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Massachusetts Homeowner Succeeds in Defending Against Foreclosure Summary Process

Many foreclosure actions are complex, making them difficult to defend without assistance from a Massachusetts real estate attorney.  In a January 10, 2018 case before the Appeals Court of Massachusetts, a homeowner and her son were the defendants in a foreclosure summary process complaint brought by the mortgage company.  Although the defendants filed an answer pro se, the homeowner obtained counsel soon thereafter, who filed a new answer and counterclaims against the mortgage company.house

Following discovery, the mortgage company moved for summary judgment, contending that it had superior right and title to the property and that, due to the homeowner’s unsuccessful challenge of the validity of the foreclosure in 2011, her counterclaims were barred by res judicata.  The homeowner also moved for summary judgment, asserting that the mortgage company failed to provide proper notice of default.  Her motion was allowed, and judgment was entered.

The mortgage company then filed a notice of appeal, which was dismissed as premature due to the unresolved claims against the son.  After the mortgage company was granted a default judgment against the son, it filed a motion for reconsideration of its notice of appeal.  The appellate division denied it; however, its order allowed the mortgage company to file a new notice of appeal and thereafter perfect its appeal.  After the mortgage company filed the motions, the appellate division vacated the judgment for possession for the homeowner and entered judgment in favor of the mortgage company.  The homeowner subsequently appealed that decision.

On appeal, the homeowner argued that the appellate division lacked the authority to allow the mortgage company to file its appeal later than the deadline set by statute.  The appeals court agreed, noting that after all of the outstanding claims were resolved in the default judgment against the son, the deadline for any litigant in a summary process action to bring an appeal is within 10 days of the judgment.  The court went on to explain that since the deadline is jurisdictional, the courts require strict adherence to the short period to file an appeal.  The court further held that jurisdictional defects require dismissal.

Accordingly, since the mortgage company failed to timely file its appeal within the statutorily prescribed period, and since there was no authority to enlarge that appeal period, the court ruled that the appellate division erred in granting the mortgage company leave to do so.  The court voided the judgment entered by the appellate division in favor of the mortgage company.  In doing so, the original judgment of possession in favor of the homeowner was left in effect and unchallenged.

If you are facing a foreclosure action or other residential property issues, the Massachusetts real estate lawyers at Pulgini & Norton can assist you.  We represent homeowners and potential buyers in closings, property transactions, title actions, and more.  Schedule an appointment with one of our skilled attorneys by calling Pulgini & Norton at (781) 990-2200 or contacting us online.

More Blog Posts:

Massachusetts Land Court Holds Petition to Vacate Foreclosure Untimely, Massachusetts Real Estate Lawyer Blog, published July 12, 2016

Massachusetts Homeowners Defeat Foreclosure Action Based on Tax Title Liens, Massachusetts Real Estate Lawyer Blog, published September 4, 2017

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