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683
ARTICLE
FORECLOSURE REFORM AMID
MORTGAGE LENDING TURMOIL:
A PUBLIC PURPOSE APPROACH
Prentiss Cox
*
T
ABLE OF CONTENTS
I.
INTRODUCTION .....................................................................685
II. RISING MORTGAGE FORECLOSURES
IN THE UNITED STATES.........................................................687
A. Rising Foreclosures and the Subprime
Lending Connection .....................................................688
B. Impact of Rising Foreclosures on Communities ...........693
1. Concentrated Subprime Mortgage
Foreclosures Are Causing Blight ...........................693
2. Metropolitan Example:
Minneapolis, Minnesota ........................................696
III. BORROWERS, LENDERS, AND
M
ORTGAGE FORECLOSURE LAW ...........................................697
A. Elements of State Foreclosure Laws .............................699
1. Judicial Versus Nonjudicial Procedures...............699
2. Notice Requirements..............................................700
3. Foreclosure Sale Procedures..................................701
4. Borrower Redemption and
Reinstatement Rights.............................................701
5. Antideficiency Protections......................................702
* Associate Professor of Clinical Law, University of Minnesota Law School. The Author
thanks Donald Brewster for his generosity in sharing his extraordinary database of resources and
tremendous knowledge. The Author also thanks Ann Burkhart, Brett McDonald, and Jeff Crump for
their helpful advice, and Jon Taylor for his timely and excellent research assistance.
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684 HOUSTON LAW REVIEW [45:3
B.
Effect of Varying Foreclosure Laws ..............................703
1. Hypothetical Foreclosure
Laws in States A and B .........................................703
2. The Smiths.............................................................704
3. Investor Jones ........................................................706
C. Conduct of Lenders and Borrowers
in Foreclosure................................................................707
1. Lender Response To Mortgage Default..................707
2. Borrowers in Mortgage Default .............................708
IV. EXISTING SCHOLARSHIP ON
F
ORECLOSURE LAW ..............................................................715
A. Foreclosure Laws from the
Perspective of Economists .............................................715
B. Foreclosure from the Perspective of
Legal Scholars...............................................................717
C. Limited Importance of Foreclosure Sales .....................720
V. FORECLOSURE LAW AS HOUSING POLICY .............................723
A. Sustainable Homeownership ........................................723
B. Foreclosure Law Affects Community
Stability and Housing Quality .....................................726
VI. IMPLEMENTING FORECLOSURE
R
EFORM AS HOUSING POLICY ...............................................727
A. Bifurcated Foreclosure by Property Type......................728
1. Shorten the Foreclosure Process
for Investment Property .........................................728
2. Lengthen the Foreclosure Process
for Homeowners .....................................................730
3. Objections to Extended Reinstatement
Rights for Homeowners..........................................733
4. Defining Property Types in a
Bifurcated System..................................................739
B. Notices to Homeowners .................................................739
1. Plain Language Homeowner
Assistance Notices..................................................740
2. Nonpublic Notice of Default
to Public Entities. ..................................................741
C. Implementation of Foreclosure Reform.........................743
VII. CONCLUSION.........................................................................744
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I. I
NTRODUCTION
Irene Thomas was twenty-one years old when she met a man
outside of a nightclub who convinced her that she could make
money in real estate.
1
A mortgage broker and others used her
credit rating to obtain ten residential properties within a ninety-
day period with no money down.
2
Ms. Thomas incurred $2.4
million in mortgage debt for these home purchases.
3
Just over a
year later, all the properties were in foreclosure after Ms.
Thomas failed to make the mortgage payments.
4
The
neighborhood on the north side of Minneapolis where these ten
properties are located has been wracked by an approximately
five-fold increase in foreclosures that has led to abandoned
homes and neighborhood deterioration.
5
In north Minneapolis
alone there have been 1,400 houses sold through foreclosure
auctions.
6
Much of the problem in north Minneapolis involves
foreclosure of rental investment property,
7
which resulted in
deteriorated housing quality in the neighborhood. Ms. Thomas
now has ruined credit because she was duped by those who sold
her homes at inflated prices.
8
Franklin and Beryl Abazie bought a home in Newark using
two subprime mortgage loans.
9
Mr. Abazie took a second job at a
state mental hospital in an attempt to make the payments on the
loans.
10
After giving birth to their first child, Mrs. Abazie
returned to work at a home for the elderly.
11
The family also
found a tenant to help pay the mortgage.
12
Ultimately, the
monthly payments on the loans overwhelmed the Abazie family,
and their mortgage went into foreclosure.
13
The Newark
neighborhood in which the Abazie family lives is covered with
1. Pam Louwagie & Glenn Howatt, “Straw Buyer” Deals Fuel Tidal Wave of
Foreclosures, S
TAR TRIB. (Minneapolis), June 10, 2007, at A1.
2. Id.
3. Id.
4. Id.
5. The five-fold increase is reflective of the data provided by the Hennepin
County Sheriff’s Office. This data can be accessed at http://www4.co.hennepin.mn.us/
webforeclosure/.
6. Pam Louwagie & Glenn Howatt, Foreclosure Epidemic, S
TAR TRIB.
(Minneapolis), May 5, 2007, at A1.
7. Id.
8. See Louwagie & Howatt, supra note 1.
9. Kareem Fahim & Ron Nixon, Behind Foreclosures, Ruined Credit and Hopes,
N.Y.
TIMES, Mar. 28, 2007, at A1.
10. Id.
11. Id.
12. Id.
13. Id.
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686 HOUSTON LAW REVIEW [45:3
signs that say “Avoid Foreclosure” or “Sell Your Home,”
symptoms of a foreclosure crisis.
14
The explosive growth and recent collapse of the subprime
mortgage lending industry has led to an increase in mortgage
foreclosures that will persist for years.
15
Rising foreclosures have
started to blight certain areas of American cities hit hardest by
the problem.
16
As the consequences of rising foreclosure become
apparent in the form of deteriorating neighborhoods, state
legislatures are looking to reform foreclosure law.
17
State foreclosure laws have developed over centuries, and
the rights of the borrowers and the lenders vary widely between
jurisdictions.
18
In Georgia, property can be sold at auction within
two months of the initiation of the foreclosure.
19
In Indiana, the
foreclosure process must occur through court action and takes a
minimum of almost nine months.
20
Each state has its own array
of notice requirements, sale procedures, and borrower protections
prior to or after the sale.
21
Yet there are few distinctions in the
14. Id.
15. See
infra notes 26–55 and accompanying text (describing the nature of the
recent subprime mortgage crisis).
16. See N
EIGHBORHOOD HOUS. SERVS. OF CHI., INC., PRESERVING HOMEOWNERSHIP:
COMMUNITY-DEVELOPMENT IMPLICATIONS OF THE NEW MORTGAGE MARKET 13–20 (2004),
available at http://www.nw.org/network/neighborworksProgs/foreclosuresolutionsOLD/
documents/preservingHomeownershipRpt.pdf [hereinafter NEIGHBORHOOD HOUSING]
(recommending changes in state foreclosure laws to address the rising number of
foreclosures).
17. See National Conference of State Legislatures, 2007 Foreclosure Legislation,
http://www.ncsl.org/standcomm/sccomfc/Foreclosures_2007.htm (last visited Sept. 5, 2008)
(listing 28 state legislatures with proposed legislation addressing some aspect of
foreclosure law).
18. See, e.g., Debra Pogrund Stark, Facing the Facts: An Empirical Study of the
Fairness and Efficiency of Foreclosures and a Proposal for Reform, 30 U.
MICH. J.L.
REFORM 639, 643–48 (1997) (detailing the advantages to lenders and borrowers in
different kinds of foreclosures).
19. G
A. CODE ANN. § 44-14-180 (2007); see also THE NATIONAL MORTGAGE
SERVICER’S REFERENCE DIRECTORY 89 (22d ed. 2005) [hereinafter MORTGAGE DIRECTORY]
(estimating that a foreclosure sale can occur in as little as thirty-seven days from referral
of file to foreclosing attorney); Vikas Bajaj, Increasing Rate of Foreclosures Upsets Atlanta,
N.Y.
TIMES, July 9, 2007, at A1 (“Georgia’s foreclosure laws have also accelerated a
process that can drag on for months in legal proceedings in other states. Lenders can
declare a borrower in default and reclaim a house in as little as 60 days.”).
20. I
ND. CODE § 32-29-7-3 (2007); see also MORTGAGE DIRECTORY, supra note 19, at
1-105, 1-108 (estimating a minimum of 266 days to complete the foreclosure process).
21. Patrick A. Randolph, Jr., The Future of American Real Estate Law: Uniform
Foreclosure Laws and Uniform Land Security Interest Act, 20 N
OVA L. REV. 1109, 1112
(1996). (“[L]and laws in individual states developed to reflect the special political values
that the citizens of those states held.”); see also J
OHN RAO, ODETTE WILLIAMSON & TARA
TWOMEY, FORECLOSURES: DEFENSES, WORKOUTS AND MORTGAGE SERVICING § 1.3.1.2,
app. C (2d ed. 2007) (noting that each state has its own foreclosure laws and detailing the
provisions for each state).
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2008] AN APPROACH TO FORECLOSURE REFORM 687
various state laws between foreclosing on the multiple loans for
the ten properties bought and abandoned by Irene Thomas and
foreclosing on loans to homeowners like the Abazie family.
Part II of this Article describes the origin, scope, and
consequence of rising foreclosures. Part III provides an overview of
the law governing mortgage foreclosure, which is predominantly a
matter of divergent state statutes. This Part also discusses the
reality for homeowners and lenders in the foreclosure process.
Part IV examines the current commentaries on foreclosure law.
Legal scholars have focused particular attention on the foreclosure
sale mechanism and proposals for alternate sale procedures, often
cleverly conceived, that arguably would provide for more efficient
outcomes for the parties or the broader market.
The principal argument in this Article is that state
foreclosure laws should reflect broader public interests in
housing policy, not just a balancing of the competing interests of
the parties to mortgage default. In particular, reform of state
foreclosure laws can be a tool in ameliorating homeownership
loss and stabilizing neighborhoods hardest hit by foreclosures.
Part V discusses the relationship between foreclosure laws and
these national housing policy goals. Focusing on broader public
policy goals provides a different focus on foreclosure law reform
than prior discourse in this area.
Part VI advocates two fundamental types of reform of state
foreclosure laws. Subpart A argues for a bifurcation of foreclosure
procedures by property type. Lenders should be able to
expeditiously foreclose on investor property, including residential
property not owner-occupied. Homeowners who occupy
residential property should be given longer reinstatement
periods, and redemption periods should be replaced with
reinstatement rights. The Abazie family should be given every
opportunity to maintain ownership of their home, while there is
little reason to prolong the foreclosure process to protect the
interests of Irene Thomas in her ten properties. Subpart B
advocates new notice provisions that would change the content,
frequency, and public filing requirements of state foreclosure
laws. Finally, Subpart C describes the advantage of this more
flexible approach to foreclosure reform rather than the multiple
unsuccessful attempts at enacting uniform state laws.
II. R
ISING MORTGAGE FORECLOSURES IN
THE UNITED STATES
Not since the Great Depression of the 1930s has mortgage
foreclosure been a significant topic of public discussion. This is no
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688 HOUSTON LAW REVIEW [45:3
doubt true because foreclosure rates are creeping toward
Depression-era levels.
22
The increase in mortgage defaults and
foreclosures are causing distress in the financial markets.
23
The
Federal Reserve Board and its chairman, Ben Bernanke, have
issued a series of statements in an effort to calm concerns about
widespread financial turmoil caused by the increase in defaults
and foreclosures.
24
The investment banking industry, which
issues mortgage-backed securities, is scrambling to decode the
magnitude of losses and the effect on the market.
25
Subpart A briefly describes the subprime lending practices
that primarily have caused increasing foreclosures. Subpart B
details the effect of rising mortgage foreclosure rates on certain
communities, including a detailed description of the increase in
foreclosures in Minneapolis, Minnesota, as an example of the
problem.
A. Rising Foreclosures and the Subprime Lending Connection
There is no comprehensive and authoritative source for data
on foreclosures.
26
Yet however measured, the number and rate of
22. Nelson D. Schwartz, Can the Mortgage Crisis Swallow a Town?, N.Y. TIMES,
Sept. 2, 2007, § 3 (Sunday Business), at 1.
23. See Deborah Solomon, Bush Moves to Aid Homeowners, W
ALL ST. J., Aug. 31,
2007, at A4 (discussing turmoil in the market caused by foreclosures and the political
response).
24. Ben S. Bernanke, Chairman, Fed. Reserve Bd., Remarks Made at the Federal
Reserve Bank of Kansas City’s Economic Symposium (Aug. 31, 2007) (transcript
available at http://www.federalreserve.gov/newsevents/speech/bernanke20070831a.htm);
Ben S. Bernanke, Chairman, Fed. Reserve Bd., The Housing Market and Subprime
Lending, Remarks via satellite to the 2007 International Monetary Conference (June
5, 2007) [hereinafter Bernanke, Housing Market] (transcript available at
http://www.federalreserve.gov/newsevents/speech/Bernanke20070605a.htm); Ben S.
Bernanke, Chairman, Fed. Reserve Bd., The Subprime Mortgage Market, Remarks at the
Federal Reserve Bank of Chicago’s 43rd Annual Conference on Bank Structure and
Competition (May 17, 2007) [hereinafter Bernanke, Subprime Market] (transcript
available at http://www.federalreserve.gov/newsevents/speech/Bernanke20070517a.htm).
