Emigrant Mortgage Company, Inc. v. Bourke, 1:21-cv-11133

This case involves a foreclosure action concerning property at 6 Arkansas Avenue, Nantucket, Massachusetts.
On February 2, 2024, the court ruled in favor of plaintiffs Emigrant Mortgage Company, Inc. and Retained Realty, Inc. (RRI), declaring RRI the lawful owner and entitled to possession.
Judgment awarded RRI monetary damages for past and ongoing use and occupancy by Defendants Bourke and Hayward, Sr.
The defendants appealed and secured a stay of execution of the judgment by making required use and occupancy payments during the appeal's pendency.
The First Circuit affirmed the trial court's judgment; after the mandate issued, Plaintiffs moved to lift the stay and for a writ of assistance.
Defendants opposed, citing Massachusetts law permitting extended stays for handicapped or elderly occupants and requested an additional one-year stay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to lift the stay and issue a writ of assistance under 28 U.S.C. § 1651	Judgment is final; RRI entitled to possession and writ of assistance	Request continued stay due to alleged disability, age, and statutory protection under M.G.L. c. 239, § 9	Stay lifted and writ of assistance granted
Applicability of M.G.L. c. 239, § 9 (1-year discretionary stay for elderly/handicapped in summary process evictions)	Statute inapplicable as this is not a summary process action and eviction is not without fault	Statute applies due to Bourke's age and alleged disability; request statutory protection	Statute inapplicable; even if applicable, no further stay warranted

Opinion of the Justices, 321 Mass. 772 (1947) (discussing legislative purpose of M.G.L. c. 239, § 9 in balancing tenant hardship and owner rights)
Cosmos v. Savarese, 103 Mass. App. Ct. 1115 (2023) (issue of statutory limits on stays in eviction contexts)
Lorusso v. Talbot, 1999 Mass. App. Div. 301 (1999) (scope and duration of permissible stays under Massachusetts law)