Overview of Summary Judgment in Massachusetts

Summary Judgment in Massachusetts

Summary judgment is a common part of civil lawsuits, and a topic that comes up frequently in discussing what to expect in litigation.  Summary judgment applies to any civil case, but I wanted to do a post on this topic because it frequently comes up in discussions with clients on the course of a lawsuit.

Overview of a Lawsuit

A lawsuit, simply put, is a demand for a court to offer a remedy against another party.  This can include a demand for money, possession, or equity (such as a court order demanding a party to do, or not do, something).  A party served with a lawsuit has an opportunity to present a defense and convince the court why it should not find for the plaintiff.

After service of a lawsuit and an answer by the defendant, the parties have an opportunity to do discovery, where they can learn about each other’s case.  Following discovery, the lawsuit is then ripe for trial.  However, either party can seek a summary judgment motion as a means of winning the case without trial.

What is Summary Judgment?

To understand summary judgment, it is helpful to first understand the role of a trial in a civil case.  The purpose of a trial is for the jury (or judge, if there is no jury) to decide which “side of the story” to believe.  Doing so requires the judge or jury to hear the disputed facts and determine which side is more credible.  Once doing so, the jury or judge applies these determined facts to the law, and offers a final judgment in the matter.

Summary judgment is an attempt to get a court judgment without trial.  Summary judgment requires a party to prove that (a) there are no genuine issues of material fact and (b) the moving party is entitled to judgment as a matter of law.

For the first element, the moving party must show that the facts are not disputed.  For example, in a landlord/tenant eviction for non-payment of rent, a landlord seeking summary judgment would need to show that there is a tenancy agreement between the landlord and tenant, rent is owed, and all of the required court papers were prepared and served.  If the tenant disputes any of this, such as alleging that no rent is owed, there would be a dispute of fact, and summary judgment would not be allowed.  Instead, a trial would be required.

For the second element, “being entitled to judgment as a matter of law,” the moving party must show that the law provides the remedy they are asking the court for.  It is possible to have a case where no facts are disputed, but the law simply does not provide the relief that the claimant is seeking.

Summary Judgment in Practice

Summary judgment is often requested in lawsuits, as it avoids the need for a trial.  Rather than putting on a full trial before a judge or jury, summary judgment can allowed a case to be decided solely on the papers, and avoid enormous time and legal fees.

The decision to seek summary judgment, however, must be made carefully.  I often seek lawyers attempt a summary judgment motion where the facts are clearly disputed, and the motion merely delays the case and adds unnecessary costs to the case.  In some cases, simply bringing the case to trial is the much more logical choice.

On the other hand, summary judgment can be effective at getting your case resolved quicker than trial.  An effective summary judgment motion, however, requires that the facts and law be presented in a proper manner to allow for this relief.

Conclusion 

The benefits of having an experienced attorney on your side can make all the difference in winning a case on summary judgment.  If you find yourself in need of help with a lawsuit, contact me for a consultation.

A Foreclosure Defense Success Story

Last week, I got great news that one of my long time clients had obtained a loan modification, permitting him to save his home after eight years of not making payments on the loan, and years of pursuing foreclosure defense.  To say this is a success story would be an understatement: this client was in a incredibly tough position when I took his matter on, but now has a real shot of saving his home.  Read on about this foreclosure defense success story . . .

Post-Foreclosure Eviction

A quick background on Massachusetts foreclosure law.  Massachusetts is a non-judicial foreclosure state.  This means that a lender does not need to go to court to foreclose, but can do so through a series of written notices and a public foreclosure sale.  Once completed, a lender obtains title to the subject property.  It does not, however, obtain possession.  For this, the bank is required to bring an eviction against the homeowners.  In such a post-foreclosure eviction case, the homeowner is permitted to challenge the validity of the foreclosure.

In this particular case, I began representing my client following his default in the eviction case brought by the lender.  Simply put, this means that the homeowner never came to court on the date of his eviction hearing, allowing the bank to automatically “win” the eviction case.

