Notice of Eviction

eviction-notice

A notice of eviction in Massachusetts can mean one of two things.

To start an eviction, a landlord is required to send a tenant a notice to quit.  The notice to quit informs the tenant that the tenant’s tenancy is over, and that the tenant must leave the apartment by a definite date.  The required number of days that must be given in one of these notices depends on the reason for terminating a tenancy.   A case for non-payment of rent generally requires a fourteen day notice to quit; a no-fault eviction usually requires thirty days.  After the tenant is provided this notice, and the time in the notice has elapsed, the landlord can then file the eviction case.

After serving the notice to quit, the landlord begins an eviction case through the service of an eviction summons, which lists the reason for the eviction, the court where the case is being brought, and the deadline that the tenant has to respond to the eviction.  This is the final notice of eviction for the tenant; the tenant must then answer the eviction complaint and state any reasons why they do not believe they should be evicted.  Failing to answer an eviction summons has serious consequences: a landlord can request a default judgment against a tenant, which is an automatic “win” for the landlord.

A landlord sending a notice of eviction, and a tenant receiving one of these notices, should check the document to ensure that it is accurate and contains all of the required information.  The smallest defect in one of these notices may lead to the notice, and subsequent eviction, as being invalid (a reason why both landlords and tenants should consider consulting with an experienced attorney on one of these matters).

A tenant who receives either type of notice needs to act quickly in dealing with it.  Both notices make it clear that an eviction is imminent, and a tenant needs to plan accordingly in responding to one of these cases.

If you are a tenant facing a notice of eviction, or a landlord who needs to perform an eviction, contact me for a consultation.

Attorney Sherwin Argues Foreclosure Appeal Before Massachusetts’s Supreme Judicial Court

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I had the honor of arguing before the Massachusetts Supreme Judicial Court (“SJC”) this week on a foreclosure appeal.  The SJC is Massachusetts’s highest court and the final decision maker on Massachusetts law.  The SJC often takes cases where the law in a particular area is uncertain.  In recent years, the SJC has heard an increasing number of foreclosure cases, which shows that this area of law continues to evolve.

My appeal concerned whether G.L. c. 244, § 15A, a law requiring a mortgagee to inform a local municipality about a foreclosure sale thirty days after it happened, is a requirement of the foreclosure process.  Different courts across Massachusetts have taken different positions on this, making this a matter that the SJC needs to resolve.  Click here to watch the oral argument.

My experience before the SJC reminded me of the importance of having an attorney who knows and understands the process of pursuing an appeal.  A appeal is a review of a case that was heard before a trial judge or jury; the appellate judges do not hear the testimony of witnesses or review evidence, and are limited to reviewing the entire record presented in the lower court.  A foreclosure appeal is a particular challenge to bring: foreclosure law constantly changes, and a successful appeal requires knowing and understanding the most recent changes in the law.  My appeal will likely be decided in the next three to four months, stay tuned!

I was deeply humbled by my appearance before the SJC.  With the recent election forcing many Americans to look closely at our form of government, I had a chance to see Massachusetts’s highest court up close.  I many not always agree with the SJC’s decisions, but I can’t doubt the Court’s sincerity and devotion to the “rule of law” in our state.  I’m proud to be a Massachusetts attorney and look forward to continuing my practice in this great state.

If you are in need of an appellate attorney, contact me for a consultation.  The importance of having an experienced appellate attorney on your side can be the difference between winning or losing your case.

Once Foreclosure Begins, Can It Be Stopped?

Foreclosure by Sale

Once foreclosure begins, can it be stopped?  In Massachusetts, the answer is “yes.”

The start of the foreclosure process in Massachusetts begins with a series of notices sent to the homeowner, informing them of the foreclosure sale date.  These notices are also published in a local newspaper.  While this is the official beginning of the foreclosure process, the homeowner has usually been provided notice of the foreclosure well in advance of these notices, through letters from the bank informing them of the loan default and offering them an opportunity to cure the default.  At this point, the sale is scheduled, but has not occurred.  Here, there are several options that homeowners can do to stop a foreclosure.

If the homeowner has not applied for a loan modification, they can speak with the lender and see if the lender is willing to consider reviewing them for this loss mitigation assistance.  If the homeowner applies far enough in advance of a foreclosure sale, the lender may be willing to do so and postpone the foreclosure.  Generally, however, a lender will not postpone a foreclosure sale if a loan modification application is received after a scheduled sale date.

