Massachusetts Land Court and the Servicemembers Civil Relief Act: Why Boston Foreclosures End Up in Litigation
The $340,000 Dorchester Triple-Decker That Came Back to Haunt
An investor purchased a three-family property in Dorchester at a foreclosure auction in 2019 for $340,000. The property had been through what appeared to be a standard Massachusetts non-judicial foreclosure—notice of default, publication in the Boston Herald, auction on the courthouse steps. The investor obtained an owner's title policy, renovated two of the units, and began collecting $6,200 per month in rent.
Eighteen months later, the former owner's attorney filed a complaint in Massachusetts Land Court seeking to vacate the foreclosure sale. The grounds: the foreclosing lender had failed to comply with the Servicemembers Civil Relief Act affidavit requirements mandated by Massachusetts General Laws Chapter 244, Section 17B. The former owner was not, and had never been, a servicemember. That didn't matter. The lender's affidavit was defective—it referenced the wrong loan number and was signed by a robo-signer who later admitted in a deposition that she had no personal knowledge of the borrower's military status.
The Land Court found the foreclosure procedurally defective. The investor's title insurance policy covered the loss, but the litigation took two years and the investor lost the property. The title company paid out $485,000—the appreciated value—but the investor had lost rental income, renovation costs, and the opportunity cost of capital tied up in litigation.
This is not an unusual outcome in Massachusetts. The state's foreclosure framework creates more litigation exposure than almost any other jurisdiction in the country, and the intersection of Land Court procedures and federal SCRA requirements is the primary reason.
Why Massachusetts Foreclosures Generate Litigation
Massachusetts operates as a non-judicial foreclosure state under G.L. c. 183, § 21, and G.L. c. 244, §§ 11-17B. Lenders can foreclose by exercising a power of sale contained in the mortgage without filing a lawsuit. This sounds investor-friendly—faster timelines, fewer procedural hurdles—but the reality is more complicated.
Because there is no judicial oversight during the foreclosure process itself, borrowers who wish to challenge a foreclosure must affirmatively file suit after the fact. And Massachusetts has created a specialized forum specifically designed to hear these challenges: the Land Court Department of the Trial Court.
The Land Court has exclusive original jurisdiction over most real property matters in Massachusetts, including actions to try title, actions to determine the validity of a tax title, and crucially, actions to vacate or set aside foreclosure sales. Under G.L. c. 185, § 1, the Land Court can hear "all cases and matters cognizable under the general principles of equity jurisprudence" relating to real property.
This creates a one-two punch for foreclosure investors:
- The non-judicial process means no court has blessed the foreclosure before you buy
- A well-funded forum exists specifically to challenge your title after you buy
The Land Court is staffed by judges who specialize in real property law. They know what constitutes a defective foreclosure. They know when an SCRA affidavit is insufficient. And they have seen enough cases to be skeptical of boilerplate compliance.
The Servicemembers Civil Relief Act: Federal Law, State Implementation
The Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901-4043, is a federal statute that provides protections to active-duty military personnel. Section 3931 (formerly Section 521) imposes a stay on certain legal proceedings against servicemembers, and Section 3953 (formerly Section 533) specifically addresses mortgage foreclosures.
Under Section 3953, a sale, foreclosure, or seizure of property for a breach of a mortgage obligation is not valid if it occurs during the servicemember's period of military service or within one year after that period, except pursuant to a court order or agreement. The lender must obtain a court order before proceeding, even in a non-judicial foreclosure state.
Massachusetts incorporated these requirements into state law through G.L. c. 244, § 17B, which mandates that before conducting a foreclosure sale, the mortgagee must execute and record an affidavit stating that the mortgagee has determined, "in the manner prescribed by the Servicemembers Civil Relief Act," whether the mortgagor is in military service.
The statute is specific about what the affidavit must contain:
- A statement that the mortgagee has made a good faith effort to determine whether the mortgagor is a servicemember
- The results of that determination
- A description of the basis for the determination
This affidavit must be recorded prior to the foreclosure sale. If it is not recorded, or if it is defective, the foreclosure is voidable.
The Eaton Decision and Its Aftermath
The Massachusetts Supreme Judicial Court's 2012 decision in Eaton v. Federal National Mortgage Association, 462 Mass. 569, transformed foreclosure practice in Massachusetts. The court held that a foreclosing mortgagee must hold both the note and the mortgage at the time of the foreclosure sale, and must have the authority to exercise the power of sale at that precise moment.
