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19-P-317                                              Appeals Court

     U.S. BANK TRUST, N.A., trustee,1 vs.      KELLY A. JOHNSON &
                             another.2


                               No. 19-P-317.

           Worcester.      July 8, 2019. - October 24, 2019.

            Present:    Green, C.J., Maldonado, & Hand, JJ.


Summary Process. Housing Court, Jurisdiction. Mortgage,
     Foreclosure. Practice, Civil, Bond, Frivolous action,
     Summary process. Statute, Construction. Uniform Summary
     Process Rules. Indigent.



     Summary Process. Complaint filed in the Worcester County
Division of the Housing Court Department on October 5, 2017.

     A motion to set an appeal bond was heard by Diana H. Horan,
J.

     The matter was reported to a panel of this court by Milkey,
J.


     H. Esme Caramello for Harvard Legal Aid Bureau.
     Alexa Rosenbloom for City Life/Vida Urbana.
     Uri Strauss for Community Legal Aid, Inc.
     Kelly A. Johnson, pro se.
     Donald W. Seeley, Jr., for the plaintiff.

     1   For the LSF9 Master Participation Trust.

     2   Patricia A. O'Dell.
                                                                   2


    The following submitted briefs for amici curiae:
    Dawn R. Duncan, pro se.
    Jean Mitchell, pro se.
    Grace C. Ross, pro se.


    GREEN, C.J.   This matter comes before us on a report and

referral by a single justice of this court, pursuant to Mass. R.

Civ. P. 64, as amended, 423 Mass. 1410 (1996), and Rule 2:01 of

the Rules of the Appeals Court (1975).   In his memorandum and

order of referral, the single justice framed three questions for

consideration:   (1) whether the time period prescribed by G. L.

c. 239, § 5, to file a motion for waiver of an appeal bond for

an appeal from a judgment for possession in a summary process

action is jurisdictional; (2) whether the plaintiff's failure to

produce the original note secured by the mortgage it foreclosed

to acquire its title to the property raises a nonfrivolous

appellate issue, thereby justifying waiver of an appeal bond for

an indigent defendant; and (3) whether the indigency of one, but

not both, defendants in a summary process action may justify a

waiver of the appeal bond requirement.   For the reasons that

follow, we conclude that, though the ten-day period prescribed

by G. L. c. 239, § 5, to file a motion for a waiver of the

appeal bond is mandatory, it is not jurisdictional, as

illustrated by circumstances such as those in the present case,

in which the question of indigency cannot be determined as an

abstract question but, instead, depends on the amount of the
                                                                   3


required appeal bond and any required payments for use and

occupancy during the pendency of the appeal, as compared to the

resources available to the moving defendant.   We also conclude

that the defendants have raised a nonfrivolous issue for

appellate consideration on the summary judgment record presented

to the motion judge.   Finally, while we agree that defendant

Kelly A. Johnson has standing to raise her indigency as a ground

for waiver of the appeal bond, we disagree with the defendants'

suggestion that the indigency of one codefendant may serve as a

basis to excuse another nonindigent codefendant from the

requirement to post a bond.   We accordingly vacate the order

declining action on the motion to waive the appeal bond and the

order setting the appeal bond and use and occupancy payments,

and remand the matter for further proceedings consistent with

this opinion.3

     Background.   The plaintiff, U.S. Bank Trust, N.A., as

trustee for the LSF9 Master Participation Trust (U.S. Bank),

claims title to certain residential property located at 18

Baxter Street, Worcester, pursuant to foreclosure of a mortgage

granted by defendant Patricia A. O'Dell on December 27, 2011.

O'Dell, together with her codefendant and daughter, Kelly A.




     3 We acknowledge the amicus curiae briefs filed by Harvard
Legal Aid Bureau, City Life/Vida Urbana, Community Legal Aid,
Inc., Grace C. Ross, Dawn R. Duncan, and Jean Mitchell.
                                                                     4


Johnson, who also resides at the property, challenge the

validity of U.S. Bank's title on various grounds arising from

alleged defects in the foreclosure process.    After filing a

summary process complaint in the Central Division of the Housing

Court Department (Housing Court), U.S. Bank successfully moved

for summary judgment and, following entry of judgment on

November 5, 2018, the defendants timely filed a notice of

appeal.4   On January 9, 2019, U.S. Bank filed a motion to set an

appeal bond.   On January 29, 2019, the defendants filed a motion

to waive the appeal bond.   On January 30, 2019, a judge of the

Housing Court declined action on the motion to waive the appeal

bond, with the following margin endorsement:    "motion cannot be

considered as it is untimely filed (c. 239 sec. 5 & 6)."    On the

same day, the Housing Court judge ordered that the defendants

provide an appeal bond of $20,000 and pay $1,000 per month for

the use and occupancy of the premises during the pendency of the

appeal.    The defendants appealed from both orders to a single

justice of this court, see G. L. c. 239, § 5 (f), who referred

the matter for panel consideration.


