Post-foreclosure Litigation: August 2012 Archives

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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