Opinion
16-P-971
06-13-2017
ROCKLAND TRUST COMPANY v. Susan ENFELD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Acting on cross motions for summary judgment in this postforeclosure eviction case, a Housing Court judge ordered a judgment of possession in favor of the plaintiff, Rockland Trust Company (Rockland). The decision rested on res judicata grounds—as the validity of the foreclosure had already been litigated in a separate matter, see Santos v. U.S. Bank N.A., 89 Mass. App. Ct. 687, 695-698 (2016) —and on the rejection of the pro se defendant Susan Enfeld's claim of a postforeclosure tenancy. Enfeld does not currently contest Rockland's title to the subject property, located at 2530 Elm Street in Dighton. Instead, she claims that a tenancy in the property was formed between herself and Rockland after commencement of Rockland's eviction action. After a careful review of all arguments presented by Enfeld, we uphold the Housing Court judge's well-reasoned decision.
See Enfeld v. Rockland Trust Co., 87 Mass. App. Ct. 1103 (2015).
Enfeld devotes part of her opening brief to arguing that she received short shrift from the Massachusetts court system because she is a pro se litigant. We have considered this argument and find that it is not meritorious because, among other reasons: (i) it is made without legal citation sufficient to rise to the level of appellate argument; (ii) it is based largely on speculation, unsupported in the factual record; and (iii) Enfeld offers no basis for concluding that her legal position in her case against Rockland has been prejudiced in any way.
Background. The relevant, undisputed facts are these: After Rockland commenced this summary process action against Enfeld, the Housing Court stayed the case pending the outcome of Enfeld's appeal from the judgment of dismissal in her prior Superior Court case (which in part determined the validity of the foreclosure). A few weeks later, the parties agreed by written stipulation dated February 25, 2014, that, "[d]uring the stay of this [eviction] matter pending defendant's appeal in [the] Superior Court matter," Enfeld would pay Rockland $600 per month for "use [and] occupancy" by the fifteenth day of each month, "beginning March [of] 2014 [and] continuing each month thereafter."
From March, 2014, through March, 2015, Enfeld paid Rockland $600 per month by tendering checks made payable to Rockland, including the words "use & occupancy" (or an abbreviation thereof) in the "memo" line on the bottom left of the face of each check. It appears that Rockland negotiated those checks.
Unlike in Jones v. Webb, 320 Mass. 702, 704-705 (1947), relied upon by Enfeld, the record in this case does not include copies of the backs of any of Enfeld's checks as indorsed. Nor does it include any other documentation that would demonstrate that Rockland received the funds. But neither party disputes that Rockland accepted the checks and, at some point, received the money.
On January 30, 2015, this court entered its decision in Enfeld's prior appeal. See Enfeld v. Rockland Trust Co., 87 Mass. App. Ct. 1103 (2015). On March 17, 2015, the Housing Court allowed Rockland's motion to restore this summary process case to the jury trial list. In each of April, May, and June, 2015, Enfeld tendered Rockland additional checks in the amount of $600 that did not include the words "use & occupancy" (or any variant thereof). The "memo" line on those checks simply included the name of the month. There is no dispute presented as to whether Rockland also negotiated these three checks, and we assume that they were so negotiated.
The parties filed cross motions for summary judgment and a Housing Court judge held a hearing on those motions in August, 2015, at which both parties presented argument. The judge allowed Rockland's motion and denied Enfeld's motion, and judgment of possession entered in favor of Rockland on December 14, 2015. This appeal followed.
The Housing Court judgment included the dismissal of Enfeld's counterclaims. Enfeld's notice of appeal states that she appeals from the judgment, without any specific mention of the counterclaims. Her brief also makes no mention of the counterclaims. Accordingly, any argument as to dismissal of the counterclaims is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief"). See also Bayless v. TTS Trio Corp., 474 Mass. 215, 219 n.9 (2016).
Discussion. A mortgagor holding over after foreclosure, such as Enfeld, is a tenant at sufferance. See Cunningham v. Davis, 175 Mass. 213, 222 (1900). "This implies that [the occupant's] possession ... [is] wrongful except for such time as [is] necessary, or given under [a] statute, to remove from the premises." Newman v. Sussman, 239 Mass. 283, 285 (1921). See Kinsley v. Ames, 2 Met. 29, 31 (1840) (describing holdover mortgagor as tenant at sufferance, with "a mere naked possession, without any right or interest whatever").
