Latest Updates


Kurt McHugh to speak on receivership at Hosung Court forum

KurtKurt McHugh will participate as a panelist speaking about receiverships at the upcoming Housing Court Forum.  Kurt is an attorney in Harmon's Litigation Department. Kurt joined the firm in January 2009. Kurt represents lending institutions in a variety of litigation matters in Massachusetts and New Hampshire. Kurt has considerable experience in consumer protection, creditor's rights, bankruptcy, landlord/tenant, title review, conveyancing, collections, code enforcement and receivership actions.


Fran Nolan Elected REBA President for 2017-18

Congratulations to Fran Nolan on becoming the President of the Real Estate Bar Association of Massachusetts (REBA).
REBA is the leading organization of Massachusetts Real Estate Attorneys whose goal is to advance the practice of real estate law by creating and sponsoring professional standards, actively participating in the legislative process, creating educational programs and materials, and demonstrating and promoting fair dealing and good fellowship among members of the real estate bar.


Robert Mendillo Selected as Super Lawyer for 2016

Robert MendilloRobert M. Mendillo (Attorney Manager of our Litigation Department) has again been named a Massachusetts Super Lawyer for business litigation in the 2016 edition of Super Lawyers magazine.




On May 24th, the Massachusetts Supreme Court issued its decision in the Federal National Mortgage Association v. Rego case.  At issue, was whether an attorney conducting a foreclosure on behalf of a client was required to be appointed under a power of attorney.  The court rejected this arguments ruling that there is a disctintion between an attorney at law and an attorney in fact.  An attorney representing the mortgagee and performing the acts necessary to complete a foreclosure is acting as an attorney at law and does not require a power of attorney to perform a foreclosure for a client.

The SJC also rules that the Housing Court had jurisdiction to decide MGL Chapter 93A claims as part of a Summary Process (eviction) action.

Harmon attorneys Tom Santolucito and Danielle Gaudreau submitted and amicus brief on behalf of the Massachusetts Real Estate Bar Association (REBA).



On Tuesday, March 8, 2016, Attorney Danielle Gaudreau of Harmon's HTC Litigation Department presented oral arguments before the Massachusetts Appeals Court sitting at UMass Boston, as part of that Court's community outreach effort. According to the University, approximately 120 students, faculty,

community members and other invited guests attended and observed the arguments that day. The case involves the issue of whether a foreclosing owner may use civil trespass, instead of a summary process eviction proceeding, to seek the removal of individuals who began occupying a foreclosed property after the sale and without the owner's knowledge or consent. Besides presenting a very interesting legal issue, the case offered students a unique educational opportunity to see an appellate court in action.

Appeals Court Returns to UMASS


Firm's Attorneys file Amicus Briefs in Important Cases

Some of the firm's attorneys recently authored or co-authored and filed amicus (friend of the court) briefs with the Massachusetts Supreme Judicial Court in two cases that involve issues important to the mortgage servicing industry. Amicus briefs seek to help the Court in rendering a decision by providing perspectives of parties whose interests may be affected by the Court's decision.

Attorneys Thomas Santolucito and Danielle Gaudreau wrote and filed a brief on behalf of the Real Estate Bar Association for Massachusetts, Inc. and the Abstract Club in Federal Nat'l Mortgage Assn. v. Rego (Docket No. SJC-11927).

The issue in Rego is whether an attorney that publishes/mails notices and performs other administrative acts in the mae of its client to comply with the Massachusetts non-judicial foreclosure statute, must provide written evidence of the attorney's authority to do so.  The case was argued on November 3, 2015.

The firm's Managing Attorney, Thomas Walsh, and Attorney Thomas Santolucito also assisted with the drafting and filing of an Amicus brief on behalf of Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, in collaboration with other attorneys representing the Federal Housing Finance Agency, in The Drummer Boy Homes Assn. v. Britton (Docket No. SJC-11969).

The key issue before the Court in Drummer Boy is whether a condominium association may file successive lawsuits to establish multiple liens that take priority over first mortgages or whther the associations are limited to a single priority lien.  The case was argued on January 7, 2016. The Supreme Judicial Court typically issues its decisions within 130 days from the date of oral argument.


