RAYMOND FRECHETTE & another [Note 1] vs. ELIZABETH D'ANDREA & others. [Note 2]

KAFKER, J. Following their purchase of a foreclosed property in Webster (property), plaintiffs Edward A. Cianci and Raymond Frechette brought a summary process action in the Housing Court against the occupants of the property (defendants). The Housing Court entered judgment in favor of the plaintiffs on their claim for possession, and defendant Elizabeth D'Andrea appealed. The plaintiffs moved to set an appeal bond, while D'Andrea moved to waive the appeal bond and filed an affidavit of indigency. D'Andrea also filed a "Motion to Waive, Substitute, Order Government Payment for Appeal Bond and Other Costs," arguing that because she was indigent within the meaning of G. L. c. 261, § 27A, the appeal bond and any use and occupancy payments that would normally be required as a condition for maintaining an appeal from a summary process judgment should be waived, substituted, or paid by the Commonwealth under G. L. c. 261, §§ 27A to 27G (indigent court costs law or indigency statute).

A Housing Court judge found D'Andrea to be indigent and waived her appeal bond pursuant to G. L. c. 239, § 5 (e), but nonetheless held that D'Andrea would be required to make monthly use and occupancy payments of $1,275 to the plaintiffs as a condition for maintaining her appeal. D'Andrea appealed from the use and occupancy order to a single justice of the Appeals Court, who reported the following questions to a panel of the Appeals Court:

(1) "May or must a trial court judge in a case involving an indigent party, for whom the appeal bond has been waived, order ongoing use and occupancy payments pending appeal otherwise permitted or required by G. L. c. 239, § [5 (e)], to be waived, substituted, or paid by the Commonwealth as an 'extra fee or cost' under the indigent court costs law, G. L. c. 261, §§ 27A-[27]G?"

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(2) "May a trial court judge order a defendant in a summary process action, for whom the appeal bond has been waived, to pay ongoing use and occupancy pending appeal pursuant to G. L. c. 239, § [5 (e),] in an amount that exceeds the defendant's ability to pay without violating the party's due process, equal protection, or [a]rt. 11 [of the Declaration of Rights of the Massachusetts Constitution] rights?"

We transferred the case on our own motion.

We conclude that use and occupancy payments required of an indigent party under G. L. c. 239, § 5 (e), may not be waived, substituted, or paid by the Commonwealth under the indigency statute because use and occupancy payments are not an "extra fee or cost" as defined in the indigency statute. We further conclude that the order setting use and occupancy payments in the instant case did not violate D'Andrea's constitutional rights, even if the order requires her to make payments that potentially exceed her ability to pay because the summary process statute reasonably imposes a fair balancing of interests between the owner of the property and the party in possession, and the Housing Court performed the fair balancing required. [Note 3]

1. Background. D'Andrea's mother, Dorothy Menzone, purchased the property in August of 2008. In 2012, Menzone refinanced an existing mortgage on the property by executing a note in favor of Intercontinental Capital Group, Inc. The note was secured by a new mortgage that was assigned to JPMorgan Chase Bank, N.A. (Chase). Pursuant to the mortgage, Menzone was required to make monthly payments of approximately $1,400. Menzone made these payments regularly until she died in March 2013. No payments were made on the mortgage after Menzone's death. D'Andrea averred that she has lived at the property since 2008. [Note 4] In 2019, Chase initiated foreclosure proceedings on the property and subsequently purchased the property at foreclosure

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auction. [Note 5] Chase sold the property to Cianci in December 2021 for $175,566.85 and conveyed the property to Cianci by quitclaim deed. Cianci then conveyed the property to himself and Frechette.

