Amicus Curiae Brief — Geraldine Tyler, Petitioner v. Hennepin County, Minnesota, et al.

Supreme Court briefSep 22, 2022

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No. 22-166

In the Supreme Court of the United States

_______________________

GERALDINE TYLER, on behalf of herself

and all others similarly situated,

Petitioner,

HENNEPIN COUNTY, and

MARK V. CHAPIN, Auditor-Treasurer in his

official capacity,

Respondents.

_______________________

On Petition for Writ of Certiorari to The United States

Court of Appeals for the Eighth Circuit

_______________________

BRIEF OF AMICI CURIAE AARP AND AARP

FOUNDATION SUPPORTING PETITION FOR

WRIT OF CERTIORARI

_________________________

William Alvarado Rivera*

Dean Graybill

*Counsel of Record

AARP FOUNDATION

601 E Street, NW

Washington, DC 20049

(202) 434-6291

warivera@aarp.org

September 22, 2022

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

STATEMENT OF INTEREST .................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

The Eighth Circuit Panel Decision Imposes

a Harsh Test of Property Rights in Surplus

Equity at Odds with Supreme Court

Jurisprudence, State Law, and

Common Sense .................................................. 5

II.

Older Homeowners Face a Disproportionate

Risk of Experiencing Severe Harm Due to

Tax Foreclosures ............................................. 11

Older homeowners face extraordinary

economic pressures that make them

disproportionately vulnerable to tax

foreclosures ........................................... 13

Many older people are at risk of tax

foreclosures because they no longer

pay their taxes into an

escrow account...................................... 16

Older homeowners are at increased

risk of losing their home to a tax

foreclosure because they have a

significantly higher incidence of

disability and associated incapacity .... 18

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Cases

Armstrong v. United States,

364 U.S. 40 (1960) .................................................. 10

Brown v. Legal Found. of Wash.,

538 U.S. 216 (2003) ................................................ 10

Coleman through Bunn v. D.C.,

No. 13-1456, 2016 WL 10721865

(D.D.C. June 11, 2016) ........................................... 11

Coleman v. District of Columbia,

70 F. Supp.3d 58 (D.D.C. 2009) ............................... 3

Dorce v. City of New York,

No. 19-cv-2216, _ F.Supp.3d _,

2022 WL 2286381 (S.D.N.Y. June 24, 2022) ......... 11

Farnham v. Jones,

19 N.W. 83 (1884) ..................................................... 6

First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., Cal.,

482 U.S. 304 (1987) .................................................. 9

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) .............................................. 3

Koontz v. St. Johns River Water Mgmt. Dist.,

133 S. Ct. 2586 (2013) ............................................ 10

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ................................................ 10

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ................................................ 9

Phillips v. Washington Legal Found.,

524 U.S. 156 (1998) .......................................... 4, 6, 9

Rafaeli, LLC v. Oakland Cnty.,

952 N.W.2d 434 (Mich. 2020)........................... 3, 8, 9

Tahoe-Sierra Pres. Council v. Tahoe Reg’l

Planning Agency,

535 U.S. 302 (2002) ................................................ 10

Tyler v. Hennepin Cnty.,

26 F.4th 789 (8th Cir. 2022)..................... 2, 3, 4, 7, 8

United States v. Taylor,

104 U.S. 216 (1881) .................................................. 6

Wayside Church v. Van Buren Cnty.,

847 F.3d 812 (6th Cir. 2017) .................................... 3

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) .......................................... 10, 19

Statutes, Constitutions, Rules and Regulations

Am. Jur. 2d State and Local Taxation § 911 (1974)... 6

Minn. Stat. §§ 282.07-08 ......................................... 1, 5

Minn. Stat. Ann. § 336.9 ............................................. 7

Minn. Stat. Ann. § 550.20 ........................................... 6

Minn. Stat. Ann. § 580.10 ........................................... 6

U.S. Constitution (1963)

Article 10, § 2........................................................... 8

U.S. Const. amend. V .................................................. 2

Miscellaneous Authorities

2 William Blackstone, Commentaries 452 ................. 6

Peter Boersma, Lindsey I. Black, & Brian W.

