Not under this decision. The Appeals Court held that a former occupant could not remove or transfer a final Housing Court post-foreclosure eviction judgment to the Superior Court. It affirmed the dismissal of her Superior Court filing because she pointed to no statute or rule that allows it, the Housing Court had jurisdiction, and, to the extent the filing was a new lawsuit, it was barred by res judicata. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
In November 2021, the new owner of a foreclosed property brought a post-foreclosure summary process (eviction) case in the Housing Court against the former occupant. After a bench trial in January 2023, the judge entered judgment for possession for the new owner. The former occupant filed a timely appeal, but it was dismissed in April 2023 for failure to pay use and occupancy, and execution issued about a week later.
Over the next year and a half, there were several motions to stay the execution and appeals to single justices of the Appeals Court. In September 2024, a Housing Court judge denied a motion to remove or transfer the case to the Superior Court. The former occupant then filed the same motion in the Superior Court, along with the whole Housing Court record. The Superior Court clerk docketed it as a new complaint, and in December 2024 a Superior Court judge dismissed it on the court’s own initiative.
What the court decided
The Appeals Court affirmed in Herrera v. Osowska, No. 25-P-88 (Mass. App. Ct. August 20, 2026) (Rule 23.0 decision). It gave three reasons.
No rule allows removal after judgment. The former occupant relied on G.L. c. 231, § 102C and G.L. c. 231, § 104. Those sections deal with moving cases between the Superior Court and the District Court based on the amount of money at stake. Neither one gives a way to move a case from the Housing Court to the Superior Court after a final judgment.
The Housing Court had jurisdiction. The former occupant argued that the foreclosure was flawed, so the new owner never got good title and the Housing Court had no power to hear the case. She relied on Konstantopoulos v. Whately, 384 Mass. 123 (1981), where a case was sent from a court that lacked jurisdiction to the Superior Court. Transfer is the right remedy when a court truly lacks jurisdiction. Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580, 591 (2016). But the Housing Court can hear challenges to title in a post-foreclosure eviction, including claims that once had to be brought in the Superior Court. Bank of Am., N.A. v. Rosa, 466 Mass. 613, 626 (2013). And here, the Housing Court judge had found after trial that the foreclosure strictly complied with the foreclosure statute. Because the appeal was never completed, that finding could not be reviewed.
You cannot relitigate a final judgment in a new case. A final Housing Court judgment generally must be challenged directly, by appeal, not by a separate lawsuit in another court. Harker v. Holyoke, 390 Mass. 555, 559-560 (1983). To the extent the Superior Court filing was a new lawsuit attacking the judgment, the court held it was barred by res judicata (claim preclusion). It involved the same parties, arose from the same facts, and followed a final judgment on the merits after a full trial.
The court called this a rare case where dismissal without notice was proper, because no amendment could have saved the filing.
What this means for you
If you are a former homeowner facing a post-foreclosure eviction, the Housing Court is where you fight. You can raise challenges to the foreclosure and the new owner’s title there, as a defense and counterclaim. If you lose, your path is a direct appeal, and you must follow every step to keep it alive.
The trap in this case is the dismissed appeal. Here, the appeal was lost because use and occupancy was not paid. Once that happened, the trial findings about the foreclosure became final, and no other court could reopen them. Filing in a different court did not get around that.
What to do now
- Raise every challenge to the foreclosure and the new owner’s title in your Housing Court answer and counterclaims.
- If you lose at trial, file your notice of appeal on time.
- Pay any use and occupancy the court orders while the appeal is pending, and keep proof of every payment.
- If the court sets a payment amount you cannot meet, ask the court to review it right away instead of missing payments.
- Get legal advice before filing anything in a different court about the same property.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
