MAAPL Announces “Bring Our Wealth Home!”

Bring Our Wealth Home! is a project of the Mass. Alliance Against Predatory Lending (MAAPL) — working to reverse illegal predatory loans and foreclosures and the damage they have created. This project highlights the impact of the foreclosure crisis on Black and Brown families and communities, and supports and promotes the leadership of Black and Brown people in the fight to gain justice and return stolen wealth to their communities.

To learn more about this project, visit our new “Bring Our Wealth Home!” page.

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Action Alert: SJC Erases Constitutional Rights of MA Homeowners—We Must Fight Back!

In a Reversal of Its Entire History, the Massachusetts Supreme Judicial Court (SJC) has used its power to erase an entire sector of our state’s residents from protection under our constitution: homeowners who have been declared “foreclosed” even though every such auction has been illegal and evidently criminal since the beginning of this crisis. Join us to get this so-called decision rescinded!

The SJC’s 17 June 2020 decision in BoNY v. King & another (SJC-12859) is a breathtaking dereliction of judicial responsibility by the Court responsible for ensuring every Commonwealth resident’s rights to life, liberty, and property under the Massachusetts Constitution. Among other deficiencies, the SJC misnames the plaintiff as being Bank of New York Mellon. However, the plaintiff is a purported securitized trust. Without citing them, the SJC in effect overturns the Massachusetts Indigent Court Costs Law, Ibanez, Eaton, and other leading cases as to legally indigent homeowners, by holding that the courts can price such homeowners out of their appeals. The SJC’s hostility to such homeowners’ constitutional property rights could not be more plain.

Be clear, we will not take this historic stripping of rights of a sector of Massachusetts residents lying down! Literally, our Highest Court has never in its history rolled back constitutional rights for any subset of our people.

We cannot win if you do not join us in this fight. We will win if you do!

Do not let the banks’ shaming of you as their intended victims silence you!

In this decision, the SJC reversed itself in the following ways:

  1. Now, the court will not act to enforce our laws even where it recognizes that a violation may exist unless an opposing party can pay for them to review the case.
  2. Used to be the Court used its Constitutional role to expand equal rights or at least hold the line; now, it can use its role as the final constitutional interpreter to roll back and end the recognized constitutional rights of a sector of our residents (inhabitants) if they cannot afford to pay for those rights.
  3. And specifically target this ruling at a man of color on behalf of an industry whose practices are settled as to being structurally racist and therefore imposing this erasure of the human existence of this sector in the eyes of the court knowing that it will enforce structural racism and disparately harmed people of color (and women heads of household) and therefore especially women of color. #BlackBrownHomesMatter
  4. Used to be that a statute that contravened the Constitution was recognized as unconstitutional and declared null; now, a statute can strip you of your Constitutional rights.
  5. Used to be that standing is a threshold issue that a court must determine even if there is no opposing party; now unless someone opposes who can pay for it, standing is unnecessary.
  6. That a preliminary balancing test is no longer measured by your likelihood of success in this case, but your likelihood of protecting whatever is at issue indefinitely into the future.
  7. Used to be that those who are recognized as legally indigent had to be allowed access to our Courts; now you can be priced out of access to our courts even with a “non-frivolous” case.
  8. Used to be that unincorporated or otherwise not legally founded non-human entities could not be a party to a case; now they are recognized by the court as legal entities with rights and the ability to prosecute a case.
  9. A monetary balancing test used to be used to make sure everyone could participate in a case; now a balancing test as to financial capacity should favor the party with more money.
  10. A foreclosure used to extinguish a mortgage obligation, but now a mortgage obligation to the supposed mortgagee continues even after the supposed mortgagee claims to have extinguished the mortgage.
  11. Used to be, when exercising its equitable powers, the Court followed the maxims of equity; now the court will claim to apply an equitable test so as to benefit the party that violated several of those maxims.
  12. The Court has abdicated its commitment to jealousy guard legal requirements around foreclosures, even while it delegated its authority to foreclose to mortgagees through the power of sale in a private mortgage, that is, the ability to foreclose non-judicially.
  13. It reversed the settled role of the court as an interpreter of statute as opposed to the writer of statutes including ignoring
    1. the actual statutory history of the law implicated in this decision and creating a false narrative, which it claimed it was a statutory history reversed;
    2. The statutory interpretive requirement that all words in a statute must be given force and effect;
    3. That all words in a statute (unless otherwise defined) should be given their plain meaning
    4. And if it’s a technical word it be given the meaning as used in the applicable field at the time;
    5. that statutes are to be interpreted as to the mischief they were seeking to address;
  14. The due process requirement to not overly, broadly interpret a category of persons under the law so as to misapply the law;
  15. Especially, in statutes related to the specialized, statutorily determined area of Summary Process (eviction cases), wording of statutes is not to be strayed from;
  16. It explicitly reversed the following recent decisions; Adjartey, Hatcher, Pinti, Marroquin, Matt, Ibanez, Eaton, Rosa and Comerford, Fremont, Bevilacqua and so many more that we can’t name them.
  17. Previously, each of numerous violations of real property and/or foreclosure law rendered a claimed transfer void by operation of law; now, even where such violations are recognized by a court as likely having occurred, the claimant transferee can receive a presumption of legal transfer even when their standing depends upon it and when a necessary element to preempt any consideration of a homeowner’s defense by a court unless the homeowner can pay for it.
  18. Previously, a foreclosure by sale had to comply at the applicable strict or utmost diligence/strictest good faith (when purported mortgagee purchases) standard; now the SJC holds no compliance at all is necessary.

