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Post-foreclosure Litigation

Foreclosure By Entry Is Effective Method for Mortgagee to Gain Fee Simple Title

The Massachusetts Land Court's decision this fall in HS Land Trust LLC v. Gonzalez, Civ. Action No. 11 Misc. 446482 (October 30, 2012), serves as a useful reminder that a foreclosure by entry - which often accompanies a foreclosure by sale - is a perfectly valid method of obtaining title following the breach of a mortgage's conditions.  

Demystifying the Massachusetts Appellate Process

Often attorneys and clients think of the appeals process as an abyss - a long, uncertain process where they wait many months (or years) for a final resolution of their legal case.  Although a typical trip to the Massachusetts Appeals Court is by no means quick, the process is ordinarily not too complicated.

Beyond Summary Process: The Preclusive Effect of Eviction Actions

Last year, in Bank of New York v. Bailey, 460 Mass. 327 (2011), the Supreme Judicial Court (the "SJC") ruled that a Housing Court judge presiding over an eviction matter could hear a post-foreclosure mortgagor's claim that the foreclosure sale allegedly divesting him of title was defective - and thus, he should not be ousted from the property.  The Bailey decision's impact will likely be felt in not only in summary process sessions, however, but also in other fora where summary process decisions are likely to be given preclusive effect. 

Prospective Effect of Eaton Should Chill Litigation In 'Unity of Note and Mortgage' Cases

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. 

Re-foreclosure as a Remedy: Bevilacqua and Eaton

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.)

Bank of New York v. Bailey: Is Non-Judicial Foreclosure An Oxymoron?

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. 

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