Liens

Massachusetts Real Estate Litigation: What You Can Expect Going To Court, Part 1

by Rich Vetstein on December 17, 2011 · 4 comments

in Condominium Law,Liens,Massachusetts Real Estate Law,Permitting/Zoning,Real Estate Litigation,Trespass,Zoning

Post image for Massachusetts Real Estate Litigation: What You Can Expect Going To Court, Part 1

For most folks, litigation and courtrooms are as foreign as Belgium. When a new clients comes to me with a potential litigation matter, I spend most of our first consultation discussing the process of litigation and how it works. Then inevitably we have to talk about the cost and expense, which for most lawsuits is a lot more than people expect. In this post, I wanted to provide you with a summary of what happens when you decide to file a Massachusetts real estate litigation and lawsuit, or if you have to defense yourself against one.

First Steps: Filing Or Answering The Complaint & Selecting A “Venue”

The first step in every Massachusetts lawsuit is the filing of the Complaint, along with a filing fee. The Complaint sets forth the factual allegations of the lawsuit, along with the formal legal claims such as breach of contract, zoning appeal, adverse possession or fraud.

Most real estate litigation cases where the damages exceed $25,000 are filed in either the Superior Court or the Land Court. (For smaller matters under $25,000 you can file in the local District Court; small claims cases are for $7,500 or less).

The Land Court is a specialized court with expertise in real estate disputes. I’ve written about the Land Court here. The Superior Court is the “jack of all trades” trial court and hears just about every type of civil and criminal dispute at the trial level. Depending on the facts of the case, there are strategic advantages to filing in either Superior or Land Court. Your attorney will best explain those decisions.

After the complaint is filed, a Summons is issued which must be formally served by constable or sheriff on the “defendants” in the case. The attorney will arrange for service of the summons and complaint to be made and a sheriff will show up at the defendant’s home or business with the legal papers. Defendants have 20 days to “answer” the complaint. The Answer is a formal response to the Complaint, and you can also assert any “counterclaims” you may have against the plaintiff.

Pre-Judgment Remedies

Many real estate litigation cases involve asking the court for some type of relief or action during the initial stages of the lawsuit. This is called “pre-judgment relief.” In many real estate cases, a litigant will ask the court for a lis pendens on property, which is a formal notice of the claim recorded on title. In other cases, a litigant will ask for an injunction or restraining order stopping a landowner from building or taking other adverse action which would injure their property.

Asking a court for such pre-judgment relief requires filing motion papers, legal memoranda and often multiple court hearings where the lawyers will argue the issues before the judge. This will add another level of expense on the case, often quite a bit. I usually give clients a ballpark figure of $5,000 for taking a case through the pre-judgment relief stage–could be less, could be more, depending on the response from the other side.

Often cases can be won or lost at these early stages as a lis pendens can stifle a potential sale or an injunction can shut down a construction site, thereby forcing a favorable settlement. Thus, it is very important to have an experienced and savvy Massachusetts real estate litigation attorney work up the case properly and argue the case forcefully during a pre-judgment remedy proceeding. There are certain ways to increase your chances of success at this stage and even obtain relief without the other side even knowing you are going to court, called ex parte relief, if the situation warrants. (Ex parte in Latin means “from (by or for) one party.”)

Phase 2: Discovery

For cases on the normal track, once the answer is filed and all factual allegations and legal claims are raised in the case, it moves to the next stage: discovery. Discovery is the process where each side shares information about the case with each other. Litigation is not supposed to be a cat-and-mouse-hide-the-ball game.

This is a good time to discuss how long it takes to get to a trial in a Massachusetts lawsuit. With huge budget cuts in the courts, it is taking up to 2+ years for most civil cases to reach trial. Yes, you read that correctly. It can take even more time in some cases. I’ve had a case in Norfolk County (Dedham) ready for trial 3 different times, only to get bumped at the last minute, each time costing the client thousands of dollars in legal fees and months of delay. There is really nothing a litigant can do about these delays (save for settling the case out of court).

