U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE CABANA SERIES III TRUST v. MARSHALL LOPES-POGUE, BENJAMIN LOPES POGUE AND ALL OTHER OCCUPANTS

This is a summary process action in which the Plaintiff is seeking to recover possession of the premises located 99 Pine View Drive, Cotuit, Massachusetts from the Defendants as a holdover tenant at sufferance after foreclosure. Summary judgment on the underlying summary process action was entered on February 12, 2020 (Salvidio, FJ.) On February 24, 2020 the Defendants Motion for Reconsideration was denied. On February 24, 2020 the Defendants filed a notice of Appeal. On March 4, 2020 the Plaintiff and Defendant appeared to argue on the Plaintiff's Motion for Appeal Bond.

On the aforementioned date Defendants appeared and argued in support of their motion to waive the appeal bond. The Defendants argued that they could not afford to pay the costs associated with a bond based upon their financial condition or to make current ongoing use and occupancy payments during the pendency of their appeal. I find this information to be credible and thus find the Defendants indigent.

It is well established in the Commonwealth however, 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 being 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 has failed to convince the Court of the meritorious aspect of her appeal.

The Court in granting summary judgment on behalf of the Plaintiff found that the Defendants failed to show the existence of a genuine issue of material fact requiring a trial for a finder of fact whether it be judge or jury. 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 Defendants failed to convince the Court of that argument.

Given the above, the Court finds that the Defendants have failed to meet the second prong of the Tamber test in showing a genuine issue of material fact.

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 October 4, 2019. The Defendants have 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 Cliff A. Ponte a licensed real estate broker. Mr. Ponte, who is familiar with the local market, testified at a hearing that the property had a fair rental value of $2250.00 per month. He based this value on an examination of similarly situated properties with 4 bedroom 3 bathroom homes in Cotuit and assessor cards. Mr. Ponte was denied access to the interior of the property.

The Defendants have not offered any admissible evidence to contradict or rebut the testimony of Mr. Ponte as to the monthly value of the premises. There was no testimony concerning the interior condition of the premises and as such the Court concludes that based upon the 40 plus year age of the property a certain diminution 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 $2,000.00. The Court also finds that the Defendants have remained in possession of the premises since October 4, 2019 to present date totaling 174 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 $11,440.50, plus costs of $197.50, totaling $11,638.00 nunc pro tunc to February 12, 2020.

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 $11,638.00 (174 days possession x $65.75 per diem use and occupancy) 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. Defendants shall also pay to plaintiff Counsel the sum of $394.50 for the remaining month of March on or before April 15, 2020 and the sum of $2,000.00 per month commencing April 1, 2020 for the month of April 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 Defendant's appeal upon motion of the Plaintiff.