Right to challenge a foreclosure that did not strictly follow the law
U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011)
In plain words
Massachusetts foreclosures usually happen outside court, but the foreclosing party must strictly follow the power of sale. Massachusetts’ highest court has held that a sale is void if the foreclosing party did not hold the mortgage when it gave notice and sold, or if the default notice did not strictly follow the mortgage. You can raise these problems in a lawsuit before the sale or as a defense to an eviction case after it.
Who is protected
Massachusetts homeowners facing or after a power-of-sale foreclosure.
When it applies
- Only in Massachusetts.
- Only after a notice of default, once a sale date is set or after the foreclosure sale.
What you can do
Organize your evidence
Collect the mortgage, every assignment (from the Registry of Deeds) and the default notice to check dates and wording.
Open the toolGet ready for court
Ask legal aid about filing for an injunction before the sale, or raising these defenses in housing court after it.
Deadline: Before the auction date if possible
Open the toolCompare your options
Compare a court challenge with a loan modification or other options.
Open the tool
Honest limits
- Some of these rulings apply only to foreclosures after the decision date (Pinti applies prospectively except for pending cases).
- This is general education, not legal advice. Laws change and details depend on your papers and your court; check the current law or ask a lawyer or legal aid.
The law
- Court decisionIbanez — must hold the mortgage
U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011)
What it says: A foreclosing party must hold the mortgage at the time of notice and sale.
Read the official texthttps://www.courtlistener.com/opinion/2482179/us-bank-national-association-v-ibanez/ - Court decisionPinti — strict compliance with the default notice
Pinti v. Emigrant Mortg. Co., 472 Mass. 226 (2015)
What it says: A sale is void if the default notice did not strictly comply with the mortgage’s notice terms.
Read the official texthttps://www.courtlistener.com/opinion/2818093/pinti-v-emigrant-mortgage-co-inc/
Court cases
- Homeowner wonCited for this rightU.S. Bank National Ass'n v. Ibanez
U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (2011)
a foreclosing party must hold the mortgage by valid assignment at the time of the notice of sale and the sale, or the foreclosure is invalid
- Partial winCited for this rightEaton v. Federal National Mortgage Ass'n
Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass. 569 (2012)
a foreclosing mortgagee must either hold the note or act on behalf of the note holder, a rule applied to foreclosures after the decision
- Homeowner wonCited for this rightPinti v. Emigrant Mortgage Co.
Pinti v. Emigrant Mortg. Co., 472 Mass. 226 (2015)
strict compliance with the mortgage's notice-of-default provisions is a condition of a valid foreclosure sale
- Partial winCited for this rightCulhane v. Aurora Loan Services
Culhane v. Aurora Loan Servs., 708 F.3d 282 (1st Cir. 2013)
a mortgagor may contest the validity of a MERS assignment to the foreclosing entity, although the MERS framework itself is lawful
- Homeowner lostSame topicBoren v. U.S. National Bank Ass'n
Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99 (5th Cir. 2015)
a lender may abandon a prior acceleration by giving notice that it seeks less than the full accelerated balance, which restarts the four-year limitations period
- Homeowner lostSame topicMartins v. BAC Home Loans Servicing, L.P.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013)
a mortgage servicer acting for a properly assigned mortgagee may foreclose in Texas without possessing the original note, and an oral promise to modify a large loan is not enforceable
- Partial winSame topicReinagel v. Deutsche Bank National Trust Co.
Reinagel v. Deutsche Bank Nat'l Tr. Co., 735 F.3d 220 (5th Cir. 2013)
a Texas borrower may challenge an assignment of the loan on any ground that renders it void, though not on grounds that make it merely voidable
- Homeowner wonSame topicJerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U.S. 573 (2010)
the FDCPA's bona fide error defense does not excuse a debt collector's incorrect interpretation of what the Act requires
- Homeowner lostSame topicWhittier v. Ocwen Loan Servicing, L.L.C.
Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App'x 833 (5th Cir. 2014) (per curiam) (unpublished)
a RESPA claim against a servicer fails without evidence of actual damages caused by the violation
- Homeowner lostSame topicPriester v. JP Morgan Chase Bank, N.A.
Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013)
a home-equity borrower's constitutional challenge was subject to the four-year residual limitations period
Related rights
Right to a mailed notice at least 14 days before a foreclosure auction
Mass. Gen. Laws ch. 244, § 14
Before a Massachusetts foreclosure auction, the notice of sale must be published once a week for three weeks and mailed by registered mail to the owner at least 14 days before the sale. If the lender may seek a deficiency, it must also mail a separate warning at least 21 days before the sale.
Read this rightTenants can be evicted after foreclosure only for just cause
Mass. Gen. Laws ch. 186A, § 2
If you rent a home in Massachusetts and a bank or other foreclosing owner takes it, that owner cannot evict you without just cause, such as not paying rent. The exception is when a real buyer has signed a purchase agreement for the property.
Read this rightThe right to be heard in court, and to speak for yourself
U.S. Const. amend. XIV, § 1Due Process Clause
Due process means that before the government, through a court, takes your property, you must get a meaningful chance to be heard. In federal court, you have a legal right to present your own case without a lawyer. Most state courts also let people represent themselves, under state rules.
Read this rightPause a court case while on military duty
50 U.S.C. § 3932(b)(1)
If you are in military service and get sued, the court must pause the case for at least 90 days if you ask and show that your duty keeps you from appearing. Before a court can enter a default judgment against you, the other side must file a sworn statement saying whether you are in the military, and the court may appoint a lawyer for you.
Read this rightThe right to real notice before the government takes or sells your home
U.S. Const. amend. XIV, § 1Due Process Clause
Before a state or county sells your property — for example at a tax sale, or through a court foreclosure — the Constitution requires notice that is reasonably likely to actually reach you. If the government knows your address, publishing a notice in the newspaper is not enough. If a mailed notice comes back unclaimed, the government must take extra reasonable steps to reach you, if it practicably can.
Read this rightThe government cannot keep your home equity beyond the tax debt
U.S. Const. amend. VTakings Clause
If your home is taken or sold to pay property taxes, the government may collect what you owe, but it may not keep the extra value. Keeping the surplus is a "taking" of your property without just compensation, which the Fifth Amendment forbids (Tyler v. Hennepin County, 2023). You may be able to claim the surplus, but you usually must follow your state's claim process and deadlines.
Read this right