In February 2022, the plaintiffs served the defendants with a notice to quit. The defendants did not vacate the property, and the plaintiffs initiated a summary process action to evict the defendants. In June 2022, the court ordered the defendants to make interim use and occupancy payments of $1,500 beginning in July 2022. It is undisputed that the defendants made no interim use and occupancy payments. The plaintiffs were granted a judgment of possession of the property in March 2023, and D'Andrea appealed. [Note 6]

The plaintiffs moved to set an appeal bond pursuant to G. L. c. 239, §§ 5 and 6. D'Andrea, in turn, filed an affidavit of indigency and moved to waive, substitute, or have the Commonwealth pay the appeal bond as well as any use and occupancy. The Housing Court judge found that D'Andrea was indigent within the meaning of the indigent court costs law and concluded that D'Andrea's potential arguments on appeal were "barely" not frivolous. Accordingly, the judge waived D'Andrea's obligation to post an appeal bond as a condition of maintaining her appeal. Nonetheless, the judge concluded in a carefully reasoned decision that use and occupancy payments were expressly required to be paid by G. L. c. 239, §§ 5 (e) and 6, and were not extra fees and costs under the indigency statute. The judge therefore denied D'Andrea's motion to waive, substitute, or have the Commonwealth subsidize the payments pursuant to G. L. c. 261, § 27C.

The judge ordered D'Andrea to pay $1,275 per month as use and occupancy payments to the plaintiffs as a condition of her appeal. He summarized a number of factors that he considered to be relevant in setting the use and occupancy amount:

"(1) the plaintiff paid $175,566.00 to purchase the property, (2) the defendants have not made [a] single payment to the plaintiffs for their continued use and occupancy of the property

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for eleven months, [Note 7] (3) the condition of the property, (4) the ongoing costs the plaintiff is obligated to pay to cover taxes, assessments and property maintenance, (5) the defendants' income is limited and (6) the appellate issues that may be presented."

The judge also summarized the testimony from a licensed real estate agent who opined that the fair rental value of the property was $1,700 per month. D'Andrea was asked for her opinion regarding the fair rental value of the property, but she did not provide any opinion. The judge noted that the ordered use and occupancy payments were twenty-five percent lower than the fair rental value estimate provided by the real estate agent.

D'Andrea appealed from the judge's order setting use and occupancy payments to a single justice of the Appeals Court. The single justice, stating that no appellate court had decided the issue whether use and occupancy payments may be waived pursuant to the indigent court costs law, reported the two questions noted supra to a panel of the Appeals Court, and we transferred the case on our own motion.

2. Discussion. a. Standing. As a preliminary matter, D'Andrea challenges the plaintiffs' standing to bring a summary process action against her. The summary process statute, G. L. c. 239, provides in relevant part that "if a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, . . . the person entitled to the land or tenements may recover possession thereof under this chapter." G. L. c. 239, § 1. D'Andrea reads this provision narrowly to mean that summary process is only open to the party that bought the foreclosure deed, and thus argues that any subsequent purchasers of the deed, such as the plaintiffs in this case, are not entitled to use summary process to evict a holdover tenant. D'Andrea contends that Chase is the only party that would have been entitled to bring a summary process action under § 1 because Chase acquired the property at the foreclosure sale before selling the property to the plaintiffs. We disagree.

"The purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011) (Bailey),

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quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966). Allowing subsequent purchasers to bring postforeclosure summary process actions aligns with this purpose and aligns with the text of G. L. c. 239, § 1, which allows "the person entitled to the land" to recover possession "if a mortgage of land has been foreclosed by a sale under a power therein." The property at issue here was subject to a foreclosure sale, and the plaintiffs purchased the property from Chase after Chase acquired the property at the foreclosure sale. It would defy both the plain meaning of the statute and common sense to conclude that the plaintiffs are not "person[s] entitled to the land" in such circumstances. As the owners of the property in question, the plaintiffs have standing to bring summary process against the defendants. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 546 (2018) (Hatcher) ("A plaintiff may bring a summary process action to evict a tenant and recover possession of his or her property . . . if the plaintiff is the owner . . . of the property"); Diplomat Prop. Manager, LLC v. Lozano, 102 Mass. App. Ct. 57, 60-63 (2022) (examining identical arguments and holding that subsequent purchaser had standing to bring summary process action against postforeclosure occupants). Cf. Bailey, supra at 334, quoting Rule 1 of the Uniform Summary Process Rules (1980) ("The pursuit of 'speedy and inexpensive' summary process actions is compromised if the Housing Court must stay summary process proceedings while litigation on the validity of the foreclosure proceedings continues in another court"). [Note 8]