Mendillo Selected as Super Lawyer for 2015

Robert Mendillo Robert M. Mendillo (Attorney Manager of our Litigation Department) has again been named a Massachusetts Super Lawyer for business litigation in the 2015 edition of Super Lawyers magazine.




McHugh Serves on Expert Panel Discussion on Receiverships

Kurt McHugh Kurt McHugh of our litigation department was again asked to be on an expert panel at a receivership training seminar sponsored by the City of Springfield and the Western Housing Court. The panel included speakers from the Massachusetts Attorney General's Office, the City Solicitor's Office, local Receiver's counsel, and judges and clerks from the Western Housing Court. Kurt spoke about Receiverships from the lender's perspective. The seminar took place at the UMass Center in Springfield on Tuesday, November 17, 2015 from 3:15 PM to 6:30 PM.

Kurt has extensive experience handling receivership cases for the firm's clients, and has been approached by another Housing Court to assist in its upcoming receivership training.


Pinti Decision Mandates Strict Compliance with Mortgage Contract

AnneCongratulations to Anne Shannon who has a featured article in the September 2015 REBA News.  Anne article discusses the Pinti v. Emigrant Mortgage Company decision holding that strict compliance with the terms of the mortgage contract is required to have a valid foreclosure.  At issue was paragraph 22 of the mortgage requring notification to the mortgagor of his/her "right to bring a court action to assert the nonexistence of a default or any other defense to acceleration and sale."  The SJC held that a correct contractual notification was a prerequsite to the exercise of the power of sale in the mortgage.  The article can be found here.


On May 12, 2015 attorney Jason Giguere conducted a seminar for the Boston Bar Association on both emerging and perennial proof of claim issues in chapter 13s. The main focus was parsing the new Standing Order 2015-03. Standing Order 2015-03 amends MLBR 13-13 and creates new obligations and new deadlines for debtors' attorneys, creditors' attorneys, and the chapter 13 trustee within the process of filing proofs of claims-including surrogate proofs of claims-and objecting to plan confirmation. Attorney Giguere provided direction on preparing and serving surrogate claims; objecting to claims; requesting documentation pursuant to Fed. R. Bankr. P. 3001(c)(3); and keeping on top of Rule 3002.1 mortgage-related notices.



Stephanie Sprague Makes Appeals Court Argument

Stephanie SpragueStephanie Sprague, an attorney in Harmon Law Offices' Housing, Title and Condominium Litigation Department, argued a case before the Massachusetts Appeals Court on Wednesday, May 13, 2015. At issue is whether mortgagors have standing to challenge a trial court's judgment authorizing the mortgagee to record a copy of a lost assignment in lieu of the original. The Court took the case under advisement and is expected to issue a decision in approximately six months.


Melissa Morrow Speaks at REBA Conference

Melissa MorrowMelissa Morrow, the Attorney Manager for the firm's Post Sale/Closing Department, was a featured speaker on May 4 at the spring conference of the Real Estate Bar Association for Massachusetts. Melissa spoke on the subject of post-foreclosure title issues in the wake of Ibanez, the seminal 2009 foreclosure case, and other legislative and judicial changes that have fundamentally revised the Massachusetts foreclosure process over the past seven years. Melissa's discussion was well-attended and well-received by an engaged audience and included a vigorous question and answer period in which Melissa provided guidance for real-world practical situations encountered by conveyancers.


McHugh to Serve on Receivership Committee

Kurt McHughWe are pleased to report the Kurt McHugh (Litigation Department) has been selected by the Western Housing Court Bench/Bar committee to serve on the receviership sub-committee. Kurt routinely handles receivership cases and his appointment will give him the opportunity to work with the bar and the courts to improve how these case are handled.

Kurt recently challenged a receivers lien claim during an evidentiary hearing.   Through Kurt's efforts, the original receiver claim of approximately $100,000 was reduced by the court to $13,823.07.  This was a great victory for the client, which would have had this large lien encumber its mortgage interest.  The case was City of Springfield v. Vargas, Hampden Housing Court Case No. 09-CV-659 (February 17, 2015)(Fields, Associciate Justice).


