Creating Thriving Communities Through Land Use And Real Estate Law

Failure to Send Post-Foreclosure Notices Does Not Void Foreclosure

After issuing multiple decisions over the past several years emphasizing the importance of strict compliance with the statutory requirements for foreclosing on real estate, the Massachusetts Supreme Judicial Court has held that the strict compliance standard does not necessarily extend to the statutes impacting post-foreclosure requirements.  In Turra v. Deutsche Bank Trust Company Americas, 476 Mass. 1020 * (Jan. 30. 2017), the SJC held that the foreclosing entity’s failure to strictly comply with the post-foreclosure notices set forth in G.L. c. 183, §15A, which concerns post-foreclosure notice to the municipal collector of taxes and certain other entities, does not void the foreclosure.

Sandro Turra filed suit against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC, which held and foreclosed on a mortgage encumbering Turra’s property, seeking to void the mortgage for the bank’s failure to provide the statutory notice to “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 said taking possession or conveying title.” G.L. c. 183, § 15A.  This was the only grounds on which Turra sought to void the foreclosure.  The Bank acknowledged that it did not send the notices, but argued that the failure to do so had no impact on the validity of the foreclosure.  The trial court allowed the Bank’s motion to dismiss, and on appeal the SJC upheld that decision.

The SJC revisited the strict compliance requirements set forth in such cases as Pinti v. Emigrant Mtge. Co., 472 Mass. 226 (2015) (failure to strictly comply with power of sale contained in mortgage renders foreclosure void); Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569 (failure to comply with G. L. c. 244, § 14, renders foreclosure void), and U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) (failure to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C, renders foreclosure void), before acknowledging that its emphasis on strict compliance with c. 244, §§ 11-17C in those decisions may have been misleading, stating “we acknowledge that some of the language in our prior cases may have suggested that the failure to strictly comply with any provision contained in G. L. c. 244, §§ 11-17C, will render a foreclosure void. That was not our intent.”  The Court then clarified that the intent of the strict compliance requirements is to protect the homeowner, and that its earlier cases focused on compliance with the requirements for “preforeclosure actions, or inactions, and . . . the authority of the foreclosing mortgagee to actually foreclose.”  Failure to comply with post-foreclosure notices has no impact on the homeowner.  Therefore, failure to comply will not void the foreclosure.