-: SJC-13497, Raymond Frechette,
and another, v. Elizabeth D'Andrea and others.
(podium taps)
-: [Chief Justice Budd] Okay, Attorney Wasser.
-: May it please the Court,
Attorney Brian Wasser, for the defendant, (clears throat)
excuse me, Elizabeth D'Andrea.
Your Honors, we're asking the Court today
to find and rule that it's a deprivation
of constitutional due process,
equal protection, and Article eleven's guarantee
of free and unfettered access to our courts
for a trial court sitting
in a summary process appeal context
to fail to apply the Indigent Court Costs Law
to otherwise unaffordable periodic payments
issued under chapter- -: Those are payments.
Those are payments, right, for...
(Justice Kafker chuckles)
You know, you don't get to live for free, right?
The mortgage here was not being paid, correct?
-: It was being paid up until the mother's demise
and then thereafter, yes. -: Mother paid-
Attorney Wassel: Correct.
-: the mortgage.
But once your client was living in the house
without the mother,
there's no payments of the mortgage, right?
Attorney Wassel: That's correct.
-: So the use and occupancy has a purpose too, which is,
you know, there's another party involved.
They own the house at this point.
I understand it's being challenged,
but the use and occupancy is not a fee or a cost,
it's to ensure payment.
So again, you don't live for free.
If someone isn't able to pay those mortgage payments
or isn't able to pay rent,
they're gonna lose the house anyway.
They're gonna lose their tenancy anyway, in many respects.
So that's a factor we have to consider, isn't it?
That adds rational basis
to why you have to pay use and occupancy,
even if you're indigent.
Because even if you were not in this lawsuit,
you would be paying rent or paying your mortgage.
-: Well, I think we can't take the prospective effect
of what's gonna happen in the future.
-: But that's what...
Use and occupancy is not focused on penalizing the case.
It's focused on the fact
that somebody is having to pay rent or mortgage or...
And, you know, we can't ignore that.
And all your briefing seems to ignore that.
-: Well, I don't ignore that, Justice Kafker,
and I appreciate the question.
I don't view use and occupancy, excuse me.
I don't view use and occupancy as a penalty in any way.
And what you're talking about
is kind of like a balancing of interest,
and the legislature-
-: It's not a cost,
it's got a separate purpose from, you know,
a bond or an attorney's fee, you know, or a cost.
I just feel like it's lost in the briefing.
And it's lost in the briefing
that there's another party involved who owns this house
that they're not occupying, that's paying taxes.
But go ahead, I've cut you off.
-: So yeah, ultimately we have to consider the possibility
that they're successful on appeal,
and then we see that they're rightfully in possession
based on their own fee simple title.
I think that this balancing of equities you're referring to
is already embodied in the Indigent Court Costs Law.
The legislator kind of contended with that
by saying that if we do waive use and occupancy,
or if the Commonwealth pays for it,
then under 27E, there's an obligation to repay it.
There's a lien on the lawsuit.
But, (clears throat) you know,
ultimately, it's not about how you rationalize
what use and occupancy is for,
you know, this court's first step.
-: You concede correctly that it's not strict scrutiny,
the constitutional analysis here,
it's a rational basis review, right?
-: No, Your Honor, I would disagree with that.
I think it's strict scrutiny.
-: I thought maybe it's the advocate's briefs
that are applying rational basis, certainly.
What's the basis of a strict scrutiny
on the constitutional right here?
-: Well, first stop, I would say is,
what's the Commonwealth's state legitimate interest
in providing, you know, post-judgment security?
-: You're saying we should apply strict scrutiny.
Is there a fundamental right or a-
Attorney Wasser: Yes, Your Honor.
-: It's a fundamental right?
-: Under Article 11, it's the fundamental right
to access the courts freely without having to purchase it.
And it's the Indigent Court Costs Law,
is activating those fundamental rights.
It's the legislator's expression
to activate those fundamental rights.
-: Well, we've always applied rational basis in that area,
unless it's a fundamental right
that's being litigated over, like incarceration or some...