Ward, Prevalence of Multiple Chronic

Conditions Among US Adults, 2018,

17 Preventing Chronic Disease 1-4 (2020) ............ 18

Center for NYC Neighborhoods 2 Policy Brief:

Protecting Senior Homeowners from Reverse

Mortgage Foreclosure, (Aug. 2017) ........................ 17

Jenna Christine Foos, State Theft in Real

Property Tax Foreclosure Procedures,

54 Real. Prop. Tr. & Est. L.J. 93 (2019) .................. 2

Sarah B. Mancini & Odette Williamson,

Reversing Course: Stemming the Tide of

Reverse Mortgage Foreclosures Through

Effective Servicing and Loss Mitigation,

26 Elder L.J. 85 (2018) ........................................... 17

Jennifer Molinsky, Ten Insights About Older

Households from the 2020 State of the Nation’s

Housing Report, Joint Ctr. for Hous. Studs. of

Harvard Univ. (Dec. 17, 2020),

https:// bit.ly/3w2iMew........................................... 15

John Rao, The Other Foreclosure Crisis:

Property Tax Lien Sales, Nat’l Consumer

Law Ctr. (Jul. 2012) ............................................... 12

William M. Rohe & Mark Lindblad, Rexamining

the Social Benefits of Homeownership after the

Housing Crisis, Harv. Univ. Joint Ctr. for

Hous. Studs. (Aug. 2013),

https://bit.ly/3sscWAD ............................................ 12

Kenneth Terrell, AARP, Unemployment's

Toll on Older Workers Is Worst in Half a

Century (Oct. 21, 2020),

https://bit.ly/3c3hDLK ............................................ 15

U.S. Dep’t of Hous. and Urban Devel., Aging in

Place: Facilitating Choice and Independence,

(Fall 2013), https://bit.ly/3rloGDH ........................ 13

U.S. Dep’t of Hous. and Urban Devel., Home

Equity Conversion Mortgage (HECM)

Financial Assessment and Property Charge

Requirements, Mortgagee Letter 2014-22

(Nov. 10, 2014), http://1.usa.gov/1MYKrnm .......... 17

Jack VanDerhei, Impact of the COVID-19

Pandemic on Retirement Income Adequacy:

Evidence From EBRI’s Retirement Security

Projection Model®, Emp. Benefits Rsch. Inst.

(Apr. 23, 2020), https://bit.ly/3cpihTN ...................... 14

vii

Jack VanDerhei, Retirement Savings Shortfalls:

Evidence from EBRI’s 2019 Retirement

Security Projection Model®, Emp. Benefit

Rsch. Inst. (Mar. 7, 2019),

https://bit.ly/2NUlnps............................................. 14

Odette Williamson & Jillian McLaughlin, Tax

Lien Sales Put Low-Income, Seniors, and the

Disabled at Risk of Foreclosure, 34 Bifocal

1 (Oct. 2012), https://bit.ly/2VgQhtJ................ 12, 16

Stacey Wood & Peter A. Lichtenberg, Financial

Capacity and Financial Exploitation of Older

Adults: Research Findings, Policy

Recommendations and Clinical Implications,

40 Clinical Gerontologist 3-13 (2017) .................... 18

James P. Ziliak & Craig Gundersen, The State of

Senior Hunger in America in 2018, Feeding

America 4 (May 21, 2020),

https://bit.ly/3d5SZte .............................................. 15

STATEMENT OF INTEREST 1

It is undisputed that Minnesota tax authorities,

to collect a $15,000 property tax debt from ninetythree-year-old Geraldine Tyler, seized all $40,000 of

the equity in her modest condominium, keeping

$25,000 for public use.

The State offered no

compensation in return. This shocking result was no

aberration under present Minnesota law. Minnesota

requires that the excess be seized for public use. Minn.

Stat. §§ 282.07-08.

A further shocking fact is that Minnesota is not

alone in this regard. While most states protect

homeowners’ “surplus equity” against foreclosure, as

many as a dozen states permit the seizure of

homeowners’ entire equity to pay modest property tax

debts. 2 Some states, like Minnesota, directly seize the

Pursuant to the Court’s Rule 37.6, amici state that this brief

was not authored in whole or part by any party or its counsel and

that no person other than amici, their members, or their counsel

contributed any money that was intended to fund the preparation

and submission of this brief. Pursuant to this Court’s Rule

37.2(a), amici provided all counsel of record with timely notice of

the intent to file this brief ten days or more before its due date.

