Commonwealth v. Fremont Investment & Loan & another, 452 Mass. 733 (2008)(Botsford, J.)

In a landmark decision, the Supreme Judicial Court of Massachusetts issued it opinion on December 9, 2008 unanimously upholding the lower court's order in the case of Commonwealth v. Fremont Investment & Loan & another, 452 Mass. 733 (2008)(Botsford, J.) preliminarily enjoining subprime mortgage lender Fremont Investment & Loan from foreclosing on any "structurally unfair" loan without further prior court approval and a final hearing on the merits. The lower court's ruling of February 25, 2008 was reportedly the first of its kind in the nation that restricts a subprime lender's ability to foreclose based on unfair or deceptive loan origination misconduct.

Date of opinion: December 9, 2008.

Full opinion click here.

In re Noyes, (Bkrtcy.D.Mass.)

Debtor Protections - Mortgagee was entitled to relief from automatic stay and co-debtor stay allowing it to foreclose its mortgage.

A Chapter 13 debtor failed to demonstrate the likelihood that she and her son would succeed on the merits of the claims that they had asserted against their mortgagee in state court pursuant to, inter alia, Massachusetts's unfair trade practices law and the Real Estate Settlement Procedures Act, so as to establish a defense to the mortgagee's motion for stay relief by, in effect, establishing the debtor's entitlement to an injunction against the continuation of the mortgagee's foreclosure proceedings pending a merits determination in the state court. Although the debtor presented serious questions about the conduct of the mortgage brokerage firm and its mortgage broker and the propriety of the loan transaction, and possibly could succeed in the state court, in the bankruptcy court she did not tie any misconduct by the firm or the mortgage broker to the mortgagee. Therefore, the mortgagee, which had demonstrated its legitimate claim to the real property owned jointly by the debtor and her co-borrower son, based on their failure to make the required monthly payments, was entitled to relief from the automatic stay and co-debtor stay allowing it to foreclose its mortgage.