Bankruptcy Petition Filed Too Late to Prevent Sale
By Christopher R. Vaccaro
Special to Banker & Tradesman

The vast majority of mortgage loans are repaid without incident, but when they go into default, peculiar twists and turns can ensue. A federal district court decision issued in January, involving a home in Framingham, offers an example.

Andy Tran mortgaged his home to Citi­zens Bank in 2008, to secure a modest home equity line of credit. He defaulted several years later, resulting in a foreclosure auc­tion sale by Citizens Bank in 2022. Herbert Jacobs was the successful bidder at the foreclosure sale, with a $235,000 bid price. Jacobs signed a memorandum of sale after the auction.

A few weeks later, a foreclosure deed to Jacobs was recorded, together with an affi­davit of sale from Citizens Bank stating under oath that the foreclosure complied with Massachusetts law. However, the re­corded foreclosure deed to Jacobs was missing Citizens Bank’s notarized signature page. This omission turned out to be a costly embarrassment for those involved.

After the defective deed was recorded, Jacobs demanded that Tran vacate the property. Tran promptly filed a Chapter 13 bankruptcy petition and an adversary pro­ceeding in the bankruptcy court to recover the property. Tran claimed that the foreclo­sure deed was defective because of the missing notarized signature, and therefore the property remained part of his bank­ruptcy estate. Citizens Bank and Jacobs contested Tran’s claim, and the parties filed cross-motions for summary judgment with the bankruptcy court.

The bankruptcy court ruled in favor of Citizens Bank and Jacobs. According to the court, Tran could not undo the foreclosure sale to Jacobs, because Tran lost his rights to the property, known as an equity of re­demption, when the foreclosure auction concluded and Jacobs signed the memoran­dum of sale. The delivery of the foreclosure deed was unnecessary to extinguish Tran’s equity of redemption, and Citizens Bank’s recorded affidavit of sale provided adequate notice of the foreclosure sale to third par­ties. Accordingly, the foreclosure sale extin­guished Tran’s equity of redemption, and Tran could not use bankruptcy law to dis­rupt the sale to Jacobs.

A Question of Applying Bankruptcy Law

Tran appealed the bankruptcy court’s de­cision to the U.S. District Court for Massa­chusetts, maintaining that his rights to the property were not extinguished by the fore­closure auction alone, and the defective foreclosure deed failed to extinguish his eq­uity of redemption. Tran also argued that Citizens Bank’s recorded affidavit of sale did not serve as a substitute for a valid fore­closure deed.

The federal district court noted that all of the material facts of this case were uncon­tested; namely, Citizens Bank conducted a foreclosure auction where Jacobs emerged as the winning bidder, a foreclosure deed and affidavit were recorded at the registry but the deed lacked a notarized signature page, and Tran filed his bankruptcy petition after the deed and affidavit were recorded. Because these crucial facts were uncontested, the dis­trict court only needed to determine whether the bankruptcy court properly applied Massa­chusetts law in ruling that Tran lost his equity of redemption to the property before he filed his bankruptcy petition.

The district court examined decades of Massachusetts appellate court decisions when considering the parties’ arguments. Tran relied heavily on a 1924 Supreme Judi­cial Court case holding that a borrower’s eq­uity of redemption was not extinguished until the foreclosure deed was recorded. But the district court cited more recent Massachusetts appeals court decisions holding that the foreclosure auction and the signing of the memorandum of sale extin­guished the borrower’s equity of redemp­tion. The district court observed that the SJC had agreed with those later decisions. The district court also noted that the bank­ruptcy court in Massachusetts, which is a federal court, had concurred with the more recent approach taken by the Massachu­setts courts.

The district court followed those later de­cisions, and upheld the bankruptcy court’s ruling in favor of Citizens Bank and Jacobs. The court also affirmed the bankruptcy court’s holding that, even though the fore­closure deed lacked a signature page, the recorded foreclosure affidavit provided suf­ficient notice of the foreclosure sale to po­tential good faith purchasers. Therefore, Tran could not successfully invoke provi­sions of the Bankruptcy Code that allow bankruptcy trustees and debtors in posses­sion to avoid real estate transfers that are not recorded at the registry of deeds.

The district court’s decision makes it clear that if a debtor wants to prevent a foreclosure sale, it should file a bankruptcy petition before the auction begins, instead of waiting until after a foreclosure deed to the winning bidder is recorded.

Download the article as seen in  Banker & Tradesman on February 26, 2024. Learn more about Christopher R. Vaccaro.

