According to Mass. Gen. Laws Chapter 183, Section 21, the “power” or “power of sale” in a foreclosure proceeding is referenced as the “Statutory Power of Sale”. This power can be incorporated by reference but case law states that in order for a mortgagee to foreclose without obtaining prior judicial authorization upon default the mortgage must include the power or sale (see Culhane v. Aurora Loan Services of Nebraska, C.A.1 (Mass.) 2013, 708 F.3d 282.). Previously, Cx1332 (HELOC Mortgage – MA) had a reference to the power of sale. To clarify that the statutory power of sale is given to the mortgagee we have added a section in Cx1332 that mirrors the FNMA MA “ACCELERATION; POWER OF SALE; EXPENSES” provision.
The added language reads:
ACCELERATION; POWER OF SALE; EXPENSES: If the Default is not cured on or before the date specified in the notice, you may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law. You will be entitled to collect all expenses incurred in pursuing the remedies provided in this Agreement, including, but not limited to: (i) reasonable attorneys’ fees and costs; (ii) property inspection and valuation fees; and (iii) other fees incurred to protect your interest in the Property and/or rights under this Security Instrument.
If you invoke the STATUTORY POWER OF SALE, you will mail a copy of a notice of sale to us, and to other required persons prescribed by Applicable Law, in the manner provided by Applicable Law. You will publish the notice of sale, and the Property will be sold in the manner prescribed by Applicable Law. You or your designee may purchase the Property at any sale. The proceeds of the sale will be applied in the following order: (I) to all expenses of the sale, including, but not limited to, reasonable attorneys’ fees; (II) to all sums secured by this Security Instrument; and (III) any excess to the person or persons legally entitled to it.
This change will be available for testing on Stage 1 and Stage 2 servicers and will take effect October 25, 2024. If you have any questions or concerns, please contact Client Support at 1.800.497.3584.
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