In a recent case, a Massachusetts Land Court was presented with a motion to vacate judgment to prevent the foreclosure action and sale of property owned by the defendants. In Town of Russell v. Barlow (Mass. Land Ct. July 13, 2016), the town filed a complaint in 2003 to foreclose on the property at issue as the result of a tax lien. In 2008, a judgment was entered foreclosing the defendants’ right of redemption. The defendants filed their petition to vacate in 2014, contending that the tax taking and foreclosure were invalid because the town violated their due process rights. The court ultimately granted the defendants’ motion and vacated the judgment.
Massachusetts law generally requires a petition to vacate a decree of foreclosure to be filed within one year of the entry of the decree. The judgment may be vacated within one year if the court determines it is required to accomplish justice. However, the strict application of the one-year limitation may be excused when there has been a denial of due process, which is typically based on a violation of due process rights and the property owner’s ability to participate in the original litigation. Due process, in turn, requires notice of a petition to foreclose by certified mail, but it does not require actual notice.
In Town of Russell v. Barlow, the defendants were struggling with serious and ongoing medical issues in their family at the time the foreclosure proceedings were being initiated. The defendants also mistakenly believed that they were current on their taxes and that their tax payments were being applied by the town. Their belief was based on an agreement among the defendants, their bank, and the town that provided them with a grace period in which to pay their taxes so that they could afford a vital heart surgery for their daughter. In addition, despite recording the instrument of taking in 1992, the town did not commence a foreclosure action against the defendants until 2003. During that period, the defendants were again in the midst of a family medical crisis, since not only were they both diagnosed with serious illnesses, but also their granddaughter, father, and daughter were undergoing various surgeries.
Based on the evidence of record, the land court found that the defendants did not receive sufficient notice and were not able to adequately participate in the foreclosure proceedings due to their family’s systematic medical issues. Although noting that the defendants did not move to vacate the judgment for six years, under the circumstances of this case, the court found that their delay was excusable and that the interests of justice required vacating the judgment. Furthermore, the court explained that the defendants could still redeem their property by paying the amount of taxes due to the town.
If you are currently involved in foreclosure proceedings or under threat from your mortgage company, a property attorney can help determine which options you have to keep your home. At the Massachusetts firm of Pulgini & Norton, our dedicated real estate attorneys assist individuals with residential property issues, including foreclosures, building permits, land transactions, and other real estate matters. To discuss your case with a knowledgeable lawyer, call Pulgini & Norton at (781) 990-2200 or contact us online.
More Blog Posts:
Massachusetts Appeals Court Reviews Summary Process Action in Foreclosure Dispute, Massachusetts Real Estate Lawyer Blog, published May 23, 2016
Massachusetts Land Court Holds Petition to Vacate Foreclosure Untimely, Massachusetts Real Estate Lawyer Blog, published July 12, 2016