Massachusetts gets a chance to kick ‘equity theft’ to the curb – The Boston Globe

In order to recoup its taxes quickly, Worcester sold its right to foreclose on the property to Tallage Davis LLC, a Boston-based tax title buyer. Tallage began eviction proceedings in late 2022 even as Rodriguez was continuing to make payments to the city.

She is fighting to save her home in a case filed last month in federal bankruptcy court with the help of Greater Boston Legal Services, the Pioneer Public Interest Law Center, and Morgan, Lewis & Bockius LLP.

Rodriguez’s case was filed before last week’s unanimous Supreme Court ruling in a case involving a 94-year-old Minneapolis condo owner whose property was sold for $40,000 to settle a $15,000 debt for back taxes and penalties.

As Chief Justice John Roberts wrote for the court, “A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more.”

Roberts also noted, “The principle that a government may not take more from a taxpayer than she owes can trace its origins at least as far back” as the Magna Carta granted in 1215 by King John.

The court’s ruling applies only to Minnesota. But Massachusetts is one of about a dozen states that permit the same kind of foreclosure overkill that the high court has now ruled unconstitutional. That this state’s law allows a level of judicial oversight makes it legally not identical to the Minnesota case. But it’s that legal murkiness — not to mention the appalling inequity of the practice itself — that cries out for a legislative remedy even as the legal cases continue to pile up here.

Such as the case of a Bolton alpaca farmer who is challenging the state law in federal court, charging the town made a $310,000 profit from the sale of his property to settle a $60,000 tax debt. He’s represented by Pioneer Legal and the Pacific Legal Foundation, which issued a recent report documenting the extent to which many of the state’s cities and towns make use of equity takings in tax foreclosure cases or sold tax liens to third-party collectors like Tallage.

In that report, written prior to the US Supreme Court decision, Pacific Legal noted, “In just one year, local governments and tax lien investors took approximately $56 million in equity from the Massachusetts owners of 2,260 properties.” It also pointed to Tallage as being a major player for the years 2014-2020, collecting millions of dollars in profits for itself from the sale of homes in Quincy, New Bedford, Lowell, and Worcester. Tallage also gets to keep the 16 percent interest fee it is allowed to charge on any outstanding tax debt.

That process, now declared unconstitutional by the high court, is also illegal under the Massachusetts Constitution, Pacific Legal contends, noting, “As far back as 1879, the Massachusetts Supreme Judicial Court has held that, as a matter of common law principle, government may only take as much as it is owed in taxes and fees.”

In a 2020 SJC decision involving Tallage and its foreclosure on a New Bedford property, then-Chief Justice Ralph Gants wrote that tax foreclosure proceedings were indeed an “archaic and arcane process” that “sometimes does … result in catastrophic consequences for homeowners.”

The late jurist was absolutely right on both scores. Since at least 2019 several lawmakers have been fighting the good fight to remedy the situation — to simplify the process for communities that have every right to collect the taxes they are owed and for those property owners struggling to make ends meet in difficult times.

A bill filed by state Representatives Jeffrey Roy of Franklin and Tommy Vitolo of Brookline would provide some needed safeguards, require obvious disclosures to property owners, and protect their equity. A similar measure has been filed by state Senator Mark Montigny specifically requiring that “If the tax purchaser sells the land at auction, the balance of any proceeds above and beyond reasonable expenses as approved by the land court shall be returned to the former owner.”

With housing near the top of the state’s political concerns, protecting the rights of homeowners ought to be part of any future legislative housing package. The Supreme Court decision has provided the opportunity to do just that.

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