Protecting Your Home Title from Theft

 

This article originally appeared in the November 2020 edition of the Merrimack Valley Housing Review.

Protecting Your Home Title from Theft

By Richard P. Howe Jr.

A number of homeowners have recently called the Registry of Deeds to ask if the title to their home is safe from online theft. Because my own social media stream has been filled with ads from a company called Title Lock, I understand why they are calling. The ads usually begin with something like this: “Alarming FBI report shows hackers can steal the title to your home in minutes – without you ever knowing it.” For $14.99 per month, Title Lock will provide its “basic protection service” which monitors your title and notifies you if anything is amiss.

So is this a legitimate concern? Well like most things related to real estate law, it's complicated. First, your “title” is not a thing. Instead, it is a legal opinion based on a review of all the records at the registry of deeds about who owns or has a legal interest in a particular parcel of real estate.

That said, here is the scenario contemplated by Title Lock and its competitors, at least as I understand it: A wrong-doer creates a deed that purports to transfer ownership of your property from you to him, forges your name on the deed then forges a notary public's signature and stamp on the deed; and then records this forged deed at the registry of deeds. Next, the wrong-doer applies for a mortgage that uses your property that now appears to be in the name of the wrong-doer as security for the loan. The lender consults the registry records, sees that the applicant owns the property, grants the loan, and records a mortgage in the name of the applicant (not you) that encumbers the property. The wrong-doer/applicant never makes a payment and the lender eventually begins foreclosure proceedings against the property. The wrong-doer likely listed his mailing address as something other than the property address so you, still living in the house and unaware of all this, would not get any notices of the foreclosure until one day when an auctioneer showed up on your front steps to sell your house at auction.

Sounds pretty scary – rightfully so - but under Massachusetts law, a forged signature does not convey ownership so the forged deed would be void as would the new mortgage that is being foreclosed. The real risk is not that you will lose your property, it is that you will be saddled with the hassle and cost of proving to everyone that you did not execute the forged deed. Because of all the layers of forgery involved (your signature, a notary's signature) it would not be very difficult to prove that, however, the burden would be on you to initiate the lawsuit needed to determine that.

Whenever a document is recorded at the registry of deeds, we immediately add the names of anyone listed on the document and the address of the property involved to our computerized index. Much like the index at the back of a textbook, the registry index is the key to finding relevant documents in the registry of deeds records.

What this Home Title Lock service purports to do is to continuously scan the registry of deeds index and anytime your name appears on a newly-recorded document to then notify you of this fact. Because the registry of deeds index is online and freely available to anyone, a homeowner concerned about this could periodically enter his or her name in the registry website and perform an identical check. That would take about 30 seconds but it would require you to go to the website on a recurring basis. 

Also, several registries of deeds in Massachusetts already offer a similar service for free, however, most registries (including this one) are not yet able to offer it. When the pandemic struck we were in the process of selecting and installing an entirely new computer system with many advanced features including this automatic monitoring capability but its deployment has been delayed because of the pandemic. 

In any case, whether you paid for Title Lock, had a registry-provided automated alert, searched the registry records yourself, or just waited for the auctioneer to show up, you would be in the exact same position: having to initiate a lawsuit to expunge the fraudulent deed and proving that the deed was forged. As I said, it should not be too difficult to prove the forgery but you would still bear the cost of hiring a lawyer to handle the matter. Title Lock does offer an enhanced “resolution service” to help with this but I am not sure of the cost and coverage. Also, some title insurance policies would cover this, but some do not – you have to read the fine print. (Most people obtain title insurance when they buy or refinance the home but since it is hardly ever used, few people are familiar with it).

All this begs the question what does the registry of deeds do to prevent the recording of forged deeds? The answer is not very much but that is a public policy decision made at echelons of government high above the registry. Specifically, our land records system relies on documents being rapidly recorded. If the registry were to have to investigate every signature on every deed to determine whether it was a forgery, the recording process would grind to a halt and the multibillion dollar real estate economy would be severely disrupted.

While the incidence of this type of fraud may be on the rise, it is still very rare. In my 25 years as register of deeds, I've never encountered a case where this has happened. There have been a couple of forged deeds, but they involved family members or friends of aged and incapacitated homeowners, not an anonymous interloper on the internet.  

 

Snowstorm closure on Dec. 17, 2020

The Lowell Justice Center, home of the Middlesex North Registry of Deeds, will be closed all day on Thursday, December 17, 2020, due to a major snowstorm. 

