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.

 

 

 

Notice of Default

Notice of Default

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

What’s In a Notice of Default? 

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

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

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

What To Do About a Notice of Default

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

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

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

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

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

 

Foreclosure Help

Foreclosure Help

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

Preparing a Loan Modification Application 

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

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

Problems With The Review of a Loan Modification Application

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

Imminent Foreclosure Sale Date

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

After a Foreclosure Sale

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

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

Appealing an Eviction Case

Appealing an eviction case is a complicated subject.  I could write for hours on the topic, and even then, would only cover the basics.  Here, I want to offer two critical points for anyone appealing an eviction case: act quickly, and hire an attorney for your appeal.

What is an Appeal?  What Court Does it Go to?

An appeal is a request for a higher court to review A trial court’s decision (the court where the eviction case was first brought).  An appeal looks at whether the trial court judge made the right decisions in the case, and whether the matter should be sent back to the trial court (“remanded”) for another hearing or trial.

An appeal, importantly, is not a “do over.”  A party generally does not get to do their case all over again, in hopes that the appeals court will come out a different way.  Rather, the appeals court looks at whether the trial court made any errors of law.  This is an important things to keep in mind: even if you believe, strongly, that the trial court got its decision wrong, this may not be enough to win on appeal.

Appeals for eviction cases, whether they be for standard landlord/tenant cases or post-foreclosure eviction matters, are brought in one of two courts.  For eviction cases brought in the District Court, appeals go to the District Court Appellate Division.  This is a court made up of other District Court judges, and hold hearings in different courthouses around the state.  A decision from the Appellate Division can then be appealed to the Appeals Court.  Eviction cases coming from the Housing Court or Superior Court go directly to the Appeals Court, which sits in Boston.

The appeal rules for the Appellate Division and Appeals Court have some differences, but the process is generally the same.  An appeal requires a party to prepare a brief, a written document (usually 40-50 pages) stating the reasons why the lower court was wrong.  Depending on the case, the parties may have an opportunity to do an oral argument before the appellate judges, and state the reasons why the lower court was wrong.  The appellate court will then issue a written decision, where the court will either agree or disagree with the lower court’s decision, and state what will happen next for the case (if anything).

Anyone considering appealing an eviction case should follow the following pieces of advise closely.

Tip #1: Act Quickly 

Hands down, the most important advice on the topic of appeals: act quickly.  Unlike most other appeals, which allow a party thirty days to file a notice of appeal, a notice of appeal for an eviction case must be filed within ten days of the trial court’s entry of judgment.  Moreover, several cases have held that the failure to comply with this deadline is grounds for dismissing an appeal . . . regardless of the circumstances.  This suggests that even a showing of good cause is not enough to file a late notice of appeal for an eviction case.  With this in mind, never, never take a chance of missing this deadline.  If you do not have a lawyer, the clerk’s office can generally help you fill out a notice of appeal, a short form telling the court and other side that you plan to appeal.

This advice, importantly, applies equally to both landlords and tenants/former homeowners: the failure to comply with this appeal deadline can be fatal to your case.

Tip #2: Get a Lawyer

The second piece of advice for appealing an eviction case is to get an attorney.  I’m generally not a fan of advising people with legal matters to do cases on their own.  Without a solid legal background, it is difficult for even the smartest pro se  party to prevail in court.  For appeals, it is near impossible.  The rules of appellate procedure are a challenge for even experienced lawyers, and the many other complexities of appeals make this process a real challenge for even the best lawyers.  If you find yourself involved in appealing an eviction case, don’t do it on your own.  Speak to an experienced attorney about obtaining legal representation.