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Recently Governor Baker signed into law chapter 141 of the Acts of 2015 giving homeowners three years to challenge a residential foreclosure.   The legislation was drafted in response to a 2011 Massachusetts Supreme Judicial Court decision.

In U.S. Bank National Association v. Ibanez  the court decided that the bank failed to show that they held the mortgage at the time of foreclosure and therefore did not have the authority to foreclose on the property.  As a result, the court denied the bank’s request for a declaration of clear title.   The bank argued that an assignment had been made, but the court said ” In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage.”  The court found that because the bank “did not have their assignments to the mortgages at the time of the publication of the notices and the sales, they lacked authority to foreclose under G. L. c. 183, § 21, and G. L. c. 244, § 14.”  The court also held that a confirmatory assignment of an earlier, valid assignment can be recorded after the foreclosure.

The new law primarily amends  Mass.  General Laws chap. 244 sec. 15  by adding that a recorded affidavit of sale is “conclusive evidence” of compliance with the foreclosure statutes after it has been on record at the Registry of Deeds for 3 years.  However, the time frame does not apply if a court action challenging the validity of a foreclosure sale has been recorded at the Registry of Deeds or Land Court within the 3 years.  If the 3 year time frame is reached and there are no pending court actions, the purchaser has clear title to the property.

The legislation becomes effective on December 31, 2015.  For affidavits recorded before the effective date, homeowners have either 3 years from the date of the recording of the affidavit or 1 year from the effective date of this act, whichever is later.

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