Foreclosure Help

Foreclosure Help

Foreclosure help is available for homeowners in danger of losing their homes, or homeowners who have already gone through a foreclosure sale.  While saving a home from foreclosure is never a guarantee, foreclosure help may be an option in your case depending upon the circumstances.

Before a Foreclosure 

Foreclosure help for homeowners pre-foreclosure largely consists of attempting to obtain a loan modification or similar means of paying the outstanding loan debt.  Despite the best efforts of homeowners to properly apply for this assistance with their lenders, it is not uncommon for lenders to make a mess out of reviewing loan modification applications, by claiming to “lose” paperwork and deny such applications for absurd reasons.  In such a case, an attorney can provide foreclosure help through a lawsuit against a lender’s repeated refusal to properly review of these applications.

An attorney can similarly help a homeowner defend against foreclosure by determining whether a mortgage lender complied with the requirements for starting a foreclosure sale.  Errors in the notice requirements and pre-foreclosure laws can all be effective defenses against a foreclosure sale.

After a Foreclosure

Foreclosure help is also available after a foreclosure has occurred.  Massachusetts is a “non-judicial foreclosure” state, and a mortgage lender is not required to file a court case to foreclose a home.  A mortgage lender, however, must strictly comply with the applicable laws and mortgage terms to conduct a lawful foreclosure.  The failure to do so can be grounds for defending against a foreclosure sale and getting a home back.

In addition to errors in the foreclosure requirements, a homeowner can also pursue equitable challenges to a foreclosure’s validity.  Such claims are circumstances where the lender complied with the basic foreclosure requirements, but otherwise acted in a manner that justifies the foreclosure being void.

Avoid Foreclosure Defense Scams 

A critical reminder for seeking foreclosure help is to avoid foreclosure scams.  There are many con artists who try and take advantage of struggling homeowners by promising them services that are unrealistic or not otherwise legitimate.  Avoid anyone who promises you a free home, guaranteed loan modification, or something else that seems “too good to be true.”  The Attorney General’s Office provides helpful resources for homeowners who have been victims to these scams.

Speak to An Experienced Foreclosure Defense Attorney 

Needless to say, the importance of speaking to an experienced foreclosure defense attorney cannot be overstated.  Foreclosure help may be available to you, but such assistance generally requires the knowledge of someone familiar with this area of law and the options available for saving  a home.

Overview of Housing Court Expansion

Housing Court Expansion

After years of stalled legislation, housing court expansion has finally occurred in Massachusetts.  The recently passed 2018 budget provides for statewide Housing Court, allowing all towns and cities access to a regional division of the Housing Court.  Previously, a large segment of Massachusetts towns and cities–including Somerville, Medford, and Chelsea–had no access to a Housing Court division.  This Housing Court expansion allows landlords and tenants from any part of the state to have their case heard in Housing Court.

Overview of Housing Court

Massachusetts’s Housing Court can hear cases for matters involving the health, safety, or welfare of the occupants or owners of residential housing.  The most common cases in Housing Court are eviction (“summary process”) matters; the Boston Housing Court reportedly hears over 150 new evictions each week.  Housing Court functions similarly as any other court in Massachusetts, but comes with the benefit of judges, clerks, and staff who are familiar with housing law.

Transfer to Housing Court 

A unique provision of Housing Court is the ability by either party to transfer a case into Housing Court from another court.  If you are a tenant in an eviction case filed in District Court (a popular venue for eviction cases), you have a right to have your case transferred to the appropriate Housing Court division.  With the Housing Court expansion, this option is now available to all of Massachusetts.  A Housing Court transfer is a simple process, requiring the filling out of a simple form with the original court and the appropriate Housing Court division.

Although Housing Court expansion became effective on July 1, 2017 (pursuant to the 2018 budget), this change is not yet reflected on the Housing Court website or in the law itself.   The 2018 budget is clear, however, that Housing Court expansion has already occurred.  Several eviction cases have already been transferred from District Courts in cities that were not previously under Housing Court jurisdiction, and I expect more to do so in the coming months.

