18 MASSACHUSETTS JOURNAL | JANUARY 2012

PROPERTY Ibanez, Bevilacqua made simple for the non-

chusetts (REBA) Standard 58, as ad- Following these decisions by the Land BY THOMAS L. GUIDI opted in 1995, provided that a title is not THOMAS L. GUIDI Court, REBA suspended paragraph 3 of defective by reason of “[T]he is a partner in the Title Standard 58 pending the appeal of Massachusetts attorneys involved in of an of Mortgage executed Boston law firm the Ibanez and LaRace decisions. The or mortgage , as either prior, or subsequent, to of Hemenway & SJC took these cases on direct appellate well as those employed as staff counsel or where said Mortgage has been foreclosed, Barnes LLP, where review. Earlier this year, the SJC affirmed underwriters by companies, of record, by the Assignee.”5 he serves as chair the decisions of the Land Court in a sin- of the Real are all too familiar with the Supreme Judi- That all changed following the Land gle decision now commonly referred to Practice Group. He cial Court’s recent decisions in U.S. Bank Court’s decisions in Ibanez, LaRace and is also chair of the as Ibanez. Not surprisingly, paragraph 3 1 Nat’l Ass’n v. Ibanez and Bevilacqua v. Rosario, each of which presented slightly MBA Section Council. has now been permanently deleted from Rodriguez.2 The fallout from these deci- different facts. In Ibanez, the assignment REBA Title Standard 58. sions has created havoc for such practitio- of the mortgage was executed after the As a consequence of the SJC’s deci- ners. This article attempts to explain the foreclosure process was initiated.6 The holder of the mortgage at the time of the sion in Ibanez, a great number of foreclo- significance of these cases to the rest of us. same was true in LaRace, except that the foreclosure, as required under G.L. c. sures, perhaps thousands, are defective. Prior to the Land Court’s decisions in assignment contained language that pur- 183, Section 21, with which the courts This means that anyone buying a prop- Ibanez and the companion cases of Wells ported to make it effective prior to the have always required strict compliance.9 erty following such a defective foreclo- Fargo Bank Nat’l Ass’n v. LaRace3 and commencement of the foreclosure pro- The court found that the party foreclos- sure, either from the foreclosing entity LaSalle Bank Nat’l Ass’n v. Rosario,4 the ceedings.7 In Rosario, the assignment ing was not the holder of the mortgage or a subsequent purchaser, does not have timing of the signing or recording of an as- was executed prior to commencement in either Ibanez or LaRace, since no as- good title. While such a buyer’s pain may signment of a mortgage was generally not of the foreclosure, but not recorded until signment had been executed prior to com- be lessened somewhat by the existence of considered critical to the validity of a fore- afterwards.8 mencement of foreclosure.10 In Rosario, an owner’s title insurance policy issued closure by the assignee of the mortgage. The court found the foreclosures in on the other hand, the court upheld the pursuant to previous practice and former In fact, until recently, paragraph 3 of Ibanez and LaRace to be defective be- validity of the foreclosure, noting that the REBA Title Standard 58 and insuring that Bar Association of Massa- cause the party foreclosing was not the mere failure to record an assignment prior the title is good, the pain still persists. to commencement of a foreclosure was Bevilacqua was one of these buyers. not the problem.11 In an attempt to clear his title of # 22

EXPERTS&RESOURCES CONTINUED FROM PAGE 18

EXPERT WITNESS FLORIDA PERSONAL INJURY INVESTIGATORS DICK ALBERT Florida SIMMONS Meteorologist AGENCY, INC. CONSULTING AND attorney EXPERT WITNESS SERVICES Civil and Criminal Investigations Never again ad.pdf 3/16/06 12:47:01 PM Law Offices Of Randy c. Botwinick ESTABLISHED 1935 Formerly of Pazer & Epstein • Asset locations • Backgrounds Concentrating in Personal Injury • • 25 Years • Co-Counsel and Experience Participation Fees Paid • Probate

