Is My Home In Foreclosure?

Foreclosure by Sale

Struggling homeowners in Massachusetts often start a consultation with me with a simple question: is my home in foreclosure?  Those not familiar with Massachusetts law might laugh at this question, believing that the service of a foreclosure lawsuit easily answers this question.  In states like New York and Florida, which are known as judicial foreclosure states, that is correct: lenders in those areas must take a borrower to court to foreclose.  Massachusetts, however, is a non-judicial foreclosure state, where a lender does not need a court’s permission to foreclose (anyone interested in a good discussion between these different types of foreclosure should read two great articles on this topic from the Boston Bar Journal).

Because a lender does not need a court’s permission to foreclose, determining whether a home is in foreclosure is not always obvious.  The official start of the foreclosure process comes with the publishing of advertisements in the local newspaper and notices sent to the borrower.  Determining where the homeowner is before that step, however, can be tricky to figure out.

One of the quickest ways to determine a borrower’s foreclosure status is checking whether a servicemembers’ case has been brought against them.  When a client asks me, “Is my home in foreclosure?”, my first step is to check whether one of these cases has started.  A servicemembers’ case is a judicial proceeding to determine if a borrower is in the armed services, which sometimes allows a delay in foreclosure for military members.  To check on whether a  servicemembers’ case has been brought against a borrower, I look at the court records on  Servicemembers’ cases are typically brought in the Land Court, so I usually search for cases in that court.  Another way of checking to see if such a case has been filed is through the registry of deeds.  Generally, a lender files a notice of one these cases in the land records for the subject property, which will have the case number and court where the case is filed.

Determining the status of the servicemembers’ case is a good way to determine how far along the borower is in the foreclosure process.  If the servicemembers’ case has been completed, a foreclosure sale will likely begin soon.  If no such case has been filed, the foreclosure sale will likely take longer (I estimate the typical servicemembers’ case to take around four months to complete).

It is important to note that there are always exceptions to this general timeframe, a homeowner should never, never delay in seeking help against foreclosure.

FAQ: I’ve Received a Notice about a Servicemembers’ Civil Relief Act Case Against Me. What Should I Do?

Question:   I’ve received a notice about a Servicemembers’ Civil Relief Act against me. What should I do?

Answer:  The Servicemembers’ Civil Relief Act (“SCRA”) is a federal law that provides certain protections for those in military service.  For foreclosure, the SCRA generally prevents lenders from foreclosing against homeowners in military service.

In Massachusetts, lenders determine whether borrowers fall under the protections of the SCRA through a court action, which is almost always brought in Land Court.  The homeowner is served with a complaint  and has a deadline for responding to the lawsuit and asserting any of their rights under the SCRA.  If the borrower fails to respond, the lender is eligible to obtain a judgment from the Land Court declaring that the homeowner is not eligible for the protections of the SCRA. Lenders typically bring SCRA cases against all borrowers they are intending to foreclose, regardless of how likely it is that the borrower may be in the military.

When faced with an SCRA complaint, homeowners who are in the military should act quickly to protect their rights.  Homeowners who are not in the military generally have no protections under the SCRA and as such, have few defenses in these cases.  However, an SCRA case is a strong indication that the lender will begin a foreclosure soon, and homeowners faced with these cases should consult with an attorney to explore their options in avoiding foreclosure.