But again, we'll double check the case law,
but you got cases
that say that we apply strict scrutiny to Article 11
in this kind of context?
-: I believe it's in the briefing, Your Honor,
but I can look up-
-: Just go ahead. I don't mean to distract you, go ahead.
-: Okay, Your honor, thank you.
So I think the key point here, so the lower court's decision
read section 5E's plain language
as essentially resulting in a conclusion
that periodic payments are ultimately exempted
from the application of the Indigent Court Costs Law.
Now, I'm gonna do a dive into 5E with you,
but before we get into that,
I think it's important for this court to understand
that even if it agreed with the lowest court
that the plain language suggested
that the Indigent Court Costs Law would not apply
to pre-periodic payments,
that it would still have to ignore,
it wouldn't really matter what the plain language
of Section 5E is.
And the reason for that
is because this court's first loyalty
is to the Constitution.
So the court has to start with Article 11
as the superior law, the supreme law,
and then look down at these other statutes
and make sure that they're being interpreted
and applied in harmony with Article 11.
-: [Chief Justice Budd] And again,
that's if we're applying strict scrutiny, right?
That's your position, right?
-: Yes, Your Honor.
-: What if we don't agree with you,
and we find that it's actually rational basis?
Do you still prevail?
-: Yes, the song remains the same, Your Honor.
As this court did in the 1971 case,
a Damaskos versus Board of Appeals,
that's on the other side of the spectrum
of what we're here today.
That had to do with constitutional non-deterrence.
In that case, the appellant could well afford
to pay the appeal bond,
but the plain language of the applicable appeal bond statute
resulted in an appeal bond that was so high
that the court found that it was unduly deterrent
of meritorious appeals. -: That's an appeal bond
versus use in occupancy,
which Justice Kafker pointed out
as a completely different purpose.
It's completely different.
-: I agree, but from the eyes,
from the perspective of a litigant who is scared,
struggling to be able to afford,
to take what they consider to be a meritorious claim appeal,
they've got a shot of this appeal being successful,
and they're going in afraid
that they're not gonna be able to afford it.
All these costs are being thrown at them.
And so from the eyes...
You know, constitutional fundamental civil rights
is very much a result-oriented game.
And so when you put yourself in that person's position,
they go into the summary process court.
and the court says, "Well, congratulations,
we find that you're subject to the protections
under the Indigent Court Costs Law."
And for a mortgage or a homeowner, waiving the appeal bond,
the appeal bond is use and occupancy.
And so they say, "We're gonna waive use and occupancy."
And then they sort of do this hokey pokey, you know,
they turn around, and they give some legal ease
and talk about Section 5E to this poor suspecting homeowner.
-: You know, we interpret the law,
so I don't know, the hokey pokey legalese stuff
is kind of why we're here, right?
-: From the perspective of the party
who cannot afford these expenses.
-: But the litigant is gonna have
a series of expenses, right?
-: That's right. -: They're gonna need to pay
use and occupancy maybe, there's the appeal bond,
there's the cost for a deposition,
there's supplying- -: Transcripts.
-: yeah, transportation to and from the courthouse.
There's gonna be food for daily consumption.
There's all sorts of costs associated
with living while you are litigating.
I don't see the indigent court costs provisions addressing
the regular daily life costs.
They're costs of the expenses of the litigation,
the expenses that arise from the litigation,
not from living.
And so I think what Justice Kafker was saying
is that use and occupancy is one of those costs of living
that really doesn't fall under litigation.
And can you just address that?
Why is this the same as a deposition expense?
-: Because when there's a dispute
between a mortgagor and a mortgagee, sometimes, you know,
they need to get on the same page.
It needs to be some resolution
so that these payments can continue,
and they have to come up
with whatever the affordable payment's gonna be,
whatever the agreement's gonna be.
But they have different claims,
one side saying, "You owe the money,"
the other side saying, "You made a mistake."
And then a lot of times, unfortunately,
the banks ignore these processes,
and they didn't have the in-person meeting
that was required under FHA.
