Winning a trial date in a post-foreclosure eviction is not the same as winning the case. Here the occupants of a home in Lynn convinced a judge that the validity of a prior foreclosure sale needed a trial, then called no witnesses and offered no documents, and the Appeals Court affirmed the Housing Court’s judgment giving the new owner possession. The court also upheld an order requiring the occupants to make monthly use and occupancy payments. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The owner, a company that held a deed to the home, brought a summary process case in the Housing Court to recover possession from the occupants. At the summary judgment stage, the occupants argued successfully that the validity of a prior foreclosure sale raised a real factual dispute for trial. At trial, the owner put its deed into evidence. When the owner finished its case, the occupants were not ready to present evidence and asked the judge to issue a bench warrant or capias. The judge adjourned, said she would rule on their request to subpoena witnesses and then rule on everything else, and defense counsel agreed. The judge then found for the owner on possession. In the case, the occupants were also ordered to make monthly use and occupancy payments, their jury demand was struck, and their postjudgment motions were denied.
What the court decided
The Appeals Court affirmed in KMF, LLC v. Reither, No. 24-P-819 (Mass. App. Ct. September 2, 2025) (Rule 23.0 decision).
Ending the trial. The occupants argued they never got a full chance to present their case. The court held they waived that argument. They did not object when the judge laid out her plan to rule without necessarily calling the parties back, and their lawyer agreed to it. To raise an issue on appeal, a party must make a specific objection on the record. Ciccarelli v. School Dep’t of Lowell, 70 Mass. App. Ct. 787 (2007).
The owner’s proof. The owner’s deed was in evidence. The court held that this shifted the burden to the occupants to contest the owner’s title. They challenged the deed through cross-examination but did not actually counter it with evidence of their own. On appeal, it is the appellant’s job to show a finding was clearly wrong, and pointing to other evidence the judge may not have credited is not enough. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (2010). Because the unchallenged evidence supported the owner’s prima facie case, the court did not reach the occupants’ arguments that the foreclosure sale had to be proven in strict compliance with Massachusetts law, or that a prior invalid foreclosure deed could not act as an assignment of the mortgage.
Use and occupancy. The court found no error in the order that the occupants make monthly use and occupancy payments. Such payments may properly be ordered, nothing in the record called them into question, and the occupants’ single cited case did not support their position. The same reasoning defeated their challenge to payments ordered after trial, and to the striking of their jury demand, which rested only on the claim that the payments were invalid.
Other rulings. The occupants offered no separate argument against the denial of their postjudgment motions, so those denials stood. The court denied the owner’s request for appellate attorney’s fees, finding the equities did not favor it.
What this means for you
The lesson here is about preparation. Getting past summary judgment only means a judge thinks there is something to try. At trial, a deed showing the new owner’s title can be enough to shift the burden to you. If you then offer nothing, such as no witnesses, no recorded documents and no foreclosure notices, the judge can rule against you on the evidence in front of her.
Objections matter too. If a judge proposes to close the evidence or decide the case in a way you think is unfair, you must say so on the record at that moment. Agreeing, or saying nothing, can waive the issue for appeal.
Finally, use and occupancy orders are a normal part of these cases. If the court orders you to pay while the case is pending, take the order seriously and keep paying unless and until a court changes it.
What to do now
- Before trial, gather the documents that support your defense, such as the mortgage, assignments, foreclosure notices and the foreclosure deed, and have them ready to offer as exhibits.
- Serve subpoenas on any witnesses or record keepers you need well before the trial date.
- If you are not ready on the trial date, ask for a continuance on the record and explain why.
- Object clearly, on the record, to any ruling or procedure you think is wrong, and state your reasons.
- If a use and occupancy order enters, make every payment on time and keep proof of each one.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