MiaMi Office PalM Beach Office • Proxy fights One Biscayne Place Peninsula Executive Center • Surveillance 1098 Biscayne Blvd. 2385 NW Executive Center Dr. Suite 405, Miami, FL 33131 Suite 100, Boca Raton, FL 33431 P: 305 895.5700 P: 561 995.5001 190 High Street F: 305 892.1107 F: 561 962.2710 Boston, MA 02110 Tel (617) 523-2288 [email protected] Toll FREE: 1-877-FLA-ATTY (352-2889) [email protected] TEL: 617-834-5615 www.personalinjurylawyer.ws www.simmonsagency.com

LAWYER ASSISTANCE ASSISTANCE

Your law

C practice advisor. M Never agaiN will a lawyer Assisting Massachusetts attorneys Y in establishing and institutionalizing CM have to say there was professional office practices and MY procedures to increase their ability CY Nowhere to turN. to deliver high-quality legal services, CMY strengthen client relationships, and Rodney S. Dowell, Esq. K DiREctoR, LoMAP enhance their quality of life. free  Confidential  PraCtiCal solutions 617-482-9600 | www.lclma.org Law Office Management Assistance Program 888.545.6627 | 31 Milk street, suite 815, boston, Ma 02109 [email protected] | www.MassloMaP.org funded by lawyers ConCerned for lawyers, inC.

