It can. In a June 2025 case, a court had thrown out the first foreclosure because of a bad notice and reinstated the mortgage as if the sale never happened. The lender then sent a new notice demanding every payment missed in between and foreclosed again, and the Appeals Court upheld the new buyer’s eviction case, finding the new default notice complied with the mortgage. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 homeowner and a co-borrower stopped paying the mortgage and real estate taxes in late 2010. The servicer sent a default notice in 2011 and sold the home at foreclosure in 2012. The homeowner beat the buyer’s eviction case because the 2011 notice was legally defective, and a Superior Court judgment then rescinded that foreclosure and reinstated the mortgage as if the foreclosure had never happened. In 2016 the servicer sent a new default notice by certified mail to the property address, listing every missed payment since 2010. The homeowner did not cure, the home was sold again in 2018, and the new buyer filed an eviction case in Housing Court. The judge granted the buyer summary judgment, and the homeowner appealed.
What the court decided
The Appeals Court affirmed in Espinola v. Murphy, No. 24-P-486 (Mass. App. Ct. June 20, 2025) (Rule 23.0 decision).
To win possession after a foreclosure, the buyer must show valid title and that the foreclosure strictly complied with the mortgage and Massachusetts law. The Supreme Judicial Court has held that strict compliance includes the notice of default terms in paragraph 22 of a standard mortgage. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226 (2015).
The amount demanded. The homeowner argued the 2011 notice had already accelerated the loan, so the 2016 notice could not demand payments that came due after 2011. The court disagreed. The judgment that voided the first foreclosure put the mortgage back in full force as if the foreclosure had never happened. That meant the loan was effectively never accelerated in 2011, and the servicer could demand everything due through 2016. The 2016 notice met paragraph 22.
The notice address. Paragraph 15 of the mortgage said notices go to the property address unless the borrower designates a different one. The homeowner claimed the co-borrower had changed the notice address to an out-of-state home. But the only proof was her own affidavit and one loan statement mailed there. Nothing in the record showed a request to change the notice address. Because the notice went by certified mail to the property address, paragraph 15 was satisfied.
The right to cure notice. G.L. c. 244, § 35A requires a separate right to cure notice, sent by first class and certified mail to the borrower’s last known address. The homeowner argued the notice failed that test. The court said that challenge belonged in a separate equity case in Superior Court, not in the post-foreclosure eviction, relying on U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421 (2014). Schumacher holds that § 35A is not part of the power of sale itself, so a § 35A defect does not automatically void the buyer’s title.
What this means for you
Winning against a defective foreclosure is a real victory, but it may not end the story. If the court reinstates the mortgage, the debt is still there. The lender can start over with a correct notice, and the arrears keep growing in the meantime.
This case also shows how much paperwork matters. If you or a co-borrower changed the address where the lender should send notices, you need written proof that the request was made and received. Your own memory, or a stray statement mailed to another address, may not be enough.
Finally, the forum matters. A defect in the § 35A right to cure notice is not an automatic defense to a post-foreclosure eviction. It may need to be raised in a separate lawsuit or as a counterclaim, and it is safest to raise it early, before the sale.
What to do now
- Read every default and right to cure notice the day it arrives, and note the cure date.
- Keep copies of any letter you sent the lender changing your notice address, with proof of mailing.
- If you win against a foreclosure, make a plan right away to address the arrears, such as a modification, refinance, or sale.
- If you think a notice is defective, get advice quickly about whether to file a separate action in Superior Court before the sale.
- If you receive an eviction notice after a foreclosure, file an answer on time and raise every defense that applies.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