 Is Housing Court Right For Your Case?

Housing Court expansion will inevitably lead to tenants and landlords asking whether this court is the place to bring their case.  Like with most legal matters, the answer depends.  While many argue that Housing Court favors tenants at the expense of landlords, this is too much of a stereotype to label for every Housing Court division in Massachusetts.  The decision on whether to pick Housing Court for your case is an important one, which you should make with the assistance of an experienced landlord/tenant attorney.

Challenging a Foreclosure in Massachusetts

Challenging a Foreclosure

A recent decision by the Massachusetts Land Court discusses the importance of properly challenging a foreclosure in Massachusetts, and the ramifications of failing to do so correctly.  This case, Kenney v. Brown, is to the best of my knowledge the first decision to interpret Massachusetts’s foreclosure title clearing law, a 2015 law that puts a deadline upon the right of homeowners to challenge a foreclosure in Massachusetts. 

Overview of the Deadline for Challenging a Foreclosure in Massachusetts

Massachusetts’s foreclosure title clearing law places a deadline for challenging a foreclosure in Massachusetts.  This law requires a homeowner to raise a challenge to a foreclosure within three years after a foreclosure affidavit is recorded in the land records where the property is located (this affidavit is generally recorded several months after the foreclosure sale).

How to Preserve A Foreclosure Challenge 

Under this law, a homeowner must challenge a foreclosure by either filing a lawsuit or raising a defense or counterclaim in a post-foreclosure eviction case.  Simply put,  challenging a foreclosure under this new law requires a homeowner to pursue their claim in court.

In Kenney, the homeowners attempted to preserve their challenge to the foreclosure against their home by filing an affidavit in the land records, and pursuing this challenge in court later on.  This affidavit was filed pursuant to G.L. c. 183, § 5B:

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

These affidavits, commonly known as “5B affidavits” can be useful for resolving property matters.  I have used them in opposing a foreclosure by entry or recording judicial decisions regarding the validity of a foreclosure.  Here, these homeowners attempted to preserve their foreclosure challenge by filing one of these affidavits, and listing the reasons why they believed their foreclosure was unlawful.  These homeowners, undisputedly, did not file a lawsuit within the deadline of the title clearing law.  The question for the court was whether such an affidavit was a proper means for challenging a foreclosure in Massachusetts under the title clearing law’s deadline.

The court in Kenney v. Brown rejected the homeowner’s use of 5B affidavits for this purpose, by holding that the law requires an actual court case to preserve a foreclosure challenge, which may not be done by merely filing an affidavit.  Failure to do so will prevent a homeowner from being able to pursue such a claim, even if the underlining foreclosure was unlawful.

Critical Advice for Homeowners Who Want to Challenge a Wrongful Foreclosure 

The lesson from this case is an important one: speak to an experienced foreclosure defense attorney if you have a potential challenge to a wrongful foreclosure.   The failure to comply with the laws applicable for such a claim can cost you “your day in court” on these matters.

 

 

 

Drone Privacy Law in Massachusetts

Drone Privacy Law in Massachusetts

Drones have changed a great deal in the last several years.  Once entirely used for military and warfare purposes, consumer drones are mainstream and increasingly being used for commercial and recreational purposes.  The uses of drones are endless: home builders, surveyors, and even lawyers are finding that drones, and the ability to do aerial photography and video, is an incredible tool.

Yours truly is an avid drone user.  The picture below was taken by me with my drone from the Middlesex Fells  in Medford, and shows my office location in Assembly Square, Somerville.

This picture highlights a growing concern with drones: this new technology has an amazing ability to capture photographs and video that could not otherwise be seen before.  Such use of aerial vehicles raises many legitimate concerns over privacy rights.  Here, I want to discuss drone privacy law in Massachusetts and discuss what can be done if you have privacy concerns arising from another person’s use of a drone.

