35B Affidavits

Produced by Massachusetts Law Reform Institute
Created July 2013

The bank * must record 2 affidavits at the Registry of Deeds, before they can publish the notice about the foreclosure auction in the newspaper. An affidavit is a written statement that the bank swears is true. If they lie, they are committing a crime.

  • One Affidavit says the bank owns the note you signed. When they sign this affidavit they swear that the bank owns the note.
  • The other Affidavit says that the bank followed the laws about your rights to modification.

If your foreclosure was before November 2012 the bank did not have to file these affidavits.

GL 244, s.35C(b) Affidavit – the note

The GL 244, s.35C(b) affidavit says the bank looked at their records. They are sure they own the “note” you signed, or the owner of the note says they can foreclose and collect the loan, they are “authorized by the owner of the note”. When you first took out your loan you signed the note. The note is the document that says you promise to pay back the money you borrowed.

The owner of the note has the right to collect the money you owe. In Massachusetts the bank that wants to foreclose must own both the note and the mortgage.

GL 244, s 35B(f) affidavit – modification rights

The GL 244, s 35B(f) affidavit says the bank swears that they sent you the Right to Modify Notice, and

  • they reviewed your loan for a modification if you asked for a review, or
  • they did not send you the a Right to Modify Notice, because they did not have to.

The bank must look at their records and swear that they followed the law.

Endnotes

* When we use the word 'bank' we mean your lender. This could be a mortgage company a trust or even a person.

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