And so during that process, that's where
if the banks really wanna protect their interests,
they can work with the homeowner, sort out these claims.
Otherwise, they do have to be litigated.
And, you know, under normal circumstances,
the homeowner would be making payments as a mortgage,
not as use and occupancy, but, you know...
Yeah,
-: But again, so Judge Winik,
very experienced housing court judge,
he wipes out all the litigation costs.
You know, he treats your client as indigent,
and those costs are assumed by the state,
but he treats the use and occupancy rightfully,
at least I think, as different,
just as Justice Wendlandt says, "a cost of living,"
which your client hasn't paid for indefinitely, right?
You've lost the first case. It's on appeal.
No payments have been made for a number of,
how many years has it been since a payment was made
on this house?
And somebody else is paying for all of that.
They're paying the mortgage, they're paying the taxes.
And your indigency is not completely not considered
in terms of setting the use and occupancy,
one of the factors that a judge can consider
in the use and occupancy, right?
Attorney Wasser: Yes, Your Honor.
-: So it's not completely out of consideration,
but again, we're focused on the fact
that someone's living in this house
that's not, at least at the first stage of litigation,
the person who rightfully should be there, living for free.
This mortgage isn't being paid.
There's no rational basis
for saying they have to pay use of occupancy,
you know, if they're indigent.
I just don't see that.
-: It's because Your Honor, unfortunately...
And my client doesn't want a free house.
She wants to pay, but sometimes you can't negotiate.
Sometimes the banks aren't there to work with you
and to resolve what the disputes are.
But, you know, to dive in onto Section 5E,
let's look at the plain language, if you will.
It's on page 130 of our addendum, if you wanna follow along.
But I'm gonna start reading
from where the appeal bond has just been waived.
-: Counsel, I'm sorry to interrupt you there,
but could we just switch back
to the indigency court cost statute
before- -: Yes.
-: And could I just give you a chance
to give your best argument
vis-a-vis the statutory language there,
why these kinds of payments are quote,
"a document service or object,"
which is the phrase that the statute uses,
not just in 27C, but also 27F and 27G,
to talk about the scope of the costs
that can be waived or that the state will pay.
Those are, you know, for documents, services, or objects.
So, what's your best case for use and occupancy payments
falling under that?
-: Well, it's different
depending on whether the litigants will say,
like "landlord, tenant" or "mortgagee, mortgagor,"
but to answer your question, Your Honor,
this statute is supposed to be liberally construed
to effectuate its remedial purpose.
And its remedial purpose ultimately traces back
to Article 11's guarantee that you'll be able to access
and bring meritorious appeals
even if you can't afford to pay for.
-: Well, Counsel, we're not at liberty
to just rewrite the statute.
So are you conceding
that there isn't really a reading of document service
or object that includes using occupancy payments?
-: Yeah, I believe that that's broadly construed.
So I don't know how you would define
each and every one of those terms, but, you know,
it could be, fall under service, it could fall under object.
I don't know what they mean by "object," specifically,
but I can know from the legislative history that the evil,
what they're trying to prevent,
is any expense, however we wanna label it,
from preventing poor litigants or people of modest means
from getting all these expenses held up on them
so that they can't access the courts.
-: But as I look at the Indigent Court Costs Law,
it doesn't cover...
It has the salutary language, like you said,
about not having the doors of the courthouse closed
to the poor.
But we have lots of cases
that look at the text of the statute and say,
"This is covered, and this,
even though you're poor, is not covered."
One that comes to mind is post-conviction testing,
in a criminal context.
There's about three or four cases that I know of
that say it's not covered by the Indigent Court Costs Law.
Even though, you know,
your DNA testing probably should be done,
but we can't cover it, the statute doesn't allow,
and the court has closed the door
to the indigent NEG circumstance.
So when you say it has to be broadly construed
to cover all circumstances,
I don't know if that's actually true
when you look at our cases interpreted in that statute.
