Memorandum  Memo: Foreclosure deeds

Date: 11/01/2012
Organization: Land Court
Referenced Sources: M.G.L. c. 244 § 35B
M.G.L. c. 244 § 35C

To: All registry districts, Registered Land Division 

From: Edmund A. Williams, Chief Title Examiner  

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Land Court

Table of Contents


Effective November 1, 2012 G.L. Chapter 244, Sections 35B and 35C go into effect. There is now a requirement for foreclosures being commenced as of that date, of an affidavit or affidavits reciting compliance or non-applicability of the respective sections. This affidavit is in addition to the affidavit we have required pursuant to my memo of August 7, 2012.

Chapter 244, Sections 35B and 35C require an affidavit be executed prior to the date of first publication of a foreclosure sale. The date of registration of the affidavit, however, may be either prior or subsequent to the actual publication.

The party entitled to make the affidavit is defined in the respective section copies of which are attached to this memo.

The Real Estate Bar Association (REBA) has approved forms for this purpose, depending on whether the mortgage has been assigned. Each form refers specifically to Chapter 244, Section 35B and have a second section that, while not specifying Chapter 244 Section 35C directly, is substantively satisfactory for compliance with the section.

In addition to the affidavits now required under Chapter 244, Sections 35B and 35C, a second (or third if two are used for 35B & C) affidavit will be needed to show compliance with the Eaton case. This second affidavit may be a second registration of a REBA form (dated postsale instead of prior to publication) or some other affidavit which addresses the period of first publication through auction or in the case of a foreclosure not covered by 35B & C, general compliance with Eaton.

At this time it is possible that no affidavits may be required for recordings which are being presented, but even in these instances an affidavit of non-applicability may be filed.

Given the different scenarios regarding foreclosures (depending on the dates in which certain events take place within the process) all affidavits, whether they be required by Chapter 244, Sections 35B and 35C or by the Eaton decision and all foreclosure deeds will be required to be approved by the Chief Title Examiner or his designee.

The responsibility for review of the affidavit requirements will eventually be given to the Districts, perhaps in stages, but at the outset it shall be borne by the Court.

In addition:

The aforementioned affidavits may be pursuant to G.L. Chapter 183, Section 5B. Foreclosures for which all publication notices took place prior to June 22, 2012 would not require any of the aforementioned affidavits, and may be accepted for registration. If in conjunction with one of these foreclosures an affidavit is presented for registration, it may be accepted as part of the recording package without approval.

Pursuant to an amendment to Chapter 244, Section 15, Publication Notices after November 1, 2012 are required to include the recording information for all assignments. Banks whose name has changed or merged during the period in which it is the holder can be recited in the notice without further documentation (as per Chapter 83, Section 55(i)).

As always, no document may be accepted for registration by a purported holder of a mortgage unless the original mortgage was and is still in its name, or an assignment to it/them is on record.

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