Sherwin Law Firm Settles Post-Foreclosure “Ibanez” Case


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I’m pleased to announce that I settled a post-foreclosure “Ibanez” case this week.  I represented a former homeowner who had been improperly foreclosed due to the Supreme Judicial Court’s decision in U.S. Bank v. Ibanez, which invalidated thousands of foreclosures across Massachusetts.  My client was a former homeowner, and the entity who foreclosed her home lacked a proper mortgage assignment at the time of foreclosure, making the foreclosure void.  As I have written before, this has happened to thousands of homes across Massachusetts during the recent foreclosure crisis (a reason why the Massachusetts Legislature is presently considering a foreclosure title clearing bill). 

My client had been included in a lawsuit brought by the current owner of the foreclosed home and the lender who had done the void foreclosure.  After a lengthy court case, we reached a settlement with the lender agreeing to pay my client a cash settlement in exchange for her remaining interest in the home.

The settlement did not give my client a free home, nor did it make her rich.  It did, however, provide her with compensation for the lender’s disregard of Massachusetts foreclosure law, something that has become all too common in recent years.

These “Ibanez” problems continue to exist today, and have no easy solution.  If you find yourself in such a situation, contact me to see if I can be of help.

Foreclosure Title Bill Pending in Massachusetts Legislature

A pending bill is before the Massachusetts Legislature that would limit the time for former homeowners to challenge foreclosures against their homes.  This bill, which the Legislature introduced in the previous term, is intended to address the ramifications of U.S. Bank v. Ibanez, a seminal Massachusetts Supreme Judicial Court decision that has invalidated thousands of  foreclosures across Massachusetts.  Many of these homes that have been improperly foreclosed have been sold to third-party buyers who, despite having nothing to do with the underlining foreclosure, have a major title problem with their properties.

The bill would require homeowners to bring challenges to a foreclosure within three years of the foreclosure sale or forever be barred from doing so.  Presently, there really isn’t a deadline for raising such challenges; some suggest that the twenty-year deadline under the law of adverse possession may apply, but to my knowledge, this has never been tried in court.

Third-party owners of improperly foreclosed properties do have options for fixing title problems:  these owners can bring quiet title lawsuits against the former owners and lenders asking the court to fix the problem (or simply ask the former owner to deed over any interest they have remaining in the property).  These solutions, however, can be timely and costly, hence the reason why the title insurance industry continues to lobby for a title clearing bill.

This bill died last year over concerns that the deadline was too short for those homeowners who had been improperly foreclosed.  Governor Patrick sent the bill back with a recommendation that the deadline be increased to ten years, which kept the bill from passing,  This year, with a Republican governor, things could turn out differently.

Practice Pointers: Overcoming a Default Judgment


Homeowners facing foreclosure, like defendants in other types of lawsuits, sometimes find themselves in one of the toughest spots available: facing a default judgment.  A default judgment occurs when the defendant does not respond to the lawsuit.  This allows the plaintiff (the person bringing the lawsuit) to automatically get what they want.  In a post-foreclosure eviction, for example, the foreclosing entity automatically gets an execution (which allows them to obtain possession of the home).  A recent Boston Globe article discusses the rise of default judgments in debt collection cases and the shocking fact that many defendants were never notified about the lawsuit.  This applies equally to foreclosure defense cases as well.

What should someone do if they are the victim of a default judgment?  Get a lawyer . . . right away.  Default judgments, fortunately, can be lifted if the court is convinced there is a good reason for doing so.  A lawyer can help identify possible arguments to accomplish this.  For example, I have succeeded in lifting a default judgment based on the wrong date in the lawsuit’s paperwork.  Other possible grounds include challenging service of the lawsuit and raising extenuating circumstances for the failure to originally respond to the lawsuit.

A lawyer can also help you in determining how best to fight the underlining lawsuit against you.  As I heard judges state before, the court is more likely to remove a default judgment if you can show that you have a real defense to the case.
Are you facing a default judgment?  Contact me for a consultation.

Firm News: Sherwin Law Firm Succeeds in Raising Foreclosure Defense Claims for Massachusetts Homeowner

I’m pleased to write that I recently won a decision from Plymouth Superior Court allowing me to raise foreclosure defense claims against a servicer and lender who claimed to have performed a lawful foreclosure against my client.  These claims resulted from the servicer’s repeated refusal to consider my client for a loan modification, despite my client following up with the requested paperwork requests for over nine months.  I raised claims under Massachusetts’s Consumer Protection Law (“Chapter 93A”), promissory estoppel, and breach of contract.
The battle is far from over.  Here, the Court has merely allowed me to proceed with litigating these claims; it doesn’t mean I have won . . . yet.  However, I am pleased to get this case off the ground.  Often, one of the toughest parts of foreclosure defense is convincing a court that you have claims worth pursuing.  I can’t say whether my lawsuit will be successful, but I’m looking forward to giving my client her day in court on these important matters.
Are you facing a foreclosure related to a loan modification denial? Contact me right away for a consultation.

Jury Trials in Foreclosure Defense Cases

I’m happy to write that I won a post-foreclosure eviction case several weeks ago using a new defense that I had been working on for the past year.  One of the critical reasons for this victory, I believe, was my client’s decision to pursue a bench trial instead of a jury trial—a topic I want to discuss in this blog post.

The right to a jury trial depends on both the type of case and the court that the parties are in.  In Massachusetts, the particular cause of action determines whether a jury trial is available. Eviction (“summary process”) cases, for example, entitle parties to a jury trial.  A party needs to claim their right to a jury trial in the beginning of a case, or it is otherwise waived.

A non-jury trial goes before a judge and is called a “bench trial.”  In a bench trial, the judge hears all of the evidence presented by the parties and, like a jury, determines questions of fact.  For example, in a post-foreclosure eviction trial, the judge will decide whether the foreclosing entity complied with all of the foreclosure requirements.

In a bench trial, as opposed to a jury trial, a judge is required to present his or her findings of fact.  In other words, the judge has to explain the decision that he or she made, as opposed to a jury trial, where the jury only needs to give its verdict.

In my experience, I have found jury trials for foreclosure law issues to be extremely difficult.  The information is dense and difficult to explain to six non-lawyers who likely have no familiarity in this area of law.  More than once, I have seen jurors fall asleep during such trials!

The decision on whether a client should waive their right to a jury trial is theirs alone, and a single blog post cannot offer enough information to make this decision.  The point of this post is to encourage those involved in these cases to give serious thought about whether their case should go before a judge or jury. Rarely do “Perry Mason” moments occur in foreclosure defense; these defenses are often based on mountains of paperwork and uneventful testimony.  Because of this, jurors often may not understand the reasons why the foreclosure is void, even if the defect is crystal clear.  On the other hand, a defense based on a foreclosing entity’s blatant disregard of the law may be enough to excite a jury and therefore justify a jury trial.

With this in mind, give serious consideration to the type of trial you request in a foreclosure defense case.  Better yet, speak with an expert before making this decision.