Massachusetts Servicing Reference Guide
- Kacey Olson
| Citation | Topic | Requirement |
| Mass. Gen. Laws Ann. ch. 244, §35B(f) | Certification of Compliance - Non-Judicial | (f) Prior to publishing a notice of a foreclosure sale, as required by section 14, the creditor, or if the creditor is not a natural person, an officer or duly authorized agent of the creditor, shall certify compliance with this section in an affidavit based upon a review of the creditor's business records. The creditor, or an officer or duly authorized agent of the creditor, shall record this affidavit with the registry of deeds for the county or district where the land lies. The affidavit certifying compliance with this section shall be conclusive evidence in favor of an arm's-length third party purchaser for value, at or subsequent to the resulting foreclosure sale, that the creditor has fully complied with this section and the mortgagee is entitled to proceed with foreclosure of the subject mortgage under the power of sale contained in the mortgage and any 1 or more of the foreclosure procedures authorized in this chapter; provided, that the arm's-length third party purchaser for value relying on such affidavit shall not be liable for any failure of the foreclosing party to comply and title to the real property thereby acquired shall not be set aside on account of such failure. The filing of such affidavit shall not relieve the affiant, or other person on whose behalf the affidavit is executed, from liability for failure to comply with this section, including by reason of any statement in the affidavit. For purposes of this subsection, the term ''arm's-length, third party purchaser for value'' shall include such purchaser's heirs, successors and assigns. |
| Mass. Gen. Laws Ann. ch. 183, §27 | Itemized Accounting of Disposition of Proceeds - Non-Judicial | The holder of a mortgage of real estate, or the holder's representatives, shall provide to the mortgagor or the mortgagor's heirs, successors or assigns a written notice containing an itemized accounting of the disposition of the proceeds arising from a sale under the power of sale including, but not limited to, the sale price, legal fees, auctioneer fees, publication costs and other fees, and any surplus due to the mortgagor, within 60 days after the receipt of such funds provided, that if such sale is subject to further legal proceedings, such accounting shall be stayed until the conclusion of such proceedings. |
| MA Mortgage Lender and Broker Laws | Mass. Gen. Laws Ann. ch. 183, §59 | Late Payment Fees | In no event, in assessing a penalty because of the delinquency in making all or any part of a periodic payment under a mortgage note, shall the penalty or late charge exceed 3 per cent of the amount of principal and interest overdue, and in calculating the penalty or late charge, any amount of the periodic payment representing estimated tax payments required by the terms of the mortgage note or deed shall not be included. |
| Mass. Gen. Laws Ann. ch. 244, §35B(c) | Modification Evaluation Written Assessment | Not more than 30 days following receipt of the borrower's notification that the borrower intends to pursue a modified mortgage loan, a creditor shall provide the borrower with its assessment, in writing, under subsection (b). The assessment shall include, but not be limited to: (i) a written statement of the borrower's income, debts and obligations as determined by the creditor; (ii) the creditor's net present value analysis of the mortgage loan; (iii) the creditor's anticipated net recovery at foreclosure; (iv) a statement of the interests of the creditor; and (v) a modified mortgage loan offer under the requirements of this section or notice that no modified mortgage loan will be offered. If a creditor offers a modified mortgage loan, the offer shall include the first and last names and contact phone numbers of the creditor's representative; provided, that the creditor shall not assign more than 2 creditor's representatives responsible for negotiating and approving the terms of and modifying the mortgage loan. The assessment shall be provided by first class and certified mail. A creditor shall be presumed to have provided the assessment to the borrower if the creditor provides proof of delivery through the United States Postal Service or similar carrier. |
| Foreclosure Prevention Options / Mass. Regs. Code tit. 209, §56.05(7) | Modified Mortgage Loan Offer | If a creditor offers a modified mortgage loan, the creditor must provide the borrower with the first and last names and contact phone numbers of not more than 2 creditor's representatives responsible for implementing the modified mortgage loan offer. A creditor will be presumed to have provided the written assessment to the borrower if the creditor provides proof of delivery through the United States Postal Service or similar carrier. |
