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Massachusetts Agencies

Late Recording of Assignment


The case of Montague v. Dawes, 12 Allen 397 holds that the fact that a prior assignment of the mortgage was not recorded until after the foreclosure sale will not affect the validity of the sale if no one has been misled thereby. The question of misleading persons at the sale is, of course, a subjective one. However, if such an assignment were now to be produced and recorded I believe we would insure the title.

The later case of Lamson & Co., Inc. v. Abrams, 305 Mass. 238, 25 N.E.2d 374 (1940) stands for the same proposition, namely that the true holder of the mortgage—and not simply the party who appears of record to be the mortgagee or assignee—is the proper party to foreclose the same. A later recording of such an assignment would prove such a position.

See also REBA Title Standard No. 58, which addresses "mixed up" assignments. It says that a title is not defective by reason of:

The recording of a discharge executed by a Mortgagee who holds record title to the mortgage notwithstanding the subsequent recording of an assignment by the discharging Mortgagee to a third party, regardless of whether the assignment was date prior, or subsequent, to the discharge;

The recording of a discharge executed by a Mortgagee who did not hold record title to the mortgage at the time of the discharge, where assignment(s) of Mortgage to the discharging Mortgagee, whether executed prior or subsequent, to the recorded discharge, are subsequently recorded;

The recording of an Assignment of a Mortgage executed either prior, or subsequent, to foreclosure where said Mortgage has been foreclosed, of record, by the Asssignee.