Note to the Reader: it is critical to remember that this entire decision focuses on the Defendant-Appellant and whether he should be financially barred from prosecuting his defense of his home even if he meets the legislatively defined requirements to not be so financially barred. It is silent on the Court’s first and always threshold obligation to assess if there is even a “case or controversy” before it, that is whether the purported Plaintiff has an injury that the Court can even be called on to remedy. Near the end of its decision, the Court states even if King has a winning case, the Court is not going to address that because the Court guesses he may eventually lose the home to a future foreclosure.
Reader Caveats: This will be produced as a side-by-side soon. For now, have your copy of the temporarily published decision to compare – we have tried to put quotes from the draft decision in green.
This is a “close read”; it is intentionally cursory. Please see Amicus briefs, separate fact statement, old legislation referenced, etc. for a full picture. We felt this was needed because this opinion is cloaked in legal language and appears to represent jurisprudence.
“After foreclosing,” is how the Court begins by characterizing the posture of the case.
This is a legal conclusion that is disputed. (i) Alton King had exercised his right to defend by challenging the Plaintiff’s claimed title to the property after a purported non-judicial foreclosure. Bank of New York v. K.C. Bailey, 460 Mass. 327, 334 (2011). (ii) The Court recognizes that the basis of his appeal rests in part on a “meritorious” challenge. Bank of New York Mellon v. King, 485 Mass. 37, 53 (2020). Specifically, King has demonstrated evidence that the Right to Cure notice in the record is not strictly compliant with the requirements established in Pinti v. Emigrant Mortgage Co., 472 Mass. 226 (2015), Id. XXX
The Court was, therefore, aware of a factual meritorious challenge to the legal characterization of “after foreclosing.” If final adjudication analyzed the Right to Cure Letter under the standard set in Pinti or Fed. Nat’l Mtge. Ass’n v. Marroquin, 477 Mass. 82 (2017), then that would show the foreclosure to be void.
“Bank of New York Mellon (bank).” King, 485 Mass. 37 at 38. Here, the Court makes explicit that it has misidentified the nature of the purported plaintiff in the case. Note: The Court has now corrected this, to state that Plaintiff is in fact a purported Securitized Trust. It has not done any further due diligence. Under its own standard set in U.S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637 (2011), for instance, a review of the facts would further show a void foreclosure because the purported Securitized Trust could not have acquired the King mortgage under the Ibanez test. For instance, its constituting document, a purported Pooling and Servicing Agreement, is not executed (“execution copy” in public record at https://www.sec.gov/Archives/edgar/data/1377865/000090514806006722/efc6-2711_5971949ex991.txt
The Court identifies the monthly payment ordered pending Alton King’s appeal as “use and occupancy”. King, at 38.
(i) ‘Use and occupancy’ is a term of art, legally defined in the eviction chapter in MGL c. 239, § 3, in paragraph 5: “If the underlying money judgment in any summary process action for nonpayment of rent in premises rented or leased for dwelling purposes has been fully satisfied, together with any use and occupancy accruing since the date of judgment, the plaintiff shall be barred from levying on any execution for possession that has issued and shall return the execution to the court fully satisfied.” [emphasis added];
(ii) This is distinguished from ‘rent’ in Massachusetts jurisprudence, which is paid pursuant to a contract. See Lowell Housing Authority v. Save-mor Furniture Stores, Inc., 346 Mass. 426, 431 (1963).
(iii) the Notices to Quit sent to a purported post-foreclosure defendant almost always distinguish rent from use and occupancy. (“All payment accepted subsequent to the date of this Notice are accepted for use and occupancy only and not as rent. The acceptance of said payment will not in any way create a new tenancy.” [emphasis in the original] King “Notice to Quit”, 09-07-18} The purported post-foreclosure purchaser states in the Notice to Quit, that they will never accept rent; they will only accept use and occupancy. This is because there is a long history of case law distinguishing between ‘use and occupancy’, which does not require or establish a legal tenancy, and ‘rent’, which does.
Here the King Notice wording bars acceptance of what exactly is statutorily authorized in §6 and only what is so authorized “payment… as rent”. Separately, of course, this created promissory estoppel and the Plaintiff cannot accept such payments from King.
“whether the bond required for a defendant to appeal an adverse judgment under G.L.C. 239 §5 may be waived for a defendant who appeals from a decision in a post-foreclosure summary process action, and, if so, whether a court may still order a defendant to make use and occupancy payments to the plaintiff, even where the defendant’s bond has been waived.” King, p. 38. The Court misidentifies the issue presented in part, by presumptively framing it based upon a statute that the Legislature explicitly distinguished.
This narrows what the Court considers to be the applicable statutes. In contrast, a year ago in the famous Adjartey v. Cent. Div. of Hous. Court Dep’t, this same Court found that appeal bonds from summary process eviction cases are covered under MGL c. 239, § 5 and MGL c. 261, §§ 27A – 27G, because these statues overlap. 481 Mass. 830, 837 (2019).
After wrongly narrowing the discussion down to MGL c. 239, § 5, the Court goes on to wrongly quote the chapter which only allows for payments of rent, not as defined here and mistakenly named in the lower courts as use and occupancy. King, p. 38.
The Court then states again, in contradiction with the case law cited above:
“[T]hat, based on a consistent, harmonious reading of G.L. c. 239, §§ 5 and 6, that construes the language of the statutory scheme as a whole, the bond for a defendant . . . may be waived if he or she is indigent and pursuing nonfrivolous arguments on appeal. Further, we conclude that the postforeclosure defendant whose bond is waived may be ordered to pay use and occupancy to the plaintiff, based on ‘all or any portion’ of the reasonable rental value of the property.’” King, p. 38 – 39.
However, MGL c. 239, § 5 is not the statute applicable to § 6 that requires a court to waive costs for indigent litigants. The applicable statute, as will be shown below, is the aptly named Indigent Court Costs Law, MGL c. 261 §27A – 27G. In Adjartey, the SJC recognized and held this statute as applicable to the waiver of all court costs, fees, and extra fees, explicitly including an appeal bond, to every litigant with a nonfrivolous basis for any action, across all courts and all subject matter of cases. 481 Mass. 830 at 840.
“Terri Mayes-King defaulted on a promissory note.” King, p. 39.
That there was a legal default on a legal note is a legal conclusion based on two false presumptions: that there was a single mortgage note and it was legal. (i) The facts clearly show that there were two notes given to King at the mortgage closing. Together, these notes and their associated mortgages were an illegal, unconscionable mortgage loan package. This was in violation of MGL c. 183, § 64; MGL c. 183C and regulations under 940 CMR Chapters 7.00 and 8.00. Under the common law, this contract was unconscionable. See Drakopoulos v. U.S. Bank Nat. Ass’n, 465 Mass. 775, 788 (2013). The package was based on a fraudulent appraisal of $1,500,000. Combined, the mortgage loan total was $1,411,000. A year later, after the addition had been built on King’s home, the servicing bank did an appraisal; it came to only $1,250,000 and was used for the denial of the promised combining of the loans. The property was never actually valued at more than $1,200,000 by Longmeadow. In this way and others, Kings were fraudulently induced to sign the loan package.