By the time this client came to me, several weeks had passed since the default.  This made the process of lifting the default against my client a particular challenge.  Massachusetts evictions are suppose to be “speedy.”  Failure to act quickly can cost a party their legal rights.  Here, I was able to convince the court to “undo” the default judgment by pointing out an error in one of the initial court documents sent to my client.  Reluctantly, the court let my client go forward with defending against the eviction case from the bank.

Following this, I prepared my client’s case based on a defense related to a Federal Housing Administration (“FHA”) loan.  An FHA loan generally requires the lender to do a face-to-face meeting prior to foreclosure, and failure to comply with this requirement makes any subsequent foreclosure void.  As my client’s lender was unable to prove that it complied with this requirement, my client won his eviction case against the lender.

Loan Modification Application 

Winning a post-foreclosure eviction, on its own, will not solve the long-term goal of keeping one’s home.  Even if a foreclosure is void, a lender can (and almost always will) foreclose end.  To avoid foreclosure, a borrower needs to do something about the outstanding mortgage loan debt, which is most commonly resolved through a loan modification.

After my client’s lender invited him to apply for a loan modification, I helped my client prepare and submit an application.  Doing so required several applications to the lender, as the lender denied the first one.  While I have written about the horror stories of applying for loan modifications, this process was generally straightforward, with the lender being responsive to my phone calls and submitted documentation.

Conclusion

In the end, all of this work was worth it: my client has qualified for a loan modification, and is on his way to keeping his home for good.  I wasn’t the only one surprised by this outcome: the customer service representative I spoke to after getting this decision acknowledge that this outcome, under these circumstances, does not happen very often!

It is important to keep in mind a few things about this case.  While my client avoided losing his home, he (appropriately) owes money on his home, and will need to make payments on it for years to come.  Foreclosure defense is not about getting a free home, and working out an affordable payment plan is the only real way of avoiding foreclosure long term.

Additionally, although it is possible to save a home after a foreclosure sale, doing so is a much tougher route than avoiding foreclosure in the first place.  If you find yourself facing foreclosure, contact a foreclosure defense attorney as soon as possible to learn your options.

What is a Lis Pendens?

An effective tool in pursuing a real estate dispute is a lis pendens.  A request for a lis pendens often comes up in property lawsuits and can be useful for protecting one’s interest in real estate while a lawsuit is ongoing.

What is a Lis Pendens?

A lis pendens, simply put, is a formal notice of a pending legal action.  Per the law, a lis pendens is allowed for a lawsuit that “affects the title to real property or the use and occupation thereof or the buildings thereon . . .”  A lis pendens must be signed by a judge, after finding that the underlining lawsuit is one that meets this standard.  After a judge approves a lis pendens, it may be recorded in the appropriate registry of deeds as part of the land records.

Recording a lis pendens, on its own, will not stop the buying or selling of property.  The practical effect of a lis pendens, however, is to preserve the status quo while a lawsuit is ongoing.  Few people will buy real estate knowing that a lawsuit affecting the subject property remains ongoing.

Requirements for a Lis Pendens

Compared to a preliminary injunction (another legal tool for preserving the status quo during a lawsuit), a lis pendens is relatively easy to obtain.  The lawsuit must be one that affects title to real property, and must be verified by the party seeking the lis pendens.  This means that the party has affirmed, under the pains and penalties of perjury, that the facts of the lawsuit are correct.

Prior to recording a lis pendens, the law requires the party to prepare an affidavit stating that notice of the allowance of the lis pendens has been provided to the other parties in the lawsuit by certified mail.

In Superior Court, a lis pendens generally requires a hearing before the Court with proper notice to the other side.  While not in the formal rules for other trial courts in Massachusetts, this is the general practice for most lis pendens requests: the court will likely only consider this relief upon notice and hearing to the opposing party.

A party is permitted to seek a lis pendens on an emergency basis, by going to court first and not giving the opposing side notice (known as an”ex parte” action).  However, a party needs to show a real emergency for doing so.  If there is time for the court to hold a hearing and hear from the opposing side, the court will likely require a hearing.

