Let’s Treat Massachusetts As A Judicial Foreclosure State

31 Oct Let’s Treat Massachusetts As A Judicial Foreclosure State

Massachusetts foreclosure procedure is wierd. It’s a non-judicial state, which means that no court order is needed to foreclose and get legal title to the property.

In other states which require a judicial proceeding, one can answer the complaint and stop the foreclosure cold while demanding that the foreclosing party prove the right to foreclose – proper mortgage assignments and note endorsements, for example.

A Massachusetts legal title cannot be insured, is not “insurable title”, unless there is a court order stating that the borrower is not in the military service. Title without insurance is not “marketable title” in that it cannot be sold on the regular market. No bank lender will lend without marketable title which, in turn, requires an insurable title. Banks must get title insurance.

Most Massachusetts foreclosing parties will not foreclose until they have an order that the borrower is not in the military service for this reason. And that’s something that a borrower can take advantage of to explore defects in mortgage assignments and note endorsements.

One cannot answer a Massachusetts complaint seeking a no-military-service order except to assert military service. But one can certainly move to dismiss the complaint by arguing the foreclosing party does not have the right to foreclose.

Note that important difference, between and answer and a motion to dismiss. That difference is as big as the whole world when it comes to stopping a foreclosure in Massachusetts for non-military reasons.

Contact me at berlinerlaw.com. I can help you with this, and we might be able to save your home.

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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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