If a Housing Court judge orders you to pay use and occupancy while your eviction case waits for a jury trial, and you keep missing payments after warnings, the judge can strike your jury demand. The Appeals Court upheld that sanction against a former owner fighting a post foreclosure eviction, and also upheld rulings that kept her from relitigating the foreclosure. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 buyer purchased a two unit house at a 2018 foreclosure auction. The former owner still lived in one unit. In a separate Superior Court case, the foreclosing bank won a judgment clearing a cloud she had put on the title, and that judgment was affirmed on appeal. The buyer then brought a summary process case in the Housing Court, and the former owner asked for a jury. While the trial was delayed, the judge ordered her to pay monthly use and occupancy, later increased based on fair market value, and warned that missed payments could lead to striking the jury demand. She paid less than ordered for several months, made only a partial payment after promising in court to pay in full, and did not pay the balance when given another chance. The judge struck the jury demand, barred arguments about the foreclosure, limited her evidence for missing pretrial deadlines, and entered judgment for the buyer.
What the court decided
The Appeals Court affirmed in 25 Greycliff LLC v. West, No. 23-P-1106 (Mass. App. Ct. July 21, 2025) (Rule 23.0 decision).
Striking the jury demand. Article 15 of the Massachusetts Declaration of Rights protects the right to a jury in property disputes. Judges have power to manage their cases, but striking a jury demand must be approached with caution and judged under due process principles, such as the party’s fault, the harm to the other side, and whether a lesser sanction would work. CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276 (2017). Here the court found no abuse of discretion. The former owner had months of notice, a single justice had already refused to disturb the increase, and the judge gave her repeated chances to catch up. Letting her keep a jury while not paying fair market use and occupancy would have been unfair to the buyer.
No second try at the foreclosure. Claim preclusion makes a final judgment binding on the parties and those in privity with them, and it bars claims that were or could have been decided. Kobrin v. Board of Registration in Med., 444 Mass. 837 (2005). A judgment about interests in real estate also binds someone who later takes over a party’s interest. McCarthy v. Oak Bluffs, 419 Mass. 227 (1994). The buyer stood in the bank’s shoes, and the former owner had already litigated title against the bank. She could not raise those challenges again. Her claim that she never received the earlier decision did not help, since it was public.
Typed filings. A judge had ordered that her filings over two pages be typed. She said a disability made that hard, but she never made a proper accommodation request through the court’s ADA coordinator, as she had been told to do, and the record showed she could type documents. The order stood, and she showed no harm from it.
What this means for you
After a foreclosure, the new owner can ask the court to make you pay use and occupancy while the eviction case is pending. Treat that order like rent. Paying part of it, or paying late, can cost you important rights, including a jury.
If you think the amount is wrong, the place to fight it is the motion hearing and, if needed, a prompt request for review by a single justice. Withholding money on your own, for example as a credit for bills you paid, is risky unless the court has approved it.
If you already lost a court case about your title, you usually cannot use the eviction case to argue the same points again. Pretrial orders matter too. Missing the deadline for witness and exhibit lists can leave you with only your own testimony.
If you have a disability that makes a court requirement hard to meet, ask for an accommodation through the court’s ADA coordinator and keep a copy of the request.
What to do now
- Pay every use and occupancy order in full and on time, and keep proof of each payment.
- If you cannot pay, file a motion before the due date explaining why and asking for a change.
- Calendar every pretrial deadline and file your witness and exhibit lists on time.
- Make any accommodation request in writing through the court’s ADA coordinator.
- Talk to a lawyer about whether an earlier case already decided your title claims.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