25. See, e.g., A
M. SECURITIZATION FORUM, STATEMENT OF PRINCIPLES,
RECOMMENDATIONS AND GUIDELINES FOR THE MODIFICATION OF SECURITIZED SUBPRIME
RESIDENTIAL MORTGAGE LOANS 1 (2007), http://www.americansecuritization.com/
uploadedFiles/ASF Subprime Loan Modification Principles_060107.pdf [hereinafter
F
ORUM] (noting the “broader environment for subprime loans: an increase in delinquency,
default and foreclosure rates; a decline in home price appreciation rates; a prevalence of
loans with a reduced introductory rate that will soon adjust to a higher rate; and a
reduced availability of subprime mortgage lending for refinancing purposes”); Gretchen
Morgenson, Bear Stearns Says Battered Hedge Funds are Worth Little, N.Y.
TIMES, July
18, 2007, at C2.
26. T
HE CTR. FOR STATISTICAL RESEARCH INC., U.S. MORTGAGE BORROWING:
PROVIDING AMERICANS WITH OPPORTUNITY, OR IMPOSING EXCESSIVE RISK? 11–12 (2007),
available at https://www.afsaonline.org/CMS/fileREPOSITORY/Foreclosure%20Study%
20CSR%20May%202007%20FINAL.pdf [hereinafter M
ORTGAGE BORROWING] (describing
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2008] AN APPROACH TO FORECLOSURE REFORM 689
foreclosures has been rising over the last ten years and especially
recently. The number of mortgages entering foreclosure rose from
0.35% in the second quarter of 1997
27
to 0.99% in the first quarter
of 2008, which was the highest foreclosure rate in more than
twenty-five years.
28
Subprime lending has driven this rise in foreclosures.
29
Subprime loans are designed for borrowers who have
characteristics that suggest a poorer credit risk.
30
Subprime
borrowers pay higher interest rates, higher loan fees, or both, in
order to compensate lenders for the greater risk of default.
31
Only
14% of mortgages are subprime loans, yet subprime loans
constitute over 64% of the loans in foreclosure.
32
Subprime lending has long been associated with deceptive
and unfair sales practices.
33
State attorneys general cooperated in
a series of cases against some of the largest subprime mortgage
lenders, alleging violations of consumer protection laws. These
cases resulted in settlements costing these lenders approximately
$850 million in restitution to homeowners.
34
Subprime lending
the three most common means of measuring the number of foreclosures and the rate of
change in foreclosure activity). There is some indication that the most commonly cited
sources may grossly undercount foreclosures. See, e.g., Steve Alexander & Jim Buchta,
Foreclosures Taking a Bigger Toll Across Minnesota, S
TAR TRIB. (Minneapolis), Aug. 2,
2007, at D1 (reporting that the 11,207 actual count of foreclosure sales in Minnesota in
2006 were almost twice the number reported by RealtyTrac based on mortgage industry
reporting).
27. See U.S. Dep’t of Housing & Urban Dev., U.S. Housing Market Conditions
National Data: Housing Finance, Fall 1997, available at http://www.huduser.org/
periodicals/USHMC/fall97/nd_hf.html (reporting the MBA delinquency survey for the 2Q
of 1997).
28. Press Release, Mortgage Bankers Assoc., Delinquencies Decrease in Latest
MBA National Delinquency Survey (June 14, 2007), available at
http://www.mortgagebankers.org/NewsandMedia/PressCenter/55132.htm (announcing the
results of the MBA national delinquency survey).
29. See C
TR. FOR RESPONSIBLE LENDING, A SNAPSHOT OF THE SUBPRIME MARKET 1
(2007), http://www.responsiblelending.org/pdfs/snapshot-of-the-subprime-market.pdf.
30. Patricia A. McCoy, Rethinking Disclosure in a World of Risk-based Pricing, 44
H
ARV. J. ON LEGIS. 123, 126 (2007).
31. See id. at 126–27 (observing that the amount of higher loan rates and charges
are theoretically correlated to the risk presented by the borrower’s characteristics, but
loan pricing does not always follow this model in practice).
32. C
TR. FOR RESPONSIBLE LENDING, supra note 29, at 3.
33. Up to 25% of Subprime Losses Blamed on Fraud, I
NSIDE B & C LENDING, Nov. 5,
2007, at 5 (finding indications of fraud in almost every subprime loan file examined); see
Heather M. Tashman, The Subprime Lending Industry: An Industry in Crisis, 124
B
ANKING L.J. 407, 407–08, 413–14 (2007) (describing skepticism toward subprime lending
and the congressional response).
34. See, e.g., Michelle Singletary, Taming the Predators, W
ASH. POST, Jan. 29, 2006,
at F1 (noting the $325 million dollar settlement with Ameriquest and the agreement to
avoid predatory practices); Mark Skertic, Household Settles Class-action Suits for $100
Million, C
HI. TRIB., Nov. 26, 2003, § 3, at 1 (stating that the lender had reached a $484
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690 HOUSTON LAW REVIEW [45:3
has been associated with interest rates and loan fees
disproportionate to the risk of the loan, deceptive representations
as to the terms of the loans, appraisals inflated beyond fair
market value, servicing abuses, and a range of other unfair and
deceptive practices.
35
The vast majority of subprime mortgage loans are sold by
the entity that originates the loan into the secondary market for
“mortgage-backed securities.”
36
This shifting of risk from the
originator of the loan to investors in securities comprised of these
loans fueled the rapid expansion of the subprime market.
37
Unfortunately, securitization has also likely encouraged many of
the unfair and deceptive practices.
38
The regulatory structures
erected in previous generations, including disclosure
requirements and bank supervision, do not fit well with and do
not effectively control the problems created in a world of
expansive mortgage lending, especially when that lending occurs
through securitized financing.
39
While foreclosure rates vary by region, the relationship
between subprime lending and drastically higher foreclosure
rates is well established.
40
Subprime mortgages accounted for
million settlement with state Attorneys General); Press Release, Fed. Trade Comm’n,
Subprime Loan Victims to Receive Consumer Redress (Dec. 19, 2002) (stating that $60
million or more would be distributed to homeowners as a result of settlement between
First Alliance Mortgage Company and the Federal Trade Commission, state attorneys
general, and private plaintiffs). The Author notes that he was substantially involved in
the leadership of all of these cases as an assistant attorney general in the Minnesota
Attorney General’s Office.
35. See Kurt Eggert, Limiting Abuse and Opportunism by Mortgage Servicers, 15
H
OUSING POL’Y DEBATE 753, 756–61 (2004) (describing servicing abuses in the subprime
mortgage industry); Kathleen C. Engel & Patricia A. McCoy, Turning a Blind Eye: Wall
Street Finance of Predatory Lending, 75 F
ORDHAM L. REV. 2039, 2043–45 (2007) (giving
examples of predatory lending practices).
36. Engel & McCoy, supra note 35, at 2045.
37. Id. at 2045, 2049.
38. T
HE REINVESTMENT FUND, MORTGAGE FORECLOSURE FILINGS IN PENNSYLVANIA
71–72 (2005), http://www.trfund.com/resource/downloads/policypubs/Mortgage-Forclosure-
Filings.pdf [hereinafter P
ENNSYLVANIA]; Bernanke, Subprime Market, supra note 24, at 3
(“[T]he practice of selling mortgages to investors may have contributed to the weakening
of underwriting standards.”).
39. See Engel & McCoy, supra note 35, at 2080–81 (arguing that disclosure laws do
not effectively address predatory lending problems with subprime borrowers);
Christopher L. Peterson, Predatory Structured Finance, 28 C
ARDOZO L. REV. 2185, 2255–
63 (2007) (describing the inadequacy of current consumer protection laws in providing
recourse against lending abuses with securitized financing).
40. See M
ARK DUDA & WILLIAM C. APGAR, NEIGHBORWORKS AM., MORTGAGE
FORECLOSURES IN ATLANTA: PATTERNS AND POLICY ISSUES 1, 7 (2005),
http://www.nw.org/Network/neighborworksProgs/foreclosuresolutionsOLD/documents/fore
closure1205.pdf (finding high foreclosure areas have approximately four times the level of
nonprime loans); P
ENNSYLVANIA, supra note 38, at 27–32 (“[I]t is the subprime foreclosure
rate that is driving rising foreclosure filings [in Pennsylvania].”); E
LLEN SCHLOEMER ET
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2008] AN APPROACH TO FORECLOSURE REFORM 691
more than half of all foreclosures initiated in the last quarter of
2006.
41
A study by the Center for Responsible Lending estimates
that more than 15% of all subprime, first-lien, and owner-
occupied mortgage loans made between 1998 and 2006 will end
in foreclosure.
42
Specific loan terms that are far more prevalent in the
subprime lending market are particularly correlated with higher
foreclosure rates.
43
Failure to verify a borrower’s income, loans at
very high loan-to-value ratios (i.e., little or no equity), and
interest only or negative amortizing loans all indicate a much
higher probability of foreclosure.
44
Subprime loans made recently
are significantly more likely to enter foreclosure because the risk
profile of subprime loans began to worsen as lending volume was
skyrocketing in the last few years.
45
By 2006, almost 80% of
subprime loans were adjustable rate,
46
and about half of all
subprime loans were based on no documentation or limited
documentation.
47
Federal financial regulators have recently
AL., CTR. FOR RESPONSIBLE LENDING, LOSING GROUND: FORECLOSURES IN THE SUBPRIME
MARKET AND THEIR COST TO HOMEOWNERS 5 (2006), http://www.responsiblelending.org/
pdfs/CRL-foreclosure-rprt-1-8.pdf; Engel & McCoy, supra 35, at 2042; Anne Balcer
Norton, Reaching the Glass Usury Ceiling: Why State Ceilings and Federal Preemption
Force Low-Income Borrowers into Subprime Mortgage Loans, 35
U. BALT. L. REV. 215, 221
(2005) (describing the continuing growth in foreclosures caused by the increase in
subprime lending and the consequences); Pamela Prah, Ohio Tries to Fend Off
Foreclosures on Home Loans, S
TATELINE.ORG, Apr. 23, 2007, http://www.stateline.org/
live/details/story?contentId=201186.
41. Bernanke, Subprime Market, supra note 24.
42. S
CHLOEMER ET AL., supra note 40, at 15–16 (citing two recent studies with
results reflecting the relationship between the rate of foreclosure among subprime
borrowers); see also Kristopher Gerardi, Adam Hale Shapiro & Paul S. Willen, Subprime
Outcomes: Risky Mortgages, Homeownership Experiences, and Foreclosures 1 (Fed.
Reserve Bank of Boston, Working Paper No. 07–15, 2008), available at
http://www.bos.frb.org/economic/wp/wp2007/wp0715.pdf (concluding that almost 20% of
homeowners who used a subprime mortgage to obtain a home eventually will enter
foreclosure, which is six times the rate for prime mortgages). But see M
ORTGAGE
BORROWING, supra note 26, at 9–28 (arguing that foreclosure rates are not rising as
rapidly as suggested by the CRL study, but noting that subprime loans enter foreclosure
at a rate four times or more higher than the rate for prime loans).
43. S
CHLOEMER ET AL., supra note 40, at 5.
44. Id.
45. Id. at 15–16 (estimating that over 19% of subprime loans made in 2005 or
2006 will enter foreclosure); I
VY L. ZELMAN ET AL., CREDIT SUISSE, MORTGAGE
LIQUIDITY DU JOUR: UNDERESTIMATED NO MORE 46 (2007), http://www.recharts.com/
reports/CSHB031207/CSHB031207.pdf.
46. Sandra L. Thompson, Dir., Div. of Supervision and Consumer Prot., Fed.
Deposit Ins. Corp., Mortgage Market Turmoil: Causes and Consequences,
Statement
Before Committee on Banking, Housing and Urban Affairs, U.S. Senate
(Mar. 22, 2007)
(transcript available at http://www.fdic.gov/news/news/speeches/archives/2007/
chairman/spmar22071.html) (“[N]early 80% of securitized subprime loans were ARMs by
early 2006.”).
47. Z
ELMAN ET AL., supra note 45, at 4 (“2006 subprime purchase originations
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692 HOUSTON LAW REVIEW [45:3
acknowledged the high risk factors and poor underwriting
quality of many subprime loans.
48
A report from a major
investment banking firm discussing weakening underwriting
standards in the subprime mortgage lending industry quoted a
private builder as reporting that “anybody with a pulse that was
interested in buying a home was able to get financing” during
2006.
49
The current foreclosure rise is unlikely to make a single pass
and quickly recede back to historic levels.
50
The foreclosure
problem in 2006 and 2007 does not account for a bulge of
subprime adjustable rate loans that are “re-setting” to a higher
interest rate through mid-2008.
51
Furthermore, the explosion in
subprime lending starting in 2004 was accompanied by an
equally dramatic increase in risky “nontraditional” mortgage
products in the prime or near-prime mortgage loan market.
52
This
segment of the market grew from about 2% of new mortgage
originations in 2003 to about 18% for 2006.
53
In late July 2007,
the nation’s largest mortgage lender announced a significant
increase in loan defaults in both subprime and prime loans, with
subprime default rates increasing from 13.4% to over 20% from
posted an alarming 94% combined loan to value ratio.”).
48. See Bernanke, Housing Market, supra note 24 (stating that some of the increase
in subprime delinquency is likely the result of looser underwriting standards); Bernanke,
Subprime Markets, supra note 24; John C. Dugan, Comptroller of the Currency, Remarks
Before the National Foundation for Credit Counseling Spring Meeting 1–2 (Apr. 24, 2007)
(transcript available at http://www.occ.treas.gov/ftp/release/2007-44a.pdf) (“[W]e now
know that the increase in subprime lending also reflects the fact that some lenders have
been making loans that borrowers have no realistic prospect of repaying.”).
