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...
Foreclosure
First Circuit Upholds MERS Mortgage System Under Massachusetts Law
The First Circuit has affirmed a holding finding that the system under which mortgages are held in the name of Mortgage Electronic Registration Systems, Inc., commonly known as MERS, comports with Massachusetts law relating to mortgage transactions. In the underlying...
Even Technical Errors Can Invalidate Foreclosure
Even technical errors in mortgage and foreclosure documents can invalidate the foreclosure and subsequent sale of a condominium unit, according to the Massachusetts Housing Court. Following foreclosure, and purchase at the foreclosure sale by the foreclosing bank, the...
Liability for Payment of Note Required to Rescind Mortgage
A mortgagor who is not personally liable for payment of the note securing a property loan cannot rescind the loan transaction or mortgage, the United States Bankruptcy Court for the District of Massachusetts has held. In re Smith-Pena v. Wells Fargo Bank, N.A.In re...
First Circuit Court of Appeals Hears Culhane Case
A panel of the United States Court of Appeals for the First Circuit heard oral argument in the matter of Oratai Culhane v. Aurora Loan Services of Nebraska earlier this week. The panel was comprised of Chief Judge Hon. Sandra L. Lynch, Senior Circuit Judge Hon. Bruce...
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...
Allegations on ‘Information and Belief’ Not Enough to Stop Mortgage Foreclosures
One less-discussed but important aspect of the Supreme Judicial Court's ("SJC's") decision in Eaton v. National Federal Mortgage Association, 462 Mass. 569 (2012), is found in its most narrow ruling. Even though the Court held that the named plaintiff, Henrietta...
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...
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...
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