-: Well, I think it's part of the statutory scheme,
and we actually can look at Section 5E-
-: I agree with you, we look at the statutory scheme,
and we look at the words as it's Justice Dewar said about,
you know, let's look at the words
to see what's covered or not covered.
That's what we're trying to get you to do,
rather than it it's an automatic,
'cause it isn't based upon that case law.
-: Well, the Indigent Court Costs Law
provides for three remedies, waiver; substitution,
which is basically just reducing the cost of something;
or payment by the Commonwealth.
And I submit that the plain language of Section 5E
provides for those reliefs for periodic payments under-
-: You don't have to pay any use in occupancy,
or a dollar or, you know, three do...?
I'm just trying to understand where you're going.
-: No, your Honor, it's not necessarily,
it's just that if it's waiver, then no.
If it's-
-: If you're indigent, right?
Attorney Wassel: Mm-hmm.
-: Your view is nothing, right? Zero.
I'm just trying to make sure I understand your argument.
-: Any rent is just, any portion of the rent is just,
it's gonna be a violation of your right
to pursue a litigation under Article 11.
Attorney Wassel: Rents are special-
-: Keeping in mind that Judge Winik did take a look
at the circumstances, right,
and looked at what made sense in this situation?
-: Yes, but I think Judge Winik misread,
with all due to respect, the plain language of Section 5E.
-: But if you'll answer Justice Kafker's question,
you're saying that as long as you're indigent,
you don't have to pay anything?
-: Well, indigent is a defined term.
It could be that you can't pay something
without depriving yourself of necessity.
So you might do...
Substitution means you're paying something.
So it could be that you are paying something.
Landlord and tenants is a very different situation
in respect to my sister who'll be com-
-: I just wanna make sure I get what you're saying.
If you're indigent, your view is basically nothing,
'cause you can't pay court costs,
which are limited, hundreds of dollars.
You're certainly not gonna be able to pay rent
or mortgage payments.
So I just wanna make sure we understand your argument.
You're basically saying no use in occupancy
for someone who's indigent.
-: So for a tenant, that's not always the case.
Sometimes they are continuing to pay rent
while they're disputing their lawsuit.
-: But they're not paying use and occupancy,
they're paying their rent.
-: Well, I'm talking about mortgagees, excuse me,
mortgagor now, so yes, in that context.
Your Honors, the plain language of Section 5E.
-: It would be really helpful just to know that,
are you arguing that an indigent plaintiff
owes no use and occupancy?
-: In some cases, yes.
-: In most cases, right?
-: I don't know the statistics.
I don't know that's to be true, but-
-: Take it if you're indigent. -: If they're indigent, yes.
-: What's the standard for indigency? How much money is it?
-: Well, there's different tests for indigency,
but the ultimate test is,
if you can't afford to pay something
without depriving yourself of necessities.
So in other words, the appeal bond itself
or the imposition of use and occupancy itself
could cause you to become classified as indigent.
So again, Your Honors, if I may-
-: Yeah, is it in the brief?
-: No.
-: [Chief Justice Budd] What you're about to say?
-: No, it's just, I just wanna go over it
with the statute language, if I may, with the court.
-: Oh, we've got that, though. Is everybody else set?
-: Well, I'm just showing
where the statute calls for waiver and substitutions.
It's written right in the Section 5.
-: Thank you so much.
Attorney Wassel: Thank you, Your Honor.
It's been both a personal and professional privilege
to argue before you today.
-: Thank you. -: Thank you.
-: Okay, Laura Kamara.
-: Good morning, Your Honors.
May it please the court, Laura Kamara
for amici South Coastal County's Legal Services,
and its subsidiary,
the Justice Center of Southeast Massachusetts.
I'd like to jump right into the bulk of the discussion
that this court was just having.
Our position is that use and occupancy in this context
is not simply a necessary life expense.
The legislature has seen fit in 239 5E
to make it a condition on continuing on with an appeal
to pay all or a portion of the rent that is owed.
And so that does separate it out
from just being a life expense.
It is making it a condition of the appeal.
