Failure to Comply With Post-Foreclosure Notice Provisions Does Not Void Foreclosure

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The Massachusetts Supreme Judicial Court (“SJC”) has held that a bank’s failure to comply with post-foreclosure notice provisions in Mass. G.L. c. 244, § 15A (“Section 15A”), does not render a foreclosure void. Turra v. Deutsche Bank Trust Company Americas, 476 Mass. 1020 (2017). The SJC’s decision clarifies its prior rulings that appeared to state that any failure to comply with a provision appearing in Mass. G.L. c. 244, §§ 11-17C, rendered a foreclosure void.

Plaintiff sued Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (“Deutsche”), seeking a declaration that Deutsche’s January 2013 foreclosure was void and to quiet title to the property. Plaintiff alleged that Deutsche’s failure to comply with Mass. G.L. c. 244, § 15A, which requires that a foreclosing entity provide post-foreclosure notice to municipal tax collectors, water, or sewer services about the change in title to the property, rendered the foreclosure void.

Deutsche did not dispute that it failed to provide the required post-foreclosure notices to the enumerated entities, but the trial court judge found that a failure to provide those notices pursuant to Section 15A was not a duty that affects the right of an entity to foreclose, and dismissed Plaintiff’s complaint.

The SJC agreed with the trial court, and in the process clarified its prior rulings where it had “referred to ‘§§ 11-17C’ collectively as the provisions that further regulate the power of sale set forth in G. L. c. 183, § 21.” Turra, 476 Mass. at *2. The SJC noted that its prior broad references to the power of sale provisions concerned required actions that are part of the actual foreclosure process itself, work for the protection of the mortgagor, and involve the mortgagee/mortgagor relationship. Notices and other required actions after a foreclosure are different. They involve the mortgagee and a third party, and failure to comply does not create the potential harm to the mortgagor that a pre-foreclosure failure can. Nothing in the post-foreclosure requirements impacts a mortgagee’s right and authority to foreclose.

The SJC’s prior pronouncements on the provisions in Mass. G.L. c. 244, §§ 11-17C “stemmed from pre-foreclosure actions, or inactions, and to the authority of the foreclosing mortgagee to actually foreclose.” Turra, 476 Mass. at *3. Where the provisions in question do not set forth pre-foreclosure requirements that are part of the foreclosure process itself, a failure to comply with those regulations will not void the foreclosure.

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