Soldiers' and Sailors' Civil Relief Act: Lack of Proceedings
The lack of land (or superior) court proceedings under the Solders and Sailors Civil Relief Act does not necessarily mean that a foreclosure sale is void. Clearly, in the case of a "fast track" foreclosure—whether there is a complete lack of any land court proceedings before the foreclosure sale—the sale may still be good, but there is a necessity thereafter to secure a judgment to remove a cloud on title after the foreclosure. See Eno & Hovey, Massachusetts Practice, Real Estate Law with Forms, West Publishing Company, (Third Edition, 1995), §10.4 (footnote 2), where the authors indicate that such a judgment post-foreclosure was approved in Mackay v. Hibernia Savings Bank,Land Court Misc. Case No. 140252 and Home Equity Loan Programs v. Shawmut Bank, Land Court Misc. Case No. 157556.
The question of whether the lack of proceedings under the Solders and Sailors Civil Relief Act before a foreclosure would be deemed to chill a foreclosure sale was addressed in Smith v. The Dime Savings Bank of New York, Land Court Case No. 168669 (1992), wherein the attorneys for the foreclosing bank filed a complaint to foreclose and a judgment was entered on July 10, but the attorney did not have physical possession of it until after the foreclosure sale. In that case the land court held that the title was good:
[T]he sale prior to the actual receipt in hand of the Land Court judgment did not violate the statute, . . . the Land Court proceedings are only to assure that no one is in the military service and such a claim was not made here and . . . in fact the sale could have been held prior to such proceedings although the Court would not have issued a new certificate of title until the question of the military service had been determined.
In Smith the judgment in fact existed when the foreclosure sale occurred, although the attorneys for the bank did not have it in hand at the time. This fact seems pivotal to the case.
As to the effect of a judgment on persons who have come into title after the order of notice has been recorded, see Chapter 57 of the Acts of 1943, as amended by Chapter 496 of the Acts of 1990, which provides:
A copy of said decree may be recorded in the registry of deeds . . . and if so recorded shall be conclusive evidence of compliance with [the Act] . . . as against all persons, except that such copy shall not be conclusive evidence of such compliance against persons whose interests appeared of record prior to the recording of the notice of said proceedings unless they were named as defendants or had notice of said proceedings.