And for that reason, as well as the clear language
of the Indigent Court Costs Law,
which includes appeal bonds as a-
-: This is not an appeal bond, though.
It's different, and it serves a different purpose.
It may have an effect on your ability to pursue,
but again, they've been found indigent,
so no costs are imposed, no things we consider costs,
and anything we think, as Justice Winik said,
"logically related to costs."
But can I ask, your view is it's rational basis, right?
I read your brief.
Laura: Yes, Your Honor.
-: So the constitutional standard we have to meet
is rational basis, not strict scrutiny.
Laura: Yes, Your Honor.
-: Okay, so why is this irrational?
-: It is irrational because to order someone to pay
what they are unable to afford
strips them of a right of appeal
that the legislature has deemed fit to provide.
-: The legislature has deemed fit,
has said you should pay use and occupancy
or a portion of it, right?
They've said the exact opposite.
And furthermore, you've gotta be able to pay your rent
or pay your mortgage anyway.
Isn't that something we have to consider here?
This mortgage is not being paid, right?
Your opponents own this house and are paying taxes,
but don't have any rights to it.
They can't get in it, right?
So, does that provide for a rational basis
for a use and occupancy payment?
-: Our position is not that you should have to pay nothing.
Our position is that the legislature provides
that you pay all or a portion.
It is our position that that portion,
in order to pass rational basis, must be affordable.
And that when you read 239 5E
with the Indigent Court Costs Law,
we can satisfy the purposes of the legislature in both acts,
that we can ensure that nonfrivolous appeals are deterred.
In this case, these are appeals
that have already been determined to be non frivolous.
And with utilization of the Indigent Court Costs Law,
we can protect the plaintiff.
-: How do you, again, in the abstract,
again, under Davis and King,
you can consider the ability to pay as a factor.
But if this person is indigent.
what are you saying they pay?
I'm just trying to understand.
You say you can do it,
but again, there's a mortgage not being paid,
and there's rent not being paid.
How does this work?
-: And Counsel, can I just bootstrap off of this
because I think it's important.
Is this a remand case?
Because you're saying that they should have to pay something
that they can afford,
that whatever the use and occupancy payment is,
it can't be something that's prohibitive
in allowing the defendant, in this case,
to pursue the appeal.
Judge Winik, in this case, did give a reduced number
from what the testimony was, the fair market,
but there wasn't any specific finding
that she could pay this.
So, is this just a remand case?
-: Yes, Your Honor.
It is a remand, but we would suggest with the directive
that use and occupancy must be set at an affordable level
and that the Indigent Court Cost Law can be, and should be,
resorted to where that affordable level
unreasonably burdens the plaintiffs.
The statutory purpose of both acts
is to ensure that meritorious appeals go forward.
And in the case of 239/5, to present harm-
-: The rent and mortgage payments are being made
consistent with the factors we set out in Davis,
right, and King.
So, and those factors are not
that it all goes away of your indigent,
because somebody is,
that person would otherwise be making payments, right,
they'd be paying their mortgage, they'd be paying rent.
-: So, Your Honor, if I may just take the time to respond
to I think what is kind of at the heart
of part of your question,
that indigency should be assessed as we present it.
It should be assessed
with the consideration of that payment.
So, to state it more clearly,
when considering your ability to pay,
you're looking pursuant to 27 A
of the Indigent Court Cost Law.
You're looking at your ability to pay
for the necessities of life.
We are not suggesting
that you would not include the use and occupancy
as a necessity of life in making that assessment.
So, in other words, the court should be looking at,
in determining what use and occupancy could be
at an affordable level, should be looking at,
"Okay, what other expenses do you have?"
And what does that leave
to pay towards the use in occupancy?
And in many cases,
-: It's almost nothing, right?
In your view, it should be 0 to 50 or 0 to...
It's not anything to do with the rent or mortgage, right?
I just wanna make sure I understand what your position is.
-: So, I would, as a legal aid lawyer,
speak from my personal experience,
that my clients by definition are indigent.
Many of them, most of them,
pay the vast majority of their rent
and are able to pay the vast majority of their rent
despite being indigent.
