Petition for Writ of Certiorari — Margaly Philippe, Petitioner v. Wells Fargo Bank, N.A., Trustee

I.

Appendix 1 a

App. No. 24A470

3Jn tije Supreme Court of tfje ®ntteb States;

MARGALY PHILIPPE, et al., - Pro Se PETITIONER

v.

WELLS FARGO, NA. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN,

TRUST 2007-FXD1 - RESPONDENT

ON WRIT OF CERTIORARI FROM

MASSACHUSETTS SUPREME JUDICIAL COURT

PETITION FOR WRIT OF CERTIORARI

APPENDIX a

Margaly Philippe

55 YOLANDA DRIVE, BROCKTON, MA 02301, (508) 345-9186

January 2, 2025

1

*

Appendix 2 a

Additional Parties under Rule 12.4

App. No. 24A467

ELIZABETH D’ANDREA - Pro Se PETITIONER

v.

JP MORGAN CHASE BANK, N.A. - RESPONDENT

Elizabeth D’Andrea

33 HIGHLAND STREET, WEBSTER, MA 01570, (978) 257-0809

App. No. 24A468

GRACE RUNGU - Pro Se PETITIONER

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE - RESPONDENT

Grace Rungu

44 KEENE STREET, MA 01852, (978) 804-3451

App. No.

THERESA CHERRY AND ROBERT DANSEREAU - Pro Se PETITIONERS

v.

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE

HOLDERS OF THE ASSET BACKED SECURITIES CORP HOME EQUITY LOAN

TRUST, SERIES AMQ 2006-HE7 ASSET BACKED PASS-THROUGH

CERTIFICATES, SERIES AMQ 2006-HE7

Theresa Cherry

21 BAXTER STREET WORCESTER, MA 01602, (508)757-3241

January 2, 2025

a.

Appendix 3 a

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-727

MARGALY PHILIPPE

vs .

WELLS FARGO BANK, N.A., trustee. i

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal is the most recent chapter in an ongoing effort

by the plaintiff, Margaly Philippe, to retain her former home

after a Housing Court judgment entered awarding possession of

the home to the defendant, a foreclosing bank.

The Housing

Court judgment was affirmed on appeal, see Wells Fargo Bank,

N.A. v. Philippe,

98 Mass. App. Ct. 1117

Further appellate review was denied.

v. Philippe,

486 Mass. 1113 (2021).

(2020)

(Philippe I).

See Wells Fargo Bank, N.A.

An execution on the

judgment issued, and Philippe's requests for relief from that

execution were denied in the Housing Court.

Philippe then filed a "petition" in the Superior Court

seeking relief from the Housing Court judgment, in equity and

1 For Option One Mortgage Loan Trust 2007-FXDl.

Appendix 4 a

pursuant to Mass. R. Civ. P. 60

(b)

(4), 365 Mass. 828

(1974).

On October 25, 2021, a judge of the Superior Court denied

Philippe's petition by entering an order on the docket, and on

November 16, 2021, also by docket order, the judge allowed a

motion by the bank to close the case.

Later, in a written

memorandum, the judge allowed the bank's motions to strike a

return of service of the petition and permanently close the

On April 21, 2022, a judgment of dismissal entered

case.

pursuant to Mass. R. Civ. P. 54, as amended, 382 Mass. 829

(1981), and Mass. R. Civ. P. 58, as amended, 371 Mass. 908

(1977).

The judge cited two reasons:

(1)

failure of service of

the petition, and (2) the Housing Court judgment could not be

collaterally attacked in the Superior Court.

Within ten days, Philippe filed a motion for relief from

the judgment citing Mass. R. Civ. P. 60

(b)

(1)

(rule 60

[b]

motion), in which she argued that the judge made a mistake when

he struck the return of service.

The rule 60

(b) motion was

denied on June 30, 2022, and Philippe appealed.2

2 In addition to the April 21, 2022 judgment of dismissal and

June 30, 2022 order denying the rule 60 (b) motion, Philippe’s

renewed and combined notice of appeal identified the orders

dated October 25 and November 16, 2021, but those were not

"judgments" within the meaning of our procedural rules and are

not separately appealable.

See Jones v. Boykan, 74 Mass. App.

Ct. 213, 218 & n.9 (2009).

r,

r

Appendix 5 a

In the appeal, Philippe requested a stay of levy on the

Housing Court execution pursuant to Mass. R. A. P. 6 (a), as

appearing in 481 Mass. 1608 (2019).

On September 22, 2022,

Philippe's request was denied by a single justice of this court.