Billeri and Gaudreau prevail in jury trial

Sarah BilleriDanielle Attorney Sarah Billeri recently obtained a  favorable jury verdict in a complex post      foreclosure summary process (eviction) trial      before a Massachusetts District Court. Attorney  Danielle Gaudreau second chaired the trial and was instrumental in managing the numerous exhibits submitted to the court. The District Court Appellate Division remanded the case for trial after holding that that the foreclosure affidavit relied upon by the plaintiff to establish its title, was inadmissible. The case also included a myriad of counterclaims and defenses concerning the default, foreclosure and loss mitigation history. The former borrower also asserted a third party claim against the mortgage servicer, which was not a named party to the case. In the end, Sarah and Danielle persuaded the jury that the foreclosure complied fully with state law and any minor errors in the servicer's default notice were not so fundamentally unfair to warrant overturning the sale. The jury also rejected the defendants' counterclaims for consumer protection violations and misrepresentations and awarded the plaintiff a large judgment for use and occupancy payments that accrued during the duration of the case.


Preemption of Municipality's Foreclosure Ordinances

KPestova Katernia Pestova wrote an article for this month's USFN E-   Updates discussing the Massachusetts Supreme Judicial Court   decision preempting the City of Springfileds foreclosure ordinance.  Preemption of Municipality's Foreclosure Ordinances



Massachusetts Supreme Judicial Court rules that Springfield foreclosure ordinance is preempted

The Massachusetts Supreme Judicial Court (SJC) issued its much-anticipated ruling in Easthampton Savings Bank v. City of Springfield. This case involves the question of whether municipalities in Massachusetts can enact ordinances that require mortgagees to (a) register properties in foreclosure and pay a surety bond for each such property registered, and (b) participate in mediation, at the lender's expense, prior to initiating a foreclosure action. The case was certified to the SJC by the U.S. Court of Appeals (First Circuit) in July.

The SJC has ruled that the ordinances are preempted by state law. The court found two specific provisions in the property registration ordinance problematic: the surety bond requirement, which is preempted by Mass. Gen. L. Chapter 111 (the state's receivership law), and the ordinance's mandate that mortgagees provide the city's fire chief with the location of all hazardous materials in each registered property, which is preempted by Mass. Gen. L. Chapter 21E (the state's hazardous materials law). The court also concluded that the mediation ordinance was preempted by Mass. Gen. L. Chapter 244, the state's foreclosure law.

The court's decision will impact not only Springfield, which was previously enjoined from enforcing its ordinances, but also several other municipalities with very similar ordinances: Worcester, Lawrence, Barnstable and Lynn. Although today's ruling does not immediately void any of the municipal ordinances, there is a federal district court case pending against Worcester and Lynn in addition to the First Circuit case against Springfield, and we expect that the impacted municipalities will react in the near future to revise their property registration ordinances to comply with the court's decision. We also expect that, if the City of Lynn does not voluntarily discontinue its mediation program, the federal district court will follow the SJC's holding and invalidate the city's ordinance, thus ending the only municipal foreclosure mediation program currently in operation.

The firm filed an amicus brief in the case, on behalf of the Real Estate Bar Association for Massachusetts, urging the SJC to invalidate the ordinances. We believe the court's decision provides welcome clarity and restores consistency to the state's foreclosure laws.

If you have questions about the court's ruling or its application to your portfolio, please feel free to contact us.


Attorney Amie DiGiampaolo prevails in New Hampshire appeal

AmieAttorney Amie DiGiampaolo, an attorney in the firm's Housing, Title and Condominium Litigation Department, recently prevailed in an interesting case before the New Hampshire Supreme Court. The issue in the case was whether the holder of a reverse mortgage is barred from foreclosing because it failed to file a claim in the deceased owner's probate within the statutory timeframe. The Court agreed with Amie that the statute requiring creditors to file claims in the probate case is a prerequisite to a creditor's ability to maintain an action against the estate. Since the foreclosure process in NH is non-judicial and does not require the filing of an lawsuit, then a reverse mortgage holder's failure to file such a claim was not fatal.

The case is In Re Estate of Mills, 2014 WL 5859632 (NH 2014).


