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Serving
Massachusetts Agencies

Junior Liens

Foreclosure

Liens recorded after the recordation of a mortgage, whether they are recorded before or after the foreclosure thereof would be wiped out by the foreclosure. The foreclosure of the mortgage, if properly done pursuant to G.L.c 244, §14, would eliminate all subordinate matters, including these liens. Of course, in order for the foreclosure to effectively eliminate these subordinate matters, the statute requires, among other things, that notices be properly published and be given to "all persons of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least fourteen days prior to the date of sale . . . ." Assuming the requirements of the statute have been observed, title coming through the foreclosure would be free of such post-mortgage liens. Parties whose interest have appeared of record within the thirty-day period immediately preceding the sale are not entitled to notice under the statute (and would thereby also be wiped out by the foreclosure). With respect to persons filing liens after the foreclosure has occurred (though before the recordation of the foreclosure deed itself) there is no interest remaining in the borrower against which those liens can attach. SeeOutpost Cafe, Inc. v. Fairhaven Savings Bank, 3 Mass.App.Ct. 1, 322 N.E.2d 183 (1975).

If notice is not given to subordinate lienors the foreclosure sale is totally flawed. Fortunately, however, at least in the case of such lienors, there is a method by which the foreclosure sale can be salvaged. The statute provides:

Any person of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed may waive at any time, whether prior or subsequent to the date of sale, the right to receive notice by mail to such person under this section and such waiver shall be deemed to constitute compliance with such notice requirement for all purposes.[1]

1 There is no comparable provisions with respect to the notice required to be given to the owner of record; failure to give that notice renders the foreclosure void in all respects with no hope of salvaging it.