Philippe again appealed, and her appeals were consolidated for

our consideration.

We have carefully considered Philippe's submissions, the

April 21, 2022 judgment of dismissal, the June 30, 2022 order

denying the rule 60

(b) motion, and the September 22, 2022

single justice order denying the motion to stay.

We affirm.

Philippe filed her Superior Court petition on

Discussion.

According to a return of service filed in

October 8, 2021.

February 2022, the bank's designated agent was served with a

summons and copy of the petition on November 29, 2021.

This was

after the judge denied the petition (on October 25, 2021) and

1

allowed the bank's motion to close the case

(on November 16,

2021), but within the ninety-day window for serving a summons

and complaint.

Mass. 1401

See Mass. R. Civ. P. 4

(1988).

(j), as appearing in 402

The bank maintained that the petition was

not a "complaint" within the meaning of Mass. R. Civ. P. 4, as

amended,

402 Mass. 1401 (1988)

(rule 4), therefore, the return

of service was a nullity and should be struck.

The judge agreed

that "this Court never accepted the Petition," and he struck the

T

(

Appendix 6 a

return both for that reason and because the "summons is not

accompanied by any complaint as required by [rule] 4."

The challenge for Philippe here, as the Superior Court

judge explained, is that she "cannot prevail in her quest to

collaterally attack the final judgment of the Housing Court."

Because the Housing Court judgment cannot be undone by the

Superior Court or by us for reasons we will explain, we need not

decide whether the judge mistakenly focused on the title of

Philippe's pleading rather than its substance as she contends.

Nor must we determine whether her service sufficed under rule 4

See

even though a return was not filed until February 2022.

Mass. R. Civ. P.. 4

(f),

365 Mass. 733

(1974)

("Failure to make

proof of service does not affect the validity of the service").

"It is well established as a general matter that denial of

a motion under rule 60 (b) will be set aside only on a clear

showing of an abuse of discretion."

App. Ct. 166, 169 (2006).

Wang v. Niakaros,

67 Mass.

Applying that standard, we conclude

that the judge properly rejected Philippe's contentions that

title challenges are outside the jurisdiction of the Housing

Court in a summary process proceeding and that only the Superior

Court has jurisdiction over equal protection claims under G. L.

c.

93, §§ 102

(b), 103

(b).

Both title challenges in a summary process action -including those based on predatory lending and discrimination —

r

r

Appendix 7 a

and "housing problems" that give rise to an equal rights

violation fall squarely within the•jurisdiction of the Housing

Court.

G. L. c. 185C, § 3.

c. 183C, § 18 (a)- (b) .

See G. L. c. 151B, § 9; G. L.

See also Bank of Am., N.A. v. Rosa, 466

Mass. 613, 625-626 (2013)

(Housing Court has jurisdiction in

summary process proceeding to consider all equitable challenges

to title, including those that previously had to be raised by

independent Superior Court action).

Philippe raised claims for

both predatory lending and discrimination before the Housing

Court judge.

The Housing Court judge rejected the claims

because Philippe "was unable to articulate how her mortgage loan

fell within any of the four indices of predation" and she

admitted she could not afford her modified loan.

After

reviewing the evidence and arguments afresh, a panel of this

court concluded that the Housing Court judge was correct.

Philippe I.

Philippe then sought further review of those

decisions and it was denied.

Philippe's new action in the Superior Court

(the one

currently before us) was between the same parties, arose out of

the same foreclosure, and asserted the same claims as those

raised in the Housing Court (along with new claims that could or

should have been raised before).

The Superior Court judge

correctly decided that Philippe's new action was barred by claim

preclusion.

That doctrine "makes a valid,

final judgment

1

X

Appendix 8 a

conclusive on the parties and their privies, and prevents

relitigation of all matters that were or could have been

adjudicated in the action," "based on the idea that the party to

be precluded has had the incentive and opportunity to litigate

the matter fully in the first lawsuit"

(citations omitted).

Laramie v. Philip Morris USA Inc., 488 Mass. 399, 405

(2021).

In Philippe I, Philippe had every opportunity and incentive

to pursue all claims that would have called into question the

bank's title and therefore its right to possession, including

claims for equal rights violations and.those based on the ruling

in Adj artey v. Central Div. of the Hous-. Court Dep't, 481 Mass.

830

(2019).

She did not pursue those claims.

Considerations of

fairness and the requirements of efficient judicial

administration dictate that she not be given a second bite at

the apple.

Laramie, 488 Mass, at 405.