During the closure, Registry personnel will continue to record documents submitted electronically, however, there will be no mail delivery and no ability to drop off. We do expect to reopen on Friday morning at 8:30am. 

Also during the closure, you may reach us by emailing to lowelldeeds@comcast.net. 

 

Scheduled outage of masslandrecords.com this weekend

 Due to necessary maintenance, the masslandrecords.com website will be DOWN from 8pm on Friday, December 4 until 9pm on Saturday, December 5.

New Limits on Building Access

Due to rising infection rates, the Trial Court seeks to substantially curtail the number of people entering courthouses. Consequently, beginning on Friday, November 27 and extending at least until Friday, December 4, 2020, those delivering documents and plans to the Middlesex North Registry of Deeds for recording will be required to place the items to be recorded in the Drop-Box that is just inside the entrance to the Lowell Justice Center. 

After dropping off your documents, please call us at 978-322-9000 to tell us so we may go out and retrieve them. 

As soon as documents are recorded and scanned, they are available on the registry website for viewing, printing, and download.  

Members of the public who drop off documents for recording may email us at lowelldeeds@comcast.net afterwards with the name and address on the documents and we will email a PDF copy of the recorded document to them. 

Anyone seeking a copy of their deed, plan, or other document, should call the registry at 978-322-9000 or email us and we will assist you over the phone or by email. 

Finally, any documents being dropped off for recording should be accompanied by a self-addressed stamped envelope so that we may return the original documents to you AND a check payable to Registry of Deeds in the proper amount for the recording fee. 

Emergency Shutdown Aftermath

 At 12:30 pm on Tuesday, November 17, 2020, a Court Officer notified me that Lowell Justice Center (home of the Middlesex North Registry of Deeds) would close that day at 2 pm and would remain closed until Thursday, November 19, 2020, at 8:30 am. The reason? A person working inside the building on Monday had tested positive for Covid-19.

Here's what the Trial Court issued on its MACourtClosings Twitter account:

The Lowell Justice Center is closed temporarily for disinfecting and will open on Thursday, Nov. 19. A Dept. of Mental Health clinician, who was at the courthouse on 11/16 & spent time in District Court & the lock-up, has tested positive for COVID-19.

At the Registry, we recorded all the documents that had arrived by mail that day, put a notice on our website, and changed the audio greeting on our phone system to one that explained when and why we were closed. At 2 pm we departed. 

Despite the office being closed to the public, we were able to continue processing electronic recordings on Tuesday afternoon and all day Wednesday.

This morning, the building reopened as usual and normal operations resumed. 

Lowell Justice Center closed Friday, Sept 18, 2020

The Lowell Justice Center and all state courts will be closed on Friday, September 18, 2020, due to the death of Chief Justice Ralph Gants of the Supreme Judicial Court. Because the Middlesex North Registry of Deeds is located within the Justice Center, it will not be open to the public that day. However, we do intend to process electronic recordings in our normal manner but all other recordings (mail, drop-offs) will be processed on Monday, September 21, 2020.

Reopening Update: July 17, 2020

Here are some observations on our first week of being open to the public:

We are only open for limited purposes. Please consult the REOPENING page on our website for details on the services we offer and those we cannot.

The primary reason people have come is to drop off documents for recording. If you have Registered Land or Plans, you must still email them to lowelldeeds@comcast.net for preapproval before bringing them here.

If you have Recorded Land documents, you may email them for preapproval although that is not required. However, you must have your documents, check and return envelope fully ready before you arrive.

If you are a homeowner with an Order of Conditions, Certificate of Compliance, or other document from Town Hall, please call us at 978-322-9000 before coming so we can explain the procedure and answer any questions.

We are also able to administer oaths of office for those with new or renewed notary commissions. You must call in advance and schedule an appointment. Call 978-322-9000.

Finally, all of our documents, plans, and certificates of title are scanned and freely available on our website. If you believe something is not there, please read our Search Records Instructions page which explains how to find everything, especially our oldest documents. After reading these instructions, if you still cannot find something, please email us at lowelldeeds@comcast.net and we will assist you in obtaining the document you need.

Reopening the Registry

On Monday, July 13, 2020, courthouses across the Commonwealth will reopen to the public on a limited basis. This means the Middlesex North Registry of Deeds will also reopen to the public on a limited basis.

