SJC Rules that Failure to Send a Postforeclosure Notice Does Not Invalidate A Foreclosure
The Supreme Judicial Court issued a decision this week on postforeclosure notices, and whether the failure to send one invalidates a foreclosure sale. In Turra v. Deutsche Bank, the Court ruled that the failure to send one of these notices does not void a foreclosure (disclosure: this was my appeal!). A full copy of the decision is below.
The law in question, G.L. c. 244, § 15A, requires a mortgagee to notify the local municipalities of a foreclosure thirty days after the sale has occurred. As the Court acknowledged in Turra, prior court decisions suggested that strict compliance with this law was required to perform a lawful foreclosure. The question in Turra was whether this was such a requirement, and whether a failure to comply with this step would invalidate a foreclosure. Turra determined this statute isn’t grounds for challenging foreclosures.
I don’t read Turra to suggest that a failure to comply with a postforeclosure notice requirement can never be used to challenge a foreclosure. If a homeowner or someone else is actually harmed from a bank’s failure to send such a notice, this violation may potentially be a consumer protection claim. Turra is clear, however, that such a violation, on its own, is not enough to be a foreclosure defense.
While Turra wasn’t the outcome I wanted, I’m pleased that the Supreme Judicial Court acknowledged the basis for my argument, and conceded that its prior caselaw suggested this was a plausible defense. The decision mentions two other decisions where courts came out the oppositie way on this question of law (one of these decisions was one of my other cases using this defense). You can’t win ’em all!
Turra has an important lesson of wisely choosing a foreclosure defense strategy. The Internet is filled with foreclosure defense hoaxes and myths that do struggling homeowners more harm than good in trying to save their homes. A review of unsuccessful foreclosure defense cases in state and federal court shows dozens of cases lost on the same arguments that courts routinely reject. My strategy in defending homeowners is to make arguments that have a basis in law, and reject arguments that don’t work. I reject the “kitchen sink” approach to foreclosure defense, where one raises every argument they can think of, irrespective of whether the claim has any hope of succeeding. It is far better, in my opinion, to stick with arguments that work, and try new approaches. While not successful in this case, my legal argument on these postforeclosure notices succeeded in several of my other cases, and helped keep a deserving family in their home. If you find yourself facing foreclosure, don’t rely on an Internet myth to defend yourself: contact an experienced attorney for assistance.Decision