Bank of New York Mellon v. Paul Jones.

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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