A letter by petitioner consenting to the filing of the amicus brief

is on file with the Court. Respondents Hennepin County and

Mark V. Chapin also have consented.

Tyler Petition for Writ of Certiorari (No. 22-166) (hereinafter

“Tyler Pet.”) at 30-31.

money for government coffers; others, like Nebraska, 3

get paid by selling tax liens to private investors and

permitting them to seize the excess equity as profit if

the debt remains unpaid. Jenna Christine Foos, State

Theft in Real Property Tax Foreclosure Procedures, 54

Real. Prop. Tr. & Est. L.J. 93, 133 n.32 & 56 (2019).

Either way, homeowners lose home equity that they,

not the government or private investors, earned

through years of financial sacrifice. Nevertheless, an

Eighth Circuit panel upheld the constitutionality of

the Minnesota statute. Tyler v. Hennepin Cnty., 26

F.4th 789 (8th Cir. 2022).

Amici strongly support Tyler’s petition asking

that the Court accept review of the case and condemn

the Minnesota law as violating the Constitution’s

Fifth Amendment Takings Clause (“Nor shall private

property be taken for public use, without just

compensation.”) 4 Such laws are of extreme concern to

amici AARP and AARP Foundation, given their

devastating and disproportionate impact on the

financial security of older adults. AARP is the nation’s

largest nonprofit, nonpartisan organization dedicated

to empowering Americans 50 and older to choose how

they live as they age. With nearly 38 million members

and offices in every state, the District of Columbia,

Puerto Rico, and the U.S. Virgin Islands, AARP works

to strengthen communities and advocate for what

Amici also have filed an amicus brief supporting a Petition

for Writ of Certiorari in a case addressing the constitutionality of

Nebraska’s tax lien regime. Fair v. Continental Res., No. 22-160.

U.S. Const. amend. V.

matters most to families, with a focus on financial

stability, health security, and personal fulfillment.

AARP’s charitable affiliate, AARP Foundation, works

to end senior poverty by helping vulnerable older

adults build economic opportunity and social

connectedness.

Amici’s efforts have included filing amicus

briefs in state and federal court on this precise issue. 5

Amici agree with Petitioner Tyler that review by the

Supreme Court is needed to settle the deep and

growing split among the lower courts about whether

the Fifth Amendment’s Takings Clause prevents

government from seizing property tax debtors’ home

equity in excess of the taxes, penalties, interest, and

costs that are owed. Tyler Pet. at 18-21 (conflicts with

Supreme Court precedent); 21-24 (conflicts in federal

and state courts). 6

SUMMARY OF ARGUMENT

First, amici urge the Court to consider the

larger policy consequences of one specific aspect of the

Eighth Circuit panel opinion – the inappropriate

Cases in which AARP and AARP Foundation filed amicus

briefs in support of the homeowner include Knick v. Township of

Scott, 139 S. Ct. 2162 (2019); Tyler v. Hennepin Cnty., 26 F.4th

789 (8th Cir. 2022); Wayside Church v. Van Buren Cnty., 847 F.3d

812 (6th Cir. 2017), cert. denied, 138 S. Ct. 380 (2017); Coleman

v. District of Columbia, 70 F. Supp.3d 58 (D.D.C. 2009); Rafaeli,

LLC v. Oakland Cnty., 952 N.W.2d 434 (Mich. 2020).

Amici address herein only the Takings Clause claims raised

by Plaintiffs-Appellants.

burden of proof it places on homeowners to meet the

threshold showing that they possessed a property

interest in their own home equity. Here, Ms. Tyler,

citing an abundance of statutory and common law,

proved that this obvious right had existed for over a

hundred years in Minnesota. The panel conceded as

much, but then held that the very statute at issue –

alleged to be unconstitutional – “abrogated” that right:

“[E]ven assuming Tyler had a property interest in

surplus equity under Minnesota common law as of

1884, she has no such property interest under

Minnesota law today.” Tyler, 26 F.4th at 793. This

approach offends Takings Clause jurisprudence. See

Phillips v. Washington Legal Found., 524 U.S. 156,

167 (1998) (Nor can the government “by ipse dixit . . .

transform private property into public property

without compensation simply by legislatively

abrogating the traditional rule.”) (internal quote

omitted).

