Retroactive Mortgage Assignments Not Effective In Massachusetts

03 May Retroactive Mortgage Assignments Not Effective In Massachusetts

The Massachusetts Land Court ruled last month that only the mortgage holder could advertise a foreclosure sale under G.L. c. 244 sec 14. Mortgage assignments executed after publication of the advertisement were not good enough, even with language retroactive application.

In so doing, the court reversed established practice under Title Standard 58 of the Massachusetts Real Estate Bar Association (REBA), a well-regarded organization whose title standards carry the appearance of the rule of law. Title insurers across the state have issued emergency memoranda excluding coverage for foreclosure titles previously covered if they had late assignments.

This is a revolutionary ruling, on an issue fast becoming the cutting edge of foreclosure defense. Many cases raise the defense of the absence of assignments, and retroactive assignments have suddenly become the common response.

The court also ruled that an unrecorded assignment at the time of the advertisement was compliance with the statute, so long as it was in recordable form. Finally the court ruled that the Springfield edition of the Boston Globe was a sufficient newspaper of general circulation in Springfield for the advertisement, but that ruling was limited to the period ending in October 2007. Since the Globe’s circulation in Springfield declined 12% for the 12 months ending 10/07, a further decline might destoy the status of “general circulation” in Springfield.

The lead cite is U.S. Bank National Association v. Ibanez, Massachusetts Land Court Misc. Case No. 384283, consolidated with two other cases.

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L. Jed Berliner practices exclusively in consumer bankruptcy, foreclosure defense, and related consumer protection litigation such as credit card defenses and suing debt collectors. He established his Springfield, MA practice in 1988. Attorney Berliner is a regular and active contributor to the Bankruptcy Law Network, the Bankruptcy Roundtable, and the National Association of Consumer Bankruptcy Attorneys, three specialized consumer bankruptcy forums on the Internet, and is an informal mentor to regional practitioners. He is recognized by his peers as an expert in consumer bankruptcy issues. He thoroughly enjoys being rated "excellent" in his client surveys.

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