Minnesota Tenants Union Amicus Curiae Letter Defends Sheriff Dart’s Moratorium on Evicting Tenants from Foreclosed Buildings

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Just One Example of the Fight for Recognition that Housing is a Human Right, More Important than Property Interest

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In coalition with tenant advocacy groups nationwide, the Minnesota Tenants Union has submitted a grass-roots Amicus Curiae (Friend of the Court) Letter to the Cook County judge presiding over a lawsuit brought by a California mortgage company to force Cook County Sheriff Thomas Dart to evict tenants from foreclosed property.

The Amicus Curiae Letter (see below) is co-sponsored by 8 tenant advocacy groups in New Orleans, Atlanta, Chicago, Los Angeles, and Minneapolis and calls on the judge to dismiss the mortgage company’s suit asserting that the company’s actions violated the human right to housing and the company’s failure to serve notice of its suit and underlying foreclosure action on the real parties in interest, the affected tenants.

Sheriff Dart gained national attention earlier this month by publicly declaring a moratorium on evicting tenants from foreclosed properties in Cook County (Chicago area). His action brought a supportive response from tenant groups and others applauding his stand. According to the Sheriff’s official website, in the days after announcing the suspension of foreclosure evictions, the Cook County Sheriff’s Office received nearly 2,000 emails and 700 phones calls from across the country, the overwhelming majority in support of the Sheriff’s efforts.

The Sheriff’s stand also drew a swift lawsuit from Accredited Home Lenders, a California-based mortgage company, frustrated that Sheriff Dart was refusing to evict Shirley McFarland, a tenant renting a property in Cook County that the company had foreclosed upon.

In the ensuing dust-up and spotlight on the Cook Country Courthouse, the Company announced that it was withdrawing its suit against Dart and would not try to evict Ms. McFarland, the Court has adopted new requirements for foreclosure proceedings involving rental property, and the Sheriff has said he will now lift his moratorium beginning Monday October 20. The Court’s new requirements include:

• The bank holding the mortgage must provide the Court a detailed description of the building and name all its occupants at the time of the initial foreclosure filing.

• Prior to the entry of an eviction order, banks must provide a date that bank representatives were last at the property for an inspection.

• If the bank requests that additional parties be added to the eviction order, the bank must first prove to the Court notice of the foreclosure has been given to all building tenants.

• Banks must also prove they informed tenants of the 120-day grace period, granted to them by state law, allowing them to secure new housing before moving out.

Additionally, Sheriff Dart announced that he will

1) hire a full-time social worker, who will work with Evictions Unit personnel to help those evicted find alternative housing and connect them with other community social services;

2) assign a Sheriff’s Office attorney to the Evictions Unit to help identify instances of possible mortgage fraud; and

3) expand the Sheriff’s Financial Crimes Unit to include investigations into claims of mortgage fraud.

Minnesota Tenants Union advocate and board member Kathlyn Stewart states:

“It is important to understand that much of the ‘new’ guidelines actually track existing Illinois law, which is similar to Minnesota’s. Illinois has a statute requiring notice to tenants and a 120-day grace period. The laws apparently were just not formally worked into the Court’s operation until the Sheriff said ‘No more.’ So the Illinois experience puts us all on guard that vigilance will be required to ensure that the newly enacted Minnesota statutes providing tenant notice and grace period protections (legally effective August 1, 2008) go into effect in reality.”

The Tenants Union is requesting the Sheriffs and Chief Judges for the Metro Area to certify that Minnesota’s foreclosure notification and grace period rights are communicated and enforced before any eviction is allowed to proceed.

Ms. Stewart continues:

“Notice and grace periods currently provided by Minnesota statutes are a good step and we must be sure they are enforced. But the human right to housing is much more than that. When we say housing is a human right, we mean much more than that once tenants get notice and a grace period and then it’s OK to force them out of their foreclosed apartments. Tenants should not be forced to vacate their homes just because their landlord has not paid the mortgage any more than their water should be shut off if the landlord has not paid the water bill.”

If you would like to work together with local and national allies to make sure current foreclosure laws are enforced and to push for full recognition that housing is a basic human right should contact the Minnesota Tenants Union at 612-374-5733 or MNTenantsUnion@yahoo.com.

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A Peoples’ Amicus Curiae Letter

October 17, 2008

The Honorable Dorothy Kirie Kinnaird, Presiding Judge
Cook County Circuit Court, Chancery Division
Circuit Court of Cook County
2403 Richard J. Daley Center
Chicago, IL 60602

Dear Judge Kinnaird:

Re: Accredited Home Lenders vs. Tom Dart, Sheriff of Cook County
Eviction of Shirley McFarland, Mario Hernandez, Dart, Maria Cruz and Gabriela Maciel et al. (tenants) From Foreclosed Rental Property

This AMICUS CURIAE LETTER is submitted to highlight the human rights context of the action taken by Accredited Home Lenders against Sheriff Dart that may not otherwise come to the Court’s attention.