(ii) By any definition of a mortgage, the first mortgage was not a mortgage loan as timely payments by its terms caused an increase not a decrease in principal due. The payments that Terri Mayes-King and Alton King made until early 2010 demonstrate an illegal and significant adjustable rate upward. King had been promised to never have to pay much more than introductory rate a he had been promised to be able to refi and combine the loans. And if the amount promised as their introductory rate had been the actual interest and principal required, their payments through 2010, by rough estimate, actually covered their installments through 2014 and there payments since modification would have meant they were more than up to date in 2018. Based on the initial rate they were solicited with, Terri Mayes-King and Alton King would not be in default if they had been able to pay on the original, actual, promised interest and principal of the note.
“The defendant was sent notice pursuant to G. L. c. 244, §§ 35A and 35B . .. .” King, p. 39. The meritorious challenge, referenced above, is based on the failure of that notice to comply with the law. Specifically, it violated paragraph 22 of the Defendant’s mortgage. Therefore, the evidence appears to show a valid foreclosure never occurred. The Court acknowledges its standard of review is de novo. This evidence runs counter to the Court’s consistent statements that the “bank foreclosed,” discussed above. King, p. 39. Of course, even presuming there could have been a valid foreclosure, it was not a bank that foreclosed on the King’s property (see discussion above and below).
“Bank…took title.” King, p. 39. With a void foreclosure, no Plaintiff takes or could take title. Although now corrected, the Court continually misidentified the plaintiff as Bank of New York Mellon. As a Bank is federal regulated, it is presumed to have a legally cognizable existence – A presumption that is false as to this purported Plaintiff trust. All purported Securitized Trusts have been on notice since the 01-07-11 Ibanez decision that without a fully executed constituting document, the Massachusetts courts will determine that they do not own the subject Note and mortgage.
“On May 31, 2019, the bank filed a motion for summary judgment on its claim for possession, to which the defendant filed no written opposition. Instead, at a hearing on the motion, the defendant requested time to obtain legal counsel, but the Housing Court judge denied the defendant’s request.” King, p. 39.
The description of the lower court case is factually accurate until the court reports this last. Facts show the court granted the request, but said that King would have to use counsel to file a motion for relief from judgment. However, the judge denied that motion.
“A single family, Colonial style, with 7,540 sq. ft. of living area, 5 bedrooms, 5½ bathrooms, an indoor basketball court, an in-law style apartment, and a 3 car garage.” King, p. 40. This is extraordinary. All of the classic tenant/landlord cases decided by the SJC, back to Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), never describe the house in question. Nor have any of the foreclosure related cases, starting with Com. v. Fremont Inv. & Loan, 452 Mass. 733 (2008). Why put this in when neither the Court nor the vast majority of readers would be realtors with enough information to have anything but a knee jerk reaction that this is really big house. It is legally irrelevant to the Constitutional Indigency test. Even in the SJC’s decisions of cases where sanitary code violations (“conditions”) are legally relevant to the amount of rent or use and occupancy, it is the conditions that are described not the property in detail. Here significant conditions rendering about 30% of it uninhabitable are completely omitted.
“In analyzing whether a waiver of the bond was appropriate pursuant to G. L. c. 239, §§ 5 and 6, the [Housing Court] Judge found that the Defendant was indigent under MGL c. 261, §§ 27A – 27G, and had nonfrivolous defenses….” King, p. 40. The Court only references the Right to Cure violation under Pinti. The evidence shows a Right to Cure letter completely devoid of the required mortgage language – the letter apparently references an apparent possible attachment. From the Court record, this attachment’s language is an exact replica of the language in Pinti found to render the foreclosure void by operation of law ab initio.
It should be noted that MGL c. 261, §§ 27A – 27G, is correctly referenced here as the basis upon which the Court found that the Defendant was indigent and had nonfrivolous defenses. This was sufficient to trigger the applicable waiver process provisions under MGL c. 261, §§ 27A – 27G. The Court does not reference those sections again, despite naming all the statutory sections sufficient to provide the applicable procedure and requirements for a waiver of an appeal bond. And relying on that foundation, in fact, this is the only applicable statute that provides procedures and requirements for a waiver of a §6 appeal bond.
The Court reflects that the bond was waived. King, p. 40. A $4,000 monthly use and occupancy payment was ordered. Id. Defendant appealed. Id. The single judge of the Appeals Court in Alton King’s case held that under Bank of New York Mellon v. Dundon, 98 Mass. App. Ct. 1103 (2020), which does accurately reflect the specific language of the relevant subsections of MGL c. 239, § 5, the Defendant could not be ordered to pay use and occupancy. King, 4p. 40 – 41.
The Court does reflect the judge in Dundon as correctly quoting MGL c. 239, § 5(e), that only allows payment for “rent which shall become due.” King, p. 40 (2020). Furthermore, this Court reflected that the Dundon judge accurately quoted §5(e) as forbidding the ordering any other payments. King, 485 Mass. 37, at 40. In Dundon, the court also accurately held that there is “no tenancy relationship,” and, therefore, the defendant does not owe rent. 98 Mass. App. Ct. 1103.
“bond is owed as rent from the purported foreclosure to the possession of the property by the plaintiff, if they win the appeal.” Here then, this Court accurately quoted the Dundon court’s accurately interpreting MGL c. 236, § 6. The SJC, however, then omits the final part of the Dundon court analysis. The Dundon court correctly pointed out that payments up until the beginning of the appeal could be in the bond and that any payments after that could only occur as a continuation of that bond obligation, that is: under the explicit wording of MGL c. 239, § 6, only if you owed the bond the you owed up until when the plaintiff took possession, that would authorize payments going forward during the appeal.
“b. The relevant statutory provisions. At issue in the instant case is the interrelationship of various provisions of G. L. c. 239, §§ 5 and 6.” King, p. 41. This explicitly misrepresents the entire legislative history of the actual applicable statutes where §6 relies upon MGL Chapter 261 §27A-G. Furthermore, this framing ignores the fact that behind the applicable statutes are Constitutionally guaranteed rights. Specifically, Massachusetts citizens have a Constitutional right to defend their life, liberty and property. Massachusetts Constitution Pt. 1, art. I. They have an inalienable right to property to both possession and ownership separately. Massachusetts Constitution Pt. 1, art. I. Perhaps most importantly, Massachusetts residents are guaranteed access to the court system to protect their rights without having to pay for it. Massachusetts Constitution Pt. 1, art. XI. The SJC, as the top interpretative court of our state, is responsible for not only enforcing but, in fact, is obligated to acknowledge when a statute is a direct legislative expression of those protections and hold it to be valid.
This framing of the issues is an explicit contradiction to the SJC’s decision on April 10, 2019 in Adjartey where the Court found applicable MGL c. 261, §§27A – 27G. MGL c. 261, §§27A – 27G, the Indigent Court Costs Law, was a stand-alone statute, passed in 1974 prior to the bond and waiver provisions in MGL c. 239, § 5 (1975). As affirmed again in Adjartey, Indigent Court Costs law applies to all litigants in all cases in Massachusetts. The question that the Court should have first posed here was which of the statutes—MGL c. 239, § 5, and/or MGL c. 261, §§ 27A – 27G – were controlling here. Legislative history, linked here (PDF), shows that the bond and waiver provisions in MGL c. 239, § 5, were unique in even their earliest iteration (1971) by including the concept of rent substitution when an appeal bond is waived. Those changes were only ever made to MGL c. 239, § 5.
