Help for borrowers and tenants in arrears. Hampshire County Register of Deeds, April 2020. Explains recent legislation at the state and federal level intended to assist tenants and home owner/borrowers who are in financial distress due to the Covid-19 emergency.
St.2020, c.65 Moratorium on evictions and foreclosures during COVID-19 emergency
- Note: on July 21, 2020, the Governor extended this moratorium until October 17, 2020.
MGL c.244 Foreclosure and redemption of mortgages
MGL c.260, § 33 Limitation of mortgage foreclosures; obsolete mortgages
Selected case law
Bank of NY v. Bailey, 460 Mass. 327 (2011)
"[T]he Housing Court has jurisdiction to decide the validity of a challenge to a title, raised by a former homeowner as a defense to a summary process eviction action by a party acquiring the property pursuant to a foreclosure sale."
Commonwealth v. Fremont Investment and Loan, 452 Mass. 733 (2008)
Upholds a Superior Court order "that restricts, but does not remove, Fremont's ability to foreclose on loans with features that the judge described as 'presumptively unfair.'"
Easthampton Savings Bank v. City of Springfield, 470 Mass. 284 (2014)
Discusses the preemption of local foreclosure ordinances by state laws.
Eaton v. Federal National Mortgage Ass'n, 462 Mass. 569 (2012)
"The meaning of the term "mortgagee" as used in the statutes is not free from ambiguity, but we now construe the term to refer to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder." The ruling will only apply to " foreclosures under the power of sale where statutory notice is provided after the date of this decision."
James B. Nutter & Co. v. Murphy, 478 Mass. 664 (2018)
A reverse mortgage did not contain the formal language of "statutory power of sale," but only said that the company could “invoke the power of sale and other remedies permitted by applicable law." The SJC held that, given that this was a reverse mortgage, and not a traditional mortgage, "where the lender cannot hold the borrower personally liable for the debt, and where the lender’s only recourse on default is to obtain repayment through a foreclosure sale," "the only reasonable and practical interpretation of the mortgage was that it incorporated the statutory power of sale."
Lenders Commercial Finance LLC v. Pestilli, et al, Southeast Housing Court, Feb. 3, 2017.
A bank that purchased a home at foreclosure could not evict the former owners with just a 30-day notice to quit. "The Court finds that there is no evidence in this action that there was ever any agreement between the parties for the defendant to pay any rent to the plaintiff, or for any definite rental period. Accordingly, the court finds that G.L. c. 186, s.12 requires that the plaintiff terminate the defendant's tenancy at will by service of a 90 Day Notice to Quit for possession."
Property Acquisition Group v. Ivester, 95 Mass. App. Ct. 170 (2019)
Before conducting a foreclosure sale, the mortgagee must use reasonable diligence to determine the fair market value of the property.
US Bank National Association v. Ibanez, 458 Mass. 637 (2011)
Upholds the ruling of the Land Court (MISC 08-384283) below, regarding the requirement that mortgage holders must be accurately identified in a foreclosure proceeding. "We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure. As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied."
U.S. Bank National Association v. Ibanez, 17 LCR 679, Land Court MISC 08-384283, October 14, 2009
Foreclosure sales are invalid where they fail to name "the “present holder of the mortgage” at the time of the notice and sale (i.e., that post-sale mortgage assignments to the successful bidder, even if backdated, do not suffice)..."
Abandoned housing initiative receivership manual, Mass. Attorney General, March 2014
Extensive (89 p.) manual for municipalities that "cover all facets of receivership from the initial communication with a property owner to the termination of a receivership." Includes sample pleadings and more.
Avoiding foreclosure, US Dept. of Housing and Urban Development
Primarily written for homeowners with FHA Insured loans, much of the information may apply to anyone facing foreclosure
Defending against mortgage foreclosures in Massachusetts, Michael Pill, October 2010
This 27-page supplement to Mass. Practice delineates five ways to challenge a foreclosure, with detailed references and footnotes
Frequently asked questions on 150/90 day right to cure notice, Mass. Division of Banks.
Helpful information for lenders on requirements for a right to cure notice.
Temporary Mortgage Relief Due to Coronavirus Pandemic, Avoid Foreclosure, Foreclosure Scams After a Foreclosure, Mortgage Refinancing
Foreclosure prevention. Federal Office of the Comptroller of the Currency.
Foreclosure prevention counseling resources, National Consumer Law Center
"Practical tools and resources for housing counselors, attorneys, and other advocates who are counseling homeowners threatened with foreclosure." Includes Sample Documents and Practice Aids, Fannie Mae Information, Freddie Mac Home Affordable Modification Program, and more.
The foreclosure survival guide: keep your house or walk away with money in your pocket, by Stephen Elias, Nolo, 2019
Covers workouts, foreclosure, and walking away. Requires free library card for access
Foreclosure timeline, Middlesex North Registry of Deeds, July 2013
Blog post uses an example to illustrate the timing of an Order of Notice in the foreclosure process
Making home affordable, US Treasury Dept. & US Housing and Urban Development Dept.
Explains eligibility for federal programs for refinancing and modification of mortgages, including a self-assessment tool
Massachusetts foreclosure laws and procedures, Nolo Learn about foreclosure procedures in Massachusetts, including what notices you’ll get and the steps the foreclosing bank must follow.
Mortgage lending and foreclosures, Mass. Attorney General.
Find information and answers to frequently asked questions from the Attorney General's Office. If you are having an issue with your mortgage lender you can file a complaint with their Consumer Advocacy and Response Division.
Questions and answers on home foreclosure and debt cancellation, IRS
Provides critical information on the tax consequences of foreclosure and debt cancellation, with links to forms
What happens when the bank forecloses, MassLegalHelp, 2013.
Outlines the steps from a missed mortgage payment through the foreclosure auction.
Massachusetts mortgages, foreclosures and workouts, MCLE, loose-leaf.
Short sales, deeds-in-lieu & receiverships, MCLE, 2010
|Last updated:||August 31, 2020|