Massachusetts Foreclosure Law
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of Trust, Mortgage
- Timeline: Usually 90 days
- Right of Redemption1: No
- Deficiency Judgments2 Allowed: No
Lenders in the state of Massachusetts may foreclose on a deed of trust or mortgage in default using either an entry by possession or non-judicial foreclosure process. Entry by possession is rarely used. The non-judicial foreclosure process is the most used option.
Foreclosure by Possession
After the borrower defaults on the mortgage, the lender may recover possession of the property if the borrower defaults on the mortgage by:
- obtaining a court order;
- entering the property peaceably; or
- with the borrower’s consent.
If the lender maintains possession peaceably for three (3) years from the date of possession, the borrower loses all rights of redemption.
Non-Judicial Foreclosure
If a power of sale clause exists in the deed of trust or mortgage document, a non-judicial process of foreclosure is used. This allows the lender to sell the property and pay off the balance of the loan in the event the homeowner defaults. The power to sell may be completed by the lender or their representative in situations where a power of sale exists. The procedure for this type of foreclosure process is explained in the "Power of Sale Foreclosure Procedure" listed below.
Power of Sale Foreclosure Procedure
If the deed of trust or mortgage has a power of sale clause and it details the time, place and terms of sale, then the outlined procedure must be followed. However, if the power of sale clause does not clarify the time, place and terms of sale, then a foreclosure sale is conducted as follows:
- Notice of the foreclosure sale is published once a week for three (3) weeks in a publication where the property is located. The first publication of the advertisement is at least twenty-one (21) days prior to sale. Notice is also sent by registered mail to any owner whose interest was recorded as of thirty (30) days prior to the sale. The actual date of mailing must be at least fourteen (14) days prior to the foreclosure sale.
- The sale is conducted at public auction on the date, time and place specified in the notice of sale. The property is sold to the highest bidder.
The borrower has no rights of redemption. The lender can sue for a deficiency judgment if the statutory notice of intention to foreclose was sent at least twenty-one (21) days before the sale and the affidavit that the sale was complete was recorded thirty (30) days after the sale. If this occurs, the lender has up to two (2) years to file a for a deficiency judgment.
1 A borrower’s right to reacquire property lost due to a foreclosure.
2 A personal judgment against the borrower for the remaining balance on the loan after a foreclosure sale.
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