Yes. In a September 2024 decision, the Appeals Court vacated a judgment for possession against former homeowners and ordered a new trial, because the Housing Court judge did not consider their evidence that the foreclosure auction was flawed. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The former homeowners lived in a house in Harwich. In 2020 the company that brought the case took title by foreclosure deed after an auction, and in 2022 it filed a summary process case in the Housing Court to get possession. The homeowners, who represented themselves, did not file an answer, but they appeared in court many times and took part in court-ordered mediation. Before trial they filed a motion to dismiss with exhibits, including a thumb drive they said held video of the foreclosure auction.
At trial the company called no witnesses and relied on certified copies of the mortgage, the assignments, the notice documents and the foreclosure deed. It argued that because the homeowners never filed an answer, they had no defenses. The homeowners argued, among other things, that the auction was fraudulent and that the company did not have superior title because it did not strictly follow the foreclosure requirements. They told the judge that everything else was in the file. The judge ruled for the company. His decision held that a separate challenge to the original mortgage was barred by an earlier federal lawsuit, but it said nothing about the auction claim or the evidence filed to support it.
What the court decided
In MTGLQ Investors, LP v. McGillen, No. 23-P-800 (Mass. App. Ct. September 6, 2024) (Rule 23.0 decision), the Appeals Court vacated the judgment and sent the case back for a new trial.
Former owners can challenge title. Summary process exists to let the holder of legal title get possession of property wrongfully withheld. In a post-foreclosure case, a former homeowner may challenge the new owner’s title and require it to prove that it got title by strictly following the power of sale in the mortgage. Bank of America, N.A. v. Rosa, 466 Mass. 613, 621 (2013). A successful challenge to the new owner’s title can make the foreclosure sale void. Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct. 382, 385 (2015).
The judge had to consider the evidence. The judge considered one of the homeowners’ defenses but gave no sign that he considered the evidence of problems with the 2020 auction, which the homeowners had filed with their motion and relied on at trial. In these circumstances, the court held, that omission required a new trial. The court did not decide whether the auction was actually defective. That question goes back to the Housing Court.
No answer, no waiver. The court also told the trial court and the parties that, under its own earlier decisions, the right to raise affirmative defenses is not waived just because no answer was filed. The court stressed how hard summary process is for people who face it without a lawyer.
The homeowners did not challenge the ruling that the earlier federal case barred their attack on the original mortgage, so the Appeals Court did not decide that issue.
What this means for you
If you lost your home to foreclosure and the new owner files an eviction, you are not limited to arguing about the eviction notice. You can attack the foreclosure itself by making the new owner prove it followed the mortgage’s power of sale to the letter. If it did not, the sale may be void, and so is its claim to possession.
But you have to put the evidence in front of the judge and make sure the judge deals with it. Here the homeowners got a new trial only because their exhibits were already in the court file. Relying on a judge to dig through the file is risky. Claims already lost in another lawsuit may also be barred.
What to do now
- Get copies of the foreclosure deed, the notices, the mortgage assignments and any record of the auction.
- File a written answer listing every defense, even though missing it may not waive your defenses.
- Offer your evidence about the foreclosure and the auction as exhibits at trial, not only with a motion.
- Ask the judge to rule on each defense, and keep a record of what you filed and when.
- Tell the court about any earlier lawsuit over the same mortgage, since it may limit what you can raise.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
