The BANK OF NEW YORK MELLON v. LEE R. HENRICKSON & Another.

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

19-P-1792

THE BANK OF NEW YORK MELLON1

vs.

LEE R. HENRICKSON & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This matter is before the court on the defendants' appeal

from an order dismissing their appeal from a summary process

judgment.3 The appeal had been dismissed when the

defendant/appellants failed to pay the appeal bond of $45,000 as

1 As successor trustee for JPMorgan Chase Bank, N.A., as Trustee
for Novastar Mortgage Funding Trust, Series 2005-3 Novastar Home
Equity Loan Asset-Backed Certificates, Series 2005-3.
2 Gale Lutz. As is our custom, we take the parties' names as
they appear on the complaint.
3 The order also denied, as untimely, the defendants' Motion to

Reconsider as to Voidness and Lack of Subject Matter
Jurisdiction. The issue of subject matter jurisdiction can be
raised at any time, however, see ROPT Ltd. Partnership v. Katin,
431 Mass. 601, 605, 607 (2000), and the denial of the motion on
the ground of untimeliness was error. As the basis for the
subject matter jurisdiction argument concerned the plaintiff's
standing to maintain this action, we need not address it as the
issue of the plaintiff's standing is now moot.
ordered by the Housing Court, and as affirmed by a single

justice of the Appeals Court pursuant to G. L. c. 239, § 5.4

At oral argument, counsel for the plaintiff notified the

court that she believed that the plaintiff no longer owns the

property at issue in this summary process action.5 Subsequently

filed status reports by the plaintiff confirmed that the

plaintiff no longer owns the property, and that the new owner

has commenced a separate summary process proceeding against the

defendants. The court then requested that the parties show

cause why the appeal should not be dismissed as moot and

remanded with instructions for the judgment to be vacated under

Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631

(2015) (Aquacultural Research). The plaintiff responded

essentially indicating its agreement that the matter is moot and

that the court should dismiss the appeal in accordance with the

procedure set forth in Aquacultural Research. The defendants

similarly requested that the appeal be dismissed in accordance

with the holding in Aquacultural Research, but they asked that

4 During the pendency of this appeal, the defendants appealed
from an order of the single justice denying their motion for an
emergency stay of execution. That appeal was assembled, but
never entered by the defendants, so it is waived and is not
before us. In any event, in light of our disposition here, any
such appeal would be moot.
5 The better practice would have been to notify the court within

a reasonable time of sale that the plaintiff no longer owned the
property. In any event, counsel for the plaintiff was correct
to notify the court at oral argument.

2
the remand order allow them to "separate off into their own

case" their counterclaims, which had been dismissed pursuant to

the parties' November 29, 2018 agreement for judgment. They

also allude to potential damages arising from the plaintiff's

continuation of this action after it knew the property had been

sold to another.6

"It is the general rule that courts decide only actual

controversies. We follow that rule, and normally do not decide

moot cases." Boston Herald, Inc. v. Superior Court Dep't of the

Trial Court, 421 Mass. 502, 504 (1995). "[L]itigation is

considered moot when the party who claimed to be aggrieved

ceases to have a personal stake in its outcome[,] . . . [and] a

court can order no further effective relief" (quotations

omitted). Branch v. Commonwealth Employment Relations Bd., 481

Mass. 810, 816-817 (2019), cert. denied, 140 S. Ct. 858 (2020).

See Mullholland v. State Racing Comm'n, 295 Mass. 286, 289

(1936) (when "a decision by the court will not be applicable to

existing rights, no decision will be rendered" because "[t]he

questions originally involved have become moot").

Here, any claim for possession is now moot as the plaintiff

no longer has any possessory interest in the property.

6 We note that defendants were on notice that the plaintiff had
sold the property to a third party no later than April 4, 2022,
when the third party filed a summary process action against
them.

3
Relatedly, as the appeal bond is predicated on the judgment for

possession, which we must vacate, its propriety is moot as well.7

Ordinarily, where a case becomes moot on appeal, we vacate the

judgment below to free the parties from any potential collateral

estoppel consequences of a decision for which appellate review

had become unavailable. See Aquacultural Research, 88 Mass.