| Foreclosure and Redemption of Mortgages / Mass. Gen. Laws Ann. ch. 244, 17B | Notice of Intention to Foreclose and Of Deficiency after Foreclosure of Mortgage | The lender must send notice of its intention to charge for a deficiency to the borrower at least 21 days before the sale. The written notice must state the lender's intention to foreclose the mortgage and must be mailed, postage prepaid, by registered mail with return receipt requested, to the defendant sought to be charged with the deficiency at the defendant's last address then known to the lender, together with a warning of liability for the deficiency. |
| Foreclosure and Redemption of Mortgages / Mass. Gen. Laws Ann. ch. 244, 17B | Notice of Intention to Foreclose and Of Deficiency after Foreclosure-Affidavit of Mailing | Along with the Notice of Intention to Foreclosure, a lender must also sign and swear to an affidavit within 30 days after the foreclosure sale. An affidavit made within the time specified will be prima facie evidence in such action of the mailing of the notice. |
| Mass. Gen. Laws Ann. ch. 140, §90B | Notice of Intent to Foreclose - Second Lien - Non-Judicial | At least fifteen days prior to the commencement of any foreclosure proceedings the lender shall send to the borrower by registered mail a statement of his intention to foreclose which shall specify the amount of principal, interest and other indebtedness, if any, owing and accruing under the note and mortgage. Failure by the lender to comply with the provisions of this paragraph shall suspend his rights until such time as he complies with said provisions. |
| Foreclosure and Redemption of Mortgages / Mass. Gen. Laws Ann. ch. 244, §14 | Notice of Sale - Non-Judicial | Within 30 days prior to the date of sale, but at least 14 days prior to the date of sale, the Notice of Sale must be sent to: (1) the owners of record of the equity of redemption; and (2) all persons of record who hold an interest in the property junior to the mortgage being foreclosed (However, any such person may waive this notice at any time, whether prior or subsequent to the date of sale, and the waiver will be deemed to constitute the lender's compliance with this notice requirement for all purposes.). |
| Title to Real Property / Mass. Gen. Laws Ann. ch. 183, §55(a) | Notice to Person Transmitting Loan Payoff | Within 45 days of receipt of full payment and satisfaction of the conditions of a mortgage and whether or not the lender or servicer has withheld the fee for recording a discharge, a lender or servicer must: (1) record a duly executed and acknowledged discharge and provide to the closing attorney, settlement agent or other person transmitting the payoff a copy of the discharge, together with the recording information of the discharge; or (2) provide to the closing attorney, settlement agent or other person transmitting the payoff a duly executed and acknowledged discharge. |
| Mass. Regs. Code tit. 209, §32.34(1) | Notice to Purchasers or Assignees | This notice must be provided to the purchaser or assignee of a high-cost home loan. |
| Foreclosure and Redemption of Mortgages / Mass. Gen. Laws Ann. ch. 244, §15A | Notice to Tenants of Foreclosed Property | A lender taking possession of mortgaged premises prior to foreclosure or a lender conveying title to mortgaged premises must, within 30 days of taking possession or conveying title, notify all residential tenants of the premises, and the office of the assessor or collector of taxes of the municipality in which the premises are located and any persons, companies, districts, commissions or other entities of any kind which provide water or sewer service to the premises, of the taking of possession or conveyance of title. |
| Mass. Gen. Laws Ann. ch. 244, §35A(i) | Prohibited Fees During Default Cure - Non-Judicial | (i) To cure a default prior to acceleration under this section, a mortgagor shall not be required to pay any charge, fee or penalty attributable to the exercise of the right to cure a default. The mortgagor shall pay late fees as allowed pursuant to section 59 of chapter 183 and per-diem interest to cure such default. The mortgagor shall not be liable for any attorneys' fees relating to the mortgagor's default that are incurred by the mortgagee or anyone holding thereunder prior to or during the period set forth in the notice required by this section. The mortgagee, or anyone holding thereunder, may also provide for reinstatement of the note after the 150?day notice to cure has ended. |
| Mass. Gen. Laws Ann. ch. 244, §12 | Report on Oath of the Sale - Non-Judicial | The person selling shall, within ten days after the sale, file in the clerk's office a report on oath of the sale and of his doings, and the court may confirm the sale or set it aside and order a re-sale. Any person interested may appear or be summoned, and the order of the court confirming the sale shall be conclusive evidence against all persons that the power of sale was duly executed. |
| Foreclosure and Redemption of Mortgages / Mass. Gen. Laws. Ann. ch. 244, §35A(b) | Right to Cure Your Mortgage Default Notice | A borrower of residential property has a 150-day right to cure a default of a required payment as provided in the residential mortgage or note secured by the residential property. A borrower who fails to respond within 30 days to any mailed communications offering to negotiate a reasonable alternative to foreclosure sent via certified and first class mail or similar service by a private carrier from the lender will be deemed to have forfeited the right to a 150-day right to cure period and will be subject to a right to cure period lasting 90 days. |