     4 The defendants filed a motion for reconsideration of the
order allowing summary judgment on November 13, 2018; it was
denied on December 13, 2018. Their notice of appeal, filed on
December 24, 2018, was filed within ten days after the denial of
their motion for reconsideration because December 23 was a
Sunday. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass.
1606 (2019); Mass. R. A. P. 14 (a), as appearing in 481 Mass.
1626 (2019).
                                                                      5


     Discussion.    1.   Consequence of failure to move timely for

waiver of appeal bond.    Appeals from judgments for possession

entered in summary process actions are governed by G. L. c. 239,

§ 5 (§ 5), which requires any notice of appeal to be filed

within ten days after the entry of the judgment for possession.5

See G. L. c. 239, § 5 (a).    Section 5 (c) requires the defendant

to post a bond, payable to the plaintiff, "in a reasonable

amount to be fixed by the court"; it also provides that "the

bond filed shall be conditioned to enter the action in the

appeals court."    See Adjartey v. Central Div. of the Hous. Court

Dep't, 481 Mass. 830, 858 (2019) (Appendix).     A party may move

to waive the appeal bond by filing the motion "together with a

notice of appeal and any supporting affidavits, . . . within the

time limits set forth in this section."     G. L. c. 239, § 5 (e).6

Upon a motion to waive the appeal bond, "[t]he court shall waive

the requirement of the bond or security if it is satisfied that

the person requesting the waiver has any defense which is not

frivolous and is indigent."    Id.   It is settled that the ten-day


     5 By contrast, a thirty-day appeal period applies to appeals
from most civil judgments. See Mass. R. A. P. 4 (a) (1), as
appearing in 481 Mass. 1606 (2019).

     6 General Laws c. 239, § 6, contains certain other
provisions relating to the establishment of the bond in actions,
such as the present one, brought for possession of property
following a foreclosure sale. Those additional provisions are
not germane to the issues raised in this appeal, and we
accordingly need not describe them here.
                                                                    6


period established by § 5 for filing a notice of appeal is

jurisdictional and ineligible for enlargement.    See Jones v.

Manns, 33 Mass. App. Ct. 485, 489 (1992), citing Liberty

Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914 (1978).7

The question of the present case is whether compliance with the

time period prescribed for filing a motion to waive the appeal

bond is a prerequisite to the Housing Court's authority to

consider such a motion.   In stating that she was unable to

consider the defendants' motion, the Housing Court judge appears

to have concluded that it is.

     As in any question of statutory interpretation, we begin

with the language of the statute.    See Patriot Resorts Corp. v.

Register of Deeds for the County of Berkshire, N. Dist., 71

Mass. App. Ct. 114, 117 (2008).     In addition, "[w]hen the

meaning of any particular section or clause of a statute is

questioned, it is proper, no doubt, to look into the other parts

of the statute."   Commonwealth v. Williamson, 462 Mass. 676, 681

(2012), quoting Commonwealth v. Galvin, 388 Mass. 326, 328

(1983).   "Statutes should be read 'as a whole to produce an

internal consistency.'"   Williamson, supra, quoting Commonwealth


     7 In its brief filed in the present matter, amicus curiae
Harvard Legal Aid Bureau suggests that, in furtherance of the
access to justice concerns observed in Adjartey, 481 Mass. 830,
the strict jurisdictional rule established by Liberty Mobilehome
Sales, 6 Mass. App. Ct. 914, should be relaxed. The present
case presents no cause to consider the broader question.
                                                                   7


v. Fall River Motor Sales, Inc., 409 Mass. 302, 316 (1991).     Our

overarching objective is to discern the intent of the

Legislature, based on the words used and the evident purpose for

which the statute was enacted.   See Board of Educ. v. Assessor

of Worcester, 368 Mass. 511, 513 (1975).

