Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Category Archives: Foreclosure

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Affordable Housing Covenants Have Protected Status in Foreclosures

Posted in Affordable Housing, Condominiums, Foreclosure, Restrictive Covenants
The Boston Redevelopment Authority d/b/a Boston Planning and Development Agency has the right to challenge a foreclosure that purportedly terminated a covenant restricting the use of property to affordable housing. In allowing the BPDA’s suit to move forward, the Business Litigation Session of the Suffolk Superior Court recognized two truisms of Massachusetts foreclosure law. First,… Continue Reading

SJC Removes Another Arrow From The Foreclosure Defense Quiver

Posted in Foreclosure, Title
In its recent decision (pdf) in Abate v. Fremont Investment & Loan, the Supreme Judicial Court (SJC) affirmed a Land Court judgment dismissing a foreclosed borrower’s “try title” action.  “Try title” is a nineteenth century cause of action that allows an owner of land to force someone with an adverse claim to the land to either bring an action and prove his “better title” or forever hold his peace. … Continue Reading

Further Foreclosure Fallout

Posted in Foreclosure, Title
In its decision earlier this year in U.S. Bank Natl. Assn. v. Schumacher (pdf), the Supreme Judicial Court addressed the impact of a failure to comply with requirements for providing notice of the mortgagor’s right to cure a default pursuant to M.G.L. c.  244, § 35A (our post on Schumacher is here).  The recent Appeals Court case of Haskins v. Deutsche Bank… Continue Reading

Recent Rulings on More Foreclosure Foibles

Posted in Foreclosure, Miscellaneous, Title
In the last few weeks the Supreme Judicial Court (SJC) decided two more cases dealing with the effects of botched foreclosure sales.  The more important decision is U.S. Bank National Association v. Schumacher (pdf).  Schumacher arises from M.G.L. c. 244, §35A, which the Legislature enacted in 2007 in response to the foreclosure crisis.  This statute requires foreclosing banks to notify… Continue Reading

Spring Training for Real Estate Lawyers

Posted in Foreclosure, Title
Educational opportunities abound this spring!  Next Tuesday, April 2, 2013, at the Massachusetts Continuing Legal Education (MCLE) headquarters in Downtown Crossing, my current Rackemann colleague and fellow MLUM contributor Gordie Orloff, and my former Rackemann colleague, Land Court Justice Robert B. Foster, will be among the panelists in a program entitled, “Resolving Common & Complex Title Issues.”  Among other topics, this program will cover how to spot and… Continue Reading

SJC Seeks Friendly Advice On Ability Of MERS To Foreclose

Posted in Foreclosure, Standing
The Supreme Judicial Court (SJC) is soliciting amicus briefs in Galiastro v. Mortgage Electronic Registration System, Inc., an appeal that presents the issue of whether the defendant, MERS, has standing to foreclose in its own right as the named mortgagee in a mortgage, when it does not have any ownership interest or rights in the underlying promissory note.  The SJC will also… Continue Reading

Breaking: SJC Upholds Statutory Form of Foreclosure Affidavit

Posted in Foreclosure, Landlord-Tenant
This morning the Supreme Judicial Court (SJC) issued its decision in Fannie Mae v. Hendricks (pdf), a summary process case that raised the issue of whether the Massachusetts statutory form of foreclosure affidavit – which has been in use for 100 years – is sufficient to show compliance with a power of sale, thereby entitling a foreclosing mortgagee to possession of the premises.  The SJC held that,… Continue Reading

But Wait . . . The SJC Has More To Say On Foreclosures

Posted in Foreclosure, Landlord-Tenant
Just when we thought the Supreme Judicial Court’s Eaton decision (see our post here) had resolved the last big question regarding foreclosure requirements, another case is providing new foreclosure fodder.  Recently, the SJC requested amicus briefs in Federal National Mortgage Association v. Hendricks, SJC-11234.  In this case a mortgagor, Hendricks, was evicted after his home was foreclosed.  He appealed, arguing that Mortgage Electronic Registration Systems, Inc. (MERS)… Continue Reading

SJC Requires Foreclosing Bank to Hold Both Mortgage and Note

Posted in Foreclosure, Title
Last Friday the Supreme Judicial Court (SJC) issued its anxiously-anticipated decision (pdf) in Eaton v. Fannie Mae.  The decision is written by Justice Margot Botsford. As foreshadowed in our previous posts here and here, Eaton resolves the debate among lower Massachusetts courts and federal judges over whether Massachusetts law requires a foreclosing mortgage holder to also hold the promissory note secured… Continue Reading

Hot Off The Presses – Eaton v. Fannie Mae

Posted in Foreclosure, Miscellaneous, Title
Here is the Supreme Judicial Court’s decision in Eaton v. Fannie Mae, released moments ago.  It appears to require a foreclosing mortgagee to either have physical possession of the underlying promissory note or be acting as the authorized agent of the noteholder.  Crucially for real estate practitioners, the decision applies only prospectively.  More to follow shortly.… Continue Reading