Please visit the registry's "Reopening" page for a description of how we will operate starting on Monday. Here are the main points:

• Walk-in Recordings will be "drop off" recordings. Customers will leave their documents, checks and envelopes at the entrance to the registry. After the customer leaves, registry personnel will retrieve and record the documents. 
• Registered Land and Plans to be recorded must still be sent by email to lowelldeeds@comcast.net for pre-approval. Pre-approval means don't send the physical documents to us until you have received approval from us by email.
• No paper copies of documents or plans will be provided in-person. We urge customers to obtain documents from our website but if paper copies are required, they may be requested by mail. 
• Registry employees WILL NOT notarize documents
• We will administer Oaths of Office, however, the person taking the oath must make an appointment in advance.

In other words, how we will operate after the building reopens will not be much different than how we have been operating throughout the pandemic. 

Looking Ahead at the Registry of Deeds

Last Thursday (May 14, 2020) the Chief Justices of the Supreme Judicial, Appeals and Trial Courts issued a letter on "the path forward during the pandemic." Here are some of the things that stood out when I read it:

• "We anticipate that our courthouses will likely remain physically closed in June . . ."
• "We expect that courthouses will physically reopen this summer, but only in stages and only for certain matters that require in-person appearances.
• "We hope that in September, if schools reopen, we will once again begin to conduct jury trials."

And regarding the rapid progress the courts have made in shifting to video conferences in place of in-person hearings, the Chief Justices wrote, "even when this pandemic is behind us, we do not believe we will or should go back to doing things as we did in February." 

The reason I mention all of this in a post about future operations at the Registry of Deeds is that this Registry of Deeds is physically located within a courthouse and is therefore dependent on the courthouse being open for us to be open to the public.

That said, even when the courthouse reopens to the public, I'll borrow a line from the justices and say we will not go back to doing things as we did before the pandemic struck. Here are some of the things that are likely even after the building reopens to the public:

•  Walk in recordings will be limited to dropping documents at the entrance to the registry
• Customer will not be permitted near the section of the registry counter where the recording terminals are located
• For registered land, we will still require you to email us the documents you intend to register for pre-approval before we will accept the documents being dropped off
• Same for plans
• There will be no real estate closings within the registry space (this was going to be the case anyway since there is no such space in the new registry)
• There will be no opportunity to do research within the registry space (this was going to be case anyway since there is no such space in the new registry)
• There will be no public computers for pre-recording rundowns. The building has WiFi so if a rundown is important, bring your laptop and do it from outside the registry

In addition to the above, we are still researching how to safely provide some of our other services such as providing over sized prints of previously recorded plans; administering oaths of office; and allowing corporate certificates to be sent directly to this office. 

In the future, as now, we hope to use the telephone, email and our website to provide customer service rather than doing it in person. 

That's it for now. I'll provide more updates as they become available.

Middlesex Probate Courthouse in Cambridge Closed Temporarily

Last evening the Trial Court closed the Middlesex Probate Courthouse in Cambridge. Because the Middlesex South Registry of Deeds is located in that building, it also will be closed. It's my understanding that Middlesex South will be able to process electronic recordings remotely but the ability to process other recordings and  to perform other tasks may be disrupted during the closure.

As of now, no reopening date has been set.

UPDATE on June 5, 2020: The Middlesex South Registry reopened for limited operations soon after this post was published. The Middlesex South Registry continues to accept documents recorded electronically and those sent to the registry via the United States Postal Service.

For more information on the status of Middlesex South, please consult that registry's website.

MassLandRecords outage

The masslandrecords.com website has been malfunctioning since late last night. It is affecting most but not all registries of deeds across Massachusetts including this one (Middlesex North).

The problem has also affected our incoming electronic recordings.

The Secretary of State's IT Department is aware of the problem and has been working on it since overnight but as for 1:20 pm the outage persists.

This post will be updated when additional information becomes available.

UPDATE: At 1:45 pm, it appears that Masslandrecords.com is back in operation. We also have received some e-files but there may still be a problem with some submitters.

Sales and Foreclosure Reports

We have posted our Sales Report for April. You can find it and other monthly reports for this year on the main page of the LowellDeeds.com website. Just scroll down to the Quick References section and look for links to:

Sales Reports

Foreclosure Reports

Please note that there were no new foreclosures to report in April due to the Covid-19 emergency foreclosure moratorium.

As for our volume of documents, the number of deeds recorded in April was down 27% compared to April 2019, while the number of mortgages was up 67% over the same period.