49. Z
ELMAN ET AL., supra note 45, at 24, 50 (noting a major issue in the subprime
industry is “inflated appraisal values” resulting from “lax appraisal methods”); see also
T
HOMAS BIER & IVAN MARIC, ARGENT MORTGAGE COMPANY LENDING AND FORECLOSURE
ACTIVITY CUYAHOGA COUNTY, OHIO (2007) (linking subprime loan originations that result
in foreclosure with unrealistically high property values) (on file with the Houston Law
Review); Bernanke, Housing Market, supra note 24; Bernanke, Subprime Market, supra
note 24 (stating that some of the increase in subprime delinquency is likely the result of
looser underwriting standards).
50. See generally Karen Weaver, Katie Reeves & Art Frank, The Subprime
Mortgage Crisis and Potential Government Action, Sept. 7, 2007 (describing the long term
problems in the subprime market).
51. See Z
ELMAN ET AL., supra note 45, at 46–47; Weaver et al., supra note 50, at 3.
52. See Z
ELMAN ET AL., supra note 45, at 29–38.
53. Thompson, supra note 46, at 2–4; Vikas Bajaj, Defaults Rise in Next Level of
Mortgages, N.Y.
TIMES, Apr. 10, 2007, at C1. This part of the market is known as “Alt-A”
loans, which includes lending to borrowers with slightly impaired credit and borrowers
with prime credit but who obtain more risky forms of adjustable rate loans, such as an
“option ARM” that allows the borrower the choice of paying less than the amount needed
to amortize the loan. Together, subprime and Alt-A lending at these substantial levels
represents an unprecedented increase in the risk profile of residential mortgage lending.
See Z
ELMAN ET AL., supra note 45, at 1 (pointing out that together subprime and Alt-A
mortgage lending accounted for about 40% of all new mortgage originations in 2006).
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 693
the same period in 2006, and defaults on home equity loans to
borrowers with “good credit” more than doubling from 2.2% to
5.4% for the same period in 2006.
54
Financial markets responded
by plummeting worldwide.
55
B. Impact of Rising Foreclosures on Communities
Foreclosure affects people with no direct relation to the
mortgage transaction, including neighboring homeowners,
renters, and municipalities.
56
This Subpart examines the effect of
increased foreclosures on communities.
1. Concentrated Subprime Mortgage Foreclosures Are
Causing Blight. Subprime lending has been geographically
concentrated, and thus the current wave of foreclosures has been
geographically concentrated.
57
Studies repeatedly show that
foreclosure caused by subprime lending is clustered in poorer and
minority communities.
58
This result has been observed in
Philadelphia, Pennsylvania;
59
Atlanta, Georgia;
60
Chicago,
Illinois;
61
Baltimore, Maryland;
62
and Minneapolis–Saint Paul,
54. Vikas Bajaj, Top Lender Sees Mortgage Woes for “Good” Risks, N.Y. TIMES, July
25, 2007, at A1.
55. Floyd Norris & Vikas Rajaj, Global Stock Markets Tumble Amid Deepening
Credit Fears, N.Y.
TIMES, July 27, 2007, at A1.
56. W
ILLIAM C. APGAR & MARK DUDA, HOMEOWNERSHIP PRESERVATION
FOUNDATION, COLLATERAL DAMAGE: THE MUNICIPAL IMPACT OF TODAY’S MORTGAGE
FORECLOSURE BOOM 4–7 (2005), http://nw.org/network/neighborworksprogs/
foreclosuresolutionsOLD/documents/Apgar-DudaStudyFinal.pdf (identifying actors
outside the mortgage foreclosure and how they are impacted by the process).
57. P
ENNSYLVANIA, supra note 38, at 37. (“[T]he pattern of differences across
counties is fairly consistent—areas with more highly clustered foreclosures tend to be
areas with lower than average housing values, lower than average family incomes, higher
than average percentages Black or African American and higher than average
percentages Hispanic.” (emphasis omitted)).
58. Id.
59. Id.
60. See D
EBBIE GRUENSTEIN & CHRISTOPHER E. HERBERT, THE NEIGHBORHOOD
REINVESTMENT CORP., ANALYZING TRENDS IN SUBPRIME ORIGINATIONS AND
FORECLOSURES: A CASE STUDY OF THE ATLANTA METRO AREA, at ii, 3 (2000), available at
http://www.abtassociates.com/reports/20006470781991.pdf (analyzing HDMA data which
shows that “[i]n very low-income neighborhoods, subprime lenders accounted for 37
percent of all originations in 1997—3 times the subprime market share in the Atlanta
area overall”); Bajaj, supra note 19.
61. See D
AN IMMERGLUCK & GEOFF SMITH, WOODSTOCK INST., RISKY BUSINESS—AN
ECONOMETRIC ANALYSIS OF THE RELATIONSHIP BETWEEN SUBPRIME LENDING AND
NEIGHBORHOOD FORECLOSURES 12–23 (2004), available at http://www.woodstockinst.org/
document/riskybusiness.pdf.
62. See T
HE REINVESTMENT FUND FOR THE GOLDSEKER FOUND., MORTGAGE
FORECLOSURE FILINGS IN BALTIMORE, MARYLAND 19 (2006), available at
http://www.nw.org/Network/neighborworksProgs/foreclosuresolutionsOLD/documents/mar
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694 HOUSTON LAW REVIEW [45:3
Minnesota.
63
The concentration of subprime foreclosures in
certain neighborhoods magnifies the deleterious impact of
foreclosures on the community.
64
The value of housing decreases in direct correlation to
proximity of foreclosed properties.
65
A study in Chicago
established a decrease in home values of 1.14% for homes within
one-eighth of a mile from a foreclosure and a decrease of 0.325%
for homes within one-fourth of a mile of a foreclosure.
66
The loss
of housing value associated with foreclosures worsens when
considering only low and moderate income tracts where
foreclosures are concentrated.
67
Foreclosure leads to a higher number of vacant and
abandoned properties.
68
Vacant properties degrade the quality of
life for neighbors; they are a “curse” on the livability of a
ylandForeclosuresIn2006.pdf [hereinafter BALTIMORE].
63. See I
NST. ON RACE & POVERTY, COMMUNITIES IN CRISIS: RACE AND MORTGAGE
LENDING IN THE TWIN CITIES 2–3 (Aug. 6, 2008) (draft report on file with the Houston
Law Review); M
ICHAEL GROVER ET AL., TARGETING FORECLOSURE INTERVENTIONS: AN
ANALYSIS OF NEIGHBORHOOD CHARACTERISTICS ASSOCIATED WITH HIGH FORECLOSURE
RATES IN TWO MINNESOTA COUNTIES 3, 4 (2007), available at http://www.chicagofed.org/
cedric/2007_res_con_papers/car_55_grover_targeting_foreclosure_interventions_revised_f
or_the_conf_1_12_2007.pdf; Jeff Crump, Subprime Lending in Hennepin and Ramsey
Counties: An Empirical Analysis, 35 C
URA REP., Spring 2005, at 18, available at
http://www.cura.umn.edu/reporter/05-Spr/Crump.pdf.
64. Kathleen C. Engel, Do Cities Have Standing? Redressing the Externalities of
Predatory Lending, 38 C
ONN. L. REV. 355, 357–60 (2006).
65. See C
TR. FOR RESPONSIBLE LENDING, SUBPRIME SPILLOVER 1 (2007), available at
http://www.responsiblelending.org/pdfs/subprime-spillover.pdf (estimating that 40.6
million homeowners not in foreclosure will lose property value as a result of foreclosures
of subprime mortgages); D
AN IMMERGLUCK & GEOFF SMITH, WOODSTOCK INST., THERE
GOES THE NEIGHBORHOOD: THE EFFECT OF SINGLE-FAMILY MORTGAGE FORECLOSURES ON
PROPERTY VALUES 8–9 (2005), available at http://www.woodstockinst.org/publications/
download/there-goes-the-neighborhood%3a-the-effect-of-single%11family-mortgage-
foreclosures-on-property-values/.
66. See I
MMERGLUCK & SMITH, supra note 65, at 8–9 (estimating that the average
Chicago home would lose $1,870 when the foreclosure was within one-eighth of a mile);
see also Robert A. Simons, Roberto G. Quercia & Ivan Maric, The Value Impact of New
Residential Construction and Neighborhood Disinvestment on Residential Sales Price, 15
J.
REAL EST. RES. 147, 158 (1998) (stating that the value of a home falls $788 within two
blocks of tax delinquent homes).
67. See, e.g., I
MMERGLUCK & SMITH, supra note 65, at 9 (noting that homes within
one-eighth of a mile of foreclosure lose 1.8% of their value for lower-income census tracts).
68. See Ronald H. Silverman, Toward Curing Predatory Lending, 122 B
ANKING L.J.
483, 530 (2005) (“A relatively large number of foreclosures in a low-income neighborhood
may lead to abandonments.”); Edward M. Gramlich, Governor, Fed. Reserve Bd.,
Remarks at the Financial Services Roundtable Annual Housing Policy Meeting (May 21,
2004) (transcript available at http://www.federalreserve.gov/boarddocs/speeches/
2004/20040521/default.htm) (discussing the link between subprime lending and
foreclosure rates and stating that “[t]here is . . . evidence of serious neighborhood blight if
foreclosure rates, and abandoned properties, proliferate in a given city area”).
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2008] AN APPROACH TO FORECLOSURE REFORM 695
community.
69
A study of vacancies in Austin, Texas, found that
crime rates on blocks with vacant properties were about twice as
high as blocks with similar demographics and no vacant
buildings.
70
Vacant properties result in arson and health
problems resulting from “trash, illegal dumping, and rodent
infestations.”
71
Home values also sink substantially in direct
proportion to the distance from a vacant home.
72
Vacant
properties can increase the cost of home insurance.
73
Foreclosures also have substantial negative consequences for
municipal governments.
74
Foreclosures and vacant properties simultaneously increase
city costs while decreasing revenue.
75
Municipal costs may
include increased policing and fire response, demolition,
inspection, and administrative burdens.
76
A study of municipal
expense in dealing with foreclosed vacant properties in Chicago
estimated that the net municipal cost of dealing with each
property range from $430 to $34,199 based on five typical
scenarios.
77
At the same time that municipalities confront these
costs, declining home values as a result of vacant properties
erode the tax base.
78
The concentration of subprime lending in
certain neighborhoods has led to a concentration of vacant
properties that is causing neighborhood deterioration and
overwhelming the ability of municipal governments to manage
the problem.
79
69. See NAT’L VACANT PROPS. CAMPAIGN, VACANT PROPERTIES: THE TRUE COSTS TO
COMMUNITIES 1 (2005), available at http://www.vacantproperties.org/latestreports/
True%20Costs_Aug05.pdf [hereinafter V
ACANT PROPERTY].
70. See William Spelman, Abandoned Buildings: Magnets for Crime?, 21 J.
CRIM.
JUST. 481, 484–85, 489–90 (1993); cf. VACANT PROPERTY, supra note 69, at 3 (citing a
study of Richmond, Virginia, in which vacant buildings were the highest correlated to
crime of all factors studied).
71. V
ACANT PROPERTY, supra note 69, at 4–5 (citing a report from the U.S. Fire
Administration reporting over 12,000 fires in vacant properties each year).
72. Id. at 9.
73. Id. at 11.
74. See generally Engel, supra note 64, at 357–60 (describing the negative impacts
of foreclosure on providers of municipal services).
75. Id. at 358–59.
76. A
PGAR & DUDA, supra note 56, at 6 (“For municipalities, foreclosures trigger
significant direct expenditures for increased policing and fire suppression, demolition
contracts, building inspections, legal fees, and expenses associated with managing the
foreclosure process (e.g., recordkeeping/updating).”).
77. W
ILLIAM C. APGAR, MARK DUDA & ROCHELLE NAWROCKI GOREY, HOMEOWNERSHIP
PRESERVATION FOUND., THE MUNICIPAL COST OF FORECLOSURES: A CHICAGO CASE STUDY
23 (2005), available at http://www.nw.org/network/neighborworksProgs/
foreclosuresolutions/documents/2005Apgar-DudaStudy-FullVersion.pdf.
78. See A
PGAR & DUDA, supra note 56, at 6; VACANT PROPERTY, supra note 69, at 9.
79. See, e.g., Municipalities Struggle with Foreclosed Houses, C
ASCADE, Fall 2007,
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696 HOUSTON LAW REVIEW [45:3
2. Metropolitan Example: Minneapolis, Minnesota.
Hennepin County, Minnesota, which includes Minneapolis, is a
relatively prosperous and stable urban area. It also has
neighborhoods that are being devastated by foreclosures. The
following chart shows foreclosure sales
80
and related economic
data
81
from 1988 through 2007:
Hennepin County Foreclosures and Economic Data, 1988-2007
0
1000
2000
3000
4000
5000
6000
1
98
8
198
9
1
99
0
1991
1992
199
3
1994
199
5
1
99
6
1
99
7
1998
1
99
9
2000
200
1
200
2
200
3
200
4
2
00
5
2006
2
00
7
# of Foreclosure Sales
2
3
4
5
6
7
8
9
10
11
Interest / Unemployment Rates
Hennepin County Foreclosure Sales
Long Term Rates (Conventional Mortgages)
Hennepin County Unemployment Rate
at 15, available at http://www.philadelphiafed.org/cca/capubs/cascade/66/cascade_no-
66.pdf (describing the problem of concentrated foreclosures in Cleveland and its inner-
ring suburbs).
80. Foreclosure Sale Data is from the records of the Hennepin County Sheriff’s
Office (on file with the Houston Law Review). Foreclosure sales are for year-end 2007. In
Minnesota, the foreclosure sale typically is near the middle of the foreclosure process
because the borrower usually has a six month redemption period during which the
borrower can possess the property. See M
ORTGAGE DIRECTORY, supra note 19, at 1-159–66
(describing Minnesota foreclosure procedures).
