Memorandum  Memo: Federal Mortgage Foreclosures by HUD Pursuant to 12 USC § 3751 et seq. (Single Family Mortgage Foreclosure Act of 1994)

Date:	02/17/2012
Organization:	Land Court
Referenced Sources:	12 USC s. 3751 et seq. 24 CFR 27.100, et seq.

To: All Registry Districts
From: Edmund A. Williams, Chief Title Examiner
Date: February 17, 2012

Memo

Mortgages held by the U.S. Department of Housing and Urban Development (HUD), either by direct grant or assignment, may be foreclosed pursuant to the above act using the procedures set forth therein. In those cases where the mortgage is held by assignment, the date of the assignment must be on or before the date of the first publication recited in their tear sheet or affidavit.

Many of the requirements of the Act, such as notice and publication, are similar to Massachusetts practice. For recording purposes, the procedures are different from the requirements and procedures under Massachusetts Law in the following manner:

1. The foreclosures will be conducted by a commissioner appointed by the Secretary of the Department of Housing and Urban Development or his/her designee, which will usually be the Regional Counsel or Director.

   This document is entitled “Foreclosure Commissioner Designation”, and is already on record in several of our registries. [The appointment will remain in effect until a revocation is registered]. 

2. There will not be a Notice of Foreclosure or Judgment issued by the Land Court or Superior Court under the Servicemembers Civil Relief Act. The only reference to military status will be a statement in the foreclosure deed to the effect that the mortgagor(s) and/or current owners are not entitled to the benefits under the act. 

3. A document entitled “Notice of Default and Foreclosure Sale” will be registered.

   Pursuant to Section 3757 of the code, the Notice of Default and Foreclosure Sale (“notice”) will set forth:

   1. the name and address of the foreclosure commissioner;
   2. the date on which the notice is issued;
   3. the names of – 
      1. the Secretary;
      2. the original mortgagee (if other than the Secretary); and 
      3. the original mortgagor;
   4. the street address or a description of the location of the security property, and a description of the security property, sufficient to identify the property to be sold;
   5. the date of the mortgage, the office in which the mortgage is recorded, and the liber number and folio or other appropriate description of the location of the recordation of the mortgage [standard registered land description and filing reference is required];
   6. the identification of the failure to make payment, including the due date of the earliest installment payment remaining wholly unpaid as of the date on which the notice is issued upon which the foreclosure is based, or a description of any other default or defaults upon which the foreclosure is based, and the acceleration of the secured indebtedness; 
   7. the date, time and location of the foreclosure sale; 
   8. a statement that the foreclosure is being conducted pursuant to this chapter;
   9. a description of the types of costs, if any, to be paid by the purchaser upon transfer of title;
   10. the amount and method of deposit to be required at the foreclosure sale (except that no deposit shall be required of the Secretary) and the time and method of payment of the balance of the foreclosure purchase price; and
   11. any other appropriate terms of sale or information, as the Secretary may determine.

4. The foreclosure deed will be executed by the foreclosure commissioner. The Foreclosure Commissioner Designation and Notice of Default and Foreclosure Sale should be already on record at the time of the registration of the foreclosure deed.

   The foreclosure commissioner shall include the following recitals in the deed or in an affidavit or addendum to the deed setting forth (per section 3764):

   1. the date, time, and place of the foreclosure sale;
   2. that the mortgage was held by the Secretary, the date of the mortgage, the office in which the mortgage was recorded, and the liber number and folio or other appropriate description of the recordation of the mortgage;
   3. the particulars of the foreclosure commissioner’s service of the notice of default and foreclosure sale in accordance with sections 3758 and 3760 of this title;
   4. the date and place of filing the notice of default and foreclosure sale; 
   5. that the foreclosure was conducted in accordance with the provisions of this chapter and with the terms of the notice of default and foreclosure sale; and
   6. the sale amount.
5. The foreclosure deed will have a tear sheet attached but no affidavit pursuant to M.G.L. Ch. 244, § 14. The statements required by section 3764 of the code will be contained in the deed itself, an affidavit (but not pursuant to Ch. 244, § 14) or an addendum to the deed. 
6. Upon registration of the foreclosure deed in accordance with the procedures set forth herein (it is unlikely that an entry will accompany the deed), a new certificate of title may issue to the grantee in the usual manner.
7. Doubtful cases may be referred to the Chief Title Examiner or his/her designee for approval.