DEUTSCHE BANK NATIONAL TRUST COMPANY v. FULLER (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Deutsche Bank National Trust Co., as trustee of the CDC Mortgage Capital Trust 2003-HE4, Mortgage Pass-Through Certificates, Series 2003-HE4 (Deutsche Bank), brought this summary process action against the defendants, David L., Betsy L., Evan, and Cameron Fuller, following the foreclosure sale of the Fullers’ home.⁴ A summary judgment entered in favor of Deutsche Bank, and the Fullers appealed and moved to waive the appeal bond. The motion was allowed, however, in lieu of an appeal bond the Fullers were ordered to pay monthly use and occupancy. The Fullers did not timely appeal from the appeal bond order.⁵ Thereafter, the Fullers failed to pay the court-mandated use and occupancy, and Deutsche Bank moved to dismiss the Fullers’ appeal. That motion was allowed. The Fullers now appeal from the orders dismissing their appeal and denying their related motion for reconsideration. We affirm.

The narrow issue before the court is the propriety of dismissal of the Fullers’ appeal. Where the Fullers failed to comply with the appeal bond order by not paying the court-mandated use and occupancy, their appeal was properly dismissed. See G. L. c. 239, § 5 (h). See also Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 859 (2019). The Fullers’ arguments -- that, for a variety of reasons, Deutsche Bank did not receive a proper assignment of the mortgage -- do not address the order dismissing their appeal and are not before the court.

Order dated December 14, 2020, dismissing appeal affirmed.

Order dated February 17, 2021, denying motion for reconsideration affirmed.

FOOTNOTES

4.   In a prior action, David L. and Betsy L. Fuller alleged that Deutsche Bank was not a valid mortgagee at the time it foreclosed on their home. A summary judgment entered in favor of Deutsche Bank in that action, and the summary judgment was affirmed on appeal. See Fuller v. Deutsche Bank Nat'l Trust Co., 93 Mass. App. Ct. 1103 (2018).

5.   An untimely appeal from the use and occupancy order was dismissed by a single justice of this court.