Congress extends Servicemember Civil Relief Act Protection (SCRA)

Congress has extended the foreclosure protection contained in Servicemembers Civil Relief Act (SCRA). The SCRA prohibits foreclosure activity while service members, including National Guardsmen and Reservists are on active duty and for a period (currently one-year) following their active service. In 2008, Congress extended this period from 90 days to nine months and in 2012, Congress extended this period again from nine months to one year. The one year provision was scheduled to revert to the 90-days at the end of 2014. Congress has now extended the one year foreclosure protections provision to the end of 2015.  The text of the Bill can be found here:


Robert Mendillo - Massachusetts Super Lawyer

Robert Mendillo Robert M. Mendillo (Attorney Manager - Litigation Department) has  been named a Massachusetts super lawyer for business litigation  in the 2014 edition of the Super Lawyers magazine.


Kurt McHugh to speak at Receivership Seminar

Kurt McHughWe are pleased to announce that Kurt McHugh of Harmon's litigation department will be participating in a receivership training seminar put on by the City of Springfield and the Western Housing Court. The panel will include speakers from the Massachusetts Attorney General's Office, the City Solicitor's Office and from the Western Housing Court. Kurt will speak about Receiverships from the lender's perspective. Kurt has extensive experience handling receivership cases for the firm's clients.

The seminar will cover topics including the appointment of a receiver, receivership reports and court review, lead paint, the lender's perspective, Probate and Land Court issues and a view from the bench.

The seminar will take place at the UMass Center in Springfield on Wednesday, October 29, 2014 from 2 PM to 5:30 PM.


Robert Mendillo Litigation Department Manager Bob Mendillo authored an article that appeared in the August 4th issue of Massachusetts Lawyers Weekly entitled, "Revisiting United States v. Nixon, Four Decades Later." The article reviewed the Supreme Court's 1974 executive privilege decision, which lead to President Nixon's resignation. A link to the article appears below.

Nixon Article


Breaking News: Impending Rhode Island Eviction Legislation

On June 19, 2014, the Rhode Island Legislature passed Senate Bill No. 2659 that will change post-foreclosure eviction practice significantly. The Governor is expected to sign the bill soon. The bill is substantially similar, but not identical, to legislation enacted by Massachusetts in 2010.

Owners and servicers of REO properties in Rhode Island should be prepared for significant changes to the eviction process when the bill becomes law. Please contact us with any questions, concerns or comments regarding this important legislation.

Below is a link to the bill.  If you are a client, please contact us if you have not receive our summary of bill's key requirements and we will provide it to you.


New Hampshire Supreme Court At-a-Glance

Kudos to Litigation Department Attorneys Andrea Lasker and Scott Owens, who volunteered to draft summaries of May 2014 NH Supreme Court decisions for the June edition of the New Hampshire Bar News. The well-presented summaries cover four full pages of the paper and report on 12 decisions on a variety of practice areas. We encourage all Harmon attorneys to get involved with their local bar organizations. Here is a link to the summaries:


Schumacher decision leads to certain judgments being revisited

One of the issues following the Massachusetts Supreme Judicial Court's recent Schumacher decision was how the trial courts would treat the large number of eviction judgments that entered in favor of former owner occupants resulting from hyper-technical issues concerning pre-foreclosure right-to-cure notices. In May, there were several decisions, which allowed the removal of prior judgments that were based on a requirement of strict compliance with MGL c, 244, sec. 35A. Attorney Danielle Gaudreau convinced the Northeast Housing Court to reopen an eviction case, set aside a previous judgment in favor of the former owner occupant and schedule the eviction case for trial. The case/order is Federal Home Loan Mortgage Corp. v. Jenkins, Northeast Housing Court No. 1377SP002390 (Dalton, J.)(May 9, 2014) (Order on Plaintiff's Motion for Relief from Judgment).

In Federal National Mortgage Association v. Demercardo, Worcester Housing Court Case No.11-SP-1412 (Horan, J)(May 31, 2014) Attorney Anthony Coletti obtained a similar result with the Worcester Housing Court where that Court found that extraordinary circumstances existed and, based upon principles of equity, the reopening of the case was required since the law upon which the original decision was based changed. Lenders and servicers that have faced similar adverse judgments prior to the Schumacher decision due to issues involving pre-foreclosure notices should contact us. We will review the case with you to determine whether a similar motion may be appropriate.


Attorney Amie DiGiampaolo hits a home run for MADD

Congratulations to Amie DiGiampaolo for her fundraising efforts on behalf of MADD. Amie with the assistance of the Harmon community, her family and friends raise $2,065 for the annual WALK like MADD event held in Boston and in other places around the country on April 26, 2014. The 5K walk highlights the continuing problem of drunk driving and underage drinking. Harmon raised funds by allowing employees to wear jeans for a $5 contribution to this important cause. Amie is an associate in Harmon's litigation department.


