Frechette v. D'Andrea

234 N.E.3d 935

Raymond FRECHETTE & another¹

v.Elizabeth D’ANDREA & others.²

SJC43497

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 5, 2024.

Decided June 10, 2024.

Summary Process, Appeal. Practice, Civil, Summary process, Appeal, Bond, Costs, Standing. Indigent. Housing Court, Costs and fees. Statute, Construction. Constitutional Law, Equal protection of laws, Access to court proceedings. Due Process of Law, Substantive rights.

Summary process. Complaint filed in the Central Division of the Housing Court Department on March 2, 2022.

The case was heard by Sergio E. Carvajal,J., on a motion for summary judgment, and a motion to waive an appeal bond was heard by Jeffrey M. Winik, J.

An appeal from an order setting an appeal bond was heard in the Appeals Court by Peter J. Rubin, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Brian J. Wasser, Hyannis, for Elizabeth D’Andrea.

Laura F. Camara (Henry Gunther & Richard M.W. Bauer, Boston, also present) for South Coastal Counties Legal Services, Inc., & another.

Robert Mitson for the plaintiffs.

The following submitted briefs for amici curiae:

Karen R. Merritt, pro se.

Jay H. Lively, pro se.

Emmanuel Asia, pro se.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

KAFKER, J.

Following their purchase of a foreclosed property in Webster (property), plaintiffs Edward A. Cianci and Raymond Frechette brought a summary process action in the Housing Court against the occupants of the property (defendants). The Housing Court entered judgment in favor of the plaintiffs on their claim for possession, and defendant Elizabeth D’Andrea appealed. The plaintiffs moved to set an appeal bond, while D’Andrea moved to waive the appeal bond and filed an affidavit of indigency. D’Andrea also filed a "Motion to Waive, Substitute, Order Government Payment for Appeal Bond and Other Costs," arguing that because she was indigent within the meaning of G. L. c. 261, § 27A, the appeal bond and any use and occupancy payments that would normally be required as a condition for maintaining an appeal from a summary process judgment should be waived, substituted, or paid by the Commonwealth under G. L. c. 261, §§ 27A to 27G (indigent court costs law or indigency statute).

A Housing Court judge found D’Andrea to be indigent and waived her appeal bond pursuant to G. L. c. 239, § 5 (e), but nonetheless held that D’Andrea would be required to make monthly use and occupancy payments of $1,275 to the plaintiffs as a condition for maintaining her appeal. D’Andrea appealed from the use and occupancy order to a single justice of the Appeals Court, who reported the following questions to a panel of the Appeals Court:

(1) "May or must a trial court judge in a case involving an indigent party, for whom the appeal bond has been waived, order ongoing use and occupancy payments pending appeal otherwise permitted or required by G. L. c. 239, § [5 (e)], to be waived, substituted, or paid by the Commonwealth as an ‘extra fee or cost’ under the indigent court costs law, G. L. c. 261, §§ 27A-[27]G?"

(2) "May a trial court judge order a defendant in a summary process action, for whom the appeal bond has been waived, to pay ongoing use and occupancy pending appeal pursuant to G. L. c. 239, § [5 (e),] in an amount that exceeds the defendant’s ability to pay without violating the party’s due process, equal protection, or [a]rt. 11 [of the Declaration of Rights of the Massachusetts Constitution] rights?"

We transferred the case on our own motion.

We conclude that use and occupancy payments required of an indigent party under G. L. c. 239, § 5 (e), may not be waived, substituted, or paid by the Commonwealth under the indigency statute because use and occupancy payments are not an "extra fee or cost" as defined in the indigency statute. We further conclude that the order setting use and occupancy payments in the instant case did not violate D’Andrea’s constitutional rights, even if the order requires her to make pay- merits that potentially exceed her ability to pay because the summary process statute reasonably imposes a fair balancing of interests between the owner of the property and the party in possession, and the Housing Court performed the fair balancing required.³

1. Background. D’Andrea’s mother, Dorothy Menzone, purchased the property in August of 2008. In 2012, Menzone refinanced an existing mortgage on the property by executing a note in favor of Intercontinental Capital Group, Inc. The note was secured by a new mortgage that was assigned to JPMorgan Chase Bank, N.A. (Chase). Pursuant to the mortgage, Menzone was required to make monthly payments of approximately $1,400. Menzone made these payments regularly until she died in March 2013. No payments were made on the mortgage after Menzone’s death. D’Andrea averred that she has lived at the property since 2008.⁴ In 2019, Chase initiated foreclosure proceedings on the property and subsequently purchased the property at foreclosure auction.⁵ Chase sold the property to Cianci in December 2021 for $175,566.85 and conveyed the property to Cianci by quitclaim deed. Cianci then conveyed the property to himself and Frechette.

