Massachusetts Title Actions

Need a Lawyer to Assist You with a Title Action?

If you have already been foreclosed upon, still reside in the premises, and still desire to establish whether the foreclosing entity held legal title to your mortgage when it held the foreclosure auction sale, you may be able to file a try title action. These actions are solely heard by the Massachusetts Land Court, and are often complicated.

Fortunately, a legal representative from The Law Office of Glenn F. Russell, Jr. can guide you through the process of filing a lawsuit and compiling the necessary evidence to make your claim. Review the information below to learn more about title actions in Massachusetts.

Try Title Actions (G.L. 240 §§ 1-5)

Under the peculiar requirements of Massachusetts law, when a borrower undertakes a mortgage loan within this Commonwealth, they actually transfer an interest in the title to their land to the "lender." In technical legal terms, this is known as a "defeasible fee title" that is "transferred' to the "lender."

In more simplistic terms, the borrower transfers the title to their real property, subject to their statutory right of redemption, under G.L. 244 Section 18. In other words, if a borrower pays off the underlying debt, they are returned the title to their real property.

Therefore, because a mortgage represents an "interest" in the title to real property, a challenge may exist for a borrower who challenges a "stranger" exists to their title. In today's "securitized" mortgage market, the original "lender" immediately sells the mortgage loan into the secondary mortgage market. Therefore, the borrower may have a challenge that stems from the fact that the current entity seeking to foreclose was not their original "lender." The borrower then challenges that the foreclosing entity is a stranger to their title.

Massachusetts Try Title Statute, G.L. 240, § 1

The Massachusetts try title statute, G.L. 240, § 1 provides that: "If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land... may file a petition in the land court stating their interest, describing the land, the claims and the possible adverse claimants so far as known to them, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim."

Showing of Superior Title

There is no requirement that a plaintiff plead a "superior" title. The phrase "superior title" does not appear in the try title statute. In the Bevilacqua v. Rodriguez decision, the court notes in a footnote that one difference between an action to try title, G.L. c. 240, § § 1-5, and to quiet title, G.L. c. 240, §§ 6-10, is that "the plaintiff in a try title action may defeat the specified adverse claims through a default or by showing title that is merely superior to that of the respondent." (460 Mass. 762, 768 n)

Citing to Bevilacqua, the Land Court in Abate v. Fremont Investment & Loan, infra, reasons that "[i]t is only upon a foreclosure that the mortgagee... now holds a title in the property superior to the mortgagor's." (20 LCR at 632) While this undoubtedly is true, it should not be read as a restatement of the statutory requirements.

A showing of superior title is sufficient to prevail in an action to try title; but it is not a necessary part of the pleadings to compel another to try its title. All that a plaintiff is required to plead under G.L. c. 240, § 1 is that his or her title is "clouded by an adverse claim, or by the possibility thereof. See the Varian Case as an illustration of this challenge.

On Appeal before the Massachusetts Supreme Judicial Court, the court, in Abate, held that a homeowner mortgagor could only establish the requisite "adversity" necessary to bring a try title matter matters, only after the foreclosure auction sale had already taken place, see the ruling here.

Therefore, these actions can only be filed in the Massachusetts Land Court, after the foreclosure auction sale has already taken place, and the mortgagor still resides in the premises.

Quiet Title Actions (G.L. 240 §§ 6-10)

As opposed to a Try Title action, which challenges the individual, or individual entity itself (in personal action) claim to an interest in title, a Quiet Title action challenges the validity of the instrument itself (in rem action). Since a borrower transfers the title to their land to the "lender" in Massachusetts, a borrower technically does not possess title sufficient enough to bring a "Quiet Title Action", until the mortgage itself is nullified.

Therefore, in Massachusetts, a Quiet Title action would be brought by a borrower only after receiving a judicial ruling indicating that the foreclosing entity does not have "jurisdiction and authority" under statute" to enforce the power of sale in the borrower's mortgage. Thus, the Quiet Title Action would be brought to then claim superior title as to the world.

Defense of Reformation of Mortgage Actions

Due to the problems with the origination of mortgages over the past decade, numerous entities seeking to claim an interest in the title to borrower's residence, seek to reform a mortgage, in an attempt to rectify problems that exist. These actions are never competently defended, leaving the financial industry to maintain these actions uncontested.

Subsequent Proceedings Involving Registered Land ("S-Petitions")

Massachusetts is unique in that one can "register" their land, to ensure the integrity of their title to land. Once a title is "registered" it continues to be "registered", even if "mortgaged." Under G.L. 185 § 67, any transfer of Registered land must be "recorded" to be effective. In the world of securitization, utilization of "off record" mortgage transfers are employed.

This oftentimes leaves a borrower with the argument that these purported "transfers" of the title to their land were ineffective, because they were not recorded, which is the essence of an S-Petition action.

Contact The Law Office of Glenn F. Russell, Jr.

If you are trying to find an attorney to handle your title action case, then please don't hesitate to call our firm. Lead attorney, The Law Office of Glenn F. Russell, Jr. is highly experienced with all real estate matters and can advise you of the appropriate course of action.

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