CONTINUED ON NEXT PAGE MASSACHUSETTS LAWYERS JOURNAL | JANUARY 2012 19 PROPERTY LAW EXPERTS&RESOURCES

SJC rejects remedy CONTINUED FROM PAGE 19

for purchaser of invalidly MEDICAL foreclosed property Experienced YOUR Forensic Toxicologist AD • Analysis of JULIE TAYLOR MORAN JULIE TAYLOR MORAN, a founder and Results of Blood, NEEDS TO BE principal of Orlans Moran PLLC, is a Urine & Hair member of the Massachusetts Bankers’ Drug Tests; The recent decision of the Supreme Association, the Massachusetts Mortgage • Cocaine/ Judicial Court in Bevilacqua v. Rodri- Bankers’ Association Compliance Narcotics Issues: HERE. 1 guez has dealt another blow to purchas- Committee, the American Legal and • vs. ers attempting to establish clear title to Financial Network and a founding member Personal property whose titles derive from fore- of Women Executives in Banking. She is • Dram Shop For all your closure sales deemed invalid as a result of on the Massachusetts Home & Vehicular advertising needs the SJC decision in U.S. Bank Nat’l Ass’ Advisory Committee and a volunteer Homicide References Available v. Ibanez.2 lecturer for Boston’s first-time home in the Massachusetts In Ibanez, issued in January 2011, buyers program. Medical & Law School Lawyers Journal, the SJC affirmed the Land Court’s hold- Teaching Experience – contact Mark Schultz. ing that a foreclosing lender must be the Excellent Communicator holder of the mortgage by an assignment affirmed the Land Court’s dismissal of the (617) 896-5323 dated before the first publication of the action while holding that the dismissal David M. Benjamin, Ph.D. mschultz@ sale.3 The decision, which repudiated should have been without prejudice to al- 617-969-1393 thewarrengroup.com the Real Estate Title Standard long re- low the plaintiff to pursue other judicial Email: [email protected] lied upon by real estate attorneys, which remedies.10 Website: www.doctorbenjamin.com recognized the validity of assignments of In its decision, the SJC systematically mortgage dated after the foreclosure sale, rejected various theories offered by Bevi- sent shock waves through the real estate lacqua to establish standing. He argued community. unsuccessfully that he was a bona fide PERSONAL INJURY A foreclosure which does not comply purchaser for value and that he held good with Ibanez is now in most cases consid- title by virtue of his recorded , a doc- ered invalid. Accordingly, any subsequent ument the SJC characterized as “mean- Experience ... Results attempted transfer of title to a purchaser ingless.”11 of that property by the foreclosing lender The court did suggest that under cer- is a nullity. The plaintiff in Bevilacqua tain circumstances, a defective foreclo- was faced with just this situation. sure deed could operate as an assignment In 2006, Bevilacqua purchased a of the mortgage.12 With this, the unfortu- foreclosed property from the foreclosing nate purchaser could attempt to clear title lender U.S. Bank, which was not holder by conducting his own foreclosure of the of the mortgage at the time of the foreclo- mortgage. There are inherent challenges sure sale.4 Bevilacqua proceeded to create to this type of remediation, including the four , three of which ap- risk to the purchaser (the foreclosing en- parently were sold before the Ibanez deci- tity) of being outbid at the auction by a sion. While the appeal of Ibanez was still third party, wiping out of the of the pending, Bevilacqua filed a try title action purchaser’s own purchase money mort- in the Land Court under G.L. c. 240, §§ gage as a result of the new foreclosure PERSonAl injuRy And MEdiCAl MAlPRACtiCE REfERRAlS WElCoMEd 1-5.5 He argued he was the party in pos- sale and issues of priority of other record- session and holder of record title, there- ed on the property. fore according him the requisite stand- These efforts could become even more Breakstone | White |Gluck ing to compel the respondent, the former complicated, depending on the outcome mortgagor, to either bring an action to try of the pending appeal in Eaton v. Fed. title or be forever barred from enforcing Nat’l Mortg. Ass’n,13 a recently decided 2 Center Plaza, Suite 530, Boston, MA 02108 his adverse claim to the property.6 case in which the court held that the fore- (617) 723-7676 | www.bwglaw.com The former mortgagor could not be entity must hold both the note and found and did not appear in the case.7 mortgage. The purchaser could consider Nonetheless, Judge Lang, the same judge contacting the former mortgagor (owner) who had decided the Ibanez case, on his to obtain a deed in lieu of foreclosure, AAD 2"x4"SURETY color ad L1:LayoutBONDS 1 3/19/10 2:19 TAX ATTORNEY own initiative, raised the issue of the va- provided there are no subordinate liens on lidity of the plaintiff’s record title and the property, or alternatively, rely on the therefore, his standing to maintain the entry made under G.L. c. 244§§1-2, either Looking for action.8 He determined, based on Ibanez, at the original foreclosure sale, or at some an experieNCed A.A.DORITY tax attorNey that Bevilacqua did not hold title to the point thereafter which resolves title three for your cLients? property and dismissed the case with years after recordation of the certificate of prejudice.9 Bevilacqua appealed. The SJC entry. n riCk stoNe l aw 1) 460 Mass.762 (2011). 4) Bevilacqua, 460 Mass. 7) Id. 11) Id. at 772. SURETY 2) 458 Mass.637 (2011). at 765. 8) Id. 12) Id. at 773. Chair - Ma Bar assN. 3) Id. at 650. 5) Id. 9) Id. 13) SJC 11041 (Mass. BONDS state tax praCtiCe group 6) Id. at 763. 10) Id. filed Sept. 6, 2011). ViCe Chair - Ma Bar assN. Since 1899 taxatioN seCtioN serViNg Ma Bar assN. Office: 617-523-2935 MeMBers aNd their ClieNts state, federal, aNd Fax: 617-523-1707 iNterNatioNal tax Matters

conversation planning join the sales & use tax www.MassBar.org www.aadority.com audits corporate income/ appeals excise tax A.A. DORITY litigation multistate taxation

COMPANY, INC. n 262 Washington St. • Suite 99 ( 617 ) 848 - 9360 Boston, MA 02108 ( 888 ) 483 - 5884 www.rickstonelaw.com www.Twitter.com/MassBar www.MassBar.org/LinkedIn www.Facebook.com/ [email protected] MassBarAssociation 20 MASSACHUSETTS LAWYERS JOURNAL | JANUARY 2012

