Bank of New York Mellon v. KingAnnotate this Case
The Supreme Judicial Court affirmed the decision of the Housing Court ordering Defendant to pay $4,000 in use and occupancy to the Bank during the course of his appeal from a judgment in favor of the Bank in a summary process action, holding that the postforeclosure defendant whose appeal bond is waived may be ordered to pay use and occupancy to the plaintiff.
After foreclosing on Defendant's property, the Bank obtained judgment in a summary process action against Defendant. Defendant appealed and moved to waive the appeal bond. The judge waived the bond but ordered Defendant to pay monthly use and occupancy to the Bank while the appeal was pending. The Appeals Court vacated the portion of the order requiring use and occupancy payments. The Supreme Judicial Court held (1) the bond for a defendant appealing from an adverse judgment in a postforeclosure summary process action may be waived if he is indigent and pursuing nonfrivolous arguments on appeal; (2) the postforeclosure defendant whose bond is waived may be ordered to pay use and occupancy to the plaintiff; and (3) the amount Defendant was ordered to pay as use and occupancy in this case reflected a fair balancing of interests.