App. Ct. at 634-635.8 If the entire matter had become moot, we

7 We note, however, that defendants' reliance on G. L. c. 261,
§ 27C, for the proposition that a holdover tenant does not have
to show a nonfrivolous issue on appeal to waive the appeal bond
is misplaced. The Supreme Judicial Court has stated
unequivocally that the procedure for waiving the appeal bond
required in all appeals from judgments in summary process
matters, including postforeclosure cases, is governed by G. L.
c. 239, § 5. See Bank of N.Y. Mellon v. King, 485 Mass. 37, 44-
45 (2020). "[I]f a general statute and a specific statute
cannot be reconciled, the general statute must yield to the
specific statute." Rita v. Carella, 394 Mass. 822, 827 (1985),
quoting Pereira v. New England LNG Co., 364 Mass. 109, 118
(1973). As a holdover possessor after the foreclosure, the
defendants are tenants at sufferance. See Bank of N.Y. Mellon
v. Morin, 96 Mass. App. Ct. 503, 514 (2019), citing Singh v.
207-211 Main St., LLC, 78 Mass. App. Ct. 901, 903 (2010) ("After
an entry to foreclose, a mortgagor becomes a tenant at
sufferance"). Even where an appeal bond is waived "a court may
order the tenant to make 'use and occupancy' payments -- similar
to rent -- while an appeal is pending." Adjartey v. Central
Div. of the Hous. Court Dep't, 481 Mass. 830, 859 (2019), citing
G. L. c. 239, § 5 (e).
8 While the court in Home Sav. Bank of Am. FSB v. Camillo, 45

Mass. App. Ct. 910, 912 (1998), and a companion case released
that same day, Tamber v. Desrochers, 45 Mass. App. Ct. 234
(1998), addressed the merits of the appeal bond issue, it
presumably did so as a matter of discretion. See Lynn v.
Murrell, 489 Mass. 579, 583 (2022) (mootness is a factor that
affects the court's discretion, not its power). No party has
requested that we reach the underlying issues here. In any
event, we decline to do so as a matter of discretion.

4
would also ordinarily direct the dismissal of the underlying

action, not on the merits, but because it had become moot. See

Reilly v. School Comm. of Boston, 362 Mass. 689, 696 (1972).

Here, the plaintiff has argued for the dismissal of the

underlying action as moot and has not sought a remand. In

contrast, the defendants have requested that the matter be

remanded so that they can pursue their counterclaims. However,

the settlement agreement included a provision agreeing to the

dismissal of the defendants' counterclaims. The agreement was

signed by Lutz and by counsel, albeit on a line that was

labelled for "defendant's counsel" in the singular. In his

Reply Brief, Henrickson raised for the first time an argument

that he could not be bound because he did not sign the agreement

himself. The issue of his lack of signature, however, has been

waived.9 Accordingly, as to this plaintiff, the argument that

the lack of signature means that Henrickson did not agree to

dismiss his counterclaims is without merit and no remand is

required. See Thibbitts v. Crowley, 405 Mass. 222, 226-227

9 Henrickson did not raise the issue of his lack of signature on
the settlement agreement below. The argument is therefore
waived. See Wells Fargo Bank, Nat'l Ass'n v. Mondi, 98 Mass.
App. Ct. 280, 287 (2020). He also did not raise the issue on
appeal in his primary brief. Accordingly, it was waived on
appeal as well. See Spinosa v. Tufts, 98 Mass. App. Ct. 1, 16
(2020) (issue not addressed in principal brief, but raised for
first time in a reply brief is waived and need not be
addressed).

5
(1989) (enforcing a settlement agreement entered as consent

judgment: "We are aware of no sound theory upon which it can be

held that the court has jurisdiction to modify the terms of a

valid existing contract which arose solely through the voluntary

act of the parties" [quotation omitted]). See also Maher v.

General Motors Corp., 370 Mass. 231, 235 (1976) (court declined

to "engage in the futile exercise of remanding the case for a

new trial in which the plaintiff could not prevail"); Nexum Dev.

Corp. v. Planning Bd. of Framingham, 79 Mass. App. Ct. 117, 119-

120 (2011) (remand would be "futile and wasteful . . . [where]

[n]o legally permissible action by the [court] could change its

decision[]").

Accordingly, we vacate the judgment, the appeal bond order,

and the order denying the motion for reconsideration. The

matter is remanded to the Housing Court with the direction that

the summary process action be dismissed, not on the merits, but

6
because it has become moot.10

So ordered.

By the Court (Rubin, Henry &
Walsh, JJ.11),

Clerk

Entered: February 17, 2023.

10 As noted, this disposition frees the parties from any
potential collateral estoppel consequences with respect to any
claims or counterclaims. See Reilly, 362 Mass. at 696;
Aquacultural Research, 88 Mass. App. Ct. at 634-635.
11 The panelists are listed in order of seniority.

7