August 2022
“Foreclosure by entry . . . does not require the mortgagee to send a notice pursuant to ¶ 22 [of the mortgage contract] before making an entry for possession... The Defect in the notice of default sent by Emigrant is thus irrelevant to the question of whether the plaintiffs may proceed with foreclosure by entry.”
Judge Gorton
FORECLOSURE BY ENTRY
Physical entry on the property, recordation of a Certificate of Entry and expiration of three year-redemption period = the third, independent path to foreclosure in Massachusetts
A defective contractual notice of default does not affect the validity of a foreclosure by entry.
In Emigrant Mortgage Company, Inc. v. Bourke, 2022 WL 3566832, --- F.Supp.3d --- (D.Mass. Aug. 18, 2022)(“Bourke II”), the U.S. District Court reviewed the potential effect that a defective contractual notice of default may have on a mortgagee’s foreclosure by entry and possession under G.L. c. 244, § 1. Following a failed summary process action for possession, which was dismissed on appeal as a result of defects in the mortgagee’s contractual notice of default that rendered the mortgagee’s foreclosure by exercise of the statutory power of sale void, see Retained Realty, Inc. v. Bourke, 2019 Mass.App.Div. 183, at 2-3, the foreclosure sale purchaser brought a subsequent action in the U.S. District Court seeking to recover possession of the foreclosed premises based upon the mortgagee’s foreclosure by entry and possession. Bourke II, 2022 WL 3566832, at 2. Unlike a foreclosure by exercise of the statutory power of sale, which is a remedy that is incorporated into the terms of the mortgage contract, a foreclosure by entry and possession is purely statutory. Cf. id. at 4-5. Accordingly, the U.S. District Court determined that compliance with the terms of the mortgage – specifically the contractual notice requirement found in paragraph 22 – is not required to affect a valid foreclosure by entry and possession under G.L. c. 244, § 1. See id. at 5.”
A link to an article in Massachusetts Lawyers Weekly about this matter has been linked below:
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