Section Review

On Nov. 16, 2011, the Massachusetts Legislature passed a bill to protect transgender people in Massachusetts from discrimination in employment, housing, mortgage loans and credit.¹ The House enacted the bill by a vote of 93-60, and the Senate passed the bill on a voice vote on the last day of the legislative session. Gov. Deval Patrick signed the bill Nov. 23, which would go into effect on July 1, 2012.

The bill, entitled, An Act Relative to Gender Identity, amends the commonwealth's non-discrimination laws to include "gender identity" as a new protected category. Gender identity is defined as "a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."²

Expansion of protection from retaliation

This past year has seen major advances in the scope of protection from retaliation afforded employees and others. On the federal level, in Thompson v. No. American Stainless, U.S., 131 S. Ct. 863 (2011), the Supreme Court expanded protection from retaliation to the fiancé of an employee who had complained of discrimination, who had not himself made a discrimination complaint.

In Massachusetts, in Psy-Ed d/b/a Exceptional Parent Magazine and Joseph Valenzano v. Klein and Schive, 459 Mass. 697 (2011) (hereinafter Psy-Ed v. Klein), the Supreme Judicial Court made clear that G.L. c. 151B prohibits retaliation against former employees long after the employment relationship has ended. This article will focus on Psy-Ed and the changes it makes in Massachusetts law.

Psy-Ed v. Klein, decided May 12, 2011, arose from a lawsuit brought by Psy-Ed Corp. and its CEO against its former employees, Kimberly Schive and Stanley Klein, in December 1999. Psy-Ed accused the two of violating G.L. c. 93A, interfering with its business, defaming it and conspiring against it.

In Bank of New York v. KC Bailey,¹ the Supreme Judicial Court undertook to answer the question of whether or not the Housing Court has the authority to determine validity of title as a defense in a summary process action after a mortgage foreclosure sale.

In 2005, Bailey had given a mortgage to the Mortgage Electronic Registration System (MERS) as nominee for America's Wholesale Lender.² The mortgage (apparently) became part of a group of mortgages securitized with Bank of New York as trustee.³ In 2007, MERS, as nominee, foreclosed the mortgage and was the highest bidder at the foreclosure sale and assigned the deed to Bank of New York.⁴ Bank of New York subsequently brought a summary process action seeking to evict Bailey.⁵

Massachusetts attorneys involved in conveyancing or mortgage foreclosures, as well as those employed as staff counsel or underwriters by title insurance companies, are all too familiar with the Supreme Judicial Court's recent decisions in U.S. Bank Nat'^l Ass'n v. Ibanez1 and Bevilacqua v. Rodriguez.² The fallout from these decisions has created havoc for such practitioners. This article attempts to explain the significance of these cases to the rest of us.

Prior to the Land Court's decisions in Ibanez and the companion cases of Wells Fargo Bank Nat'l Ass'n v. LaRace³ and LaSalle Bank Nat'l Ass'n v. Rosario,⁴ the timing of the signing or recording of an assignment of a mortgage was generally not considered critical to the validity of a foreclosure by the assignee of the mortgage.

The recent decision of the Supreme Judicial Court in Bevilacqua v. Rodriguez¹ has dealt another blow to purchasers attempting to establish clear title to property whose titles derive from foreclosure sales deemed invalid as a result of the SJC decision in U.S. Bank Nat'l Ass' v. Ibanez.²

In Ibanez, issued in January 2011, the SJC affirmed the Land Court's holding that a foreclosing lender must be the holder of the mortgage by an assignment dated before the first publication of the sale.³ The decision, which repudiated the Real Estate Title Standard long relied upon by real estate attorneys, which recognized the validity of assignments of mortgage dated after the foreclosure sale, sent shock waves through the real estate community.