Written by Jamie Ranney, Esq. – http://nantucketlaw.pro/
Mass Senate bill 1987 passed the MA Senate last week. It is now being sent to the Mass. House.
This bill passed unanimously. The question is – did any of our Senators actually read it?
Senate Bill 1987 has been represented as an act to “clear titles” to properties that have been unlawfully foreclosed on because of recent borrower-friendly rulings by the MA Supreme Judicial Court which have largely confirmed that most of the foreclosures that have taken place in Massachusetts in the last 6 or 7 years were illegal.
If you read the Senate bill however – you can clearly see that the bill is designed to STRIP OFF the rights of people that were illegally foreclosed on or after just three (3) years if the banks simply execute an “affidavit” saying they did everything right.
This affidavit – retroactively under the Senate bill to the date it was signed (these “affidavits” are attached to EVERY foreclosure deed already recorded) would be “conclusive evidence” that a foreclosure was lawfully conducted.
So, since these affidavits are already recorded on the land records in every foreclosure case – this bill purports to validate every existing foreclosure – or at least every foreclosure within a year of this bill passing.
“Conclusive evidence” means, presumably, that the representations made in these “affidavits” cannot be challenged.
Given what we know about the rampant “robo-signing” of millions of documents by people without any knowledge of anything related to foreclosures, assignments of mortgages, etc., how can a photocopy of a document by someone who may – or may not – have had any personal knowledge of anything related to a foreclosure be unchallengeable? What if they lied? What if they had no personal knowledge of anything? What if they made a mistake?
This law flies in the face of the recent rulings in the case of the Supreme Court’s decision in Fannie Mae v. Hendricks, 463 Mass. 635 (2012) which specifically held that such affidavits were always subject to challenge.
In other words – if someone illegally foreclosed on you and you don’t even know it – a “third party buyer” that got your house at a foreclosure sale gets to keep it despite the fact that it was never lawfully foreclosed on. Nothing is “restored” to the owner who was foreclosed on.
Why would the Senate force the borrower/homeowner (who has no resources) to bear the brunt of an unlawful foreclosure – as opposed to the bank that conducted the unlawful foreclosure (and thus should be liable to a third party buyer for having sold them nothing)? It can only be because the borrowers/homeowners in foreclosure don’t have access to the politicians and the banks, title insurance companies, hedge funds and their lobbyists do.
This bill is, I would argue, completely unconstitutional since it unconstitutionally deprives a homeowner of their property without due process of law.
Practically speaking, this bill is like saying that a person that buys a stolen car – and supposedly doesn’t know it was stolen – gets to keep it after a certain period of time even if it’s shown to have been stolen. It is baffling that such a scenario and concept – never accepted as a matter of law for the personal property (cars, furniture, stereos, money) of a resident of the Commonwealth – would be pushed by the Senate with respect to the HOMES of Massachusetts residents unlawfully foreclosed on.
The Senate bill says that the people signing these affidavits can be on the hook for making “material misrepresentations” – but if the affidavit itself (in which they lied) is “conclusive evidence” and therefore unchallengeable, how are you going to show that they lied?
And you don’t get your house back in any case. The Senate bill – and the purported “protections” for homeowners unlawfully foreclosed on that this supposedly provides (which it does not) is internally inconsistent and its purposes (that somehow this helps illegally foreclosed homeowners) could not have been more misrepresented in the press so far.
The Senate bill cannot be viewed as anything other than a complete sell-out to the banks that have unlawfully foreclosed on tens of thousands of Massachusetts borrowers, the hedge funds (heavily invested in by the very banks that illegally foreclosed on people) that are buying 50- 60% of the foreclosed properties as “third party buyers” and the title insurance companies who don’t want to be on the hook for insuring clouded titles where it is common knowledge now that the foreclosures were almost all unlawful.
This makes it even more difficult for illegally foreclosed homeowners – who already have zero resources to hire attorneys to pursue claims – to try and get their homes back. This bill in fact, assures them that they will NEVER get their homes back.
Truly a sad, sad sell-out of the residents of the Commonwealth of Massachusetts by a supposedly democratic and liberal MA Senate.
I hope you look into this story more deeply and ask questions of the MA Senate leadership and as to who sponsored this legislation and at whose urging.