The foreclosure process varies across the United States, but the process traditionally occurs in one of two ways: judicial or non-judicial foreclosures. Residential foreclosures in Massachusetts are non-judicial, which means that the foreclosure process happens outside of the courtroom. Non-judicial foreclosures, also known as power of sale foreclosures, allow the mortgagee to sell the property if the mortgagor defaults on their loan provided the mortgagee complies with the statutory requirements under G.L.c. 244 §§ 11-17B. In addition to the requirements under the statute, mortgagees owe mortgagors a duty of good faith and reasonable diligence to protect their interest in the property.
Massachusetts' implied covenant of good faith and fair dealing does not apply to negotiations and contract preparations for a mortgage and accompanying promissory note, the First Circuit has held. In Latson v. Plaza Home Mortgage, Inc., the plaintiffs filed suit against their lender alleging, among other claims, violation of the implied covenant based on the lender's alleged failure to provide a proper commitment letter, good faith estimate, or other documents required by law, and gave them insufficient opportunity to review the terms in the loan documents. The United States District Court for the District of Massachusetts dismissed the case for failure to state a claim, and the borrowers appealed.