I. The Real Parties in Interest Have not Been Served and Allowed to Participate in The Lawsuit Against Sheriff Dart

The point of the action by Accredited Home Lenders is to force Sheriff Dart to evict tenants from foreclosed property. The tenants, therefore, are the real parties in interest in this lawsuit: Shirley McFarland, Mario Hernandez, Maria Cruz, and Gabriela and Diego Maciel and many other affected tenants. These are the people that the Accredited Home Lenders’ action is intended to impact, to make sure they are evicted from their homes, from property they rent, but which (without notice to them or an opportunity to defend their homes) was foreclosed due to the owners’ default.
As in the underlying foreclosure action, the tenants have been excluded from the legal process. This violates their human rights to participate in legal proceedings that affect their fundamental rights and interests. We do not believe this Court should allow the lawsuit against Sheriff Dart to proceed without notice and opportunity for active participation of the affected tenants.

Therefore, the Court should dismiss Accredited Home Lenders’ suit against Sheriff Dart or suspend it until they serve notice of their action on all affected tenants and the tenants are given the opportunity to participate fully in the proceeding.

II. Human Rights Context of the Action Against Sheriff Dart and the Tenants

Accredited Home Lenders’ action does not acknowledge the human rights context of its request. Instead, it asks this Court to be complicit in its violations of the tenants’ basic human rights.

In a vast number of cases the tenants that Accredited Home Lenders and other mortgage holders want to evict are renters who have been paying their rent up to the time of eviction. Too many of these families have not been afforded adequate notice of the foreclosure procedures, and there is no system in place to ensure that the family is not thrown into homelessness immediately after the eviction. This state of affairs violates the tenants fundamental human rights to housing.

In 1944, Franklin Roosevelt declared that the U.S. had adopted a “second Bill of Rights,” including the right to a decent home. The U.S. signed the Universal Declaration of Human Rights (the UDHR) in 1948 recognizing housing as a human right. The UDHR (which comes up for its 60th anniversary this December) represents a contract between governments and their peoples, who have a right to demand that this document be respected.

In addition, court ordered eviction of tenants (a substantial number of whom are persons and families of color) from foreclosed rental property without cause and without assurance of continuity of housing has an inordinate negative impact on minority communities. It therefore violates the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), a human rights treaty ratified by the U.S. As a ratified treaty, the ICERD is part of the supreme law of the land under the U.S. Constitution, Article VI, Section 2. The ICERD specifically recognizes that housing is a human right: Article V, e (iii).

Finally, in 2004, the Cook County Board of Commissioners reaffirmed the right to housing in a resolution and stated its commitment to protect this right.

The attempt by Accredited Home Lenders to force the sheriff’s department to be its tool for these evictions must be resisted. Sheriff’ Dart’s action is an example of how to properly uphold Cook County’s commitment to the right to housing and the primacy of the U.S. commitment to provide safe, decent, and affordable housing for all.

As recent events have demonstrated, the United States government has not taken the steps necessary to ensure a rational and affordable housing market, but – on the contrary – allowed rampant irresponsibility and greed to be the driving force behind rising housing costs. Cook County should not be forced by this Court to violate the human rights of its residents because of the abject failure of the federal government.

The moratorium on eviction of tenants from foreclosed property announced by Sheriff Dart is 100% justified in that it recognizes the primacy of the human right of all people to housing and that this right must take precedence over the property interests advanced by Accredited Home Lenders.

III. Conclusion

Sheriff Dart is right when he states:
Where mortgage firms see pieces of paper, my deputies see people.

The Sheriff’s common sense observation describes the fundamental human rights violation by Accredited Home Lenders, whose failure to give notice to tenants of this suit and of the foreclosure fails to honor the existence of tenants as human beings with interests and inherent rights that they must respect. For comparable blindness to humanity and human rights, see the infamous quote from US Supreme Court Chief Justice Taney in the Dred Scott case, that “The Negro had no rights which the white man was bound to respect . . .”

Sheriff Dart is also right when he takes the position that
Until the banking industry steps up and does the right thing, I won’t continue to risk violating the law and open taxpayers to further liability.

Sheriff Dart’s refusal to evict tenant families in circumstances that violate their basic human rights is a necessary first step towards providing both adequate due process for tenants in these homes as well as support to find alternative means of decent housing, their basic human right.

For these reasons, the lawsuit against Sheriff Dart (and the tenants who are the real parties in interest) must be dismissed.

Respectfully submitted,

Minnesota Tenants Union
Minnesota-New Orleans Solidarity Committee
MayDay New Orleans
Metro Atlanta Task Force for the Homeless
National Training & Information Center (NTIC)
National People’s Action (NPA)
Northside Neighbors for Justice
Los Angeles Coalition to End Hunger and Homelessness

cc: Accredited Home Lenders
Corporate Headquarters
15253 Avenue of Science, Bldg 1
San Diego, CA 92128
(866) 858-LEND

Thomas Dart, Sheriff
Cook County Sheriff’s Office
50 W. Washington
Chicago, Illinois 60602