Ruling upheld on sale of property

Ownership status of foreclosures clouded

By Jenifer B. McKim
Globe Staff / October 15, 2009

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The ownership status of hundreds, and possibly thousands, of foreclosed properties in Massachusetts became muddier yesterday after a state Land Court judge reaffirmed his March decision that invalidated the sales of two Springfield homes because of improper paperwork.

In a 27-page ruling, Justice Keith C. Long described a convoluted process in which mortgages for the two homes were transferred multiple times without being properly recorded, as required by state foreclosure law. He said any problems the banks now face to clean up title questions - which could include redoing the foreclosures altogether - are “entirely of their own making.’’

“The issues in this case are not merely problems with paperwork or a matter of dotting i’s and crossing t’s,’’ Long wrote. “Instead, they lie at the heart of the protections given to homeowners and borrowers by the Massachusetts Legislature.’’

The ruling drew praise and criticism from attorneys, individuals, and housing advocates who had been anxiously awaiting word from the court.

Before the March decision, many lenders believed they could complete foreclosure transactions and later file formal proof they held the mortgages. Since then, however, some lenders have stopped selling foreclosed properties out of fear the sales later could be voided, and many title companies have refused to insure homes with ownership issues. That has affected the ability of communities and nonprofits to buy foreclosed homes in some of the state’s hardest hit areas. It has also made it more difficult for individual buyers and sellers of foreclosed properties to close deals.

The attorneys who filed the lawsuit that prompted Long’s original ruling said they are considering an appeal of yesterday’s decision. “He has thrown the entire nature of foreclosure work and thousands of titles back up in the air and doesn’t seem to care,’’ said Lawrence Scofield, an attorney with Ablitt Law Offices in Woburn, which represented the lenders in three consolidated cases ruled on by Long.

The Springfield lawsuit was filed by foreclosing lenders who said they wanted to remove a “cloud’’ from the titles of three properties created because of where they chose to publish foreclosure auction notices. But Long focused on a secondary issue - whether the foreclosures complied with the law because they did not officially name the mortgage holders.

During the housing boom, millions of mortgages were bundled into bonds and sold to investors, a process that often resulted in a twisted paper trail. Long’s decision detailed how mortgages for two of the Springfield homes changed hands as many as three times without any of the information appearing on the public record. The final owners - US Bank National Association and Wells Fargo Bank - did not record that they owned the mortgages until 14 months after the sales, he said.

Those in favor of the ruling said it will help those fighting foreclosures to find a way to remain in their homes and permit some who have already moved on to regain their homes. Long’s decision also bolsters a growing national movement among housing advocates, and some courts, to push lenders to produce accurate documentation before completing a foreclosure.

Nadine Cohen, managing attorney in the consumer rights unit at Greater Boston Legal Services, said the issues brought up in the case support the need for a state law to mandate that foreclosures of owner-occupied homes be overseen by a judge.

“Borrowers have a right to know who owns their mortgage, and they have a right to make sure that the entity that is foreclosing has a legal right to foreclose,’’ Cohen said. “For too long these lenders have been ignoring the foreclosure laws.’’

Boston attorney Paul Collier, who represented one of the defendants in the Springfield case, Antonio Ibanez, said his client never expected to win back the property he purchased for $115,000 and later lost to foreclosure. He said Ibanez overpaid for the home, which he could not afford. He said Ibanez will likely wait until the appeal process is completed before deciding whether to take any action.

Collier said there probably won’t be a flood of former homeowners fighting to get back their properties as a result of Long’s decision, but there could be enough to create problems for new owners, lenders, title companies, auctioneers, and others involved in the sale of foreclosed properties. “You are going to see a ton of payouts here,’’ he said.

Boston City Housing chief Evelyn Friedman said that although the decision protects homeowners trying to ward off foreclosures, it also is delaying the city’s efforts to clean up areas plagued by abandoned homes. Already, the judge’s March ruling stymied the city’s effort to buy 20 bank-owned properties.

“The unfortunate part is that many people already have been foreclosed upon and now their properties can’t be resold,’’ Friedman said. “That holds up quite a bit of our work in revitalizing the neighborhoods that have been most devastated.’’

Because of the ruling, Developer John O’Riordan said he worries he might now lose an investment property in Jamaica Plain he bought from a bank last year for $480,000 and renovated for $200,000. Now he can’t sell the units because of title issues and has run out of money.

“The real estate situation in Massachusetts is on its knees and this does not help the cause at all,’’ O’Riordan said.


Read the ruling

Read the ruling
Full text of the Massachusetts Land Court ruling.