Legal Question in Real Estate Law in Massachusetts

Can a private party forclose without promissory note

I have a townhouse in MA worth about 275K that has a 350K morgage on it from a business loan that went bad. The creditor (who is a past business partner) has passed away and the note has been willed to his estate. The executors are looking for payment but cannot produce a promissory note or detail of the outstanding balance as I have requested. Does the burden of proof lie upon me to show what I have paid and can they forclose on the balance without the promissory note?


Asked on 10/06/08, 7:18 pm

2 Answers from Attorneys
Joseph Murray Joseph M. Murray, Esq.

Re: Can a private party forclose without promissory note

No. The mortgage is a lien to secure the note. They need the note and the burden is on them to prove it is in default before they can foreclose on the mortgage. You, however should be prpare to prove what you have paid if you claim the note is not in default. Good Luck!

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Answered on 10/06/08, 7:26 pm
henry lebensbaum Law Offices of Henry Lebensbaum (978-749-3606)

Re: Can a private party forclose without promissory note

The initial burden is for the creditor to show the note.

But the existence of a mortgage may be sufficient. I would suggest having an attorney review the "mortgage" and the other factors.

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Answered on 10/06/08, 8:24 pm


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