For all these reasons, the single justice correctly

discerned that Philippe "failed to demonstrate any likelihood of

success on the merits that would result in the reversal of the

Housing Court's judgment for possession."

Denial of the

requested stay was not an abuse of discretion.

Evans, 67 Mass. App. Ct. 577, 578

(2006).

Cartledqe v.

This is especially

true where the appeal was from a judgment of the Superior Court,

while the execution Philippe asked the single justice to stay

was issued by the Housing Court.

Litigants cannot avoid the

T

*

Appendix 9 a

binding effect of a valid and final judgment rendered by a court

of competent jurisdiction "by seeking an alternative remedy or

by raising the claim from a different posture or in a different

procedural form."

Wright Mach. Corp. v. Seaman-Andwall Corp.,

364 Mass. 683, 688

(1974) .3

April 21, 2022 judgment of

dismissal affirmed.

June 30, 2022 order denying

rule 60 (b) motion

affirmed.

September 22, 2022 single

justice order affirmed.

By the Court (Meade,

Hershfang & D'Angelo, JJ.4),

Assistant Clerk

Entered:

January 3, 2024.

3 Other contentions by Philippe have not been overlooked; we find

nothing in them that requires discussion.

Department of Revenue

v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).

Philippe's

motion to schedule oral argument is denied.

4 The panelists are listed in order of seniority.

IAppendix 10 a

'-■i.

Commonwealth of Massachusetts

Appeals Court for the Commonwealth

At Boston

In the case no. 22-P-481

JPMORGAN CHASE BANK, N.A.

vs.

SHANE D'ANDREA & others.

Pending in the Central Division of the Housing Court

Ordered, that the following entry be made on the docket:

Orders entered January 26,

2022, dismissing

plaintiff's amended

complaint with prejudice,

and dismissing defendants

counterclaims without

prejudice, affirmed.

Order denying defendant

Elizabeth D'Andrea's motion

for reconsideration

affirmed.

By the. Court,

<1,

Jj1

November 28, 2023.

f

Clerk

Appendix 11 a

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-481

JPMORGAN CHASE BANK, N.A.

vs.

SHANE D'ANDREA & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Elizabeth D'Andrea appeals from orders of a

Housing Court

j

udge dismissing both the summary process amended

complaint of the plaintiff, JP Morgan Chase Bank, N.A.

(the

bank), and the defendants' counterclaims without prejudice.

On

appeal, Elizabeth claims, among other things, that the judge

erred in dismissing the counterclaims.2

Finding no error, we

affirm.

In 2008, Dorothy Menzone, Elizabeth's mother, purchased a

home at 33 Highland Street in Webster, Massachusetts

property) by taking out a loan.

(the

In 2012, Menzone refinanced the

loan, executing a note in favor of Intercontinental Capital

i

Elizabeth D'Andrea, Jennifer Wilson, and Dennis Brown.

2 Because defendants Shane D'Andrea and Elizabeth D'Andrea share

the same last name, we will refer to them .by their first names

to avoid confusion.

I.

Appendix 12 a

Group,

Inc.

property.3

The loan was secured by a mortgage encumbering the

After her death on March 15, 2013, no further

mortgage payments were made.

On January 1,4, 2020, the bank

. purchased the property from itself at a foreclosure auction

after purportedly sending the required foreclosure notices and

publishing notice of the foreclosure sale.

The bank then commenced a summary process action on

February 17,

2020, against Shane only,.Menzone's great-grandson.

On December 8, 2021, while che summary process action was

pending, the bank sold the property to a third party.

On

December 10, 2021, two days after the sale of the property, the

bank, with leave of court, served the other occupants of the

property in this action with an amended summary process summons

and complaint. 4

Elizabeth filed an answer to the amended

complaint and counterclaims on December 31, 2021, and the other

newly-added defendants filed their answer and counterclaims on

January 3, 2022.

On January 13, 2022, the bank moved to

voluntarily dismiss the summary process action and to dismiss

all counterclaims, as it nc longer held title to the property.

A judge held a hearing attended by Elizabeth and then dismissed

the bank's claim for possession and all counterclaims without

3 The mortgage was later acquired by the bank.

4 The amended complaint added Elizabeth; Jennifer Wilson, Shane's

mother; and Dennis Brown, another occupant of the property.

I

1

Appendix 13 a

prejudice because it lacked subject matter jurisdiction.

Elizabeth appeals from the orders.5

Discussion.

"We review the allowance of a motion to

dismiss de novo, accepting as true all factual allegations in

the complaint and favorable inferences drawn therefrom."