MBA TASK FORCE Parker is an elected member and past Continued from page 12 chapter president of the American Board of Trial Advocates, and is a member of The task force members include: the American Association for Justice, the • Hon. David Ricciardone, Massa- Massachusetts Academy of Trial Attor- chusetts Superior Court, Boston neys, the Lawyer-Pilots Bar Association • Heather Engman, Esq., Thornton & and the National Transportation Safety Naumes, Boston Board Bar Association. • Kyle R. Guelcher, Esq., Law Office He has been named a “Massachusetts of Kyle Guelcher, Springfield Super Lawyer” by the publishers of Boston • John B. Koss, Esq., Mintz Levin, magazine every year since the designation Boston was created in 2004, and served as chair- • Marc A. Moccia, Esq., Suffolk Law man of the board of trustees of the Media School 2011 graduate, Boston and Technology Charter High School of • Denise I. Murphy, Esq., Rubin & Boston. Parker sits on the editorial board Rudman, Boston of Massachusetts Lawyers Weekly. • Lynn Sari Muster, Esq., Massachu- Natarajan, a public defender with the setts Appeals Court, Boston Committee for Public Counsel Services • Elizabeth O’Connell, prelaw advi- in Somerville, is also vice chair of the Delegates J. Gavin Reardon Jr. and Denise I. Murphy. sor, Wellesley College, Wellesley MBA’s Criminal Justice Section Council. • Doreen M. Rachal, Esq., Bingham She represents individuals in the Somer- HOD MEETING McCutchen, Boston ville, Malden and Woburn district courts, Continued from page 11 • Paul Edward White, Esq., Sugar- as well as Middlesex Superior Court. She man, Rogers, Barshak & Cohen, is an at-large delegate to the MBA’s a Supreme Judicial Court-appointed com- Boston of Delegates and the 2011 recipient of the mittee has issued a report in opposition to • Marc P. Zwetchkenbaum, Esq., MBA’s Access to Justice Defender Award. client-initiated mandatory fee arbitration Marc Z Legal Staffing, Boston She is an instructor in the First Year in Massachusetts. The SJC has received Writing Program at Boston University the report and accepted the committee’s Parker, the co-founder and managing School of Law. A graduate of New York recommendation that Rule 1.5 of the partner of Parker Scheer LLP in Boston, University School of Law, Natarajan was Rules of Professional Conduct be amend- has more than 24 years of experience in the managing editor of New York Univer- ed to require a written fee agreement complex personal injury trial work. He sity Law Review. n before or within a reasonable amount of time after commencing representation. Healy mentioned that the MBA was vociferously opposed to this mandatory fee arbitration and recognized the capable leadership of J. Gavin Reardon and MBA A Sixty Year Tradition MBA Treasurer Douglas K. Sheff presents a Past President in delivering the MBA’s resolution on civility among counsel in all New opposition. England states for the delegates’ consideration. of Representing Healy also reported that Gov. Deval Patrick had recently signed a $480 million sets the expectation of equal treat- supplemental appropriation budget, with ment from the bar and judiciary of the Seriously Injured $20 million being directed to the court all attorneys practicing within the system. As a result, Ireland withdrew the New England states no matter what SJC’s request for a moratorium on judi- the state of or location of cial appointments, explained Healy. practice is. He also mentioned the habitual of- • Endorsement of the proposal from fender legislation that the Senate was ex- the MBA’s Access to Justice Section pected to vote on that day. Among other requesting that the SJC establish a measures, the bill would eliminate parole pro hac vice admission fee for law- eligibility for those convicted of their yers from other states who seek to ap- third violent felony. Healy explained that pear in cases before Massachusetts’ the House was expected to debate the leg- courts. Currently, Massachusetts is islation during the following week. Since one of only nine states that do not the Nov. 10 meeting, both versions of the impose this fee, according to Access bill have been sent to conference commit- to Justice Section Chair Charles E. tee to reconcile the differences. As Healy Vander Linden. explained, the MBA’s continued advocacy • Supporting in principle and filing on smart criminal justice reform has re- legislation that would set distinct sulted in some positive changes. statutory criteria for parole consid- Delegates’ discussion and debate eration for prisoners serving county T e a m a p p roac h led to the following votes at the Nov. 10 house of correction sentences versus c u T T i n g e d g e a dvo c ac y meeting: those serving state prison sentences. • Approving a resolution regarding ci- S u p e r i o r r e S u lT S vility and reciprocal treatment for at- See page 11 sidebar on the Jan. 19 torneys admitted pro hac vice, among meeting to take place at UMass Medical New England states. The resolution School in Worcester. n Sheff Law Offices, P.C.

