This guide is narrowly focused on a particular defense to a foreclosure action in Massachusetts.
The legal process leading up to a foreclosure sale involves many required notices to be served upon you, and very specific procedures that need to be followed by the foreclosing entity. These legal requirements are stated in M.G.L. c. 244 Section 14 (Massachsusetts Foreclosure Procedure Act). This guide is only focusing on a narrow segment of those requirements.
Accordingly, the first step is to review the notices and compare the identity of the entity that is attempting to foreclose on your property with the entity that you gave the mortgage to.
Research the title on your property
Go to the Registry of Deeds in the County in which your property is located (in-person or online) and research the chain of title to your property. You want to make sure that the mortgage that you gave is recorded. and you need to take note of the entity that is listed as the Mortgagee. If this entity is not the same one that you gave the mortgage to, you should look for recorded documents, such as assignments, which show that the entity attempting to foreclose on your property is the recorded holder of the mortgage.
Ensure strict construction with the Massachsusetts Foreclosure Procedure Act
Massachusetts Courts require strict construction of the requirements that need to be followed by a foreclosing party under M.G.L. c. 244 Section 14 (Massachsusetts Foreclosure Procedure Act). Therefore, all the necessary procedures and notices need to be followed to the letter of the law. If the incorrect party is listed on a notice, or a foreclosing entity has not "properly" been assigned the mortgage pursuant to Massachusetts law, the foreclosing entity may not be considered to be the holder of the mortgage "at the time" of the foreclosure. This could invalidate the foreclosure itself.
Contact the Lender/Foreclosing Entity
It is important for you, or your representative to contact the Lender, their attorneys, or other representatives, and raise these issues, as it will give you a defense against foreclosure and puts the Lender in the position of considering whether to begin the foreclosure process again or make a deal with you. This may give you the time you need to rectify your financial world and save your home.