Usually not. The Appeals Court held that a person living in a foreclosed home who never signed the mortgage cannot defend an eviction by arguing that the lender’s pre-foreclosure default notice was defective, because those notice rights belong to the borrower alone. This is a published decision of the Appeals Court and is binding statewide.
What happened
The borrower bought the home in 1999 and gave a mortgage in 2005. The occupant was not a party to the mortgage or the note. In 2009 the borrower deeded his interest in the home to the occupant, subject to the mortgage, and he stayed solely responsible for the loan. After the loan went into default, the servicer sent the borrower a default notice in 2016. The lender foreclosed, and its foreclosure deed was recorded in April 2018. Days later it sent notices to vacate to the occupants and then filed a summary process case in the Northeast Housing Court. After a 2023 trial, the judge found the occupant could raise the notice issue but had not proved it, and entered judgment for possession for the lender. The occupant appealed.
What the court decided
In MTGLQ Investors, LP v. McIntosh, No. 24-P-1091 (Mass. App. Ct. December 11, 2025), the Appeals Court affirmed.
No standing to raise the notice defect. A lender selling under a mortgage’s power of sale must first comply with the terms of the mortgage. G.L. c. 183, § 21. Under Pinti v. Emigrant Mortgage Co., 472 Mass. 226 (2015), a lender must strictly comply with the default notice rules in paragraph 22 of a standard mortgage, and a notice that falls short can make the foreclosure void. The occupant argued the 2016 notice did not comply. The court said she had credible arguments that it did not, but it did not decide the point. Instead it held she had no right to raise the issue. Only the parties to a contract, or people it was meant to benefit, may enforce it. The notice rights in paragraph 22 belong to the borrower. Pinti was a case brought by borrowers and did not address anyone else’s standing. Letting non-borrowers attack old notices years later would also be unfair to buyers who rely on foreclosure titles.
How this differs from a note challenge. In U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291 (2019), a tenant in possession who never signed the note could still argue the foreclosure was invalid because the lender failed to prove it held the note. The difference is that the tenant there was not trying to enforce a contract term meant for someone else. The occupant here was. So Johnson did not help her.
The lender’s case for possession. A foreclosing owner makes its basic case for possession by producing an attested copy of the recorded foreclosure deed and the affidavit of sale required by G.L. c. 244, § 15. A Pinti problem is a defense the occupant must raise, not something the owner must disprove.
The notice to vacate was enough. The occupant essentially conceded she was a tenant at sufferance. The court held she was owed only reasonable notice that the new owner intended to take possession. The notice told occupants to leave within 72 hours unless they were tenants who rented before the foreclosure, and the court found that adequate for her.
What this means for you
If you live in a home that was foreclosed but you never signed the mortgage, you may not be able to use the most common foreclosure notice defense. That can include a former spouse or family member who received the home by deed while the original borrower stayed on the loan.
That does not mean you have no defenses. A tenant or occupant may still be able to challenge whether the foreclosing party actually held the note, or raise other problems with the foreclosure that do not depend on enforcing the borrower’s mortgage rights. The court’s reasoning also covers a tenant who rented from the former owner, so a tenant may not be able to raise a paragraph 22 defect either. Tenants who rented before the foreclosure do have separate protections under other laws.
If you took a home subject to someone else’s mortgage, this case is a warning. Your ability to protect the home may depend on the borrower, so pay close attention to the loan.
What to do now
- Find out whose name is on the mortgage and note, and get copies of both.
- Gather your deed, any lease or rent records, and every notice you received after the foreclosure.
- If the borrower is still involved, ask whether they received a default notice and keep a copy.
- Read your court papers right away and file an answer by the deadline on the summons.
- Talk to a lawyer about which defenses you can raise as a non-borrower.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