Neglected Real Estate Repurposed for Artist Community
By Christopher R. Vaccaro
Special to Banker & Tradesman

The new Fitchburg Arts Community demonstrates a potential playbook for successful financing of housing through public subsidies in Massachusetts’ Gateway Cities.

In the 19th century, Fitchburg was a mill town where facto­ries along the Nashua River manufactured textiles and paper prod­ucts. Many of the fac­tories are gone now, but today’s Fitchburg is home to impressive Victorian architecture, an MBTA commuter rail station, Fitchburg State University and the Fitchburg Art Mu­seum.

The art museum is a valuable cultural asset to northern Worcester County, with over 7,000 pieces, including 19th century American art, African art and photography. Thanks to the vision and perseverance of key members of Fitchburg’s nonprofit and creative communities, the museum will soon share its neighborhood with the Fitch­burg Arts Community (FAC), a housing de­velopment offering 68 affordable apart­ments for artists and other creative individuals. It is expected to open early next year.

The FAC’s developer, NewVue Communi­ties, is a Fitchburg-based nonprofit commu­nity development corporation that pro­motes housing and small business growth in north central Massachusetts. The FAC is the brainchild of NewVue’s executive director Marc Dohan and the art museum’s director Nick Capasso, who envisioned converting nearby abandoned historic school buildings and a stable into artist housing.

Eastern Bank Reinvests in a Gateway City

The $45 million project broke ground last fall, after securing traditional bank con­struction financing, support from MassDe­velopment’s Transformative Development Initiative (TDI) program for Gateway Cities, and low-income housing and historic reha­bilitation tax credits.

NewVue acquired the FAC’s site from the city of Fitchburg and a private owner sev­eral years ago for a modest price. Last year, NewVue transferred the site to an affiliated for-profit limited liability company. Eastern Bank committed $26 million in construction financing. Commitments like that explain how Eastern Bank earned an “outstanding” rating from the Massachusetts Division of Banks under the Community Reinvestment Act.

The TDI program and tax credits at­tracted additional project financing. The commonwealth of Massachusetts arranged for $7.2 million of syndicated financing from several governmental and quasi-gov­ernmental agencies. NewVue obtained a $3.9 million state Low-Income Housing Tax Credit loan and a $7.4 million state historic tax credit loan, and also invested $4.1 mil­lion from a MassDevelopment Brownfields Grant, another grant from the Fitchburg Re­development Authority, and its own capital campaign.

The tax credits are the most complicated aspect of the FAC project. Investors relying on them should seek expert tax advice be­fore proceeding. The federal Low-Income Housing Tax Credit (LIHTC) program offers tax credits to investors who provide fund­ing for affordable housing developments. The state Executive Office of Housing and Livable Communities manages this program in Massachusetts, in addition to a separate but similar state tax credit program.

According to the commonwealth’s web­site, eligible investors can qualify for tax credits of up to 9 percent. But available tax credits are limited. The maximum tax credit award is generally $1 million per project, but EOHLC may award up to $1.3 million in credits for larger scale projects considered more transformative for the surrounding neighborhood.

The historic rehabilitation tax credit can offset up to 20 percent of a developer’s ex­penditures to rehabilitate an historic build­ing. Qualifying projects must be certified by the Massachusetts Historical Commission. The credit is earned when the completed project is placed in service. However, the commonwealth cannot authorize more than $55 million towards this tax credit annually, so investors must go through an approval process to qualify. The program is sched­uled to expire in 2027.

A Spread of Incomes

To ensure that the FAC’s apartments in Fitchburg remain affordable in perpetuity, the project is subject to an affordable hous­ing restriction, limiting rents and requiring that tenants’ income not exceed certain thresholds. Under this restriction, 21 apart­ments are now set aside for tenants earning up to 110 percent of area median income (AMI) but that percentage may change, 31 apartments for tenants earning up to 60 per­cent of AMI, two apartments for tenants earning up to 50 percent of AMI and 14 apartments for tenants earning up to 30 per­cent of AMI. NewVue is responsible for en­suring that only tenants within those in­come limits reside at the project. These restrictions are necessary for investors in the FAC to qualify for low-income housing tax credits.

New Vue’s Marc Dohan of NewVue said the project “is a great win for Fitchburg and the region. It creates desperately needed housing, and preserves three historic build­ings by putting them on the National Regis­ter of Historic Places, all while taking ad­vantage of Fitchburg’s diversity, history, walkability and strong cultural institutions. It will bring dozens of creative artists and entrepreneurs to our region.”