Further action and analysis to follow! Please check back, join us in action and share this broadly!

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Summary of the Most Recent COVID-Related Court Orders

MAAPL Coordinator, Grace Ross, has provided an update to the COVID-related court information posted on the MAAPL website. Her summary of this information is posted below:

Massachusetts courts will remain physically closed until July 13 and will reopen in two phases. Between now and July 13 and beyond, they are doing emergency matters either virtually or, if absolutely necessary, in person.

Key changes: the new order recognizes that if a pro se litigant will be disadvantaged by a virtual teleconference hearing, they have to find a different means, which is awesome!

Second, cell phones are back. In any courthouse you’re allowed to bring in your cellphone (and PEDs). MAAPL is worried that lawyers are going use their computers to try to do legal research during court hearings, which they are not allowed to do. We think that folks who are pro se probably should refuse to be part of any virtual meeting unless there’s an order by the Judge that the lawyers are not allowed to do legal research as the argument progresses. That should be a general requirement, but we strongly suggest that you ask that order of the Judge if you are going to participate in a virtual court hearing.

After July 13 they are reserving the right to do “screening” of everyone who comes into a court building. They do not identify what that is.

The moratorium on eviction cases moving forward, we expect it will be in place until August 18; there is discussion about the Legislature extending it. In relationship to the courts being opened nothing should move forward against you in an eviction case.

We believe that the Legislature never meant for your ability to defend yourself to be postponed; so, if you can move forward, we recommend you proceed. You can do other emergency issues like code violations and things like that in Housing Court; please do not hold off on emergency health and safety matters.

As for other courts besides Housing Court, when your next piece is due is a little confusing. Jury trials will not be scheduled until September 8 or later. Bench trials can be held virtually or in person starting on July 13. The Judge can decide who is allowed to be in the courtroom.

The tricky thing is when your next filing is due. What determines due dates? If what determines the due date is a statute of limitations, the number of days you had left on your statute of limitations as of March 17 will then begin, being counted on July 1. The same is true if the deadline is set out in statute or court rules, standard orders or guidelines.

So, if you’re in the Appeals Court and you had a brief due between March 17 and July 1, based on a court deadline whatever days counted to hit that deadline should restart on July 1.

So, for those of you who have reply briefs due between March 17 and June 30: because the other side had put in their appellee brief after March17, you have 14 days after the appellee brief comes in but based on this order your reply brief would then be due 14 days after July 1.