Conclusion

A lis pendens is an effective part of litigating real estate disputes.  An experienced real estate litigation attorney can make a real difference in obtaining this relief and getting you the results you need.  If you find yourself in a dispute that may justify a lis pendens, contact me for a consultation.

Reversing a Foreclosure

reversing-a-foreclosure

Fall has been off to a great start for me, and I hope for you too.  My busy schedule is providing me opportunities to work on some great cases and I’m looking forward–to what I hope–will be some rewarding outcomes in the end.  So far, so good: I have reached favorable resolutions for several of my foreclosure defense cases.  One of my favorite parts of doing these cases is the actual process of reversing a foreclosure, a topic I want to discuss here.

What Happens to the Ownership of a Home After Foreclosure?

Following a foreclosure sale, the lender will record a foreclosure deed in the applicable land records for the property.  “Recording” is the act by which documents are made part of the public land registries.  Deeds and mortgages are the most commonly recorded documents, and searching the appropriate land registry is how one learns about the history of a particular piece of property.  In Massachusetts, these records can be found online:  http://www.masslandrecords.com.

A foreclosure deed is among these recorded documents, and states that the mortgagee held a foreclosure sale of the property and lists who purchased the property at the auction sale (which is often the mortgagee itself).

Challenging a Foreclosure Sale

Massachusetts is a non-judicial foreclosure state:  a lender does not need to go to court to foreclose a home.  A homeowner, however, has the right to challenge the validity of a foreclosure sale, which generally comes either through a defense in a post-foreclosure eviction or in a separate civil lawsuit.  If successful, a homeowner can ask the court to “undo” the foreclosure sale and restore ownership to the homeowner.  How is this done?

Reversing a Foreclosure 

My approach to reversing a foreclosure involves requesting a declaratory judgment from the court.  A declaratory judgment, simply put, is a court order that resolves a legal dispute.  In Abate v. Fremont Investment & Loan, the Supreme Judicial Court stated that declaratory judgments are a proper means of  challenging a foreclosure’s validity (page 835 of the decision).

I often request a declaratory judgment stating that the underlining foreclosure sale is void, and  ownership of the home belongs to the homeowner.  If a settlement is reached in one of these cases, the homeowner and bank can (and should) jointly request a declaratory judgment.  A declaratory judgment is generally a 1-2 page document stating the case name and number, a summary of the court’s order,  and is signed by a judge.

Once a court grants a declaratory judgment, I record this in the land records, along with the other property documents.  As part of the “chain of title”, the property is now officially back in the homeowner’s name and the foreclosure is reversed.  This recorded declaratory judgment will include a reference to the previously recorded foreclosure deed, so anyone searching the land records will learn of this court order.

Conclusion 

Reversing a foreclosure is one of the most rewarding parts of my job.  It is a great feeling to see the actual result of my work: an official order that gives someone their home back.  If you find yourself in need of foreclosure defense, contact me for a consultation.

Sherwin Law Firm Succeeds in Case of Easement by Prescription

I’m pleased to announce that I prevailed in a case last week involving an easement by prescription for residential property.  This case involved many interesting areas of Massachusetts property law.

Overview of the Case

My clients were homeowners who, for the past thirty years, had used a nearby paved lot by their home to park their cars.  Along with parking their cars, they regularly maintained the lot and performed improvements on the walls that surrounded the property.

Several years ago, someone else purchased this parking lot and demanded that my clients pay rent to use it.  My clients, who spent years using the lot as their own, were understandably upset about this turn of events and sought my legal advice on what could be done about this problem.

My Approach

I filed a lawsuit against the new owner of the property seeking a declaratory judgment that my clients were entitled to permanent use of the parking lot.  A declaratory judgment is a court order to determine one’s rights under the law.  A court order like this is needed in a case where the goal of the lawsuit is not money, but rather, a legal declaration from a court.