Dohan’s efforts might have a positive im­pact beyond developing affordable apart­ments in Fitchburg, if Massachusetts com­munity development corporations can follow his playbook in other Gateway Cit­ies.

Download the article as seen in  Banker & Tradesman on June 26, 2023. Learn more about Christopher R. Vaccaro.

EOHLC Guidelines offer a Roadmap to Compliance
By Christopher R. Vaccaro
Special to Banker & Tradesman

A 2021 amendment to the Massachu­setts Zoning Act requires “MBTA com­munities” to establish zoning districts that facilitate multifamily housing development.

The amendment de­fines MBTA communities, in effect, as cities and towns that have commuter rail, subway, ferry or bus stations, or are adjacent to cit­ies and towns having those services. There are 177 MBTA communities in eastern Mas­sachusetts. Boston is excluded because its zoning code is authorized under a separate enabling act.

MBTA communities must create at least one zoning district “of reasonable size” where multifamily housing is “permitted as of right.” Districts must be located within a half-mile of transit stations and allow a min­imum gross density of 15 dwelling units per acre. The amendment has ambiguities. For example, what is a zoning district “of rea­sonable size,” and what does it mean for a project to be “permitted as of right”? Where are MBTA communities without public tran­sit stations expected to locate multifamily housing districts? When must MBTA com­munities comply with the statute?

The Executive Office of Housing and Liv­able Communities (EOHLC) promulgated guidelines last August addressing these is­sues. EOHLC is a cabinet-level secretariat created in 2023 to improve housing options in Massachusetts. Its guidelines recognize four classes of MBTA communities: rapid transit communities, commuter rail commu­nities, adjacent communities (cities and larger towns without nearby transit sta­tions) and adjacent small towns. Different requirements apply to each class.

A Direct Path to Approval

For multifamily housing to be allowed “as of right,” zoning districts must permit multifamily housing construction without variances, special permits or similar discre­tionary zoning relief. But communities can condition permitting on site plan reviews, if the review process does not impose unrea­sonable delays or conditions. Communities can also place limited affordable unit re­quirements on projects.

The guidelines regarding the “reasonable size” of multifamily districts are compli­cated. “Reasonableness” depends on both the acreage of the district and the district’s “multifamily unit capacity,” which is the po­tential number of multifamily housing units that are developable as of right in the dis­trict. For communities other than adjacent small towns, reasonably sized districts gen­erally must have at least 50 acres or 1.5 per­cent of the developable land in the MBTA community, whichever is less. There is no minimum area for adjacent small towns. Communities lacking transit stations should locate their districts near access to transit stations, or near downtown areas.

When determining the reasonable multi­family unit capacity for individual commu­nities, EOHLC assigns a percentage to the community, depending on its class. The per­centage is 25 percent for rapid transit com­munities, 15 percent for commuter rail com­munities, 10 percent for adjacent communities and 5 percent for adjacent small towns. EOHLC then calculates the minimum multifamily housing for each community based on whichever is greater: the number of housing units in the MBTA community, times the applicable percent­age; or the minimum land area for the multi­family district, times 15 units per acre.

However, minimum multifamily unit ca­pacity cannot exceed 25 percent of total housing in each community. The guidelines make special allowances for mixed-use de­velopment zoning districts. EOHLC has es­tablished minimum multifamily unit capaci­ties for every MBTA community, which is available online on the agency’s website.

State Grants Contingent on Compliance

EOHLC will issue determinations of com­pliance to communities that satisfy its guide­lines. These will be important to communi­ties seeking various forms of state funding and discretionary grants. MBTA communi­ties should also consider the statement is­sued last spring by the Massachusetts attor­ney general, warning that noncompliant communities risk liability under federal and state fair housing laws. EOHLC’s guidelines do not require communities to produce housing units, or meet a housing production target, to comply with the guidelines. Com­munities only need to show that their zoning allows multifamily housing as of right and that sufficient units can be added, even if such addition is unlikely.

EOHLC anticipates that all MBTA com­munities will adopt conforming zoning amendments and seek EOHLC determina­tions of compliance in the near future. The deadline for communities to submit applica­tions to EOHLC for determinations of com­pliance is Dec. 31 of this year for rapid tran­sit communities, Dec. 31, 2024 for commuter rail and adjacent communities and Dec. 31, 2025 for adjacent small towns.

Arlington, Brookline and Lexington are among several municipalities that recently changed their zoning laws to comply with the guidelines. Other MBTA communities are expected to follow over the next several months, creating opportunities for develop­ers to increase multifamily housing inven­tory in Massachusetts. The question re­mains as to how developers will finance projects, in a lending climate with high in­terest rates and reluctant bankers.

