Decoding the “Bank Of New York Mellon… vs. Alton King” Case

URGENT: Sign our petition to the SJC to reverse the Alton King decision! Please share this widely!

The SJC’s June 17, 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.

The Court must reverse this Alton King decision which abandons this Court’s responsibility to arrest, rather than facilitate, the mortgaging and foreclosure industry’s structural racism.

Please bookmark this page and return often for updates in the fight against this disastrous decision and how you can help.

Close Read: Bank of New York Mellon v. King, 485 Mass. 37 (2020)

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

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.

Continue reading…

NEW! MAAPL and BOWH File Amicus Brief in “Alton King” Reconsideration Case

Direct link to amicus brief ( PDF )

Alton King Travesty: Erasure of Constitutional Existence Clothed as a Legal Decision
[ Download as PowerPoint | Download as PDF ]

Held: Constitutional Stripping of Rights

  • Even given that King was found legally indigent – he needed extra fees waived or would have to give up life necessities (threaten his survival) to prosecute his case.
    • Guarantee of being able to equally prosecute as would someone with money
  • Even given that King’s defense was found meritorious:
    • Challenge to the Plaintiff’s claim to title/ownership of the property, and thus standing to commence eviction case and Housing Court’s subject matter jurisdiction
  • Court held that even with awareness that Plaintiff may well have broken laws and have no right to bring this case nor to receive any decision in this case (including for money from King), that King must endanger his life paying or the Court would not enforce his Constitutional protections.

Complete Reversal: Constitution/Function of Supreme Judicial Court
Commonwealth v. Jennison (3rd Quock Walker case) (1783) established foundational principles:

  • Constitutional guarantees apply to all (regardless of “color, complexion…”) as to “Liberty” and “Life and Property”
  • Constitutional guarantees supersede statutes (“It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it,” “The Constitution is either a superior, paramount law, unchangeable by ordinary means, … If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; …an act of the Legislature repugnant to the Constitution is void.” Marbury v. Madison, 5 U.S. 137 (1803))
  • Function of Highest Court is to interpret/enforce constitution (“The question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority.” “The Constitution vests the whole judicial power of the United States in one Supreme Court, … This power is expressly extended to all cases arising under the laws of the United States;” Marbury v. Madison, 5 U.S. 137 (1803))
  • Plaintiff must have a “legal remedy by … action at law” within the subject matter jurisdiction of the court in question: in other words Plaintiff must have standing. (“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)
  • Alton King has right to defend his inalienable rights to his property (Article I, Amendment CVI) and his substantive right to access to the courts (Article XI), without forgoing the necessities of life (Article XI) and access to a jury trial in controversies over property (Article XV). (“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)

1783: Even Slaves Held to Have Equal Property Rights (Commonwealth v. Jennison)

Commonwealth v. Jennison (Massachusetts, 1783, Unreported), aka the 3rd Quock Walker decision, “But whatever sentiments have formerly prevailed in this particular or slid in upon us by example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or … features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal — and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property — and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract”. [Emphasis added.]

Appellate Review

  • Higher Courts must review standing:
    • Threshold issue
    • Always applicable
    • Sua sponte if no defendant
  • De Novo when all documentary evidence
  • De Novo when summary judgment (Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc.)

“Given the facts of this case…”

  • Misstated “facts” (Identity and type of Plaintiff, entirely fictional and vague legislative histories)
  • Facts never included in a foreclosure-related or eviction-related decision before ($1 million dollar home – it should be noted that, in fact, King was quoted that the house was worth $1.5 million when the mortgaging industry sold him two loans for a total of $1,433K trapping him under water the day he got the loans).
  • Unsupportable “facts” where evidence readily available in the record shows it is not true (not a mortgage, not an assignment, not a foreclosure, not a ”notice” sent “pursuant to” “§35A” “§35B” “mortgage”)
  • “Facts” that minimal inquiry in the public record shows were not facts (Trust 2006-J7 does not exist, no assignor for assignment)
  • Mis-characterization (“Bank” instead of Securitized Trust, referring to Plaintiff as “purchaser” instead of mortgagee who must demonstrate “authority and jurisdiction” without which the foreclosure is void.)
  • Includes prejudicial, irrelevant “facts” (description of million-dollar property)

