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Massachusetts Agencies

Constitutional Requirement of Notice


The leading case in this area is Mennonite Board of Missions v. Adams, 462 US 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), wherein it was held that the failure to give notice to a subordinate record lienor by personal service or by mail of a proceeding which would extinguish the lienor's lien is a denial of due process. The case had to do with tax sales and mortgages, but would apply to all liens, as far as I can determine.

In the case of the foreclosure of a mortgage there is a requirement in the statute that notice be given to subordinate lienors, but no comparable requirement appears in the statute having to do with sheriff's sales. The foreclosure statute originally did not contain this requirement, but the change was engrafted by amendment in 1981 (two years before Mennonite, and probably in response to the lower court rulings leading to the Supreme Court's announcement), in order to bring that statute into compliance with the constitutional mandate. The fact that the sheriff's sale statute was not similarly amended in response to the Supreme Court's ruling does not, of course, mean that sales thereunder are proper in the absence of such notice.

See Teschke v. Keller, 650 N.E.2d 1279 (1995).