It is my contention that certain Massachusetts laws regulating foreclosure of homes do not meet the standard set by the due process clause of the 14th and 5th Amendment of the Untied States Constitution. More specifically, M.G.L. 244 § 2 is so narrowly tailored that a bank conducting a foreclosure by entry is not required to even provide actual or personal notice to the owners of the property. As a matter of fact, the law is written in such a way as to state all a foreclosing bank needs to do is draft a certificate and file it in the local registry of deeds. The bank never has to so much as send a letter or even place a phone call to the homeowner or any junior lien holders letting them know that the bank intends to foreclose on the home.
By this logic, a home owner or junior lien holder has no way to reasonably know of its right of redemption with out proper notice. The law would seem to create the duty for a junior lien holder to constantly monitor all of its debtors filings at each and every registry of deed where the creditor holds liens. As such, to hold that no personal notice is required to be provided to a holder of a right of redemption is be not only prejudicial, but also unjust and unfair with in the meaning of the Due Process Clause of the United States Constitution.
It would appear that the Massachusetts foreclosure by entry law allows a senior lien holders to withhold notice in an attempt to limit a junior lien holders ability to effectuate its legal rights.
If one files for bankruptcy, the trustee may have to sell the debtor’s home in order to allow the debtor pay off his debts. This applies no matter if the home is freehold or leasehold and whether it is solely or jointly owned. The trustee will sell your home if doing so would be the only way to release money to your creditors. Further, the case In re Perroncello, 170 B.R. 189 (1994) holds that, according to Bankruptcy Code, the trustee sells the real estate for face value as opposed to fair market value, the full cash and fair cash value as the price an owner willing, but not under any compulsion, to sell ought to receive from one willing to buy.
11 U.S.C.A. §363 (b) (1) states that a trustee, after a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.
If the debtor owns the house he lives in, it transfers to the trustee along with his other assets. The trustee would take title to the house and have the house appraised for sale. The trustee then has the authority over determining the price that the house would sell for, and the debtor would not have a say in this determination.
It is permissible for a debtor to claim emotional distress damages if a creditor violates the automatic stay protection of the Bankruptcy Code. Emotional distress is classified as an “actual injury” for which a debtor may recover damages under the Bankruptcy Code’s automatic stay provision. In re Rosa, 313 B.R. 1 (Bankr. D. Mass. 2004). When awarding damages for a creditor’s willful stay violation, bankruptcy courts are well suited to determine the reasonableness of a debtor’s emotional injuries on a case-by-case basis.In Rosa the debtor was seeking an award of actual damages for the medical injury that he allegedly suffered as a result of creditor’s stay violations. The debtor bore the burden of proving that the stay violations were the cause of either his medical condition or a worsening of that condition.As suggested by the 9th Circuit:
The criteria for an award of emotional distress damages due to willful violation of automatic stay, is that the individual must: (1) suffer significant harm; (2) clearly establish that significant harm; and (3) demonstrate a causal connection between that harm and violation of automatic stay. In re Dawson, 390 F.3d 1139, Bankr. L. Rep. (CCH) P 80207 (9th Cir. 2004), petition for cert. filed (U.S. May 27, 2005).
For one to recover emotional distress damages for willful violation of automatic stay, he must clearly establish that he has suffered significant emotional harm, such as by presenting corroborating medical evidence or by presenting non-experts, such friends, family or coworkers, to testify to “manifestations of mental anguish” and to clearly show that significant emotional harm occurred. In re Dawson, 390 F.3d 1139, Bankr. L. Rep. (CCH) P 80207 (9th Cir. 2004), petition for cert. filed (U.S. May 27, 2005).