The discovery stage is the most labor intensive and expensive part of the case, with lawyers taking depositions of witnesses and filing and answering formal written questions, called interrogatories, and responding to requests for document production. There are often disputes and motions which have to be resolved in this stage. Depositions can easily cost $1,000 each, and discovery in a fairly involved case can run easily up to $10,000 + in legal fees.

For the next post, we will discuss Phase 3: Summary Judgment/Pre-Trial, Going To Trial, and Appeals (click here). Stay tuned!

________________________________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at info@vetsteinlawgroup.com.

 





Related Posts:

{ 4 comments }

Joe Paterno, Penn St., Massachusetts Asset Protection and Fraudulent Property Transfers

by Rich Vetstein on November 19, 2011 · 3 comments

in Bankruptcy,Liens,Massachusetts Real Estate Law,Real Estate Litigation,Title Insurance

Post image for Joe Paterno, Penn St., Massachusetts Asset Protection and Fraudulent Property Transfers

Joe Paterno Conveys Home to Wife For $1, “Love and Affection”

For topical reasons, I have had no reason to post about the despicable Penn St. child abuse scandal on this blog. Until now — when I came across an interesting New York Times article on Joe Paterno’s recent real estate activity. The Times reports that this summer “Joe Pa.” transferred title to his State College home to his wife for $1 and “love and affection.” Some say the transfer was intended to avoid the inevitable fallout from the Penn St. child abuse scandal and legal action brought by victims of the scandal. Joe Paterno’s attorney, however, says that this transfer was part of the Paternos’ long standing estate plan.

Fraudulent Transfers

The debate centers over what’s known legally as a fraudulent transfers. Fraudulent transfers are property conveyances made with the specific intent to place the property outside the reach of creditors, or made where “the debtor received less than a reasonably equivalent value in exchange for the transfer and made it while insolvent.” The latter definition, in plain English, means the owner was broke and received less than market value for the sale of the property. Fraudulent transfers can be undone by the courts so creditors can tap into a home’s equity to satisfy legal judgments.

In Joe Paterno’s case, the $1.00 stated consideration for the transfer to his wife typically raises a red flag as a potential fraudulent transfer. If Paterno can prove that the transfer was indeed made as part of a legitimate estate plan, then he could avoid a fraudulent transfer determination. If the transfer is determined to be fraudulent so as to avoid liability for the child abuse scandal, the transfer to his wife can be undone by his creditors with the help of the court. And this is true even if Joe were to file bankruptcy. Moreover, the look-back period for fraudulent transfers is rather long–as long as 4 years under the Massachusetts Uniform Fraudulent Transfer Act, and even up to 10 years in the case of conveyances into trusts (where the debtor holds the beneficial interest) under 2005 bankruptcy law amendments.

Also, fraudulent transfers are typically excluded from coverage under owner’s title insurance policies. So if you purchased a property which later becomes the subject of a fraudulent transfer lawsuit, you may be on your own, which is a scary proposition.

Asset Protection, Homesteads and More

There’s nothing wrong or illegal about protecting your assets for the future. There are a myriad of legal and safe methods from protecting your property. But, if you wait until there is a problem, it’s usually too late to fix it. The same is true for asset protection planning. Simply put, do it as early as possible, well before creditors are chasing you down.

The first choice should almost always be to declare homestead protection on your principal residence. We’ve written about the new, enhanced Massachusetts homestead protection quite a bit. In a nutshell, a homestead will protect up to $500,000 in equity from most creditors. It’s a relatively simply form recorded with the county registry of deeds.

For more sophisticated asset protection devices such as trusts, family limited partnerships, LLC’s, and even offshore vehicles, I would recommend a reputable estate planning attorney. My friends at Pabian & Russell in Boston are a good place to start.

______________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need legal assistance purchasing residential or commercial real estate.