b. Indigency statute claims. i. Statutory framework. We next turn to the first question reported by the single justice of the Appeals Court and consider the interrelationship of the indigent court costs law, G. L. c. 261, §§ 27A-27G, and the summary

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process statute, G. L. c. 239, particularly their application in postforeclosure summary process cases. We begin by outlining the relevant statutory provisions and this court's decision in Bank of N.Y. Mellon v. King, 485 Mass. 37, 45-50 (2020) (King), which guides our analysis here.

A. Indigent court costs law. The indigent court costs law, G. L. c. 261, §§ 27A-27G, provides a mechanism for indigent parties to obtain waiver, reduction, or payment by the Commonwealth of court fees and other costs incurred during litigation. See Commonwealth v. Hastings, 494 Mass. 58, 61-62 (2024). Under the statute, an indigent party is, inter alia, "a person who is unable to pay the fees and costs of the proceeding in which he is involved or is unable to do so without depriving himself or his dependents of the necessities of life, including food, shelter, and clothing." G. L. c. 261, § 27A. [Note 9] See Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 840-841 (2019) (discussing process for determining indigency in more detail). Once a court has determined a party is indigent,

"it shall not deny any request with respect to normal fees and costs, and it shall not deny any request with respect to extra fees and costs if it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay."

G. L. c. 261, § 27C (4). Appeal bonds and appeal bond premiums are defined in the statute as "extra fees and costs," but the statute makes no mention of use and occupancy payments, or of rent payments for indigent litigants more generally. See G. L. c. 261, § 27A.

B. Summary process appeals. As we most recently discussed in King, 485 Mass. at 43, G. L. c. 239, §§ 5 and 6, provide the procedures for appeals from judgments in postforeclosure summary process actions. When a defendant appeals from a judgment for the plaintiff in a summary process action, he or she is ordinarily required to post an appeal bond "in a reasonable amount to be fixed by the court," which must be "conditioned to pay to the plaintiff, if final judgment is in plaintiff's favor, all rent

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accrued at the date of the bond [and] all intervening rent." G. L. c. 239, § 5 (c). See Adjartey, 481 Mass. at 857-858 (discussing appeals from summary process judgments). In the postforeclosure appeal context,

"the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff."

G. L. c. 239, § 6. The purpose of these bond provisions is "to deter frivolous appeals and to provide compensation for plaintiffs for the loss of the property during the appeal." King, supra at 42-43.

The summary process statute sets out specific procedures for appeals by indigent parties. A defendant who is indigent within the meaning of G. L. c. 261, § 27A, may move to waive the appeal bond otherwise required to pursue an appeal. G. L. c. 239, § 5 (e). In such situations, the court must determine whether the defendant is indigent and whether the defendant has any grounds for appeal that are not frivolous. Id. If the court is satisfied that the defendant meets both conditions, it "shall waive the requirement of the bond or security." Nonetheless, and most important for our decision in the instant case,

"[t]he court shall require any person for whom the bond . . . has been waived to pay in installments as the same becomes due, pending appeal, all or any portion of any rent which shall become due after the date of the waiver. A court shall not require the person to make any other payments or deposits."

Id. [Note 10] We further explained in King, 485 Mass. at 46, that the Legislature intended "'rent' in this context more broadly to encompass use and occupancy payments, which would include payments owed by defendants in possession to purchasers of foreclosed properties like the bank in [that] case." Accordingly,

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§ 5 (e) contemplates that indigent defendants seeking to appeal from summary process actions should have their appeal bond waived, but "shall [be] require[d]" to pay use and occupancy payments to a plaintiff who has won a judgment of possession. Id.