In this lawsuit, I asked for an easement by prescription for my clients.  An easement by prescription is a permanent right to use someone else’s land.  An easement by prescription requires the following:

  • The use of the property must be adverse for at least twenty years.  This  means that the person seeking an easement by prescription must show that the owner of the subject property never gave them permission to use the property.
  • The use of the property must constitute actual use.  This means that the person using the property used it in a way that property of that type is commonly used.
  • The use of the property must be open and notorious.  Simply put, the use of the property must put the actual owner on fair notice that someone else is using his or her property.

An easement by prescription is similar to adverse possession, which is a legal claim for permanent ownership of property that is used for twenty years.  The critical difference is that a claim of adverse possession requires a party to prove that their use of the property was exclusive, and  that the record owner of the property was “cut off” from the property.

An easement by prescription does not require proof of exclusive use.  Easements by prescription are commonly used for cases involving the right to use a road for access to land and for beach and waterfront rights (common in Cape Cod and other coastal areas of Massachusetts).

Outcome 

As with all claims of adverse possession and easements by prescription, the “devil is in the details.”  Proving one of these claims requires an understanding of how the subject property was used for the past twenty years, which often requires going through extensive land records, photographs, and other evidence related to the property’s use.  A trial for one of these cases requires that this evidence be presented to the Court in a way that coherently explains the required elements above.

In the end, the work on this case was worth it: following a trial, the Court agreed with our claim, and granted my clients a permanent easement for parking.

Lessons for Property Owners In Similar Cases 

Claims for adverse possession and easement by prescription may, at first blush, appear to be trivial, with neighbors fighting over small parcels of property.   In actuality, these disputes concern incredibly important matters.  Here, parking access was essential to my clients, who lived in a city that had limited off-street parking, making this easement by prescription a huge benefit to my clients’ home.

If you find yourself in a dispute involving the use of property, contact me for a consultation.  A lesson of this case is that long standing use of property, under the right conditions, can allow for a permanent right to access or ownership .  An experienced real estate attorney can help you decide if one of these claims is worth pursuing.

Advice for Moving in Boston

Advice for Moving

As hard as it is to believe, summer is about to end, meaning that Boston’s unofficial “moving day” is about to begin.  With dozens of college and graduate students, young professionals, and other renters in the Boston area, the beginning of September is the busiest time of the year for moving.  If you are one of the many who will be moving this week, here is some advice for moving.  While this is aimed for those in Boston, this advice generally pertains to any landlord or tenant in Massachusetts.

Get Everything in Writing and Save Copies For Yourself

Arguably the most important advice for moving is to get everything in writing, and keep copies for yourself.  If you’re signing a lease, giving or accepting first and last month’s rent, or otherwise agreeing to an particular term of your tenancy, you want this in writing.  Just as important, be sure you keep copies for yourself.

Take Photos of An Apartment When Moving In and Out

If you are moving in or out of an apartment, take advantage of your smartphone’s camera and take pictures of your unit.  Disputes over the condition of a rental unit can easily be resolved if the tenant or landlord has photographic evidence of the apartment.  Even if you are certain that no problems will arise, take five minutes and do this simple step.  Even better, ask a friend or family member to come with you to the apartment, so you have a witness if such a problem does come up.  This is a simple piece of advice for moving that can make all the difference later on.

Know What to Do About Poor Conditions in a Rental Unit 

Another important piece of advice for moving is to know what to do if your apartment is not in the condition it is suppose to be.  In such a case, you should immediately contact the landlord, report the problem (in writing), and give the landlord an opportunity to correct the defects.  If the landlord fails to take care of it, you can file a complaint with the City of Boston Inspectional Services (if you are renting outside of Boston, contact your town or city government for the appropriate agency to file a complaint).

It is important to know that a landlord cannot retaliate against a tenant for filing such a complaint.  In other words, the landlord cannot “punish” a tenant by evicting them or changing the terms of their tenancy.

For landlords, be certain to address complaints in an apartment promptly.  Failure to do so can lead to larger problems down the road.