 





Related Posts:

  • No Related Posts

{ 3 comments }

What Now? Bevilacqua v. Rodriguez Leaves Toxic Foreclosure Titles Unclear

by Rich Vetstein on October 18, 2011 · 9 comments

in Deeds,Foreclosure,Liens,Massachusetts Real Estate Law,Mortgage Crisis,Mortgages,Real Estate Litigation,Title Defects,Title Insurance

Post image for What Now? Bevilacqua v. Rodriguez Leaves Toxic Foreclosure Titles Unclear

No Easy Fix For Defective Foreclosure Titles After U.S. Bank v. Ibanez Ruling

The Massachusetts Supreme Judicial Court issued its opinion today in the much anticipated Bevilacqua v. Rodriguez case considering property owners’ rights when they are saddled with defective titles stemming from improper foreclosures in the aftermath of the landmark U.S. Bank v. Ibanez ruling last January. (Text of case is embedded below). Where Ibanez consider the validity of foreclosures plagued by late-recorded or missing mortgage assignments, Bevilacqua is the next step, considering what happens when lenders sell defective foreclosure titles to third party purchasers. Previously, I discussed the oral argument in the case here and detailed background of the case here.

The final ruling is mix of bad and good news, with the bad outweighing the good as fixing defective Massachusetts foreclosure titles just got a lot harder and more expensive. But, contrary to some sensationalist headlines, the sky is not falling down as the majority of foreclosures performed in the last several years were legal and conveyed good title. Bevilacqua affects those minority percentage of foreclosures where mortgage assignments were not recorded in a timely fashion under the Ibanez case and were otherwise conducted unlawfully. Importantly, Bevilacqua does not address the robo-signing controversy, which may or may  not be considered by the high court in another case.

The Bad News

First the bad news. The Court held that owners cannot bring a court action to clear their titles under the “try title” procedure in the Massachusetts Land Court. This is the headline that the major news outlets have been running with, but it was not a surprise to anyone who has been following the case. Contrary to the Daily Kos, the court did not take the property away from Bevilacqua. He never held good title it in the first place–and you can blame the banksters for that. If you don’t own a piece of property (say the Brooklyn Bridge), you cannot come into court and ask a judge to proclaim you the owner of that property, even if the true owner doesn’t show up to defend himself. It’s Property Law 101.

The Good News

Next the good news. The court left open whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles. Unfortunately, the SJC did not provide the real estate community with any further guidance as to how best to resolve these complicated title defects.

Background: Developer Buys Defective Foreclosure Title

Frank Bevilacqua purchased property in Haverhill out of foreclosure from U.S. Bank. Apparently, Bevilacqua invested several hundred thousand dollars into the property, converting it into condominiums. The prior foreclosure, however, was bungled by U.S. Bank and rendered void under the Ibanez case. Mr. Bevilacqua (or presumably his title insurance attorney) brought an action to “try title” in the Land Court to clear up his title, arguing that he is the rightful owner of the property, despite the faulty foreclosure, inasmuch as the prior owner, Rodriguez, was nowhere to be found.

Land Court Judge Keith Long (ironically the same judge who originally decided the Ibanez case) closed the door on Mr. Bevilacqua, dismissing his case, but with compassion for his plight.

“I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied,” Long wrote.

Given the case’s importance, the SJC took the unusual step of hearing it on direct review.

No Standing To “Try Title” Action In Land Court

The SJC agreed with Judge Long that Bevilacqua did not own the property, and therefore, lacked any standing to pursue a “try title” action in the Land Court. The faulty foreclosure was void, thereby voiding the foreclosure deed to Bevilacqua. The Court endorsed Judge Long’s “Brooklyn Bridge” analogy, which posits that if someone records a deed to the Brooklyn Bridge, then brings a lawsuit to uphold such ownership and the “owner” of the bridge doesn’t appear, title to the bridge is not conveyed magically. The claimant in a try title or quiet title case, the court ruled, must have some plausible ownership interest in the property, and Bevilacqua lacked any at this point in time.

The court also held, for many of the same reasons, that Bevilacqua lacked standing as a “bona fide good faith purchaser for value.” The record title left no question that U.S. Bank had conducted an invalid foreclosure sale, the court reasoned.

Door Left Open? Re-Foreclosure In Owner’s Name?

