A recent decision from Massachusetts’ highest court could impact courts across the country. It is the first state supreme court to rule that only the holder of a mortgage may foreclose on a property. The opinion invalidates foreclosure sales by two banks that had been assigned mortgages on the properties, and calls into question the validity of countless other foreclosures across the country. In the decision, Judge Ralph D. Gants wrote that the foreclosure sales in question were invalid because the banks failed to show that they held the mortgages at the time of foreclosure. “As a result,” he said, “they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties.” The banks had claimed that “securitization documents” they submitted established valid assignments that made them the holders of the two mortgages before the notice of sale and the foreclosure sale. But the court disagreed. A “foreclosing entity must hold the mortgage at the time of the notice and sale” to establish authority to foreclose.”
In Boerst v. Opperman, 2011 WI 5 (Feb. 3, 2011), a unanimous Wisconsin Supreme Court – in an opinion written by Chief Justice Shirley Abrahamson decided that where property owners considered a road between thier respective properties the true boundary for over 100 years, that the road in effect, became the boundary. This was the case even though boundary markers indicated that the boundaries were different. The decision is interesting in that it shows the operation of laws can vary the explicit legal description recorded or reflected in boundary markers. You may have boundary disputes with your neighbors, or problems concerning easements. Often times where you think the boundary is, is different that what your neighbor thinks. Further a judge may disagree with both property owners. Our firm routinely assists our clients with boundary disputes, easements and judicial declaration of rights in real estate.