81. Unemployment data is from the Minnesota Department of Employment and
Economic Development, http://www.deed.state.mn.us/lmi/tools/laus/detail.asp?geog=
2704000053&adjust=0 (last visited Sept. 5, 2008). Unemployment rate is current as of
May 2007. Conventional mortgage interest rates data is from the Federal Reserve Board,
http://www.federalreserve.gov/releases/h15/data.htm (last visited Sept. 5, 2008). The
interest rate data is based on June 2007 monthly rates. Similar increases in foreclosure
rates occurred throughout Minnesota starting in 2005. G
REATER MINN. HOUS. FUND &
HOUSINGLINK, FORECLOSURES IN GREATER MINNESOTA: A REPORT BASED ON COUNTY
SHERIFF’S SALES DATA 6–7 (2007), http://www.housinglink.org/adobe/reports/
GreaterMN_Foreclosure_Oct2007_Supplement.pdf (finding a foreclosure sales increase of
48% from 2005 to 2006 in Minnesota outside of the Twin Cities metropolitan area and
projecting a 84% increase from 2006 to 2007).
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2008] AN APPROACH TO FORECLOSURE REFORM 697
Hennepin County had a steady number of mortgage
foreclosure sales per year from 1988 through 2004, followed by an
extraordinary, more than five-fold increase in foreclosure sales
from 2005 through 2007.
82
Hennepin County provides a good example of the degree of
racial and low income concentration in foreclosures. The
foreclosure rate was 2 per 1,000 loans in census tracks that were
80% or more white, but 26 per 1,000 loans in census tracks 80%
or more non-white, with a straight line increase in foreclosures
as non-white concentration increases in the census track.
83
A
similar strong correlation exists between low income census
tracks and foreclosure rates.
84
III. B
ORROWERS, LENDERS, AND
M
ORTGAGE FORECLOSURE LAW
The rights of parties to a mortgage developed over centuries
of English law as a means to fairly balance the interest of
borrowers and lenders when land ownership is used as security
for a loan.
85
English courts of equity developed the still extant
concept of the equitable right of redemption, which provides that
when a borrower who gave a mortgage defaults on the payment,
he retains the right to pay off the debt for a fixed period after the
default.
86
English courts then created the right of the mortgage
lender to “foreclose” this equitable right to redeem.
87
Ultimately,
lenders and the courts evolved the generally accepted mortgage
foreclosure procedure that has been mostly codified today, which
provides for sale of a property by the lender after compliance
82. Analysis was based on data retrieved from Hennepin County Sheriff’s Office
website, http://www4.co.hennepin.mn.us/webforeclosure/ (last visited Sept. 5, 2008). In
the period from 1988 through 2004, the number of foreclosure sales in Hennepin County
was never more than 32% higher or 24% lower than the average of 1,066 foreclosure sales
per year. Id.
83. Id.; G
ROVER ET AL., supra note 63, at 15, 35; see also INST. ON RACE & POVERTY,
supra note 63, at 2–3; Crump, supra note 63, at 17–18 (demonstrating a statistical link
between race and foreclosure rates).
84. G
ROVER ET AL., supra note 63, at 35.
85. Ann M. Burkhart, Lenders and Land, 64 M
O. L. REV. 249 passim (1999)
(providing a detailed history of the relationship between a borrower and lender in a land
purchase). This Article uses the more easily distinguishable and simple terms “borrower”
and “lender,” rather than “mortgagor” and “mortgagee.” In most cases, the lender is a
mortgagee who has been assigned ownership of the mortgage loan from the originating
lender or another assignee.
86. Id. at 264.
87. Id. at 265–66.
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698 HOUSTON LAW REVIEW [45:3
with procedural requirements for terminating the borrower’s
interests.
88
Foreclosure occurs under federal law only for certain
mortgages held by the United States Department of Housing and
Urban Development.
89
Bankruptcy also provides controlling
federal law for those who seek bankruptcy protection during the
proceeding, especially with a Chapter 13 filing.
90
State law
nonetheless controls the overwhelming majority of foreclosures.
91
Many transactions governed primarily by state law either
strive for uniformity or are generally recognizable from state to
state.
92
Contract disputes, for example, are settled under widely-
held common law tenets or the Uniform Commercial Code.
93
State
foreclosure laws do not adhere to this pattern.
94
Foreclosure laws
vary dramatically in both substantive rights of the parties and in
the procedures used to complete the process.
95
Attempts to enact uniform state foreclosure laws have been
an abysmal failure.
96
88. Id. at 265–67.
89. Multifamily Mortgage Foreclosure Act, 12 U.S.C. § 3701 (2006); Single Family
Mortgage Foreclosure Act, 12 U.S.C. § 3751 (2006).
90. See Melissa B. Jacoby, Bankruptcy Reform and Homeownership Risk, 2007 U.
ILL. L. REV. 323, 327–28 (2007). Legislation currently pending in the United States
Congress would make it easier for homeowners to file for Chapter 13 bankruptcy
protection by deleting the current prohibition on loan modifications for residential
mortgage loans. See H.R. Res. 3609, 110th Cong. (2007).
91. See Grant S. Nelson & Dale A. Whitman, Reforming Foreclosure: The Uniform
Nonjudicial Foreclosure Act, 53 D
UKE L.J. 1399, 1415 (2004) (describing federal
foreclosure laws, but noting that mortgage law remains largely the province of the states);
Debra Pogrund Stark, Foreclosing on the American Dream: An Evaluation of State and
Federal Foreclosure Laws, 51 O
KLA. L. REV. 229, 238–42 (1998) (describing various federal
laws governing foreclosure).
92. See generally Fred H. Miller & Albert J. Rosenthal, Uniform State Laws: A
Discussion Focused on Revision of the Uniform Commercial Code, 22 O
KLA. CITY U. L.
REV. 257, 262–64 (discussing the process of creating uniformity in state law).
93. Id. at 320; see also Robert F. Blomquist, Ten Vital Virtues for American Public
Lawyers, 39 I
ND. L. REV. 493, 498 (2006) (indicating the interaction of the common law
and Uniform Commercial Code in contract law).
94. See, e.g., Grant S. Nelson, A Commerce Clause Standard for the New
Millennium: “Yes” to Broad Congressional Control over Commercial Transactions; “No” to
Federal Legislation on Social and Cultural Issues, 55 A
RK. L. REV. 1213, 1244–45 (2003)
(detailing the diverse and nonuniform state approaches to foreclosure law).
95. See Nelson & Whitman, supra note 91, at 1401 (“Mortgage law varies
enormously from state to state and represents an often perplexing amalgam of English
legal history, common law, and legislation.”). See generally M
ORTGAGE DIRECTORY, supra
note 19 (cataloging the varying requirements of each state foreclosure law); R
AO ET AL.,
supra note 21, at § 1.3.1.2, app. C (noting the variability of state foreclosure laws and
cataloging the varying requirements of each state law).
96. Nelson & Whitman, supra note 91, at 1408–09. There have been numerous attempts
at uniform state law promulgation through the National Conference of Commissioners on
Uniform State Laws, including the Uniform Real Estate Mortgage Act (1927); the Model Power
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2008] AN APPROACH TO FORECLOSURE REFORM 699
Subpart A of this section describes the basic elements that
can be found in various state foreclosure laws. Subpart B looks at
how the existence and arrangement of different elements in
various state foreclosure laws creates vastly different incentives
for the parties in a foreclosure proceeding. Subpart C examines
the incentives and options for borrowers and for lenders in
dealing with mortgage default and foreclosure.
A. Elements of State Foreclosure Laws
The common denominator in state foreclosure laws is some
form of notice to some interested party or parties.
97
Not much else
can be said to unite the bewildering diversity in both substantive
rights of the parties and the procedures required to complete the
foreclosure.
98
1. Judicial Versus Nonjudicial Procedures. The primary
procedural difference between state foreclosure laws is whether
the jurisdiction requires judicial action.
99
In states with “judicial
foreclosure,” the process usually starts with a summons and
complaint and requires a court order prior to the sale of the
mortgaged property.
100
Judicial foreclosure procedures generally
are more costly for the lender and take much longer to
complete.
101
While nominally a court-supervised process,
borrowers routinely fail to appear and the proceedings typically
are resolved by default.
102
of Sale Foreclosure Act (1940); the Uniform Land Transactions Act (1975); and the Uniform
Land Security Interest Act (1985). No state adopted any of these proposed uniform laws. Id. at
1407–09, 1408 n.49. In 2002, the Conference of Commissioners on Uniform State Laws tried
with the Uniform Nonjudicial Foreclosure Act. See U
NIF. NONJUDICIAL FORECLOSURE ACT
(2002) [hereinafter UNFA] (The act was printed in the Uniform Laws Annotated at 14 U.L.A.
131 (2005)). Efforts to enact federal foreclosure laws also have been unsuccessful. Janet A.
Flaccus, Pre-Petition and Post-Petition Mortgage Foreclosures and Tax Sales and the Faulty
Reasoning of the Supreme Court, 51 A
RK. L. REV. 25, 46 (1998) (noting two failed attempts by
the Senate to add protections for mortgage foreclosure buyers).
97. Basil H. Mattingly, The Shift from Power to Process: A Functional Approach to
Foreclosure Law, 80 M
ARQ. L. REV. 77, 93–94 (1996) (describing the foreclosure process
and how it may vary from state to state).
98. Id.; see also Nelson, supra note 94, at 1243–45.
99. Mattingly, supra note 97, at 92. (“[F]oreclosure models may be divided into two
broad categories: judicial foreclosures and nonjudicial foreclosures.”).
100. See G
RANT S. NELSON & DALE A. WHITMAN, REAL ESTATE FINANCE LAW § 7.11
(4th ed. 2001); see, e.g., M
ORTGAGE DIRECTORY, supra note 19, at 208–10 (describing
initiation of a judicial foreclosure action in New York).
101. See Nelson & Whitman, supra note 91, at 1403 (reviewing the basic judicial
foreclosure process and highlighting the inherent delays and costs); see also Stark, supra
note 91, at 232 (contrasting judicial and nonjudicial foreclosures and emphasizing the
time and cost advantages in nonjudicial foreclosures).
102. See Stark, supra note 91, at 244 (finding that in only 1% of the 1993 cases and in
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700 HOUSTON LAW REVIEW [45:3
States permitting nonjudicial foreclosure are said to use a
“power of sale” process whereby the lender, or a trustee, is
allowed to conduct a foreclosure sale without court involvement
after sending the required notices.
103
About thirty states permit
power of sale foreclosure.
104
States allowing power of sale
foreclosure also have judicial procedures available to the lender,
although they are rarely used in most states.
105
Two New
England states primarily employ different forms of “strict
foreclosure” that can allow the foreclosing lender to avoid the sale
procedure and just take title to the property.
106
2. Notice Requirements. Notice in states with judicial
foreclosure follows the form of notice in a civil action.
107
States
with power of sale foreclosure generally use either a one-notice
system or a two-notice system.
108
Both systems require a notice of
foreclosure, but the two-notice system requires a prior notice of
default, typically accompanied by a right to reinstate the loan by
paying the arrearage.
109
The name and contents of the notices,
the timing requirements, the methods of service, and the people
who must be served vary widely among the states.
110
Alabama, for
example, requires only one “Notice of Sale” that must be
published once a week for three consecutive weeks.
111
California
none of the 1994 cases in the Empirical Study did the borrower raise a defense to the
foreclosure action in the judicial proceeding); see also Julia Patterson Forrester, Constructing a
New Theoretical Framework for Home Improvement Financing, 75 O
R. L. REV. 1095, 1131–32
(1996) (detailing propensity of consumers sued by their creditors to default, although
homeowners would be more likely to appear at a hearing than sue for an injunction).
103. N
ELSON & WHITMAN, supra note 100, at § 7.19. A prerequisite to nonjudicial
foreclosure is that the mortgage note allows for the lender to liquidate the real property
through a sale process. Brandon Bennet, Secured Financing in Russia: Risks, Legal
Incentives, and Policy Concerns, 77 T
EX. L. REV. 1443, 1466 (1999) (asserting that power
of sale provisions are required for nonjudicial foreclosures). Standard loan documents in
states permitting a power of sale all contain this type of authority. See, e.g., M
ORTGAGE
DIRECTORY, supra note 19, passim (describing the prevalence of nonjudicial foreclosure in
certain states and the power of sale clauses regularly used in financing documents); R
AO
ET AL
., supra note 21, at § 4.2.3 (explaining that twenty-six states use nonjudicial
foreclosure based on power of sale clauses in mortgages and deeds of trust).
104. N
ELSON & WHITMAN, supra note 100, at § 7.19.
105. See M
ORTGAGE DIRECTORY, supra note 19, passim (describing nonjudicial foreclosure
processes in certain states and noting that judicial proceedings are only used if there is a defect
in the financing documents or if there is some other unusual circumstance).
106. Id. at § 7.9.
107. Nelson & Whitman, supra note 91, at 1403.
108. UNFA, supra note 96, at 4.
109. Id.
110. R
AO ET AL., supra note 21, at app. C (describing the notice requirements in each
state foreclosure law).
111. A
LA. CODE § 35-10-13 (LexisNexis 1996); MORTGAGE DIRECTORY, supra note 19,
at 2.
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law provides for a two-notice system.
112
The Notice of Default
must contain specified information, including the amount
necessary to cure the default, must be recorded, and must be
served by first class and certified mail.
113
The Notice of Sale must
be publicly posted, published, and served at least twenty days
before the foreclosure sale.
114
3. Foreclosure Sale Procedures. The typical foreclosure sale
is not a scene from movie lore with an excited mob on the
courthouse steps or at the foreclosed property. Some foreclosure
sales have multiple potential bidders.