A remedy left open, however, was whether owners could attempt to put their chains of title back together and conduct new foreclosure sales in their name to clear their titles. The legal reasoning behind this remedy is rather complex, but essentially it says that Bevilacqua would be granted the right to foreclosure by virtue of holding an “equitable assignment” of the mortgage foreclosed upon by U.S. Bank. There are some logistical issues with the current owner conducting a new foreclosure sale and it’s expensive, but it could work.

That is if the SJC rules in the upcoming Eaton v. FNMA case that foreclosing parties do not need to hold both the promissory note and the mortgage when they foreclose. An adverse ruling in the Eaton case could throw a monkey wrench into the re-foreclosure remedy–it would also be an even bigger bombshell ruling than Ibanez, as it would throw into question the foreclosure of every securitized mortgage in Massachusetts.

In Bevilacqua’s case, he did not conduct the new foreclosure sale, so it was premature for the court to rule on that issue. Look for Bevilacqua to conduct the new foreclosure and come back to court again. The SJC left that option open.

Other Remedies & What’s Next?

The other remedy to fix an Ibanez defect, which is always available, is to track down the old owner and obtain a quitclaim deed from him. This eliminates the need for a second foreclosure sale and is often the “cleanest” way to resolve Ibanez titles.

Another option is waiting out the 3 year entry period. Foreclosure can be completed by sale or by entry which is the act of the foreclosure attorney or lender representative physically entering onto the property. Foreclosures by entry are deemed valid after 3 years have expired from the certificate of entry which should be filed with the foreclosure. It’s best to check with a real estate attorney to see if this option is available.

The last resort is to demand that the foreclosing lender re-do its foreclosure sale. The problem is that a new foreclosure could open the door for a competing bid to the property and other logistical issues, not to mention recalcitrant foreclosing lenders and their foreclosure mill attorneys.

Title insurance companies who have insured Ibanez afflicted titles have been steadily resolving these titles since the original Ibanez decision in 2009. I’m not sure how many defective foreclosure titles remain out there right now. There certainly could be a fair amount lurking in titles unknown to those purchasers who bought REO properties from lenders such as U.S. Bank, Deutsche Bank, etc. If you bought such a property, I recommend you have an attorney check the back title and find your owner’s title insurance policy. Those without title insurance, of course, have and will continue to bear the brunt of this mess.

More Coverage:

_____________________________________

Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous foreclosure title defect matters & cases in Land Court and Superior Court. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

Bevilacqua v. Rodriguez; Massachusetts Supreme Judicial Court October 18, 2011





Related Posts:

{ 9 comments }

Got Lien? Massachusetts Condominium Liens & 6d Certificates For Unpaid Condo Fees and Special Assessments

by Rich Vetstein on September 24, 2011 · 0 comments

in Condominium Law,Liens,Massachusetts Real Estate Law

Massachusetts condominium lien attorney

Unpaid condo fees and special assessments can be a real thorn in any condominium’s side, especially smaller condos. Not only do unpaid condo fees threaten the financial health of a condominium, but a high delinquency rate can run afoul of Fannie Mae/Freddie Mac and FHA condominium lending guidelines, thereby hindering the sale of a unit.

Fortunately, the Massachusetts Condominium Act, General Laws Chapter 183A, provides condominium trustees and managers with a fair amount of ammunition to recover those unpaid condo fees and special assessments. The law provides that condominium common expense assessments (monthly condo fees) are a lien against condominium units from the date each assessment becomes due, and that unit owners are personally liable for their share of condominium common expenses, including late charges, fines, penalties, interest, and all costs of collection. Ultimately, the condominium trust can foreclose its lien and sell the unit at foreclosure auction.

Massachusetts Super-priority Condo Lien

The real teeth of the Condominium Act is the “super-lien” provision. A properly filed condo lien has “super-priority” over the first mortgage on a unit for up to 6 months worth of unpaid condo fees, plus all attorneys’ fees and collection costs. Required 60 and 30 day statutory notices must be sent to the mortgage lender and unit owner prior to filing the lien. Typically, the mortgage lender will not want to allow a condo lien to negatively affect the priority of its mortgage, so it will pay the unpaid condo fees and other charges, then charge them back to the borrower/unit owner. Even in the case of foreclosure of a unit, the super-lien will continue to roll-over (up to 6 months worth).

