Mass. bankruptcy court says too bad if you didn’t receive notice of a foreclosure

Massachusetts law requires that a lender send two notices to a homeowner before a foreclosure auction can be held — one by certified or registered mail, and the other by regular first class mail. Advertisements must also be placed in a local newspaper.

But what if the homeowner never receives these notices? Can the foreclosure be stopped or reversed on this ground?

No such luck, according to a recent opinion in the bankruptcy court by Judge Boroff. It is the sending of the foreclosure letters that counts, and whether or not they are received (never mind read or understood) is not the issue.

This came up in the case of Bailey v. Wells Fargo, no. 09-44760 in the bankruptcy court in Worcester, Mass. The homeowners wanted to void the foreclosure based in part on the fact that they said their letter carrier left the two notices in a little used front door, where they were not discovered until the loss of the home was a fait accompli.

Judge Boroff ruled, however, that the mailbox rule in Massachusetts is clear: the requirement that the notice be mailed to the owner of the foreclosed property is satisfied by mailing the documents, and the non-receipt of them by the owner is irrelevant.

The bottom line is that if you are behind on the mortgage and you want to try to keep the property, you need to be vigilant in monitoring your “snail mail” so that you are not surprised by an upcoming auction date.


By Doug Beaton

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