Mortgage Litigation: October 2013 Archives

Try Title Action May Be Available Against Mortgagees, Or Not

A decision from the Land Court has muddied the waters regarding whether a mortgagor can raise a claim under the Massachusetts try title statute against a mortgagee. A 2012 Land Court decision by Judge Robert B. Foster found that the try title statute was unavailable to a mortgagor prior to foreclosure. In Abate v. Fremont Investment & Loan, et al., Judge Foster found that until foreclosure, during which the mortgagor's equitable title is extinguished, the mortgagor and mortgagee hold complementary equitable and legal title to the property, and have no adverse claims. The First Circuit reached a similar decision in July in Lemelson, et al. v. U.S. National Bank Association.

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