Notably, MGL c. 239, § 6, was never amended, so that it was always dependent on the procedures and requirements are provided in MGL c. 261, §§ 27A – 27G, as are all other statutes in Massachusetts that allow for the imposition of a cost for a party to prosecute a court case of any kind. See MGL Ch. 231 §§ 98 & 99; see also MGL c. 231, §104. These statutes are also. appeal bond provisions without incorporated indigency waiver procedures; each must also rely on MGL Chapter 261 §§27A-G to allow for Constitutionally required option of indigency waiver.
This Court would then have had to show why the statute that was passed, which provided for procedure and requirements for waiver of appeal bonds (and potential ongoing payments during pendency of appeal) under MGL c. 239, § 6, was suddenly not applicable here. And it would additionally have had to show instead why the bond procedures and requirements under MGL c. 239, § 5, which were passed later, and whose applicability to MGL c. 239, §6, the legislature has explicitly always excluded, would control in §6 cases.
“Neither the bank, nor the defendant read [MGL c. 239, §5 and §6] together as an integrated whole, with common purposes.” King, p. 41. The reason, of course, is because the legislative history shows that these statutes have explicitly been distinguished from one another. The purposes are not “common.”
“Section 5 provides guidance on appeal bonds generally.” King, p. 41. This is a direct mis-statement of statutory language, progression and the legislative record. MGL c. 239, § 5, provides provisions on appeal bonds for the types of eviction cases covered under MGL c. 239, § 5. It explicitly excludes, and has always excluded, covering appeal bonds under MGL c. 239, § 6. “Except as provided in section 6, the defendant shall, before any appeal . . . give bond in a sum as the court orders, payable to the plaintiff. . .” MGL c. 239, § 5(e) [emphasis added].
The history of MGL c. 239, § 5, shows that it has always applied where a plaintiff in an eviction case is seeking to “recover possession.” This requires that the plaintiff had possession prior to the relationship with the occupant. That is explicitly not the mischief for which MGL c. 239, § 6, was passed in 1879 to address. Its first enactment was for situations where there was a purported foreclosure. Therefore, there would have been no legal relationship between a purported foreclosure purchaser and the property occupant. Even if there had been a mortgage, an occupant’s only relationship to the mortgagee would have been through the mortgage contract. If the foreclosure was legal, the mortgage was extinguished at the foreclosure and the occupant, if the previous mortgagor, became a legal stranger in the Common Law; if a bona fide tenant, he/she still was a legal stranger in the Common Law.
The early language of §6, more fully than the present, made clear that the title to the property, post-the-purported-foreclosure, had to have been previously established before any appeal bond could apply. Chapter 237 of the Acts of 1879.
MGL c. 239, § 6, was then expanded in 1956 to include situations where there is an outright (non-foreclosure) purchase of the property. Again, there would be no preexisting private legal relationship between a new purchaser and any occupant. There is not only legislative history here, but also top SJC interpretation on the history of the mischiefs for which the MGL c. 239, § 5, separately from MGL c. 239, § 6, was enacted.
“fair rental value of $5,000 per month”. King, p. 40. The Court states this as fact but the broker actually averred that they were not qualified to address conditions, which this Court has recognized lowers the rental value. Davis v. Comerford, 483 Mass. 164 (2019), as well as decisions all the way back to Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973).
The broker was apparently aware, but it is not clear that they put it into their testimony, that 30% of the property doesn’t have an occupancy permit. The realtor had said that the only comparable rental properties in Longmeadow were at most $3,300. (As per transcript and King’s own report).
“Section 5 (c) covers the conditions of appeal bonds demanded in cases in which the plaintiff at the time of establishment of the appeals bond seeks to recover possession of land or tenements.” King, 485 Mass. 37 at 41. As stated above, cases such as King’s are not about recovery of possession, and therefore MGL c. 239 § 5(c) is inapplicable based upon language this decision quotes.
“Except as provided in section 6…” King, p. 41 (2020). The Court accurately quotes the beginning clause in MGL c. 239 § 5(c) as to the bond provisions for an appeal from a classic landlord tenant Summary Process case, which explicitly exempts post-foreclosure (§6) cases, and then this Court ignores them for its entire analysis.
“All the words of a statute are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis to any one group of words.” King, p. 50 (2020), citing Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476 Mass. 377, 381–382 (2017).
The Court has an obligation to give meaning to every word or clause in a statute, or else it functions to amend the statute and would be violating the separation of powers guaranteed by the Massachusetts Constitution. “. . . the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” Massachusetts Constitution Pt. 1, art. XXX.
As MGL c. 239, § 5(c), starts by excluding its application to cases under MGL c. 239, § 6, the rest of this section is irrelevant and inapplicable to the case before the Court. The Court simply ignores the explicit language of the statute. That language has been in place since MGL c. 239, § 5, was amended in 1975, one year after the Indigent Court Costs Law, MGL c. 261, §§ 27A – 27G, was enacted. This 1974 law provided procedure and requirements for waivers of all court-imposed costs, including appeal bonds, such as MGL c. 239, § 6.
“Section 6 provides more particular guidance for the conditions of appeal bonds in the subset of cases in § 5.” King, p. 42. This is a mischaracterization by the Court, which just before quoted MGL c. 239, § 5(c), saying that it specifically did not apply in MGL c. 239, § 6 cases. This Court then quotes the full language of MGL c. 239, § 6, where the second section applies only post a regular purchase of a property. The Court’s analysis ignores the fact that MGL c. 239, § 6, explicitly distinguishes its purpose a being “until possession of the land is obtained by the plaintiff.” MGL c. 239, § 6, recognizes that the plaintiff in these cases (even if they do have a legitimate title to the property after a purported foreclosure) is obtaining possession for the first time. Jurisprudence has held that since 1934, Massachusetts has not recognized “constructive” possession.
“[F]or the purposes of a trespass action, there can be no constructive possession by an owner of property actually possessed by another. See Frost v. Johnson, 256 Ala. 383, 54 So.2d 897 (1951); More v. Urbano, 151 Conn. 381, 198 A.2d 211 (1964); McCausland v. York, 133 Me. 115, 174 A. 383 (1934); Jaycox v. E.M. Harris Bldg. Co., 754 S.W.2d 931 (Mo.Ct.App.1988); Green v. Pettingill, 47 N.H. 375 (1867); Daniels v. Coleman, 253 S.C. 218, 169 S.E.2d 593 (1969). The ‘fiction of “constructive possession” has no application when another is in actual possession.’ W. Prosser & W. Keeton, Torts § 13, at 77 n. 99 (5th ed. 1984).” Attorney Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284, 288–89 (1992).
“The purpose of all of these bond provisions is two-fold—to deter frivolous appeals and to provide compensation for plaintiffs for the loss of the property during the appeal.” King, p. 42–43. This Court is apparently hoping that the reader ignore the explicit language it had just quoted of MGL c. 239, §§ 5 and 6, where one’s purpose is to “regain possession” arguably lost during the appeal, and “obtaining possession” which has not yet occurred for a post-foreclosure purchaser.
