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, if left uncontroverted, the form is sufficient for this purpose.

The statutory form of affidavit was created in 1912 and is codified at M.G.L. c. 183 (App., Form (12)).  M.G.L. c. 183, § 8 provides that “[t]he forms set forth in the appendix to this chapter may be used and shall be sufficient for their respective purposes.”  Despite this language, the foreclosed-upon owner (Hendricks) argued that the statutory form is outdated, and that M.G.L. c. 244, § 15 – which requires the post-foreclosure recording of an affidavit by the foreclosing party “fully and particularly stating his acts. . .” – requires more detail than is contained in the statutory form. 

In rejecting Hendricks’s claim, the SJC relied heavily on the fact that “[t]he stated purpose of the statutory forms was ‘[t]o shorten the form of deeds, etc.,'” and emphasized that this purpose “remains as vital today as it was one hundred years ago.”   

The SJC did note that, in a summary process case, the statutory affidavit is only prima facie evidence that the mortgagee has complied with the requirements of M.G.L. c. 244, § 14 (which governs foreclosures under a power of sale).  Under Mass. R. Civ. P. 56(c), once such an affidavit is filed at the summary judgment stage, the foreclosed owner can submit evidence of non-compliance with § 14, thereby creating an issue of material fact requiring a trial.  However, in this case, Hendricks failed to do so.  Instead, he merely claimed that the affidavit itself was defective.  Having confirmed the sufficiency of the statutory affidavit, the SJC ruled that Fannie Mae was entitled to summary judgment on its claims.

This case shows that there are, indeed, limits to the SJC’s willingness to protect homeowners after a foreclosure sale.