Ten Tremont Street, Boston, MA 02108 The 617-227-7000 www.shefflaw.com Daily Integrity • Compassion • Excellence CatchEst... 1973

Don’t forget to check us out online at www.massbar.org Newly Remodeled Location at the Joseph Moakley U.S. Courthouse MASSACHUSETTS LAWYERS JOURNAL | JANUARY 2012 21

Member Bene t From

Are You e Easiest Way to Get Paid! PCI Compliant? T rust Let us help. your transactions Increase business and control cash ow. to the only Avoid commingling client funds. merchant account Save up to 25% o standard fees. recommended by over Accept credit cards for retainers. 60 bar associations! e process is simple. Begin accepting payments today. Call 866.376.0950 or visit a niscape.com/massbar Ask about our solution for PCI Compliance. www.PCICentral.com

n LP 866.376.0950    a niscape.com/massbar 22 MASSACHUSETTS LAWYERS JOURNAL | JANUARY 2012

RUDAVSKY lenged as retaliatory must target a cur- pra: When can a lawsuit, which, after have led Psy-Ed to sue: first, Schive’s Continued from page 16 rent employee in order to fall afoul of § all, involves “State and Federal consti- activities in the fall of 1999 in support ter of protection of a former employee, 4 (4) and (4A). We conclude that under tutional rights to seek judicial resolution of her MCAD claim, and second, the the plain meaning of these sections, it of disputes,” Psy-Ed at 709, comprise MCAD’s December 1999 issuance of its although the SJC’s discussion of a for- need not. Section 4 (4) addresses ac- unlawful retaliation? The SJC answered probable cause finding: mer employee’s rights in Sahli v. Bull tion taken by “any person” against its own question: … Here, the record supports the HN Information Systems, 437 Mass. 696 “any person,” while § 4 (4A) concerns The filing of “sham” or “baseless” conclusion that it was Schive’s ac- (2002) suggested that the SJC would find action taken by “any person” against litigation, as distinct from “unsuccess- tive pursuit of her MCAD claim … such coverage available. “another person.” In neither case does ful but reasonably based suits,” is not that triggered [defendant-in-counter- The SJC adopted all these arguments the statute expressly require that an a constitutionally protected right. [cita- claim’s] angry response in December, in a few tight sentences. First, it dis- employer-employee relationship exist tion] Id. at 709. 1999. More generally, we think it rea- patched the erroneous overreadings of its at the time of the wrongful conduct, or sonable to believe that an employer “adverse employment action” verbiage, at any other time. 459 Mass. at 708. In a footnote to this section, the SJC might perceive the issuance of a prob- dismissing that formulation as “short- made an important further comment: able cause finding by the MCAD as an hand,” and a “convenient term of refer- Next, with a nod to like reasoning in We do not suggest that only a indicator that a discrimination claim ence.” 459 Mass. at 707. federal decisions under Title VII, the SJC “baseless” suit may be retaliatory. A was not going to go away, and that an In an important footnote, the SJC re- addressed the broader statutory purpose: suit that is not entirely baseless may employer at that point may be tempted viewed how the “shorthand” had evolved … In light of the c. 151B’s broad nonetheless be retaliatory if it is not to retaliate against the employee’s con- from federal decisions, at the same time remedial purposes, it would be an er- subjectively genuine. [citation] Id., tinued pursuit of a protected activity. pointing out that the narrow view had, all ror to imply such a limitation where n.27. In our view, § 4 (4) and (4A) forbid the same, been long before rejected by the statutory language does not require such a response. Id. at 712, n. 33. the U.S. Supreme Court: it. See G. L. c. 151B, § 9 (G. L. c. Examining the record, the SJC found This court first used the phrase “ad- 151B to be “construed liberally for that the lawsuit against Schive met the The SJC’s holding reflects a realistic verse employment