's Motion for Leave to Accept [Late] Filing of Notice of Appeal

Defendant seeks leave for the Court to accept late filing of his notice of appeal. [Note 1] As grounds for his Motion to Accept, Defendant's counsel states that she did not receive notice of the judgment until March 4, 2020. [Note 2] Regardless of the reason for Defendant's failure to file a timely notice of appeal, this Court has no ability to enlarge the statutory appeal period established by G.L. c. 239, §5(a). "The statute is not unclear: the ten-day period for appeal applies in any action under G.L. c. 239 . . .. The period is fixed by statute and is jurisdictional." Jones v. Manns, 33 Mass. App. Ct. 485 , 488–89 (1992), citing Liberty Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914 (1978). See also Adjartey v. Cent. Div. of Hous. Court Dep't, 481 Mass. 830 , 857 (2019). "Our courts have 'required strict adherence to the short period for claiming an appeal prescribed by G. L. c. 239, § 5,' explaining that the 'process provided for in [G. L. c. 239] is designed, after all, to be summary.'" Adjartey, 481 Mass. at 857, quoting Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 , 504-505 (1997).

The appeal period is jurisdictional and not subject to enlargement. For the reasons stated above, Defendant's Motion for Leave to Accept Filing of his Notice of Appeal is DENIED and Defendant's untimely notice of appeal shall be stricken.

II. Defendant's Motion and Application to Stay Levy in the Execution of Judgment

By way of his Motion to Stay, Defendant asks the Court "to stay levy of the execution of the judgment pending his appeal." To obtain a stay pending appeal, Defendant must demonstrate: 1) a likelihood of success on the merits; 2) the likelihood of irreparable harm if the court denies the stay; 3) the absence of substantial harm to other parties if the stay issues; and 4) the absence of harm to the public interest from granting the stay. C.E. v. J.E., 472 Mass. 1016 , 1017 (2015).

Here, Defendant cannot establish a likelihood of success on the merits of his appeal from the judgment as the notice of appeal filed on March 4, 2020 was untimely. For that reason, Defendant's appeal cannot form the basis for the stay and his motion for a stay is, therefore, DENIED.

SO ORDERED.