Bank of New York Mellon v. Paul Jones. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1007
BANK OF NEW YORK MELLON 1
vs.
PAUL JONES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff brought this summary process action against
the defendant following the foreclosure sale of the defendant's
home. After the defendant missed a court date, a default
judgment for the plaintiff entered on March 15, 2022. A Housing
Court judge denied the defendant's motion to vacate the default
judgment, and the defendant appealed. On the plaintiff's motion
to set an appeal bond and the defendant's motion to waive the
bond, the judge determined that the defendant had no
nonfrivolous defenses to raise on appeal and ordered him to post
a bond of $260 within ten days and to pay $1,950 in monthly use
and occupancy beginning on September 1, 2022. The defendant did
1 Formerly known as Bank of New York, as Trustee for CWABS, Inc.
Asset-Backed Certificates, Series 2004-7.
not seek review of the judge's order from a single justice of
this court. See G. L. c. 239, § 5 (f).
After the defendant missed the deadline for posting the
bond, he moved to post it two days late. The plaintiff opposed
the motion and sought dismissal of the defendant's appeal. On
September 8, 2022, the judge held a hearing on the defendant's
motion, at which she asked the defendant why he had not made his
September 1 use and occupancy payment as ordered. The defendant
replied that he was unable to make the payment. The judge then
issued an order dismissing the defendant's appeal from the
default judgment, stating that, while she might have "allow[ed]
the bond to be posted late," dismissal of the appeal was
warranted by the defendant's failure to pay use and occupancy.
The defendant filed a second notice of appeal from that order,
which is the appeal now before us.
Although the defendant raises numerous arguments in his
brief concerning the validity of the foreclosure sale, those
issues are outside the scope of this appeal. So too is the
validity of the default judgment. Rather, the narrow issue
before us is whether the judge erred in dismissing the
defendant's appeal from the default judgment based on his
failure to pay use and occupancy. We see no error. If a
defendant in a summary process action "fails to pay the appeal
bond or use and occupancy as ordered, his or her appeal may be
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dismissed." Adjartey v. Central Div. of the Hous. Court Dep't,
481 Mass. 830, 859 (2019). See G. L. c. 239, § 5 (h). The
defendant never sought to challenge or modify the use and
occupancy order, and he does not contest that he failed to
comply with it. The judge thus did not err in dismissing the
defendant's appeal. 2
Order dated September 8,
2022, dismissing appeal
affirmed.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 3),
Clerk
Entered: October 4, 2023.
2 We exercise our discretion to deny the plaintiff's request for
damages and costs.
3 The panelists are listed in order of seniority.
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