action” in decisions the accomplishment of its purposes”) standard it had set, and then some, hav- appreciation of the mechanics of retali- in the mid-1990s that looked to Fed- … For example, where an employer’s ing been properly been found by the ation. An employer may assume that a eral law for support in interpreting G. discriminatory conduct results in an trial judge to be “sham” or “baseless.” complaining employee who has filed an L. c. 151B. [citations]. Even as a mat- employee’s termination, § 4 (4) and Id. at 10. MCAD charge will eventually lose inter- ter of Federal law, however, “adverse (4A) must necessarily expand beyond est in her case, and then be annoyed when employment action” is merely short- current employees to have the intended III. PROTECTED ACTIVITY she does not. Likewise, an employer may hand and is not confined to adverse effect of protecting victims of discrim- THAT TRIGGERS AN react badly when the MCAD takes action actions taken directly in the context of ination from suffering further ill treat- ADVERSE EMPLOYER to keep the matter alive. Or the employer an ongoing employment relationship. ment as a consequence of exercising RESPONSE MAY LONG may more cynically wait for time to pass See Burlington N. & Santa Fe Ry. v. their rights under G. L. c. 151B. Cf. POST-DATE THE FILING and await a future opportunity to retaliate White, 548 U.S. 53, 63 (2006) (Federal Robinson v. Shell Oil Co., 510 U.S. at OF THE COMPLAINT remote in time from the original MCAD law recognizes that “employer can ef- 346 (restriction of statutory antiretali- Finally, the SJC addressed an ad- filing. fectively retaliate against an employee ation provision to current and not for- ditional important question: What may But with the SJC’s new declaration by taking actions not directly related mer employees would undermine Title a court look to in determining whether about what may be held to comprise a to his employment or by causing him VII’s effectiveness “by allowing the a causal connection may be drawn be- proper basis for an inference of retalia- harm outside the workplace” [empha- threat of postemployment retaliation tween protected activity and the alleged- tion, employers would be well advised sis in original]); Robinson v. Shell Oil to deter victims of discrimination from ly retaliatory adverse action? Psy-Ed had not to react emotionally as a discrimina- Co., 519 U.S. 337, 346 (1997) (former complaining”). Id. at 708-709. pointed out that it sued Schive almost tion case progresses. as well as current employees encom- three years after she filed her MCAD passed within meaning of “employ- Thus, the SJC followed the U.S. Su- complaint, and argued that given such a CONCLUSION Thompson and Psy-Ed make clear that ees” in Title VII’s prohibition on retali- preme Court in extending protection temporal gap, no inference of causality employers that retaliate against those who ation). 496 Mass. at 707, n.25. from retaliation to former employees no could be made linking the two events. have made and pursued discrimination longer vulnerable to adverse treatment This led to the SJC’s last important hold- claims do so at their peril. Whether an in- Then, basing its ruling on the actual within the workplace. ing on the subject of retaliation. dividual claims retaliation under state or words of the statute, the SJC rejected the In a footnote, the SJC rejected Psy- federal law, employer-defendants will no cramped view that many defendants (and II. EVEN LAWSUITS MAY Ed’s argument that Schive’s protected longer be able to rely on courts taking a courts) have propounded: QUALIFY AS UNLAWFUL activity was too remote in time to have narrow view of whom the law covers. n Perhaps because of the term “ad- RETALIATION given rise to unlawful retaliation. The verse employment action,” confusion The SJC next confronted (again) the SJC explained that two different post- has arisen as to whether conduct chal- issue that it had addressed in Sahli, su- MCAD-complaint triggers might well 1) Klein also prevailed.

