If you're facing a foreclosure in Massachusetts, you should find out more about the process and the laws that will affect you. In this article, you'll learn what type of notice you’ll receive before the foreclosure sale, whether you get the right to cure the default, if you could be liable for a deficiency judgment after the sale, and more.
Massachusetts’ foreclosure statutes are found in the Massachusetts General Laws Chapter 244. Below you’ll find details on foreclosure laws in Massachusetts, with citations to statutes so you can learn more. Statutes change, so checking them is always a good idea.
How courts and agencies interpret and apply the law can also change. And some rules can even vary within a state. These are just some of the reasons to consider consulting an attorney if you’re facing a foreclosure.
Because most foreclosures in Massachusetts are nonjudicial, this article focuses on that process.
Mortgages and deeds of trust often contain a clause that requires the lender to send a notice, commonly called a “breach letter,” informing the borrower that the loan is in default before accelerating the loan and proceeding with foreclosure.
In the case of Thompson v. JPMorgan Chase Bank, N.A., No. 18-1559, 2019 WL 493164 (1st Cir. Feb. 8, 2019), the United States Court of Appeals for the First Circuit held that a foreclosure in Massachusetts was void because the lender sent a breach letter that was potentially deceptive. (To learn more, read Nolo's legal update here.)
In Massachusetts, the bank generally gives three foreclosure notices to a defaulting borrower: a notice of default and right to cure, a notice of intent to foreclose and of deficiency after foreclosure, and a notice of sale. The borrower will also typically get a notice about a hearing regarding the federal Servicemembers Civil Relief Act (SCRA).
Notice of default and right to cure. The bank must hand deliver or mail a notice of default and right to cure to the borrower. The borrower gets 90 days to cure the default. (Mass. Gen. Laws ch. 244, § 35A). Also, for loans with high-cost, predatory, or unfair features, the bank has to send a notice along with the notice of default and right to cure that explains the borrower’s right to pursue a loan modification. (Mass. Gen. Laws ch. 244 § 35B(c)).
Notice of intent to foreclose and of deficiency after foreclosure of mortgage. If the bank wants to get a deficiency judgment (see below), it has to mail the borrower a “Notice of Intent to Foreclose and of Deficiency After Foreclosure of Mortgage” at least 21 days before the sale date. (Mass. Gen. Laws ch. 244 § 17B).
Servicemembers Civil Relief Act notice. As part of the foreclosure, the bank typically files a complaint in court regarding the Servicemembers Civil Relief Act (SCRA). Even though the foreclosure process is nonjudicial, the bank gets a declaration from the court about the borrower's military status to ensure that, at the end of the foreclosure, the title isn't vulnerable to a challenge that the foreclosure sale was defective due to a SCRA violation. The bank serves a copy of the complaint to the borrower, which gives the borrower the opportunity to file an answer if he or she is in the military. The only purpose of this proceeding is to determine whether the borrower is in active military service—or recently discharged—and entitled to foreclosure protections under the SCRA.
Notice of sale. The bank must mail a notice of sale to the homeowner at least 14 days before the sale date. It must also publish the notice of sale once a week for three consecutive weeks. (Mass. Gen. Laws ch. 244 § 14).
“Reinstating” is when the borrower catches up on the defaulted mortgage's missed payments, plus fees and cost, in order to stop a foreclosure. As discussed earlier, the borrower gets 90 days to cure the default and reinstate the loan. Also, the terms of the mortgage might provide additional time to reinstate.
In some states, the foreclosed homeowner can redeem the home within a specified period of time after the foreclosure. Under Massachusetts law, however, the borrower doesn’t get the right to redeem the home after a nonjudicial foreclosure. (Mass. Gen. Laws ch. 244 § 18). (To get details on redemption and foreclosure in Massachusetts, see Nolo’s article If I lose my home to foreclosure in Massachusetts, can I get it back?)
When the total mortgage debt exceeds the foreclosure sale price, the difference is called a “deficiency.” Some states allow the bank to seek a personal judgment, called a “deficiency judgment,” against the borrower for this amount, while other states prohibit deficiency judgments with what are called anti-deficiency laws.
In Massachusetts, as noted earlier, the bank can get a deficiency judgment if it sends a written notice at least 21 days before the foreclosure sale. (Mass. Gen. Laws ch. 244 § 17B). To get the deficiency judgment, the bank must then file a lawsuit against the borrower within two years after the sale. (Mass. Gen. Laws ch. 244 § 17A).
If the former homeowner doesn't move out after the foreclosure, the new owner must first give a notice to quit (leave) and then can begin eviction proceedings.
If you have questions about the foreclosure process in Massachusetts or want to learn about potential defenses to a foreclosure, consider talking to a foreclosure lawyer. It’s also a good idea to make an appointment to speak to a HUD-approved housing counselor, especially if you want to learn about different loss mitigation (foreclosure avoidance) options.