FORECLOSURE - SOLDIER'S AND SAILOR'S CIVIL RELIEF ACT
As the comment to MCA Title Standard No. 7 notes:
"The Soldiers' and Sailors' Civil Relief Act of 1940 applies only to mortgages upon real or personal property owned by a person in the military service at the commencement of the military service and still owned by him at the time of foreclosure and only to mortgages securing obligations originating prior to the period of military service" Comment, MCA Title Standard No. 7.
As adopted and promulgated by the Massachusetts Legislature, the federal act takes on a distinctly procedural aspect. Chapter 57 of the Acts of 1943 mandates that the decree contemplated by the federal act be recorded in the applicable Registry of Deeds and thereby serve as "...conclusive evidence of compliance with the provisions of said Solders' and Sailors' Civil Relief Act..." Chapter 57 of the Acts of 1943. Once the decree has been filed the purpose of the Act has been fulfilled and the Land Court's involvement ends. As the Supreme Judicial Court has noted;
"...[A]ctions taken to comply with the 1940 Relief Act, such as the steps prescribed by St. 1943, c. 57, as amended, are not in themselves mortgage foreclosure proceedings in any ordinary sense. Rather, they occur independently of the actual foreclosure itself and of any judicial proceedings determinative of the general validity of the foreclosure" Beaton v. Land Court, 367 Mass. 385, 326 N.E.2d 302,305 (1975).
Title Standard No. 7 manifests the importance of compliance with Soldier's and Sailor's as an important prerequisite to an effective foreclosure. Specifically, the standard mandates that a failure to comply with Soldier's and Sailor's would render the title unmarketable unless a 20 year period has elapsed since the foreclosure. MCA Title Standard No. 7. A foreclosure wherein the Act was not complied with would create a cloud on title which could only be cleared by a action to clear the title. Such an action raises a host of practical issues relating to cost allocation and the efficacy of the foreclosure itself by virtue of the chilling effect a quot;fast track" foreclosure may engender in the first instance.