Second, amici ask the Court to consider the

human cost of such laws for the nation’s older citizens

in particular. Inevitably, those laws will have a

disproportionate impact on older homeowners of

modest means. These homeowners are most at risk of

property tax foreclosure in the first place, often for

reasons beyond their control. Many live on low fixed

incomes and face steadily rising utility and medical

costs, suffer physical ailments, and are forced to

navigate complex financial waters, such as reverse

mortgages, without financial advice. Moreover, for

them, tax authorities’ seizure of all of their home

equity is nothing short of catastrophic. That equity in

their home often is their only sizeable financial asset.

And, unlike their younger counterparts, many older

citizens no longer have the option of re-entering the

workforce to try to recoup the loss.

ARGUMENT

The Eighth Circuit Panel Decision

Imposes a Harsh Test of Property Rights

in Surplus Equity at Odds with Supreme

Court Jurisprudence, State Law, and

Common Sense.

Geraldine Tyler had purchased a condo in

Minneapolis and, after moving to a rental for safety

reasons, failed to pay a property tax debt of $15,000.

As required by statute, Hennepin County, on behalf of

the State, took title to the entire property, giving

notice of a three-year right of redemption if the debt

were repaid. At the expiration of the period, Hennepin

County sold the property for $40,000 and kept the

$25,000 surplus for itself. The Minnesota collection

statute contains detailed provisions on the public uses

to which Ms. Tyler’s funds could be applied, including

county parks, schools, and county and city budgets.

Minn. Stat. §§ 282.07-08.

Tyler challenged the County’s seizure of her

property on several grounds, including the Takings

Clause of the Fifth Amendment. To prove the obvious

– that she possessed a property right in the surplus

equity in her own home 7 – Tyler in the Eighth Circuit

pointed to English and American treatises; 8 U.S.

Supreme Court decisions; 9 a wide variety of

supportive federal and state court opinions; and the

fact that most states expressly protect this right. On

the Minnesota front, Tyler further pointed to a

persuasive early Minnesota Supreme Court decision

Farnham v. Jones, 19 N.W. 83, 85 (1884) (“right to the

surplus exists independently” of the property tax

collection provisions at issue). She also pointed to

Minnesota statutes that, in analogous contexts, treat

home equity as private property and require the

refund of surplus equity. 10

See Phillips v. Washington Legal Found., 524 U.S. 156, 164

(1998) (“Because the [Takings Clause] protects rather than

creates property interests, the existence of a property interest is

determined by reference to existing rules or understandings that

stem from an independent source such as state law.”).

Two of many examples included Am. Jur. 2d State and Local

Taxation § 911 (1974) (“Any surplus remaining after the payment

of taxes, interest, costs, and penalties must ordinarily be paid

over to the landowner.”) and 2 William Blackstone,

Commentaries *452 (when officials seize property for delinquent

taxes, “they are bound, by an implied contract in law” to return

it if the debt is paid before sale, or to sell it and “render back the

overplus”).

See, e.g., United States v. Taylor, 104 U.S. 216, 219, 221-22

(1881) (construing tax collection statute to hold former owner

entitled to surplus proceeds from the sale of his tax delinquent

property).

See, e.g., Minn. Stat. Ann. § 580.10 (surplus proceeds from

mortgage foreclosure after paying debts returned to former

owner); id. § 550.20 (“No more shall be sold than is sufficient to

Given the self-evident nature of Ms. Tyler’s

property right, those sources should have been more

than enough for the Eighth Circuit. The panel, in fact,

conceded the probable earlier existence of the right in

common law. However, the panel, with breathtaking

circular logic, then held that the very statute alleged

to be unconstitutional in this case “abrogated” that

right. With no note of the irony, the panel stated:

We conclude that any common-law right

to surplus equity recognized in Farnham

has been abrogated by statute. In 1935,

the Minnesota legislature augmented its

tax-forfeiture

plan

with

detailed

instructions regarding the distribution of

all “net proceeds from the sale and/or

rental of any parcel of forfeited land.”