Lipsitt v. Plaud, 466 Mass. 240, 241

Herb Chambers 1-95, Inc.,

(2013), citing Curtis v.

458 Mass. 674, 676 (2011) .

In her appeal, Elizabeth offer several reasons why the

Housing Court judge erred, each of which can only be addressed

if the Housing Court had jurisdiction over the bank's claim and

the defendants' counterclaims.

Mass. 788, 805

(2023)

See Commonwealth v. Doughty, 491

("Subje.ct matter jurisdiction concerns the

power of the court to entertain a particular category of case") .

Accordingly, we begin our analysis with the issue of whether the

Housing Court judge erred in dismissing either the bank's claim

for possession or the defendants

1.

counterclaims.

Dismissal of summary process action.

is a court of limited jurisdiction.

Co . , 406 Mass. 888, 896

(1990).

The Housing Court

LeBlanc v. Sherwin Williams

General Laws c. 185C, § 3,

gives the Housing Court jurisdiction over claims involving "the

possession, condition, or use of any particular housing

5 Elizabeth has waived her appeal of the order denying her motion

for reconsideration,

See Mass. R. A. P. 16 (a) (9) (A), as

appearing in 481 Mass. 1628 (2019).

I

Appendix 14 a

accommodations."

Here, it is undisputed that at the time of the

filing of the bank's motion to dismiss, the bank was not the

owner of the property because it had transferred whatever

interest it had in the property to a third party via a quitclaim

deed.

"Where, as here, the plaintiff is neither the owner nor

the lessor of the property, the plaintiff has no standing to

bring a summary process action."

Hatcher,

Rental Prop. Mqt. Servs. v.

479 Mass. 542, 546 (2018).

"[L]egal standing is a

jurisdictional matter; if parties do not have standing, a court

has no jurisdiction to adjudicate their claims."

Matter of

Chapman, 482 Mass. 1012, 1015 (2019).

After the bank sold its entire interest in the property,

its claim for possession became moot and the bank properly

informed the court of its change in . status by filing a motion

for voluntary dismissal.

The judge then acted correctly by

scheduling the matter for a hearing and providing the defendants

an opportunity to be heard.

Because it is undisputed that the

bank no longer even purported to own any interest in the

property, it was not only proper, but also required for the

Housing Court to dismiss the bank's summary process action.6

There was no error.

6 Elizabeth appears mistakenly to believe that the order of

dismissal here include a judgment on the merits that the bank

owned the property, a question on which we express no opinion.

Moreover, the order dismissing the bank's claim for possession

I

Appendix 15 a

2.

Dismissal of counterclaims.

We next address whether

the court had jurisdiction over the counterclaims once the

summary process action had been properly dismissed.

In a

summary process action following foreclosure, " [an] occupant

facing eviction may assert that the power of sale was not

strictly complied with and that the foreclosure is therefore

void .

.

.

[and] other affirmative defenses or counterclaims,

such as those based on violations of G. L. c. 93A or G. L.

c. 151B, and may seek possession, monetary damages, or other

equitable relief."

Federal Nat'1 Mtge. Ass'n v. Rego,

474 Mass.

329, 339 (2016) .

Elizabeth's answer and counterclaims challenged, among

other things, the validity of the mortgage loan transaction and

the foreclosure sale and alleged unfair business practices under

G. L. c. 93A.

There is no doubt that, in adjudicating a summary

process action, the Housing Court has the authority to consider

an affirmative defense or counterclaim challenging the validity

of the foreclosure sale.

Here, however, the Housing Court did

not have jurisdiction over any of the defendants' counterclaims

for the same reasons it did not have jurisdiction over the

We also note that the judge had no duty at

was with prejudice,

any time before issuing his order of dismissal to determine, sua

sponte, whether the bank had standing to bring this action in

the first place.

1

1

Appendix 16 a

bank's summary process action.

As noted above, the bank no

longer claims to own any interest in the property and the bank's

claim to superior right of possession was moot once its property

interests were transferred.

In fact, at the time Elizabeth

filed her counterclaims, the transfer of the property was

already complete.

The Housing Court correctly noted that

"untethered from a claim for possession, the Housing Court is

without jurisdiction under G. L. c. 185C to adjudicate post­

foreclosure title issues pertaining to the validity of a

mortgage loan transaction or the validity of a foreclosure

sale."

Also as noted by the Housing Court judge, the defendants

are not without a forum to challenge the validity of the

foreclosure sale in a court of competent jurisdiction, and,

should the purchaser of the bank's interest bring a summary

process action, some of the bases of the counterclaims might

perhaps be raised as defenses and counterclaims there, something

about which, again, we express no opinion.

