Time heals all wounds, the old saying goes. But can it fix flawed foreclosures? Title insurers sure hope so.
After the Supreme Judicial Court’s Ibanez ruling, which said banks had to own the mortgage prior to foreclosure, title insurers had a problem on their hands: Thousands of properties had been illegally foreclosed on and sold to new owners.
“Owners of the property who obtain title though a foreclosure that violated the Ibanez decision can’t get [a new] owner’s title insurance policy, without exception, for the lack of a valid assignment,” said , a title attorney at Connecticut-based CATIC, at a recent foreclosure conference held at Suffolk University. “That makes title unmarketable.”
If last week’s ruling on Bevilacqua has made one thing clear, it’s that there isn’t a simple solution to clean up those titles.
But the passage of time could provide a remedy, through a somewhat obscure provision of real estate law known as “foreclosure by entry.”
When most people think of the typical foreclosure procedure – the bank notifying the owner that they intend to foreclose, and then holding an auction – it is known as “foreclosure by sale.” It has been the process used in the overwhelming majority of foreclosure cases since the 19th century.
But the law has long held that there are other ways for the holder of a mortgage to foreclose. The foreclosure by entry route involves the lender going to the property, publicly taking it over and recording the process. This essentially allows mortgage holders to take back abandoned properties. The only catch is that the lender has to wait three years before they can sell the property in a foreclosure by entry.
Because of time constraints, lenders prefer the foreclosure-by-sale route. But they routinely take a “belt-and-suspenders” approach to the foreclosure process, recording a foreclosure by entry at the same time as the foreclosure by sale.
Title insurers believe that precaution will spare them now: Though there may be thousands of properties which were foreclosed on improperly in the past few years, foreclosure by entry will eventually take hold and original owners will no longer be able to try and take back their homes.
There’s some evidence that courts will be sympathetic to their argument.
At the same Suffolk conference, Judge Keith Long of the Massachusetts Land Court – the lower court judge in both the Ibanez and Bevilacqua cases – said he thought that foreclosure by entry could establish clear title.
But the fact remains that courts have yet to rule on whether foreclosure by entry will fix flawed, Ibanez titles. Lawyers said the issues may prove more complicated than they first appear. If the lender recorded a foreclosure by entry before being assigned the mortgage, does the clock start running “from the time you got it, the time you made the entry, or at all?” said Gary P. Lilienthal, a partner with law firm Bernkopf Goodman in Boston.
Such issues, he said, are “very tricky, very complicated, and it makes you think. There is no clear direction here.”





