In Massachusetts, the bank can foreclose your home through a nonjudicial process, which means it does not have to take you to court. (In some states, the foreclosing party must file a formal lawsuit against you to foreclose your home.) If there’s a chance you may go through a foreclosure in Massachusetts, you should find out more about the nonjudicial procedural requirements and foreclosure laws in your state. For example, you should know 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.
The following summary gives information about many of the main parts of Massachusetts’ foreclosure law along with citations to the statutes so you can read the law yourself.
Massachusetts’ foreclosure statutes are found in the Massachusetts General Laws Chapter 244.
You can find a link to the General Laws of Massachusetts on the Massachusetts legislature’s website at https://malegislature.gov. If you need help locating the statutes, see Finding Your State’s Foreclosure Laws.
We’ve summarized the main parts of Massachusetts’ foreclosure laws below. You can find more detailed articles on various aspects of Massachusetts’ foreclosure law in Nolo’s Massachusetts Foreclosure Law Center.
Foreclosures in Massachusetts are usually nonjudicial, which means they happen outside of court. Judicial foreclosures, which go through the court system, can also take place. (Learn more about nonjudicial and judicial foreclosures.)
Since most foreclosures in Massachusetts are nonjudicial, this article focuses on that process.
In Massachusetts, a foreclosing party must give two foreclosure notices to the defaulting borrower: a notice of default and right to cure, and a notice of sale. The borrower will also get a notice regarding the federal Servicemembers Civil Relief Act.
Notice of default and right to cure. The foreclosing party must hand deliver or mail a notice of default and right to cure to the borrower. Generally, the borrower gets 150 days to cure the default. Mass. Gen. Laws ch. 244, § 35A. The foreclosing party can reduce the cure period to 90 days if it can show that it made a good faith effort to negotiate a reasonable alternative to foreclosure with the borrower (which involved having at least one meeting with the borrower on the phone or in person), but was not successful in resolving the dispute. Mass. Gen. Laws ch. 244, § 35A. (The 150-day right to cure is only effective until December 31, 2015. As of January 1, 2016, the prior 90-day right to cure law will take the place of the 150-day right to cure law.)
Also, if the borrower does not respond to a mailed letter offering to negotiate an alternative to foreclosure, the foreclosing party can reduce the cure period to 90 days. Mass. Gen. Laws ch. 244 § 35A.
Servicemembers Civil Relief Act notice. If the borrower is still in default after the cure period expires, the foreclosing party typically files a complaint in court regarding the Servicemembers Civil Relief Act (SCRA). (Even though the foreclosure process is nonjudicial, the foreclosing party gets a declaration from the court about the borrower's military status to ensure that, at the end of the foreclosure, the title is not vulnerable to a challenge that the foreclosure sale was defective due to a SCRA violation.)
The foreclosing party 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 foreclosing party 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.
Massachusetts’ law provides certain protections to borrowers who take out a high-cost home loan. (A high-cost home loan is a type of mortgage loan that has particular characteristics and the annual percentage rate or points and fees exceed certain amounts.)
If the original lender (or its assignee) violates Massachusetts’ high-cost home loan law, the borrower can rescind the loan and use rescission as a defense to the foreclosure. The high-cost home loan statutes prohibit the lender from, among other things, charging prepayment fees and increasing the interest rate after a default. Mass. Gen. Laws ch. 183C § § 18, 15.
Lender is required to attempt to modify certain high-cost and other predatory loans. Mass. Gen. Laws ch. 244 § 35B.
“Reinstating” is when the borrower catches up on the defaulted mortgage's missed payments (plus fees and costs) in order to stop a foreclosure. (Learn more about reinstatement to avoid foreclosure.)
As discussed earlier, the borrower gets a 150-day right to cure the default and reinstate the mortgage, though this time period may be reduced to 90 days under certain circumstances. The borrower can only exercise the right to cure once during any three-year period. (This will change to five years in 2016.) Mass. Gen. Laws ch. 244 § 35A.
In some states, you can redeem (repurchase) your home within a certain period of time after the foreclosure.
Under Massachusetts law, the borrower does not get the right to redeem the home after a nonjudicial foreclosure. Mass. Gen. Laws ch. 244 § 18. (To get details on redemption after a 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 lender 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, the foreclosing party can get a deficiency judgment if it mails the borrower a “Notice of Intent to Foreclose and of Deficiency After Foreclosure of Mortgage” at least than 21 days prior to the sale. Mass. Gen. Laws ch. 244 § 17B.
To obtain the deficiency judgment, the foreclosing party must then file a lawsuit against the borrower within two years after the sale. Mass. Gen. Laws ch. 244 § 17A. (For a summary of the deficiency law in Massachusetts, see Massachusetts Laws on Post-Foreclosure Deficiency.)
If the former homeowner does not move out after the foreclosure, the new owner must first give a notice to quit (leave) and then can begin eviction proceedings.