     As a threshold matter, we observe that § 5 does not

prescribe a process or timeframe for setting an appeal bond.

Rule 12 of the Uniform Summary Process Rules (2004) (rule 12)

states that a "request for setting of bond" should be filed

"within the time prescribed by G. L. c. 239, § 5."   Rule 12

presumably refers to the ten-day timeframe for filing a notice

of appeal established by § 5 (a).   However, as the present case

illustrates, that timeframe is not observed strictly in

practice.8   Section 5 is similarly silent on the timing of any

hearing on the motion to set a bond; and though rule 12 provides

that the court should hold a hearing within three days of the

request for a bond, the record of the present case again

illustrates that that directive is not strictly followed.9

Neither § 5 nor rule 12 specifies the consequence of a late




     8 U.S. Bank filed its motion to set a bond on January 9,
2019, almost thirty days after the denial of the defendants'
motion for reconsideration of the summary judgment and more than
two months after the entry of judgment.

     9 The hearing on U.S. Bank's motion was held on January 30,
2019 - more than twenty days after the motion was filed.
                                                                    8


request to set the appeal bond, though the judge in the present

case did not treat U.S. Bank's failure to request a bond within

ten days after the entry of judgment as a bar to acting on the

request.10

     Section 5 is similarly silent on the consequence of the

failure by a defendant to move for waiver of the appeal bond

within ten days after the entry of judgment.    We note, however,

that treating the ten-day period as a prerequisite to

consideration of the motion would, as a practical matter, be

tantamount to dismissal of an indigent defendant's appeal when

such a defendant does not file a motion to waive the bond within

the ten-day period.   But the only reference to dismissal of an

appeal contained in § 5 appears in § 5 (h), which requires a

defendant who has requested review of the bond to pay the bond

set by the reviewing court within five days of receipt of the

decision of the reviewing court; if that deadline is missed --

and only if that deadline is missed -- § 5 (h) directs that "the

appeal from the judgment shall be dismissed."

     Other practical considerations suggest that the ten-day

period is not an absolute prerequisite to consideration of a


     10We do not suggest that a deadline set by statute or rule
may be ignored simply because it is routinely disregarded in
practice. We include the observation simply to highlight the
contrast between the manner in which essentially similar
deadlines for a request to set the appeal bond and a motion to
waive the appeal bond were treated in the present case.
                                                                    9


motion to waive the appeal bond.   Any motion to waive the bond

must be accompanied by affidavits establishing, among other

things, that the defendant is "indigent" within the meaning of

G. L. c. 261, § 27A.   See G. L. c. 239, § 5 (e).   That statute,

in turn, defines indigency by reference to three alternative

standards.   Though two of those are determinable without

reference to variables of the proceeding,11 the third examines

whether the person "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.

That inquiry is necessarily dependent on the amount of the fees

and costs at issue.    In other words, to determine if a person

will be unable without undue hardship to pay for the bond and

use and occupancy, the amounts of the bond and use and occupancy

payments must first be identified.12   Finally, we note that U.S.


     11The first two categories of indigency look to whether the
person receives public assistance under certain specified
programs, or whether the person's income, after taxes, is 125
percent or less than the current Federal poverty line. G. L.
c. 261, § 27A.

     12We also note that the affidavit of indigency a party must
submit in support of a motion to waive the appeal bond based on
the third category requires the affiant to attest that she is
unable to pay the fees and costs of the proceeding "without
depriving [herself] or [her] dependents of the necessities of
life, including food, shelter and clothing." G. L. c. 261,
§ 27A. In other words, if a motion to waive an appeal bond is
required to be filed before the amount of the appeal bond is
                                                                     10


Bank has identified no prejudice that would result if a request

for waiver of the appeal bond is not made until after the bond

itself is set.

     In sum, though the statute sets a ten-day period following

the entry of judgment for a defendant to file a motion to waive

the appeal bond, it is silent on the consequence of a failure to

do so.    The Housing Court appears routinely to treat a similar

time period for requesting a bond under rule 12 as advisory

rather than mandatory, and practical considerations suggest

strongly that in many circumstances the information essential to

a determination of indigency will be unknown until after the

bond is set.     We conclude that the ten-day period prescribed by

§ 5 for filing a motion to waive the appeal bond is not a

jurisdictional prerequisite to consideration of such a motion.13

Cf. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631-1632

(2015) (enactment of statute of limitations does not bar




determined, a moving party claiming indigency under the third
category would be required to swear to an inability to pay
despite having no information about the amount of the required
payment.

