Opinion
No. 12–P–564.
2013-03-20
NOVASTAR MORTGAGE, INC. v. Elliot S. SAFFRAN.
By the Court (CYPHER, RUBIN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The limited issue before this panel concerns the propriety of the dismissal of Elliot S. Saffran's summary process appeal for failure to make periodic payments as ordered by a Housing Court judge and a single justice of this court. See G.L. c. 239, § 5( h ); Matter of an Appeal Bond (No. 1), 428 Mass. 1013 (1998); Saffran v. Novastar Mort., Inc., 462 Mass. 1014, 1015 (2012). We affirm.
Saffran's main contention on appeal is that the periodic payment orders were void because they were issued in a summary process action that should have been barred by principles of res judicata. Even assuming this argument is properly before us, see Ford v. Braman, 30 Mass.App.Ct. 968, 970 (1991), we are not persuaded by it. First, Saffran has failed to show that on remand from this court, the title issue was actually litigated and decided on the merits in the District Court. Contrast Jarosz v. Palmer, 436 Mass. 526, 531–532 (2002). In fact, in her findings, rulings, and order for judgment, the Housing Court judge found that the District Court judgment was not issued with prejudice and that no written findings regarding the lawfulness of the foreclosure were made by a District Court judge.
Contrast Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 54 (1937). As the single justice added, the record was silent as to whether a trial or hearing was conducted on remand. Here, Saffran has provided us with no documents such as District Court docket sheets, a transcript, or a judge's decision to support his assertions that in fact a trial was held and rulings were made. See Arch Med. Assocs. v. Bartlett Health Enterprises, Inc., 32 Mass.App.Ct. 404, 406 (1992) (“The burden is on the appellant in the first instance to furnish a record that supports his claims on appeal”). In any event, as the single justice pointed out, the District Court judgment did not bar Novastar Mortgage, Inc., from seeking to recover possession in a subsequent action. See G.L. c. 239, § 7; Miller v. Campello Co-op. Bank, 344 Mass. 76, 78–79 (1962).
In passing, we note that given the history of the case, including the issuance of U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011), during the pendency of Saffran's first appeal, we also agree with the trial judge that this was not an appropriate case for applying principles of res judicata to bar the Housing Court action.
We are not persuaded that the order instituting periodic payments during the pendency of the appeal was improper. See G.L. c. 239, §§ 5( e ) & 6; Home Sav. Bank of Am., FSB v. Camillo, 45 Mass.App.Ct. 910, 911 (1998). Nor are we persuaded of the merit of Saffran's contention that it was error to order that the periodic payments be made directly to Novastar. If, as Saffran argues, Novastar was limited to the remedies under § 6 (insofar as it governs summary process actions arising after a foreclosure), as a matter of fairness, he also would have been limited (and thus required to post an appeal bond). Only by resort to § 5( e ) was Saffran relieved of that statutory requirement. Having had the benefit of the § 5( e ) procedure, Saffran cannot argue that the burdensome portion of that provision (requiring installment payments for use and occupancy after the date of bond waiver, pending appeal) was inapplicable.
The one case relied upon by Saffran, see Bank of N.Y. v. Apollos, 2008 Mass.App. Div. 208 (2008), is distinguishable for the reasons that there, no indigency waiver under § 5( e ) was involved and an appeal bond was set and posted by the former mortgagor.
Although § 5( e ) is silent on the matter of where payments should be made, courts routinely order that use and occupancy payments be made directly to the landlord or the property owner pending appeal. See, e.g., Kargman v. Dustin, 5 Mass.App.Ct. 101, 103–105 (1977).
Saffran's one-sentence constitutional argument falls far below minimum appellate standards and is deemed waived. See Adams v. Adams, 459 Mass. 361, 392 (2011).
There was no error in the order of the single justice affirming the periodic payment order of the Housing Court, and, accordingly, no error in the dismissal of Saffran's underlying summary process appeal.
Order dismissing appeal affirmed.