Except, if the deadline was set specifically by court order in your case; then it is due on July 1st unless the deadline is later. I think that means those of you who put in notices to the court saying that your brief would have been due except there was a further deadline and could you have time? That now means that the court might say we gave you until July 3. You should contact the Court and clarify that if you hadn’t asked for a clarification you would have had until whatever it is; in the example above, July 15th. So, for those of you who were responsible and were communicating with the court about clarifying the extension of your deadlines, I would probably contact the court; point out that under this order you would have had more time if you have not communicated and that, therefore, you’re requesting the new additional deadline otherwise you end up with less time because you were responsible about communicating with the court.

This is a summary of both the Trial Court order (the administrative side of the courts) and the SJC order. The Trial Court clarification says that it supersedes all other court’s own orders which means it should supersede the last orders from the Appeals Court that were different than the SJC and shorter and confusing. So, even if you’re in the Appeals Court you are covered under the orders. Links to orders so you can read them yourself.

https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-third-updated-order-regarding-court-operations

https://www.mass.gov/trial-court-rules/trial-court-emergency-administrative-order-20-11-order-supplementing-the-supreme

As a reminder again, these rules only apply to Massachusetts state court. These are not the rules that apply to federal courts.

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The Structural Racism of Mortgaging and Foreclosures Continues…

MAAPL recommends the following recent articles highlighting the dramatically decreased levels of Black homeownership in the wake of the financial crisis, as well as the impact of mortgage discrimination on Black homebuyers.

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Update: MA State Court Deadlines Postponed Until July 1

MAAPL Coordinator Grace Ross has issued an update to our previous post on  Massachusetts state court cases being postponed. Court case deadlines have been postponed for another month until July 1, 2020 for all non-emergency or lower-priority matters.

Today, May 26, 2020, the Massachusetts Supreme Judicial Court (SJC) published a new COVID-related order.

The key points are that the courts will physically remain closed, although the clerks are there doing business. If you need to reach them you can call, email, etc. Because of the further extension of deadlines, courts expect to hold more non-emergency hearings virtually than they did previously. (They do not expect this delay to be extended any farther than July 1–unless, God forbid, the pandemic starts getting worse again.)

What you need to know:

1. The Massachusetts moratorium on evictions and foreclosures continues to be in place, and any roles the courts play in that will continue (they mention that directly in the guidance for the first time.) That means summary process/eviction cases are stayed.

A. We are keeping in touch with the courts because of the possibility of misinterpretation. We are deeply concerned about this specifically regarding the moratorium we fought for. It was meant to stop evictions. That should not stop your ability to use the courts to protect against an eviction. We are reaching out to the courts (and if necessary, will bring in our Legislators) to clarify the purpose for putting a stay on eviction cases in the courts.

2. If you have any kind of deadline for a court filing or a tracking order (for instance, a set of dates that say discovery will be due on this date, motions will be due on that date), those are all stayed until July 1.

A. If you had a deadline of, let’s say, 30 days, and the clock on that deadline was supposed to start before March 17, you can figure the new deadline this way: it will be whatever number of days occurred before March 17, and then the clock stops. On July 1 the clock will start again. So you’ll have the remainder of whatever 30 days had not gotten used up by March 17. That will become your new deadline in July.

B. If the other side was supposed to get you something on a court tracking order by a certain date, and their date is now moved to July 1 and your date was after that, you need to figure out the number of days between their deadline and your responsive deadline after that. Then imagine counting your deadline as counting the same number of days after July 1.

3. All jury trials in civil matters will not commence before September 8. All bench trials on the civil side scheduled for any time up to June 30 are now continued to a date no earlier than July 1, 2020.

If you have trouble figuring out when things are due, please be in touch with MAAPL and we’ll help you work out the answer.

We have two concerns:

1. If anyone is trying to pressure or intimidate you, or otherwise deter you from fighting your case in court. All of that is illegal. If they show up on your property that’s still trespassing, and we will use the court to enforce against any of these actions. So let us know if you are experiencing such things.

We are concerned if you need to take action to defend yourself, and that could include emergency needs such as a code violation in your home. Again, let us know, and we’ll make sure you can file in court.

2. Virtual hearings – It is possible that some courts may decide to hold a hearing because they’re trying to get through some of their non-emergency business, which may affect you if you have a case that’s a non-emergency matter sitting idle right now in the courts. They can try to hold such hearings virtually (not for eviction or foreclosure because of the state moratorium, but for other cases).