Drone Law in Massachusetts 

Massachusetts, like most states, is still grappling with how to regulate drones. Presently, Massachusetts does not have a statewide law regulating drones.  This isn’t surprising; many states similarly do not regulate drones, although there are many proposed laws in state legislatures across the country.  Here in Massachusetts, some local towns and cities, such as Newton, have passed local ordinances on when and where drones can fly.  It is fair to say, however, that drone law in Massachusetts is very much in its infancy.

Drones and Privacy

An increasing problem with drones are privacy concerns.  It is increasingly common to hear complaints about drones flying too closely to homes and places of business and taking unwanted photos and videos.  With the limited laws on drones in Massachusetts, what can be done if you feel your privacy is being invaded by a drone?

Massachusetts, unlike many states, provides a specific right to privacy for its residents:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

I’m not aware (yet) of anyone using this law in regards to a drone, but I suspect that Massachusetts’s Right of Privacy Act could be effective in dealing with the unreasonable use of a drone.  This law, importantly, provides a court with equitable powers, allowing a court to issue an injunction, restraining order, or other declaration preventing someone from invading another’s privacy with a drone.

Once again, drone law in Massachusetts is new and it will be up to the courts to decide whether Massachusetts’s Right of Privacy Act and other existing laws cover drones.  If you find yourself in need of assistance with one of these matters, contact me for a consultation.

 

Notice of Default

Notice of Default

Foreclosures in Massachusetts generally begin through a notice of default.  A homeowner who is behind on their mortgage loan often receives many letters informing them of their owed balance.  A formal notice of default, however, is required under state law and the terms of most mortgage agreements.

What’s In a Notice of Default? 

A notice of default typically contains a number of required disclosures:

  • Information about the holder of the mortgage, terms of the loan, and the outstanding balance of the owed debt
  • The amount the borrower must pay to cure the loan default
  • Disclosure of the homeowner’s rights in a foreclosure proceeding

A notice of default must generally be sent by both certified and regular mail.  A homeowner who receives a notice of default will not immediately face a foreclosure sale; there are several other requirements that must occur before a foreclosure can begin.  One of these notices, however, is a sign that the mortgage lender will start foreclosure soon.

What To Do About a Notice of Default

The most important thing for a homeowner receiving a notice of default is to not ignore it.  A foreclosure is coming, and a delay in addressing this problem can make a resolution harder to come by.  Speak to a foreclosure defense attorney if you receive one of these notices to learn what can be done to avoid losing your home.

A homeowner receiving a notice of default should also review these letters closely.  Mistakes can (and do) happen and it is a good idea to make sure everything in one of these notices is correct.

Failure to comply with the requirements for a notice of default can be grounds for challenging a foreclosure, both pre-foreclosure and post-foreclosure.  An experienced attorney can discuss whether such a legal challenge is an option for your case.

A homeowner receiving a notice of default can certainly solve the problem of foreclosure by paying off the outstanding amount of the loan (and should do so if they are able).  Homeowners, however, should keep in mind that simply paying off the outstanding amount of the loan will not solve the long term problem for the borrower if they are unable to afford the monthly loan payments.  In such a case, the homeowner should apply for a loan modification and attempt to get a more affordable loan payment.

If you find yourself in need of assistance with one of these matters, contact me for a consultation.

 

Top Five Landlord Mistakes

Landlord Mistakes

In this blog post, I want to discuss the top five landlord mistakes made by those renting residential property in Massachusetts.   Massachusetts has numerous laws protecting tenants, and a landlord’s failure to comply with these regulations can cause major problems down the road.  Fortunately, these landlord mistakes are easily avoidable.

 1.  Accepting a Security Deposit From a Tenant

Few things get a landlord into more trouble than Massachusetts’s security deposit law.  Take a minute (or several!), attempt to figure out all of this law’s requirements, and you’ll learn quickly why the law is a disaster waiting to happen.  Few landlords comply with all of the law’s detailed requirements, and the failure to do so can result in treble damages, attorney fees, and costs.  The risks for landlords just aren’t worth it.

