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Contents Stewart Title Continues to Grow Market Share In Vol. 7, No. 4 Fall 2008 estate short sale” or “workout” Stewart Title Continues To department; you want the supervisor’s Contents Grow Market Share in name, the name of the individual capable of making a decision. Some lenders will Massachusetts have formal short sale packets with Stewart Title Continues – Craig J. Celli documents unique to the lender’s To Grow Market Share Massachusetts State Manager requirements. If the lender accepts short in Massachusetts.........1 sales, ask if they have a packet. by Craig J. Celli Second Quarter Market Share Results Part III in a Series of ccording to the preliminary market Call Question: Articles on Short A share reports from ALTA (American “Have you ever accepted a short payoff as Sales .............................1 Land Title Association), Stewart Title a workout prior to a foreclosure?” by Craig J. Celli Guaranty Company in Massachusetts increased its market share for the 4th If the answer is: Quarterly Tips .................2 consecutive quarter. In June of 2007 (end by Melanie Kido of the 2nd quarter of 2007) Stewart’s “Yes” in any form; then reply: market share was 8.4%. A year later, at “Thank you. I am currently in the Residential Refinance the end of the 2nd quarter for 2008, process of compiling the proper Rate...............................5 Stewart has grown to 12.1%. documentation to submit to you for Lender’s Documents Due The report also indicates a drop in total consideration. Do you have a short sale Execution Authority premiums in the market by 17.6% from a packet, or shall we submit our own Considerations ............5 year ago, but Stewart has increased its documents? What address can I send this by Jane L. Greenhood premiums by an amazing 16%. Only one packet to at the end of this week? What is other company has shown a positive your direct line?” Foreclosure Rescue increase in premium and that total was a “Maybe” in any form; then reply: Scams...........................6 modest 3.7% increase. The other by Craig J. Celli companies ranged in reduced premiums “I can definitely understand your from -14.6% to -41.2%. hesitation. I actually have quite a bit of Three Quick Tips to Help experience in this area. After meeting Avoid Future Claims....7 with the seller and appraising the house, I by Margaret M. Fortuna Part III in a Series of Articles believe it would make more financial on Short Sales sense to take this property back now. I Never Thought of (Add in any statistical backup you have That...............................8 – Craig J. Celli by Gary F. Casaly Massachusetts State Manager acquired.) Would it be acceptable if I submitted the client’s documentation for you to consider?” Contact Us......................... Qualify the Lender ......... 11 and back cover ot all lenders will accept short sales “Absolutely Not”; then reply: or discounted payoffs, especially if it N would make more financial sense to Thank the person for their time, and consider other options. © Copyright 2008, foreclose. Some lenders, as a rule, never accept them. You may need to make a Stewart Title Guaranty Co. All Rights Reserved. half dozen phone calls before you find the person responsible for handling short sales. You do not want to talk to the “real The Massachusetts Focus Stewart Title Guaranty Company (i) a corporation, Secure a Buyer at Once Assuming that you have spoken to the lender, and that (ii) a limited partnership, lender is inclined to accept the short sale, the next and most (iii) a trust operating under a written instrument or important ingredient is securing a buyer. Short sale declaration of trust, the beneficial interest of transactions are extremely time-sensitive, and the lender which is divided into transferable certificates will not be inclined to extend the deal if there are no buyers of participation or shares, i.e., a interested in the property. If you do not have a buyer, the Massachusetts business trust under M.G.L. goal is to price the house low enough to receive offers, but c.182, or high enough so that when the bank sends out an appraiser, both match up. When an offer comes in, notify the lender (iv) a partnership or joint venture of which all of immediately. the general partners who appear of record are one or more of the entities described in (i), (ii), or (iii) (each of the entities described in Quarterly Tips (i), (ii), (iii) and (iv) being hereinafter called – Melanie Kido an “Exempt Entity”); Underwriting Counsel or uestion: My title examination reveals foreclosure (3) If commenced after June 28, 1998 and the Record Q proceedings against an LLC. Is compliance with the Owner was: Servicemembers Civil Relief Act necessary? (i) a limited liability