Kurt McHugh to speak on receivership at Housing Court forum
Kurt 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 2016-2017
Robert 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.
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 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 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
Congratulations 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 Sprague, an attorney in Harmon Law Offices, P.C.‘ 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 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
We 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
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
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.