Mortgagee’s failure to comply with Massachusetts’s post foreclosure notice requirments did not render foreclosure void.

In Turra v. Deutsche Bank Trust Co. Americas, 476 Mass. 1020, 68 N.E.3d 631 (Jan. 30, 2017) the Massachusetts Supreme Court held that a mortgagee’s failure to provide post-foreclosure notices required by statute did not render the foreclosure void.

The mortgagor contended that the completed foreclosure of her home was void because the mortgagee failed to strictly comply with the terms of the power of sale provisions of state statute. Specifically, the mortgagor argued that G. L. c. 244, § 15A, which is part of the power of sale law, required the mortgagee to send the post-foreclosure notices to “the office of the assessor or collector of taxes of the municipality in which the premises are located and any persons, companies, districts, commissions or other entities of any kind which provide water or sewer service to the premises, of said taking possession or conveying title.” There was no dispute the mortgagee did not send the notices.

The court acknowledged that Massachusetts case law requires that one who sells under the power of sale must follow strictly its terms or the sale will be wholly void. But “[i]n the cases in which we have made broad reference to the power of sale provisions in §§ 11–17C, we have been concerned with actions taken by the foreclosing party that are part of the foreclosure process and that occur prior to the actual foreclosure.”

The provisions of the foreclosure process that underlie these decisions are part of the foreclosure process and they work to protect the mortgagor. By contrast, the obligation to provide a post-foreclosure notice to a taxing authority or water and sewer utility involves the foreclosing mortgagee and a third party; it does not involve the mortgagor. Nor is the potential harm to the mortgagor the same manner as the failure to comply with pre-foreclosure obligations.

The court acknowledged “that some of the language in our prior cases may have suggested that the failure to strictly comply with any provision contained in G. L. c. 244, §§ 11–17C, will render a foreclosure void … [but] [t]hat was not our intent.” The mortgagee’s failure to comply with the post-foreclosure notice provisions did not render the foreclosure void.

Author

  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

Download Related Document