1935 Minn. Laws, ch. 386, § 8. The

statute allocated the entire surplus to

various entities but allowed for no

distribution of net proceeds to the former

landowner. The necessary implication is

that the 1935 statute abrogated any

common-law rule that gave a former

landowner a right to surplus equity.

Tyler, 26 F.4th at 793.

satisfy the execution”); id. § 336.9-608 (recognizing equity as

proper subject of marital property division).

Of course, this begged the question before the

court – was that “abrogation” constitutional? Was it a

“tak[ing] for public use, without just compensation?”

The panel, seeing no issue, proceeded to detail the

exact “public uses” to which Ms. Tyler’s funds could be

put, such as forest development, school funding, and

padding city and county budgets. To the panel, the

statute’s detailed accounting was merely further

evidence that “even assuming Tyler had a property

interest in surplus equity under Minnesota common

law as of 1884, she has no such property interest

under Minnesota law today.” Id.

The panel’s approach offends both common

sense and Fifth Amendment Takings jurisprudence.

First, it implies that even an unconstitutional statute

can serve as the last word on the existence of the

property right. This cannot be the law. In Rafaeli,

LLC v. Oakland Cnty., 952 N.W.2d 434 (Mich. 2020),

the Michigan Supreme Court struck down a similar

state law, addressing the “abrogation” point:

It is clear that our 1963 Constitution

protects a former owner's property right

to collect the surplus proceeds following

a tax-foreclosure sale under Article 10,

§ 2. This right existed at common law;

was commonly understood to exist in the

common law before the 1963 ratification

of our Constitution; and continues to

exist after 1963 . . . Because this commonlaw property right is constitutionally

protected by our state's Takings Clause,

the Legislature's amendments of the

GPTA could not abrogate it. While the

Legislature is typically free to abrogate

the common law, it is powerless to

override a right protected by Michigan's

Takings Clause. [emphasis added]

Rafaeli, 952 N.W.2d at 460; see also Phillips v.

Washington Legal Found., 524 U.S. 156, 167 (1998)

(Nor can the government “by ipse dixit . . . transform

private property into public property without

compensation simply by legislatively abrogating the

traditional rule.”) (internal quote omitted).

The panel’s elevation of the offensive debt

collection statute as the litmus test for the existence of

this property right – versus an abundance of common

and statutory law – is particularly inappropriate given

the intuitive nature of this property right. If this were

a traditional mortgage foreclosure, it would not even

occur to American homeowners that the lender

possibly could seize home equity more than twice the

size of the debt. The panel’s casual dismissal of Ms.

Tyler’s profferred evidence severely undermines the

Constitution’s promise that “the government’s power

to redefine [property rights is] necessarily constrained

by constitutional limits.” Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1014 (1992); see also First Eng.

Evangelical Lutheran Church of Glendale v. Los

Angeles Cnty., Cal., 482 U.S. 304, 314 (1987) (The

Takings Clause “places a condition on the

[government’s] exercise of” the power to take private

property in the first instance).

The Supreme Court has made clear that, under

the Takings Clause, the government has no more right

to redefine the homeowner’s property right than does

a private mortgage lender. States cannot lawfully

extinguish established property rights with a wave of

the legislative wand, Webb’s Fabulous Pharmacies,

Inc. v. Beckwith, 449 U.S. 155, 164 (1980) (the State of

Florida cannot “transform private property into public

property

without

compensation”

simply

recharacterizing interest in funds held by the court as

“public money”); Armstrong v. United States, 364 U.S.

40, 44-45 (1960) (ship contractor property rights do not

“vanish into thin air” just because Government seeks

to collect its own debt). When the government

physically takes possession of an interest in property

for some public purpose, it has a categorical duty to

compensate the former owner. . . .” Tahoe-Sierra Pres.

Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322

(2002) (citation omitted). 11

Petitioner observes that the high courts of

Michigan, Minnesota, Mississippi, New Hampshire,

Here, unlike some cases, there is no genuine disagreement

that there was an act of “taking.” “[W]hen the government

commands the relinquishment of funds linked to a specific,

identifiable property interest such as a . . . parcel of real property,

a ‘per se [takings] approach’ is the proper mode of analysis . . ..”

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 614

(2013) (quoting Brown v. Legal Found. of Wash., 538 U.S. 216,

235 (2003); see also Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 430, 436 (1982) (holding that the

government’s taking physical control over a property interest for

public use is a taking per se).