115
In other situations, the
sale of the property occurs at the local sheriff’s office with only
the lender, perhaps the borrower, and the selling official
present.
116
While the lender can make a credit bid, offering up to
the amount it is owed, other purchasers typically are required to
provide cash.
117
The highest “bidder” at a foreclosure sale often is
the lender.
118
For a variety of reasons, the foreclosure sale rarely
brings a market price.
119
The foreclosure sale itself does not differ
simply because the state uses judicial foreclosure as opposed to
power of sale procedures, although the validity of the sale may be
more questionable in a power of sale process.
120
4. Borrower Redemption and Reinstatement Rights.
Borrowers also have important substantive rights provided by
112. CAL. CIV. CODE § 2924(a) (West 1993 & Supp. 2008).
113. C
AL. CIV. CODE § 2924(a)(1) (West 1993 & Supp. 2008); MORTGAGE DIRECTORY,
supra note 19, at 34.
114. C
AL. CIV. CODE §§ 2924(a)(3), 2924(f) (West 1993 & Supp. 2008); MORTGAGE
DIRECTORY, supra note 19, at 34.
115. See, e.g., Bajaj, supra note 19 (describing the strong interest at one foreclosure
sale in Atlanta, where more than 200 people came out to the auction).
116. Evan H. Krinick, Deposits by Bidders at a Sheriff’s Sale, 117 B
ANKING L.J. 446,
446–50 (2000) (detailing the process of the sheriff’s sale).
117. Id. at 446–47.
118. Stark, supra note 18, at 663 (“In most cases, the only people present at the
foreclosure sale are the lender, the borrower, and the party conducting the foreclosure
sale. Third parties successfully bid in only 11.2% of the 1993 judicial sales cases and only
9.6% of the 1994 judicial sales cases.”); Steven Wechsler, Through the Looking Glass:
Foreclosure by Sale as De Facto Strict Foreclosure: An Empirical Study of Mortgage
Foreclosure and Subsequent Resale, 70 C
ORNELL L. REV. 850, 865, 875 (1985) (finding that
in Onondaga County, New York, “[i]n the sample of 118 foreclosure sales, the mortgagee
bid successfully in 91 cases, or seventy-seven percent of the total, and third parties bought
in 27 cases, or twenty-three percent of the total”).
119. Nelson & Whitman, supra note 91, at 1420–23 (describing barriers to obtaining
market price at foreclosure auction and concluding that, “In sum, it would be difficult to
design a sale procedure less apt to result in market prices than the usual foreclosure
auction.”).
120. Mattingly, supra note 97, at 95 (inferring that borrowers more readily question
nonjudicial sales).
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702 HOUSTON LAW REVIEW [45:3
foreclosure statutes in many states.
121
Under common law,
foreclosure extinguishes the borrower’s right of redemption in
equity.
122
Statutory redemption rights extend the borrower’s right
to recover the property by paying off the full amount bid at the
foreclosure sale plus additional costs.
123
In most states with a
redemption period, the borrower can maintain possession of the
property during the redemption period.
124
Redemption periods
vary from ten days to two years.
125
Mortgage notes typically provide for acceleration of the full
amount of the loan and unpaid interest within thirty days
following the lender’s notice to the borrower of default.
126
Standard loan documents include a reinstatement right up to a
fixed number of days before the foreclosure sale or until entry of
judgment.
127
Some state foreclosure laws also expressly provide
the right to reinstate the loan by paying the arrearage on the
loan plus some costs.
128
This statutory right of reinstatement
extends up to the date of the foreclosure sale in some states, is
extinguished a number of days prior to the foreclosure sale in
other states, and runs from the notice of default or service of the
complaint in yet other states.
129
Even in the absence of statutory
or contractual rights, many lenders will voluntarily accept
reinstatement prior to the foreclosure sale.
130
5. Antideficiency Protections. As with any other loan, if the
foreclosure sale price is less than the amount the borrower owes,
the borrower can be liable for a deficiency judgment.
131
As with
much of state foreclosure law, the scope and protection against a
121. See generally Mattingly, supra note 97 passim (discussing the rights of the
borrower and the power struggle between borrower and lender).
122. George M. Platt, The Dracula Mortgage: Creature of the Omitted Junior
Lienholder, 67 O
R. L. REV. 287, 293–95 (1988).
123. Id. at 294–96; Nelson & Whitman, supra note 91, at 1404.
124. N
ELSON & WHITMAN, supra note 100, at § 8.4.
125. M
ORTGAGE DIRECTORY, supra note 19, at 1-221, 1-272.
126. Nelson & Whitman,
supra note 91, at 1464.
127. Mattingly, supra note 97, at 86 n.38.
128. Nelson & Whitman, supra note 91, at 1465.
129. See, e.g., M
INN. STAT. ANN. § 580.30 (West 2000) (permitting right to reinstate
up to date of sale); N
EV. REV. STAT. ANN. § 107.080(2)(a) (LexisNexis 2007 & Supp. 2008)
(granting right to reinstate for thirty-five days after notice of default recorded and
served); W
ASH. REV. CODE ANN. § 61.24.090 (West 2004) (allowing borrower to reinstate
until eleven days before foreclosure sale).
130. See S
TATE FORECLOSURE PREVENTION WORKING GROUP, ANALYSIS OF SUBPRIME
MORTGAGE SERVICING PERFORMANCE: DATA REPORT NO. 1 12–13 (2008), available at
http://www.state.ia.us/government/ag/latest_news/releases/feb_2008/Foreclosure_Preventi
on.pdf [hereinafter S
TATE FORECLOSURE GROUP].
131. N
ELSON & WHITMAN, supra note 100, at § 8.
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deficiency judgment varies widely.
132
Some antideficiency statutes
protect borrowers against any deficiency judgments, while other
states limit the amount of any potential deficiency judgment to
the fair market value of the property.
133
Several states prohibit
deficiency judgments with a power of sale procedure but allow
such an action in a judicial proceeding.
134
As a practical matter,
lenders do not routinely seek or collect on deficiency judgments
against foreclosed borrowers.
135
B. Effect of Varying Foreclosure Laws
The presence, sequencing, and specific terms of these
elements in a state foreclosure law make for drastically different
incentives for the parties to the process.
136
The varying financial
and personal circumstance of borrowers adds another layer of
complexity to the effect of a state law on how borrowers and
lenders will act during foreclosure.
137
Consider an example of two
different borrowers under two different foreclosure laws.
1. Hypothetical Foreclosure Laws in States A and B. State
A has a foreclosure law with the following characteristics:
• Power of sale procedures are allowed with a three
month notice period culminating in a sheriff’s sale;
• A six month statutory redemption period for the
borrower with the right of possession by the
borrower, and then a one week period for each junior
lien holder to exercise redemption rights and pay off
all senior lien holders; and
• An antideficiency provision applicable to all
borrowers if the power of sale process is used, but
deficiency judgments are permitted if a judicial
foreclosure process is selected by the foreclosing
lender.
132. Id. at § 8.3.
133. Id.; James B. Hughes, Jr., Taking Personal Responsibility: A Different View of
Mortgage Anti-Deficiency and Redemption Statutes, 39 A
RIZ. L. REV. 117, 124 (1997).
134. See N
ELSON & WHITMAN, supra note 100, at § 8.3.
135. See Wechsler, supra note 118, at 878 (noting only one deficiency judgment
obtained among “the ninety-four studied cases in which the foreclosure sale left a
deficiency amount . . . and in that case the judgment was not satisfied”); see also Stark,
supra note 91, at 244 (“Lenders brought a deficiency action within one year after the
foreclosure sale in approximately six to seven percent of the foreclosure sale cases.”).
136. See generally Mattingly, supra note 97, at 101–03 (detailing various incentives
and obstacles with respect to foreclosure laws).
137. Id. at 84–89 (hypothesizing about potential complications and frustrations
based on the borrowers’ situations).
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704 HOUSTON LAW REVIEW [45:3
The power of sale process in State A typically takes a
minimum of nine months from default, including the six month
redemption period. Although rarely used because of the expense,
State A has an alternative judicial procedure that takes a
minimum of fourteen months from default, including the six
month redemption period after the foreclosure sale.
State B has a foreclosure law with the following
characteristics:
• Power of sale procedures are allowed with a two
month notice period culminating in a sheriff’s sale;
• No statutory redemption period; and
• No antideficiency provision. The amount of the
deficiency (if any) is equal to the amount owed on the
debt minus the foreclosure sale price. Any surplus
from the foreclosure sale is distributed to all the lien
holders in priority order, with any remainder to the
homeowner.
The power of sale process takes a minimum of three months
from default in State B. The alternative judicial foreclosure
procedure in State B typically takes a minimum of nine months
from default, but otherwise the same lack of borrower protections
apply.
2. The Smiths. The Smith family has owned a single family
residence for nine years. The home is worth $235,000, with
selling expenses of about $15,000. The Smiths’ home is
encumbered by a first lien mortgage loan of $175,000. The
Smiths also have a $5,000 judgment against them from a prior
credit card debt. The Smiths, therefore, have about $40,000 in
realizable equity in the property, with $180,000 of encumbrances
on a home worth a net of $220,000 after selling costs.
The Smiths have three children and desperately want to
stay in their current home. Based on their current credit score,
income, and debts, the Smiths qualify for a refinancing loan of
only $125,000 at a high interest rate. Mr. Smith is recovering
from an illness and unemployed. If he can find work in his field,
it is much more likely the Smiths will be able to obtain a loan,
either a refinancing loan or a home equity loan, sufficient to
either reinstate their mortgage in foreclosure or redeem the
property.
The lender foreclosing on the Smiths in State A very likely
will use the quicker, less expensive power of sale procedure. The
foreclosure sale, however, will almost surely consist of only the
bid by the lender for the amount owed, $175,000, because in a
state with a six month redemption period, a party other than the
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2008] AN APPROACH TO FORECLOSURE REFORM 705
lender would have to make a cash bid at the sale knowing that
the home has a substantial chance of being redeemed because the
borrower has equity in the property. There is little chance for a
third party to make money when he or she has to pay cash for the
home; wait six months and hope that the Smiths do not redeem
or sell the home; that the Smiths’ judgment creditor doesn’t
redeem or sell the judgment to a specialist in foreclosure
purchases who would redeem the property; that the property is
not substantially damaged; and that no other judgment creditors
or lien holders with the intent to redeem appear during the
redemption period. Nor does the lender have an incentive to bid
less than the amount owed to it because there is no prospect of a
deficiency judgment due to antideficiency legislation.
Because their top priority is to stay in the home, the Smiths
likely will pursue reinstatement or refinancing of the loan. After
the foreclosure sale, the Smiths will face difficult decisions
during the six month redemption period. The foreclosure sale will
have resulted in no surplus because the lender will have bid the
amount it was owed, so the end of the redemption period will
mean the Smiths not only lose possession of the home, but also
lose their equity in the property. The longer they wait to sell
their home, the less time they will have to obtain the best price
and liquidate the equity in their home. The Smiths will be
making these pressing choices at a time of extraordinary stress
from lack of employment and income, and very likely managing
debt and debt collectors.
The actions of the lender probably will be no different in
State B. The lender again will use the power of sale procedure. If
the property goes to a foreclosure sale, the lender likely will bid
the amount owed plus costs, as in State A. A higher bid could
result in a surplus due to the Smiths; a lower bid will result in no
gain because any deficiency judgment against the Smiths
probably will be uncollectible and be dischargeable in
bankruptcy.
State B has fewer protections for borrowers, leaving the
Smiths with limited options. The likelihood of the Smiths
retaining their home, their top priority, is substantially less in
State B. Given the much shorter period between default and
dispossession, the Smiths probably will need to immediately put
the house on the market to have a chance of controlling the sale
price and the amount of equity they will receive. If the Smiths
are unable to sell their home before the date of the foreclosure
sale, they will receive a portion of their equity only in the
unlikely event that the foreclosure sale exceeds about 80% of the
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706 HOUSTON LAW REVIEW [45:3
fair market value, which is the amount they owe to the
foreclosing lender and judgment credit.
3. Investor Jones. Investor Jones owns ten single family
residential properties in an area that has suffered from declining
property values. One of her properties is located at 100 Main
Street and is in deteriorating condition.
The house at 100 Main is worth about $175,000 and is
encumbered by a mortgage loan of $200,000. The unit currently
provides Jones with $1,500 per month in rental income. 100 Main
recently became a cash drain when the adjustable rate mortgage
rose by 1%. Jones stopped paying on the loan and let it go into
foreclosure. Seven of her other properties also are unprofitable.
Jones has little net worth and few assets other than the ten
rental buildings, and seven of the ten properties are mortgaged
to at least the full amount of their fair market value.
The lender faces a choice of which procedure to use in state
A. The power of sale procedure is quicker by five months and less
costly, but the judicial foreclosure process offers the possibility of
a deficiency judgment. The lender will have to weigh the value of
a relatively small deficiency judgment against a perhaps
insolvent Jones against a more rapid acquisition of the property.
Jones will attempt to collect rent from the tenants in 100
Main while she is in possession of the property.
138
She will also
make the least possible investment in the maintenance of the
property while it is in foreclosure. In State A, Jones could be able
to obtain $21,000 or more in rental income (14 months @ $1,500
per month) if the lender selects the judicial foreclosure
procedure. Even with the power of sale process in State A, Jones
can collect over $13,500 (9 months @ $1,500 per month) in rental
income. Jones would have no mortgage loan payment and little
expense from a property in which she is disinvesting. Jones could
also consider selling the building if the lender chooses a judicial
proceeding and Jones is concerned with minimizing a deficiency
judgment.
