Stop Home Equity Theft – Nashaway Trail Alpacas
The court held a hearing on the motions on Thursday, April 18, 2024 at 2:00 P.M. in person at the Suffolk County Courthouse.
The court will issue an order on the motions for judgment on the pleadings if the defendant has not redeemed the property by April 29, 2024.
Recco Argued:
“Subject matter jurisdiction is ‘jurisdiction over the nature of the case and the type of relief sought,’ Black’s Law Dictionary 870 (8th ed. 2004), which among the various trial courts and administrative agencies ‘is both conferred and limited by statute?” Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520 (2007) (quoting Edgar v. Edgar, 403 Mass. 616, 619 (1988)). “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.” Mass. R. Civ. P. 12 (h) (3). “[A] judge may consider documents and other materials outside the pleadings that are not affidavits when ruling on a rule 12(b)(1) motion.” Callahan v. First Congregational Church Of Haverhill, 441 Mass. 699, 710 (2004).
See Town of Lynnfield v. Owners of Unknown, 397 Mass. 470, 473 (1986) (“[T]he discretion contemplated by the Legislature in enacting the redemption provisions of c. 60 is not absolute but is limited to determining a party’s ownership interest in the property and his or her financial capability to redeem, and to setting the terms of redemption.”). Other grants of equitable relief are not permitted under § 1(b). See Town of Norwood v. Norwood Civic Association, 340 Mass. 518, 522 (1960) (“[Wle find nothing to indicate that St. 1915, c. 237, §$ 4-14, which gave to the Land Court jurisdiction of the tax title foreclosures, was intended to grant to that court equitable jurisdiction.”).’
Even if the Court were to conclude that it could hear the Amended Complaint under §$ 1(b) or 1(k), the Land Court does not have the power to grant the equitable relief requested as broad equitable powers are only available when an adequate remedy at law does not exist. See S.M. v. M.P., 91 Mass. App. Ct. 775, 779 (2017) (“[T]he general rule for the exercise of equity jurisdiction is that no adequate and complete remedy exists at law.”); see also Morse v. Int’l Tr. Co., 259 Mass. 295, 301 (1927) (quoting Jones v. Newhall, 115 Mass. 244, 249 (1874)) (“A party ‘cannot come into equity to obtain precisely what he can have at law.””). The Land Court cannot meet this minimum fundamental requirement for the exercise of equitable authority as the Legislature has already created multiple other remedies for cities or towns to pursue in collecting unpaid taxes: municipalities can sue the property owner and secure a personal judgment against her in a court of general jurisdiction, G.L. c. 60, § 35; municipalities can seize and sell the property owner’s personal property, G.L. c. 60, §§ 24-28; and municipalities can withhold payment of any money owed to the property owner, G.L. c. 60, § 93. The tax collector may choose which remedy to pursue, and he may pursue multiples remedies at once. Boston v. Turner, 201 Mass. 190, 197 (1909) (“The remedies which the statutes provide for the collection of tax are cumulative. The tax collector is not bound at his peril to select and pursue a single one.”).
Under tax lien foreclosure statutes that do not provide such a procedure, the taxpayer suffers a Fifth Amendment constitutional violation at the moment of the taking, i.e., the moment the government is granted absolute title to the property. Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019) ( a taking without compensation violates the self- executing Fifth Amendment at the time of the taking”). Chapter 60 is unconstitutional because it does not provide a right or mechanism for taxpayers to recover their remaining equity. See Amicus Brief of Att’y Gen., Jan. 11, 2024 at 3 (“Because Chapter 60 does not contain any means to return that surplus equity, a tax taking under Chapter 60 inevitably results in an uncompensated taking of property, in violation of the Constitutions of both Massachusetts and the United States.”).
https://nashawaytrailalpacas.
Tyngsboro Argued:
G.L. c. 60, § 24 states “It|he collector shall upon demand give a written account of every sale on distress or seizure and charges, and pay to the owner any surplus above the taxes, interest and charges of keeping and sale.” In the only case the Town is aware of in which § 24 was raised by a party seeking the return of surplus, Butkus v: Charles L. Silton, Inc., 95 Mass. App. Ct. 1112 (2019) (unpublished) (attached as Exh. 4), the City of Framingham, in fighting to keep the property owner’s equity, disagreed that § 24 meant they had to account for the surplus after foreclosure sale and return it. Rather, the city argued that § 24 applied only to personal property and not to real property. In response, the appeals court seemed to disagreed and stated, “Here, we conclude that neither [party seeking the return of surplus is entitled to the surplus from the town’s sale of the property under G. L. c. 60. § 28, because…both parties were required to assert their purported interests… prior to the date of the foreclosure judgement…” Id. at *2. Furthermore, in footnote 5. id. at *3*, the appeals court noted that the words of the section did not say what the town claimed and it highlighted that the issue of § 24 had not been litigated previously. Thus, while rejecting the property owner’s § 24 claim for other reasons, the appeals court suggested that, had the surplus-seeking party acted prior to foreclosure. § 28 may have saved her equity. Thus, while it was a distinct possibility $ 28 protected the property owner before Tyler, it now seems that it can protect the property owner. § 28 is an open and viable mechanism for a property owner to claim the surplus.
Insofar as a specific mechanism may be required, another example is provided in G.L. c.60, § 43, in which it directs that the proceeds from a foreclosure sale “shall be applied… to..all costs, charges and terms of redemption in any way resulting from [the] sale.” The SJC ruled in Milford v. Boyd, 434 Mass. 754 (2001) that payment for condominium fees owed to the condo association should be paid directly from those sale proceeds, despite such payment not being otherwise enumerated. Id. at 760. This exact principle applies here, allowing the town, again, to pay to the Defendant the surplus as a cost resulting from the sale.