While Eaton primarily addressed the note-holder question, it signaled the SJC's willingness to strictly construe foreclosure requirements. Post-Eaton, borrowers' attorneys began scrutinizing every aspect of the foreclosure process, and SCRA affidavits became a target-rich environment.
The problem is that during the 2008-2012 foreclosure crisis, many lenders used robo-signers to execute SCRA affidavits. These individuals signed thousands of affidavits without actually performing the required military status verification. When borrowers challenged these affidavits in Land Court, they often prevailed—not because the borrower was a servicemember, but because the affidavit was not executed in good faith or did not accurately describe the basis for the determination.
In Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), decided the year before Eaton, the SJC had already demonstrated its approach to defective foreclosures. The court held that a foreclosure sale conducted by an entity without authority to foreclose was void ab initio—not merely voidable. The purchaser at that sale received nothing, and could not use a subsequent try title action to perfect ownership.
This created a nightmarish scenario: an investor could purchase at foreclosure, hold the property for years, and then discover that the original foreclosure was void and they never owned the property at all.
Specific SCRA Affidavit Defects That Trigger Land Court Litigation
Based on reported Land Court decisions and practitioner experience, the following SCRA affidavit defects most commonly result in successful challenges:
Stale Military Status Checks: The affidavit must reflect a determination made reasonably close in time to the foreclosure sale. An affidavit based on a Defense Manpower Data Center (DMDC) search conducted six months before the sale may be insufficient if the borrower enlisted in the interim. Land Court judges have required that the search be conducted within 30 to 60 days of the sale.
Wrong Borrower Searched: In loans with multiple borrowers, the mortgagee must verify the military status of all borrowers. An affidavit that only addresses the primary borrower when a spouse was also on the note can be defective.
Robo-Signing Without Verification: If the affiant did not personally review the DMDC results or have a system in place to verify the search was conducted, the affidavit lacks the "good faith" basis required by statute. Discovery in Land Court litigation often reveals that the affiant signed hundreds of affidavits per day and had no personal knowledge of any particular borrower's status.
Failure to Record Before Sale: The affidavit must be recorded at the applicable registry of deeds before the sale. Recording the affidavit the day after the sale, or recording it only with the foreclosure deed, does not comply with § 17B.
Incorrect Loan Information: An affidavit that references the wrong loan number, wrong property address, or wrong borrower name may be deemed ineffective, even if the underlying military status determination was accurate.
Statute of Limitations and the Try Title Problem
Massachusetts has a three-year statute of limitations for actions to recover real property under G.L. c. 260, § 21. However, this does not protect foreclosure purchasers as much as it might seem.
First, the limitations period may not begin to run until the defect is discovered, particularly where the challenge sounds in equity rather than at law. A borrower who did not learn of the SCRA affidavit defect until years after the sale may argue that the limitations period had not yet begun.
Second, if the foreclosure is deemed void (as opposed to merely voidable), some courts have held that no statute of limitations applies because a void deed conveys nothing. The investor has no title to defend, and the original owner's title was never extinguished.
Third, a try title action under G.L. c. 240, §§ 1-5 or a registration petition under G.L. c. 185 will not cure a void foreclosure. In Bevilacqua, the SJC specifically rejected the argument that a try title action could "wash" a defective foreclosure title. The court noted that "one who acquires title by a void deed has no title at all" and cannot bootstrap ownership through litigation.
This means that even seasoned title attorneys cannot tell you with certainty whether a foreclosure from eight years ago is truly safe. If the SCRA affidavit was defective and the foreclosure was void, that defect may still be lurking.
Suffolk County and the Boston Market
Suffolk County—encompassing Boston, Chelsea, Revere, and Winthrop—has the highest concentration of foreclosure litigation in Massachusetts. This is partly a function of property values (more money at stake justifies the cost of litigation) and partly a function of the aggressive plaintiffs' bar in Boston.
The Suffolk County Registry of Deeds has recorded thousands of foreclosure deeds since 2008, and a significant percentage of those involved SCRA affidavits executed during the robo-signing era. These properties continue to trade, and each subsequent purchaser inherits the risk that the original foreclosure was defective.
An investor considering a Suffolk County property that went through foreclosure between 2008 and 2014 should assume that the SCRA affidavit needs to be examined carefully. The questions to ask:
- Who signed the affidavit, and was that person later identified as a robo-signer in any litigation?
- When was the DMDC search conducted relative to the foreclosure sale date?
- Were all borrowers on the original note covered by the affidavit?
- Was the affidavit recorded before the sale, and can you prove that with registry timestamps?