This deeply concerns us because pro se folks have reported to MAAPL having a harder time doing things by telephone or over the Internet rather than being present in the courtroom. This is a constitutional due process issue, and you should be protected from such a hearing.

If you are not as effective virtually as you would be in person, the courts say (under number three of the 5-26-20 order) that in-person proceedings will be conducted “only where entry to a court house is required to address matters that cannot be resolved virtually,” and they give two reasons why: either “because it’s not practicable or would be inconsistent with the protection of constitutional rights.”

Your right to your home, whether it’s possession or ownership (that is, the right to occupy and not be evicted, or for instance, a foreclosure), is a constitutional right, and your right to protection through the courts of those constitutional rights is separately also a constitutional right.

So, if a telephonic hearing or a virtual hearing makes you less effective, you should refuse it. If they try to hold such a hearing and it’s not working for you, you should register a complaint right then, and ask that the hearing be rescheduled for an in-person hearing. It’s critical that you put such an objection on the record in the court during the virtual hearing because it’s a constitutional due process violation if you are in any way weaker or less able to function, or handicapped by the fact that the hearing is being held virtually.

Please keep checking back here on MAAPL’s home page. We will continue posting updates on this situation regarding court schedules and related matters.

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More Protection from Foreclosure for Fannie/Freddie Mortgagors!

The Federal Housing Finance Agency (FHFA) has extended its moratorium on foreclosures and evictions for those with Fannie and Freddie mortgages through June 30th, 2020.

On May 14th, 2020, as per its press release:

“…to help borrowers and renters who are at risk of losing their home due to the coronavirus national emergency, the Federal Housing Finance Agency (FHFA) announced that Fannie Mae and Freddie Mac (the Enterprises) are extending their moratorium on foreclosures and evictions until at least June 30, 2020.  The foreclosure moratorium applies to Enterprise-backed, single-family mortgages only. The current moratorium was set to expire on May 17th.

“During this national health emergency, no one should be forced from their home,” said Director Mark Calabria. “Extending the foreclosure and eviction moratoriums protects homeowners and renters with an Enterprise-backed mortgage and provides certainty for families.”

You can read the full press release at https://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Extends-Foreclosure-and-Eviction-Moratorium.aspx

Fannie and Freddie lawyers in Massachusetts are violating the existing moratorium. Be aware that they cannot harass or pressure you (although we have examples that they are); they cannot talk to you if you are in an eviction case self-represented — whether to threaten you or try to buy you off; they cannot record any steps in the foreclosures; they cannot advertise nor file an active military service proceeding (mostly in Land Court but not only there).

PLEASE let MAAPL know if you experience any of these violations! Join our Sunday night Info Calls (see the call details in the right sidebar under Join the Next MAAPL Info Call!) or leave us a voicemail or send a fax to MAAPL at 508-630-1686.

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New non-emergency MA Court cases postponed to June 1/July 1

The SJC Court Order for the MA Courts, given the continuing COVID-19 crisis, was posted on Tuesday April 28. The specific orders by each court division have not yet posted, so MAAPL will amend this information once we get the specifics. Appeals Court has now posted as well:

https://www.mass.gov/supreme-judicial-court-rules/supreme-judicial-court-updated-order-regarding-court-operations-under

We do know that Housing Court is functioning quite differently because of the Moratorium on evictions (for 120 days or 45 days after state COVID crisis is declared over — see our post on the Moratorium). We will also be posting an update on Registry of Deeds filings because of the postponement of nonjudicial foreclosures.

For the overall functioning of the MA courts, administratively they’re still moving forward. The courthouses are basically closed except for emergency matters. The deadlines for all non-emergency filings have been moved to June 1, 2020. This includes Appeals Court deadlines — some of these will now commence on June 1st; some are “tolled”:

https://www.mass.gov/doc/revised-notice-regarding-extension-of-deadlines-and-other-covid-19-procedures-in-the-appeals-0/download

Therefore all briefs or responses to filings are postponed until at least June 1; it may be longer if they fall under the tolling requirements. Tolling is the stopping of a clock on something until a future date restarts the clock. For motions and filings that are covered by the new COVID tolling rule, you’ll take the date that it was due and then, if the clock for counting when it was due started before March 16, you’ll count how many days up until March 16 and then at June 1 that clock will restart with whatever remaining days existed in the time period.

