NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

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

19-P-1792

THE BANK OF NEW YORK MELLON1

vs.

LEE R. HENRICKSON & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This matter is before the court on the defendants' appeal 

from an order dismissing their appeal from a summary process 

judgment.3 The appeal had been dismissed when the 

defendant/appellants failed to pay the appeal bond of $45,000 as 

1 As successor trustee for JPMorgan Chase Bank, N.A., as Trustee 

for Novastar Mortgage Funding Trust, Series 2005-3 Novastar Home 

Equity Loan Asset-Backed Certificates, Series 2005-3.

2 Gale Lutz. As is our custom, we take the parties' names as 

they appear on the complaint.

3 The order also denied, as untimely, the defendants' Motion to 

Reconsider as to Voidness and Lack of Subject Matter 

Jurisdiction. The issue of subject matter jurisdiction can be 

raised at any time, however, see ROPT Ltd. Partnership v. Katin, 

431 Mass. 601, 605, 607 (2000), and the denial of the motion on 

the ground of untimeliness was error. As the basis for the 

subject matter jurisdiction argument concerned the plaintiff's 

standing to maintain this action, we need not address it as the 

issue of the plaintiff's standing is now moot.
2

ordered by the Housing Court, and as affirmed by a single 

justice of the Appeals Court pursuant to G. L. c. 239, § 5.4

At oral argument, counsel for the plaintiff notified the 

court that she believed that the plaintiff no longer owns the 

property at issue in this summary process action.5 Subsequently 

filed status reports by the plaintiff confirmed that the 

plaintiff no longer owns the property, and that the new owner 

has commenced a separate summary process proceeding against the 

defendants. The court then requested that the parties show 

cause why the appeal should not be dismissed as moot and 

remanded with instructions for the judgment to be vacated under 

Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631 

(2015) (Aquacultural Research). The plaintiff responded 

essentially indicating its agreement that the matter is moot and 

that the court should dismiss the appeal in accordance with the 

procedure set forth in Aquacultural Research. The defendants 

similarly requested that the appeal be dismissed in accordance 

with the holding in Aquacultural Research, but they asked that 

4 During the pendency of this appeal, the defendants appealed 

from an order of the single justice denying their motion for an 

emergency stay of execution. That appeal was assembled, but 

never entered by the defendants, so it is waived and is not 

before us. In any event, in light of our disposition here, any 

such appeal would be moot.

5 The better practice would have been to notify the court within 

a reasonable time of sale that the plaintiff no longer owned the 

property. In any event, counsel for the plaintiff was correct 

to notify the court at oral argument.
3

the remand order allow them to "separate off into their own 

case" their counterclaims, which had been dismissed pursuant to 

the parties' November 29, 2018 agreement for judgment. They 

also allude to potential damages arising from the plaintiff's 

continuation of this action after it knew the property had been 

sold to another.6

"It is the general rule that courts decide only actual 

controversies. We follow that rule, and normally do not decide 

moot cases." Boston Herald, Inc. v. Superior Court Dep't of the 

Trial Court, 421 Mass. 502, 504 (1995). "[L]itigation is 

considered moot when the party who claimed to be aggrieved 

ceases to have a personal stake in its outcome[,] . . . [and] a 

court can order no further effective relief" (quotations

omitted). Branch v. Commonwealth Employment Relations Bd., 481 

Mass. 810, 816-817 (2019), cert. denied, 140 S. Ct. 858 (2020). 

See Mullholland v. State Racing Comm'n, 295 Mass. 286, 289 

(1936) (when "a decision by the court will not be applicable to 

existing rights, no decision will be rendered" because "[t]he 

questions originally involved have become moot").

Here, any claim for possession is now moot as the plaintiff 

no longer has any possessory interest in the property. 

6 We note that defendants were on notice that the plaintiff had 

sold the property to a third party no later than April 4, 2022, 

when the third party filed a summary process action against 

them.
4

Relatedly, as the appeal bond is predicated on the judgment for 

possession, which we must vacate, its propriety is moot as well.7 

Ordinarily, where a case becomes moot on appeal, we vacate the 

judgment below to free the parties from any potential collateral 

estoppel consequences of a decision for which appellate review 

had become unavailable. See Aquacultural Research, 88 Mass. 

