Sherwin Law Firm Wins Foreclosure Appeal

foreclosure appeal

I’m pleased to announce that I, along with appellate attorney Joseph Schneiderman, won a foreclosure appeal this week in the Massachusetts Appeals Court.  The case, Nationstar v. Culhane (included below) concerns an important topic for appealing an eviction (“summary process”) case in Massachusetts: the importance of timely filing a notice of appeal.

Overview of Case

It would take much, much more than a single blog post to give the background on this case, or even the procedural history of this matter.  Here’s a quick synopsis.  The homeowner went through a foreclosure sale and faced a post-foreclosure eviction case by the foreclosing lender.  In such a case, the homeowner has a right to defend against the eviction by alleging that the foreclosure was not lawful.  Here, my client had a strong defense based on the lender’s failure to comply with paragraph 22 of her mortgage.

Case History

My client won her case at the District Court, where the foreclosing lender filed this eviction case.  Following my client’s win, the foreclosing lender appealed this case to the District Court Appellate Division.  The Appellate Division is a part of the District Court and hears appeals of most civil cases from the District Court.

The Appellate Division reversed the District Court’s decision, and ruled that the foreclosing lender should have won the eviction case.  I then appealed the case to the Massachusetts Appeals Court, which hears appeals decided by the Appellate Division.

Outcome of Foreclosure Appeal

The Appeals Court ruled in my client’s favor based on a critical argument we raised for my client: the foreclosing lender’s failure to timely file this foreclosure appeal.

Massachusetts eviction law has a short deadline for pursuing an eviction appeal: ten days.  As we argued to the court, previous decisions on this law hold that a failure to meet this deadline, for seemingly any reason, are grounds for dismissing the appeal.  Here, the foreclosing lender filed its notice of appeal after the ten-day deadline, which the Appeals Court agreed was grounds for dismissing the appeal.

Conclusion

This case has some really important lessons not just for a foreclosure appeal, but any appeal of an eviction case.  The deadline for such an appeal must be timely filed.  Often, the failure to timely appeal a civil case is not always fatal to one’s case; appeal courts have discretion to allow a untimely appeal for good cause.  Not so with eviction cases.  This case, along with many prior cases on this matter (discussed in the court’s decision below) suggest that there are few grounds for filing an eviction appeal late.

For this reason, I always recommend that lawyers and parties representing themselves in an eviction appeal err on the side of caution when preserving a right to appeal.   File the notice of appeal as soon as possible and make sure you have proof that the court and opposing party receive this notice.  Take no chances on this.  I have been known to jump in my car on the last day of the deadline to appeal and make a special trip to court if I have any reason to believe the notice of appeal was not timely received by the court.

This case also demonstrates the importance of working with an experienced appellate attorney on one of these matters.  The arguments in this case were highly technical and required a deep understanding of Massachusetts eviction law and appellate procedure.  If you find yourself involved in a similar foreclosure appeal, contact me to see if I can help.

 

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Obtaining a Loan to Avoid Foreclosure

Happy New Year!  I hope 2018 has been off to a great start for you . . . besides the cold weather.  A recent foreclosure case that I successfully resolved is the basis for this blog post: obtaining a loan to avoid foreclosure.  This option, while not for everyone, can be an effective means of foreclosure defense.

Foreclosure 101

Foreclosure is the process by which a lender can force the sale of a property to recover the borrower’s owed debt for the property.  Massachusetts is a non-judicial foreclosure state:  a lender does not need to go to court to foreclose, and performs this process through a series of letters and notices.  The most common cause for foreclosure is a borrower’s failure to pay their mortgage loan.

Obtaining a Loan to Avoid Foreclosure 

Avoiding foreclosure requires a borrower to resolve the underlining money owed on a home.  Foreclosure defense is not about getting a free home and the only permanent solution to foreclosure is addressing the owed debt.  This can occur through a loan modification, where a lender agrees to restructure a loan to make the payments more affordable for the borrower.

Another option for some borrowers is obtaining a loan to avoid foreclosure.  If a borrower can obtain financing from another lender to pay the owed money on the home, this can be an option for saving one’s home.  This new financing, of course, would need to be more affordable for the borrower to make this option worthwhile.

This option is not for every borrower facing foreclosure: many borrowers in these predicaments lack the credit to obtain new financing.  This is a more realistic option for  those facing foreclosure who are not on the underlining loan.  This can occur if a homeowner has inherited a home with a delinquent mortgage loan, or have a partner or spouse whose name alone was on the mortgage debt.  In such a scenario, the non-borrower may qualify for a loan to avoid foreclosure, whose terms are more favorable than the delinquent debt.

