Massachusetts' Highest Court Upholds Dismissal of Purchaser's Try Title Action Because of Defects in Underlying Foreclosure

On October 18, the Massachusetts Supreme Judicial Court held that a homeowner who purchased a property from a foreclosing lender could not establish that he held record title to a property because of defects in the underlying foreclosure. Bevilacqua v. Rodriguez, Slip Op. SJC-10880 (Mass. Oct. 18, 2011). As a result, the Court upheld the Land Court's decision dismissing a try title action (quiet title action) brought by the homeowner. The alleged defect in the underlying foreclosure sale was the failure of the foreclosing party to show that it was a valid assignee of the mortgage prior to commencing the foreclosure proceeding. In January 2011 the Court held in U.S. Bank Nat'l Ass'n v. Ibanez that a foreclosing party is required to show that it was the holder of the relevant mortgage at the time of the publication of notice and at the time of the foreclosure sale, pursuant to an effective assignment. In Ibanez the court noted that "[a] plaintiff that cannot make this modest showing cannot justly proclaim that it was unfairly denied a declaration of clear title." Despite the urging of amici to reconsider the Ibanez holding, the court refused to do so, extending the Ibanez standard to a homeowner who purchases from a foreclosing party that cannot make the requisite showing. The court did, however, note that the try title action should have been dismissed without prejudice so as to not prevent the homeowner "from bringing other actions regarding title to the property."