company, Answer: No. While Massachusetts requires that a judicial (ii) a limited liability partnership, or determination be made that the owner of property to be foreclosed was not a person in the military service who was (iii) any Exempt Entity described above; entitled to the protections of the Servicemembers Civil AND Relief Act prior to a foreclosure, whether by entry or under the power of sale, proceedings for such a determination II. (1) The notice of sale and the affidavit (complying need not be brought when the following entities are the with M.G.L. c. 244, § 14) required under M.G.L. record owner of the equity of redemption: c. 244, § 15 were recorded; • a corporation; or • a limited liability company; (2) Three years have elapsed since a Memorandum or Certificate of open and peaceable entry to • a limited liability partnership; foreclosure has been recorded in accordance with M.G.L. c. 244, § 2. • a Massachusetts business trust; or Caveat • a general partnership or joint venture of which all of the general partners who appear of record appear to be one If an Exempt Entity transfers its interest to a non-Exempt or more of the foregoing types of entities. Entity prior to the foreclosure sale, a judgment under the Soldiers and Sailors Civil Relief Act may be required. REBA Title Standard No. 56. Mortgage Foreclosures After 12-31-1990 provides as follows: Comment A title dependent upon a mortgage foreclosure commenced For purposes of this Standard, the date of commencement after December 31, 1990, is not on that account defective of a mortgage foreclosure is the date the first notice of sale if: is sent out pursuant to M.G.L. c. 244 as to an Exempt Entity and the date of filing the complaint to foreclose as to I. (1) Judgment under the Servicemembers Relief Act a non-Exempt Entity. (before December 19, 2003, the Soldiers and Sailors Civil Relief Act) has been obtained; CREDIT(S) or Adopted November 2, 1992 (2) If commenced after December 31, 1990 and the Amended May 15, 2000 (To reflect grammatical record owner whether domestic or foreign, of the clarification in Clause I. (1), and to reflect St.1998. c. equity or redemption on the thirtieth (30th) day 142, and grammatical clarification in Clauses I. (2) and next preceding the foreclosure sale (hereinafter I. (3), and to reflect St.1994, c. 341 and grammatical called the “Record Owner”) was: clarification in Clause II. (1), and to delete Clause (3) Page 2 –Fall 2008, Vol.7, No. 4 Stewart Title Guaranty Company The Massachusetts Focus and Caveat (1), the terms of which are no longer Comment effective because of legislative and regulatory amendments occurring since they were originally Since February 21, 1941, a court proceeding for a adopted. Caveat (2) is deleted to reflect St.1994, c. determination that no interested party is in the military 341 and Caveat (3) is deleted to reflect the US service is required before a foreclosure sale. Since October Supreme Court decision in BFP v. Resolution Trust 6, 1942, the Act applies also to foreclosure by entry. Corp., 114 S.Ct. 1757 (1994) and St.1989, c. 157. The Soldiers’ and Sailors’ Civil Relief Act of 1940 applies Comment (1) is amended to reflect that there is no legal precedent for the 30-day period as previously only to mortgages upon real or personal property owned by contained therein. Supersedes Clauses (1) and (2), a person in the military service at the commencement of the military service and still owned by him at the time of Caveat (4) and Comment (1), and deletes Clause (3) and Caveats (1), (2) and (3) of Title Standard No. 56, foreclosure and only to mortgages securing obligations originally adopted November 2, 1992.) originating prior to the period of military service. The possibility of any action to enforce the provisions of the Amended May 5, 2008 (reflected amendment and new Act is remote after twenty years. If such action were name of the Act) commenced, the doctrine of laches would probably provide a proper defense. See Marvel v. Cobb, 200 Mass. 293, 86 Copyright, The Real Estate Bar Association for N.E. 360; Hoffman v. Charlestown Five Cents Savings Massachusetts Bank, 231 Mass. 324, 121 N.E. 15; Morse v. Stober, 233 Mass. 223, 123 N.E. 780; and, Institution for Savings in Question: My title examination reveals a foreclosure Newburyport, Petitioner, 309 Mass. 12, 33 N.E.2d 526. proceeding which does not disclose compliance with the Soldiers and Sailors Civil Relief Act, now known as the For the Massachusetts Soldiers’ and Sailors’ Civil Relief Servicemembers Civil Relief Act. How do I address this Act see St.1941, c. 25, St.1943, c. 57, as amended by issue? St.1945, c. 120, St.1959, c. 105, and St.1982, c. 127. See also editorial note to annotations to M.G.L.
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