Vermont, and Virginia – plus federal district courts in

Michigan, Ohio, and West Virginia – have recognized

that the government acts unconstitutionally when it

forecloses on property to collect delinquent taxes or

related debts and keeps more than it is owed. Tyler

Pet. at 19-20. 12 Amici respectfully recommend that

the Court accept this case for review and resolve the

split in the lower courts.

II.

Older

Homeowners

Face

Disproportionate Risk of Experiencing

Severe Harm Due to Tax Foreclosures.

Homeownership is the lynchpin of well-being

for older Americans. As of the fourth quarter of 2020,

approximately 28 million (80.2 percent) of 34.93

million householders over age 65 owned their homes.

Indeed, “[o]lder Americans often use[ ] their home

equity in retirement to finance health care, home

maintenance, and other large expenses and as a safety

net that could be used to meet unexpected needs.” Lori

A. Trawinski, Nightmare on Main Street: Older

Americans and the Mortgage Market Crisis, AARP

Pub. Pol’y Inst. 3 (July 2016), https://bit.ly/3lU9mwJ.

“For most older people, the home is . . . their most

valuable asset.” Id.

In two further New York and District of Columbia federal

court cases, plaintiffs’ allegations that government’s seizure of

surplus equity was unconstitutional survived motions to dismiss.

Dorce v. City of New York, No. 19-cv-2216, _ F.Supp.3d _, 2022

WL 2286381, at *12 (S.D.N.Y. June 24, 2022); Coleman through

Bunn v. D.C., No. 13-1456, 2016 WL 10721865 *2-3 (D.D.C. June

11, 2016).

Yet, for many reasons, older people face

disproportionate risk of losing their homes to tax

foreclosures. These include fixed incomes, rising

costs, higher incidence of disability, and having no

escrow account to cover property taxes (because

owners have no mortgage payment or have a subprime

or reverse mortgage).

John Rao, The Other

Foreclosure Crisis: Property Tax Lien Sales, Nat’l

Consumer Law Ctr. at 5, 8-10 (Jul. 2012),

http://bit.ly/1MLTZMc

(hereafter

“The

Other

Foreclosure Crisis”); Odette Williamson & Jillian

McLaughlin, Tax Lien Sales Put Low-Income, Seniors,

and the Disabled at Risk of Foreclosure, 34 Bifocal 1

(Oct.

2012),

https://bit.ly/2VgQhtJ

(hereafter

“Williamson & McLaughlin, Tax Lien Sales”).

Thus, it is Minnesota’s older, most vulnerable

citizens who are most likely to be victimized by

Minnesota’s tax foreclosure law and feel the effects

most strongly. Home equity is a fundamental source

of family stability and financial security for this

population. William M. Rohe & Mark Lindblad,

Reexamining the Social Benefits of Homeownership

after the Housing Crisis, Harv. Univ. Joint Ctr. for

Hous. Studs. (Aug. 2013), https://bit.ly/3sscWAD.

Older

homeowners

face

extraordinary economic pressures

that make them disproportionately

vulnerable to tax foreclosures.

Rising costs, coupled with low income, play a

significant role in making many older people

extremely vulnerable to losing their homes through

tax foreclosures. U.S. Dep’t of Hous. and Urb. Dev.,

Aging in Place: Facilitating Choice and Independence,

(Fall 2013), https://bit.ly/3rloGDH. One problem is

that a growing share of older households are carrying

housing and other debt into their retirement years.

Whitney Airgood-Obrycki et al., Housing America’s

Older Adults 2019, Joint Ctr. For Hous. Stud. Of Harv.

Univ. 7 (Marcia Fernald ed., 2019), https://bit.ly/31m

EETO. In 2016, 46 percent of homeowners aged 6579, and 26 percent of homeowners over 80, had

mortgage debt. Id.

Older adults who own their homes also have

other significant housing related costs, including

taxes, utilities, insurance, and repairs and

maintenance; yet, such costs are often difficult to

afford for older adults who no longer work and have

limited retirement income. Id. at 6-7. More than one

in four homeowners 65 and older is cost-burdened

(paying more than 30 percent of income for housing).