If the lender is unwilling to stop a foreclosure sale, a homeowner may be able to ask a court to stop the foreclosure, if there are grounds for challenging the foreclosure’s validity.  A homeowner can request a temporary restraining order or preliminary injunction to stop a foreclosure.  Obtaining the help of an attorney in doing this is highly, highly recommended.

A homeowner can also consider filing bankruptcy to stop foreclosure.  A bankruptcy creates an automatic stay against all creditors, including a foreclosure sale.  A homeowner, again, should consult with an attorney before taking this action.

After a foreclosure sale occurs, a homeowner still has a right to challenge the foreclosure’s validity.  A homeowner can seek a declaratory judgment or another type of court order requesting that the foreclosure be rescinded.  While it is possible to stop a foreclosure after a sale has occurred, it is much harder than fighting a foreclosure before a sale has happened.  It is, however, not impossible.

If you find yourself facing a foreclosure, contact me for a consultation to see if I can be of help.

Somerville Eviction Cases

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While I take cases all over Massachusetts, I have many landlord and tenant clients in Somerville . . . not surprising because my office is located in Assembly Square and I proudly call Somerville my “business” home.  Somerville is a fantastic city and I’m proud to be a lawyer in this great community.  In this post, I’ll provide an overview of Somerville eviction cases.

Evictions in Somerville, with a few exceptions, must be brought in Somerville District Court.  Somerville, like many cities outside of Boston, are not within the jurisdiction of a housing court, making District Court the main venue for these cases.  Somerville District Court has jurisdiction over eviction cases not just in Somerville, but Medford as well.  Somerville District Court is located in Assembly Square and is within walking distance of the T.  Parking is generally available near the court as well, but plan ahead to give yourself enough time to find a spot.

Somerville eviction cases, like most eviction cases across Massachusetts, are held on Thursdays in Somerville District Court.  Court begins at 9:00AM, with a “first calling” of the cases before the court.  During this initial reading of the cases, the clerk asks if both parties are in court, and what the parties are in court for.  If the parties are in court for a bench trial (where the judge decides the matter, and not a jury), a trial can be held that day.  If the tenant has requested a jury trial, the court usually holds a pre-trial conference to select a trial date.

For both types of cases, mediation is usually an option for both parties.  Mediation allows parties to meet with a trained facilitator to discuss the issues in the cases and see if the matter can be worked out.  Parties should always try mediation (even if they have an attorney): there is nothing to lose, and much to gain if the parties can work out a resolution on their own.

Compared to other courts (especially housing court), Somerville District Court usually doesn’t have a huge caseload of eviction cases.  You should expect a bit of a waiting time in court, but cases are usually heard in the morning.  If your case needs to go to trial, the court may schedule it on a non-Thursday.

If you find yourself involved in a Somerville eviction case, contact me for a consultation.  Landlord/tenant law can be tricky, and it is helpful to have an experienced attorney on your side.

 

Breaking a Loan Modification

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For homeowners trying to avoid foreclosure, getting a loan modification (where the lender agrees to adjust the monthly payments to an affordable amount for the borrower) would seem to be the solution for beating foreclosure.   Believe it or not, however, some lenders don’t follow through with these plans: the breaking a loan modification by a loan servicer is an unfortunate reality for many homeowners.

I’ve seen this occur in different ways.  In the first scenario, the homeowner receives a trial payment plan (“TPP”), where the homeowner is approved for a modification and is required to make three payments under the new modified loan amount.  The homeowner signs the required paperwork, makes the three payments, and expects to get the permanent modification.  The loan servicer, however, refuses to give them the permanent modification, despite the homeowner doing everything that was required of them.

In the second scenario, the servicer “forgets” about the loan modification months, and sometimes even years, after the modification has begun.  Believe it or not, some servicers simply refuse to outright honor a modification, despite the homeowner having been approved for this loss mitigation assistance.

Fortunately, the law is often on the side of homeowners in these matters.  Many courts have held that breaking a loan modification is a breach of contract: a violation of a legally binding agreement that entitles the homeowner to relief in court.  Homeowners in these cases can sue for damages, and ask for both monetary damages and the remedy of specific performance, which asks the court to reinstate the parties’ loan modification agreement.  In one of my successful cases on such a matter, I was able to negotiate a reinstatement of a loan modification where the loan was brought current to the date of the settlement, as if the homeowner had been making payments all along.

