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Firm Defends The Use of Affidavits Filed By Borrowers Under G.L. c. 183, Section 5B

In recent years homeowners fighting foreclosure have sought to utilize G.L. c. 183, Section 5B to file Affidavits "to clarify the state of title".

G.L. c. 183, Section 5B states as follows:

"Section 5B. Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies."

The above statute allows a titleholder (or interested person) to file an Affidavit to clarify the title to the property.

In this case, on March 11, 2016 our client filed a G.L. c. 183, 5B Affidavit upon her title through a previous attorney. The client contacted us in 2018, when she was facing another attempted foreclosure auction and after carefully reviewing the facts and circumstances as relayed to us by our client based upon her personal knowledge, we filed a subsequent G.L. c. 183, 5B Affidavit on September 18, 2018.

Our Affidavit did not prevent the scheduled auction sale from taking place, however, the third-party purchaser declined to go forward with the purchase due to the filed Affidavit. The prospective purchaser made a substantial offer for our client to vacate the premises, which she declined.

Subsequently, on October 01, 2019, U.S. Bank, N.A. filed a "declaratory judgment" seeking to Quiet Title under G.L. c. 240, Sections 6-10.

The Massachusetts Declaratory Judgment Statute can be found under G.L. c. 231A

After examining U.S. Bank's theory of relief, we determined that one must be in physical possession of the property, and have unified title in order to file a Quiet Title Action, see Bevilacqua v. Rodriguez, 460 Mass. 762, at n. 5 (2011)

"Note 5 -An action to quiet title is an in rem action, G. L. c. 240, § 10, brought under the court's equity jurisdiction. See G. L. c. 185, § 1 (k); First Baptist Church of Sharon v. Harper, 191 Mass. 196, 209 (1906) ("in equity the general doctrine is well settled, that a bill to remove a cloud from the land . . . [requires that] both actual possession and the legal title are united in the plaintiff").In contrast, an action to try title is an action at law brought against the respondent as an individual. See G. L. c. 240, § 2 ("the court shall enter a decree that [specified adverse claimants] be forever barred from having or enforcing any such claim adversely to the petitioner"); Clouston v. Shearer, 99 Mass. 209, 211, 212-213 (1868) (at the time try title statute was enacted in 1851, Massachusetts courts did not yet possess general equity jurisdiction that would permit actions to remove cloud from title [not until 1852])."

Prior to foreclosure, the title cannot be united in the mortgagee, as the borrower retains the Statutory Right of Redemption under G.L. c. 244, Section 18 Here, US Bank as Successor Trustee for WaMu Mortgage Pass-Through Certificates, Series 2007-0Al states that it is seeking to "re-foreclose". Thus, the previous sale has been deemed void by U.S. Bank, N.A. in its Trustee capacity. This leaves a portion of the title remaining with our client. Further, our client remains in possession of the premises.

We have sought to dismiss the U.S. Bank complaint under Mass. R. Civ. P., R. 12(c), for lack of the Court's subject matter jurisdiction, where U.S. Bank does not have the standing to file the underlying Quiet Title Action based upon the case-law cited above.

U.S. Bank's position is that it did not file a "quiet title action", merely a declaratory judgment request. However, reviewing the complaint itself it is our position that the unquestioned underlying basis for the U.S. Bank N.A. Declaratory Judgment is undoubtedly to "remove a cloud from title: under G.L. c. 240, Sections 6-10.

U.S. Bank has opposed our Motion for Judgment on the Pleadings and filed its own Motion for Judgment on the Pleadings, to which we opposed. All of these documents were submitted under Massachusetts Superior Court Rule 9A and have not yet been filed with the Court. Once these documents have been filed with the Court, we will update this post with all documents, including our opposition to U.S. Bank's Motion for Judgment on the Pleadings, which has a detailed discussion of why we feel we are justified in having the U.S. Bank complaint dismissed.

This is an important case that may decide whether borrowers will be permitted to file these Affidavits on title

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