We also express no

opinion on the merits of the defendants' claims.

Conclusion.

Because the Housing Court did not have

jurisdiction to adjudicate either the summary process action or

the defendants' counterclaims, we affirm the orders entered

January 26, 2022, dismissing the plaintiff's amended complaint

with prejudice and the defendants' counterclaims without

1

*

Appendix 17 a

prejudice.

The order denying defendant Elizabeth D'Andrea's

motion for reconsideration is affirmed.

So ordered.

By the Court (Rubin, Neyman &

Walsh, JJ.7) ,

V

Clerk

Entered:

November 28,

2023.

7 The panelists are listed in order of seniority.

L

1

Appendix 18 a

Summary decisions issued by tne Appeals Court pursuant to M.A.C. Rule

NOTICE:

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale, Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent, See Chace v, Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008) .

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-931

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,1

. vs .

GRACE RUNGU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal relates to a postforeclosure eviction.

The

defendant, Grace Rungu (Rungu):--1 is the former owner of a

residential property of which the plaintiff, Deutsche Bank

National Trust Company (Deutsche Bank), trustee, is now the

record owner.

After a series of cross motions for summary

judgment, a judge of the Housing Court awarded possession and

use and occupancy payments to Deutsche Bank.

In Rungu's pro se

appeal, she makes several claims including that the judge of the

Housing Court erred in granting summary judgment in favor of

Deutsche Bank.

Background.

Finding no error, we affirm.

In March of 2004, Rungu1s husband, Norman

Emond, as the surviving joint tenant, became the sole owner of a

1 For Morgan Stanley Home Equity Loan Trust 2006-03, Mortgage

Pass Through Certificates, Series 2006-3.

»

;

Appendix 19 a

two-family home located at 44-46 Keene Street in the city of

Lowell

(the property).

In June of 2004, Emond borrowed

approximately $185,000 from Optima Mortgage Corporation that was

secured by a mortgage granted to Mortgage Electronic

Registration Systems, Inc.

Mortgage Corp.

(MERS), as nominee for Optima

Prior to his death in 2005, Norman Emond was in

default on the mortgage loan.

Rungu purchased the property at

foreclosure, signing a mortgage in 2006 for approximately

$210,800. 2

For about three years Rungu, for the most part, was

able to pay the mortgage.

Unfortunately, she then experienced

financial difficulties and completely stopped paying the

mortgage in 2009.

Deutsche Bank.

That same year, Rungu's loan was assigned to

In 2017 Deutsche Bank sent notice to Rungu

pursuant to G. L. c. 244, § 35A, to cure her default and

information about her right to seek modification of the loan.

Rungu did not cure the default and did not modify her monthly

payments and in 2018 Deutsch Bank pursued foreclosure.

At the

foreclosure sale, Deutsch Bank was the highest bidder and

purchased the property for approximately $300,000.

Deutsche

2 In her answers to interrogatories, Rungu denies that she bid on

the property and claims that her attorney at the time committed

In the statement of facts contained

fraud and signed her name.

in her brief, however, she states that she signed the mortgage

and note.

2

I

Appendix 20 a

Bank then commenced this action in the Housing Court for

possession and use and occupancy payments.

Discussion.

On appeal, Rungu presents eight arguments with

several sub-arguments and then attempts to preserve another

eighteen arguments for "future argument."

We note at the outset

that the defendant, while acting pro se, is still required to

abide by the Massachusetts Rules of Appellate Procedure and is

held to the same standard as litigants represented by counsel.

See Maza v. Commonwealth,

423 Mass. 1006,

1006 (1996).

While we

have offered some leniency to Rungu in her filings, her brief

does not come close to presenting an acceptable appellate

argument — it does not contain one citation to the record

appendix, the record appendix is mostly unnumbered, and her

brief does not comply with page limitations, to mention just a

few.

Her failure to substantially comply with the rules of

appellate procedure leaves us in a position that we are unable

to analyze most of her arguments.

We are not required to

consider appellate arguments that fall below' a minimal quality

of competent legal argument.

See Zora v. State Ethics Comm'n,

415 Mass. 640, 642 n.3 (1993); Mass. R. A. P. 16

appearing in 481 Mass. 1628

(2019).

(a)

(9), as

As a result, we are lacking

both a factual basis and legal argument with citations to the

record and authorities to permit meaningful appellate review of

most of the issues raised on appeal.

3

f

r

Appendix 21 a

However, given her pro se status, we have reviewed the

entire record and arguments in order to determine whether we can

address any of the arguments raised on appeal.