As I have suggested before, a landlord who wants a security deposit should make this part of their monthly rent.  For example, if a landlord wants a $1,200 security deposit, they should add (or set aside) $100 each month, rather than requesting it upfront from the tenant.  This keeps a landlord from having to comply with the security deposit requirements.  Moreover, unlike a security deposit, this money belongs to the landlord if no repairs need to be done at the end of the tenancy.

2.  Not Choosing Tenants Carefully 

Another common landlord mistake is not choosing tenants carefully.  A bad tenant can cause enormous problems to landlords.  Evictions can be long and expensive, and collecting a judgment against a tenant can be difficult.  Try to avoid these problems in the first place by selecting  reputable tenants.

3.  Not Using a Written Rental Agreement 

Landlords should always use a written rental agreement with tenants, regardless of whether it is a a month-to-month agreement or lease.  A written agreement lays out all of the expectations of the landlord and tenant, and can avoid problems from coming up later on.  Moreover, if a landlord expects a tenant to pay for any of the apartment’s utilities, a written agreement is a requirement under the state sanitary code.

4.  Failing to Maintain Rental Property

If you own rental property, the law requires you to maintain it.  Massachusetts’s state sanitary code contains detailed regulations for rental property, and many towns and cities have their own requirements for rental property as well.  A tenant must generally provide notice, and a reasonable opportunity to the landlord to address the problem, before the landlord can become liable for not maintaining the property, but a landlord should avoid these problems in the first place by keeping on top of a rental property’s maintenance and care.

5.  Attempting an Eviction Without An Attorney 

If a landlord needs to get rid of a tenant, an eviction is required.  A landlord should never try and do an eviction on their own.  While it may be tempting to try and avoid the costs of an eviction, the consequences of making a mistake in one of these cases can be far more expensive down the line.  Moreover, an experienced landlord attorney can often help finds ways to make the eviction process go as quickly as possible.

If you find yourself in need of legal assistance, contact me for a consultation.

Boundary Line Disputes

Boundary Line Disputes

Boundary line disputes are, arguably, one of the most contentious areas of law.   Understanding the right approach to dealing with boundary line disputes can make a real difference in effectively resolving these problems.

Determine Your Property Boundaries

The first step in resolving boundary line disputes is to determine your property boundaries.  Many times, the boundary line for property is not where the owner believes it is.  Even though fences and other physical structures may, informally, be considered the perimeters of property, the actual property lines may be in a different location.  Determining property boundaries is generally done by a survey or plot plan, which is prepared by a licensed surveyor.  A surveyor will review the land records for the subject property (found in the appropriate registry of deeds) and state the exact location of the property’s boundaries.

A survey or plot plan, however, is not always the final authority for determining a land boundaries.  Massachusetts, like most other states, allows for adverse possession of real property.  Adverse possession is a legal claim where the continuous use of property by a non-owner allows that user to legally acquire the property.  As such, even if the survey or plot plan states that disputed property belongs to a particular person, an adverse possession claim may allow a non-owner to become the property’s record owner.

Attempt to Resolve the Matter Amicably 

Property owners should always attempt to resolve boundary line disputes without going to court.  Court cases, while sometimes necessary, can be long and expensive.  Many times, boundary line disputes can be worked out amicably, which is to everyone’s benefit.  Mediation, where the parties meet with a neutral party to discuss the dispute, can be a useful process for these matters.

Although it is beneficial to try and settle these matters out of court, it is still a good idea to speak with an attorney for help with these negotiations.  A lawyer can help advise you of your rights and determine the best way to proceed.

Seek Court Action If A Resolution Cannot Be Found

For boundary line disputes that cannot be resolved amicably, court action may be necessary.  Massachusetts law allows property owners to get a court declaration on the ownership of property, and a court order preventing a party from using a portion of property, if necessary.

Unlike many states, Massachusetts has a court that specializes in property cases: Land Court.  Land Court is a popular court for these types of cases, with judges and staff that are familiar with these matters.  In addition to Land Court, these cases can also be brought in Superior Court or federal court.