When we considered the application of §§ 5 and 6 to an indigent defendant in King, 485 Mass. at 38, we applied these provisions and concluded that "the bond for a defendant appealing from an adverse judgment in a postforeclosure summary process action may be waived if he or she is indigent and pursuing nonfrivolous arguments on appeal." Id. We observed, however, that "the postforeclosure defendant whose bond is waived may be ordered to pay use and occupancy to the plaintiff, based on 'all or any portion' of the reasonable monthly rental value of the property." Id. at 38-39. We further explained that "under the statute, rent balances the interests of plaintiffs and defendants in summary process cases when defendants remain in possession. Such rent is paid in two different scenarios: either in lieu of a waived bond, or as part of a bond that is not waived." Id. at 46.

ii. Application. Because the Legislature specifically and unambiguously required the payment of use and occupancy as rent, even from indigent defendants, under G. L. c. 239, §§ 5 and 6, we cannot conclude that the Legislature intended for use and occupancy payments to be waived as "extra fees and costs" under the more general provision of the indigent court costs law. See Commonwealth v. K.W., 490 Mass. 619, 624 (2022), quoting Dorrian v. LVNV Funding, LLC, 479 Mass. 265, 271 (2018) ("plain and unambiguous" words in statute are considered "conclusive as to legislative intent"). "[W]here statutes deal with the same subject, the more specific statute controls the more general one," Wing v. Commissioner of Probation, 473 Mass. 368, 373-374 (2015), and here we are persuaded that § 5 (e) was intended to provide specific requirements for indigent litigants in summary process appeals that diverge from the general rules for indigency provided in the indigent court costs law. As we explained in King, 485 Mass. at 45-46, such payments have their own specific authorization and requirements, separate and apart from court costs and the appeal bonds in which they may be included. Although the bonds may be waived for indigent defendants, the use and occupancy payments made "as rent" may not. G. L. c. 239, §§ 5 (e), 6. These specific requirements are necessary to protect the interests of plaintiffs who have prevailed in a

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summary process action but have not been able to occupy the property while an appeal remains pending. The required payments also reflect the fact that defendants may not otherwise be paying a mortgage or rent but nonetheless continue to reside on the property during the pendency of the appeal. In the instant case, no mortgage payments have been made for eleven years, and the defendants failed to make any of the interim use and occupancy payments ordered during the pendency of the summary process action below. Defendants are not entitled to occupy a property for over a decade mortgage and rent free. King, supra at 52 ("a defendant who remains in possession after foreclosure is not entitled to remain on the property for nothing, even if he or she is indigent and even if he or she has a nonfrivolous defense"). See Kargman v. Dustin, 5 Mass. App. Ct. 101, 110 (1977) (requirement that tenants pay use and occupancy "is by no means unfair to the tenant since he is being required to do no more than fulfill a contractual obligation which he voluntarily assumed at the outset of his tenancy . . . . To reach a different conclusion would be to accord tenants squatters' rights pending the resolution of their appeals").

In addition to ignoring the specific and unambiguous requirements of G. L. c. 239, §§ 5 and 6, D'Andrea's attempt to shoehorn use and occupancy payments into the general provisions of the indigency statute is strained at best. Use and occupancy payments are not included in the definition of "extra fees and costs." G. L. c. 261, § 27A. Furthermore, according to the statute a court should only grant a request for extra fees and costs if "it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially available to pay." G. L. c. 261, § 27C (4). Use and occupancy payments required under §§ 5 or 6 do not fall within the ordinary meaning of "document, service or object."