If you’re uncertain about a deadline, feel free to contact MAAPL for help in figuring it out. You can also file a status update to the court in your case (several people have done this) letting the court know what you understand the next deadline to be if it’s looming shortly and you’re not sure.

BEWARE, given the stoppage of all non-emergency eviction cases, we would consider an attempt to evict you without court process, either by pressure or by monetary enticement illegal. Or a post-foreclosure bank or investor may create a violation of a sanitary code (the code for health conditions in your home) to go un-repaired so that it is dangerous. All of these are also an emergency violations. CONTACT MAAPL IMMEDIATELY if any of these happen.In terms of eviction/summary process cases, there should be no forward movement in any of the cases, and the delay cannot be used by the lawyer or the other side to try to pressure you into a resolution. They are simply going to have to wait.

This time period will give you time to research and beef up your legal arguments and get your evidence in order. We strongly suggest you use this time for this purpose; it will help you be stronger and get ahead of the legal issues. We are also continuing to make legal inroads, so the longer you can delay the more likely you are to win in the long run.

One significant concern is that the Housing Court has shut down the e-file system, and some the other courts seem to have done that as well. If you need to file something, 1.  try to file it through the e-file system (see directions below), and 2. if you receive a notice that you can’t file it that way then call the Clerk of the respective court. They have been allowing people to email their filings.

Federal Court cases are continuing, BUT also true of bankruptcy court filings, your can e-mail or fax you materials if you contact the Clerk and prearrange it.

Many of the courts and the Registries of Deeds have drop boxes where you can leave documents. Make sure you record the leaving of such documents by taking a picture of the box so that the phone/picture will have a time and date stamp on it.MAAPL will try to keep updated information here on our home page, so please keep returning here to check for new information.

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VICTORY! Gov. Baker Signs Moratorium on Foreclosures and Evictions into Law!

Photo of MA State HouseIn historic legislation signed by the Governor yesterday, we got a blanket Moratorium on foreclosures and all evictions, except where the occupant has committed a criminal act that endangered others. This law appears to be in effect for 120 days, or 45 days after the Governor declares the crisis over.

If you made phone calls and talked to legislators in support of the fight to get this Moratorium on evictions and foreclosures, or if you were part of our efforts when we filed legislation for a Moratorium on foreclosures over a year ago, your work and your voice made a real difference. Together, we provided the arguments and the evidence to the legislators—these were key building blocks in getting this bill passed.

Think back: every time that you stepped through the shame and…

  • you told your story to somebody else, especially if you told that story to an elected official or someone else in a position of power,
  • you backed somebody and that story got into the newspaper or on Facebook,
  • you stood up for each other in court, and
  • joined in the effort that led finally to the filing and hearing of the Adjartey and Hilton cases at the Massachusetts Supreme Judicial Court in December of 2018…

you moved us closer to this victory for Massachusetts homeowners and tenants.

This Moratorium belongs to each and every one of you, because each of those efforts created a context, so when our society was forced, for unfortunate reasons, to face the fact that a home is indeed as precious as our Constitution says it is, we had enough educated Massachusetts legislators to do the right thing!

THIS is our window of opportunity.

  1. Please use this time to get ahead of your case. Learn, send letters, develop arguments, find your evidence, etc.
  2. Please volunteer time so that we can go on the offensive. You can help from your home or at the office (open regular hours).

Some specifics from the new law: the eviction cases are stopped in Court, but also constables are specifically not allowed to serve eviction orders. The foreclosures—both judicial and non-judicial, and including explicit steps like advertising an auction sale—have been stopped.

BUT be careful—in all your situations, the bank’s agents have broken dozens of laws. Already at least one Freddie, one Fannie and one FHA lawyer have violated the Federal moratoriums! Be watchful and be in touch IMMEDIATELY if they contact you, file in the Registries of Deeds, etc.

