State’s highest court rules for lender in foreclosure affidavit case

The Massachusetts Supreme Judicial Court on Friday affirmed a lower court decision in favor of mortgage giant Fannie Mae that removes a legal challenge for borrowers fighting foreclosure.

The state’s top court ruled that a so-called “affidavit of sale’’ is enough for a lender to prove it has the right to seize a home. The affidavit is used by a lender during the auction process to prove it has complied with foreclosure laws.

Christopher Pitt, president of the Real Estate Bar Association for Massachusetts, said the process has been in place since 1912. A decision against the affidavits could have put the validity of tens of thousands of foreclosures into question, he said.


“This was a positive outcome,’’ said Pitt. “It could have been much worse.’’

The decision is one of several recent state SJC rulings related to foreclosure practices.

The case was first heard in housing court where a judge ruled in favor of Fannie Mae, which was trying to evict tenant Oliver Hendricks of Roslindale who challenged the seizure claiming the affidavit was “outdated.’’ The top court said Hendricks’s challenge “offered nothing to show the existence of a genuine issue of material fact.’’

Richard Vetstein, a Framingham attorney and author of the Massachusetts Real Estate Law Blog, also applauded the confirmation of the century-old legal practice. He said it will make it harder for borrowers seeking to fight a foreclosure, but there are other areas for them to contest. “The burden shifts to the borrower to bring in evidence,’’ he said.

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