Usually not. The Appeals Court affirmed a single justice’s refusal to stop a post-foreclosure eviction and held that the occupant’s appeal was moot because the eviction had already happened and she no longer lived in the home. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
A company bought a single family home in Rehoboth at a foreclosure sale in 2019 and brought a summary process (eviction) case for possession. In March 2021 the Housing Court ordered the occupants to pay use and occupancy, and in September 2021 it granted summary judgment for possession to the buyer. The occupants appealed, challenged the appeal bond order, and were ultimately ordered to comply with it. When they did not pay use and occupancy, the Housing Court struck their appeal, and no notice of appeal from that order was filed within thirty days. One occupant, representing herself, then filed an emergency motion to stay the eviction, was denied, and asked a single justice of the Appeals Court for a stay of execution. On October 4, 2024, the single justice denied the stay and her motion for reconsideration. Execution was carried out on October 10, 2024.
What the court decided
A three judge panel affirmed the single justice’s orders in L&S Realty, LLC v. Merritt, No. 24-P-1202 (Mass. App. Ct. October 14, 2025) (Rule 23.0 decision).
A narrow appeal. On appeal, she argued lack of jurisdiction, fraud in the foreclosure sale and defects in the eviction case. The panel said the appeal was limited to the denial of her emergency motion to stay execution. It was not a chance to review every ruling in the Housing Court. The single justice had noted that she never appealed the order striking her appeal, and that the time to do so had passed.
Moot. Courts decide actual controversies and normally do not decide moot cases. Boston Herald, Inc. v. Superior Court Dep’t of the Trial Court, 421 Mass. 502 (1995). Once the eviction a party sought to stay has happened, a court can order no further effective relief on that request. Kahyaoglu v. Sillari Enters. LLC, 493 Mass. 1005 (2023). Here, execution was levied and she no longer occupied the home, so any claim to possession was moot.
No error anyway. Even if the appeal were not moot, the panel saw no error in denying the stay. A party seeking a stay pending appeal ordinarily must show, among other things, a likelihood of success on the merits. Property Acquisition Group, LLC v. Ivester, 95 Mass. App. Ct. 170 (2019). She offered no argument on that point. The panel declined the buyer’s request for appellate attorney’s fees.
What this means for you
This case is a warning about timing. A stay of execution is the tool that keeps you in your home while you fight. Once the eviction is carried out, a request to stop it usually becomes moot, and the appeals court will not decide it.
It also shows how one missed step can end an appeal. When the Housing Court struck the appeal for failure to pay use and occupancy, the next move was a timely notice of appeal from that order. No such notice was filed, and the single justice relied on that failure. Arguments about fraud or defects in the foreclosure need to be raised in the right case, at the right time, in the right court. An emergency stay motion is not a substitute for a properly preserved appeal.
Finally, a stay is not automatic. You must show a real chance of winning the appeal, not just hardship. If you cannot explain why the judgment was wrong, a stay is unlikely.
What to do now
- If you are ordered to pay use and occupancy or post a bond while you appeal, pay on time or ask the court to change the order before you fall behind.
- If your appeal is struck or dismissed, calendar the deadline to appeal that order right away.
- Ask for a stay as early as possible, before an execution issues or is carried out.
- In any stay request, explain specifically why you are likely to win on appeal.
- Get legal help early; foreclosure and eviction appeals have many separate deadlines.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
