Sherwin Law Firm Prevails in Consumer Protection Law Cases


Although the COVID-19 pandemic has slowed the judicial process in Massachusetts, cases are still going forward. I’m pleased to write that I obtained two favorable decisions for Consumer Protection Law cases: one in state court and the other in federal court.

I didn’t win these cases . . . yet. Rather, I prevailed against the opposing sides’ attempt to dismiss each matter at the start of the case, for failure to state a claim upon which relief can be granted.

My opposition argued that our lawsuits didn’t have any merit, and should be dismissed at the onset of the case. The courts, however, agreed with me that my clients had viable lawsuits and were entitled to their day in court.

These cases, which concern issues of foreclosure defense, can and will be dismissed by courts if not properly drafted. In both cases, I faced opposition from two excellent attorneys who served their clients well.

What is the Consumer Protection Law?

The Consumer Protection Law, also known as “Chapter 93A”, protects consumers from “unfair and deceptive business practices.” There are several laws that fall under Chapter 93A, but the relevant portion for consumers is Section 9.

Chapter 93A has an incredibly broad reach, and covers nearly every area of law that can impact consumers. While my cases discussed above concern foreclosure, Chapter 93A often comes up in landlord-tenant disputes, debt collection matters, and a myriad of other consumer issues.

“Unfair and deceptive business practices” under this law is purposely broad and can cover an infinite number of violations. Moreover, the Attorney General is permitted to issue regulations that make certain practices automatic violations of Chapter 93A.

Benefits of the Consumer Protection Law

Because the Consumer Protection Law is broad, it can be used for many types of misconduct that are not otherwise violations of the law. Chapter 93A, importantly, also includes equitable powers, which allows a court to do more than just issue monetary damages.

A prevailing party under Chapter 93A, under the right circumstances, is also entitled to attorney fees.

Chapter 93A, importantly, allows courts to impose penalties on parties who refuse to settle cases that should be resolved without a lawsuit. This provides a strong incentive for parties to settle cases on their own.

Conclusion

Preparing a Chapter 93A case needs to be done properly. Even before a lawsuit is file, a claimant (in most cases) needs to serve a demand letter to the opposing party, in an attempt to resolve the dispute prior to court. Once a case is filed, a claimant must be sure to make a strong case that the other side violated this law.

If you need assistance with such a matter, contact me for a consultation.

Massachusetts Eviction Moratorium Goes to Court

The Massachusetts eviction moratorium, which has been in place since March, is off to court. A group of Massachusetts landlords have brought a lawsuit challenging the legality of this order, and have asked for a preliminary injunction, requesting that the court immediately stop the eviction ban while the case proceeds.

It would take much longer than a blog post to discuss all of the legal arguments for and against the Massachusetts eviction moratorium, but here’s a quick summary of some of the major points:

  • Landlords argue that the moratorium interferes with the right to access the courts, and the separation of powers between the legislative and judicial branches
  • Landlords argue that the ban is a constitutional “taking” of property, where landlords are deprived of property without compensation
  • Landlords argue that the eviction moratorium interferes with private contracts (leases)

This court case, which was filed in Suffolk Superior Court, is being followed by another legal action in federal court, concerning federal constitutional issues.

Attorney Richard Vetstein and Attorney Jordana Greenman represent the landlords, and did an superb job representing their clients. I’m not familiar with the attorneys who represented the Commonwealth, but they did an excellent job as well.

Judge Paul Wilson is hearing this case, and will be issuing a decision soon. I’ve had the opportunity to argue before Judge Wilson, and can attest that he is a good judge who will issue a well-reasoned decision on these important issues of law. Stay tuned.

If you need assistance with a landlord-tenant matter, or have a question about the eviction moratorium, contact me for a consultation.

How to Settle Property Disputes

Massachusetts zoning

A recent story from Maine discusses the importance of how to settle property disputes and, most importantly, what to avoid. In this article, a dispute over property among neighbors got so bad that one of the neighbors cut the other’s garage in half!

Needless to say, this isn’t the best approach when addressing a boundary dispute.

Determine Who Owns What

The first step for settling a property dispute is to determine the exact property you own. The starting point for this is generally a survey or plot plan, done by a licensed surveyor who has reviewed the land records.

If you find that the disputed property is not within your record title, or the disputed property’s ownership is unknown, a claim for adverse possession may still be a possibility.

Attempt to Resolve the Matter Without Court Involvement

Property disputes can get expensive and complex . . . really quickly. With this in mind, it is worth trying to resolve the matter without court involvement.

That’s not to say this should be done without lawyer involvement. In many of the property disputes that I’ve handled, I have able been to prepare a demand letter that has successfully resolved the matter without a formal legal action. This option is almost always worth considering before pursuing a lawsuit.