     13To be sure, some reasonable parameters must apply to the
time by which a motion to waive (or set) the appeal bond must be
brought. Our conclusion in the present case is not that such a
motion may be brought at any time, but simply that the failure
to comply strictly with the ten-day limit prescribed by § 5 does
not negate the court's authority to consider the motion.
                                                                   11


judicial consideration of equitable tolling absent clear

statement by Congress).

     Because the Housing Court judge believed she was without

authority to consider the defendants' motion to waive the appeal

bond, she did not address the other two questions framed by the

single justice in his referral.   We comment briefly on both, as

they have been briefed and argued by the parties, and they bear

on the proceedings that will occur on remand.

     2.   Nonfrivolous defense.   The defendants assert that U.S.

Bank's failure to produce the original mortgage note for

examination renders its foreclosure fatally invalid, based on

their interpretation of the holding in Eaton v. Federal Nat'l

Mtge. Ass'n, 462 Mass. 569 (2012).14   For present purposes, we

need not reach the defendants' argument in its full breadth; it

is enough to observe that the affidavit upon which U.S. Bank

relied to establish that it held the note at all relevant times

was based on the "best . . . knowledge, information and belief"

of the affiant.   See and compare Khalsa v. Sovereign Bank, N.A.,

88 Mass. App. Ct. 824, 828-829 (2016).   Though the affiant also

appears to assert that she based her averments on her

examination of U.S. Bank's business records, the questionable


     14In Eaton, 462 Mass. at 584-586, the Supreme Judicial
Court held that a foreclosing mortgagee must establish that it
either holds the note secured by the mortgage or that it is
acting on behalf of the note holder.
                                                                   12


form of the affidavit may alone be enough to lift the

defendants' appeal beyond the frivolous.   See Tamber v.

Desrochers, 45 Mass. App. Ct. 234, 237 (1998), quoting Pires v.

Commonwealth, 373 Mass. 829, 838 (1977) ("The idea of

frivolousness is something beyond simply lacking merit; it

imports futility, not 'a prayer of a chance'").

    3.   Johnson's standing as a defendant.   U.S. Bank asserts

on appeal that Johnson is ineligible to move for waiver of the

appeal bond because she is without standing to raise a defense

based on a claim that its foreclosure was invalid.   However, to

the contrary, Johnson is a tenant in possession of the premises

to which U.S. Bank claims title based on its foreclosure.     It is

immaterial to Johnson's standing as a defendant in an action by

a party claiming a superior title in the property that she was

not a party to the note on which U.S. Bank's foreclosure (and

hence its claim of title) rests; indeed, if O'Dell had rented

the premises to third parties who held over following the

foreclosure, those tenants would similarly be entitled to raise

as a defense in any action for possession a claim that the

foreclosure, and resulting claim of title, were invalid.     See

Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 285

n.4 (1992).

    That Johnson is entitled to move for a waiver of the appeal

bond based on her claim of indigency does not, however,
                                                                   13


determine the question of an appeal bond for all purposes of

this appeal.   The purpose of the bond requirement is to provide

security for a party who has obtained a judgment for possession

of property during the pendency of an appeal, and the purpose of

the waiver of the bond requirement is to preserve the rights of

indigent defendants in such actions who wish to pursue a

nonfrivolous defense on appeal, despite their inability to post

the ordinarily required bond.   That Johnson may be excused by

her indigency from the bond requirement does not resolve the

question whether O'Dell should be excused from the bond

requirement as well (if she is not indigent).15

     Conclusion.   We conclude that the Housing Court judge erred

in her conclusion that she was without authority to consider the

defendants' motion to waive the appeal bond.   The order

declining action on the motion to waive the appeal bond and the

order setting the bond and use and occupancy payments are

vacated, and the matter is remanded to the Housing Court for

further proceedings consistent with this opinion.

                                    So ordered.




     15The record does not address the question of O'Dell's
indigency. We note that O'Dell did not submit an affidavit of
indigency with the motion for waiver of the bond, and U.S. Bank
in its pleadings has included some suggestion that O'Dell is not
indigent.