Obtaining the Assistance of a Foreclosure Defense Attorney

If obtaining a loan to avoid foreclosure is an option for you, a foreclosure defense attorney can be helpful for your case.  If the underlining mortgage loan is really behind in payments, the owed debt may be much higher than the property value, making it difficult to find new financing.  A lawyer may be helpful in negotiating a more reasonable payoff for the homeowner.

I have had success in such cases, where the homeowner has excellent credit and is facing foreclosure through no fault of their own.  In the right circumstances, the lender might agree to accept less than what is owed on the property, with the borrower getting an affordable mortgage loan.

A word of caution on this blog post.  I have heard from some potential clients who have considered purposely defaulting on their loan, in hopes of getting a better payoff in the end.  This is bad, bad advice.  Defaulting on a mortgage loan has serious consequences, and there is never a guarantee that a permanent foreclosure defense can be reached for such a case.

Conclusion 

If you find yourself facing foreclosure, contact me for a consultation.  The advantages of having an experienced attorney on your side can make all of the difference in attempting to save your home.

Preserving a “Pinti” Defense – Paragraph 22 of the Standard Mortgage

The Massachusetts Appeals Court issued an important decision this week on preserving a “Pinti” defense under paragraph 22 of the standard mortgage.  In US Bank v. Milan, the Appeals Court ruled that a homeowner failed to preserve this foreclosure defense and was precluded from raising it in his foreclosure case (a full copy of this decision is below).

Overview of Paragraph 22 of the Standard Mortgage

Paragraph 22 of the standard mortgage (used for most residential home purchases) requires that a default notice be sent to a homeowner containing a number of required disclosures before a foreclosure sale can proceed.  In Pinti v. Emigrant Mortgage, the Supreme Judicial Court held that a lender must strictly comply with this mortgage requirement.  Failure to do so makes any subsequent foreclosure sale void.

Pinti, importantly, limited the homeowners who were entitled to this defense.  Initially, the decision only applied to those paragraph 22 notices sent after July 17, 2015 (the date of Pinti).  The Appeals Court subsequently extended the benefit of Pinti to those homeowners who had a pending appeal on the paragraph 22 issue, and later, to any homeowner who raised it as a defense in a pending trial court case.  In this present appeal, the Appeals Court needed to determine what counts to preserve this defense in a pending foreclosure case.

How Does a Homeowner Preserve a Paragraph 22 Defense? 

In this case, the homeowner was in a post-foreclosure eviction case, where the bank alleged to have foreclosed the home.  The homeowner was entitled to defend against the eviction by arguing that the foreclosure was void, precluding the bank from obtaining possession of the home.

Here, the homeowner appears to have answered the bank’s eviction lawsuit by using a printed answer form, which allows claimants to raise defenses and counterclaims by checking a box.  This homeowner made a general allegation that the foreclosure was void.  In response to the bank’s inquiry on the basis of this defense, the homeowner alleged that there was forgery in his case, and did not mention a failure to comply with paragraph 22 of his mortgage.  While this case was ongoing, the Supreme Judicial Court issued Pinti.  The trial judge ruled that Pinti applied because the homeowner preserved a Pinti defense in this case, and found the overall foreclosure to be void.

The Appeals Court disagreed, ruling that the homeowner listed forgery, and not a paragraph 22 defect, as the asserted grounds for the homeowner’s foreclosure defense.  In other words, the Court was not willing to let the homeowner “change horses midstream” and get the benefit of Pinti after stating a prior, separate basis for his foreclosure defense.

Conclusion 

Recent court cases have been favorable to foreclosed homeowners with a paragraph 22 defect.  Milan suggests that there are limits to who can get the benefit of Pinti  in their case, and that a failure to expressly raise this matter can be fatal to one’s defense.  This decision, however, really only applies to homeowners with a pending foreclosure case who received a defective paragraph 22 notice before July 17, 2015.  Homeowners who received a defective notice after this date will likely have much more leeway in raising a Pinti defense.

While the Court did not address this issue, Milan touches upon the problems of using forms in answering or bringing a lawsuit.  Such forms allowed a claimant to raise a defense or claim merely by “checking a box” and without providing any supporting facts or detail.  I have long believed that these forms are problematic and not proper under the requirements for raising a legal claimMilan suggests that Massachusetts appeal courts may be inclined to take a closer look at this issue in the future.  Regardless, this is a reason why the benefits of finding an experienced foreclosure defense attorney cannot be overstated.

US Bank v. Milan

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.

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.

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.

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.