(i) Of course, this is an inaccurate framing that serves the larger argument that the purpose is to compensate the plaintiff for the loss of the property during the appeal. In a purported post-foreclosure case, however, there is no loss of property, because the purported post-foreclosure purchaser was not in possession to begin with. A purchaser never obtains possession, until after completion of an affirmed final judgment, and the actual levying of an execution to physically remove someone, because there is no such thing as “constructive” possession.
(ii) The case law explicitly holds that a court could use bond provisions to deter frivolous appeals only if that is not being used as a form of discrimination against those who are indigent. Equal protection requires that all appeals be assessed equally for frivolousness or not. No one has been able to find nor to produce a civil case in which the appeal was assessed for frivolousness, let alone barred, where all financial costs could be borne by the Appellant.
(iii) Once legal indigency has been established, a waiver of costs to prosecute the case is guaranteed as a constitutional right in Massachusetts, Art. XI.
“The Indigent Court Costs Law exists to ‘ensur[e] that the doors of the Commonwealth’s courts will not be closed to the poor.’ Reade, supra. The equitable and consistent application of this law is therefore critically important to safeguarding every Massachusetts litigant’s ability to ‘obtain right and justice freely, and without being obliged to purchase it.’ 14 Art. 11 of the Massachusetts Declaration of Rights.” Adjartey, 481 Mass. 830 at 840.
“The Legislature has, however, included a waiver provision for indigent defendants. The waiver provision appears in § 5 (e):” This is untrue, as the waiver provision exists for all costs where a legally indigent litigant is denied access for a non-frivolous need to prosecute their case – passed previously in MGL C. 261 §§27A-G.
“The court shall require any person for whom the bond or security provided for in [G. L. c. 239, § 5 (c),] has been waived to pay in installments as the same becomes due, pending appeal, all or any portion of any rent which shall become due after the date of the waiver.” Here, the Court quotes all of MGL c. 239, § 5(e) and accurately reflects the sentence that rent is only substituted as to waived bonds provided for in MGL c. 239, § 5(c). King, p. 48. MGL c. 239, § 5(c) explicitly excludes MGL c. 239, § 6, i.e., appeal bonds. Therefore, the explicit legislative language states substitute rent cannot apply in these cases.
Again, the Court, skips over the legislatively provided limitation that the payment of installments… can apply only where a MGL c. 239, § 5(c) bond has been waived. This is not, for instance, the bond in MGL c. 239, § 6. Therefore, this Court cannot apply §5 to a bond provided for in MGL c. 239, § 6, unless it vanishes the explicit legislative language. Again, to ignore this clause and give it no force or effect is in direct violation of the requirements for legislative interpretation. To ignore the clear distinction provided in the legislative language means that this Court would function as a body amending body the statute. This is, of course, a power limited to our legislature. Again, it is the second clear violation of the Constitutional separation of powers in this decision, guaranteed to all Massachusetts residents in our Declaration of Rights, Article XXX.
“A court shall not require the person to make any other payments or deposits.” The Dundon Court quotes this next sentence, limiting any imposition in the sentence before to only “rent as it becomes due”. Relying on the clear differentiation between rent and post-judgment use and occupancy in the earlier section 3 of Ch. 239, the term “rent” must be given the legislative meaning differentiating it from “use and occupancy”. §5(e) explicitly then excluded “use and occupancy” as not equivalent to “rent as it becomes due”. On both bases, a “monthly payment” “as it becomes due” is not legislatively authorized nor required as a substitution for a waived appeal bond.
“c. Use and occupancy upon waiver of the bond. Having concluded that an appellant in a postforeclosure summary process action may seek a waiver of the bond under § 5, we must now determine whether a postforeclosure appellant for whom the bond has been waived may be ordered to make use and occupancy payments ‘as rent’ pending his or her appeal.” King, p. 45.
In all of the statutory history relating to procedures for waiving bonds, MGL c. 239, § 5, is the only section of any Massachusetts statute that provides for a party having to pay rent pending the appeal when the appeal bond was waived. Given that the statutory history shows rent substitution only for appeal bonds in MGL c. 239, § 5, and given that MGL c. 239, § 5(c), explicitly commences by exempting cases that fall under MGL c. 239, § 6, the possibility under legislative authorization and allowance of ever having to pay a rent, if the bond was waived, is already determined before § 6 commences. It is impossible.
“The court in Kargman v. Dustin, 5 Mass. App. Ct. 101 (1977), emphasized the historical importance of this approach:
“The requirement that rent becoming due pending resolution of an appeal be paid in lieu of bond as a condition of appeal remained in effect with minor changes for more than a hundred years. In 1969, G. L. c. 239, § 5[,] was amended to permit the waiver of the bond requirement in the case of a tenant with insufficient funds. St. 1969, c. 366. Two years later, however, the Legislature added the present final sentence to § 5 which permits a judge, who has waived security, to require a tenant to pay ‘all or any portion of any rent which shall become due’ . . . as a condition of remaining in possession of the premises pending appeal….”
(i) The Kargman decision explicitly states its purpose as only applicable to the mischief Ch. 239 §5 has always been about: “Resolution of the issues presented on these appeals calls for an attempt to balance the rights and obligations between two socio-economic groups, landlords and tenants.”
Kargman is explicitly not applicable to post-purported foreclosure cases where Plaintiff’s original possession is not already established and, for instance, the traditional post-purported foreclosure defense of challenging title is well established.
(ii) Chapter 239 §5(c) and §5(e) had not even been passed into law – the original version passed in 1975 but Kargman is addressing only the 1971 amendment. §5(c) and (e) were part of one continuous paragraph in the 1975 amendment, which also started by exempting §6 from its provisions – still unchanged through future amendments of that language unto this day.
(iii) The Kargman decision states that the basis for its holding that the obligation to pay rent pending appeal is ‘fair,’ is because paying rent is already a requirement of the private contract between tenant and landlord: “Such a security order is by no means unfair to the tenant since he is being required to do no more than fulfill a contractual obligation which he voluntarily assumed at the outset of his tenancy (Bell, supra, at 482; Cooks v. Fowler, 437 F. 2d 669, 674 [D.C. Cir. 1971])”
Explicit here is (a) there was no contract of occupancy between King and the (non-existent) Securitized Trust; (b) with the extinguishment of the mortgage contract – without which contract this purported Plaintiff’s case is moot: the Plaintiff has no ownership, no standing, and there is no controversy within the subject matter jurisdiction of this Court – King and the Plaintiff were legal strangers; (c) King has no “voluntary” “contractual obligation”.
(iv) In fact, Kargman stands for the idea that, if that which is under appeal is the basis for charging amounts that would bar the legally indigent from appealing, this is problematic. That amount was not contracted to be paid and is waivable. “It is one thing to require a tenant as a condition of appeal to pay accruing rent which she has already contracted to pay in her lease. It is another to order the tenant, particularly one lacking sufficient funds, to pay the increase, the ultimate legality of which is the subject of pending litigation in another court…. Here, in contrast to the cases of McDermott and Adelman, the Kargmans have not been deprived of rent to which they have current entitlement…. “
(iii) The distinction between the purpose of the cases in which there is an ongoing tenant/landlord relationship under MGL c. 239, § 5, in which a landlord has a monthly reliance on rent, versus cases concerning the situation in MGL c. 239, § 6, was laid out clearly in Bank of New York v. Apollos, 2009 Mass. App. Div. 55 (Dist. Ct. 2009), which this Court ignores here:
“The policy concerns prompting courts to allow rental payments to continue during the pendency of an appeal are not applicable in a mortgage foreclosure case. The legislative intent underlying §5 is 1) to protect against frivolous appeals and 2) to provide some financial protection for landlords during the pendency of appeals. Kargman, supra at 113, 359 N.E.2d 971. Clearly, a landlord needs continuing rental payments to maintain the property while a tenant is still in possession. The responsibilities of a mortgagee are different, and might be deemed less immediate than those of a landlord: and the language of §6 articulated a different legislative response to those needs. The policy concerns articulated in Kargman are largely inapplicable in mortgage foreclosure cases.”