GUIDI that a try title action requires the plain- subject to recently enacted moratorium tive. Instead, the title insurers are wisely Continued from page 18 tiff to have record title.13 In Bevilacqua, legislation dramatically delaying the seeking a legislative remedy. since the mortgage had not yet been as- foreclosure process, even though such Legislation has recently been filed on this Ibanez problem, Bevilacqua brought signed to the foreclosing party at the time legislation was not aimed at foreclosures behalf of the Massachusetts Land Title a “try title” action under G.L. c. 240, §§ of the foreclosure, it did not have good brought under these circumstances. Association. Senate Bill 830, entitled “An 1-5 in the Land Court.12 Such a proceed- title, and hence, Bevilacqua did not have A second approach would be to con- Act Clearing Titles to Foreclosed Prop- ing allows a property owner to compel record title and he could not avail himself duct a new foreclosure by entry, a pro- erties” provides that once the affidavit anyone with an adverse claim on his title of the try title procedure.14 cess which commonly accompanies a (required under G.L. c. 244, Section 15, to come forward and prove the case, or Where does this leave Bevilac- foreclosure by power of sale as part of in connection with the foreclosure of a be forever barred from asserting such qua and other property owners with an a “belt and suspenders” approach. The mortgage) has been recorded, the former claim. The conveyancing and foreclosure Ibanez problem? The most obvious so- problem with this alternative is that it owner has 90 days to bring an action in bars, as well as the title companies, were lution would be for the foreclosing en- takes three years for a foreclosure by the Superior Court challenging the right hopeful that this would provide a way of tities to re-foreclose. The problem with entry to become effective. This will not of the foreclosing entity to foreclose. rehabilitating foreclosures defective un- this approach is that it requires repeat- help an “owner” who desires to sell or If the former owner fails to do so, der Ibanez. Had Bevilacqua succeeded, ing the foreclosure process, including refinance his property in the meantime. the affidavit shall be deemed to be con- the try title action would likely have be- all required notices and conducting a This situation has created a real di- clusive in favor of a good faith come the most expedient way to fix an new sale. Under such a scenario, the cur- lemma, not only for the lenders and buy- purchaser for value at or subsequent to Ibanez problem. rent “owner” would face the possibility ers of foreclosed property, but also for the foreclosure sale that the foreclosing Unfortunately for Bevilacqua and of being outbid at the auction sale. Any the title insurance companies. Rather party identified in the affidavit is in fact others similarly situated, the SJC held such foreclosures would also likely be than waiting for the thousands of claims the holder of the mortgage. that will inevitably be asserted, the title This would fix the Ibanez problem insurance industry has tried to be proac- without the need to re-foreclose or to tive. Reviewing all existing title insur- bring a court action. For the sake of all