Legislative Interpretation – Fiction/Violations

    • Mischief to address (Rugg – interpretation at time of 186-3/239-6)
    • Intent via legislative progression
    • Intent to all words
    • Plain meaning of words ends judicial inquiry
    • If not plain, then technical meaning at the time
    • Don’t add words intentionally left out
    • Avoid overly broad
    • Harmonious – in this case, counterpoint
    • Avoid absurd result
    • Constitutional protections override statutes



Exactly What SJC Cannot Do – Statutory Interpretation

ABCD, INC. v. Commissioner of Public Welfare, 378 Mass. 327 (1979):

“The proposed remedy in this case would not simply permit a part of a statute to be effective when another part cannot be. Rather, it would tear down a consciously erected legislative barrier and thus allow the limited legislative purpose to escape into the very area from which it was to have been excluded. A conclusion that the Legislature would have intended such a result cannot be justified in this instance. See Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 91 (1978).“

  • This Alton King decision explicitly ignores the statutory language of the clause in the statute (Chapter 239 §5) this decision relies upon, which clause explicitly bars §5’s applicability to the statute for homeowners in purported post-foreclosure eviction cases  (chapter 239 §6).

Selected Leading Caselaw Overruled

  • Adjartey
  • Hatcher
  • Ibanez
  • Eaton
  • Bevilacqua
  • Rosa
  • Matt
  • Fremont
  • Reade v. Sec of State
  • Comerford
  • Moore v. Dick
  • Marbury v. Madison
  • Commonwealth v. Jennison

Judicial Review Standards Eradicated

  • Litigant must have legal existence
  • Standing (Matt)
  • Standing as threshold issue
  • Factual Challenge to Standing (Abate)
  • Standing as sua sponte obligation of all courts (Matt, Hatcher)
  • Strict Compliance/Utmost Diligence & Strictest Good Faith (Ibanez, Resolute)
  • Voidness by operation of law
  • Plaintiff has burden of proof
  • De Novo review of Summary Process
  • De Novo review when all evidence documentary
  • Preliminary Injunction Standard (Packaging Industries)
  • Maxims of Equity

Legislative Timeline – Indigent Fee & Appeal Bond Laws

SJC Conjured Up Novel ”Fair Balancing Test” Insupportable Under Maxims Of Equity

  • Court can only assert equity jurisdiction only where no remedy at law (i.e., Indigent Court Costs Statutes (waiver & challenge), purchaser’s remedy against seller not homeowner, deficiency statute)
  • 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 the contrary);
  • Where the equities are equal, the earlier in time prevails (i.e., where rights are equal in worth or value, the earlier right created takes precedence over the 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).

Elements of Novel “Fair Balancing Test” Not Legally Possible

  • Implied standard would be Preliminary Injunction Standard (4 prong test)
  • Actual Basis applied: (i) Defendant could not afford mortgage (ii) will not be able to afford U&O though less than the mortgage payment (iii) therefore, the bank will have “no choice” but to re-foreclose.

“Elements” of Novel “Test”:

  • “Fair rental value of the property,” (despite actual conditions in the property)
  • “The merits of the defense,”
  • “Length of not paying mortgage,” (mortgage had been extinguished at option of the mortgagee; remedy at law is the deficiency statue, MGL Chapter 244 §17A)
  • “The real estate taxes on the property”
  • “Expected duration of the litigation” (so if you ask for Jury Trial it is more ok to be priced out of litigating at all/no control over how the Plaintiff delays the case)
  • “Relative financial conditions” (i.e., richer party gets financial benefit)

Imposition of Rental Contract Where No Legal Relationship Existed

  • Jurisprudence: payment of rent creates tenancy
  • Parties are legal strangers after extinguishing mortgage – court cannot impose a contractual relationship

Decision Cannot be Maintained, It Violates Mass Equal Rights Amendment/14th Amendment

  • The structural racism of the Mortgaging Industry is well-established; and yet, the SJC refused to scrutinize any violations of rights of a homeowner who could not pay for the courts’ attention – carving out an exception from constitutional rights of all homeowners.
    • Based on racism
    • Based on new ‘suspect’ class – homeowners after “foreclosure”
  • Court has before it all the evidence that each element of its decision was not legally possible, but it threw out all applicable jurisprudence to reach this decision. This includes the Constitutional function of the Court and the Constitution itself.

Can Court Deny Legal Protections Protecting Life?

  • Admitted that King was legally indigent, would by definition have to forego necessities of life – in other words, he must choose between pursuing his Constitutional Right to Court or to Life
  • COVID comment – footnote 12

Map of 2007 foreclosures in Massachusetts