U.S. BANK Trust, N.A. as Trustee for LSF9 Master Participation Trust v. Michael Healy and Thomas Healy

This is a summary process action in which the Plaintiff is seeking to recover possession of 44 Bernard Street, South Yarmouth, Massachusetts ("Premises") from the Defendants as holdover tenants at sufferance after foreclosure. Summary judgment on the underlying summary process action was entered on December 26, 2019 (Salvidio, FJ.) On January 6, 2020 the Defendants filed a Notice of Appeal. On January 15, 2020 Plaintiff filed a motion for Use and Occupancy and to Set the Appeal Bond to which the Defendants duly filed opposition. The matter was then set for hearing on January 15, 2020 with all parties present. On the aforementioned date Defendants appeared and argued in support of their motion to waive the appeal bond. They provided evidence concerning their financial condition related to their ability to post a bond. They testified that Michael Healy is currently unemployed and Thomas Healy is working part time employment at a local restaurant. I find their testimony to be credible on the issue of indigency and their financial ability to pay the cost of an appeal bond and ongoing use and occupancy payments during the pendency of the appeal. With respect to the underlying substantive aspects of their appeal, after reviewing the pleadings and listening to oral argument the Court is not convinced as to the merits and basis of their 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 Defendants through their pleadings and oral argument have failed to articulate a sufficient basis to convince the Court of the meritorious aspects of their appeal.

The Court in granting judgment on behalf of the Plaintiff after a summary process trial found that the Defendants (who had filed no written answer) had failed to adequately raise any defenses at the trial sufficient to defeat the Plaintiff's claim for possession.

With respect to the current matter before the Court, the Defendants in their opposition to the motion to set the appeal bond have failed to articulate any underlying substantive or procedural deficiency or issue concerning the foreclosure or the subsequent summary process action. As such, the Defendants have failed to convince the Court that their appeal has a meritorious basis.

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 that the Plaintiff took legal title to the premises on September 9, 2019. The Defendants have continued to occupy the premises as a tenants at sufferance since that date. The Plaintiff then presented evidence concerning the monthly mortgage payments due on the premises using information gathered from Plaintiff's mortgage records concerning the premises. Those records indicate that the monthly mortgage payment due was $917.80. Plaintiff offered to accept the sum of $4589.00 as the appeal bond amount (the amount of use and occupancy since September 2019) $917.80 X 5 months. Finally, the Plaintiff would accept the sum of $917.80 as monthly use and occupancy during the pendency of Defendants appeal. The Court credits the testimony of Plaintiff on the value related to use and occupancy of the premises.

The Defendants, after prompting from the Court did not object to the figure tendered by Plaintiff. The Defendants also did not offer any evidence to contradict or rebut the Plaintiffs evidence as to the use and occupancy value of the premises.

Based upon the above and the Courts familiarity with rental values on Cape Cod, the Court finds the amount sought by the Plaintiff for use and occupancy in this matter to be quite reasonable and sets the prospective monthly use and occupancy of the premises to be $917.80. The Court also finds that the Defendants have remained in possession of the premises since September 9, 2019 to present date totaling 151 days.

For the above-stated reasons, the Court orders: Judgment enter for the plaintiff for damages for unpaid use and occupancy in the amount of $4,555.67, plus costs of $211.00, totaling $4,766.67 nunc pro tunc to December 26, 2019.

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 $4,766.67 (151 days possession x $30.17 per diem use and occupancy, plus costs) 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 $693.91 for the remaining month of February on or before February 21, 2020 and the sum of $917.80 per month commencing March 1, 2020 and continuing 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 Defendants' appeal upon motion of the Plaintiff.