Rhode Island Federal Court Foreclosure Case Update

On Wednesday April 16, Judge McConnell held a status conference for the In re Mortgage Foreclosures Cases docket pending before him. There are currently 361 cases remaining on the docket. Judge McConnell announced that starting in May he expects to hold hearings every Monday on any the pending 107 dispositive motions. He is going to schedule 10 cases per session and expects to finish all the hearings by the end of August.


Rhode Island Federal Court Foreclosure Litigation Update
by Jennifer Normand

Last week, Judge McConnell of the United States District Court for the District of Rhode Island dismissed several complaints that were pending in the In re: Mortgage Foreclosure Docket. The complaints contained boilerplate allegations (1) that the note, mortgage and any assignments of mortgage were void, thus invalidating any foreclosure sale or the mortgagee's right to foreclose; (2) that the improper party was exercising the power of sale; and (3) that the note was paid in full.

The Court ruled as a matter of law that the foreclosure challenges failed to state plausible claims, because under Rhode Island law a borrower lacks standing to challenge an assignment of mortgage on grounds that would render an assignment merely voidable (as opposed to void) --- such as allegations that the signor of the assignment of mortgage lacked signatory authority or "robo-signed" the assignment. The Court confirmed that the there is no obligation to produce the note in order to foreclose, that the note and mortgage do not need to be held by the same entity for a valid foreclosure, and that where MERS is a mortgagee, it acts on behalf of not only the original Lender, but also the Lender's successors and assigns. As such, the Court clarified that the successors or assigns of the Lender and mortgagee are entitled to send default notices and engage in foreclosure activity.

These decisions (listed below) should greatly impact the pending Rhode Island federal litigation. Although many cases have been dismissed, there are still over 500 cases on the consolidated docket. Virtually all of them have the same pattern complaint. In addition, we anticipate that these decisions will be helpful in quashing the burdensome discovery being served upon the banks to the extent that the discovery relates to the validity of the assignment.

Now that the initial motions to dismiss have been decided, it remains to be seen whether Judge McConnell will use a "show cause" process or some other procedure to expedite these cases rather than requiring the motions be filed in each individual case.

Clark v. MERS, et al., CA No.: 12-802

Era v. E-Trade Bank, et al., CA No.: 11-455

Lister v. Bank of America, et al, CA No.: 13-450

If you have any questions regarding these decision or pending Rhode Island federal court cases that the firm is handling on your behalf, please contact, Jennifer Normand 617-558-2264, Robert Mendillo 617-558-8457 or Tom Walsh 617-558-8461.


Scott OwensScott Owens serves as MCLE panelist

Attorney Scott Owens participated as a panelist in MCLE's Debtor-Creditor Consortium 2014, a CLE seminar that reviewed recent developments and current events in foreclosure, bankruptcy, consumer protection laws, and fair debt collection. Scott is a litigation attorney in the firm's Litigation Department.


Fran NolanFran Nolan in the REBA News

The March Real Estate Bar Association's news features a photo of Attorney Director Fran Nolan who along with REBA's president and other selected delegates participated in the 15th annual Walk to the Hill for Civil Legal Aid. Fran is the current REBA board clerk and sits on several REBA committees.


Pre-foreclosure default notices are not part of statutory power of sale

Today, the Massachusetts Supreme Judicial Court ("SJC") issued its long-awaited decision in the case of U.S. Bank, National Association v. Schumacher. At issue in the case was whether a mortgagee's failure to comply strictly with the Massachusetts preforeclosure right to cure statute, G.L. c. 244, § 35A ("§ 35A"), renders a foreclosure sale void. Former owners frequently plead lack of strict compliance with § 35A as a defense to postforeclosure summary process (eviction) cases. The trial courts in Massachusetts issued a myriad of conflicting decisions concerning this issue, making it impossible to predict the outcome of cases where a borrower called a § 35A notice into question. In Schumacher, the SJC held that the pre-foreclosure right to cure statute did not regulate the foreclosure process itself, but instead sought to permit borrowers an opportunity to cure a default prior to the commencement of a foreclosure. The SJC found that, because § 35A regulates pre-foreclosure conduct, it is not part of the statutory power of sale demanding strict compliance. As such, minor technical errors in the notice do not render the resulting foreclosure sale void as a matter of law. In a concurring opinion, Justice Ralph Gants noted that, although violations of § 35A do not render a foreclosure void, they may present courts with equitable grounds to set aside foreclosures in cases where a notice is "fundamentally unfair." As such, borrowers may still petition the Superior Court, or assert defenses or counterclaims in eviction cases, challenging a foreclosure due to an inadequate § 35A notice. Borrowers will face more difficulty prevailing upon these claims under a "fundamentally unfair" standard rather than the "strict compliance" standard adopted by several trial courts prior to Schumacher.