In fact, in King FN 11 cont., based on its having already concluded the opposite of the specific §5(c) exclusion of its provisions applying to §6 and the specific §5(e) requirement of substitute rent payments only for waived §5(c) bonds, this Court does discuss Apollos. It tautologically says Apollos’ clarification of the wording of §6 “that, “[i]f the Legislature intended that periodic payments be made directly to a victorious plaintiff, there would be no need to mandate a separate action.” This reasoning fails to acknowledge that use and occupancy payments are ordered in lieu of the bond. If a bond has been waived, whereupon use and occupancy payments are ordered in its stead, there is no need to initiate an action to recover on the bond under § 6.”
“Thus, the rent a court may require a party to pay under § 5 (e) is distinct from the bond required by § 5 (c) or 6, in that it is paid in lieu of that bond.” King, p. 46. The Court here ignores that MGL c. 239, § 5(e), explicitly provides that it applies only to the bond required under MGL c. 239, § 5(c). The Court restates it, and misstates it, to say the opposite. This is explicitly the opposite of what the legislative language says. It misses the distinction quoted in Kargman, that the reason for the unique provision in cases under MGL c. 239, § 5, is because, in a traditional tenant/landlord situation, the landlord’s calculus for paying expenses on the property was related to renting the property. This, of course, is the opposite of the situation after a purported foreclosure. When the banks, securitized trusts, and Fannie Mae evict, they never allow a rental while they attempt to market the property to a new party. Therefore, it is not part of their financial calculus. That is why the statute has never suggested rent payments when a bond is waived under indigency, except in the classic tenant/landlord cases under MGL c. 239, § 5, where, as Kargman points out, the tenant had voluntarily entered a legal contract for the rent.
This is the third time in this decision in which the Court literally rewrites the wording of statute. Such amendment is reserved to the powers of the legislature. For this Court to do so again violates the separation of powers, Massachusetts Constitution, Pt. 1, Art. XXX. The reader is reminded that separation of powers is there because any exercise, by one branch of the government of Massachusetts, of the powers of another, threatens our individual rights.
“First, § 5 (e) refers to “any rent,” which embraces a broad interpretation of the word.” King, p. 46. This Court then goes on to quote Ali v. Federal Bur. of Prisons, 552 U.S. 214, 219 (2008), where the term “any” has an expansive meaning. This is, however, not the most straightforward and logical way to interpret this statute. Given that MGL c. 239, § 5, uses only the terminology, ‘rent as it becomes due’, § 5 provides that anything that is not rent cannot be ordered. “Where the legislature uses the same word in several sections which concern the same subject matter, the words, ‘must be presumed to be used with the same meaning in each section.’” King, p. 47, citing Commonwealth v. Wynton, 459 Mass. 746, 747 (2011).
Here, the sections of MGL c. 239, in fact, use “use and occupancy” as an explicitly separate term, applicable only in the setting of post-judgment leased housing (MGL c. 239 §3). The Court ignores this, claiming that §5 and §6 are “the same subject matter,” when, in fact, legislative history shows the opposite is true.
This misguided logic leads to the Court’s conclusion that, “G.L. c. 239, § 5, governs appeals in diverse cases not limited to traditional landlord-tenant relationships. Adjartey, 481 Mass. at 834 n.7.” King, p. 47.
(i) This may be true, but that does not mean that the Court can wipe out the explicit statutory limitation of not allowing MGL c. 239, § 5(e), to apply to MGL c. 239, § 6.
(ii) Re the Court’s cite to Adjartey, footnote 7 to argue §5(e) applies to more (implied all) eviction cases beyond traditional landlord-tenant ones; the footnote that recites all parties eligible to bring a Summary Process action. For instance, the first example is: “(1) persons whose premises has [sic] been forcibly entered;….” This Court is straight-facedly maintaining that if someone has forcibly entered your home, and stayed, and you are trying to evict them then, what? You would be paying them rent? Or they would be paying you rent?
This then leads to this Court’s disingenuous footnote 9:
“We reject the defendant’s argument that the Legislature, by explicitly referencing in § 5 (e) ‘bond[s] or securit[ies] provided for in’ § 5 (c), ‘explicitly referenced the [§]5 (c) bond as the only bond that was subject to the continuing installment of rents that shall become due,’ and therefore excludes bonds whose conditions are set pursuant to §6…” King, p. 47.
This specific statute does provide explicitly that. This is not an “argument.” It is a legislative fact. Then, this Court just simply states nonetheless that the opposite is true. “[A]s discussed supra, § 5 (c) establishes the various requirements for appeal bonds in cases in which defendants remain in possession of land or tenements.” Id.
This is the fourth place where the Alton King decision literally re-writes the exact inclusions and exclusions defined by the legislature. Act. XXX is again implicated.
“The legislature has recognized that ‘time lost in regaining [real property] from a party in illegal possession can represent an irreplaceable loss to the owner.’” Slip op. at 17, citing Davis v. Comerford, 483 Mass. 164, 180 (2019). The Court herewith misapplies Comerford, which is an exposition of MGL c. 239 § 8A provisions.
(i) That MGL C. 239 § 8A provisions cannot apply in post-purported foreclosure eviction cases is explicit in statutory language and affirmed in this own Court’s recent, applicable caselaw. In Bank of Am., N.A. v. Rosa, 466 Mass. 613 (2013), this Court repeated the Plaintiff banks in this combined case that “G.L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties…§ 8A expressly limits the use of defenses and counterclaims in summary process actions to those seeking “to recover possession of … premises rented or leased for dwelling purposes” and itself referred “…to litigate defenses and counterclaims in a postforeclosure summary process action than is required to litigate similar defenses and counterclaims that regularly arise under G.L. c. 239, § 8A, in a landlord-tenant summary process action”. This Court affirmed the banks’ black letter language interpretation that §8A only applies to “premises rented or leased” referring to the statute as applicable “in a landlord-tenant summary process action” distinguished from “a postforeclosure summary process action.”. Therefore, the Court’s attempt to stretch Comerford to cover post-foreclosure eviction cases is in contradiction to its own holding in that case.
(ii) In Comerford, the Court also quoted and relied upon Lowell Hous. Auth. v. Save-Mor Furniture Stores, Inc., 346 Mass. 426, 430 (1963), stating: “The payment for use and occupancy imposed by this statute was intended to ‘prevent any tenant from occupying premises without making compensation to his landlord.’” Davis v. Comerford, 483 Mass. 164, 169–70 (2019). This points to the distinction that Lowell Housing made for post-foreclosure cases and the previous, much more clear-cut and irrefutable holding, in fact, the entire purpose of the Court’s holding, in Bank of Am., N.A. v. Rosa.
