New Proposal to Expand Housing Court All Over MA

The Judicial Branch's recent Housing Court recommendation is a great step in the right direction for ensuring a proper forum for foreclosure defense and landlord/tenant cases in Massachusetts.

The Judicial Branch last week submitted a proposal to the Legislature recommending that Housing Court be expanded to all of Massachusetts by 2015.  Currently, only a select number of towns/cities in Massachusetts are within the jurisdiction of a Housing Court.  Malden, for example, a city where many of my clients reside, is not covered by a Housing Court and requires summary process and other housing cases to be heard in the local District Court or Superior Court.

I support this new proposal because, as anyone who has sat in a summary process session has learned, foreclosure cases (and many landlord/tenant cases) have become really, really complicated matters.  Having a court with some specialized knowledge of these cases could go a long way towards having these matters promptly and effectively resolved.  

Lessons of the MA "Peeping Tom" Case for Foreclosure Defense

Last week, the Supreme Judicial Court issues its decision in the "Peeping Tom" case and held that state law did not cover "upskirt" photos taken by cell phones and other recording devices.  The Court's decision, and the Legislature's prompt passage of a bill to prohibit these practices, has important lessons for foreclosure defense.

Unsurprisingly, the reaction to the Court's decision was negative, with some believing that the Supreme Judicial Court supported the right of perverts to take lewd pictures.  Not quite.  The job of the SJC, like any Court, is to interpret the law and here, Massachusetts law didn't include these acts as crimes under the law.  This, of course, is not the outcome that many would have wanted, but as as a government of laws and not men, we are bound by only what is included in the law.

So what's this have to do with foreclosure defense?  As stated by the SJC, foreclosure law comes primarily from written law.  As such, the rules on what can and can't be done are mostly found in statutes; most of which are in Chapter 244 of the General Laws of Massachusetts.  These laws are the starting point for any foreclosure defense case.

As I frequently say, Massachusetts has the best legal community around.  The same, however, can't be said about its laws.  I find many Massachusetts statutes to be complex and confusing and in need of a rewrite.  Nonetheless, until this happens, we are stuck with them and need to do our best in understanding what they mean, and what they do not mean.  In the area of foreclosure defense, which comes primarily from statutory authority, the importance of reading and understanding these laws cannot be overstated.  

Declaratory Judgments 101

Homeowners have the option of challenging the validity of their foreclosures in a civil action case.  A common cause of action that foreclosure attorneys bring in these case are declaratory judgments. 

A declaratory judgment, simply put, asks the court to make a legal determination that resolves legal uncertainty for the parties.  Under Massachusetts law, the power to make a declaratory judgment is broad and covers a broad array of matters.  For pre-foreclosure defense cases, I often ask for a declaratory judgment that the foreclosing entity is not entitled to perform a foreclosure of my client's home and in post-foreclosure cases, a declaratory judgment that the foreclosure is void because the foreclosing entity did not comply with the terms of the mortgage and/or applicable foreclosure statutes.

An important requirement for requesting a declaratory judgment is that all parties "who have or claim any interest which would be affected by the declaration" need to be a party of the lawsuit.  For foreclosure cases, this often means that all parties to the mortgage and all entities involved in the foreclosure need to be included in the lawsuit.  For post-foreclosure cases where my clients have tenants, I include them as well, as the validity of the foreclosure would affect the tenants' landlord/tenant relationship. 

The purpose of a declaratory judgment is "to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations . . ."  A court issues a declaratory judgment through a simple court order stating its legal determination on the disputed issues.  In foreclosure cases, a declaratory judgment holding that a foreclosure was void can be recorded in the Registry of Deeds and has the effect of restoring the homeowner's title to the property.  

Declaratory judgments can be raised in Superior Court, Land Court, and Federal Court.  I find declaratory judgments to be useful in foreclosure defense cases because they provide resolution to matters of law that do not always fit in with other kinds of causes of action.  

A Foreclosure Defense Attorney is Not a Financial Adviser

A foreclosure defense attorney may be able to do many things for you, such as fighting a foreclosure, preparing a loan modification application, or negotiating a leave from your home.  However, a foreclosure defense attorney is not—and should not—be your financial adviser.

Homeowners facing foreclosure need to make tough decisions on what to do with their homes.  For some, fighting a foreclosure and trying for a loan modification is the best way to go.  For others, walking away and going for a fresh start may make more sense.  A lawyer can advise you of your legal options and what to expect in your case, but advice on the financial implications of your situation is best left to a financial adviser, and not a lawyer.

Now, of course there are many lawyers with financial backgrounds; some who are even financial advisers themselves.  Even so, clients should always get a second opinion on their cases.  Even under the best circumstances, fighting a foreclosure is difficult and you should be certain you are fighting for the right outcome.