Help for borrowers and tenants in arrears

The Hampshire Gazette newspaper has published on Op-Ed from Mary Olberding, the Hampshire County Register of Deeds, that explains recent legislation at the state and federal level intended to assist tenants and home owner/borrowers who are in financial distress due to the Covid-19 emergency.

Here's the article:

Guest column by Mary Olberding, register of deeds: Help for those who can’t pay mortgage or rent

Published: 4/29/2020 3:35:52 PM

During these unprecedented times, federal and state legislators are working on relief packages for those financially impacted by COVID-19, including protections for those struggling to make their mortgage or rent payments.

At the federal level, the $2 trillion Coronavirus Aid, Relief and Economic Security Act (CARES) includes a moratorium on foreclosures and allowing forbearance for mortgage payments of up to one year. Massachusetts’ version approved last week puts a moratorium on evictions and foreclosures during the crisis.

These are steps that property owners and renters can use for direct assistance, but consumers need to know what these bills do for them.

In Massachusetts, no evictions or foreclosures can take place for 120 days after the bill was enacted on April 20, or 45 days after the state of emergency has been lifted, whichever is soonest. And, if necessary, the governor can extend the expiration date.

Renters, either small businesses or residential tenants, cannot be evicted for nonpayment of rent except in cases of criminal activity or for health and safety reasons. Nor can tenants be charged late fees. The law does not forgive payments or prevent landlords from later recovering monies owed. Rather, tenants must notify landlords in writing of their COVID-related circumstance no later than 30 days after a missed payment. Landlords may access deposit payment of tenants’ last month’s rent to meet their property-related expenses.

For homeowners, it is important to note that the federal CARES Act only covers mortgages that are federally guaranteed like Freddie Mac and Fannie Mae, while the law in Massachusetts applies to all mortgages. The federal CARES Act moratorium began on March 18th and extends for 60 days. Notably, the federal moratorium includes a halt to foreclosures initiated prior to the act, where state law is more ambiguous on this point.

In all of these cases, creditors are prohibited from reporting delinquencies to credit agencies and the request to miss any payment obligations rests with the debtor. Both laws allow for a period of forbearance for residential property up to 180 days. Forbearance is a suspension of payments, not forgiveness of debt.

There are some critical distinctions between these laws:

CARES allows borrowers to request a second forbearance of up to 180 days, where the Massachusetts law stops with only one 180-day forbearance period.

■CARES does not prohibit balloon payments, meaning someone may owe all of their missed payments at one time.

■Massachusetts law specifies that additional interest or fees beyond what is initially owed in the forbearance period are not allowed and payments subject to forbearance will be added to the end of the term of the loan.

■Better still, Massachusetts law provides for the opportunity to enter into alternate payment plans for those subject to forbearance. That means homeowners can negotiate how they want to make the missed mortgage and interest payments. For example, they can spread it over the life of the loan, make interest-only payments or prepay loans when the economy returns.

How difficult it is to obtain forbearance remains an open question. Banks and other mortgage servicers appear to have sole authority to grant the forbearance and for how long. The Consumer Finance Protection Bureau suggests that homeowners able to pay their mortgage should do it. Those that can only pay part should contact their lender.

Much of the financial fallout from COVID-19 is unknown. We can use the housing crisis of 2007-2012 as a guide to prevent some unnecessary turmoil. During that time, banks did not have proper documentation before initiating foreclosures and they were therefore unlawful. Many safeguards have been since put in place, but none of the current legislation requires documentation for forbearance of mortgage payments by either borrower or lender. That opens both parties up for disputes of the agreed upon terms and conditions and possible default action later by the mortgagee.

I strongly encourage anyone seeking forbearance to put all requests in writing — and get it from a lender too. I am also advocating for legislation at the state and federal level for more reporting and accountability by mortgagees.

One remedy would be a notice of default sent to the borrower, much like that required now by the Servicemembers Civil Relief Act, to give people an opportunity to prove their COVID-19 hardship. They would have a prescribed number of days to respond to the notice and could make an appearance in court to demonstrate the forbearance to avoid foreclosure. The lender would bear the burden of recording that order at the Registry of Deeds and providing public notice. Not only would this prevent unnecessary and unlawful foreclosures, it would give clear chain of title for the property for future sale, either by mortgagor or mortgagee.

Already, the Registries are seeing an uptick in foreclosure-related activity. The moratorium prevents mortgage banks and servicers from taking any action on foreclosures, but with no penalty or enforcement provisions in the legislation, outside of legal action, there is no remedy for homeowners that the moratorium is designed to help.