Schumacher brings much needed clarity to a very hotly contested and controversial area of Massachusetts foreclosure law. Attorney Daniel P. Murphy and other attorneys in Harmon Law Offices, P.C.'s landlord-tenant practice represented U.S. Bank in the lower court through the trial of the case. Many of the arguments the firm advanced to the trial court were reflected in the SJC's decision.

Bankruptcy Appellate Panel Overturns New Hampshire Beeman decision

Judges Feeney, Tester and Finkle sitting on the Bankruptcy Appellate Panel for the First Circuit issued an opinion on February 24, 2014 (Robert LaPointe vs. TD Bank) that essentially overturned a long standing practice in New Hampshire Bankruptcy Courts recognizing a debtor's ability to include foreclosed property in a chapter 13 reorganization provided the foreclosure deed had not been recorded prior to the Chapter 13 filing. Since the In Re Beeman issued by Judge Deasy in 2009, which ruled that a debtor could file a chapter 13 reorganization and include foreclosed property as long as the foreclosure deed was not recorded, it had become commonplace for debtors to file chapter 13 cases post foreclosure auction, which would then require the sales to be rescinded. Beeman was not appealed at the time it issued. In the Lapointe case, Judge Harwood denied TD Bank relief from stay to record the foreclosure deed. The Lapointe case had essentially the same fact pattern as Beeman. TD Bank appealed to the BAP which ruled that the N.H. Bankruptcy Court erred in failing to grant the bank relief from stay and remanded the case back to the Bankruptcy Court to enter an order granting relief from stay. The BAP ruled that NH state law does not recognize a mortgagor's right of redemption after the gavel has fallen and the memorandum of sale is signed, therefore the bankruptcy court could not give the debtor any more rights than state law allowed. The case is likely to be appealed so for now, it is still advisable to seek relief from the automatic stay prior to recording a foreclosure deed when a post auction bankruptcy has been filed.


Post-Foreclosure Evictions in Massachusetts

Thomas Santolucito

Thomas Santolucito, the Attorney Manager of Harmon's  eviction group has an article in the USFN's February e-  Update discussing the Bank of America v. Rosa, 466  Mass. 613 (2013) decision and its potential impact on  future Massachusetts post-foreclosure evictions.  Client's  can obtain a copy of the client bulletin concerning  the Rosa decsion or a copy of the decision by contacting Tom.


Rhode Island Department of Business Regulation Issues Final Amendments to Banking Regulation 5

The Rhode Island Department of Business Regulation (DBR) has just issued its final amendments to Banking Regulation 5, which relates to pre-foreclosure notices and mediation procedures required by Rhode Island law. This is the fifth set of amendments the DBR has made to Banking Regulation 5 since August 2013.

The key changes made by the DBR in this set of amendments are as follows:

  • The Spanish and Portuguese translations of the DBR's mediation notice, Appendix B, now reflect the DBR's prior revisions in the appropriate language. This change will require servicers to update their mediation notice template for the Spanish and Portuguese translations.
  • The DBR has clarified that one mediation notice may be addressed to multiple borrowers as long as the addressees all live at the same address. If individual borrowers live at different addresses, each borrower must be sent a separate letter at his or her address.
  • The DBR has also clarified that the "plat and lot" information required by RIGL 34-27-3.2 refers to the municipal tax assessor's plat and lot number, not the builder's lot and plan information that often appears as part of the legal description in the mortgage. (The regulation allows a mortgagee to omit the plat and lot number in favor of the mortgage book and page where the plat and lot number is not "easily ascertainable," but in the event the plat and lot number is omitted, the mortgagee must document its "best efforts" to obtain the information and indicate in the mediation notice that the information is not available.)
  • A typographical error was corrected in Appendix A in the Spanish Version of Form 34-27-3.1 in that "IPOTECARIA" was corrected to "HIPOTECARIA" which is the Spanish word for "mortgage." The reference is in the header in the middle of the page. This change will require servicers to update the Spanish translation in the templates of their mediation notice and notice of right to counseling. These amendments to Banking Regulation 5 take effect on February 12, 2014.