There are only

two claims that Rungu has arguably presented sufficient legal

authority and evidence to be addressed:

first, whether the

.judge erred by failing to apply the correct standard for summary

judgment and second, whether the judge erred in relying upon the

affidavit of Melaney Atencio, the eviction manager at Deutsche

We address each in turn.

Bank.

1.

Summary Judgement standard.

Ritter v. Massachusetts Cas.

grant summary judgment de novo.

Ins . Co.,

439 Mass. 214, 215

We review a decision to

(2003).

We look to see whether

when "viewing the evidence in the light most favorable to the

nonmoving party, all material facts have been established and

the moving party is entitled to judgment as a matter of law."

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120

(1991) .

Rungu claims that the judge erred by deciding disputed

issues of material facts.

This claim fails because at least in

part, it relies upon an affidavit that was properly stricken

from the record as it was filed with the court after the close

of the hearing.

Rungu makes no argument that striking the

affidavit constituted an abuse of discretion.

Therefore, the

only "disputed" facts are Rungu's own self-contradictory

statements and affidavits, which are insufficient to survive

4

►

\

Appendix 22 a

summary judgment.

The nonmoving party cannot defeat a motion

for summary judgment by submitting self-contradicting affidavits

because they are insufficient as a matter of law to create a

See Locator Servs. Group Ltd.

genuine issue of material fact.

v. Treasurer & Receiver Gen.,

443 Mass. 837, 864

(2005) .

Finally, that some facts are in dispute will not defeat a

motion for summary judgment.

"The point is that the disputed

Janzabar, Inc, v. David Crystal,

facts must be material."

82 Mass. App. Ct. 648, 649

(2012), quoting Hudson v.

Commissioner of Correction,

431 Mass. 1, 5

(2000).

Inc.,

Rungu has

not made that showing here.

2.

Atencio affidavit.

The defendant claims that summary

judgment should not have entered in favor of the plaintiff

because Melaney Atencio's affidavit (the eviction manager for

the loan servicer for Deutsche Bank), failed to attest to

personal knowledge of the facts contained in her affidavit and

instead averred that certain facts were "upon information and

belief."

Rungu is correct that Mass. R. Civ. P. 56

(e), 365

Mass. 824

(1974), requires that an affidavit submitted in

support of summary judgment must be based upon personal

knowledge of facts that would be admissible in evidence.

"A

useful rough test for evaluating the evidentiary sufficiency of

an affidavit is simply:

If the affiant were in court,

testifying word-for-word, ip accordance with the contents of the

5

I

Appendix 23 2

affidavit, would the judge sustain an objection on any ground

whatsoever?

If the answer is 'Yes' or even 'Probably' the

affidavit is at risk."

§ 56.6, at 281

J.W. Smith & H.B. Zobel, Rules Practice

(Supp. 2022-2023).

First, we note that the proper procedure would have been

for Rungu to have filed a motion to strike the affidavit.

See

Fowles v. Lingos, 30 Mass. App. Ct. 435, 439-440 (1991) .

Second, and the reason that Rungu's, argument cannot succeed, is

that when read in its entirety, the affidavit states that

Atencio had personal knowledge of the information provided in

the affidavit as she was the eviction manager for Deutsche

Bank's servicer and was familiar with the documents that she

attached to the affidavit.

See First Nat11 Bank of Cape Cod v.

North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790, 793-794

(1979).

There was no error by the judge as her affidavit was

sufficient.

For these reasons, we affirm the judgments.

Judgments affirmed.

By the Court (Milkey, Walsh &

Smyth, JJ.3),

J§.

Clerk

Entered:

June 9, 2023.

3 The panelists are listed in order of seniority.

6

!

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'!L*

FAR-29662 - Notice: FAR denied

SJC Full Court Clerk <SJCCommClerk@sjc.state.ma.us>

Fri, Apr 19,

1:11 PM

Supreme Judicial Court for the Commonwealth of Massachusetts

Telephone

RE:

Docket No. FAR-29662

MARGALY PHILIPPE

vs.

WELLS FARGO BANK, N.A., trustee

Plymouth Superior (Brockton) No. 2022-J-0054; 2183CV00821

A.C. No. 2022-P-0727

NOTICE OF DENIAL OF APPLICATION FOR FURTHER APPELLATE REVIEW

Please take note that on April 18, 2024, the application for further appellate review was denied.

