Opinion
10-P-1388
03-08-2012
MATRIX FINANCIAL SERVICES CORPORATION v. PATSY RUTH LONG & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After purchasing the property located at 149 Adams Street in Lexington at a foreclosure sale, Matrix Financial Services Corporation (Matrix) served the occupants, Patsy and James Long, Jr., with a notice to quit. When the Longs refused to vacate, Matrix commenced this summary process action in the District Court. A judge subsequently granted Matrix's motion for summary judgment, rejecting the Longs' G. L. c. 260 defenses. On January 25, 2010, a final judgment of possession entered in favor of Matrix. The Longs timely claimed an appeal from the judgment.
On May 10, 2010, a judge ordered the appeal bond set at $50,000. See G. L. c. 239, § 5(c), as amended through St. 2004, c. 252, § 19, and G. L. c. 239, § 6. As permitted by G. L. c. 239, § 5(f), the Longs sought a de novo review of the bond order in the Appellate Division of the District Court. By decision dated June 15, 2010, the Appellate Division vacated the bond order, significantly reduced the amount of the bond to $16,800, set a due date of July 1, 2010, and ordered the Longs to commence on July 1, 2010, monthly use and occupancy payments of $2,800 (the stipulated fair market monthly rental value). Following the Longs' noncompliance with those requirements, the Appellate Division dismissed their appeal of the underlying summary process judgment in a decision and order dated July 16, 2010. See G. L. c. 239, § 5(h).
Shortly after the dismissal, their attorney withdrew his appearance. The Longs are proceeding pro se in this appeal.
The sole issue before us concerns the propriety of the order of dismissal. See Matter of an Appeal Bond (No. 1), 428 Mass. 1013 (1998); Erickson v. Somers, 446 Mass. 1015 (2006); Ford v. Braman, 30 Mass. App. Ct. 968, 970 (1991).
Here, the Appellate Division incorporated into its June 15, 2010, decision the terms of an open-court agreement between the Longs' attorney and Matrix's attorney regarding the bond. In these circumstances, we cannot find unreasonable the amount of the bond that was specifically agreed to by the Longs' attorney. Moreover, the amount of the bond, we note, was less than what could have been required under G. L. c. 239, § 6. To the extent the Longs claimed error in the failure to eliminate the bond requirement, as their attorney acknowledged to the Appellate Division, they failed to present an affidavit of indigence. Absent a sufficient showing of indigency, they were not entitled to a bond waiver. See G. L. c. 239, § 5(e); Tamber v. Desrochers, 45 Mass. App. Ct. 234, 237 (1998).
Section 6 of c. 239 provides that, in a summary process action brought after a purchase at a foreclosure sale, the elements that may be considered in establishing the amount of the bond include all costs and a reasonable amount as rent from the date of purchase (here August, 2009) until the delivery of possession, as well as all damage and loss that may be sustained by the withholding of possession and by injury to the property during the withholding period. See Home Sav. Bank of Am., FSB v. Camillo, 45 Mass. App. Ct. 910, 911 (1998). Here, the amount of the bond was based solely on use and occupancy commencing February, 2010.
Given the Longs' failure to post a bond, we lack statutory authority to assess the merits of the summary judgment ruling. See G. L. c. 239, § 5(c) ('[T]he defendant shall, before any appeal under this section is allowed from a judgment of . . . a district court, rendered for the plaintiff for the possession of the land or tenements demanded . . . give bond in a sum as the court orders . . . in a reasonable amount to be fixed by the court'). The Longs' summary process case is now at an end. See Tamber v. Desrochers, 45 Mass. App. Ct. at 236.
The July 16, 2010, decision and order of the Appellate Division dismissing the Longs' appeal from the judgment of possession is affirmed.
The plaintiff's request for appellate attorney's fees is denied.
--------
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),