Massachusetts § 46E - Real estate closings involving the use of communications technology; definitions; tasks to be performed by an attorney; enforcement

§ 46E. Real estate closings involving the use of communications technology; definitions; tasks to be performed by an attorney; enforcement

Section 46E. (a) With respect to real estate closings involving the use of communication technology, as defined in section 1 of chapter 222, the following words, as used in this section, shall, unless the context clearly requires otherwise, have the following meanings:

''Closing'', the consummation of a transaction between parties for the purpose of granting a mortgage or otherwise transferring title to a 1-family to 4-family residential dwelling, including the execution of documents necessary to accomplish the valid and proper transfer of title and the transfer of the consideration for the conveyance, whether done simultaneously with or subsequent to the execution of documents for the transfer of title; provided, however, that a ''closing'' shall not include any transaction in which the consideration for the transfer of title is evidenced solely by a home equity loan or line of credit that: (i) is secured by a mortgage on a 1-family to 4-family residential dwelling; (ii) does not involve the issuance of a lender's or mortgagee's policy of title insurance in connection with such transaction; and (iii) is to be retained by the lender and not sold on the secondary mortgage market.

''Creditor'', a person or entity that holds or controls, partially, wholly, indirectly, directly or in a nominee capacity, a mortgage loan securing real property, including, but not limited to, an originator, holder, investor, assignee, successor, trust, trustee, nominee holder, Mortgage Electronic Registration Systems or mortgage servicer, including the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation; provided, however, that ''creditor'' shall also include any servant, employee, representative or agent of a creditor.

(b) Notwithstanding any general or special law to the contrary, no person, unless that person has been admitted as an attorney in the commonwealth and has not been disqualified from the practice of law due to resignation, disbarment or suspension or placed on inactive status, shall (i) direct or manage a closing; or (ii) take the following actions in preparation for, or in furtherance of, a closing:

(1) giving or furnishing legal advice as to the legal status of title;

(2) ensuring that the seller, or the borrower-mortgagor in a mortgage refinancing transaction, is in a position to convey marketable title to the residential property at issue;

(3) issuing a certification of title pursuant to section 70 of chapter 93;

(4) drafting a deed to real property on behalf of another;

(5) ensuring that the documents necessary for the transfer of title are executed and acknowledged in accordance with the laws of the commonwealth; provided, however, a non-attorney may take such action under the direction or supervision of an attorney; or

(6) disbursing, or managing the disbursement, of consideration for the conveyance.

(c) The attorney general may initiate an action, including a petition for injunctive relief, against any person or creditor whose violation of this section is part of a pattern, or consistent with a practice, of noncompliance. The supreme judicial court and the superior court department of the trial court of the commonwealth shall have concurrent jurisdiction in equity. A person having an interest or right that is or may be adversely affected by a violation of this section may initiate an action against the person or creditor for private monetary remedies.