This leaves the general reference to appeal bonds in the definition of extra fees and costs in the indigent court costs law. The argument, as best we can discern it, goes as follows: because appeal bonds are included in the definition of extra fees and costs, and use and occupancy payments can be included in appeal bonds in summary process cases, use and occupancy payments can be waived in such cases as extra fees and costs. The problem with this argument is that the Legislature developed specific provisions for the waiver of appeal bonds in summary process cases

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and required that use and occupancy payments be made even if the bond is waived for indigent defendants in such cases. The Legislature also distinguished use and occupancy payments from court costs. Court costs are waived with appeal bonds, but use and occupancy payments are not. G. L. c. 239, § 5 (e). As we explained in King, 485 Mass. at 46, "the rent a court may require a party to pay [as use and occupancy] under § 5 (e) is distinct from the bond required by § 5 (c) or 6." Even when the bond is waived for an indigent defendant in a summary process appeal, use and occupancy payments are separately required. G. L. c. 239, § 5 (e). Thus, although appeal bonds in summary process cases might fall within the general definition of extra fees and costs under the indigent court costs law, use and occupancy payments shall still be required of indigent defendants in lieu of such bonds. See King, supra.

Finally, in most, if not all, cases, the use and occupancy payments ordered as rent are significantly more expensive than court costs and fees, which generally amount to several hundred dollars at most. See, e.g., G. L. c. 262, § 4 (listing fees for appeals and other appellate court actions); Executive Office of the Trial Court, Uniform Schedule of Fees (effective Nov. 1, 2016), https://www.mass.gov/info-details/uniform-schedule-of-fees [https://perma.cc/U62Q-J5QD] (listing fees for other court services). By contrast, the interim use and occupancy payments the defendants in this case were ordered to pay during the pendency of this summary process action totaled $16,500 by the time D'Andrea appealed, and thus was several orders of magnitude higher than, for example, a $300 fee to file an appeal. See G. L. c. 262, § 4. The significant financial difference between rent and court fees explains in part why court fees and costs do not include rent. If the Legislature intended the Commonwealth and its taxpayers to assume the much greater expense of unpaid rent by indigent defendants, in addition to court costs and fees, it would have said so expressly. See Commonwealth v. Morgan, 476 Mass. 768, 778 (2017) (statutes should be read "in a commonsense way to effectuate legislative intent and avoid absurd results"). We are confident that Legislature would not "hide elephants in mouseholes." See Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001).

For all these reasons, in answer to the first reported question, we conclude that use and occupancy payments required of indigent defendants during summary process appeals are not "extra

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fees and costs" within the meaning of the indigent court costs law, and therefore an indigent defendant cannot obtain waiver, substitution, or government payment of use and occupancy payments under the indigency statute.

c. Constitutional questions. We next consider the second reported question, whether a trial court judge may order a defendant in a summary process action, for whom the appeal bond has been waived, to pay ongoing use and occupancy pending appeal pursuant to G. L. c. 239, § 5 (e), in an amount that exceeds the defendant's ability to pay without violating the defendant's due process, equal protection, or art. 11 rights. We identify a number of problems with the question as reported. First, based on the record before us, it is not clear whether the ordered payments exceeded the indigent defendant's ability to pay. [Note 11] Rather, it is only clear that the order had the potential to exceed D'Andrea's ability to pay. Second, because a judge ordering use and occupancy payments has competing constitutional rights to consider, and thus a more complex problem to resolve, the reported question should reflect these considerations as well. Finally, the constitutional question should be addressed as applied to the facts in the instant case, and not as an abstract question of law. See Commonwealth v. Padilla, 493 Mass. 1023, 1026 (2024), quoting Commonwealth v. Two Juveniles, 397 Mass. 261, 264-265 (1986) ("in the context of reported questions, we are reluctant to answer a question that calls for a 'determination of the constitutionality of [a statute] in the abstract'"). See also Commonwealth v. Eldred, 480 Mass. 90, 93-94 (2018) (reformulating reported question to make it answerable on existing record).