Finally, regarding Kelly, the case on which the Defendant, the Attorney General, and others have relied so heavily: it has most obviously been smashed, leaving its holding relatively meaningless after the Tyler decision. The S/C literally scoffed at the plaintiff who dared to suggest “equity and good conscience” required that the equity to be returned to her (“Manifestly on any theory of ‘equity and good conscience’ a municipality has no power to pay out money whenever there may be a surplus.J” Kelly, at 389). But she was right. Not only do municipalities have the power to pay out money whenever there may be a surplus but they now have a constitutional obligation.
As said so precisely in the Brief of Amicus Curiae New England Legal Foundation in Support Of Neither Party at 11, “Tyler has made it absolutely clear that the surplus must be surrendered, and so municipal resistance is now futile.”
G.L. 60, § 68 states in pertinent part that “[a)ny person claiming an interest, shall, if he desires to redeem, file… an offer to redeem upon such terms as may be fixed by the court. Thereupon the court shall hear the parties ,and may in any case in its discretion make a finding allowing the party to redeem, within a time fixed by the court… The court may impose such other terms as justice and the circumstances warrant” (emphasis added).
And finally, the Town reiterates that the other viable method of obtaining its tax revenues, in addition to being a waste of resources, is completely inadequate and incomplete as a legal remedy because of a six year statute of limitations (that will likely be very expensive and time- consuming to litigate) that might not allow the Town to collect a substantial portion of the taxes and interest owed by Ms. Recco. And without a reasonable legal remedy, and because fairness to the town demands it in this redemption case, the limited equitable jurisdiction available to the Court in these circumstances is required.
https://nashawaytrailalpacas.
Recco Argued:
In support of its position, the Town argues that its ability to voluntarily remit excess equity renders the requirement of a specific mechanism for return unnecessary. Not only is a voluntary remittance not authorized by law, see Kelly v. City of Boston, 348 Mass. 385, 389 (1965), it is an unworkable solution to a problem that is being faced by many more 3 municipalities than just the Town? The Town also suggests that even if a mechanism were required, Chapter 60 already contains such a mechanism in G.L. c. 60, §§ 28, 43, or 68 (“$ 28,” “§43,” and “§ 68″). Again, this is incorrect. The statutes the Town points to were not intended by the Legislature to be used in this context and it would exceed this Court’s powers to manipulate them to do so. Section 28 does require a town’s tax collector to pay the surplus of any goods taken from sale on distress or seizure under G.L. c. 60, § 24, but this levy by distress or seizure statute applies only to personal goods and no court has expanded this application by deciding that § 28 applies to the taking of real property taken under G.L. c. 60, § 64. G.L. c. 60, § 24 (emphasis added) (*. the collector may without unnecessary delay levy the same by distress, or seizure and sale of his goods…”) 3 The SJC in Kelly v. City of Boston already considered whether § 43 provided for the return of surplus equity to a taxpayer after a foreclosure of the right of redemption judgment, and the Court found that it did not. 348 Mass. 385, 388 (1965). Finally, the discretionary powers in setting the terms of redemption granted to the Land Court in § 68 are cabined by the provisions in and scheme of Chapter 60. See Town of Lynnfield v. Owners of Unknown, 397 Mass. 470, 473 (1986). As previously briefed by Ms. Recco, these powers are limited to carrying out the provisions already present in Chapter 60 – determining preservation of one’s constitutional rights is not based on one’s character or decision making. Private property rights, as guaranteed by the Constitution, are among this nation’s most foundational and protected interests. A court’s duty to preserve an individual’s constitutional private property rights, unless properly waived by that individual, is not an optional obligation.
The Town insinuates that its right to recover the unpaid property taxes outweighs Ms. Recco’s right to preserve her equity however she likes, but there is no balancing of rights here. Ms. Recco has an inviolable interest in preserving her private property rights guaranteed by both the Fifth Amendment and Article X of the Massachusetts’ Constitution and the Town cannot avoid these rights. See Tyler, 598 U.S. 631 (2023) (internal quotation omitted) (“But state law cannot be the only source [on property rights]. Otherwise, a State could sidestep the Takings Clause by disavowing traditional property interests in assets it wishes to appropriate.”). The Town’s statutorily created right must be subservient to the preservation of Ms. Recco’s constitutional rights. Not to mention that the very purpose of the Bill of Rights is to protect an individual’s essential rights and civil liberties against government infringement, not the other way around
The Town’s requests for relief are either unconstitutional or beyond the jurisdiction of this Court and not viable. Ms. Recco has sufficiently shown that this Court lacks subject matter jurisdiction over Plaintiff’s amended complaint. For this reason alone, this action must be dismissed. Ms. Recco has also sufficiently shown that Plaintiff has failed to state a claim upon which this court can grant relief, and her motion for judgment on the pleadings should be granted and judgment should be entered in her favor.
https://nashawaytrailalpacas.
Tyngsboro Argued:
Because the Defendant necessarily promised to redeem in her 2022 Motion to Vacate Default Judgement, and because she maintains to the Court that she is still trying to do so, this case is a matter of redemption. As such, the Court has specific jurisdictional power over its terms. See G.L. 60. § 68 (in which the “terms of redemption…..may be fixed by the Court”). And thus, for the reasons summarized below, the Court is empowered, if not compelled, by the principals of equity suggested in § 68 to impose “such other terms as justice and the circumstances warrant” by requiring redemption fairly accomplished by public auction under terms set by the Court.
https://nashawaytrailalpacas.