“…legislative requirement to pay rent upon waiver of bond ‘redress[ed] an imbalance in summary process appeals’” King, p. 48. The Court then misapplies Kargman again, where the legislative record only discusses traditional tenant landlord cases. The Court then uses this misapplication to further misconstrue that, “these ongoing payments may be even more vital, given the greater complexity and higher stakes, unless lengthier litigation involved in post-foreclosure summary process actions.” King, p. 48.
(i) As pointed out above, foreclosing entities explicitly do not re-rent and so expect no rent if they evict, and so lengthy litigation does not deny them more months’ rent.
(ii) Further, the subject cases should actually be quite short. Instead, the courts of the Commonwealth are not following all legal precedent and discharging the functions of a court, which is to adjudicate only cases where a plaintiff can show a right was violated and this violation requires redress by this court.
Every Summary Process/Eviction case, as held unequivocally in Rental Property Mgt. Svcs. v. Hatcher 479 Mass. 542 (2018), requires the Plaintiff to be owner or lesser of the property. This means that every post-purported-foreclosure case must first determine the threshold issue of standing. If our courts did so, post-purported foreclosure cases would actually be much shorter than classic contested tenant/landlord cases. This is because frequently, as here, Plaintiffs do not meet the requirements for standing. The test for standing is a threshold test. So it should be at the very commencement of every one of these cases.
“Because standing is a question of subject matter jurisdiction, Indeck Me. Energy, LLC v. Commissioner of Energy Resources, supra at 516, 911 N.E.2d 149,it must be established irrespective of whether it is challenged by an opposing party. See Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812, 429 N.E.2d 329 (1981) (‘Courts … have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent, regardless whether the issue is raised by the parties’). See also Mass. R. Civ. P. 12(h)(3), 365 Mass. 754 (1974) (‘Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action’).” HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199 (2013).
See also Abate v. Fremont Inv. & Loan, 470 Mass. 821, 828 (2015); Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Mass. R. Civ. P. 12 (b) (1), (b) (3), (h) (3), 365 Mass. 754 (1974); Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91 , 99-100 (2011).
“For subsequent purchasers of such property who are not banks, the burdens may be even greater.” King, p. 48. This is dicta and explicitly distinguished from the present case. Throughout its decision the Court has referred to the bank (which it now concedes is not a bank, since it has corrected the name of the Plaintiff) as merely the purchaser. Even with this essential correction to a Securitized Trust, however, in treating this non-existent securitized trust as a “purchaser” at the purported foreclosure sale, this Court papers over that this is the very same non-existent Securitized Trust that, as the purported foreclosing mortgagee, had pretended to own one of the two mortgages in King’s unconscionable, void “package” of two mortgages, and had pretended to hold the Note for the predatory, adjustable rate mortgage in that “package,” and which was responsible for complying with all the many legal requirements for non-judicial foreclosure and, given that it purported to “buy back” King’s property from itself at the foreclosure auction, was responsible also for complying with every one of those requirements at the standard of “strictest compliance.” All of the evidence for this is now on the public record, or in the record of this case, or both. It is all available to this Court. Nonetheless, this Court here equates a “plaintiff” that is responsible for this pile-on of illegality with a third-party, arms-length purchaser in good faith that would not be responsible for it.
In this entire decision, the Court never addressed the fact that the purported Plaintiff is a purported Trustee, purportedly representing a non-existent securitized trust, nor that it is the mortgagee (or standing in the shoes of the mortgagee) who created the situation in the Alton King case with a completely unenforceable mortgage that was never modified to provide the necessary restitution, nor all of the other actions taken by the various purported mortgagees (and servicers) who stepped into the shoes of the originator, taking on the predatory nature of the loan. See Fremont Inv. & Loan, 452 Mass. 733 (2008); see also Drakopoulos v. U.S. Bank Nat. Ass’n, 465 Mass. 775 (2013). Additionally, the Court throws out its own longstanding legal precedents, reaffirmed in its holding in Bevilacqua v. Rodriguez, that if a party is sold a bad/void purported title to property, its proper recompense comes from the party that sold them the bad bill of goods, not the homeowner. 460 Mass. 762, 778 (2011).
“[J]ust as there are due process implications when a tenant remains in possession without paying rent, see Lindsey v. Normet, 405 U.S. 56, 67 n.13 (1972), so too are there due process implications when a tenant at sufferance in the postforeclosure context remains in possession without paying use and occupancy.” Alton King slip op., at 17 – 18.
This misstates the Supreme Court’s holding in Lindsay v. Normet. This Court implies that the due process issue in that case was related to non-payment (fault of the tenant). However, the U.S. Supreme Court held that a law requiring double-charging a defendant-tenant who was appealing in a classic eviction case, so that the defendant could not afford to pay the bond and appeal, was a violation of Fifth Amendment due process. 405 U.S. 56 (1972). Concurring opinion stated it was additionally a Fourteenth amendment violation.
The Court here reverses that purpose to imply it is a constitutional due process violation to not pay use and occupancy to a likely non-owner after a purported foreclosure that the Court recognized, in mentioning the Pinti violation in this case, could be void. This Court cites Lindsay v. Normet to justify barring a defendant who is legally indigent from prosecuting a nonfrivolous case. And it uses this misdirection to claims that this is a basis for an equitable balancing of the indigent defendants’ access to the courts, against the multi-billion-dollar industry players.
Again, Lindsay v. Normet addresses only classic tenant landlord cases. It actually held: “The discrimination against the poor, who …. cannot post the double bond, is particularly obvious. For them, as a practical matter, appeal is foreclosed no matter how meritorious their case may be. The discrimination against the class of FED appellants is arbitrary and irrational, and the double bond requirement of ORS § 105.160 violates the Equal Protection Clause.”
This Court then goes on to adduce several other purported factual elements that are not allowed under the equity jurisdiction of the Court, each for well settled reasons.
“Defendant had not paid any of his mortgage for 21 months.” King, p. 51.
“His failure to cure resulted in the foreclosure.” King, p. 52.
We know for all of the above reasons that the mortgage was unenforceable under jurisprudence and the foreclosure was based on all sorts of other illegalities outside of the Defendant’s control.
“The real estate taxes on the property were also approximately $29,040 per year.” Id.
“The defendant was clearly hopelessly over his head, and had been so for years.” Id.
Neither of these are relevant legal factors. The Plaintiff had exercised its option, which was either to go after the money that was owed or to foreclose and, if it desired, then go after the deficiency. (Restatement (3rd) of Property: Mortgages (1997) Therefore, the length of time that the mortgage had not been paid and the fact that there was a failure to cure (which would be required elements for a foreclosure) were outside the Defendant’s control. Instead, these were actually a result of calculated legal options taken by the Plaintiff purported trust.
The Court ignores that, during that right to cure period, the purported trust should have been modifying the Defendant’s purported mortgage loan pursuant to MGL c. 244, § 35B, given the costs that it was going to face to foreclose. These include expenses to foreclose. All foreclosing entities have the studies of how long it takes to foreclose in each state, and then to evict where that is a separate process, as there is in Massachusetts. These calculate the tax costs for those months, balanced against the loss from an affordable modification that is within the foreclosing mortgagee’s ability to estimate, and so make an informed choice.