An owner is entitled to possession as against a tenant at sufferance "unless by reason of an express agreement or an agreement implied from the conduct of the parties a new tenancy at will ha[s] been created." Newman, 239 Mass. at 285. See Staples v. Collins, 321 Mass. 449, 451 (1947) ("[A] tenancy at sufferance is readily changed into a tenancy at will by express or implied agreement of the parties"). "Whether there has been such agreement is, of course, commonly an issue of fact." Ibid.
Even though a tenancy at sufferance can be transformed into a tenancy at will by agreement, a would-be tenant cannot unilaterally create a tenancy simply by indicating on the face of a check that the payment is for "rent." See McCarthy v. Harris, 17 Mass. App. Ct. 1002, 1002-1003 (1984). And, to be clear, Enfeld's notations on her April through June, 2015, checks did not even include the word "rent" in any event. The checks merely omitted the words "use & occupancy" that had been customarily included on the face of Enfeld's prior checks.
Assuming arguendo, however, that Enfeld's mere omission of the words "use & occupancy" was sufficient to alert Rockland to the fact that she was intending to pay "rent," Rockland's acceptance of those checks, without more, also did not form an express or implied tenancy between the parties. "Although the ‘payment and acceptance of rent for a period in advance of occupancy,[ ] standing alone, are prima facie proof of the creation of a tenancy at will ... and the fact of payment and acceptance is controlling if nothing else appears ... other facts may permit or require a finding that the [owner] did not intend to waive [its] right to possession.’ " Id. at 1003, quoting from Gordon v. Sales, 337 Mass. 35, 36 (1958). See Staples, 321 Mass. at 451-452.
Although the checks relied upon by Enfeld are all dated on the first of the relevant month, she made no showing that they were delivered to Rockland prior to the first of the month. Nor does the record show when Rockland negotiated the checks. Accordingly, it is far from clear that any payment she made was "in advance of occupancy." McCarthy, 17 Mass. App. Ct. at 1003.
Here, the purported "rent" payments by Enfeld took place in a context in which Enfeld had expressly agreed to pay use and occupancy on a monthly basis in precisely the same amount as her purported "rent," and had been doing so without fail for thirteen months. Moreover, the parties' stipulation regarding use and occupancy payments came into being during the pendency of Rockland's action to evict Enfeld. Thus, "the occupation of the premises was not with the consent of the owner, but was against [its] protest while [it] was seeking to enforce [its] right of possession." Newman, 239 Mass. at 286. See Dennett v. Nesson, 244 Mass. 299, 301-302 (1923) ; Staples, 321 Mass. at 452.
We are aware that the parties' agreement regarding use and occupancy began with the words, "[d]uring the stay of this matter pending defendant's appeal in [the] Superior Court matter." In essence, however, Enfeld asked the motion judge to deny summary judgment to Rockland on the ground that a reasonable jury could infer an intent by Rockland to enter a tenancy (or waive its right to possession) from just two facts: (i) that Rockland continued to accept Enfeld's checks after the stay in the Housing Court case had been lifted, notwithstanding the wording of the parties' stipulation, and (ii) that Rockland accepted Enfeld's April-June, 2015, checks even though they (unlike the prior checks) did not contain the words "use & occupancy."
In the context of Rockland's ongoing attempt to evict Enfeld and the regular use and occupancy payments that she had been making, this is not a reasonable inference that could have been made by a reasonable jury. See Dennis v. Kaskel, 79 Mass. App. Ct. 736, 740 (2011) ("[A] dispute about a material fact is ‘genuine’ when ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party’ "), quoting from Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004) ("To be reasonable, [an] inference ‘must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture’ "), quoting from McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706 n.3 (1990).
The Jones case relied on by Enfeld (see note 3, supra ) is readily distinguishable because in Jones there was direct evidence of the purported landlords' intent to accept checks as rent payments, in the form of testimony and in the form of the written indorsements on the backs of the checks. See Jones, 320 Mass. at 704-706.
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Accordingly, in the face of Rockland's summary judgment materials demonstrating its legal entitlement to possession of the property, Enfeld failed to raise a genuine issue of material fact regarding her claim that a new tenancy had been formed. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974); Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 890 (1987). Thus, summary judgment for Rockland was properly entered.
Judgment affirmed.