Homeowners who are in one of these situations should contact a foreclosure defense attorney as soon as possible.

Who Pays for Legal Fees in an Eviction Case?

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A central question that anyone in a landlord/tenant case needs to consider is, who pays legal fees in an eviction case?  The answer to this question makes a huge difference in determining whether to pursue a potential claim against a landlord or tenant.

Massachusetts, like most of the country, follows the American Rule in awarding attorney fees in a lawsuit.  Unless there is a law explicitly allowing attorney fees, a prevailing party doesn’t get attorney fees in a lawsuit . . . even if the court determines they were on the “right” side of the law.

The American Rule most directly impacts landlords in eviction cases against tenants.  Landlords generally cannot recover attorney fees in an eviction case against a tenant.  A landlord who prevails in an eviction case is entitled to the “costs” of the case, but this is generally limited to the filing fee of the lawsuit, and not any attorney fees incurred in one of these cases.  Some leases provide for attorney fees if a landlord brings an eviction case in court, but this alone does not guarantee that a landlord will obtain these fees from the tenant: a landlord (like any party in a lawsuit) can only obtain a judgment from a party with assets.   If the tenant does not a steady income, property, or anything else of value, the landlord will have a judgment that they cannot recover.

The same isn’t true for tenants bringing claims against landlords.  Massachusetts has some of the most tenant friendly laws in the country, allowing for legal fees in an eviction case.  Violation of one of Massachusetts’s many landlord/tenant laws, such as the security deposit law, will not only subject a landlord to monetary damages, but require them to pay a “reasonable” attorney fee if the tenant prevails.  For a lengthy eviction case, these attorney fees can be huge.

With this in mind, both landlords and tenants should keep in mind who pays attorney fees in eviction cases when evaluating their options.  For landlords attempting to evict a tenant, strong consideration should be given to working out settlement agreements in lieu of litigating these cases.  The potential risks of fighting one of these cases can be costly (as unfair as this can  be).  For tenants who are dealing with an unfair landlord, Massachusetts’s landlord/attorney laws, which provide for attorney fees for a prevailing tenant, are a strong reason why tenants should speak with an experienced landlord/tenant attorney if they are dealing with a bad landlord.

If you find yourself in either scenario, contact me for a consultation.

Deadline For HAMP

Loan Mod

The final deadline for HAMP (“Home Affordable Modification Program”)  is rapidly approaching: applications for this federal program are due December 30, 2016.

HAMP is a federal program aimed at helping struggling homeowners avoid foreclosure.  Eligible homeowners can obtain a loan modification through a combination of an interest rate reduction, term extension, and principle forbearance.  Applying for HAMP requires proof of income, a variety of tax and financial documents, and a hardship affidavit (showing a reason why the homeowner cannot make their normal loan payments).

HAMP, to say the least, has been a nightmare: servicers routinely lose paperwork, delay reviewing modifications, and deny applications for false and ambiguous reasons.  Despite its shortfalls, HAMP remains one of the best options for homeowners trying to avoid foreclosure.  With this in mind, homeowners in need of loss mitigation assistance should make a note of the deadline for HAMP and submit an application as quickly as possible.

The deadline for HAMP has been extended in the past and I wouldn’t be surprised if that happens again.  However, homeowners should assume that it won’t be extended, and get prepared to submit an application well before the December 30, 2016 deadline.  Don’t procrastinate!  A HAMP application requires an enormous amount of time and collection of documents.  You do not want a loan servicer to deny your application on the grounds that your application was not submitted in time (a reason for denial that, unfortunately, I see occurring for many homeowners who will apply at the end of the year).

When applying for HAMP (or any other loan modification program), be sure to keep a paper trail of your application process.  If you find yourself not getting the results you need, contact a foreclosure defense attorney for assistance.

Can Airbnb Help Avoid Foreclosure?

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I recently saw a  Airbnb TV commercial that attempts to promote the many benefits of this room sharing service for local communities.  Airbnb claims that its service has helped many homeowners avoid foreclosure, a topic that I want to discuss here.  Can Airbnb help avoid foreclosure?  As with all legal questions: it depends. 

Airbnb is a peer sharing service for renting rooms, apartments, and even entire houses.  An interested renter enters their desired location and travel dates and gets a list of available options, with rates and information of the rental property.  Airbnb follows the trend of similar “sharing economy” services like Uber and Lyft, allowing individuals to conduct business on their own terms.  Not surprisingly, these services are under attack by state and local governments: here in Massachusetts, there is talk of regulating Airbnb, over concern that this service takes business away from local hotels and other short term rental options.