-: So then Judge Winik was correct, right?
I'm just trying to understand, if that's the case,
he's ordered something
that most clients should be able to pay,
especially those who own the home,
which tend to be at a higher level
than the clients you represent.
-: Judge Winik could have been correct,
but he did not consider, first,
that he must set an affordable level.
And that is our position.
-: How do you know that, that he didn't consider that?
-: Based on the decision, it does not appear
that he specifically made a finding
that he was setting a level
that he perceived to be affordable.
-: So, you're saying he has to make findings?
I mean, why isn't this an abusive discretion issue?
-: It is our position that the level must be set
at an amount that is affordable
and that there must be a finding that it is affordable
in order to pass to pass rational basis review as applied.
-: And again, you do this daily
in those very busy housing courts where this issue comes up.
I take it, a fair amount.
Laura: Yes.
-: You're saying they have to make
sort of written findings on what?
-: They must set the use and occupancy
with the parameter that it is affordable.
And so there needs to be a finding under 27A
that the amount they are setting is affordable.
And that amount, again, in many cases,
is going to be close to the rent, a portion of, not zero.
The vast majority of my clients
as individuals already paid. -: But that's Judge Winik did,
because there was testimony as to what the fair market value
of the monthly rent would be.
And he didn't order 100% of that dollar.
It was some portion there of a couple hundred bucks off.
So if we even take your personal experience,
what is wrong with what the amount that was set here?
And why isn't that something that the judge could order
for use and occupancy payments pending the appeal?
-: So the amount in question represented
about 60% of the individual's income.
Depending on other life expenses,
that very well could be too high.
But I think what we are focused on
is setting a clear standard for judges
that it must be affordable.
Not just a factor
as is currently laid out in King and Comerford,
but a controlling factor.
-: Can I give you a hypothetical?
And if we look at this case,
and we have the mother who was the original tenant
who had a source of income, and then we have your client,
or the client, I'm sorry, the client that has some income;
and your equival was with what Judge Winik did
as far as the percentage goes and the 60%,
If the holdover tenant,
say the mother passes away,
and now that we have the holdover tenant,
and that person is unfortunate enough
to have zero income, right?
This is, I guess, at the extremes of this.
Would your argument be
that a judge could not set
any use and occupancy
because a person is at the extremes of indigency
even for your clients?
-: Our position would be
that in order to comply with 239 5E to set a portion,
the judge should in that instance set a token amount
-: Okay, thank you. -: for payment.
-: Okay. All right.
-: Thank you. -: Thank you all.
-: Okay, Attorney Mitson.
(papers rustling)
-: Good morning, Your Honors. My name is Robert Mitson.
I represent the appellees.
If I may please congratulate Justice Dewar,
congratulate Maddie.
Good luck to both of you.
Judge, if I may refer to the appellees as the owners,
the property relates to a single family residence
located in Webster, Massachusetts,
which my clients obtained by deed in December of 2019.
The property was occupied by what I would fairly describe
as holdover tenants or tenants at sufferance.
I engaged in a summary process
that was filed in the Worcester Central Housing Court.
After some fairly robust discovery,
I moved for summary judgment, which was granted.
While that motion was pending,
I move for interim use and occupancy payments.
That motion was granted
after a very sufficient evidentiary hearing.
It included expert testimony, condition of the house,
habitability issues, certainly the income of the occupants,
which may I point out, at the time were four occupants.
That may in part explain the deviation
between the interim use and occupancy
and the use and occupancy that was ordered post-judgment.
-: I'm sorry, because some of them had vacated by then?
-: Yes, Your Honor. -: Okay, thank you.
-: The court has some clear guidelines,
and there are three sources.
One guideline here is Bank of New York Mellon versus King.
The other is Davis verses Comerford.
And the other is the clear legislative intent
outlined in Chapter 239, Section 5 and 6.
The judgment was appealed, as we know.
I moved for an appeal bond, and I pointed out to the court
that none of the interim use and occupancy payments
had been made, not even a penny.