We therefore reformulate the reported question as follows: may the motion judge order use and occupancy payments that exceed the defendant's financial ability to pay, when the motion judge considers the parties' competing interests and fairly weighs the relevant factors that have been established in the case law for setting the amount of use and occupancy payments? We conclude that the judge may do so. See King, 485 Mass. at 51 (setting out

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factors to be considered in setting use and occupancy payments). See also Paro v. Longwood Hosp., 373 Mass. 645, 653 (1977) (requirement that medical malpractice plaintiffs post bond to pursue lawsuit not unconstitutional "because of the wide discretion that the statute gives to the judge to set the bond amount").

We emphasize that use and occupancy payments are required because both plaintiffs and defendants have an interest in the property in question. King, 485 Mass. at 46. Both have constitutional rights at stake. Id. at 48. Defendants also have contractual and other legal obligations to pay mortgages and rent and their inability to make such payments may be the root cause of the summary process decision from which they are appealing. For all these reasons, the statutory requirement ordering use and occupancy payments has a rational basis, even if it may result in a payment beyond the financial means of the defendant, and thus there is no due process, equal protection, or art. 11 violation in the instant case, where the motion judge correctly applied and fairly weighed the relevant factors set out in the case law. See id. at 51; Davis v. Comerford, 483 Mass. 164, 179-183 (2019).

i. Substantive due process. Individuals are guaranteed due process of law both under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights. See Kligler v. Attorney Gen., 491 Mass. 38, 55 (2022). Due process has both procedural and substantive aspects, although D'Andrea only raises a substantive due process claim. [Note 12] Id. Substantive due process "protects individual

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liberty against 'certain government actions regardless of the fairness of the procedures used to implement them.'" Id., quoting Daniels v. Williams, 474 U.S. 327, 331 (1986). When a statute burdens a fundamental right, meaning a right explicitly or implicitly protected by the Constitution, the statute is subject to strict scrutiny review, which requires the action be "narrowly tailored to further a compelling and legitimate government interest." Kligler, supra, quoting LeSage, petitioner, 488 Mass. 175, 181 (2021). Where the right burdened is not fundamental, we employ "rational basis" review. Gillespie v. Northampton, 460 Mass. 148, 153 (2011). See Goodridge v. Department of Pub. Health, 440 Mass. 309, 330 (2003). "Under the rational basis standard, a statute is constitutionally sound if it is reasonably related to the furtherance of a valid State interest." Gillespie, supra. "Furthermore, 'it is well settled that a statute is presumed to be constitutional and every rational presumption in favor of the statute's validity is made.'" Greene v. Philip Morris USA Inc., 491 Mass. 866, 880-881 (2023), quoting Gillespie, supra at 152.

Our case law has consistently established that we apply rational basis review in this context. See Gillespie, 460 Mass. at 154 ("no court has concluded that . . . the right to bring a judicial challenge, once provided by statute, is of such a fundamental character that it may never be fettered by the payment of a filing fee"); Longval v. Superior Court Dep't of the Trial Court, 434 Mass. 718, 723 (2001) (free access to courts is not fundamental right, so burdens are reviewed under rational basis). Cf. Paro, 373 Mass. at 652-653 ("As long as the [judge's] discretion [to set the bond amount for a medical malpractice action] is exercised without unreasonably prohibiting meritorious claims, no constitutional violation will exist"); Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 63-64 (1971) (statutory provision requiring appeal bond for appeals from zoning board decisions avoided constitutional infirmity so long as judges exercised their discretion to discourage frivolous appeals but not to unreasonably prohibit meritorious appeals). D'Andrea argues that a fundamental right analysis should apply but presents only conclusory statements to support

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this claim. [Note 13] We therefore decline her invitation to revisit our case law, and we review the constitutionality of requiring use and occupancy payments as a condition of pursuing a summary process appeal under rational basis review.