Id. at 8. That percentage is even greater among

homeowners still paying off mortgage debt, with 43

percent of homeowners 65 and older having cost

burdens. Id. Older adults with housing cost burdens

may cut back on other necessary budget items – in

2018 burdened households in the bottom quartile of

expenditures spent only $195 a month on food, while

those without burdens spent an average of $368. Id.

at 9. Similarly, they spent 50% less on average for outof-pocket healthcare than those without burdens. Id.

Older persons also are more likely to take on

debt to aid or pay the debts of a family member,

thereby making them more vulnerable in adverse

economic conditions. Id. at 8. As basic expenses such

as housing, utilities, prescription drugs, and health

care continue to rise, many people now enter their

retirement years incurring costs for basic needs that

exceed their modest or limited incomes. 13

Increasingly, this includes their own, or family

members’, school debt. The share of households aged

50-64 with student loan debt doubled from 7 percent

of households in 2001 to 16 percent in 2016. Id. at 78.

Older Minnesota homeowners also may be

suffering lingering financial effects from losses during

the COVID-19 pandemic.

In 2020 aggregate

retirement deficits had been projected to increase by

11.2% or $412.77 billion. 14 Many older adults have

Jack VanDerhei, Retirement Savings Shortfalls: Evidence

from EBRI’s 2019 Retirement Security Projection Model®, Emp.

Benefit Rsch. Inst. (Mar. 7, 2019), https://bit.ly/2NUlnps.

Jack VanDerhei, Impact of the COVID-19 Pandemic on

Retirement Income Adequacy: Evidence from EBRI’s Retirement

Security Projection Model®, Emp. Benefits Rsch. Inst. (Apr. 23,

2020), https://bit.ly/3cpihTN.

lost income because of the pandemic, with 21 percent

of homeowners over age 65 reporting loss of

employment income in 2020. Jennifer Molinsky, Ten

Insights About Older Households from the 2020 State

of the Nation’s Housing Report, Joint Ctr. for Hous.

Studs. of Harvard Univ. (Dec. 17, 2020), https://

bit.ly/3w2iMew. Five percent of older homeowners

reported having fallen behind on housing payments.

Id. Initial job losses from the pandemic hit older

adults harder than similarly situated younger

workers. Kenneth Terrell, AARP, Unemployment’s

Toll on Older Workers Is Worst in Half a Century (Oct.

21, 2020), https://bit.ly/ 3c3hDLK. During the first six

months of the COVID-19 pandemic, workers aged 55

and older were 17 percent more likely to lose their jobs

than employees a few years younger. Id.

Finally, economic security is particularly

tenuous for older people in the lowest income brackets,

who suffer hunger or food insecurity due to income

shortfalls. An estimated 5.3 million seniors, or 7.3%

of the U.S. senior population, were food insecure in

2018. James P. Ziliak & Craig Gundersen, The State

of Senior Hunger in America in 2018, Feeding America

4 (May 21, 2020), https://bit.ly/3d5SZte. “[F]or those

with incomes below the poverty line, 29.5% were food

insecure.” Id.

In sum, it is older Minnesota citizens of modest

means, struggling with chronic income shortfalls, who

are most likely to struggle paying their property taxes.

That means they also are the group most likely to lose

all the equity surplus in their homes as a result of

Minnesota’s confiscatory property tax foreclosure law.

Many older people are at risk of tax

foreclosures because they no longer

pay their taxes into an escrow

account.

For many people with a mortgage, a portion of

their property taxes is collected with their monthly

payment and held in an escrow account until the taxes

are due. At that time, the mortgage servicer pays

taxes directly to the taxing authority. Ironically,

paying off one’s mortgage – a potential sign of greater

economic security – often plays a significant role in

greater vulnerability to tax delinquency and tax

foreclosure. Williamson & McLaughlin, Tax Lien

Sales, supra.

Upon paying off a mortgage,

homeowners assume responsibility for setting aside

sufficient funds to pay taxes when they come due and

for making payment themselves. This adjustment can

create significant problems for older homeowners,

particularly for those who have difficulty with

financial decision making or have diminished capacity

or disabilities. They may not understand the process,

inadvertently miss payment dates, or be unable to set

aside sufficient funds to pay tax bills when required.

Id.