Very truly yours,

The Clerk's Office

Dated: April 19, 2024

To: Margaly Philippe

Kevin Polansky, Esquire

Peter M. Ayers, Esquire

V

GRACE C ROSS

10 Oxford St. #2R

Worcester, MA 01609

774-239-3640

No. App. No. 24A470

AFFIDAVIT OF SERVICE

I, Grace C Ross, of lawful age, being duly sworn, upon my oath state that I did on the 2nd day of

January, 2025, send out from Worcester, MA 01609 package(s) containing XXX copies of the

PETITION FOR WRIT OF CERTIORARI in the above entitled case. All parties required to be

served have been served by First Class Mail. Packages were plainly addressed to the following:

Jennifer Marie larocci, Esq. (#XXX)

Marinosci Law Group, PC

275 West Natick Rd. Suite 500

Warwick, RI 02886

Shawn Michael Masterson, Esq. (#XXX)

Cohn & Dussi, LLC

255 State Street 7th Floor

Boston, MA 02106

Patrick M. Toney, Esq. (IfXXX)

Harris and Associates, P.C.

57 Wendell Ave.

Pittsfield, MA 01201

Steven Michael Stoehr, Esq. (#XXX)

Phillips & Angley

1 Washington St. Suite 7A

Boston, MA 02108

Kelsey Bagge Esq. (#XXX)

Demerle & Associates, P.C.

10 City Square

Boston, MA 02129

Kevin Patrick Polansky, Esq. (#XXX)

Jeffrey B. Loeb, Esq. (#XXX)

Lyndsey Stults, Esq. (#XXX)

Nelson Mullins Riley and Scarborough, LLP

One Financial Center Suite 3500

Boston, MA 02111

V

Peter M. Ayers, Esq. (#XXX)

49 Baldwin St. Unit 1

Charlestown, MA 02129

Dali in Rex Wilson, Esq.(#XXX)

Seyfarth Shaw LLP

Seaport East

Two Seaport Lane Suite 2000

Boston, MA 02110

Christine Kingston, Esq. (#XXX)

Nystrom Beckman and Paris LLP

One Marina Park Drive

Boston, MA 02210

Signed under pains and penalty' of perjury,

2Z

Grace C Ross

10 Oxford St. #2R

Worcester, MA 01609

Date: January 2, 2025

i

Appendix 24 a

BANK NATIONAL ASSOCIATION v. THERESA

CHERRY (2023)

Appeals Court of Massachusetts,

U.S. BANK NATIONAL ASSOCIATION, trustee,! v. THERESA A. CHERRY.2

22-P-248

Decided: October 23, 2023

By the Court (Rubin, Neyman & Walsh, JJ.10)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from a judgment entered in favor of the plaintiff, U.S. Bank National

Association, in a summary process action in the Housing Court. A single justice of this

court denied defendant Theresa Cherry's subsequent motion to stay the eviction

pending appeal. This appeal followed. We affirm.3

Background. As far as we can discern from the record,4 the underlying summary

process action commenced in December 2018. On May 3, 2019, a judge of the Housing

Court entered a summary process judgment for possession in favor of the plaintiff.

Cherry and one of her codefendants in the underlying action, Robert Dansereau, timely

appealed and sought a waiver of the appeal bond. On May 31,2019, a judge of the

Housing Court issued an appeal bond order. A single justice of this court affirmed the

order, and Cherry and Dansereau appealed. Cherry and Dansereau then failed to comply

with the appeal bond order, and, on July 9, 2019, their appeal was dismissed. That same

day, an execution for possession was issued in favor of the plaintiff. Cherry and

Dansereau sought and were granted a stay by a judge of the Housing Court allowing

them until August 31,2019, to vacate the property. Cherry and Dansereau failed to

vacate the property.

On September 10,2019, Dansereau filed a Chapter 7 bankruptcy petition that triggered

an automatic stay. The plaintiff was relieved from the automatic stay and, on January

29, 2020, issued a new execution for possession.

The plaintiff moved for issuance of an alias execution on December 21, 2021, and a

hearing was scheduled for January 10, 2022. On January 10, 2022, Cherry filed a motion

to postpone the hearing due to contracting COVID-19. A judge of the Housing Court

Appendix 25 a

denied that motion, held the hearing on January 10, 2022, and allowed the plaintiffs

motion to issue an alias execution.5

On February 10,2022, Cherry filed a motion for stay pending appeal pursuant to Mass.

