21ST MORTGAGE CORPORATION v. LAPHAM (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this postforeclosure eviction action, 21st Mortgage Corporation appeals from an order of a single justice of this court vacating a Housing Court judge's order that defendant Karen Lapham (Lapham) pay monthly use and occupancy fees pending appeal. Based on the Supreme Judicial Court's recent decision in Bank of New York Mellon v. King, 485 Mass. 37 (2020), there was no error in the Housing Court's order of use and occupancy payments. Accordingly, we vacate so much of the single justice's order as concluded otherwise and reinstate the $2,200 monthly use and occupancy fee ordered by the Housing Court judge.

Background. Lapham is the former owner of a residence at 6 Garden Drive in Carver. The plaintiff, 21st Mortgage Corporation, purchased the subject property at a foreclosure auction and brought a summary process action when Lapham failed to vacate the property. A Housing Court judge entered judgment for possession in favor of 21st Mortgage. Lapham appealed and moved to waive the appeal bond required by G. L. c. 239, § 5 (c). Lapham also moved to waive use and occupancy payments pending her appeal. The judge allowed the motion to waive the appeal bond, but ordered Lapham to pay monthly use and occupancy fees to 21st Mortgage while the appeal was pending. After an evidentiary hearing, the judge ordered monthly use and occupancy payments of $2,200 based, in part, on an uncontradicted expert opinion regarding the fair market rental value of the property.

Lapham appealed to a single justice of this court who affirmed the waiver of the appeal bond, but vacated the order requiring use and occupancy payments, reasoning that the judge had no authority to order such payments where there was no tenancy relationship between the parties. 21st Mortgage appealed this aspect of the single justice's order to a full panel of this court.

Discussion. Approximately ten months after the single justice's order in this case, the Supreme Judicial Court directly addressed the issue before us in this case. In King, 485 Mass. at 44-45, the court concluded that “§ 5 applies to many different types of appeal bonds and nothing in § 5 limits its terms to landlord-tenant relationships.” The court further decided “that, pursuant to the statute, judges may order such parties to pay use and occupancy payments ‘as rent’ under § 5 (e).” Id. at 45.

In a pleading filed after the Supreme Judicial Court's decision in King, Lapham conceded that the single justice's ruling on the use and occupancy payments must be “set aside,” but argued that the case should be remanded to the single justice for consideration of the amount of the bond. We see no reason to remand, as all of the evidence from the Housing Court and single justice session is before us. See id. at 51-52. Considering the evidence presented and the factors set forth in King, supra at 51, we conclude that the Housing Court judge fairly balanced the parties' interests when she ordered monthly use and occupancy payments of $2,200. Accordingly, we discern no error or abuse of discretion in the amount of use and occupancy payments ordered by the Housing Court judge.

Conclusion. We vacate the portion of the single justice order that vacated the use and occupancy payments pending appeal. The Housing Court order for monthly use and occupancy payments in the amount of $2,200 is reinstated. The single justice order is otherwise affirmed.

So ordered.

Vacated in part; affirmed in part