Turning to the specific question whether a judge could rationally set use and occupancy at a level unaffordable for this defendant, we conclude that a fair balancing of interests weighs in favor of setting use and occupancy payments at the level set by the Housing Court judge, even if it is potentially higher than D'Andrea's ability to pay. As we have explained, it is reasonable for the Legislature to consider the interests of landlords or owners who have been denied possession of their property during the pendency of the appeal, as well as the interests of the defendants in pursuing the appeal. See King, 485 Mass. at 48 (there are "due process implications when a tenant at sufferance in the postforeclosure context remains in possession without paying use and occupancy"). In the instant case, as we stated above, no mortgage payments have been made for eleven years and no use and occupancy payments have been made by the defendants since they were ordered to do so, beginning in July 2022.

As we explained in King, 485 Mass. at 53:

"The reality of the situation is, even assuming the defendant has a meritorious claim under [Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 236-237 (2015)], if he cannot afford use and occupancy that amounts to less than his monthly mortgage payment -- an amount he has not been able to afford for years before this litigation commenced -- the bank will likely have no choice but to reinstate foreclosure proceedings."

In such a situation, a judge could rationally conclude that a fair balancing of the interests between the plaintiff and the defendant would be to require the defendant to pay use and occupancy potentially in excess of what the defendant could afford, because it is still less than the mortgage payments the defendant would otherwise be required to pay to retain possession of the house. A defendant who is unable to afford even those lesser payments will very quickly be facing eviction once again. Id., citing Federal Nat'l Mtge. Ass'n v.

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Marroquin, 477 Mass. 82, 90 n.8 (2017) (even if defendant can void foreclosure sale, mortgagee may still reinitiate foreclosure process). To hold that use and occupancy payments may never exceed a defendant's ability to pay, as D'Andrea urges us to do, would mandate that indigent defendants be ordered to pay nothing or a token sum as use and occupancy on appeal, even when the mortgage or rental payments they would otherwise be required to pay are well beyond their means, and plaintiffs would thus be completely deprived of use of their property without compensation. This, we have explicitly stated, "is not the fair balancing of interests contemplated by the Legislature." King, supra at 52.

We conclude that the ordered use and occupancy payment of $1,275 per month in this case was rational and represents a fair balancing of interests between the parties, even if it exceeds D'Andrea's ability to pay. See King, 485 Mass. at 51-52.

"Among the factors that a court may consider are the fair rental value of the property, the merits of the defense, the amount owed per month on the mortgage, the number of months that no money has been paid on the mortgage, the real estate taxes on the property, the expected duration of the litigation, and the respective financial conditions of the parties."

Id. at 51, citing Davis, 483 Mass. at 179-182. The Housing Court judge followed this guidance. He considered uncontroverted evidence that the fair rental value of the property was around $1,700 per month, and the record shows that the monthly mortgage payments for the property were around $1,400. He reasonably characterized D'Andrea's appellate claims as relatively weak. [Note 14] He also correctly took into account that the plaintiffs purchased

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the property in December 2021 for $175,566.85, and since that time have paid the amounts due for the property's real estate taxes ($3,464 per year), water and sewer charges (approximately $1,500 per year), and insurance ($1,821 per year). Importantly, as discussed supra, the judge recognized that the defendants had paid no use and occupancy to the plaintiffs during the seventeen months that the plaintiffs had owned the property, and the record reflects that no mortgage payments were made on the property after March of 2013. The judge also properly considered that the defendants' income is limited, [Note 15] and set use and occupancy at $1,275 per month, lower than both the fair rental value of the property and the monthly payments required under the mortgage, reflecting consideration of D'Andrea's limited ability to pay as one factor in his analysis. For these reasons, we conclude that the use and occupancy order represents a fair balancing of interests, even if this amount is ultimately beyond the defendants' financial capacity. See King, 485 Mass. at 53.

