12 Jan Massachusetts Legislative Update
The Massachusetts legislature amended its laws regarding the right to cure notice in 2010 to create a new 150-day right to cure. This 150-day right to cure was only effective until December 31, 2015. As of January 1, 2016, the cure period has reverted back to 90 days.
MASSACHUSETTS SENATE BILL 2407
Any mortgagor on a residential real property located in the commonwealth consisting of a dwelling house with accommodations for 4 or less separate households and occupied in whole or in part by the borrower, must have a 90-day right (previously 150 days) to cure a default of a required payment as provided in such residential mortgage or note secured by such residential real property by full payment of all amounts that are due without acceleration of the maturity of the unpaid balance of such mortgage. The right to cure a default of a required payment must be granted once during any 5-year period (previously 3 years), regardless of the mortgage holder.
The lender, or anyone holding thereunder, may not accelerate maturity of the unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of a default consisting of the borrower’s failure to make any such payment by any authorized method or any other law until at least 90 days after the date a written notice is given by the lender to the borrower.
The required notice must inform the borrower of the following:
· The nature of the default claimed on such mortgage and of the borrower’s right to cure the default by paying the sum of money required to cure the default;
· The date by which the borrower must cure the default to avoid acceleration, a foreclosure or other action to seize the home, which date may not be less than 90 days after service of the notice and the name, address and local or toll free telephone number of a person to whom the payment or tender must be made;
· That, if the borrower does not cure the default by the date specified, the lender, or anyone holding thereunder, may take steps to terminate the borrower’s ownership in the property by a foreclosure proceeding or other action to seize the home;
· The name and address of the lender, or anyone holding thereunder, and the telephone number of a representative of the lender whom the borrower may contact if the borrower disagrees with the lender’s assertion that a default has occurred or the correctness of the lender’s calculation of the amount required to cure the default;
· The name of any current and former mortgage broker or mortgage loan originator for such mortgage or note securing the residential property;
· That the borrower may be eligible for assistance from the Massachusetts Housing Finance Agency and the Massachusetts Division of Banks (“Division”) and the local or toll free telephone numbers the borrower may call to request this assistance;
· That the borrower may sell the property prior to the foreclosure sale and use the proceeds to pay off the mortgage;
· That the borrower may redeem the property by paying the total amount due, prior to the foreclosure sale;
· That the borrower may be evicted from the home after a foreclosure sale;
· That the borrower may request from the lender a negotiated agreement to repay the mortgage on terms that are different from or alternative to the original terms of the mortgage and may request a copy of the mortgage, note, disclosure statement, and payment records; and
· A declaration, appearing on the first page of the notice stating: “This is an important notice concerning your right to live in your home. Have it translated at once.”
The Division will adopt regulations in accordance with these requirements; provided, however, that such regulations will provide that the declaration must be printed in:
· The five most commonly used non-English primary languages in Massachusetts, according to the most recent data available from the United States Census Bureau;
· The five most commonly used non-English primary languages in a particular region of the commonwealth according to census data for that region; or
· Whichever language the creditor has regularly used in its communication with the borrower.
A copy of the required notice and an affidavit demonstrating compliance with the above requirements must be filed by the lender, or anyone holding thereunder, in any action or proceeding to foreclose on such residential real property.
A copy of the required notice must also be filed by the lender, or anyone holding thereunder, with the commissioner of the Division (“Commissioner”). Additionally, if the residential property securing the mortgage loan is sold at a foreclosure sale, the lender, or anyone holding thereunder, must notify the Commissioner, in writing, of the date of the foreclosure sale and the purchase price obtained at the sale.