Be Aware of Massachusetts’s Security Deposit Law

Massachusetts has one of the strictest security deposit laws in the country.  This law is so long and detailed that most do not understand all of its provisions, and many landlords fail to comply with it.  For this reason, I advise that landlords do not accept a security deposit.  If you are a landlord and have accepted a security deposit, consider speaking to a landlord-tenant attorney to ensure you are in compliance with this law.

For tenants, problems with security deposits often arise when tenants attempt to get their deposits back.  If you are having such a problem, an attorney may be able to help.  Massachusetts’s security deposit law provides for attorney fees and treble damages against landlords who do not follow this law.

Don’t Get “Storrowed”

In addition to always having traffic, Storrow Drive is known for being a “trap for the unwary” on moving day.  Trucks are not allowed on this parkway, and each year, at least one renter makes the news for getting stuck under one of Storrow Drive’s many bridges.  Don’t let this be you.

If you need help with a landlord-tenant matter, contact me for a consultation.

5B Affidavits

Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property.  G.L. 183, § 5B provides for the following:

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.

Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property.  5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property.  I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records.  A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.

5B affidavits, importantly, must be certified by an attorney.  The law does not allow a non-attorney to record one of these affidavits on their own.

While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used.  Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit.  A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to.  An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.

If you find yourself in a real estate dispute, contact me for a consultation.

How to Stop Foreclosure in Massachusetts

How to Stop Foreclosure in Massachusetts

In this blog post, I want to discuss the options available to stop foreclosure in Massachusetts.  Massachusetts is a non-judicial foreclosure state, meaning that a bank does not need to go to court to foreclose a home.  Instead, a bank can foreclose through sending a number of required notices to the homeowner and publishing these notices in a local newspaper.  As such, the options for stopping a foreclosure are not as apparent as they would be if the matter occurred in a court case (such as the eviction process required against tenants).   Fortunately, homeowners do have options available to stop foreclosure in Massachusetts.

Applying for a Loan Modification 

A homeowner’s first option to stop foreclosure is applying for a loan modification.  A loan modification is a restructuring of a mortgage loan to make the payments more affordable for the homeowner.  Federal law often requires banks to stop foreclosure after a borrower applies for a loan modification, and many banks (allegedly) have policies that put foreclosure sales on hold while an application is under review.

A common misconception among many homeowners is that any submitted loan modification application will stop foreclosure.  This is not correct.  While a loan modification application submitted well in advance of a foreclosure sale will generally put a foreclosure on hold, a bank will not necessarily stop foreclosure if it receives a application close to a scheduled foreclosure sale.  Moreover, many banks, who are overwhelmed with loan modification applications and understaffed, sometimes “forget” to stop a foreclosure sale, even after telling the homeowner they would do so.

If you apply for a loan modification, you should confirm with the bank that no foreclosure sale is pending, and try to get this in writing.  Moreover, you should closely watch the situation to make sure a foreclosure sale is not scheduled.  If you have reason to believe a foreclosure is going to occur, read on for the other options to stop foreclosure.

Filing Bankruptcy 

Another option to stop foreclosure is to file bankruptcy.  Bankruptcy puts an automatic stay on all actions by creditors, including foreclosure.  I am not a bankruptcy lawyer, so you should speak to an experienced professional in this area of law to decide if this option is right for you.

Obtaining the Assistance of A Foreclosure Defense Attorney 

If a homeowner is unable to stop foreclosure on their own, it is time to speak with a foreclosure defense attorney.  An experienced attorney can determine whether there are legal options available for requesting a court order to stop foreclosure.  An attorney may be able to obtain a preliminary injunction from a court, which is a court order preventing a bank from foreclosing while the lawsuit proceeds.

If you find yourself in need of assistance with such a matter, contact me for a consultation.

Help With A Security Deposit

Help With A Security Deposit

Both tenants and landlords can benefit from help with a security deposit.  Massachusetts’s security deposit law is not light reading, and often requires even the most experienced landlord-tenant attorney to review the law more than once to understand its many, many provisions.  An experienced attorney can often provide invaluable help with a security deposit matter.