I have contacted Congressman Jim McGovern’s office, our state legislators and the Consumer Protection Division of the Massachusetts Attorney General’s office to work on increased protections.

In the Great Recession, we learned how devastating it can be to property owners and to the economy if banks are not accountable for complying with protections. There is potential for the pandemic to cause long-term financial hardship. Unlike the foreclosure crisis of 2008, which largely effected homeowners, the current crisis also impacts renters, landlords and small businesses — anyone with a mortgage.

Here are some resources:

■The CARES Act can be found at financialservices.house.gov

Information about obtaining a forbearance and CARES can be found at consumerfinance.gov

Mortgage information may be found at MassLandRecords.com

Please note: While this is a summary of new legislation, it should only be used as guidance and not as financial or legal advice. Contact a professional financial advisor, attorney, or other expert for individual advice.

Mary Olberding is the Hampshire Register of Deeds.

Middlesex Probate Courthouse in Cambridge Closed Until Friday

The Trial Court has announced that the Middlesex Probate Courthouse in Cambridge is completely closed to staff for the next 48 hours. The Trial Court website states that staff will be allowed back into the building on Friday, April 24, 2020.

Because the Middlesex South Registry of Deeds is located in the Probate Courthouse in Cambridge, I assume that registry is closed to employees coming onsite which has implications for recording mail and dropped off documents.

I'll post updates as I get them.

For now, this office is running as normal (as in normal for the pendemic) so we're recording e-files, mail and dropped off documents.

Registry Update: April 21, 2020

We had a busy day today with 398 documents recorded. Mondays are usually our busiest day due to a high volume of mail, but Tuesdays that follow a Monday holiday (Patriots Day) are even busier.

Electronic recording is our biggest source of documents by far. However, we still get a considerable volume of mail and Fedex and UPS both routinely make deliveries. The Justice Center is closed to anyone who is not an employee, including mail carriers and delivery people, but the Court Officers staffing the entrance will take deliveries just outside the front entrance and we've had no problems getting packages intended for us.

This is also the case with documents that are dropped off for recording. We do ask you to call us to let us know you are coming or have just been here.

If you have Registered Land, we do require you to email your documents first to lowelldeeds@comcast.net so we can review them before you send them or drop them off. This makes it easier to make the minor technical corrections that are frequently necessary for Land Court registrations. Once we review the documents, we email you back with any needed fixes or with the go-ahead to get us your original documents.

We have the same requirement for plans. Take a picture of what you intend to record and email it. Once you get a reply from us, you can send or deliver your plan.

Finally, during the pandemic  emergency we have stopped recording at 4pm rather than our normal 4:15. Please keep that in mind if you're rushing to get something on record by the end of the day.

Electronic Signatures by Municipal Boards

Massachusetts Deed Indexing Standards 2018

April 2020 Amendment

The Massachusetts Registers and Assistant Registers of Deeds Association has adopted the following Amendment to the Massachusetts Deed Indexing Standards 2018. This amendment is effective April 17, 2020.

13-7. Electronic Signatures by Municipal Boards – The following procedure is recommended for municipal boards and committees that wish to execute documents in accordance with Massachusetts General Laws chapter 110G (Uniform Electronic Transaction Act) which documents are then to be recorded at the registry of deeds.

1.       At a properly called meeting, the municipal board or commission should formally vote that the board recognizes and accepts the provisions of M.G.L. c.110G regarding electronic signatures and that its members will henceforth execute documents either with electronic signatures or with wet ink signatures and that both will carry the same legal weight and effect.

2.       The board then records at the registry of deeds a Certificate of Vote that provides the language of the motion that was made regarding electronic signatures and attests to the vote taken, and obtains the Town Clerk’s certification.

3.       Then, board members may cause their electronic signature to be affixed to permitting or compliance documents that have been approved by a board vote. Such electronically signed documents should also include a statement that the signatures are made in accordance with M.G.L. c.110G and pursuant to the board’s electronic signature authorization vote recorded on [DATE] in [BOOK and PAGE] at the [NAME OF REGISTRY] Registry of Deeds.

4.       Any document so executed shall be accepted for recording at the registry of deeds either in electronic form or as a paper print of the electronically executed document.

NOTE - The Massachusetts Land Court does not permit this procedure so electronic signatures may not be used on any REGISTERED LAND documents. Please see the Land Court website for further guidance.