On January 15, 2014, Judge Henry J. Boroff of the Bankruptcy Court for the District of Massachusetts Eastern Division ruled in the case of In Re: Harborhouse of Gloucester that a Note or a Mortgage securing the Note that has been lost cannot enforced by a transferree. The issue was raised by a Chapter 7 trustee who had objected to a secured creditor's claim which was based on a duly recorded mortgage and a Lost Note Affidavit. The Lost Note affidavit was executed by the original holder of the note, and it asserted that the note was lost while in that party's possession. The loan had then been transferred to another party and subsequently to the current party asserting the claim in the bankruptcy proceeding. The trustee maintained that under Massachusetts law a claimant relying on a Lost Note Affidavit must have had possession of the note at the time of the loss in order to enforce it. As a corollary, the trustee argued that the inability to enforce the note also precludes the enforcement of the mortgage.

The Court ruled that the current creditor was not the holder of the note and thus could not enforce the note or the mortgage. However, the Court also held that the mortgage still attached to the proceeds of the trustee's sale, the creditor still had a valid legal interest in the mortgage and was thus entitled to the proceeds of the trustee's sale, which must be held for the benefit of the true holder of the Note.


Rhode Island Bankruptcy Court Adopts ePOC Program

The Rhode Island Bankruptcy Court has announced that it is rolling out a program that will allow creditors to file proofs of claim without being a registered ECF user. The Court webpage will have a link that allows a creditor to input relevant information, the submission of which will generate a time stamped proof of claim. ePOC [Electronic Proofs of Claim Program] for the free electronic filing of claims directly from the Rhode Island Bankruptcy Court website at ePOC allows creditors to electronically create and file proofs of claim, amended proofs of claim and withdrawals of claim absolutely free and without the need for a login and password. Access to ePOC is located on the left-side of the Home page underneath the E-Filing link. Clicking on the File a Proof of Claim link will bring you to a new ePOC program page containing filing links, instructions, demonstrations and frequently asked questions.


Rhode Island Supreme Court Affirms Harmon Victory in MERS Case

In Mruk v. Mortgage Electronic Registration Systems, Inc., the Rhode Island Supreme Court unanimously affirmed a summary judgment decision that Harmon's litigation department obtained disposing of a borrower's suit to set aside a foreclosure sale.

The Supreme Court agreed with the Superior Court's ruling that MERS can assign mortgages; that an assignee of a MERS mortgage can foreclose; that Andrew Harmon, as a vice president of MERS, can lawfully assign MERS mortgages; and, that a borrower challenging a mortgagee's status as a lawful mortgagee must introduce "competent evidence" to support any assertions of wrongdoing and infirmities in the foreclosure process.

In affirming the dismissal of the case and the validity of the foreclosure sale, the Supreme Court also ruled that a mortgagor's standing to challenge an assignment of a mortgage is "narrow and confined," meaning that the mortgagor has the burden to prove that the assignment is "invalid, ineffective, or void," as opposed to simply being voidable. In this case, the Supreme Court concluded that Mr. Mruk failed to introduce any competent evidence that the assignment of his mortgage into the foreclosing entity was invalid, ineffective, or void.


Massachusetts SJC Extends Foreclosure Challenges in Eviction Cases

On December 19, 2013, the Massachusetts Supreme Judicial Court decided Bank of America v. Rosa, which held that "the Housing Court has jurisdiction to hear defenses and counterclaims that challenge the title of a plaintiff in a post-foreclosure summary process action, which previously only could have been the subject of an independent equity action in the Superior Court, and that the Housing Court has authority to award damages in conjunction with such counterclaims." Thus, in eviction cases, the Housing Court (as well as the District and Superior Courts and the BMC) can hear equitable defenses and counterclaims "to set aside a foreclosure for any legally recognizable reason."