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 Join us to get this so-called decision rescinded!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!

About MAAPL

The Mass. Alliance Against Predatory Lending (MAAPL) is a coalition of over 60 housing counseling agencies, legal services groups, social service agencies, and community-based social action groups that have joined together to address the foreclosure crisis in Massachusetts. MAAPL collects and distributes timely information on the foreclosure crisis and its effects to the public and to its member groups, drafts and supports legislation that provides important protections to homeowners and tenants facing foreclosure and eviction, documents the impact of the foreclosure crisis on local communities, networks with related organizations throughout the Commonwealth, and provides tools and information to help people navigate the legal system and advocate on their own behalf more effectively when challenging a foreclosure or eviction in court
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1 Response to Action Alert: SJC Erases Constitutional Rights of MA Homeowners—We Must Fight Back!

  1. Pingback: MAAPL and BOWH File Amicus Brief in “Alton King” Reconsideration Case | MAAPL – The Massachusetts Alliance Against Predatory Lending

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