In February 2022, the plaintiffs served the defendants with a notice to quit. The defendants did not vacate the property, and the plaintiffs initiated a summary process action to evict the defendants. In June 2022, the court ordered the defendants to make interim use and occupancy payments of $1,500 beginning in July 2022. It is undisputed that the defendants made no interim use and occupancy payments. The plaintiffs were granted a judgment of possession of the property in March 2023, and D’Andrea appealed.⁶

The plaintiffs moved to set an appeal bond pursuant to G. L. c. 239, §§ 5 and 6. D’Andrea, in turn, filed an affidavit of indigency and moved to waive, substitute, or have the Commonwealth pay the appeal bond as well as any use and occupancy. The Housing Court judge found that D’Andrea was indigent within the meaning of the indigent court costs law and concluded that D’Andrea’s potential arguments on appeal were "barely" not frivolous. Accordingly, the judge waived D’Andrea’s obligation to post an appeal bond as a condition of maintaining her appeal. Nonetheless, the judge concluded in a carefully reasoned decision that use and occupancy payments were expressly required to be paid by G. L. c. 239, §§ 5 (e) and 6, and were not extra fees and costs under the indigency statute. The judge therefore denied D’Andrea’s motion to waive, substitute, or have the Commonwealth subsidize the payments pursuant to G. L. c. 261, § 27C.

The judge ordered D’Andrea to pay $1,275 per month as use and occupancy payments to the plaintiffs as a condition of her appeal. He summarized a number of factors that he considered to be relevant in setting the use and occupancy amount:

"(1) the plaintiff paid $175,566.00 to purchase the property, (2) the defendants have not made [a] single payment to the plaintiffs for their continued use and occupancy of the property for eleven months,[⁷] (3) the condition of the property, (4) the ongoing costs the plaintiff is obligated to pay to cover taxes, assessments and property maintenance, (5) the defendants’ income is limited and (6) the appellate issues that may be presented."

The judge also summarized the testimony from a licensed real estate agent who opined that the fair rental value of the property was $1,700 per month. D’Andrea was asked for her opinion regarding the fair rental value of the property, but she did not provide any opinion. The judge noted that the ordered use and occupancy payments were twenty-five percent lower than the fair rental value estimate provided by the real estate agent.

D’Andrea appealed from the judge’s order setting use and occupancy payments to a single justice of the Appeals Court. The single justice, stating that no appellate court had decided the issue whether use and occupancy payments may be waived pursuant to the indigent court costs law, reported the two questions noted supra to a panel of the Appeals Court, and we transferred the case on our own motion.

[1] 2. Discussion, a. Standing. As a preliminary matter, D’Andrea challenges the plaintiffs’ standing to bring a summary process action against her. The summary process statute, G. L. c. 239, provides in relevant part that "if a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, … the person entitled to the land or tenements may recover possession thereof under this chapter." G. L. c. 239, § 1. D’Andrea reads this provision narrowly to mean that summary process is only open to the party that bought the foreclosure deed, and thus argues that any subsequent purchasers of the deed, such as the plaintiffs in this case, are not entitled to use summary process to evict a holdover tenant. D’Andrea contends that Chase is the only party that would have been entitled to bring a summary process action under § 1 because Chase acquired the property at the foreclosure sale before selling the property to the plaintiffs. We disagree.

[2, 3] "The purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld." Bank of N.Y. v. Bailey, 460 Mass. 327, 333, 951 N.E.2d 331 (2011) (Bailey), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775, 215 N.E.2d 795 (1966). Allowing subsequent purchasers to bring postforeclosure summary process actions aligns with this purpose and aligns with the text of G. L. c. 239, § 1, which allows "the person entitled to the land" to recover possession "if a mortgage of land has been foreclosed by a sale under a power therein." The property at issue here was subject to a foreclosure sale, and the plaintiffs purchased the property from Chase after Chase acquired the property at the...