More pages in this section

“Recent Massachusetts Land Court Cases Delay Foreclosures”

A case decided in March 2009 by the Massachusetts Land Court invalidated two out of three Massachusetts foreclosure sales and questioned the validity of the Real Estate Bar Association's (REBA's) Title Standard No. 58 which addresses the issues raised with regard to mortgage assignments and mortgage discharges.

April 2009

A case decided in March 2009 by the Massachusetts Land Court invalidated two out of three Massachusetts foreclosure sales and questioned the validity of the Real Estate Bar Association's (REBA's) Title Standard No. 58 which addresses the issues raised with regard to mortgage assignments and mortgage discharges. The practice of including an effective date in the assignment which is prior to the date the assignment is executed is at issue. The rationale for the Land Court's decision is the concern that potential foreclosure bidders should be able to contact the foreclosure attorney to obtain proof of the foreclosing entity's interest in the mortgage. A motion to vacate the judgment in the Land Court decision was filed by one of the plaintiffs on April 2, 2009.

The decision, if applied retroactively to foreclosures that are in process and that have already been completed, would create problems with many titles where assignments were obtained subsequent to publication of foreclosure notices and the foreclosure sale. As a result, title insurance companies may refuse to insure titles to foreclosed properties where executed assignments were not in the hands of the foreclosure attorney prior to publication and sale. This action will cause delays in foreclosure timeline compliance as foreclosure attorneys wait for servicers to supply executed assignments. Moreover, there are potential future consequences such as case law or title insurance company action dictating that foreclosure complaints not be filed until the assignments are on record, further delaying the foreclosure process.

The procedure followed by Partridge Snow & Hahn LLP continues to be that publication and sale are not commenced until the assignment is recorded. We will be following the case and actions by REBA and the title insurance industry, and we will be publishing future alerts on this topic. 


Return



Back to Top
Boston

30 Federal Street
Boston, MA 02110
617-292-7900

Providence

40 Westminster Street
Suite 1100
Providence, RI 02903
401-861-8200

SouthCoast

128 Union Street
Suite 500
New Bedford, MA 02740
774-206-8200

e-Alert signup