MAAPL thanks our many coalition partners who worked together, and especially coordinated the crossover with the new Tenant Rising Coalition with which we share so many members—thanks to Michael Kane of MAHT and Lew Finfer of MCAN.

And special thanks to the numerous state legislators who stayed in touch with us and so many of you while we advocated for the best law possible! (There is at least one urgent repair I’ll be in touch about…)

Grace C. Ross
Coordinator, Mass. Alliance Against Predatory Lending

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Action Alert: Make 3 Calls NOW to Correct and Pass Emergency Moratorium Bill!

PLEASE REPOST EVERYWHERE!Photo of MA State House

Massachusetts Alliance Against Predatory Lending
www.maapl.info

MAAPL: 3 Calls NOW! Monday, April 7th

Massachusetts Senate must Correct AND Pass the Emergency Moratorium on Foreclosures and Evictions Bill

Your voice gets results! Call your state Senator TODAY! Ask them to get critical changes into the Foreclosure and Eviction Moratorium bill.

When the Massachusetts House of Representatives passed its own bill late last week, it deleted crucial enforcement language, misrepresented whom you pay the mortgage to, and allowed too broad exemptions from eviction stoppage.

We all know just how “creative” the Financial Industry gets when they want to take our homes away. Don’t leave them any loopholes. Ask your Senator to make critical changes and vote to protect our homes NOW!

Here’s what you do:

1. If you don’t know who your state Senator is, go to WhereDoIVotema.com. Type in your address. It will tell you who your elected officials are and their phone numbers. Make a note of your state Senator’s name and phone number, then call their office.

2. What do I say?  [Leave a message if no one answers the phone]:

“Hello, my name is _________. I live in [name of your town].

“Please make critical changes to the Foreclosure and Eviction Moratorium legislation and then pass it as quick as possible!

“Your Senate bill must:

  • Include Enforcement of Stoppage of Foreclosures and Evictions;
  • Correct too Broad exemptions and Process for Collecting on a Note;
  • Stop every step of the state’s non-judicial foreclosure process;
  • Provide for Notification of Authorities at each of those steps.

“For details, see the email correspondence the Massachusetts Alliance Against Predatory Lending sent you.

“Please, as my Senator, will you protect our homes during this COVID-19 emergency?

“Thank you.”

3. Please also call:

  • the Senate President’s Office, President Spilka, (617) 722-1640
  • the Senate Ways & Means Committee Chair, Senator Rodrigues (617) 722-1114

with the same message.

When you have finished the call, e-mail Grace Ross, MAAPL coordinator. Tell her who your Senator is and that you asked them to get crucial foreclosure protections in the Senate Moratorium bill: maaplinfo@yahoo.com

Your voice gets results on Beacon Hill—please make your call NOW!

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Update: Some Banks/Landlords Try to Push Evictions Through District Court

A Bank or Landlord seeking to avoid delay by using District Court instead of Housing Court will not avoid the required delay for prosecuting an eviction case.

It has been brought to our attention that entities seeking to evict people may be trying to circumvent the Housing Court being closed by going to District Court.

First, everyone is reminded that if an eviction/summary process is filed in District Court, you have a right to file for it to removed back to Housing Court, and if you so file, it has to be transferred over to the Housing Court. However, at this point an evicting entity attempting to get around the Housing Courts being closed and therefore filing in a District Court will still be postponed.

It appears from the District Court standing order of 2-20 under III paragraph D, that if someone attempts to file an eviction case and follows the rules (uniform summary process rules) for filling out the summons & complaint and scheduling a hearing, the hearing’s normally scheduled, say, 10 days after the date on which the court case has to be entered (‘entry date”).

The standing order will then require that they wait at least 60 days from that date before they will get a scheduled date for the hearing that they listed on the summons and complaint. Therefore, the date required for answer and discovery should likewise be postponed even though that’s not explicit in the order.

You will not get penalized by not e-filing your answer and discovery forms by the answer date listed on the court summons and complaint. Please pass that information along as well.

Thanks for people continuing to ask me (Grace Ross, MAAPL Coordinator) questions. I will continue to research and provide answers to our broad community here on the MAAPL website.

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