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A Missing Massachusetts Promissory Note's Outsized Potential Impact on Foreclosures

In Zullo v. HMC Assets, LLC, the Massachusetts Land Court has issued a judicial about-face in deciding that a mortgage holder lacks standing to foreclose if that holder never possessed the mortgagor's original promissory note – even if that holder can submit a lost note affidavit from a predecessor holder. In a written decision issued in August 2014, the Land Court determined, in the very same case, that the mortgage holder could foreclose without possession of the original promissory note but with a lost note affidavit executed by a prior loan servicer. The 2014 Zullo decision directly contradicted two decisions arising out of the Massachusetts bankruptcy court, Desmond v. Raymond C. Green, Inc., 505 B.R. 365 (Bankr. D. Mass. 2014); Marks v. Braunstein, 439 B.R. 248 (Bankr. D. Mass. 2010), both of which concluded that under Massachusetts law, the foreclosing mortgage holder must have at one point possessed the original note, so that it can execute the lost note affidavit. More ›

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