Opinion
15-P-1661
08-09-2017
FEDERAL NATIONAL MORTGAGE ASSOCIATION v. SUSAN C. OSBORNE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Susan Osborne refused to vacate her home following foreclosure, and the Federal National Mortgage Association (FNMA) brought this summary process action. A Housing Court judge allowed FNMA's motion for summary judgment, and judgment entered awarding possession to FNMA. The judge denied Osborne's motion pursuant to Mass.R.Civ.P. 59, 365 Mass. 827 (1974), and 60(b)(4), 365 Mass. 828 (1974), and Osborne noticed an appeal from both the judgment and the order denying her posttrial motion. The judge denied Osborne's motion to waive the appellate bond, instead setting Osborne's bond at $205 and ordering Osborne to pay use and occupancy pending appeal in the amount of $700 per month, apparently later reduced to $400. See G. L. c. 239, §§ 5(e), 6. Osborne does not appear to have sought review of the use and occupancy order as permitted by G. L. c. 239, § 5(f). Several months later, on motion and after hearing, the judge dismissed Osborne's appeal, finding that she had neither complied with Mass.R.A.P. 8(b), as amended, 430 Mass. 1601 (1999), nor paid use and occupancy. See G. L. c. 239, § 5(h). Osborne noticed an appeal from the order dismissing her appeal.
The underlying merit-based appeal, having been dismissed, is not before us and we do not consider any arguments directed at the underlying judgment or the order denying Osborne's posttrial motion. Before us is Osborne's appeal from the order dismissing her appeal; however, she did not present any argument pertinent to that order. Osborne, therefore, has also waived her challenge to that order. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 467 n.12 (1997). Furthermore, even if Osborne had properly raised challenges to that order, we would be unable to meaningfully review them, as she has failed to meet her burden under Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), to include in her record appendix any pertinent record materials concerning the use and occupancy order, see Saffran v. Novastar Mort., Inc., 462 Mass. 1014, 1015 (2012), or, more generally, the order dismissing her appeal. Accordingly, we affirm the order dismissing Osborne's appeal.
So ordered.
By the Court (Meade, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 9, 2017.