6d Certificate

For all sales of Massachusetts condominiums, Mass. General Laws Ch. 183A, sec. 6(d) requires that the condo trustees sign a certificate verifying the outstanding condo fees assessed against the unit, if any. The term “6d” certificate refers to that statutory section of the Condominium Act, section 6(d). Lenders and their closing attorneys will require a “clean” 6d which states there are no unpaid fees. The recording of a clean 6d certificate will prevent the association from ever filing a lien against that unit.

No Right to Withhold

Another favorable aspect of the lien law is that a unit owner is not allowed to withhold payment even if he disputes the charges. There is no right to set-off. If the unit owner is unhappy or disputes the validity of the assessment, that’s too bad. He must pay the fees under protest, and file a suit challenging the legality of the assessment.

Collection Against Tenants

Another helpful remedy in the case of absentee unit owners is that the condo trust has a right to collect rents from tenants of non-paying unit owners. The condominium association will notify the tenants in writing that they are required to forward all future rent payments to the condo trust until the unpaid balance is satisfied. This typically gets the prompt attention of the unit owner.

Here is a sample 6d certificate.

Massachusetts 6d certificate sample

___________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Condominium Real Estate Attorney. For further information you can contact him at info@vetsteinlawgroup.com.





Related Posts:

{ 0 comments }

The Massachusetts Mechanic’s Lien: What Homeowners & Contractors Need To Know

by Rich Vetstein on July 10, 2010 · 2 comments

in Construction Law,Home Improvement,Liens,Massachusetts Real Estate Law

Massachusetts Mechanic's Lien

A mechanic’s lien is somewhat of a misnomer. It has nothing to do with auto mechanics. Rather, it’s a type of lien that general contractors, subcontractors and construction materials suppliers are allowed to record against a homeowner’s property to secure the payment of services, labor or materials. A mechanic’s lien creates a cloud on the title of real estate where their work, material, or services were provided.

Unlike most other liens, a mechanic’s lien does not require court approval. That’s why it is a very powerful tool for construction professionals to ensure that they are paid for their work, labor and supplies.

Mechanic’s Lien Requirements

The critical requirement to obtain a mechanic’s lien is that the contractor must have a written contract with the homeowner. Without a written contract in place, there is no entitlement to a mechanic’s lien.

The process of filing and recording a mechanic’s lien is very strict, and should be done under the guidance of an attorney. There are several notices and documents that must be recorded under strict time deadlines. Any misstep will result in a dissolution of the lien.

Who can obtain a Mechanic’s Lien In Massachusetts?

The mechanic’s lien law has been in existence in Massachusetts since the 1800’s, but lawmakers substantially overhauled it in 1997. The following types of construction professionals can file a mechanic’s lien:

  • general contractors
  • subcontractors and sub-subcontractors
  • machine rental companies
  • materials suppliers
  • lumber companies
  • demolition contractors
  • landscapers
  • utility contractors
  • site excavators
  • painters
  • civil engineers and architects
  • construction project managers.

How Does A Homeowner Remove A Mechanic’s Lien?

If the homeowner believes that the mechanic’s lien is improper, the mechanic’s lien law provides a summary procedure in the Superior Court or District Court to discharge a lien. Consult an experienced attorney in this type of situation.

If the parties can come to an agreement on what’s owed, the contractor can voluntarily dissolve the mechanic’s lien.

Owners can also “bond off” mechanic’s lien by procuring a lien bond from a surety company.

I Paid My Contractor, But His Subcontractor Just Filed A Mechanic’s Lien, What Do I Do?

Although subcontractors do not have a direct contract with an owner, they are nonetheless entitled to a mechanic’s lien for unpaid services/supplies. It doesn’t matter if the general contractor failed to pay his subcontractor. A subcontractor who attempts to file a mechanic’s lien, however, is subject to even stricter requirements under the new Massachusetts mechanic’s lien law, so consult an attorney to verify whether they have followed all the rules. Also, a subcontractor/supplier’s right to recovery is limited to the amount due under the prime contract at the time of the lien. Thus, the longer a subcontractor waits to assert a mechanic’s lien, the less money may be available to satisfy its lien. This can be overcome by serving a written notice of identification, which is a form set forth in the statute letting the owner and general contractor know the sub is on the job.