Taking Legal Action

If the property dispute cannot be resolved on its own, court action may be necessary. Courts have broad powers to resolve real estate disputes, such as issuing orders to determine who owns disputed property and entering injunctions to prohibit the unlawful use of land

Conclusion

If you are involved in a property dispute, contact me for a consultation.

Evictions in Massachusetts on Hold Through October 2020

Evictions in Massachusetts are now on hold through October 2020, per Governor Baker’s extension of the eviction and foreclosure moratorium. The moratorium was set to expire on August 18th, and is now extended through October 17, 2020.

As I have written before, the eviction moratorium has put the brakes on nearly every eviction in Massachusetts. With the exception of emergency matters, no eviction cases may be filed until the end of the moratorium. Tenants still remain liable for rent, but without evictions, there is no immediate option for dealing with a non-paying tenant.

Without evictions in Massachusetts, what should landlords do?

  • For non-paying tenants, landlords should send monthly notices of owed rent. It is critical that such notices make it clear that no such eviction will occur during the moratorium.
  • Landlords can and should speak with tenants about problems that arise during the eviction moratorium, including unpaid rent. It may be possible to work the matter out with out court involvement, such as through a repayment plan.
  • Landlords should always keep good records of all landlord-tenant matters . . . especially now. If an eviction becomes necessary, such records are vital for a successful case.

I’ve heard from many landlords who are struggling during the eviction moratorium, and who are understandably concerned about the future. While the moratorium remains in place, it will pass . . . just like the COVID-19 pandemic.

In the meantime, if a landlord has a situation that they believe is a true emergency, they should speak to an experienced attorney. Even with the moratorium in place, I’ve been able to help landlords with some difficult tenant cases, and would be happy to speak with you about your matter. Contact me for a consultation.

Obtaining a Mortgage Discharge

Obtaining a mortgage discharge is a critical part of selling property or refinancing a loan. This simple (but extremely important document) shows that a mortgage was fully paid.

The vast majority of the time, mortgage discharges are properly recorded in the land records, and nothing more needs to be done. On occasion, however, further action is needed if this was not done, or not done properly.

Mortgages 101

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. When a borrower borrows money to buy property, the lender almost always requires the borrower to grant it a mortgage, in case the borrower does not repay the money. This allows the lender to foreclose the property, if the borrower defaults on the debt.

Mortgages, importantly, are filed (known in legal terms as “recorded”) in the appropriate county land registry. This allows anyone (most importantly, a potential purchaser of property) to know that a lender has an interest in the property.

When a mortgage is paid in full (either by the borrower or through a loan refinance), a mortgage discharge must be recorded. This is important for selling property: few, if any, potential buyers of property will want a home with unpaid debt on it!

By law, most lenders are required, on their own, to file a mortgage discharge once the debt is paid in full. Most of the time, this occurs without a problem, and the property owner generally gets notice of this in the mail. This, importantly, must be recorded in the land records along with the underlining mortgage.

Obtaining a Mortgage Discharge: What Can Be Done If A Problem Arises?

Problems with mortgage discharges generally occur when (1) a discharge isn’t recorded or (2) there is a question whether the entity who recorded the discharge had the authority to do so. In either case, what can be done?

The law allows, in specific circumstances, for the filing of an affidavit, which can serve as a mortgage discharge on its own. The law has detailed requirements on what is required for this option. Determining whether this applies should always be the first step in addressing a mortgage discharge problem.

If such an affidavit cannot be done, it is sometimes possible to obtain a new mortgage discharge from the lender. I’ve had luck doing this on a recent case, which saved my client enormous time and money.

If neither of the above are options, a property owner may also file an action in Land Court seeking a court order to discharge the mortgage. Such a case requires the property owner to include the lender as a party, and provide them an opportunity to object. This type of case can be helpful when it is not clear who the lender is, or whether the lender is still in existence.

Final Thoughts

If need assistance with a real estate matter, contact me for a consultation.

Fighting a Zoning Decision

foreclosure appeal

Fighting a zoning decision generally occurs through the filing of a G.L. c. 40A, § 17 appeal in Land Court or Superior Court. Such, an appeal, however, many only be filed by a “person aggrieved.”

On this important topic, the Supreme Judicial Court issued its long awaited decision in Murchison v. Zoning Board of Appeals of Sherborn, a decision that overruled a prior appellate decision on this same matter.

This case is the only time I’ve seen an appellate court announce the outcome of a decision months before issuing a written decision, which underscores the importance of this area of law. The full decision is below.

Overview of Fighting a Zoning Decision

Fighting a zoning decision from a town or city zoning board (usually a Zoning Board of Appeals or Planning Board) is done through a civil court action. A party must file such an appeal twenty days after the decision has been filed in the office of the city or town clerk. After doing so, the party who is the applicant seeking zoning relief has the burden of proving their case.