I'd also like to impress the court
that at no time did the appellant move-
-: And do we also have, in this record,
at least the trial record,
what the income of the tenant at sufferance was?
Attorney Mitson: Yes, Your Honor.
-: And what was that in the record?
-: Well, it was, I believe, Judge,
it was $1,100 per month from Social Security.
But the court did consider the income of the son,
a daughter, and another household occupant.
-: Oh, so I'm not interested in the mothers.
The mothers was $1,100
or were the person occupying the house
after the mother's death?
What is the income of the people living in the house
who were not meeting the- -: Yes, Sir.
Just as I stated, please.
-: $1,100 a month.
-: Yes.
And then there were, during the interim use and occupancy,
there were four occupants, three fixed sources of income,
and the son claimed had no income
'cause he was in between jobs, but he was doing odd jobs.
So what I wanted to point out
is that in exercising his discretion,
and I do believe this is an abuse of discretion issue,
Judge Winik considered the household income habitability
carrying costs such as taxes and insurance.
-: How do we know that?
'Cause he doesn't...
He does a very careful explanation of the statute
and why use and occupancy are not costs or fees.
But then when he sets the award,
we don't have a lot of detail there, right?
The plaintiff shall pay the plaintiff $1,275
for the monthly use and occupancy.
How do we know he's doing what you're saying here?
-: Yes, Judge, if we back up a little bit,
Judge Winik refers to the testimony of the expert witness
who opined that the fair market rental value
was approximately $1,700.
The court pointed to the carrying costs,
and he itemized those carrying costs, which included taxes,
insurance, and some assessments.
So he was quite pointed in his findings of fact,
and certainly in the colloquy,
not only during the motion for summary judgment,
but on the motion of the appellant
to waive the use and occupancy.
The colloquy was quite detailed,
and that transcript will certainly bear that out.
So the fact that he finds that there's $16,500 of unpaid,
that's important.
-: Certainly Judge, because under Comerford...
Comerford allows the use and occupancy calculus
to include how long rent has not been paid
and the dollar amount of that unpaid rent.
So this calculus is just not strictly affordability.
That was not the intent of the legislature.
And affordability is certainly a broad policy issue
that I think implicates many, many different discussions,
but it's clear what the legislative intent is.
If that appeal bond is waived,
how are we gonna balance the rights of the property owner
with the appellant?
-: Right, I'm just trying to discern, though,
so the income based on his opinion is $22,100 per month
for the two,
of D'Andrea and Jennifer Wilson together, right?
Attorney Mitson: Yes, Sir.
-: So that the people living in the...
And Jennifer Wilson is living in the house as well?
-: As was the son.
-: Right, who's not got no earnings
-: At that moment, yes, Judge. He was in between jobs.
-: They're making $24,000 a year,
and he's ordering $1,275 per month
of use in occupancy. -: Yes, Sir.
If I may point out, it's not in his finding,
but I think it's a fair inference
that since his household had not paid rent
or mortgages for 10 years, that there was an accumulation
of household income.
I know that's an inference, but it's certainly a fair one.
-: The mortgage hasn't been paid for 10 years at this point?
-: Yes, Sir.
If I may, the foreclosure actually took place 10 years ago,
I think, if you will, a further inference
that there was substantial delinquency before that period.
So, you know, these occupants have been living for free,
literally for free.
They paid-
-: The nonfrivolous nature of the appeal
relates to the fact that there wasn't a meeting
with the mother 10 years ago.
I'm just trying to understand.
What was the nonfrivolous basis of the appeal
that we have here in this record?
-: It's hard for me to pinpoint, in all deference,
we have a pro se litigant
and the cohesiveness of that argument is not clearly stated.
-: Also, sophisticated amicus as well, so.
-: Indeed, we do. -: I'm sorry.
-: And so Judge, let us then at least point out
what has been articulated.
And that is this argument
that there has to be a face-to-face meeting
between the mortgage holder and the mortgagor.
-: So 10 years ago, there wasn't such a meeting,
and that provides the basis for the appeal
that takes us out of the frivolous context.