| JaNuary 2010 ance policies| NuMBer 4 to locate each one with an innocent buyers of following vOluMe 17 For all your advertising needs IbanezMake problem the most is a daunting task, and as foreclosures defective under Ibanez, let ar.Org www.MassB of your MBA set forthbenefits above, in 2010 the only obvious remedy, us hope that the Legislature will pass this Ben T. Clements: A Massachusetts attorney’s The Massachusetts Bar Association is in the Massachusetts Lawyers working hard to provide benefits that will n experience in political policy and private re-foreclosure,law help you every day in the practice ofis law. not particularly attrac- or similar legislation soon. Stay tuned. DOff By kelsey sa s view presiDeNT’ arashus itting on a desk in Ben T. Clements’ new law office, next -to valerie a. y a framed drawing from his little girl of the two of them Journal, contact Mark Schultz. S playing hockey, is an inscribed photo from Gov. Deval Pat - - rick. “To my favorite lawyer,” is scrawled across the bottom of The legal profession is being changed dra the photo, which features three smiling attorneys: Clements, Pat matically by technology, and we are com- rick and Michael J. Pineault, who was the governor’s deputy - mitted to making the most of the high tech chief legal counsel. benefits that can provide real value to you. “I have been lucky in my career,” said Clements, who in No 1) 458 Mass.My challenge 637 to you, as(2011). we begin 2010, 5) REAL ESTATE BAR ASSOCIATION 10) Rosario, 2009 WL 795204, at *2. vember left his position as chief legal counsel to Patrick and is to take us up on this. Trying something # launched his own firm, Clements & Pineault LLP, with new takes energy, and so this is the perfect 2 Pineault. Title Standard 58, ¶ 3 (1995). Clements, who Patrick calls “the father of ethics reform” in 2) 460 Mass. 762 (2011). 11) Id. (617) 896-5323 Massachusetts, is jumping back into private legal practice after serving three years as the executive branch’s top lawyer. “I have held a series of challenging and rewarding positions in MBA launches task 6) Ibanez, 458 Mass. at 643. the public and private sector and I have really enjoyed moving 3) Photo2009 by Merrill Shea WLforce 795201 to address (Mass. crisis Land Ct. 12) Bevilacqua, 460 Mass. at 765. from one to the other and the ability to serve in both, andworlds,” Cornell he - cum laude said. Ben T. Clements spent three years working at the Massachusetts Statehouse as Gov. Deval in court funding A graduate of Dartmouth College,, Clements began his legal career Mar. 26, 2009).MBeaulT 7) Id. at 645. [email protected] Patrick’s chief legal counsel, including shepherding through ethics reform legislation. He re y Bill a rcha summa cum laude B 13) Id. at 780. Law School, # cently returned to private practice. with summer associate jobs in New York and Washington, D.C., 4 before serving as a law clerk for the chief judge of the U.S. Court The Massachusetts Bar Association has 4) Id. created a task force to put a human face on- 8) Rosario, 2009 WL 795204, at *2. the impact that drastic budget cuts are hav 14) Id at 772. ing on the courts. The Crisis in Court Funding Task Force Criminal legislation, REBA appeal case, medicalOrT will compile stories of hardship among 9) Ibanez, 458 Mass. at 653. rce prOgress rep public users of the court system and will cOMMiTTee, Task fO marijuana top November HOD meeting agenda present a report to the House of Delegates After calling the meeting to order, MBA President Valerie A. meeting in March. If endorsed, the report - By Tricia M. Oliver - Yarashus provided her report. She informed the group that she will support calls for the Legislature to ad received word from Gov. Deval Patrick’s office that the closing equately fund the state court system, which# The 2009–10 Massachusetts Bar Association House of Dele of the Bridgewater Treatment Center was put off indefinitely. was cut from an initial fiscal 2009 budget 6

The MBA first corresponded with the governor’s office on # this gates met for the second meeting of the association year on - issue in October with a letter in support of keeping the facility 3 Thursday, Nov. 19 at the Mass Mutual Center in Springfield. The open. full agenda indicated a busy start to the association year, as of ficers and section leadership brought forth a collection of timely and relevant proposals for the House to consider. Day parTy MBa hOli Volunteer spotlight MBA Nce ual cONfere members and MBa aNN Dorothy Varon devotes friends meet MBA brings countless at the MBA the confer- hours to pro to network, ence’s many socialize. bono housing # components 14 program. back to one # 11 S. spring event. S content # S iSSue’ 3 Sting of thi See page 2 for a complete li