By K-Sue Park, J.D. ‘15
Less than 7 percent of tenants facing evictions have representation in Boston Housing Court, in which around 5000 summary process cases are brought annually. My experience representing one elderly couple, who were the victims of a foreclosure rescue scam, showed me plainly that legal representation makes all the difference for families and individuals facing eviction, and that the foreclosure crisis has also been a crisis in access to legal services.
My clients were an elderly immigrant couple from the British Isles, who at the time of foreclosure, had lived in their house for more than forty years. They had fallen into financial difficulties with a bank loan at the very beginning of the national foreclosure crisis, in 2007. They were desperate for help, and fell prey to a foreclosure rescue scam artist who, unknown to them, had previously been convicted for defrauding single mothers of their welfare checks in the same neighborhood. Through him, third parties took out a new mortgage on their house. Then, he disappeared with the money and the bank foreclosed on the house. Finally, Fannie Mae purchased the house at auction while the elderly couple faced eviction. Subsequently, the Legal Services Center sued the scam artist and his team, and took on the couple’s defense in the summary process case.
In late February, on their behalf, I argued that Fannie Mae’s Notice to Quit had been improperly served since our clients were better understood as tenants than homeowners at the time of the foreclosure. Massachusetts law moves in favor of the non-traditional tenant: it considers occupants of a property owned by another, who agrees to their occupation and benefits as a result in a way that he would not otherwise have benefited, to be tenants. Fannie Mae therefore mistakenly evicted them as homeowners, and failed to observe the procedural rights to which they were entitled as tenants. The judge agreed with me, and as a result, the summary process case against them was dismissed.
From the beginning of my work on this case, I felt strongly about advocating for the elderly couple. However, I did not understand just how defenseless they were until the day of the hearing. First, we picked them up to bring them to the courthouse since they likely would not have made it there on their own. They are in their seventies and eighties, not very mobile, and one of them had a major stroke since the action was brought against them. Secondly, once at the courthouse, one of them became visibly anxious and afraid. When I tried to review the questions that we had already prepared for direct examination, she could barely speak, her eyes watered, and she held her stomach because she was nervous. Seeing this, the judge did not force them to the stand. I was glad, but also felt keenly aware that not all judges are so kind, and also, of how easily others in their situation might miss their court appearances altogether, resulting in a default judgment for the other side. Under these circumstances, it felt natural and necessary to speak up for them, and to put the training I have received in law school to exactly the use for which it was meant.