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Serving
Massachusetts Agencies

Partial Release of Parcel

Foreclosure

In Peoples Savings Bank of Woonsocket v. Wunderlich, 173 Mass. 452, 59 N.E. 1040 (1901) it was held that where the advertisement and notice for a foreclosure sale described the property, as in the mortgage, as four lots, whereas one of the lots had been released from the mortgage, the sale was defective. Moreover, the court held that the defect was not remedied by the auctioneer announcing before the sale that only the three remaining lots would be sold.

But there could be two situations where partial releases are involved (but not announced at the foreclosure or published in the notice) and the results would be different:

Scenario 1:

If the mortgage contained two (or more) separate and distinct descriptions and one (or more) of the parcels so described was partially released, leaving but one remaining parcel, as originally described in the mortgage, that one remaining parcel—described as set forth in the mortgage—may be foreclosed upon and the foreclosure would be good regardless of the failure to mention the partial release. The language in the statute to the effect that the advertisement is to describe the property "exactly" as in the mortgage would have been observed (compare Scenario 2). (The word "exactly" has since been removed from the provisions of the statute.)

Scenario 2:

If the mortgage described "one big parcel," and portions thereof had been partially released therefrom, then there would be a requirement that the advertisement contain the description of the entire parcel as described in the mortgage, but with a statement as to the partial releases that were thereafter given. (If one attempted to become creative and described the remaining real estate only in such a case, the description would not be "exactly" as in the mortgage, could confuse bidders and would not be in compliance with the statute.) (But see the note above regarding the word "exactly" in the statute.)