Is that what we're supposed to-
-: That's the argument, Judge.
Although, I think that requirement is obviated
by the fact that the mortgagor had passed.
So I don't see how a face-to-face could take place
under those circumstances.
-: And by the way, I hate to be picky,
but I'm just trying to understand, do we have in the record
that these plaintiffs are the heirs of,
is that in the record that-
-: Yes, Judge.
Interestingly,
this appellant filed what we call an informal probate
in order to effectuate the transfer
of some personal property of the decedent.
In that, so Judge, you may know
that if we have a fairly modest estate,
the heirs can file something, some papers with the court,
with very, very little cost,
to transfer assets within a certain range,
in this case, below $25,000.
When the appellant filed those papers
in the Worcester County Probate Court,
they denied the estate owned any real estate.
And this was years past,
so it's hard to follow this argument
that they have intestate ownership
of this property in Webster
when the same appellant denied the estate owned real estate.
-: We have that again in the record,
or are we going outside the record to do that?
-: Judge, the issue is addressed
in the ruling granting my motion for summary judgment.
-: It's in this record?
-: Yes, it should be, Judge.
If I just make it back, I know the court
and my very capable brother and sister counsel
are implicating issues of due process and equal protection.
I have to strenuously state
that those guarantees are more than adequately addressed
by the housing court, more than adequately addressed.
-: Can you be more specific?
-: Sure. I mean,
I think the argument is
that this use and occupancy requirement is prohibiting
the pursuit of access to the appellate court.
-: Yes, Judge.
There was the best person to decide on what you will know
should be set at, I believe would be the trial judge.
On two occasions, he offered very extensive dialogue
and admissions from the appellant,
as to what could be afforded.
And this was, and if I may say, he was very gracious
in allowing the pro se litigant
to list all of her personal expenses, all of her hardships.
Judge, there was never-
-: Is it your position
that this use and occupancy is affordable?
-: Is affordable? -: Affordable?
-: I think that the use and occupancy complies
with Comerford versus Davis,
in full regard,
because there are a number of factors,
not only affordability.
-: Right, so it seemed like your argument
of whether or not it's affordable is neither here nor there.
I mean, certainly the judge took a count
of what the litigant expenses were
and income.
Attorney Mitson: Absolutely.
-: But the use and occupancy,
let's just say for the sake of argument, is not affordable.
Is it your position that even though it's not affordable
and therefore preventing access to the appellate court
that this is constitutional?
-: Judge, I think I could address it very simply
by answering the question.
It is affordable.
The occupants- -: 'Cause see,
then that falls into the argument
that your opposing counsel is making,
is that it must be affordable.
My question is, even if it isn't affordable,
is use and occupancy that is not affordable
and therefore precludes access to the appellate court,
constitutional?
Attorney Mitson: Judge, it is constitutional.
This is initially an application of statutory mandate.
And when that statute is interpreted by King and Davis,
the income of the appellant is only one factor.
It's a balancing
because we have not just access to justice issues,
but we have the property rights of the owner
who are sitting on the sidewalk.
And that's actually your argument, right?
The argument is that it's rational
for the legislature to have said,
"We can't just consider one side of the V here.
We have to consider the affordability, yes,
but also the fact that there are property rights at issue
that now have come to quote, unquote, 'final judgment,'
although on appeal."
And so we're gonna set this rate
considering all of these various factors.
-: Yes, Judge.
-: [Justice Wendlandt] thank you.
-: Thank you, Judge.
And even to go one step beyond that,
not only do we have another side of the V,
but we've also had a lot of process here.
I mean, I understand that this is on appeal,
but we've had a foreclosure process.
We've had a summary process.
You know, we're looking at sort of appellate rights here,
you know, not sort of Matthews versus Eldridge
initial stage issues.
You know, it's much more complicated
from a constitutional perspective,
than there's no process here,
that you're being deprived of process
'cause you've had a lot of process.
-: I do agree with you, Your Honor, and thank you all.