Massachusetts law about mortgage foreclosure

A compilation of laws, regulations, cases and web sources on mortgage foreclosure law.

For information about municipal tax takings, see Massachusetts law about property taxes.

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Table of Contents

COVID-19 relief information

Homeowner Assistance Fund (HAF) 
The Massachusetts Homeowner Assistance Fund (HAF) is a federally funded housing assistance program to help homeowners who are behind on their mortgage payments due to the COVID-19 pandemic. “As of September 1, 2022: For new applications to the program, Mass. HAF program assistance will be capped at $50,000 per household.”

Learn about forebearance, U.S. Consumer Financial Protection Bureau.
If your loan is backed by HUD/FHA, USDA, (see 9/27/21 announcement), or VA, you may request an initial COVID hardship forbearance as long as the COVID-19 National Emergency is in place. On October 13, 2022, the Secretary of HHS extended the National Public Health Emergency for 90 days until January, 2023. If your loan is backed by Fannie Mae or Freddie Mac, there is not currently a deadline for requesting an initial forbearance. The Consumer Financial Protection Bureau provides information on how to request forebearance.

Best bet

Mortgage lending and foreclosures, Mass. Attorney General.
Information about preventing foreclosure, the loan modification process, foreclosure-related scams, and frequently asked questions regarding resources for mortgage and foreclosure assistance. If you are having an issue with your mortgage lender, you can file a complaint with the AG’s Consumer Advocacy and Response Division.

What happens when the bank forecloses, MassLegalHelp, 2013.
Helpful information for homeowners facing foreclosure. Links to information about the various steps in the foreclosure process.

Massachusetts laws

MGL c.183, § 27 Disposition of proceeds of foreclosure

MGL c.244 Foreclosure and redemption of mortgages

MGL c.260, § 33 Limitation of actions: obsolete mortgages
See also:

Massachusetts regulations

209 CMR 56 Foreclosure prevention options (with form for notice) (Division of Banks)

940 CMR 25 Foreclosure rescue transactions and foreclosure-related services (Office of the Attorney General)

Federal law

12 CFR X Bureau of Consumer Financial Protection

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."

HSBC Bank USA, N.A. v. Morris, et al., 490 Mass. 322 (2022)
A borrower can assert a Predatory Home Loan Practices Act (PHLPA) counterclaim in a summary process action brought by a mortgage assignee to obtain possession following a nonjudicial foreclosure. Includes discussion of the claims that can be brought under PHLPA.

HSBC Bank USA, N.A., Trustee v. Matt, 464 Mass. 193 (2013)
An oft-cited case in the Land Court concerning the limited scope and nature of a Servicemembers case in the larger context of a foreclosure.

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 in in U.S. Bank National Association v. Ibanez, 17 LCR 679, Land Court MISC 08-384283 (October 14, 2009), 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."

Web sources

Avoiding foreclosure, U.S. Dept. of Housing and Urban Development.
Primarily written for homeowners with FHA Insured loans, much of the information may apply to anyone facing foreclosure

Frequently asked questions on 150/90 day right to cure notice, Mass. Division of Banks.
If you are behind in mortgage payments you are in “default.” If you pay the bank all the payments you missed, you can “cure the default”. The bank must send you a notice that says you have the right to pay the money you owe.  Helpful information on requirements for a right to cure notice.

Foreclosure, USA.gov.
Very basic information about avoiding foreclosure, avoiding foreclosure scams, and refinancing a mortgage. From an official federal government website.

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.

Home foreclosure and debt cancellation, IRS.
Provides critical information on the tax consequences of foreclosure and debt cancellation, with links to forms. See also Mortgage forgiveness tax break extended through 2025 by Amy Loftsgordon, Nolo.

Land Court Servicemembers cases resources
Military status can provide certain protections from foreclosure.  Learn about the process and protections provided.

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. Detailed information from a legal self-help publisher.

Print sources

Crocker’s notes on common forms, 11th ed., MCLE, loose-leaf, Chapter 10, Foreclosure of mortgage.

The foreclosure survival guide : keep your house or walk away with money in your pocket by Amy Loftsgordon, Nolo, 2021.

Home foreclosures: including reverse mortgages, tax liens, condominium liens, land installment sales, and seizure of manufactured homes by Geoff Walsh, National Consumer Law Center, 2019.

Massachusetts mortgages, foreclosures and workouts, 7th ed., MCLE, loose-leaf.

Real estate law with forms, 5th ed. (Mass. Practice v. 28) Thomson Reuters, 2016 with supplement. Chapter 10, Mortgage foreclosure.

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Last updated: December 12, 2022

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