I, personally, am a huge fan of the “shared economy.”  I see no reason why a homeowner or car owner should not be permitted to use their personal property for profit (while providing an important service for the general public).  Inevitably, however, there is push back from the commercial businesses who normally provide these services.  As local and state businesses continue to determine how to deal with Airbnb, the question on whether Airbnb can help avoid foreclosure is an important topic to consider.

For homeowners facing a temporary loss of income (ex. layoff from job or reduced working hours), Airbnb can be an option for avoiding foreclosure.  Short-term rental income can help provide the resources necessary to pay a mortgage loan and avoid default.  This is a much, much better option than letting a loan go unpaid.

I am a little more skeptical of using Airbnb as a means of producing income for purposes of obtaining a loan modification.  On paper, income from Airbnb should be adequate for getting a modification.  However, the unpredictability of this income can make it difficult to verify for a loan modification.  When applying for a modification, a lender wants to see definite, documented income.  I can see many lenders being reluctant to accept this income, out of concern that this income may not be consistent.

So, can Airbnb help avoid foreclosure?  If the homeowner can use Airbnb to stay current on a loan (or get caught up in missed payments), then I think it is an effective foreclosure defense strategy.  Airbnb is also a fantastic option for generating extra income for homeowners with a tight budget, thereby providing savings in the event that other income becomes scarce.

For homeowners with a significant loan default, who are in need of a loan modification, I wouldn’t rely 100% on Airbnb to produce the income necessary to qualify for this loss mitigation assistance.  Go ahead and use Airbnb, but also try to establish income that is more certain and definitive.  If you have space in your home to rent, consider finding a permanent tenant or roommate, which may be more effective in showing your lender that you have the income necessary for a modification.

If you find yourself facing foreclosure and need help, contact me for a consultation.

Advice for Landlords

Apt

In this blog post, I am going to give you the single, most important piece of advice for landlords in Massachusetts.  This advice might sound obvious, but believe me when I tell you that it is often ignored.  Ready for it?  Here it is: speak to a landlord/tenant attorney before becoming a Massachusetts landlord.  

I have met countless landlords who start renting homes and apartments without any knowledge of Massachusetts landlord/tenant laws.  Often, these landlords end up being okay in the beginning, when things go well with their tenants.  When things go bad, however, they can get really bad: not following Massachusetts’s extensive landlord/tenant laws can have dire consequences for landlords down the line.

Nearly all of these problems can be avoided by following the law correctly in the first place.  A Massachusetts landlord/tenant lawyer can help you draft a lease, decide on the proper terms of your tenancy, and avoid many of the pitfalls that inexperienced landlords in Massachusetts often make.  Few, if any of us, would start a business without learning the applicable law.  Why should being a landlord be any different?

This advice for landlords stresses an important point: you don’t need to hire a lawyer only when things go wrong.  A landlord/tenant attorney can be a great help to you in becoming a landlord, and help you avoid major problems from not following the law.

Appealing a Foreclosure Case

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A recent Massachusetts Supreme Judicial Court decision illustrates the importance of properly appealing a foreclosure case.  The Court’s decision reaffirms that a homeowner has one–and only one–opportunity to appeal an unfavorable court decision.

In Eresian v. Merill Lynch Credit Corporation, the Supreme Judicial Court upheld the denial of a homeowner’s attempt to overturn a decision in a foreclosure case from the 1990s (a copy of the full decision is below). The homeowner attempted to file an appeal of this decision in 2015, years after the 1993 foreclosure case.  The Appeals Court rejected this appeal, and stated that the case was closed.  The homeowner then attempted to petition the Supreme Judicial Court for a subsequent order to review her prior decision.  Here, the Supreme Judicial Court rejected this requested relief, noting that the homeowner had already obtained an appeal of her decision, and there was no reason for the Court to allow her the opportunity for another review of the case.

The Court’s decision in this case reaffirms an important lesson for homeowners fighting foreclosure: there are few, if any, “do overs” in matters of law.  If a homeowner loses their foreclosure case and wishes to appeal, they get one–and only one–chance at appeal. Rarely will a homeowner ever be able to come back later for a second shot.

With this in mind, homeowners should strongly consider consulting an experienced foreclosure defense attorney in appealing a foreclosure case.  The risks of not doing the job right the first time just aren’t worth it.

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