| Foreclosure Prevention Options / Mass. Regs. Code tit. 209, §56.09 | Right to Request a Mortgage Loan Modification Notice | A creditor must send a Right to Request a Mortgage Loan Modification notice to a borrower who has a certain mortgage loan at the same time as the Right to Cure notice. A copy of the Right to Request a Mortgage Loan Modification notice must be filed with the attorney general's office at the same time as delivery to the borrower. |
Mass. Gen. Laws Ann. ch. 186, §13A | Tenants of Foreclosed Property - Judicial | Upon a foreclosure of residential real property pursuant to chapter 244, a tenant, occupying a dwelling unit under an unexpired term for years or a lease for a definite term in effect at the time of the foreclosure by sale, shall be deemed a tenant at will. Foreclosure shall not affect the tenancy agreement of a tenant whose rental payment is subsidized under state or federal law and the foreclosing entity shall assume the lease and rental subsidy contract with the rental subsidy administrator. Section 2. Notwithstanding any general or special law to the contrary, a foreclosing owner shall not evict a tenant except for just cause or unless a binding purchase and sale agreement has been executed for a bona fide third party to purchase the housing accommodation from a foreclosing owner. Section 3. Within 30 days of the foreclosure, the foreclosing owner shall post in a prominent location in the building in which the rental housing unit is located a written notice stating the names, addresses, telephone numbers and telephone contact information of the foreclosing owner, the building manager or other representative of the foreclosing owner responsible for the management of such building and stating the address to which rent and use and occupancy charges shall be sent. This requirement shall be satisfied if the foreclosing owner or someone acting on his behalf has: (i) posted in a prominent location in the building; (ii) mailed by first class mail to each unit; (iii) and slid under the door of each unit in the building a document stating the names, addresses, and telephone contact information of the foreclosing owner, the building manager or other representative of the foreclosing owner responsible for the management of such building and stating the address to which rent and use and occupancy charges shall be sent. A foreclosing owner shall not evict a tenant for actions that constitute just cause unless the foreclosing owner has delivered to each tenant at the time of delivery of written notice pursuant to this section, a written disclosure of the tenant's right to a court hearing prior to eviction. Section 4. (a) A foreclosing owner shall not evict a tenant for the following actions that constitute just cause until 30 days after the notice required by section 3 is posted and delivered: (i) the tenant has failed to pay the rent in effect prior to the foreclosure or failed to pay use and occupancy charges, as long as the foreclosing owner notified the tenant in writing of the amount of rent or the amount of use and occupancy that was to be paid and to whom it was to be paid; (ii) the tenant has materially violated an obligation or covenant of the tenancy or occupancy, other than the obligation to surrender possession upon proper notice, and has failed to cure such violation within 30 days after having received written notice thereof from the foreclosing owner; and (iii) the tenant who had a written bona fide lease or other rental agreement which terminated, on or after August 10, 2010, has refused, after written request or demand by the foreclosing owner, to execute a written extension or renewal thereof for a further term of like duration and in such terms that are not inconsistent with this chapter. (b) A foreclosing owner shall not evict a tenant for the following actions that constitute just cause until the notice required by section 3 is posted and delivered: (i) the tenant is committing a nuisance in the unit, is permitting a nuisance to exist in the unit, is causing substantial damage to the unit or is creating a substantial interference with the quiet enjoyment of other occupants; (ii) the tenant is using or permitting the unit to be used for any illegal purpose; and (iii) the tenant has refused the foreclosing owner reasonable access to the unit for the purpose of making necessary repairs or improvement required by the laws of the United States, the commonwealth or any subdivision thereof, or for the purpose of inspection as permitted or required by agreement or by law or for the purpose of showing the unit to a prospective purchaser or mortgagee provided. |
| Foreclosure Prevention Options / Mass. Regs. Code tit. 209, §56.05(6) | Written Assessment Required | Not more than 30 days following receipt of a borrower's notification that the borrower intends to request a mortgage loan modification, a creditor must provide the borrower with a written assessment of the borrower's ability to make an affordable monthly payment |