G.L. c. 244, §§ 14, 35A, 35B; U.S. Bank National Association v. Ibanez, 458 Mass. 637 (2011); Pinti v. Emigrant Mortgage Co., 472 Mass. 226 (2015); U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014)
Wrongful foreclosure in Massachusetts — before the sale and after it are different cases
A claim in Massachusetts trial courts · Last verified August 26, 2026
Massachusetts is a non-judicial foreclosure state. A lender with a mortgage containing a statutory power of sale can foreclose without ever filing a case, which means the homeowner is the one who has to go to court — and has to do it before the auction if possible.
That timing is the whole subject. Before the sale, a homeowner can seek to stop it. After a completed sale, the question narrows to whether the sale was void, and the answer depends on which requirement the lender missed. Massachusetts has drawn a sharp line: some defects void a sale, and some do not.
What the claim is
A lender foreclosed on your home, or is about to, and did not follow the law or the mortgage.
Where the right comes from
G.L. c. 244 for the power of sale and its notices, the mortgage contract itself, and chapter 93A.
The defects that void a sale
Not holding the mortgage — Ibanez. U.S. Bank National Association v. Ibanez, 458 Mass. 637 (2011), holds that the foreclosing entity must hold the mortgage at the time it exercises the power of sale and publishes the notice. An assignment executed after the auction does not fix it. A sale by a party that did not yet hold the mortgage is void, and the buyer takes nothing.
A defective paragraph 22 notice — Pinti. Pinti v. Emigrant Mortgage Co., 472 Mass. 226 (2015), holds that the foreclosing party must strictly comply with the notice-of-default provision in paragraph 22 of the standard Massachusetts mortgage, because that provision is part of the power of sale. A notice that departs from what paragraph 22 requires renders the sale void, not merely voidable.
Pinti is prospective. It applies to notices sent after July 17, 2015 — and, under Federal National Mortgage Association v. Marroquin, 477 Mass. 82 (2017), to any case in which the issue was "timely and fairly asserted" in the trial court or on appeal before that date.
The defect that does not — § 35A
G.L. c. 244, § 35A gives a residential borrower a 90-day right to cure before acceleration, with a notice specifying the default and what will end it.
A § 35A defect does not void a completed sale. U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014), holds that § 35A is a pre-foreclosure consumer-protection step, not part of the power of sale — so failing to comply does not invalidate the title that passed.
That does not make § 35A worthless. Before the sale it supports an injunction, and a violation is regularly pleaded as a 93A claim, which carries the multiplier and mandatory fees the foreclosure statute does not.
Section 35B requires a lender to undertake a good-faith loan modification analysis for certain mortgage loans before foreclosing, comparing the net present value of a modified loan against foreclosure. Section 35C addresses the affidavit of compliance the foreclosing party must record.
What a plaintiff has to prove
There is no single "wrongful foreclosure" cause of action. The claim is assembled from:
- The foreclosing party did not hold the mortgage when it published and sold — Ibanez;
- The paragraph 22 notice was defective — Pinti;
- The statutory notices under c. 244 § 14 were not given or published as required;
- Section 35A, 35B or 35C was not complied with; and
- Unfair or deceptive conduct, for the 93A count.
Together with a claim to the relief that follows — a declaration that the sale was void, an injunction, possession, or damages.
How long you have to file
Three years for a tort theory, under G.L. c. 260, § 2A.
Four years for the 93A count, under G.L. c. 260, § 5A, running from when the homeowner knew or should have known of the injury.
Six years on a contract theory against the lender, under c. 260 § 2.
Before the sale is the deadline that matters. Once the auction happens and the deed is recorded, the case changes character entirely.
What has to happen before you file
Nothing procedural — but the 93A demand letter, 30 days, is required for the 93A count unless it is asserted as a counterclaim in the lender's own summary process case, which is where many of these disputes are litigated in practice.
What the claim pays
An injunction stopping the sale, which is the most valuable remedy and the one that requires acting first.
A declaration that the sale was void, and possession — where Ibanez or Pinti applies.
Chapter 93A relief — actual damages or $25, doubled or trebled for a willful or knowing violation, and mandatory attorney's fees. Where a homeowner has lost the house, this is usually the only route to money.