Because the judge considered and fairly weighed the appropriate factors, the order is rationally related to the summary process statute's goals of balancing the competing interests of plaintiffs and defendants pending appeal. See King, 485 Mass. at 53 (fair balancing of interests where use and occupancy payment was below fair market value and monthly mortgage payment, even if it was not necessarily affordable for defendant). Accordingly, there was no violation of D'Andrea's substantive due process rights.

ii. Equal protection and purchase of justice. D'Andrea also argues that setting use and occupancy payments at a level beyond her capacity to pay violates her right to equal protection of the law because it treats indigent summary process defendants differently from those with means to pay. D'Andrea further contends

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that setting use and occupancy at such a level violates art. 11's prohibition against the purchase of justice. As explained infra, we apply rational basis review for all these claims, and for the reasons discussed supra and supplemented infra, there is a rational basis supporting the requirement of use and occupancy. We therefore likewise conclude that there is no equal protection violation and no violation of art. 11.

Both the Fourteenth Amendment and arts. 1 and 10 guarantee equal protection under the law. [Note 16] "This guarantee 'is essentially a direction that all persons similarly situated should be treated alike.'" Kligler, 491 Mass. at 72, quoting Moore v. Executive Office of the Trial Court, 487 Mass. 839, 848 (2021). If a statute discriminates on the basis of a suspect classification, it is subject to strict judicial scrutiny; all other equal protection claims are evaluated under rational basis review. Gillespie, 460 Mass. at 158. D'Andrea does not argue that indigent summary process defendants are a suspect class, so we review for a rational basis. "When an appeal is afforded, . . . it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause." Lindsey v. Normet, 405 U.S. 56, 77 (1972).

As explained in our discussion of substantive due process supra, the requirement that D'Andrea pay use and occupancy during the pendency of her appeal, even if such payment is beyond her ability to pay, has a rational basis. It protects the plaintiffs' interests in the property and reflects D'Andrea's contractual or other legal requirements to pay rent for the property she continues to occupy. Her indigency remains a relevant factor but is not the sole determinant for the amount of the ordered use and occupancy payment. See King, 485 Mass. at 51 (listing factors for courts to consider when setting appellate use and occupancy in postforeclosure summary process context); Davis, 483 Mass. at 179-183 (same for use and occupancy payments in landlord-tenant context). As the statutory scheme does not make arbitrary or irrational distinctions between the defendant here and a defendant who can make such a payment, we discern no equal protection violation. See Lindsey, 405 U.S. at 77; King, supra at 52-53. See also Gillespie, 460 Mass. at 160 ("Where no suspect classification is drawn, the Legislature is permitted to distinguish

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among civil litigants in providing greater or lesser procedural rights and to exercise this prerogative based on its perception of the significance of the interests involved"). The defendant who can make such a payment is not depriving the plaintiff of compensation during the appeal process and does not face the same likelihood of inevitable eviction due to the inability to pay the rent or mortgage the defendant would otherwise be required to pay to continue to reside on the property. [Note 17]

There is likewise no violation of art. 11. "[W]here [a statute] does not reach a fundamental right or contravene the equal protection clause, we do not consider it violative of art. 11's purchase of justice clause, where the statutory scheme is supported by a rational basis." Gillespie, 460 Mass. at 161.

3. Conclusion. We answer the issues raised in the reported questions as follows:

A trial court judge may not order ongoing use and occupancy payments pending appeal to be waived, substituted, or paid by the Commonwealth as an extra fee or cost under the indigent court costs law, G. L. c. 261, § 27A. The Legislature specifically and unambiguously required an indigent defendant whose appeal bond has been waived pursuant to G. L. c. 239, § 5 (e), to make ongoing use and occupancy payments pending appeal.

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As there are competing interests and constitutional rights at stake, a motion judge may order use and occupancy payments that exceed the amount a defendant can pay so long as the judge considers and properly weighs the factors established in the case law when balancing the interests of the parties. See King, 485 Mass. at 51 (providing factors to be considered); Davis, 483 Mass. at 179-183 (same).

The matter is remanded to the single justice of the Appeals Court for further proceedings consistent with this opinion.

So ordered.