The case of Kelly Johnson and Patricia O’Dell from Worcester could be a breakthrough. The Appeals Court Full Panel has this case as a referral from a Single Justice of the Appeals of a Worcester (Central) Housing Court eviction case after (as usual) an illegal and failed foreclosure.
This is an incredibly important case since it raises the right to see the original (wet ink) Note, among others.
Amicus questions were asked,* and apparently the number of Amici (Amicuses if you prefer) is historic (for a case that the SJC has not grabbed off the Appeals Court’s Docket)! Six—all member groups of MAAPL, none from the banks’ side. Three of these are our best briefs on the right to see the Note: including the forgery and legal violations when we see Notes, the non-affidaivts the banks try to pass off rather than have to produce the Note. AND our best attempt so far to explain how the Uniform Commercial Code works with Notes and securitized assets….
PLEASE come support these brilliant pro se litigants on Monday, July 8th at the Appeals Court, Pemberton Square, Boston!
Grace Ross, MAAPL Coordinator
*Appeals Court Amicus questions:
Kelly Johnson/Patricia O’Dell #2019-P-0317
The issues before the Court in this case are:
- Where a defendant in a summary process action in the Housing Court filed a timely appeal of an adverse judgment of possession and requested that the posting of an appeal bond be waived prior to the amount of the bond being set, does her failure to file such a motion within ten days of the judgment deprive the court of jurisdiction to entertain the motion?
- Where a defendant in a post-foreclosure summary process action has raised as a defense, the failure of the foreclosing entity to demonstrate that it (or the party on whose behalf the entity is authorized to act) holds the original note, has the defendant demonstrated a “not frivolous” appellate issue warranting the waiver of the requirement to post an appeal bond if the defendant is indigent? See G. L. c. 239, § 5; Eaton v. Federal National Mortgage Association, 462 Mass. 569, 586 n.26, 589 n.28 (2012). See also Mitchell vs. U.S. Bank Nat’l Ass’n, Appeals Court, No. 17-P-1445, slip op. at 3 (Mar. 4, 2019).
- Where there are multiple defendants in a post-foreclosure summary process action, but the motion to waive the posting of an appeal bond is based on the indigency of only one of them, must that defendant demonstrate her own standing to raise a “not frivolous” argument on appeal and, if so, what showing is sufficient?