Emotional distress damages, in a 93A claim, where the conduct caused them.
Twelve percent interest.
No statutory multiplier under c. 244 itself, and no fee-shifting in the foreclosure statute.
The problem after a completed sale
Once a foreclosure sale is complete, three things narrow the case.
A third-party purchaser complicates everything. Where the buyer at auction was an unrelated party who paid value, courts are far more reluctant to unwind the sale than where the foreclosing bank bought the property itself — which it usually does.
Money damages against the lender are hard to obtain on the foreclosure statutes alone, because those statutes do not create a damages remedy. The 93A count is the vehicle.
The homeowner is often already a defendant. After the sale the lender files summary process for possession, and the title defence is raised there — which is why the foreclosure fight and the eviction fight are frequently the same case.
Which court
Superior Court, for an injunction, a declaration of void title, or damages.
Land Court, which has jurisdiction over title matters and over the Servicemembers proceeding that precedes most foreclosures.
Housing Court, where the dispute arrives as a summary process case after the sale — and the Housing Court can try title in that posture.
District Court or the Boston Municipal Court, for a summary process case within their reach.
Who can be sued
The foreclosing entity — the holder of the mortgage, or the party that claimed to be.
The servicer, for its own conduct in the modification process and the notices.
The purchaser at the sale, as a necessary party where the claim is that the sale was void.
Common defenses
- The foreclosing party held the mortgage at the relevant time, with a recorded chain to prove it.
- Pinti does not apply — the notice predates July 17, 2015 and the issue was not preserved.
- Schumacher — a § 35A defect does not void the sale.
- The borrower defaulted, which is not itself a defence to a defective foreclosure but shapes the equities and the damages.
- Laches or limitations, particularly where years passed after the sale.
- A bona fide purchaser took the property.
What people get wrong
Not every violation voids the sale. Ibanez and Pinti defects do. A § 35A defect does not.
Before the sale is a different case from after it. An injunction is available before; afterwards the question is whether the sale was void, and the practical remedy is often a 93A claim.
Being behind on the mortgage does not defeat the claim. The lender still has to follow the law.
The 93A count is where the money is. Chapter 244 shifts no fees and supplies no multiplier.
Pinti is not retroactive, and that surprises homeowners whose notices predate July 2015.
Where it came from
Massachusetts allows foreclosure without a court because the mortgage grants a power of sale, and the statutory notice requirements are what stands in for judicial supervision. That arrangement worked tolerably while mortgages stayed where they were written.
Securitisation broke it. Loans were pooled, assigned repeatedly and often documented after the fact, and by 2008 foreclosures were being conducted by entities that could not show they held the mortgage at the time. Ibanez said what the law had always said and nobody had needed to enforce: a party without the mortgage has no power of sale, and a sale it conducts is void.
Pinti extended the same logic from the statute into the contract. If the mortgage says the lender must give a particular notice before accelerating, that notice is a condition of the power of sale, and strict compliance means strict.
Schumacher drew the boundary. Section 35A is a consumer protection the Legislature added in 2007, and it precedes the foreclosure process rather than forming part of it — so its violation gives a remedy without unwinding title. The line between the three cases is the single most useful thing to understand about Massachusetts foreclosure litigation, because it determines whether a homeowner is arguing about their house or about money.
Common questions
Can I stop a foreclosure in Massachusetts?
Before the sale, yes — a court can enjoin it. That is the moment when the remedies are widest.
What makes a foreclosure sale void?
Foreclosing without holding the mortgage at the time of the notice and sale (Ibanez), or a defective paragraph 22 notice of default (Pinti, for notices after July 17, 2015).
What about the 90-day right to cure notice?
A defect in the § 35A notice does not void a completed sale — Schumacher. It can still support an injunction before the sale and a chapter 93A claim.
How long do I have to sue?
Three years on a tort theory, four on chapter 93A, six on a contract theory — but the practical deadline is the auction date.
Can I recover attorney's fees?
Not under chapter 244. Chapter 93A supplies mandatory fees where a violation is found.
Can I get my house back after the sale?
Only if the sale was void, and it is far harder where an unrelated buyer purchased at auction.