The Supreme Judicial Court's ("SJC's") self-imposed limitation on applicability of Eaton v. Federal National Mortgage Association, 462 Mass. 569 (2012) should reduce to a trickle the once-steady stream of foreclosure-related claims asserting that a mortgagee must hold the underlying note in order to effectively foreclose in Massachusetts.
Last fall, in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), the Supreme Judicial Court (the "SJC") quashed the hopes of many that a "try title" action available by statute in Massachusetts would provide a mechanism to clear the title of a post-foreclosure owner whose predecessor failed to obtain a mortgage assignment prior to conducting a foreclosure sale. (See U.S. Bank National Association v. Ibanez, 458 Mass. 637 (2011) for discussion of this particular title defect.)
On July 30, the Massachusetts Supreme Judicial Court ("SJC") issued an important decision in a Ponzi scheme captioned Go-Best Assets Limited v. Citizens Bank of Massachusetts, 463 Mass. 50 (2012).
In the course of performing their job duties, bank tellers and their supervisors may occasionally be asked to perform a transaction that appears to be somewhat suspicious. For example, a non-customer of the bank may arrive in the teller line and ask to cash a large check drawn on an account of one of the bank's customers. In some such cases, bank personnel may come to believe that the subject transaction is fraudulent. While most banks have very detailed procedures for addressing these situations, bank personnel must sometimes make a quick decision about whether to alert law enforcement personnel. In certain cases, though, bank employees may have concerns about whether they will incur civil liability to the non-customer if they alert the police but the transaction ultimately turns out to be legitimate. While such concerns are certainly understandable in our highly litigious society, bank personnel can take some comfort in knowing that federal law provides them with considerable protection in these situations.
In "check fraud" litigation, bank customers often sue their banks after learning that someone has made a forged or otherwise unauthorized signature on the front of one or more of the customer's checks. It often turns out that the fraudster has perpetrated the scheme over a long period of time and has made unauthorized signatures on many different checks. This article offers a brief overview of the "same wrongdoer" rule, an important defense that is available to banks in such cases under the Uniform Commercial Code ("UCC") as adopted in Massachusetts.
In Massachusetts, mortgage foreclosure has long been considered "non-judicial," meaning that it is unnecessary to initiate an action before a Court to foreclose, and there is no judicial oversight of foreclosures unless a mortgagor brings a claim based on alleged improprieties in the exercise of the power of sale.