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.
The First Circuit has held that, under Massachusetts law, a mortgagee's interest in a mortgage in default is inadequate to state a claim under the Massachusetts try title statute. The Plaintiffs in Lemelson, et al. v. U.S. Bank, N.A. filed suit under the Massachusetts try title statute, asserting that U.S. Bank's interest in the property as mortgagee constituted a adverse claim on their record title to the property.
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.)