“The defendant was clearly hopelessly over his head, and had been so for years.” This statement serves to put blame on the victim – even where the Court has acknowledged a violation (Pinti) by the purported securitized trust that would render the purported foreclosure void, and therefore render this eviction case equally void ab initio – all by the Plaintiff’s actions. It is therefore highly prejudicial.
(i.a) Alton King was over his head when he got the package of two original mortgages, illegally marketed to him based on an untrue appraisal of $1,500,000 for the property. Further, legally required disclosures were never given to him before he signed, and there was a complete misrepresentation to him that first mortgage was a mortgage – that if you pay on it over time, you build equity in the home. No one explained to King that the larger loan was not only an Adjustable Rate Mortgage, but that it had “negative amortization,” i.e., the longer he paid on it, the more he would owe.
(i.b) Further, the mortgagee, itself, was responsible for the fact that the second loan (which was for an addition) never led to construction that was eligible for an occupancy permit. This, therefore, created the situation where Alton King did not have rental income, which should have come from that construction part of the loan package.
(i.c) Further, the $410,000 addition on King’s home was so shoddily constructed, that he won his lawsuit against the construction company for the defects. Instead of letting King use the litigation proceeds to have these construction defects fixed, however, the servicer for the then ‘mortgagee.’ These defects are still unrepaired. That part of King’s home still cannot be occupied. When the servicer prevented King from repairing the defects, therefore, it deprived him of income that he had anticipated receiving from the in-law apartment that was part of the addition.
(ii) So, every defendant who has been knowingly given an illegally predatory, overpriced loan, by an industry that ramped up supposed values far beyond what was actually the real value of the properties, was a victim of the predatory lending scheme and scandal that violated dozens of laws, rendering each of those mortgage originations illegal. Those defendants were all “hopelessly over their heads” the day that they signed such a mortgage loan. The problem here is that the Court ignores any of its traditional obligation to scrutinize the perpetrator’s actions, and blames the victim. The industry perpetrated these legal violations in a structurally racist manner. This decision guarantees a continuation of this practice, by intentionally continuing to overlook these violations, where this Court jettisons every court’s obligation to assess standing; rules, without subject-matter jurisdiction, for the perpetrator; and accompanies this with blame-the-victim prejudicial dicta.
“While we are mindful of the plight of the indigent we are also cognizant of the fact that the duty to care for the poor and the needy is on the state and not on the landlord,” the SJC states, citing Jones v. Aciz, 109 R.I. 612 (1972), , King, p. 52.
This Court relies on this inapplicable decision from Rhode Island, which is not controlling, and which is at best suggestive, to justify denying Massachusetts residents their rights under our Indigent Court Costs Law, as well as denying them their Massachusetts constitutional rights to a waiver of the court costs for defending themselves and their property, that is, their homes.
(i) Jones is a Rhode Island Supreme Court case. It is difficult to understand why the SJC would rely on this to interpret the Constitution of Massachusetts, which specifically guarantees “[Every subject of the Commonwealth] ought to obtain right and justice freely, and without being obliged to purchase it.” Massachusetts Constitution Pt. 1, art. XI.
(ii) Jones v. Aciz consolidated two cases dealing with tenants evicted for nonpayment of rent. 109 R.I. 612, 616 – 617 (1972). There are much more recent and relevant cases within the Commonwealth that directly address the issue before the Court, most notably, Adjartey, 481 Mass. 830. Purported postforeclosure mortgagor-defendants in eviction cases brought Adjartey – and this Court, scarcely more than a year ago, held that the “shall” language and “liberal” MGL Ch. 261 §§27A-G applied.
(iii) Jones uses aspirational language, whereas Massachusetts statutes by that time had already been amended from ‘may’ to ‘shall’ waiver language. Compare Chapters 290, 3660 of 1969 and 347 of 1971.
(iv) Jones came down two years before passage of the applicable Massachusetts Indigent Court Costs Act, MGL Ch. 261 §§27A-G.
(v) Jones does not actually absolve the state of having to cover any costs that deny an indigent litigant his/her constitutional right to appeal or defend themselves in court – the citation says the landlord should get paid; it does not absolve the state’s obligation to make those payments!
“The reality of the situation is such that, even assuming the defendant has a meritorious claim under Pinti, 472 Mass. at 236-237, 33 N.E.3d 1213 , if he cannot afford use and occupancy that amounts to less than his monthly mortgage payment — an amount he has not been able to afford for years before this litigation commenced — the bank will likely have no choice but to reinstate foreclosure proceedings.” King, p. 53.
This “reality” only becomes even a possible “reality” if this decision is not rescinded – otherwise this Court is modelling not testing for standing, not addressing legal violations “apparent” to a court and ignoring well documented structurally racist practices of the mortgage industry – all in the court record or public record. As well, it requires this Court’s explicit reaffirming the Court’s violation of the requirements of all of the indigency waiver provisions that do apply in a MGL c. 239, § 6, case, that a meritorious claim, when a party is legally indigent in a direct violation of the statutory history, the statutes, the case law, the jurisprudence, and the Constitution. Instead of a new “reality” it represents a shift into a parallel legal universe in this moment by this particular SJC as a departure from actual legal history and reality.
Having refused to consider the applicable statutes, and having ignored the Constitutional guarantee to Massachusetts residents to be allowed to defend themselves (Art. I, Mass Declaration of Rights), as well as to have access to the court (Art. XI) if you can show you would have to purchase it by foregoing the necessities of Life (Art. XI, MGL Ch. 261 §§27A-G), and to defend against the illegal taking of one’s possession and ownership of property (Art. I), thereby losing your right to a full hearing in your defense (Art. XII), the Court then leads into its proposed balance test for whether it will provide any scrutiny of the purported Plaintiff in this and similarly situated cases, and yet:
(i) No balancing test requires litigants to prove, in one case, that they will prevail against all future assaults on their rights – long after the present court case.
(ii) This is the “reality of the situation” only if no Court ever reviews the evidence showing the fraudulent inducement to sign these mortgages; the broken promises about them; that the purported Securitized Trust does not exist; that, even if it did exist; King’s adjustable rate, negative amortization loan was never transferred into it, etc.
(ii) This ‘reality’ assumes that the Plaintiff will institute another illegal foreclosure.
(iii) This assumes that the Plaintiff will not do the math and modify the loan instead.
(iv) This assumes that no authority will soon address the structural racism apparent in this Industry’s activities and in this case.
(v) This assumes that Alton King does not win the lottery (as another, pro se homeowner defendant did… really! $1 million per year for life.)
The Court then goes on to say that the “bank” “will likely have no choice but to reinstate foreclosure proceedings.” King, p. 53. On the contrary, “the bank” had a choice and it would still have a choice. Neither it nor the non-existent securitized trust can legally accelerate an unconscionable mortgage. (Restatement (3rd) of Property: Mortgages) The acceleration is the choice of “the bank,” but it was a choice to which it had no right under the jurisprudence. In fact, our Courts are supposed to ensure that the “bank” has no choice but to comply with the civil and criminal law. To say that “the bank” (or the non-existent securitized trust) here will have no choice but to violate those laws yet again, and purport to foreclose yet again without owning King’s unforeclosable mortgage or holding his Note, is simply legally untenable for any court, let alone this one. This Court is supposed to be the top court of our state; to take its authority directly from our Constitution; and to uphold the U.S. Constitution, including its 5th and 14th Amendments, as well.
