Massachusetts Court Upholds Foreclosure-Related Action

Originally published on 13th December 2010

Generally speaking, Massachusetts is a non-judicial foreclosure state – meaning that lenders can foreclose on mortgages of Massachusetts property without seeking judicial approval beforehand. In certain circumstances, however, a pre-foreclosure judicial proceeding is required solely to determine whether the borrower is in the active military service and entitled to the protections of the Servicemembers Civil Relief Act, 50 U.S.C. §532.

Recently, a number of Massachusetts and Bankruptcy Court cases have set aside foreclosures by lenders who did not have appropriate evidence beforehand that such lenders were holders of the mortgages being foreclosed. See US Bank v. Ibanez, 17 LCR 202 (Mar. 26, 2009) & 17 LCR 679 (Oct. 14, 2009); In re Schwartz, 366 B.R. 265 (Bankr.D.Mass. 2007). These lenders acquired the mortgages through securitizations or other transfers, but did not have evidence of valid assignments of the