In four 2024 decisions, the Appeals Court let eviction judgments stand because the occupant filed the appeal late, did not post an appeal bond, or did not keep up with court-ordered use and occupancy payments. All four are unpublished Appeals Court decisions under Rule 23.0, which courts may cite as persuasive but not as binding precedent. Together they show that an eviction appeal can be lost on procedure before any court looks at your defenses.
What happened
Each case began as a Housing Court summary process case that ended in a judgment for possession. Two were evictions after a foreclosure. In each, the losing occupant tried to appeal, mostly without a lawyer. Under G.L. c. 239, § 5, a notice of appeal must be filed within 10 days after judgment, and the occupant must post a bond unless the court waives it. When the bond is waived, the court must require the occupant to pay all or part of the rent as it comes due while the appeal is pending.
What the court decided
A late notice of appeal
In Kaplan v. Thomas, No. 22-P-570 (Mass. App. Ct. June 25, 2024) (Rule 23.0 decision), judgment for the landlord entered after a bench trial in a no-fault eviction. The tenant filed her notice of appeal 14 days later, and the Housing Court dismissed it as untimely. She said the notice of judgment went to her former lawyer, but she got it with four days left to appeal. She also moved to vacate the judgment with text messages, tenancy papers and letters. The judge found she had all of them at trial and did not bring them, and failing to present available evidence is not a reason to vacate. The Appeals Court affirmed, and it upheld the judge’s refusal to postpone the trial again.
No appeal bond
In Grasli Investment, LLC v. Vo, No. 23-P-84 (Mass. App. Ct. May 7, 2024) (Rule 23.0 decision), the Housing Court dismissed the occupants’ appeal because they did not post an appeal bond. A single justice of the Appeals Court refused to stay that order because they showed no likelihood of success. The panel affirmed. Their brief gave no argument for why the single justice was wrong and cited no record or law, and their record appendix held only the judgment and the summary judgment decision.
Bond and use and occupancy pending appeal
In Silva v. Stanley, No. 22-P-922 (Mass. App. Ct. September 20, 2024) (Rule 23.0 decision), the buyer of a foreclosed home won possession. A Housing Court judge found the occupant indigent but without a defense that was not frivolous, so the judge set a bond plus monthly use and occupancy instead of waiving the bond. A waiver requires both. G.L. c. 239, § 5 (e). A single justice affirmed that order, the occupant did not comply, and her appeal was dismissed. The Appeals Court held that once an appeal is dismissed on that ground, it reviews only the single justice’s order, for abuse of discretion. 21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct. 792, 798 (2022). It found none, noting she had been warned many times that she was risking dismissal.
Missed use and occupancy after a bond waiver
In RMBS REO Holdings, LLC v. Asia, No. 22-P-119 (Mass. App. Ct. October 31, 2024) (Rule 23.0 decision), the former owner of a foreclosed home got his appeal bond waived, but the court ordered monthly use and occupancy while the appeal was pending. He made the first payment, then paid late for the next four months. He also never properly ordered the hearing transcripts or told the other side his plans, so the appeal sat for five months. The judge dismissed the appeal, and the Appeals Court found no abuse of discretion. Self-represented litigants must follow the same rules as everyone else. The court also rejected his argument that the indigency statute excused the payments.
What this means for you
Winning an eviction appeal starts with keeping it alive. The 10-day deadline is strict. A bond waiver requires showing both that you cannot afford the bond and that you have a real defense. Even with the bond waived, you must make every ordered payment on time while the appeal is pending. Missing any of these steps can end your appeal, no matter how strong your defenses are.
What to do now
- Count 10 days from the date judgment enters and file your notice of appeal before then.
- If you cannot afford a bond, file a motion to waive it on time, with an affidavit of indigency and a clear statement of your defenses.
- If you disagree with the bond or payment amount, ask a single justice of the Appeals Court to review it. G.L. c. 239, § 5 (f). Do not just stop paying.
- Pay every use and occupancy installment on time and keep proof of each payment.
- Order the hearing transcripts promptly, file the order with the clerk, and tell the other side.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