Here, the SJC has vastly overreached its authority. It has grabbed and purported to exercise powers that our Constitution grants separately, and only, to our legislature. It did this thereby giving a complete pass to all of the illegal and structurally racist acts of this Plaintiff and, by purporting to make this ruling binding on all lower courts, to require them also to give a similar pass to all similarly situated foreclosing entities, while similarly damaging defendants of color predominantly, as well as others similarly situated.
Then, the Court sets forth an un-”fair balancing test” that is in direct violation of almost every single one of the principles of equity (e.g., Court can assert equity jurisdiction only where there is no remedy at law (e.g., Indigent Court Costs Statutes (waiver & challenge); Defrauded purchaser’s remedy is against seller, not homeowner; Deficiency statute, Ch. 244 § 17A&B; MGL Ch. 244 § 35B); Equity will not suffer a wrong without a remedy (i.e., equity will not allow a person whom it considers as having a good claim to be denied the right to sue); Equity looks to substance and not the form; Equity follows the law (i.e., equity follows the rules of common law unless there is a good reason to do the contrary); Where the equities are equal, the earlier in time prevails (i.e., where rights are equal in worth or value, the right created earlier takes precedence over the right created later); Whoever seeks equity must do equity; Whoever comes to equity must come with clean hands (see equitable remedies); Equality is equity; Equity looks on that as done which ought to be done (see conversion); Equity will not assist a volunteer (see voluntary settlement).
The equitable elements that this Court enumerates for its “fair balancing test,” however, are telling. Some are barred because the Court willfully failed to apply relevant legal remedies. Some it confected, as purported equitable principles, when they are not: “Fair rental value of the property,” (excluding consideration of jurisprudentially-required actual conditions in the property); “The merits of the defense,” (here measured against what is imagined to happen after conclusion of this court case – and without ever testing for standing); “Length of not paying mortgage,” (mortgage, even if legal in the first place, had been extinguished at the option of the mortgagee; remedy at law is the deficiency statue, MGL Chapter 244 §17A; mortgagor is barred in the caselaw from having any say in how long a mortgagee delays auction – see Seppala & Aho Constr. Co. v. Petersen, 373 Mass. 316, 320, 367 N.E.2d 613 (1977)); “The real estate taxes on the property,” (a known foreclosure recovery expense for which Plaintiff should accounted already in deciding to foreclosure rather than modify the mortgage – MGL Ch. 244 §35B); “Expected duration of the litigation,” (so if you ask for your constitutional right to a Jury Trial it is more OK to be priced out of litigating at all; also, a Defendant has no control over how the Plaintiff delays the case, e.g., by the common failure to timely comply with discovery requests); “Relative financial conditions,” (i.e., in contradiction to all jurisprudence and all principles of equity, the Court choose the richer party to get financial benefit at the expense of someone recognized as legally indigent).
The Court’s “fair” balancing test remarkably does not include the long-settled, constitutional and legal recognition of the magnitude of the irreparable loss of one’s property or home, as opposed to a mere delay or loss in terms of money; the lack of a mortgagee’s chain of title or of “authority and jurisdiction” to foreclose (Ibanez), or numerous other well established violations that show a claimed post-foreclosure ownership of a home to be void; review of a Plaintiff’s claim to standing, or even the potential lack of legal existence of a Securitized Trust that lacks an executed founding document – to name a few. And of course, no “fair balancing test” can even be reached until the plaintiff has met its burden of proving up standing based on primary evidence, and the Court has addressed and “resolved” standing as a “threshold” matter.
What is most remarkable (in summary):
Throughout this entire decision, the Court ignores its clear “power and obligation to resolve an issue as to standing” where at least one standing issue is “apparent” to it: a Pinti violation that would render the foreclosure void (Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 547 (2018). Standing is a threshold issue (see Abate and above). It must be decided even if an evidentiary hearing is necessary (see Abate). Removing King’s presence now by pricing him out does not remove the Court’s “obligation” to establish that the Plaintiff indeed has standing. HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199–200 (2013). Standing must be established in even “extremely narrow” and “uniquely narrow” proceedings. Id. at 199.
The only means this Court can employ to attempt to avoid an “obligation,” which for all the above reasons in its own jurisprudence it should have already fulfilled, is to hold:
- the opposite of statute;
- the opposite of the plain meaning of the statutory wording;
- the opposite of the technical interpretation that accepting payment “as rent” creates a tenancy (see above);
- the opposite of actual legislative history and distinct purposes of the mischiefs sought to be addressed ever since the first enactment of MGL c. 239, § 5, and the separate enactment of MGL c. 239, § 6;
- the entire history of the unique provisions inserted into MGL c. 239, § 5, which do not apply for any other appeal bond waivers, including those under MGL c. 239, § 6;
- that MGL c. 239, § 6 is unconstitutional given that it itself does not include indigency waiver provisions and so must incorporate §5 such provisions while other statutes that also apply bonds and also do not incorporate separate bond waiver procedures but like §6 depend upon MGL c. 261, §§ 27A – 27G provisions;
- the opposite of case after case not only of its own jurisprudence, twisted 180°, but even that of the U.S. Supreme Court;
- that the function of our courts under this decision is not to do justice to the parties equally, under the law, but to hear the defense only enough to remove it, at least where an entity (that evidence may show does not even legally exist) claims to hold a title after a foreclosure, regardless that the evidence potentially shows the foreclosure sale to be void, and where this is apparent to the Court – this decision voids the fundamental rule: “…it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.” Marbury v. Madison, 5 U.S. 137 (1803);
- that a court can employ Equity, or invent a facsimile thereof, where remedies at law exist but the court has willfully not used them. “Our courts have generally employed this restrictive method of interpretation and have limited even express grants of equitable authority to situations where there is no ‘plain, adequate and complete remedy at law.’” Bank of Am., N.A. v. Diamond Fin., LLC, 88 Mass. App. Ct. 564, 567 (2015).
- That violations of principles of equity by one party can stop the Court from providing an equitable remedy to another party;
- That equitable tests are now, in the instant case, not of the likelihood of success on the merits, but to guarantee that a plaintiff will never lose later what the court is giving it now;
- That an equitable test can include factors that no longer exist, because the party propounding them has already extinguished its claim them by its own actions;
- That an equitable test can ignore the illegal actions that led to the situation to which a court applies it. “[H]e who seeks equity must do equity.” Manufacturers’ Fin. Co. v. McKey, 294 U.S. 442, 449, (1935); New England Merchants Nat. Bank of Boston v. Kann, 363 Mass. 425, 428 (1973); Charette v. Gelinas, 88 Mass. App. Ct. 1117 (2015);
- Reversing its renewed commitment in Eaton (2012) to “jealously guard” against abuses of the private power of sale;
- Canceling, sub silentio, the public commitments of this Court’s Seven Justices on June 3, 2020, to: “look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias…to create in our courtrooms, our corner of the world, a place where all are truly equal…to diminish the economic … inequalities arising from race…recommit ourselves to the systemic change needed to make equality under the law an enduring reality for all… recognize and address our own biases, conscious and unconscious… challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression… recognize and condemn racism…”;
And the list could go on…
To the best of my ability, so provided – Grace C Ross, Not a member of the Bar; August 5, 2020.