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

22-P-248

U.S. BANK NATIONAL ASSOCIATION, trustee,1

vs.

THERESA A. CHERRY.2

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 

1 On behalf of the holders of the Asset-Backed Securities 

Corporation Home Equity Loan Trust, Series AMQ 2006-HE7 Asset 

Backed Pass-Through Certificates, Series AMQ 2006-HE7.

2 Christopher Cherry and Robert Dansereau were also named as 

defendants in the underlying action but did not participate in 

this appeal. 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.
2

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 
3

Court denied that motion, held the hearing on January 10, 2022,

and allowed the plaintiff's 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 

plaintiff's motion to issue the execution."7 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.8 The single justice subsequently denied Cherry's 

5 It appears that the plaintiff's 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 under M. 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 
4

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 

falls 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 

Court." The single justice further ruled that "No further stays 

from this court should be anticipated."
5

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, 2022, hearing via Zoom, which she 

did. The defendant's conclusory and often contradictory 

arguments do not demonstrate otherwise.

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 
6

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.

By the Court (Rubin, Neyman & 

Walsh, JJ.10),

Clerk

Entered: October 23, 2023.

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).

10 The panelists are listed in order of seniority.