R. A. P. 6 (a), as appearing in 481 Mass. 1608 (2019), with a single justice of this

court.6 On February 24, 2022, the single justice denied Cherry's motion in a written order,

determining, inter alia, that "the Housing Court judge did not abuse her discretion or

make an error of law in holding the hearing on {January 10, 2022] or in allowing the

plaintiffs motion to issue the execution."z The single justice highlighted Cherry's failure

to demonstrate a likelihood of success on the merits of her claim that the Housing

Court judge abused her discretion in denying Cherry's motion to stay the eviction,6 The

single justice subsequently denied Cherry's motion for reconsideration. Cherry filed a

notice of appeal of the single justice's order on March 11,2022.

Discussion. The record before us does not include the motion to stay brought before

the single justice. See note 6, supra. Nonetheless, we review the February 24, 2022,

single justice order "for errors of law and, if none appear, for abuse of discretion." Troy

Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010). A judge's

discretionary decision constitutes an abuse of discretion where we conclude the judge

made "a clear error of judgment in weighing the factors relevant to the decision . such

that the decision fails outside the range of reasonable alternatives" (quotation and

citations omitted). L.L. v. Commonwealth, 470 Mass. 169,185 n.27 (2014).

The defendant contends that the single justice erred in denying her February 10,2022,

motion to stay pending appeal. In order to succeed on a motion to stay pending appeal,

an appellant must successfully demonstrate "(1) the likelihood of appellant's success

on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the

stay; (3) the absence of substantial-harm to other parties if the stay issues; and (4) the

absence of harm to the public interest, from granting the stay." C.E. v. J.E., 472 Mass.

1016,1017 (2015), quoting J.W. Smith & H.B. Zobel, Rules Practice § 62.3, at 409 (2d

ed. 2007).

We discern no abuse of discretion. In weighing the relevant factors, the single justice

denied the motion because the defendant did not demonstrate a likelihood of success

on the merits of the appeal. On the record before us we do not disagree. The defendant

references no facts demonstrating that the single justice's ruling was outside the range

of reasonable alternatives or an abuse of discretion. See Gifford v. Gifford, 451 Mass.

1012,1013 (2008), quoting Mezoff v.' Cudnohufsky, 5 Mass. App. Ct. 874, 874 (1977)

("'Rarely, if ever, can it be said that a single justice is in error in denying relief under

Mass. R. A. P. 6"). To the extent that the defendant asserts that the denial of her motion

to stay violated her equal protection rights and denied her a reasonable

accommodation, we disagree. The Housing Court judge did provide a reasonable

accommodation to the defendant in allowing defendant Cherry to appear for the

January 10, 202.2, hearing via Zoom, which she did. The defendant's conclusory and

often contradictory arguments do^not,demonstrate otherwise.

Appendix 26 a

Finally, to the extent that the defendant argues that the Housing Court judge was

required to continue the January 10, 2022, hearing because the defendant had COVID

(and that because she was disabled because of COVID, she was entitled to a lengthy

stay), the argument is likewise unavailing. The defendant failed to provide a copy of the

January 10, 2022, hearing transcript. On the record before us we are unable to discern

any violation within the meaning of Adjartey v. Central Div. of the Hous. Court Dep't, 481

Mass. 830,849 (2019), or G. L. c. 93, § 103 (a), much less that the single justice abused

her discretion.9

Order of the single justice affirmed.

FOOTNOTES

3.

We acknowledge the amicus brief submitted by the Disability Law Center.

4. Our review is hampered by the confusing and unclear record provided by the

defendant on appeal.

5. It appears that the plaintiffs representatives appeared in person at the January 10,

2022, hearing while defendant Theresa Cherry appeared at the hearing via Zoom.

6. The Appeals Court single justice docket contains an entry dated February 10, 2022,

indicating "Motion for stay underM. R. A. P. 6 (a) filed by Theresa Cherry." Again, as far

as we can discern, this is the motion for stay that was before the single justice and that

is now the subject of the present appeal. However, the defendant failed to include a

copy of that motion in the record appendix or elsewhere in the appellate record.

7. The single justice also issued an order on February 11,2022, allowing the

defendant's motion to file a one-day late notice of appeal under Mass. R. A. P. 14 (b), as

appearing in 481 Mass. 1626 (2019), from the Housing Court's January 10, 2022,

orders.

8. The single justice, in her discretion, did "grant a stay on the levy on the execution to

[March 7, 2022], after which time the plaintiff may levy on the execution obtained from

the Housing Court." The single justice further ruled that "No further stays from this court

should be anticipated."

9. To the extent we do not discuss other arguments made by the parties, they have

not been overlooked. "We find nothing in them that requires discussion."

Commonwealth v. Domanski, 332 Mass. 66,78 (1954).