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
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At Long Last Legislation Addresses Ibanez Issue
Posted in Foreclosure, Legislation, TitleThe Massachusetts Legislature and Governor Baker have taken a much needed step to limit further problems resulting from the Ibanez decision and its progeny. Those cases made clear that a foreclosure by a party that did not yet hold an assignment of the mortgage failed to convey good title. As a result, many third party… Continue Reading
SJC Removes Another Arrow From The Foreclosure Defense Quiver
Posted in Foreclosure, TitleIn 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, TitleIn 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, TitleIn 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
Federal Court Reluctantly Rules “Try Title” Action Not Available To Stop Foreclosure
Posted in ForeclosureAs a result of the First Circuit’s recent decision in Lemelson v. U.S. Bank National Ass’n., 721 F.3d 18 (2013), U.S. District Court Judge William G. Young was forced to reconsider his prior ruling in a “try title” case filed by a homeowner who claimed that the bank seeking to foreclose was not, in fact,… Continue Reading
Spring Training for Real Estate Lawyers
Posted in Foreclosure, TitleEducational 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, StandingThe 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-TenantThis 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-TenantJust 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, TitleLast 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, TitleHere 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, TitleRumor 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, MiscellaneousA 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 ForeclosureIn 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 ForeclosureThe 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 ForeclosureIn 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 ForeclosureJudge 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, TitleAs 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
SJC Splits Baby on New Statute’s Effect on Post-Foreclosure Evictions
Posted in Foreclosure, Landlord-Tenant, LegislationLast 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
Breaking News: SJC Rules That Purchaser of Improperly Foreclosed Property Received No Title
Posted in Foreclosure, TitleThis morning the Supreme Judicial Court (SJC) issued its much-anticipated decision in Bevilacqua v. Rodriguez, upholding the Land Court’s dismissal of the case brought by the purchaser of an improperly foreclosed property. The decision is here. We’ll follow up this post with our analysis shortly.… Continue Reading
Can Foreclosure Be Erased Because Mortgagee Doesn’t Hold The Note?
Posted in Foreclosure, Landlord-Tenant, TitleOn October 3, the Supreme Judicial Court (SJC) heard oral argument in yet another case involving a foreclosure – Eaton v. Federal National Mortgage Association. Eaton raises the important question of whether, to properly foreclose, a mortgagee must hold the underlying, defaulted promissory note. Interestingly, about a week before the argument in Eaton, the federal district court in Massachusetts issued a decision… Continue Reading
Breaking News: SJC Rules that Housing Court has Jurisdiction to Consider Title-Based Defenses to Eviction Following Foreclosure
Posted in Foreclosure, TitleThe Supreme Judicial Court (SJC) this morning issued its decision in Bank of New York v. Bailey (pdf) (see our prior commentary here). In this case the defendant homeowner sought to stave off eviction from his Boston home after a foreclosure initiated by Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the lender, and consummated by Bank of… Continue Reading
Massachusetts AG Sets Her Sights on MERS
Posted in Foreclosure, PolicyThe Boston Herald’s Jerry Kronenberg reports that Massachusetts Attorney General Martha Coakley has opened an investigation into “creditor misconduct in connection with unlawful foreclosures,” with a particular focus on Mortgage Electronic Registration Systems, Inc. (MERS). The Herald article is here, and some of our own MERS-related posts are here, here and here.… Continue Reading