An article about Foreclosing Party Must Be Note Holder Or “Acting On Behalf” Of Note Holder was published by JD Supra on June 28, 2012. The SJC Eaton Decision may change the way lenders conduct foreclosures in Massachusetts.
Excerpt of “Foreclosing Party Must Be Note Holder Or “Acting On Behalf” Of Note Holder”
On June 22, 2012, the SJC issued a decision in Eaton holding that a foreclosure by sale pursuant to a mortgage power of sale provision must be conducted by a mortgagee that either holds the underlying mortgage note or is acting on behalf of the note holder. The plaintiff in Eaton executed a promissory note in favor of BankUnited, FSB (BankUnited), when she refinanced her home. That same day, the plaintiff executed a mortgage that identified Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee, acting as the nominee of the lender, BankUnited. The mortgage contained a remedy provision that permitted the lender to invoke the statutory power of sale upon a default by the plaintiff. The mortgage also provided that MERS had the right as nominee for the lender, if necessary to comply with law or custom, . . . to foreclose and sell the Property; and to take an action required of Lender[.]
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