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Massachusetts Land Court Holds Petition to Vacate Foreclosure Untimely

If certain due process protections were not provided during foreclosure proceedings, this may be grounds to vacate a judgment of foreclosure. In Town of Brewster v. Owners Unknown (Mass. Land Ct. July 8, 2016), the Massachusetts Land Court reviewed a petition to vacate a final judgment of foreclosure of a tax lien, based on lack of notice. The judgment had been entered over 25 years earlier, when the town obtained a 1991 judgment to foreclose its tax lien against “unknown owners.” The petitioners in Town of Brewster claimed a title interest in the property as heirs of the owner, citing an 1851 deed. The petitioners also asserted that the lack of notice to the heirs violated due process, thus entitling them to vacate the judgment and redeem the property by paying any taxes properly due.foreclosure proceeding

The case was originally commenced in 1986, after the town sought unpaid taxes on the property. The land court examiner filed a title report identifying three persons as parties entitled to notice and requested current addresses from the town. Two of the parties were given notice via certified mail. However, there was no return receipt from one of the parties, despite two attempts to provide notice. The town also published notice of the case in the local newspaper. In 1991, the court issued a final judgment, ordering that all rights of redemption were forever foreclosed and barred. In 2015, the petitioner requested that the judgment be vacated. The town argued that even if a due process violation occurred, the petitioners waited too long after learning of the foreclosure judgment to bring the action, since he had first learned of it in 2012.

In Massachusetts, a petition to vacate a foreclosure must generally be filed within one year after the final entry of the decree. Ordinarily, this one-year period is strictly applied to petitions to vacate a foreclosure of the right of redemption. However, the strict observance of the one-year time limit can be excused if a party’s right to due process has been violated. In addition, the failure to provide notice of a tax title foreclosure proceeding to a party entitled to such notice can constitute a denial of due process.

In Town of Brewster, the land court explained that although the one-year limit for redemption may not bar a petition to vacate when there is a clear due process violation, it does not necessarily extend that time period indefinitely. The land court also noted the strong public policy interest in giving conclusiveness to judgments foreclosing tax titles. As a result, the court found that the nearly two-year delay in filing the petition, well over the one-year period provided by statute, was not excusable.

If you have been threatened with a foreclosure or are currently involved in a foreclosure action, a property lawyer can represent your interests in the proceedings. At Pulgini & Norton, our Massachusetts real estate attorneys provide legal assistance to clients in a variety of residential property matters, such as foreclosures and mortgages, obtaining or disputing a building permit, zoning issues, easements, and more. To speak with a knowledgeable lawyer regarding your real estate concerns, contact Pulgini & Norton by phone at (781) 990-2200 or through our website.

More Blog Posts:

Massachusetts Appeals Court Reviews Summary Process Action in Foreclosure Dispute, Massachusetts Real Estate Lawyer Blog, published May 23, 2016

Massachusetts Appeals Court Reverses Summary Judgment, Allows Homeowner to Continue Suit Against Mortgage Company, Massachusetts Real Estate Lawyer Blog, published November 17, 2015

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