If you find yourself in need of a court case for a boundary line dispute, contact a lawyer for assistance.  Preparing and filing a lawsuit for boundary line disputes can be tricky, and having an experienced attorney on your side can make all the difference in getting the results you need.

Foreclosure Help

Foreclosure Help

Foreclosure help can be essential for homeowners attempting to avoid foreclosure and save their homes.  One of the biggest mistakes homeowners make is waiting too long to get assistance with this stressful process.  When should homeowners seek foreclosure help?

Preparing a Loan Modification Application 

Foreclosure defense is not about getting a free home; foreclosure defense is about getting an affordable loan payment.  A loan modification is the general way to obtain this relief from a mortgage lender.  Applying for a loan modification, however, can be a complex process, requiring enormous paperwork and follow-up phone calls with the loan servicer.

A homeowner does not need a lawyer or other professional to help with this process.  However, if a homeowner does it on their own, they need to keep up with the paperwork requirements and do the application correctly.  If the homeowner does not have the time or interest in preparing an application, they should absolutely get the help of a reputable professional for this process.  The Massachusetts Attorney General’s Office is one good resource for seeking such assistance, and there are other non-profit organizations around the state who similarly help with loan modification applications.

Problems With The Review of a Loan Modification Application

If a homeowner is having trouble with a loan modification application, foreclosure help is a must.  Often, a lender’s repeated failure to properly review one of these applications, by “losing” paperwork and coming up with bogus reasons for denial, can be grounds for legal action.

Imminent Foreclosure Sale Date

A homeowner with a imminent foreclosure sale date should likewise obtain foreclosure help, mainly through an attorney.  An attorney can help a homeowner understand options available for stopping a foreclosure and see if a permanent resolution to the problem can be reached.

After a Foreclosure Sale

In my opinion, foreclosure help is an absolute must for any homeowner who has already been foreclosed.  A foreclosure defense attorney can help a former homeowner determine if there are grounds to rescind or buy back the foreclosed property.  Even if the homeowner has no interest in staying in the home, an attorney can be incredibly helpful in ensuring that the homeowner’s rights are protected, and avoiding an additional liability.

If you find yourself in need of foreclosure help, contact me for a consultation.

How Long Does an Eviction Take?

How long does an eviction take in Massachusetts?  Answering that question is like a weatherman stating what the weather is going to be the next day: an expert can give a good prediction, but many unknown factors can make a big difference in the ultimate outcome.

Beginning a Massachusetts Eviction Case

The beginning of a Massachusetts eviction case is an important consideration in determining how long one of these cases will ultimately take.  To start an eviction, a landlord is required to send a notice to quit, which informs the tenant that their tenancy is over.  The timeframe under one of these notices depends on the reason for eviction, and are usually anywhere from seven to thirty days.

Filing An Eviction Case

Following the service of a notice to quit, the landlord must file the eviction case.  Unlike a typical lawsuit, where the lawsuit is filed with the court and then served on the party, in an eviction case, the opposite happens: the eviction case paperwork is served on the tenant first, and then filed with the court.  This notice must be served on the tenant at a minimum, seven days before it is filed with the court (and not more than thirty days).

Discovery, Trial

The next factor in determining how long an eviction takes is whether the tenant(s) request discovery and a jury trial.

Discovery is the right of a party to learn information from the opposing side, through interrogatories (written questions) and request for documents.  A request for discovery automatically postpones an eviction trial by two weeks.  Depending on the amount of information requested, discovery may take even longer.

A defendant in an eviction case has a right to a jury trial.  Unlike bench trials, which are held before a single judge, a jury trial requires the calling of potential jurors by a court, and usually happens on select days at a court.  As such, a request for a jury trial typically also pushes back an eviction case, depending upon the court’s trial schedule.

Conclusion 

The above are some of the many factors that help answer how long  an eviction in Massachusetts take.  Generally, an uncontested eviction will take between one to two months.  A contested eviction, with requests for discovery and a jury trial, can take anywhere from three to six months.

Having an experienced attorney on your side can make a huge difference in moving one of these cases along, and getting you the results you need.  Contact me for a consultation.

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.