Similarly, homeowners who have reverse or

subprime mortgage loans face challenges paying their

taxes. Reverse mortgages, a product largely serving

older homeowners, generally do not feature escrow

accounts for taxes. Hence, as with older homeowners

who no longer make mortgage payments, those with

reverse mortgages must manage tax (and insurance)

payments on their own. 15 “[A] lack of understanding

that they were required to pay these charges” was “the

most significant factor” for the recent surge in (mostly

older) reverse mortgage borrowers “losing their homes

to foreclosure.”

Sarah B. Mancini & Odette

Williamson, Reversing Course: Stemming the Tide of

Reverse Mortgage Foreclosures Through Effective

Servicing and Loss Mitigation, 26 Elder L.J. 85, 102

(2018) (citing 2012 Report to Congress by the

Consumer Financial Protection Bureau). 16

Reverse mortgages insured through the Home Equity

Conversion Mortgage (HECM) Program permit borrowers 62

years or older to obtain a lump sum or line of credit based on the

value of their home. They are not required to make payments on

the reverse mortgage while they continue to live in the home, but

they must carry hazard insurance and make tax payments.

Reverse mortgage servicers are required to protect the security

for the mortgage by paying property tax on the borrower’s behalf

if taxes become delinquent. This shifts to the borrower the risk

of foreclosure, as HUD requires the servicer to declare the

mortgage due and payable if the borrower does not repay

property taxes advanced. See U.S. Dep’t of Hous. and Urb. Dev.,

Home Equity Conversion Mortgage (HECM) Financial

Assessment and Property Charge Requirements, Mortgagee

Letter 2014-22 (Nov. 10, 2014), http://1.usa.gov/1MYKrnm.

In November 2016, HUD reported nearly 90,000 reverse

mortgages in default on property charges, mostly consisting of

tax or insurance shortfalls.

Id.; see also Ctr. for NYC

Neighborhoods, Policy Brief: Protecting Senior Homeowners from

Reverse

Mortgage

Foreclosure,

(Aug.

2017),

https://bit.ly/3w7wFIo (reporting that “[n]ationwide, reverse

addition, “the vast majority of subprime mortgage

loans made prior to 2008 did not include an escrow

account”; indeed, “[s]ome lenders used the lower

monthly loan payment to induce consumers into

believing the loans were affordable.” The Other

Foreclosure Crisis, supra at 5.

Older homeowners are at increased

risk of losing their home to a tax

foreclosure because they have a

significantly higher incidence of

disability and associated incapacity.

“Homeowners most at risk [of losing their

homes to tax foreclosure] are those who have fallen

into default because they are incapable of handling

their financial affairs, such as individuals suffering

from Alzheimer’s, dementia, or other cognitive

disorders.” The Other Foreclosure Crisis, supra at 5.

The risk of having such disorders increases

exponentially with advancing age. Stacey Wood &

Peter A. Lichtenberg, Financial Capacity and

Financial Exploitation of Older Adults: Research

Findings, Policy Recommendations and Clinical

Implications, 40 Clinical Gerontologist 3-13 (2017);

Peter Boersma, Lindsey I. Black & Brian W. Ward,

Prevalence of Multiple Chronic Conditions Among US

Adults, 2018, 17 Preventing Chronic Disease 1-4

(2020).

mortgage defaults from taxes and insurance doubled from 2015

to 2016”).

The factors that make many older people

particularly vulnerable to becoming delinquent on

their taxes also make them least able to save their

homes and avoid the devastating loss of their equity.

Some will be forced into nursing homes prematurely,

and others may be forced to rely on government

benefits. The Fifth Amendment Takings Clause was

designed to prevent such effects of the “arbitrary use

of governmental power.”

Webb’s Fabulous

Pharmacies, Inc., 449 U.S. at 164.

CONCLUSION

For the reasons set forth above, amici curiae

AARP and AARP Foundation urge the Court to grant

Geraldine Tyler’s Petition for Writ of Certiorari.

September 22, 2022

Respectfully submitted,

/s/ William Alvarado Rivera

William Alvarado Rivera*

Dean Graybill

AARP Foundation

601 E Street, NW

Washington, DC 20049

Tel: 202 434-3392

Fax: 202-434-6424

warivera@aarp.org

*Counsel of Record

Counsel for Amici Curiae

AARP and AARP

Foundation

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