In State B, the power of sale procedure, which includes the
possibility of a deficiency judgment, is the preferred alternative
for the lender. The foreclosure process will move much more
rapidly toward a transfer of title and possession to the foreclosing
138. While a foreclosing lender may have a legal right to rent proceeds during
foreclosure, as a practical matter this income typically is realized by the borrower in
default. See Julia Patterson Forrester, Still Crazy After All These Years: The Absolute
Assignment of Rents in Mortgage Loan Transactions, 59 F
LA. L. REV. 487, 492–93 (2007);
R. Wilson Freyermuth, Modernizing Security in Rents: The New Uniform Assignment of
Rents Act, 71 M
O. L. REV. 1, 5 (2006).
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2008] AN APPROACH TO FORECLOSURE REFORM 707
lender. Jones in State B will have to make a quick decision on
whether to sell the house in an attempt to minimize a deficiency
judgment.
The above scenarios are just examples of the limitless
possibilities for different incentives and outcomes depending on
the foreclosure law in the state and the circumstances facing the
borrower and lender.
C. Conduct of Lenders and Borrowers in Foreclosure
Foreclosure is the end-game of mortgage default.
139
Different
types of borrowers and the foreclosing lender approach mortgage
default and foreclosure from a variety of perspectives.
140
1. Lender Response to Mortgage Default. Lenders typically
lose substantial amounts of money on a foreclosure.
141
The
amount of the loss per foreclosure can be $50,000 or more.
142
Beginning in the 1990s, many lenders began to avoid the high
cost of foreclosure by engaging in a “workout” whenever
possible.
143
The options in a workout that preserve ownership for
139. See generally Mattingly, supra note 97, at 93–94 (detailing the basic timeline of
mortgage foreclosures).
140. See Nelson & Whitman,
supra note 91, at 1467–68 (describing the competing
interests of the foreclosing creditor, the borrowers, and junior lienors). Borrowers and
foreclosing lenders are not the only interested parties to a foreclosure. Id. Other lien
holders and judgment creditors also have an interest in the process. Id. The proposals
made in this Article do not explicitly account for these parties, but nothing proposed here
should impact existing law as to other lien holders so as to further disadvantage these
parties relative to the other people with an interest in the property.
141. Richard M. Todd & Michael Grover, Post-Purchase Counseling: An EMHI
Strategy to Close Homeownership Gaps, 4 C
OMMUNITY DIVIDEND (2005), available at
http://www.minneapolisfed.org/pubs/cd/05-4/counseling.cfm.
142. Id.; Terrence M. Clauretie, Mortgage Lending: The Risks of Foreclosure Laws,
ORER
LETTER (Spring 1990), available at http://www.business.uiuc.edu/orer/V4-2-2.pdf
(observing that foreclosure laws providing excessive protection to borrowers can cause
lenders losses of up to 60–70% and that the average loss nationwide is 40%).
143. C
HARLES A. CAPONE, JR., RESEARCH INTO MORTGAGE DEFAULT AND
AFFORDABLE HOUSING: A PRIMER 14 (2002), available at http://www.lisc.org/
files/906_file_asset_upload_file755_793.pdf; see also F
ORUM, supra note 25, at 2
(describing a typical servicing agreement as permitting loan modification or forbearance
when it is “in the best interests of the securityholders or not materially adverse to the
interests of the securityholders”). Loan workouts also are known as “loss mitigation” in
the mortgage lending industry. Id. at 2–3. The growth of securitization in mortgage
lending has complicated the workout process. See generally id. at 3–4 (listing numerous
considerations for loss mitigation). The “lender” is an abstract notion with the securitized
loan, as ownership rests on a complicated series of securitization agreements. See
generally C
APONE, supra, at 5, 12 (explaining tranches and mortgage-backed securities).
In the absence of an easily identifiable mortgagee decision-maker, the mortgage servicer
typically makes all the decisions in negotiating an acceptable workout arrangement with
the borrower. F
ORUM, supra note 25, at 3–4. The discretion of the servicer, however, is
constrained by the terms of the securitization servicing agreement, which often are
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708 HOUSTON LAW REVIEW [45:3
the defaulting borrower include modifying the loan terms and an
extended period for repayment of the arrearage.
144
Another
possible result of a workout is the early termination of the
borrower’s interest in the property by a deed-in-lieu of foreclosure
or a “short sale,” which is an agreement to accept less than the
amount owed on the loan following sale of the property.
145
The
savings from avoiding foreclosure through a workout are so great
for the lender that the workout can be justified based on a
success rate for loan modification or forbearance of 40% or less.
146
Lenders typically will attempt to work out the loan and will wait
90 days before taking the first steps to initiate the foreclosure
process.
147
Foreclosure laws have an effect on whether a lender pursues
foreclosure or a loan workout.
148
A study by Terrence Clauretie
found that states with costlier and longer foreclosure processes
had lower foreclosure rates.
149
This result makes sense. Lenders
facing greater costs in foreclosure due to state law will be more
likely to engage in nonforeclosure solutions to mortgage
default.
150
If a mortgage lender could repossess a home as easily
as an automobile could be repossessed on loan default,
foreclosure rates would no doubt increase substantially.
151
2. Borrowers in Mortgage Default. The primary reasons
borrowers traditionally have defaulted on their mortgage are, in
order of importance, job loss and reduced income, financial
problems other than income loss, divorce, and illness.
152
Homeowners in default tend to be younger, employed, married,
ambiguous as to the proper limits for loan modification or forbearance. See generally id. at
4 (discussing individual loan workout decisions). The American Securitization Forum, a
trade organization for companies in the mortgage-backed securities market, has issued a
guidance encouraging a liberal interpretation of the servicing agreements in favor of
workout arrangements with first lien subprime loans. See S
TATE FORECLOSURE GROUP,
supra note 130, at 12–13 (describing use of loan modifications by various servicers in
current foreclosure crisis).
144. C
APONE, supra note 143, at 15.
145. Id.
146. See Brent W. Ambrose & Charles A. Capone, Jr., Cost-Benefit Analysis of Single-
Family Foreclosure Alternatives, 13 J.
REAL EST. FIN. ECON. 105, 114 tbl.4 (1996).
147. Z
ELMAN ET AL., supra note 45, at 42.
148. C
APONE, supra note 143, at 13–14.
149. Terrence M. Clauretie, The Impact of Interstate Foreclosure Cost Differences and
the Value of Mortgages on Default Rates, 15 J.
AM. REAL EST. & ECON. ASS’N 152, 162, 164
(1987).
150. See id. at 157 (opining on the importance of time and cost in choosing
nonjudicial foreclosure).
151. See id. (noting the preference of lenders towards easy means of foreclosure).
152. Mona J. Gardner & Dixie L. Mills, Evaluating the Likelihood of Default on
Delinquent Loans, 18 F
IN. MGMT. 55, 57 (1989).
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2008] AN APPROACH TO FORECLOSURE REFORM 709
and more likely to live in their first home.
153
Not surprisingly,
such borrowers experience more stress around finances, have a
more difficult time prioritizing bills, and are more often late in
paying financial obligations.
154
Homeowners in default also are
less likely to be comfortable discussing finances and less likely to
trust their lender.
155
They also are more likely to have paid more
for their loan than would be expected based on their credit and
financial profile; in other words, borrowers in foreclosure are
more likely to have gotten an unfair or predatory loan.
156
a. Types of Borrowers in Default. This Article will use the
following terms for different types of borrowers: “homeowners” to
refer to owner-occupants of residential property; “investors” to
refer to borrowers with a loan secured by non-owner-occupied
residential property other than larger apartment buildings; and
“commercial borrowers” to refer to borrowers with a mortgage on
large apartment buildings, commercial or other nonresidential
property. Most mortgage loans are secured by residential
property, and foreclosures are also overwhelmingly of residential
property loans.
157
Studies of foreclosures in certain localities have
shown commercial property loans constituting between about 4%
and 18% of foreclosures.
158
Residential home loans are mostly for homeowners rather
than investors, although the ratio of loans between homeowners
and investors has changed in the last few years.
159
The
percentage of residential home loans for non-owner-occupied
properties increased from the range of 5% to 6% in the early and
153. FREDDIE MAC, FORECLOSURE AVOIDANCE RESEARCH 3 (2005), available at
http://www.freddiemac.com/service/msp/pdf/foreclosure_avoidance_dec2005.pdf.
154. Id. at 4. Homeowners in default had less income than those in good standing,
but the gap was relatively small—$52,400 versus $56,700. This might be explained by the
fact that borrowers in good standing were much more likely to be older (38% to 12%) and
retired (32% to 7%). Id.
155. Id.
156. Howard Lax et al., Subprime Lending: An Investigation of Economic Efficiency,
15 H
OUSING POL’Y DEBATE 533, 544–50 (2004) (explaining that subprime borrowers are
less likely to have done comparative shopping for the best rate and terms).
157. See, e.g., B
ALTIMORE, supra note 62, at 9 (disclosing that a significant portion of
foreclosures were residential); Wechsler, supra note 118, at 872 (observing that a majority
of loans were residential).
158. B
ALTIMORE, supra note 62, at 9 (indicating that a study of more than five years
of loans in the City of Baltimore, Maryland, found 96.2% of 22,839 loans in foreclosure
were for residential property); Wechsler, supra note 118, at 865, 872 (analyzing a study of
Onondaga County, New York, which identified 18% of 118 properties in foreclosure were
loans secured by commercial property).
159. Robert B. Avery et al., Higher-Priced Home Lending and the 2005 HMDA Data,
92 F
ED. RES. BULL A123, A134–35 (2006), available at http://www.federalreserve.gov/
pubs/bulletin/2006/hmda/bull06hmda.pdf.
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710 HOUSTON LAW REVIEW [45:3
mid-1990s to 8.6% in 2001.
160
Non-owner-occupied residential
lending then rose dramatically each year from 2002 through
2005, reaching 17.3% of residential loans for 2005.
161
These
numbers include investor properties intended for rental and
second homes, a percentage of which are not rented.
162
A report of
certain securitized loan originations showed this same sharp
upward trend in “nontraditional” investor loans.
163
Investor loans
grew from 1.8% to 8.9% of the dollar volume of all loans from
2001 to 2006.
164
Recent studies reveal a higher percentage of foreclosed loans
are investor-owned properties in urban areas with concentrated
foreclosures.
165
The Mortgage Banker’s Association has reported
that investor loans account for 18% of subprime loan defaults in
the third quarter of 2007.
166
The rate varied drastically by state
and by type of loan, ranging as high as 35% for prime, adjustable
rate foreclosures in Montana.
167
Of the single-family residential
loans in foreclosure in a study of Saint Paul, Minnesota,
foreclosures from January 2005 through September 2006, only
58.8% appeared to be owner-occupied.
168
The high percentage of investor loans in foreclosure may be
explained, at least in part, by evidence indicating that investor
properties with subprime loans are much more likely to be
foreclosed than residential owner-occupied properties.
169
A study
of foreclosures in the Chicago area in 2002 showed that subprime
investor loans were almost three times more likely to result in
foreclosure than subprime loans to homeowners.
170
This is
160. Id.
161. Id.
162. Id. at A134 & n.19.
163. Thompson, supra note 46, at 20. The study defined nontraditional loans as
interest-only and negative amortization loans.
164. Id. Interestingly, the share of second home loans decreased slightly from 6.9% to
4.7%. Id. In subprime loans, the Thompson study found that the investor share of
subprime held steady from 2001 and 2006 at between 5.0% and 5.7%, although second
home share of the analyzed subprime loans increased from 0.8% in 2001 to 1.5% in 2006.
Id. at 18.
165. D
UDA & APGAR, supra note 40, at 7.
166. J
AY BRINKMANN, MORTGAGE BANKERS ASSOC., AN EXAMINATION OF MORTGAGE
FORECLOSURES, REPAYMENT PLANS AND OTHER LOSS MITIGATION ACTIVITIES IN THE
THIRD QUARTER 2007, at 10 (2008), http://www.mortgagebankers.org/files/news/
internalresources/59454_LoanModificationsSurvey.pdf.
167. Id.
168. This analysis is based on data from the Saint Paul, Minnesota City Council
Research Department.
169. See, e.g., I
MMERGLUCK & SMITH, supra note 61, at 18 (describing propensity
towards foreclosure for investor-owned properties in Chicago).
170. Id. at 18–20, 28.
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2008] AN APPROACH TO FORECLOSURE REFORM 711
explained, at least in part, by the fact that investors in
residential properties are more likely to walk away from a
property in default than a homeowner who occupies the
property.
171
b. Experience of Borrowers in Foreclosure. For many
homeowners, their primary or even sole focus entering
foreclosure is maintaining ownership of their particular home.
172
The family may be rooted in the house where they are raising
their children, the neighborhood where they have found a sense
of belonging, or a home they built. These familial or emotional
attachments to a home can be of overwhelming importance to
borrowers. Investors and commercial borrowers can be presumed
typically not to have such attachments, but rather to treat their
decisions in foreclosure solely as a matter of financial interest.
Homeowners, of course, also have financial interests in the
property, and the relative importance to default and foreclosure
of financial calculations and attachment to the home is the
subject of debate among scholars, especially economists.
173
A triage can be applied to homeowners who enter
foreclosure: (1) those who have or may have the income and debt
structure that afford them a reasonable chance to maintain
ownership of the property; (2) those who have no reasonable
chance to survive foreclosure as owners, but have equity in the
home; and (3) those without equity in the home who either have
no reasonable chance to maintain ownership or no interest in
maintaining ownership. Each of these groups faces different
choices and experiences in foreclosure.
Homeowners in the first group are poised to take advantage
of one or more of the many options for saving ownership of their
homes. These options include a loan workout through
modification or forbearance, a reinstatement loan, or a refinance
loan, including a reverse mortgage.