I always put indemnification/liability shifting provisions in construction contracts which make the general contractor responsible for any claims or liens asserted by any subcontractor. But that doesn’t necessarily prevent a subcontractor from filing a mechanic’s lien. If the lien is valid, you may have to bite the bullet and pay (twice) the subcontractor to release the lien. There is also a lien waiver mechanism where general contractors and subcontractors release lien rights upon progress payments, but they are infrequently used in residential projects.

Consult An Attorney

The Massachusetts mechanic’s lien process is extremely complicated, especially for the average homeowner and even for the experienced construction professional. While it provides a powerful tool for persons seeking payment for their securities in improving real estate, one seeking to enforce the mechanic’s lien must strictly comply with the statute requirements. The wise choice is to consult an experienced real estate attorney with respect to mechanic’s lien issues.

Helpful Links:

Massachusetts Mechanic’s Lien Law





Related Posts:

  • No Related Posts

{ 2 comments }

The Massachusetts Lis Pendens: A Real Estate Litigator’s Best Friend

by Rich Vetstein on June 13, 2010 · 1 comment

in Liens,Massachusetts Real Estate Law,Offer To Purchase,Purchase and Sale Agreements,Real Estate Litigation,Title Insurance

Massachusetts lis pendens real estate litigation

Overview: Lis Pendens, Latin for “A Suit Pending”

A lis pendens is Latin for “a suit pending.” Under the Massachusetts lis pendens law, a lis pendens is a notice endorsed by a judge certifying that there is litigation pending involving the title or occupancy rights to a property. Where real estate deals go sour, a court will often issue a lis pendens where a buyer seeks “specific performance” of a real estate contract in order to force a seller to go through with a transaction. Lis pendens are also common in other real estate cases such as boundary, title, zoning, and ownership disputes. The lis pendens is recorded at the registry of deeds against the property and its owner(s), creating a serious cloud on the title to the affected property. A lis pendens will, in many cases, effectively prevent the owner from selling the property until the claim is resolved–thus, earning its well-deserved reputation as dangerous arrow in a real estate litigator’s quiver.

Heavy Ammunition For Buyers

Since the Massachusetts Supreme Judicial Court held in 1998 that the standard Greater Boston Real Estate form Offer To Purchase is a binding contract, buyers have used the lis pendens with great success against sellers who unjustifiably try to back out of Offers to Purchase and Purchase and Sale Agreements. Aggressive buyer attorneys would often obtain a lis pendens without prior notice to the seller (called ex parte relief), and this would give buyers a huge advantage and effectively derail any pending sale of the property until the judge resolved the claim.

Recent Changes To The Law

In response to complaints that litigants were abusing the law with frivolous claims for lis pendens’, lawmakers amended the law in 2003. Now, claimants seeking ex parte relief must show there is a clear danger that the seller, if notified in advance, will convey, encumber, damage or destroy the property. Sellers also have a new remedy to stop frivolous claims: a “special motion to dismiss” which carries with it an award of attorneys’ fees and costs. The playing field is a bit more leveled now, yet the lis pendens remains a powerful tool for real estate attorneys.

Dealing With A Lis Pendens

Dealing with a meritorious lis pendens remains very difficult. Standard owner’s title insurance policies do not insure against them. Further, most title companies hesitate to affirmatively insure a lis pendens as they would effectively be underwriting the ultimate success of the lawsuit. Sometimes, however, coverage can be obtained for an additional premium and/or with some form of indemnification or security. In the absence of insurance, a lis pendens will remain a cloud on title until the claim is ultimately resolved in the courts, which these days can take many years. Given the high cost of litigation, a financial settlement is often the only way to resolve the matter in a cost-effective manner.

As an experienced real estate litigator who has obtained and defended scores of lis pendens’, please contact me with any questions about a Massachusetts lis pendens.





Related Posts:

{ 1 comment }

Real Time Analytics