Breaking: SJC’s Eaton Decision Expected Today

Posted in Foreclosure, Title
Rumor has it that the Supreme Judicial Court will issue its long-awaited decision in the case of Eaton v. Fannie Mae later this morning.  One crucial issue presented is whether a foreclosing mortgagee must hold both the mortgage and the note.  For some background, see my colleague Gordie Orloff’s prior post here.  We will bring you this potentially explosive decision… Continue Reading

More Mortgage Musings from Federal Court

Posted in Foreclosure, Miscellaneous
A couple of interesting foreclosure-related orders from the U.S. District Court for the District of Massachusetts, as reported in this week’s Massachusetts Lawyers Weekly (subscription required). In Morse v. Residential Credit Solutions, Inc., Judge Rya W. Zobel denied the plaintiff’s motion to remand the case to the Massachusetts Land Court.  Judge Zobel ruled that, although the plaintiff’s complaint sought only… Continue Reading

Michigan Rejects Need for Unity of Note and Mortgage

Posted in Foreclosure
In a ruling that may presage the Massachusetts Supreme Judicial Court’s eagerly awaited decision in Eaton v. Federal National Mortgage Association (see our related posts here and here), a divided Supreme Court of Michigan has reversed a Court of Appeals decision that required Mortgage Electronic Registration Systems, Inc. (MERS) to hold both the promissory note and the mortgage it was foreclosing.  The… Continue Reading

News Flash: SJC Requests Additional Briefing in Eaton Case

Posted in Foreclosure
The Supreme Judicial Court (SJC) apparently is concerned about the potential consequences of ruling in Eaton v. Fannie Mae (see our prior post here) that a foreclosing mortgagee must hold both the mortgage and the underlying promissory note (see our discussion of this issue, and Land Court Judge Gordon H. Piper’s recent message to the SJC, here).  On January 6, the SJC entered the following order in… Continue Reading

Massachusetts Federal Court has Lumps of Coal for Two More Foreclosure Plaintiffs

Posted in Foreclosure
In two decisions issued this fall and published this week in Massachusetts Lawyers Weekly, the U.S. District Court in Massachusetts rejected all claims of plaintiffs challenging the foreclosure of their properties. In Archambault v. Aurora Loan Services, LLC (pdf), the plaintiffs tried to stop the foreclosure of their home by filing suit claiming that the defendant lacked authority to foreclose because (1) an assignment of… Continue Reading

Must Note and Mortgage be Unified for a Proper Foreclosure? Land Court says “No.”

Posted in Foreclosure
Judge Gordon H. Piper of the Land Court has added his voice to the chorus of opinions on the important issue presented in the case of Eaton v. Fannie Mae, which is awaiting decision by the Supreme Judicial Court (SJC).  The issue is whether, under Massachusetts law, a foreclosing mortgagee must hold both the mortgage and the promissory note… Continue Reading

Massachusetts Federal Court Requires Unity of Note and Mortgage Before Foreclosure

Posted in Foreclosure, Title
As discussed in previous posts (here, here and here), a hot topic in foreclosure law is whether a foreclosing mortgagee must also hold the promissory note secured by its mortgage.  The latest contribution to this area of the law is U.S. District Court Judge William G. Young’s decision in Culhane v. Aurora Loan Services of Nebraska, a 59-page… Continue Reading

Breaking News: Mass. Attorney General Files Wide-Ranging Suit Accusing National Banks and MERS of Fraud, Deception in Foreclosure Process

Posted in Foreclosure
Massachusetts Attorney General Martha Coakley today filed a wide-ranging lawsuit in Suffolk County Superior Court in Boston against Bank of America, JP Morgan Chase, Citibank, GMAC, Wells Fargo and MERS, alleging that the defendants’ conduct in foreclosing “hundreds, if not thousands” of mortgages in Massachusetts was fraudulent, unfair, deceptive and in violation of numerous provisions of Massachusetts… Continue Reading

More MERS Murkiness

Posted in Foreclosure, Title
In previous posts (here and here) we’ve discussed the question of whether ownership of the mortgage and the note must be unified in the same person.  Superior Court Judge Cornelius Moriarty has now weighed in, with his split decision on the defendants’ motion to dismiss in Mack v. Wells Fargo Bank, N.A., 29 Mass. L. Rptr. No. 1, 14… Continue Reading

Superior Court Weighs In on Need for Unified Ownership of Mortgage and Note

Posted in Foreclosure, Title
In the Superior Court case Adamson v. MERS, the plaintiff foreclosed-on borrower is challenging the foreclosure on several grounds.  The defendant mortgage lender and its loan servicer recently moved to dismiss the case, and in an interesting decision (pdf), Rackemann alum Judge Raymond Brassard allowed the motion to dismiss in part.  Most interestingly, Judge Brassard addressed the plaintiff’s claim that the… Continue Reading

SJC Splits Baby on New Statute’s Effect on Post-Foreclosure Evictions

Posted in Foreclosure, Landlord-Tenant, Legislation
Last month the Supreme Judicial Court (SJC) decided Federal National Mortgage Association v. Nunez  (pdf).  We discussed the oral argument of that appeal in this earlier post.  Nunez concerned a summary process (i.e. eviction) action filed by Fannie Mae against a tenant living in a foreclosed residential property.  That action was pending, but not completed, before the effective date of M.G.L. c. 186A. … Continue Reading