The deadline is quickly approaching for filings in the reconsideration of the controversial Massachusetts Land Court case that invalidated two mortgages because of improperly dated and recorded mortgage assignments.

After Monday’s deadline, Judge Keith Long will look at the arguments, amicus briefs and other filings to decide whether he should alter his March 26 decision that has affected every facet of real estate in the commonwealth.

In that decision, in the cases U.S. Bank v. Ibanez and Wells Fargo v. Larace, Long ruled U.S. Bank’s foreclosure of a Springfield home was invalid, because the bank could not prove it owned the mortgage title when it publicized the foreclosure auction nor when the auction was actually held.

However the practice of backdating mortgage assignments after foreclosures was common practice, and Long’s decision has thrown Realtors with pending REO sales, title insurers, conveyancers, homeowners who recently purchased foreclosed homes and the mortgage brokers who financed them into limbo.

The Real Estate Bar Association (REBA) has filed a "statement of interest" in the case – the first time it has made such a filing below the appellate level. The statement asks Long to reconsider his decision on the legality of backdating mortgage assignments, pointing out that while the decision was a valiant attempt to curb the foreclosure pandemic, the decision has had many unintended consequences and could cause more harm than good.

"The decision creates a bright line distinction concerning the dating and recording of assignments of mortgage, such that an incorrectly dated and recorded assignment unintentionally creates an unmarketable title for thousands of innocent buyers of REO property and their new lenders," said Edward Rainen, an author of REBA’s filing. "By default, it does not punish the original lenders who acted incorrectly, nor will it benefit the original borrowers, who are already foreclosed."

The lawyers for U.S. Bank and Wells Fargo, Ablitt Law Offices, have filed memos to have Long vacate his own decision. Ablitt began this process by filing a suit to get the opinion of the court whether a foreclosure notice posted for a property in Springfield could be published in the Boston Globe, instead of the Springfield Republican.

Long decided the Globe was sufficient, but then decided the foreclosures were invalid because of the backdated mortgage assignments – a far cry from what Ablitt had intended.

Representatives from Ablitt Law Offices did not return calls for comment by press time.

One group, at least, is going to file for Long to keep his decision just the way it is. Kevin Costello, a lawyer at Roddy, Klein, and Ryan in Boston, has filed an amicus brief supporting Long’s original decision. Costello is participating in a class-action lawsuit, Manson et al. v. GMAC Mortgage, in the federal district court of Massachusetts that essentially came to the same conclusion as the March 26 Land Court decision.

Costello argued mortgage servicers and banks can only harm consumers by playing fast and loose with the paperwork and backdating assignments.

"The banks have set up a system whereby following the law has taken a backseat to expediency and convenience," Costello said in an e-mail. "In their rush to foreclose, these institutions often only execute the proper mortgage assignment months after the auction has occurred, if ever. Where there is lag time between the foreclosure and the execution of a proper mortgage assignment, there is clear evidence that the system is broken.

"The banks have argued that Judge Long’s opinion will create a crisis in Massachusetts," Costello said. "From our clients’ perspective, the real crisis lies in the explosion in the number of homeowners who have lost their homes in recent years, especially where the statutory foreclosure process was not properly followed." 

There will not be a public hearing on Monday; it is only the deadline for filings. After the deadline, Judge Long will take the case back under consideration and render a decision sometime in the near future. Long’s clerk, Steven Smith, said the case was "of the utmost importance" to Judge Long, but could not give a timetable for a final decision.