• DYE CULIK PC | Consumer Protection Division

Notices Must be “Strictly” Accurate, or Foreclosure May be Void, Says Massachusetts Supreme Court in


Under the decision, when banks send certain pre-foreclosure notices to homeowners, those notices must “strictly comply” with the terms of the mortgage or else the subsequent foreclosure may be overturned.

The relevant portion of the mortgage is Paragraph 22, which is identical in virtually all mortgages in Massachusetts. This paragraph says that before a bank may accelerate the mortgage and start foreclosure, it must send a notice to the homeowner with certain disclosures. These disclosures include the nature of the default, the right to cure the default, and the right to file a lawsuit to stop the foreclosure.

In this case, the foreclosing bank, Emigrant Mortgage, sent an inaccurate pre-foreclosure acceleration notice to the homeowner. The notice informed her that she had the right to assert defenses in court, but did not disclose that she was the one who had to file a lawsuit.

Massachusetts is a state where foreclosure is usually conducted non-judicially, that is, without court oversight. Homeowners must file an affirmative lawsuit, rather than wait for the foreclosure to go through.

Because the notice did not, as the Supreme Judicial Court said, “strictly comply” with paragraph 22 of the mortgage, the foreclosure was void.

The decision is likely to be interpreted as prospective only, meaning that it may only apply to foreclosures  after the date of the decision, July 17, 2015.

The decision is here: Pinti v. Emigrant Mortgage Company [link to attachment]

#foreclosure #homeowner #mortgage