If the answer to any of these questions is "I don't know," the property carries SCRA risk.
What TitlePin Would Have Shown
A TitlePin report on the Dorchester triple-decker would have flagged several risk factors before the investor bid at auction.
First, the report would have identified that the property had an active or recently completed foreclosure and that the foreclosure occurred during the 2008-2014 period when SCRA affidavit compliance was systemically deficient across the industry.
Second, TitlePin's court records integration would have shown whether any litigation had been filed in Land Court or Suffolk Superior Court involving the property or the borrower. In many cases, borrowers file suit before the foreclosure sale is complete, creating a cloud on title that persists through the auction.
Third, the chain of title analysis would have identified the foreclosing entity and cross-referenced it against known robo-signing settlements and consent orders. Certain servicers and their foreclosure mill law firms were specifically identified in the 2012 National Mortgage Settlement as having systemic SCRA compliance failures.
Fourth, TitlePin would have flagged the gap between the SCRA affidavit recording date and the foreclosure sale date. A recording date after the sale date—or a suspiciously close recording date suggesting a rushed cure attempt—would have been noted as a risk factor.
Armed with this information, the investor could have either avoided the property entirely, demanded a significant price reduction to account for litigation risk, or required the seller to escrow funds pending a quiet title action.
The Cost of Land Court Litigation
Defending a Land Court action to vacate a foreclosure sale is expensive. Attorney's fees alone typically range from $25,000 to $75,000 for a contested case, and that assumes no appeal to the Appeals Court or SJC.
More significantly, the litigation creates uncertainty that affects the property's value and marketability. An investor cannot refinance a property with active Land Court litigation. They cannot sell it except to another investor willing to assume the risk at a steep discount. And they cannot obtain clear title insurance until the litigation resolves.
If the borrower prevails, the investor may be entitled to restitution of the purchase price—but only from the foreclosing lender, not from the borrower. If the lender is defunct, merged, or judgment-proof, the investor may be left without recourse.
Title insurance should cover this risk, but coverage is not automatic. Many policies contain exclusions for "defects known to the insured" or for properties acquired at foreclosure. An investor who purchased without a fresh title search, or who knew of potential SCRA issues and proceeded anyway, may find the claim denied.
How to Mitigate SCRA and Land Court Risk
Massachusetts foreclosure investors should implement the following protocols:
Review the SCRA Affidavit Before Bidding: Obtain a copy of the recorded affidavit from the registry of deeds. Verify the recording date, the affiant's name, the loan number, and all borrowers covered. If anything looks irregular, investigate further or walk away.
Check Land Court Dockets: The Massachusetts Trial Court electronic case access system (masscourts.org) allows searches by party name and address. Search for any pending or historical Land Court cases involving the property address, the borrower's name, and the foreclosing lender.
Confirm Note-Holder Status: Post-Eaton, the foreclosing entity must have held the note at the time of sale. Request documentation of the assignment chain and compare it to recorded instruments.
Budget for Quiet Title: If the property is otherwise attractive, budget for a Land Court quiet title action post-purchase. This costs $10,000 to $20,000 in a non-contested case and provides a court order confirming title.
Obtain Owner's Title Insurance: Even if you typically self-insure, Massachusetts foreclosure properties warrant title insurance. The premium is a small price for coverage against SCRA defects and Eaton challenges.
Key Takeaways
- Massachusetts foreclosures require SCRA affidavits under G.L. c. 244, § 17B; a defective affidavit can void the sale even if the borrower was never a servicemember
- The Land Court is a specialized forum that hears foreclosure challenges and applies strict scrutiny to procedural compliance
- Foreclosures conducted between 2008 and 2014 have elevated SCRA risk due to widespread robo-signing practices
- A void foreclosure cannot be cured by a try title action under Bevilacqua—the original owner's title is never extinguished
- Suffolk County properties require heightened diligence due to high litigation rates and aggressive plaintiffs' counsel
Sources
- Massachusetts General Laws Chapter 244, Sections 11-17B (Foreclosure by Power of Sale)
- Massachusetts General Laws Chapter 185, Section 1 (Land Court Jurisdiction)
- Massachusetts General Laws Chapter 240, Sections 1-5 (Actions to Quiet Title)
- Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901-4043
- Eaton v. Federal National Mortgage Association, 462 Mass. 569 (2012)
- Bevilacqua v. Rodriguez, 460 Mass. 762 (2011)
- Suffolk County Registry of Deeds (suffolkdeeds.com)
- Massachusetts Trial Court Case Access (masscourts.org)