174
Some homeowners also may
be able to maintain ownership through a lawsuit asserting fraud
171. Gerardi et al., supra note 42, at 20.
172. See F
REDDIE MAC, supra note 153, at 10–11 (indicating a strong preference by
homeowners in default for exploring only options that allow them to retain ownership).
173. See C
APONE, supra note 143, at 14 (noting debate over whether or not borrowers
act in a “ruthless” manner and citing study of FHA data that shows this effect exists
when housing prices decline, but that generally borrowers default in response to “trigger”
events, such as job loss or divorce); see also Jacoby, supra note 90, at 329 n.23 (collecting
sources indicating that homeowners in default are reluctant to give up ownership even
when financial circumstances would suggest renting is preferable). Most of the studies on
the “ruthlessness” of borrowers do not account for different conduct among subgroups of
borrowers, such as separating owner-occupants from investors.
174. See C
APONE, supra note 143, at 15.
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712 HOUSTON LAW REVIEW [45:3
or violation of consumer protection laws, such as the Truth in
Lending Act.
175
Empirical studies suggest that these homeowners are
traditionally the largest of the three types of borrowers in
foreclosure.
176
Depending on the sample of loans studied, between
about one-third and two-thirds of homeowners were able to
reinstate their loans or otherwise cure the default and maintain
ownership.
177
An obstacle to maintaining homeownership for this group of
borrowers is that they are often unaware of the alternatives
available to them.
178
A survey of homeowners in default by
Freddie Mac found a significant lack of understanding about
their options in the foreclosure process.
179
Almost one-third, 31%,
of homeowners in default had not contacted their lender to
discuss the default, often for reasons that suggested ignorance of
possibly useful assistance.
180
While 74% of delinquent
homeowners knew that they could pay off their loan in a lump
sum, only 36% to 61% were aware of a variety of other options at
the discretion of the lender for dealing with the foreclosure.
181
For
instance, only 36% of delinquent homeowners said they knew
175. See 15 U.S.C. § 1635 (2006) (providing a right to rescind a loan in violation of
certain provisions of the Truth in Lending Act).
176. See Gardner & Mills, supra note 152, at 56 (noting a research study where
nearly 28% of borrowers in 90-day default lost their homes, another 37% cured the
default, and the remaining 35% were able to sell their properties); see also B
ALTIMORE,
supra note 62, at 33 (indicating that 30% of Baltimore foreclosures retain ownership and
54% of New Castle County, Delaware foreclosures maintain ownership); N
EIGHBORHOOD
HOUS. SERVS. OF CHI., INC., HOME-OWNERSHIP PRESERVATION INITIATIVE, MID TERM
REPORT FOR THE CHICAGO HOMEOWNERSHIP PRESERVATION INITIATIVE 16 (2004),
http://www.knowledgeplex.org/showdoc.html?id=90881 [hereinafter HOPI] (reporting that
690 of 1,934, or about 36%, of homeowners in foreclosure who received counseling in an
eighteen-month period were able to save ownership of the home); S
CHLOEMER ET AL.,
supra note 40, at 12–13 (estimating that slightly more than half of the number of loans
that entered foreclosure at least once completed foreclosure for the period 1998–2001; for
example, 22.9% of subprime loans originated in 2000 entered foreclosure at least once, but
only 12.9% completed foreclosure). Of course, the relative size of the three groups will
shift with changing economic conditions. When housing prices are appreciating rapidly,
the number of homeowners in foreclosure with equity will be higher. When housing prices
are declining, homeowners are less likely to have realizable equity in the home. The
differing characteristics of subprime loans also likely would serve to decrease the size of
this group of foreclosed borrowers.
177. See Ambrose & Capone, supra note 146, at 106. (finding that the vast majority
of FHA loan defaults studied ended in loan reinstatement, and that even after foreclosure
was initiated, the completion rate on the foreclosure was less than 55%).
178. See F
REDDIE MAC, supra note 153, at 9 (indicating in a Freddie Mac study that
at least 17% of delinquent homeowners either didn’t know who to call or refused).
179. Id.
180. Id.
181. Id. at 10.
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about the possibility of forbearance agreements, and only 53%
stated that they knew lenders could extend the term of the
mortgage.
182
The Freddie Mac survey also determined that 64% of
homeowners in default were unaware of the existence of
foreclosure counseling, and 74% of these homeowners indicated a
likeliness to use such services once made aware of their
existence.
183
Foreclosure counselors assist homeowners by
collecting and analyzing documentation and making the
borrower aware of all the options available for handling the
situation, matching homeowners in foreclosure with available
resources, and advocating with lenders and others on behalf of
the homeowner.
184
By helping to identify appropriate workout
options, this process can be of benefit to the lender as well.
185
Foreclosure counselors usually are part of a nonprofit entity, and
the method and quality of services varies by location.
186
There is little comprehensive research on the effectiveness of
debt counseling, but the information that is available generally
supports the use of such programs.
187
The same is true of
homeownership counseling and, specifically, counseling for
homeowners in foreclosure.
188
Available studies on foreclosure
counseling indicate some success in helping homeowners retain
ownership.
189
182. Id.
183. Id.
184. C
HRISTI BAKER ET AL., FANNIE MAE FOUND., ESSENTIAL COMPONENTS OF POST-
P
URCHASE PROGRAM MODELS 5 (2004), available at http://www.knowledge
plex.org/showdoc.html?id=42132; see also HOPI, supra note 176, at 15 (“NHS counselors
assist delinquent borrowers in exploring all options available to them to maintain
homeownership and/or avoid foreclosure including loan modification, forbearance, NHS
reinstatement loans, HOPI refinance specialty products, reverse mortgage, and sale of the
property.”); A
LAN MALLACH, FEDERAL RESERVE BANK OF PHILA., HOME OWNERSHIP
EDUCATION AND COUNSELING: ISSUES IN RESEARCH AND DEFINITION 25–26 (2000),
available at http://www.philadelphiafed.org/cca/capubs/homeowner.pdf.
185. HOPI, supra note 176, at 15.
186. C
HRISTI BAKER ET AL., CURRENT STATE OF POST-PURCHASE PROGRAMS 7 (2004),
available at http://www.knowledgeplex.org/showdoc.html?id=42132 [hereinafter C
URRENT
STATE]; MALLACH, supra note 184, at 25–26.
187. See C
URRENT STATE, supra note 186, at 5–6; David A. Lander, A Snapshot of
Two Systems that are Trying to Help People in Financial Trouble, 7 A
M. BANKR. INST. L.
REV. 161, 175 (1998).
188. C
URRENT STATE, supra note 186, at 9–13; MALLACH, supra note 184, at 4–16
(collecting studies on homeownership counseling and noting problems with data collection
and study design).
189. See Todd & Grover, supra note 141, at 2 (noting that Minneapolis–Saint Paul
foreclosure prevention services consistently report a success rate of one-half of clients in
default avoiding foreclosure); see also HOPI, supra note 176, at 15. But see M
ALLACH,
supra note 184, at 7–8 (questioning methodology of all studies of foreclosure prevention
counseling and noting that demonstrated success was modest).
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714 HOUSTON LAW REVIEW [45:3
The second group, those with equity but no realistic chance
of maintaining ownership, have only one rational choice—
attempt to sell the property and recover the equity.
190
Unfortunately, these homeowners are the primary target of a
widespread problem known as foreclosure equity stripping or
foreclosure rescue scams.
191
Homeowners who enter foreclosure
are saturated with mail, phone calls, and personal visits from
would-be rescuers promising to save the home from foreclosure.
192
Typical solicitations include promises such as: “We Can Save
Your Property and Even Give You Cash In Hand;”
193
“We can stop
the foreclosure process;” and “We can help you restore your
credit.”
194
Because the foreclosure process and all liens on the
property are subjects of public record, those interested in
perpetrating a foreclosure rescue scam have a readily identifiable
market of homeowners in foreclosure likely to have equity in
their homes. A common result of foreclosure rescue scams is that
the homeowner loses all ownership and equity in the home, and
often is evicted as a tenant.
195
Homeowners who have neither substantial equity in the
property nor any realistic hope of retaining ownership are the
190. For a sale of the home to be the only rational choice, there must be net equity;
i.e., the amount of home equity must be sufficient to be positive after accounting for
selling expenses. There may be other considerations for the homeowner, such as the
possibility of a deficiency judgment that could be avoided by sale of the property or the
benefit to the borrower of extending the free rent to the very end of the foreclosure period,
which is less likely with a sale of the home.
191. See S
TEVE TRIPOLI & ELIZABETH RENUART, DREAMS FORECLOSED: THE RAMPANT
THEFT OF AMERICANS’ HOMES THROUGH EQUITY-STRIPPING FORECLOSURE “RESCUE”
SCAMS (2005), http://www.consumerlaw.org/news/ForeclosureReportFinal.pdf (finding
that these programs target homeowners with equity); Prentiss Cox, Foreclosure Equity
Stripping: Legal Theories and Strategies to Attack a Growing Problem, 39
C
LEARINGHOUSE REV. 607, 607–08 (2006) (noting the problem is occurring across the
country, particularly as home prices rise and homeowners find themselves with greater
equity); Creola Johnson, Stealing the American Dream: Can Foreclosure-Rescue
Companies Circumvent New Laws Designed to Protect Homeowners from Equity Theft?,
2007 W
IS. L. REV. 649, 655 (2007) (stating that these persistent economic conditions lure
“con artists”). Homeowners in the first group, with realistic options for maintaining
homeownership and who have equity in the property, also fall victim to foreclosure equity
stripping scams.
192. See T
RIPOLI & RENAUART, supra note 191, at 9 (explaining the various methods
scammers use to contact homeowners).
193. Complaint, Johnson v. Home Savers Consulting Corp., No. 04-5427 (E.D.N.Y.
2004).
194. Complaint, State v. HJE, No. 03-05554 (D. Minn. 2003); see also T
RIPOLI &
RENUART, supra note 191, at 55–62 (collecting solicitations and related material); Cox,
supra note 191, at 610–11 (describing foreclosure rescue solicitation process).
195. See T
RIPOLI & RENUART, supra note 191, at 8–39 (describing the experience of
eighteen different states with foreclosure equity stripping problems); Cox, supra note 191,
at 611–14 (describing the details of typical equity stripping schemes).
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2008] AN APPROACH TO FORECLOSURE REFORM 715
final group (hereinafter “lost homeowners”). Lost homeowners
have little incentive and likely have few resources to invest in
home maintenance.
196
These homeowners have an incentive to
stay in the home through the end of the foreclosure period
because there is no cost to doing so.
197
Despite this fact, many
homeowners abandon their homes during the foreclosure process,
creating a problem with vacant properties.
198
In states allowing deficiency judgments, homeowners
theoretically may have an incentive to minimize the lender’s loss
on the property by negotiating a deed-in-lieu of foreclosure or
short sale in exchange for the lender forgoing deficiency
proceedings.
199
Because of the rarity of use of deficiency
judgments, this incentive may be of limited practical value.
200
Some of these homeowners may also use these mechanisms as a
means to minimize damage to their credit profile.
201
IV. E
XISTING SCHOLARSHIP ON FORECLOSURE LAW
Most economists and legal scholars agree that current state
foreclosure laws generally are not efficient. Economists focus
much of their analysis on the costs imposed on lenders by state
protections for borrowers in foreclosure. Legal scholars are more
animated by the debate over the effectiveness of current
foreclosure sale procedures.
A. Foreclosure Laws from the Perspective of Economists
Economists identify costs imposed on lenders by foreclosure
laws, including transaction costs (e.g., attorney’s fees), property
costs (e.g., paying unpaid property taxes), and opportunity costs
196. See, e.g., Louwagie & Howatt, supra note 6.
197. See, e.g., id.
198. See Dennis R. Capozza & Thomas A. Thomson, Optimal Stopping and Losses on
Subprime Mortgages, 30 J.
REAL ESTATE FIN. ECON. 115, 126 (2005) (suggesting subprime
borrowers do not significantly take account of “free rent” in their responses to default).
199. See, e.g., B
RIAN D. CUNNINGHAM, UTAH STATE BAR MID YEAR MEETING,
REMEDIES UNDER ARTICLE 9 OF THE UCC: DEED IN LIEU OF FORECLOSURE AND SECRET
LIENS 7 (2008), http://www.utahbar.org/cle/springconvention/materials/remedies_
article9.pdf (noting that in Utah, a deficiency judgment state, lenders will accept a deed-
in-lieu of foreclosure in exchange for an agreement not to sue the mortgagor for the
deficiency on the home).
200. See Nelson & Whitman, supra note 91, at 1428–29.
201. See R
AO ET AL., supra note 21, at § 2.14. (detailing how homeowners sometimes
overestimate the value of a short sale or deed-in-lieu as protection against adverse credit
report data. The difference, credit wise, between a completed foreclosure and a terminated
foreclosure is not significant).
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716 HOUSTON LAW REVIEW [45:3
(e.g., interest foregone during the process).
202
Differences in
foreclosure laws will result in differences in each of these types of
costs. Any aspect of state foreclosure law that causes delay will
increase the opportunity costs of the lender. Economists
generally conclude that judicial foreclosure, a statutory right of
redemption, and antideficiency laws increase lender costs.
203
The results of economic studies provide support for the
notion that lenders suffer more losses in states with judicial
foreclosure, statutory redemption periods, and antideficiency
legislation.
204
Yet the economic studies are less conclusive on the
actual effect of these added loan losses on terms and availability
of mortgage credit.
205
The study estimates increases in the cost of
mortgage loans in states with judicial foreclosure, redemption
periods, and antideficiency legislation range from substantial to
almost nonexistent.
206
Recently, Karen Pence concluded that “loan sizes are 3% to
7% smaller in states that require judicial foreclosure.”