This is a critical point for fighting a zoning decision. A party who appeals a zoning decision forces the other party to prove its right to zoning relief. This is in contrast to most other civil lawsuits, where the party filing the case has the burden of proof.

Who Has the Right to Appeal a Zoning Decision?

Appealing a zoning decision requires more than simply filing a court case. The law only allows a “person aggrieved” to pursue such a case. In other words, the party must have some real stake in the case outcome (known in legal terms as standing).

A homeowner trying to appeal a zoning decision for a parcel of property on the other side of town would most certainly not be considered a “person aggrieved.” This inquiry, however, gets tricky when it concerns zoning disputes among neighbors and those living near the property.

Murchison determined that an abutter of a property (who is located a specific distance from the property) is not automatically a “person aggrieved.” Rather, a person pursuing a zoning appeal must make a more detailed showing of standing, including a claim of harm from the zoning relief.

Final Thoughts

Standing is a mandatory requirement for a zoning appeal. If a party cannot demonstrate that they are a “person aggrieved,” the case is over.

For this reason, it is critical to have an experienced attorney help you in preparing such a case. If you are involved in a zoning matter, contact me for a consultation.

Murchinson

Landlord-Tenant Screening in Massachusetts

An important tool exists for landlord-tenant screening, one that is completely free and easy to use.  All of Massachusetts’s trial court dockets are online, providing both tenants and landlords with the ability to see filed eviction cases across the state.  The website is http://www.masscourts.org.

Eviction (“summary process”) cases are almost always filed in District Court or Housing Court.  To use masscourts.org for landlord-tenant screening, you need to search individually for each court.  The site doesn’t allow a general search for all trial courts across the state.  

However, if you know where the tenant or landlord has resided or owner property (or have a reasonably good idea), you can narrow down the applicable courts.  Bear in mind that searches on the site can be sensitive, and slight variations in names may not produce the desired results (the website is not Google!).

Search results will tell you if a case has been brought by or against a particular party, and a history of the case.  Search results generally will not provide details on the case, such as the reason(s) for evictions and counterclaims.  Information such as this can generally only be obtained by visiting the court and reviewing the case file.

For this reason, masscourts.org isn’t perfect for landlord-tenant screening.  However, it is useful for determining if a particular tenant has been frequently evicted, or if a landlord has often been subject to complaints from tenants.

An important word of caution, from someone who represents landlords and tenants: don’t assume the worst because a party has been involved in an eviction case.  Tenants are sometimes named in eviction cases for no-fault reasons, such as the adult children of parents who are being evicted.  Likewise, claims can be raised against a landlord that aren’t really meritorious, and are only meant to be a “delay” tactic.  In short, while masscourts.org is helpful for landlord-tenant screening, it should never be the only deciding factor in selecting a tenant or landlord.

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

Dividing Property Through Partition: 3 Things to Know


Dividing property through partition is the legal process by which an owner of real property can force the sale of property owned with a co-owner. In Massachusetts, a partition case may be filed in Land Court or Probate and Family Court. In this post, I’ll discuss three things to know about this process.

Partition is An Absolute Right

Partition occurs when multiple persons own real property together, and one wants to sell. If the parties cannot agree to a sale of the property or buy-out of the individual owner’s share of the property, any party may file a case for partition.

In my experience, the most common case for partition occurs when property is owned among family members, such as a home that a set of siblings inherited from their parents. Married couples generally cannot divide property through a partition; such a matter is usually handled through a divorce.

Partition is a matter of absolute right. This means that, with few exceptions, any owner of property owned by multiple parties is entitled to divide the property.

A Court in a Partition Case Can Either Divide the Property or Order it By Sale

Dividing property through partition is done through one of two ways: (1) a physical division of property (“in kind”) or (2) by sale.

Courts prefer to physically divide property, if possible, to avoid a sale. This, however, is not possible in many cases, particularly for residential property in urban cities and towns. When this is not possible, the court will order the property for sale.

Most times, a court in partition will allow any of the parties who do not wish to sell the property to buy the other party’s share, to avoid having to do a full sale, commonly referred to as a “set off.”

Dividing Property Through Partition Is Expensive

One of the main functions of a court in a partition case is to determine who gets what from the sale of the property. The starting point is the ownership shares of each owner. If a brother and sister each own 50% of partition property, this will be the starting point for determining how much each gets from the sale.

While this is the starting point, it is not the end for determining each owner’s portion from sale. A court in a partition case determines the respective shares of each owner based on what is “just and equal.” This means that, if one owner has paid more of the required property expenses than another owner, the court can take this into account when determining the final distribution.

