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) was not an entity that could foreclose the mortgage, and also that the foreclosure sale suffered from fatal procedural defects.
The case was stayed in the Appeals Court pending the Eaton decision. Following that ruling, Hendricks requested and was granted direct appellate review by the SJC. The SJC’s request for amicus briefs states: “The issue presented is whether the mortgagee’s affidavit containing a conclusory statement of compliance with G.L. c. 244, § 14, states sufficient facts to comply with the notice requirements included within the statutory power of sale set forth in that statute; to comply with M.R. Civ. P. 56 (e); to be admissible under G. L. c. 244, § 15. Whether the statutory power of sale form codified at G.L. c. 183 App., Form (12), originally drafted in 1912, is on its face insufficient.”
Form (12) is a very concise form of an affidavit of sale under a power of sale in a mortgage. Section 15 of Chapter 244 requires the post-foreclosure recording of the notice and an affidavit by the foreclosing party “fully and particularly stating his acts, or the acts of his principal or ward. . . . If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.” The key issue appears to be the level of detail required in this affidavit, despite the skimpy statutory form.
Note that M.G.L. c. 183, § 8 encourages reliance on statutory forms for mortgage foreclosures:
The forms set forth in the appendix to this chapter may be used and shall be sufficient for their respective purposes. They shall be known as “Statutory Forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms. Wherever the phrase “incorporation by reference” is used in the following sections, the method of incorporation as indicated in said forms shall be sufficient, but shall not preclude other methods.” (emphasis added).
Stay tuned to learn whether these foreclosure forms that have been widely used and relied on are, in fact, legally sufficient to accomplish their intended purpose.