Foreclosure process
In the February 8, 2010 issue of Massachusetts Lawyers Weekly, James L. Rogal, who practices at Ablitt Law Offices in Woburn, MA representing mortgage lenders and servicers doing foreclosures, wrote an opinion piece titled “Borrowers bear responsibility in foreclosures.” What may be of interest is his explanation of the foreclosure process in Massachusetts. There is not the swiftness with the foreclosure process that there is for other legal actions such as eviction or wage garnishment. Banks rarely begin foreclosure after the first month of default. Only after the borrower is already several months in default does the mortgage lender or servicer send the borrower a notice of default giving him 30 days to cure the default. The next step is that the borrower is served with a 90-day right-to-cure letter as required by G.L.c. 244, s.35A (Acts of 2007) in the event the default is not cured or the borrower does not enter into some type of workout with the mortgagee. The bank cannot conduct any foreclosure activity during this 90-day period other than collecting principal and interest. Only after the 90-day period if the borrower is still in default can the bank file a complaint to foreclose with either the Land Court or the Superior Court. In about three to four months, the Land Court issues an order of notice with a return day approximately 45 to 60 days later. At that time, the formal notice of foreclosure is served on the borrower. The foreclosure sale by public auction is scheduled after the return of service is filed and after the judgment is issued by the court. The bank serves the borrower with a notice of sale as required by G.L.c.244, s.14. This notice of sale period lasts an additional 25 to 30 days. This whole process from service of the 90-day right-to-cure letter to completion of the foreclosure sale is about 160 to 180 days if the complaint is filed in Land Court and a little less if in Superior Court.
The entire process definitely lasts longer than a typical Chapter 7 bankruptcy case. While these steps are particular to Massachusetts, banks have to go through the procedures of the local state courts in the home’s jurisdiction in order to recover their interest in the property. The process is not easy for banks, but when they are faced with no other choice after a borrower’s default, they need to begin. Borrowers can take from this the lesson that the best way to protect their own liability after the start of foreclosure is to seek a discharge of their debts if they qualify to do so.
Disclaimer: This does not constitute legal advice. Please contact a bankruptcy or foreclosure attorney in your jurisdiction for questions related to your individual situation.