Dividing property through partition, however, is an expensive process. Attorney fees, court costs, and other required fees can add up quickly, and eat into the parties’ proceeds from the property.

For this reason, it is wise to try and avoid a partition altogether and reach an agreement for selling the property without court involvement.

Conclusion

As an experienced real estate attorney, I’ve helped many Massachusetts property owners resolve their legal disputes promptly and affordably. If you are involved in a dispute regarding the division of property, contact me for a consultation.

Deadlines for Enforcing a Mortgage

The Appeals Court issued a decision last week concerning the deadline for enforcing a mortgage in Massachusetts, under the obsolete mortgage statute. The full decision, Thornton v. Thornton, is included below.

Thornton isn’t the first appellate decision to look at this issue, and continues a trend of Massachusetts courts rejecting attempts by borrowers to eliminate mortgage requirements.

What Is a Mortgage?

A mortgage is an agreement that gives a lender security against a borrower when making a loan for real property. Under a standard mortgage, a lender is permitted to foreclose a property if the debt is not repaid. Without a mortgage, a lender would only have the right to sue the borrower for the owed money, and have no claim to the property itself.

A mortgage, importantly, is only a security agreement, and not the loan itself. While it is common for homeowners to state they are “paying their mortgage”, in reality, the homeowner is making payments towards the loan associated with the mortgage, known as the promissory note.

Mortgages and the Statute of Limitations

Massachusetts, like nearly every other state, has deadlines for bringing civil lawsuits, known as a statute of limitations. A common misconception is that the deadline for bringing a breach of contract claim applies to the enforcement of mortgages. The argument goes that, if the lender has not pursued a foreclosure for the owed loan within six years, no claim exists.

As explained in Thornton, this deadline applies only to enforcing the loan itself . . . not the mortgage. In other words, even if six years has passed since the loan default, the lender can still enforce the mortgage through a foreclosure.

Mortgages and the Obsolete Mortgage Statute

A bar, however, does exist for enforcing a mortgage through the obsolete mortgage statute. This law prevents the enforcement of mortgages in limited circumstances:

35 years from the recording of the mortgage or, in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period. 

The borrower in Thornton argued that this deadline came from the promissory note. The Appeals Court rejected this argument, holding there was no basis for using the deadline from the note for this purpose.

In this case, because there was no maturity date stated in the mortgage, the thirty-five year deadline applied.

Practical Implications For Enforcing a Mortgage

Thorton underscores a critical point about the obsolete mortgage statute: courts, in my view, interpret this law strictly and will not allow a borrower to escape the enforcement of a mortgage unless all conditions of the statute are met. This statute is primarily intended for mortgages that are “up in the attic” and long forgotten by lenders, and courts are reluctant to extend this law much further than that.

This isn’t to say that a borrower has no options against a foreclosure. To the contrary, I’ve help many homeowners avoid foreclosure based on a wide array of defenses. None of these defenses, however, involve an elimination of the mortgage. For this reason, borrowers need to be realistic when dealing with such a matter.

Conclusion

If you need assistance with a mortgage matter, contact me for a consultation.

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Evicting a Tenant: What To Do

Evicting a tenant is the process required for obtaining possession of rental property. Evictions, known in Massachusetts as summary process, are done through an expedited court process; most often brought in Housing Court or District Court.

A recent news article reveals a disturbing trend about many landlords, due to the ongoing coronavirus pandemic, attempting to evict tenants on their own; a process commonly referred to as “self-help evictions.” Self-help evictions are highly illegal in Massachusetts, and can get landlords in an enormous amount of trouble.

Evicting a Tenant: When Is It Required?

An eviction case is required for obtaining possession against any tenant, regardless of the reason why the eviction is necessary. Although there is a limited exception for tenants engaging in illegal behavior, an eviction is generally required in every other circumstance.

No Self-Help Evictions

A “self-help eviction” is a case where a landlord attempts to remove a tenant from the rental property without a formal court case. Changing the locks, cutting off utilities, and threatening a tenant can all be considered a self-help eviction, and are expressly forbidden under Massachusetts law.

An eviction case requires a landlord, in most cases, to provide the tenant with a notice to quit, serve the tenant with a formal eviction summons, and appear in court. The process takes time and, understandably, can be frustrating, especially when it is against a non-paying tenant.

Presently, there is an eviction moratorium in Massachusetts, which is preventing the filing of almost all eviction cases for the foreseeable future. As such, it is understandable why some landlords may be tempted to bypass a formal eviction case against a tenant. Doing so, however, is a terrible idea, and will be far more trouble than it is worth.

Conclusion

Instead of considering a self-help eviction, contact me for a consultation. While evictions are not going forward now, I can explain the process to you, what can be done in the meantime, and how to prepare for such an action when the courts reopen.