Download the article as seen in  Banker & Tradesman on June 26, 2023. Learn more about Christopher R. Vaccaro.

Court Backs Acceleration Clauses
By Christopher R. Vaccaro
Special to Banker & Tradesman

The Massachusetts Supreme Judicial Court overruled the Appeals Court in Cummings Properties, LLC v. Hines last Sep­tember, and upheld the validity of a rent accel­eration clause in a com­mercial lease.

Rent acceleration clauses allow landlords to demand that evicted tenants immediately pay as liquidated damages all remaining un­paid rent through the end of the lease term, even if the lease term expires years after the tenant’s default. The defaulting tenant’s lia­bility is not offset by the rental value of the vacated premises or by rents paid by re­placement tenants.

Many landlords refrain from adding these clauses in their leases, and sophisticated tenants generally refuse to accept them. However, Cummings Properties, which often rents to smaller tenants, includes rent acceleration clauses in its standard lease form. Cummings is not shy about enforcing the clause against defaulting tenants, as Darryl Hines recently learned.

Hines founded Massachusetts Consta­ble’s Office Inc. (MCO), a civil process ser­vice firm that earned a reputation for using questionable tactics to serve process and make arrests. In 2016, MCO secured a con­tract with the Massachusetts Department of Revenue, and signed a five-year lease with Cummings for space in Woburn. Hines per­sonally guarantied the lease, which in­cluded a rent acceleration clause.

Less than a month into the lease, the De­partment of Revenue suspended its contract with MCO, and MCO defaulted on the lease. Cummings evicted MCO, and a year later signed a four-year lease with a new tenant for the space formerly occupied by MCO.

$69K Judgement

Despite securing the replacement tenant, Cummings sued Hines under the lease guar­anty for the entire accelerated rent through the end of the five-year term of MCO’s ter­minated lease. A Superior Court judge up­held the rent acceleration clause, and found that Hines had sufficient sophistication to understand the consequences of his per­sonal guaranty. It entered judgment against Hines for $69,000, the balance of the accel­erated rent owed after deducting prior pay­ments made by MCO.

The Appeals Court reversed that judgment. It noted that rent acceleration clauses may be enforceable as liquidated damages provisions if they are not punitive. In the case of Cum­mings’s lease, the acceleration clause al­lowed Cummings to evict the tenant, relet the premises to a new tenant, collect rent from that tenant, and still claim accelerated rent from MCO without deducting rent received from the new tenant. The Appeals Court ruled that the clause bore no reasonable rela­tionship to Cummings’s expected damages, rendering it an unenforceable penalty.

The Supreme Judicial Court granted Cummings’s application for further appel­late review. The SJC first considered whether the rent acceleration clause was enforceable as a liquidated damages clause. The SJC noted that liquidated damages clauses are generally enforceable, if they are not so disproportionate to anticipated damages that they constitute a penalty.

When Massachusetts courts consider whether to enforce liquidated damages clauses, they analyze the circumstances at the time the contract was entered into, with­out considering other circumstances that may arise later by the time of the breach.

Court’s ‘Single Look’ Approach

Under this “single look” approach, rent acceleration clauses are enforceable if the actual damages from a breach were difficult to ascertain when the lease was signed, and the accelerated rent is a “reasonable fore­cast” of damages expected to result from a breach. Courts are not required to consider rents that landlords might collect from re­placement tenants after breaches occur.

The SJC noted that Hines had the burden of proving facts that would render the clause unenforceable, and that he failed to meet that burden. According to the SJC, Hines did not present evidence supporting his claim that Cummings’s anticipated damages upon de­fault were ascertainable when Hines signed his guaranty. Hines also failed to show that the rent acceleration clause was an unrea­sonable forecast of the damages that Cum­mings might sustain if MCO breached the lease. The SJC found that the rent accelera­tion clause was not an unenforceable penalty.

The SJC also rejected Hines’s argument that he should be relieved from the burdens of the rent acceleration clause because he was not a sophisticated party. The SJC noted that Hines’s level of sophistication was a question of fact, not law, which the superior court properly determined based on Hines’s business experience. Therefore, the rent acceleration clause was enforce­able against Hines. The SJC affirmed the su­perior court’s $69,000 judgment against him.

The SJC’s decision may encourage other commercial landlords to add rent accelera­tion clauses to their leases. Tenants should be on the lookout for these clauses, and should be wary about entering into leases with landlords who utilize them.

Download the article as seen in  Banker & Tradesman on June 26, 2023. Learn more about Christopher R. Vaccaro.