App. Ct. at 634-635.8 If the entire matter had become moot, we 

7 We note, however, that defendants' reliance on G. L. c. 261, 

§ 27C, for the proposition that a holdover tenant does not have 

to show a nonfrivolous issue on appeal to waive the appeal bond 

is misplaced. The Supreme Judicial Court has stated 

unequivocally that the procedure for waiving the appeal bond 

required in all appeals from judgments in summary process 

matters, including postforeclosure cases, is governed by G. L. 

c. 239, § 5. See Bank of N.Y. Mellon v. King, 485 Mass. 37, 44-

45 (2020). "[I]f a general statute and a specific statute 

cannot be reconciled, the general statute must yield to the 

specific statute." Rita v. Carella, 394 Mass. 822, 827 (1985), 

quoting Pereira v. New England LNG Co., 364 Mass. 109, 118 

(1973). As a holdover possessor after the foreclosure, the 

defendants are tenants at sufferance. See Bank of N.Y. Mellon

v. Morin, 96 Mass. App. Ct. 503, 514 (2019), citing Singh v. 

207-211 Main St., LLC, 78 Mass. App. Ct. 901, 903 (2010) ("After 

an entry to foreclose, a mortgagor becomes a tenant at 

sufferance"). Even where an appeal bond is waived "a court may 

order the tenant to make 'use and occupancy' payments -- similar 

to rent -- while an appeal is pending." Adjartey v. Central 

Div. of the Hous. Court Dep't, 481 Mass. 830, 859 (2019), citing 

G. L. c. 239, § 5 (e).

8 While the court in Home Sav. Bank of Am. FSB v. Camillo, 45

Mass. App. Ct. 910, 912 (1998), and a companion case released 

that same day, Tamber v. Desrochers, 45 Mass. App. Ct. 234 

(1998), addressed the merits of the appeal bond issue, it 

presumably did so as a matter of discretion. See Lynn v. 

Murrell, 489 Mass. 579, 583 (2022) (mootness is a factor that 

affects the court's discretion, not its power). No party has 

requested that we reach the underlying issues here. In any 

event, we decline to do so as a matter of discretion.
5

would also ordinarily direct the dismissal of the underlying 

action, not on the merits, but because it had become moot. See 

Reilly v. School Comm. of Boston, 362 Mass. 689, 696 (1972).

Here, the plaintiff has argued for the dismissal of the 

underlying action as moot and has not sought a remand. In 

contrast, the defendants have requested that the matter be 

remanded so that they can pursue their counterclaims. However,

the settlement agreement included a provision agreeing to the 

dismissal of the defendants' counterclaims. The agreement was 

signed by Lutz and by counsel, albeit on a line that was 

labelled for "defendant's counsel" in the singular. In his 

Reply Brief, Henrickson raised for the first time an argument 

that he could not be bound because he did not sign the agreement 

himself. The issue of his lack of signature, however, has been 

waived.9 Accordingly, as to this plaintiff, the argument that 

the lack of signature means that Henrickson did not agree to 

dismiss his counterclaims is without merit and no remand is 

required. See Thibbitts v. Crowley, 405 Mass. 222, 226-227 

9 Henrickson did not raise the issue of his lack of signature on 

the settlement agreement below. The argument is therefore 

waived. See Wells Fargo Bank, Nat'l Ass'n v. Mondi, 98 Mass. 

App. Ct. 280, 287 (2020). He also did not raise the issue on 

appeal in his primary brief. Accordingly, it was waived on 

appeal as well. See Spinosa v. Tufts, 98 Mass. App. Ct. 1, 16 

(2020) (issue not addressed in principal brief, but raised for 

first time in a reply brief is waived and need not be 

addressed).
6

(1989) (enforcing a settlement agreement entered as consent 

judgment: "We are aware of no sound theory upon which it can be 

held that the court has jurisdiction to modify the terms of a 

valid existing contract which arose solely through the voluntary 

act of the parties" [quotation omitted]). See also Maher v. 

General Motors Corp., 370 Mass. 231, 235 (1976) (court declined 

to "engage in the futile exercise of remanding the case for a 

new trial in which the plaintiff could not prevail"); Nexum Dev. 

Corp. v. Planning Bd. of Framingham, 79 Mass. App. Ct. 117, 119-

120 (2011) (remand would be "futile and wasteful . . . [where] 

[n]o legally permissible action by the [court] could change its 

decision[]").

Accordingly, we vacate the judgment, the appeal bond order, 

and the order denying the motion for reconsideration. The

matter is remanded to the Housing Court with the direction that 

the summary process action be dismissed, not on the merits, but 
7

because it has become moot.10

So ordered.

By the Court (Rubin, Henry & 

Walsh, JJ.11),

Clerk

Entered: February 17, 2023.

10 As noted, this disposition frees the parties from any 

potential collateral estoppel consequences with respect to any 

claims or counterclaims. See Reilly, 362 Mass. at 696;

Aquacultural Research, 88 Mass. App. Ct. at 634-635.

11 The panelists are listed in order of seniority.