Landlords Who Have Accepted A Security Deposit From a Tenant

I, along with many other attorneys (as well as a former Housing Court judge) recommend that landlords do not take a security deposit from a tenant.  The law has too many requirements for a landlord to comply with, and the risks of violating the law are steep, which can include treble damages, attorney fees, and costs.

For landlords, help with a security deposit often involves determining whether a landlord complied with the law’s detailed requirements.  If a landlord has erred in holding one of these deposits, an attorney can often help assist a landlord in avoiding or minimizing the damages that can arise from violating this law.

If you’re a landlord, don’t make the assumption that you need to wait until a problem arises to get help with a security deposit.  A consultation with a landlord-tenant attorney can often help determine if you have violated any part of the law, and determine the best way to avoid a larger problem down the road.

Tenants Who Cannot Get Their Security Deposits Back

For tenants, help with a security deposit often involves legal action against a landlord for failing to properly return a deposit.  Massachusetts’s security deposit law explicitly provides for attorney fees in such cases: the purpose being to give tenants incentives for pursuing these claims.  A landlord-tenant attorney can help you determine if you have grounds for pursuing a security deposit claim and the best court for pursuing such a matter.

Conclusion 

I provide assistance to both landlords and tenants with security deposit matters.  My experience in representing both types of clients provides me a unique perspective on this area of law.  If you find yourself in need of help with a security deposit matter, contact me for a consultation.

 

 

Real Estate Contract Disputes

Real Estate Contract Disputes

Real estate contract disputes can arise over the selling and purchase of property.  Given that transfers in real estate have much at stake, these disputes can often become contentious and require the assistance of an experienced property attorney.

Avoiding Real Estate Disputes in the First Place 

Avoiding a potential problem in the first place in a real estate contract should always be a central consideration in entering into such an agreement.  If you are considering selling or purchasing property, you should always seek the assistance of an experienced attorney in preparing such an agreement.  An attorney can often help identify potential problems that might arise later on, and offer advice to protect yourself if a dispute develops.

Ways to Protect Real Estate When a Dispute Arises

A primary, immediate concern for real estate contract disputes is protecting the underlining property.  For example, if you entered into a contract to purchase property, and the seller intends to sell the property to someone else, your immediate goal is to do something to stop the sale.  Similarly, if the subject property is being damaged or neglected, you would want something done immediately to cure the problem.  Fortunately, the law offers some safeguards when these problems arise.

One common device used in real estate contract disputes is a lis pendens.  A lis pendens is a notice of a lawsuit involving an interest in real property, which is recorded in the land records.  This is a simple notice stating the name and case number of the underlining lawsuit, which must be endorsed by the  court.  A lis pendens is effective in real estate contract disputes because, as a public document, it puts any potential buyers of the property on notice about the underlining lawsuit.  Few buyers would be willing to purchase real estate if the property is subject to ongoing legal action.

Another effective tool for protecting real estate is an injunction.  An injunction is a court order restraining or compelling a party to do a particular act.  A court, for example, could issue an injunction stopping a party from damaging property is there is reason to believe such damage is occurring.  An essential requirement of an injunction is irreparable harm.   A court will not issue an injunction is money is the only thing that may be lost; a court will need to be convinced that a loss will occur that money alone cannot solve.

What Can You Get in a Real Estate Contract Dispute?

Contract disputes are generally about money, and determining the proper amount to give to someone for damages.  However, for contract disputes where money alone will not help an injured party, the law provides for the remedy of specific performance.  Specific performance allows a party to get exactly what they contracted for, and is generally allowed when this relief involves something distinctly unique.

Specific performance is usually allowed for real estate contract cases.  The rationale is that a particular property cannot be “replaced” by another, and a damaged party is entitled to the exact real estate they contracted for.  For real estate contract disputes, this is often the preferred outcome by parties in these cases.

If you find yourself involved in such a matter, contact me for a consultation.