207
The
article, entitled Foreclosing on Opportunity: State Laws and
Mortgage Credit, suggests that this result means that borrowers
202. Terrence M. Clauretie & Thomas Herzog, The Effect of State Foreclosure Laws
on Loan Losses: Evidence from the Mortgage Insurance Industry, 22 J.
MONEY CREDIT &
BANKING 221, 222 (1990).
203. See Karen M. Pence, Foreclosing on Opportunity: State Laws and Mortgage
Credit, 88 R
EV. ECON. & STAT. 177, 180 (2006) (estimating that loan sizes are smaller in
judicial foreclosure states and concluding that this reflects a reduced supply of credit); see
also Terrence M. Clauretie, State Foreclosure Laws, Risk Shifting, and the Private
Mortgage Insurance Industry, 56 J. R
ISK & INS. 544, 552 (1989) (concluding that judicial
foreclosure, statutory right of redemption, and antideficiency statutes add significantly to
mortgage risk); Clauretie & Herzog, supra note 202, at 231 (predicting borrowers in more
protective states eventually will pay higher private mortgage insurance premiums);
Charles M. Kahn & Abdullah Yavas, The Economic Role of Foreclosures, 8 J.
REAL EST.
FIN. & ECON. 35, 46 (1994) (arguing that mortgagor protection laws have substantial
effects on the market); Richard A. Phillips & James H. VanderHoff, The Conditional
Probability of Foreclosure: An Empirical Analysis of Conventional Mortgage Loan
Defaults, 32 R
EAL EST. ECON. 571, 584 (proposing that less protective laws will reduce
costs and will lower interest rates); cf. Michael H. Schill, An Economic Analysis of
Mortgagor Protection Laws, 77
VA. L. REV. 489, 493–502 (1991) (finding that state
mortgage protection laws impact interest rates less than prior studies indicated).
204. See Clauretie & Herzog, supra note 202, at 222–23; see also Pence, supra note
203, at 177 nn.2–3.
205. Cf. Mark Meador, The Effects of Mortgagee Laws on Home Mortgage Rates, 34 J.
E
CON. & BUS. 143 (1982); Schill, supra note 203, at 507 (finding in one study that the cost
of mortgage loans is substantially greater in states with judicial foreclosure, redemption
periods, and antideficiency legislation, whereas in another study there is no significant
increase in mortgage costs).
206. Cf. Meador, supra note 205, at 146–47; Schill, supra note 203, at 507.
207. Pence, supra note 203, at 180. Pence controls for a variety of factors by
including a large number of variables in her regression analysis, but omits varying state
laws regulating the terms of mortgage loans, such as prepayment penalty prohibitions,
limits on loan fee charges, and special high-cost mortgage. Id.
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in states with judicial foreclosure “may pay more for their
mortgages, purchase smaller houses, or have difficulty becoming
homeowners.”
208
Interestingly, Pence found no significant adverse
relationship between loan size and either statutory redemption
rights or antideficiency laws.
209
Also, borrowers in judicial
foreclosure states were slightly less likely to be rejected for a
mortgage loan in her study.
210
B. Foreclosure from the Perspective of Legal Scholars
Most legal scholarship focuses on the mechanics of
foreclosure procedures. A series of law review articles have
portrayed foreclosure law as the struggle between the need for
borrowers to recover their home equity and efficiency for lenders
in recovering their investment at a reasonable cost.
211
Proposals
decrying the inefficiency of the foreclosure sale process have been
especially popular.
212
The vast majority of these commentators
have concluded either that the foreclosure sale procedure should
be reformed to imitate nonforeclosure market methods; or that
property in foreclosure should be sorted by an appraisal
procedure or other method, and lenders allowed to quickly take
title to properties with no remaining equity; or both.
Two prominent scholars in the area of real estate finance
and foreclosure law, Grant S. Nelson and Dale A. Whitman,
suggest that a primary goal of foreclosure reform is to produce
“more frequent and larger surpluses” from foreclosure sales.
213
208. Id. at 182.
209. Id.
210. See id. at 180.
211. See N
ELSON & WHITMAN, supra note 100, at 228–60 (identifying general
characteristics of the judicial foreclosure procedure); Robert J. Aalberts & Douglas S.
Bible, Mortgage Default in Louisiana: An Empirical Study of Recent Foreclosures on
Residential Property in Caddo Parish, 15 S.U.
L. REV. 215 (1988) (analyzing foreclosure
law in Caddo Parish, Louisiana); Lawrence Berger, Solving the Problem of Abusive
Mortgage Foreclosure Sales, 66 N
EB. L. REV. 373 (1987) (looking broader at how states
have dealt with foreclosure sale prices and deficiency judgments); Pamela Giss, An
Efficient and Equitable Approach to Real Estate Foreclosure Sales: A Look at the New
Hampshire Rule, 40 S
T. LOUIS U. L.J. 929, 968 (1996) (observing foreclosure law through
the lens of a small Northeastern state); Alex M. Johnson, Jr., Critiquing the Foreclosure
Process: An Economic Approach Based on the Paradigmatic Norms of Bankruptcy, 79 V
A.
L. REV. 959 (1993) (assessing foreclosure law through an economic approach); Stark,
supra note 91 (evaluating state and federal foreclosure law); Robert M. Washburn, The
Judicial and Legislative Response to Price Inadequacy in Mortgage Foreclosure Sales, 53
S.
CAL. L. REV. 843, 936–38 (1980) (citing the Uniform Land Transactions Act); Wechsler,
supra note 118 (observing the present state of mortgage foreclosure law in the United
States).
212. See, e.g., Wechsler, supra note 118, at 884 (calling for reform in mortgage
foreclosure law due to inefficiencies of foreclosure sale procedures).
213. N
ELSON & WHITMAN, supra note 100, at 703–04.
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718 HOUSTON LAW REVIEW [45:3
They argue for an independent official appointed to sell homes
using real estate brokers and other staples of market sale
tactics.
214
More recently, Nelson and Whitman write approvingly
of the proposed foreclosure sale procedures in the Uniform
Nonjudicial Foreclosure Act (UNFA).
215
They describe the
deficiencies of the current auction process at protecting borrower
equity.
216
Despite noting that “loss of significant equity does not
occur for a large percentage of debtors,” they state that “[a]
principal goal of foreclosure reform should be to alleviate these
cases.”
217
The UNFA proposes improved procedures for
foreclosure auctions and two alternative procedures: either
negotiated sale or by appraisal.
218
Basil H. Mattingly offers a characteristic argument for legal
scholars of foreclosure.
219
Mattingly conceptualizes foreclosure
law as “a study of power,” and states that “the evolution in
foreclosure law can be understood by the power struggle between
borrowers and lenders.”
220
Mattingly proposes that lenders be
required to sell the property in either “a commercially reasonable
manner” or conduct the sale according to a statutorily mandated
regime designed to ensure maximum opportunity for competitive
bidders.
221
Mattingly also would offer foreclosing lenders a third
option of strict foreclosure if the borrower and certain junior lien
holders fail to object.
222
Two legal scholars, Steven Wechsler and Deborah P. Stark,
have conducted empirical studies of the foreclosure sale
process.
223
Wechsler studied foreclosure sales in Onondaga
214. Id.; see also Grant S. Nelson, Deficiency Judgments After Real Estate
Foreclosures in Missouri: Some Modest Proposals, 47 M
O. L. REV. 151, 163 (1982) (calling
for reform in foreclosure sales and the appointment of an independent trustee).
215. Nelson & Whitman, supra note 91, at 1430, 1446. Nelson and Whitman note the
fairly modest suggestions for reforming existing auction procedures in the UNFA and
attribute this result to a political calculation by the drafters that lenders would not
support broader changes and the power of lenders to stop any legislative changes they
oppose. Id. at 1430. Nelson and Whitman argue that the non-auction alternative sale
procedures in the UNFA are a positive improvement and offer “significant advantages to
creditors over the conventional auction sale.” Id. at 1446.
216. Id. at 1429.
217. Id.
218. UNFA, supra note 96, at §§ 4–5 (detailing proposed methods for negotiated sale
and appraisal).
219. See generally Mattingly, supra note 97.
220. Id. at 89.
221. See id. at 120–24.
222. Id. at 114–20.
223. See Stark, supra note 91 (evaluating state and federal foreclosure laws);
Wechsler, supra note 118 (analyzing foreclosure by sale as a form of strict foreclosure); see
also Aalberts & Bible, supra note 211 (observing Louisiana foreclosure law).
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County, New York, in 1979.
224
Wechsler found that the winning
bidder at the sale was the foreclosing lender 77% of the time, but
in almost all cases the winning bid was by a third party buyer
when the sale produced a surplus; in other words, a sale amount
greater than the amount owed to the foreclosing lender.
225
After
taking title to the property, foreclosing lenders re-sold the
property for an amount greater than their investment in about
half of the cases, but lost money overall after re-selling the
properties.
226
Third party buyers, in contrast, successfully
produced a profit on 14 of 15 re-sales.
227
Wechsler concluded that
foreclosure sales should be “changed to more closely resemble an
ordinary retail real estate sale, rather than a forced auction
sale.”
228
Alternatively, Wechsler proposed that the lender assume
title to the property without the necessity of sale when a required
appraisal determines there is no borrower equity.
229
Stark argues that Wechsler focuses too much attention on
whether foreclosure procedures produce a fair market price for
the property in foreclosure.
230
She states that the goal of
foreclosure law should be to “balance the interest of lenders and
all nondefaulting borrowers in an efficient foreclosure process
against the interest of borrowers who default in a process which
provides a true opportunity and means to protect any equity they
have in the property.”
231
Stark analyzes foreclosure sale data from
Cook County, Illinois, in 1993 and 1994 to determine the validity
of “[t]wo basic criticisms of the foreclosure process”—whether the
sale process is unfair or inefficient.
232
She concludes that most
borrowers with equity in the property take action to reinstate or
224. Wechsler, supra note 118, at 851.
225. Id. at 876 (“The sales left deficiency amounts in 94 of the 118 foreclosures, or
about eighty percent of the total. A deficiency was much more likely to result when the
mortgagee, rather than a third party, was the buyer at foreclosure. Ninety-two percent of
the sales to mortgagees left deficiencies, as opposed to thirty-nine percent of the sales to
third parties. Moreover, the deficiencies in the third-party cases tended to be relatively
small: about half amounted to less than $5,000, and only one exceeded $18,000. The
deficiency amounts left by mortgagee purchases ranged from less than $1 to more than $2
million. Only one sale to a mortgagee produced a surplus, and that surplus was only
$1,400. In contrast, fifty-four percent of the sales to third parties generated surpluses to
be paid to the mortgagor or junior lienors. Two-thirds of these surpluses amounted to
more than $5,000.”).
226. Id. at 876. It is important to note that Wechsler does not appear to account for
improvements or carrying costs.
227. Id. at 883.
228. Id. at 893.
229. Id. at 894–95.
230. Stark, supra note 91, at 235–36 nn.35–38.
231. Id. at 236.
232. Id. at 235.
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720 HOUSTON LAW REVIEW [45:3
otherwise terminate the foreclosure process before losing all
ownership rights, although there was lost equity in a small
number of egregious cases.
233
Despite disagreeing with Wechsler
about the extent and importance of “lost equity” for the
borrowers, Stark argues for a procedure based on appraisals that
is similar to one of the proposals made by Wechsler.
234
Alex Johnson notes the emphasis in legal scholarship on the
foreclosure sale procedures and suggests that “recent scholarship
analyzing the foreclosure process would lead any reasonably
intelligent reader to conclude that the primary and perhaps sole
purpose of the process is to provide competitive bidding in order
to protect the mortgagor’s equity interest.”
235
He argues that the
primary purpose of the foreclosure system should be to
inexpensively terminate the borrower’s equitable redemption
right and liquidate the collateral.
236
Johnson looks to the norms of
bankruptcy for a new foreclosure system.
237
The foreclosure
procedure he suggests, nonetheless, is similar to the
recommendations of other legal scholars.
238
Johnson proposes that
a trustee be appointed to determine whether the property has
remaining equity based on estimated market value, and that the
trustee should sell such properties in a manner that maximizes
the price.
239
C. Limited Importance of Foreclosure Sales
The focus of much of legal scholarship on the adequacy of
foreclosure sale procedures has led to a formalistic debate of
limited relevance in practice.
240
The sale procedure simply does
233. Id. at 244–45.
234. Compare Wechsler, supra note 118, at 894–95 (arguing that a statute could
empower the court to require an independent appraisal of the current retail market value
of the property. If the appraisal showed the property to be worth less than the amount of
the debt, the mortgagee could foreclose without a sale.), with Stark, supra note 18, at 686
(calling for a bifurcated foreclosure system where a lender may elect a strict foreclosure if
an appraisal indicates the fair market value does not exceed the final debts).
235. Johnson, supra note 211, at 978, 988.
236. Id. at 989.
237. Id. at 1001–02.
238. See id. at 1004–05.
239. Id. at 1014–19. Johnson’s proposal is that borrowers be required to bring a state
court action in order to obtain the appointment of a trustee, who would then stay the
proceeding if there appeared to be equity in the property. Id. at 1014–15. Johnson then
seems to assume that borrowers would routinely file such actions. Id. at 1014. As a
practical matter, it is doubtful that many residential owner-occupants would have access
to the legal assistance that would enable them to file such court actions.
240. See, e.g., Mattingly, supra note 97, at 81 (noting that different foreclosure
models have been proposed in an attempt to balance both borrower and lender’s
interests); Schill, supra note 203, at 492 (noting that the development of real estate
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2008] AN APPROACH TO FORECLOSURE REFORM 721
not matter in the vast majority of foreclosure cases.
241
Even when
the sale is of consequence, restructuring foreclosure to increase
market bidding and to sort borrowers with remaining equity is
only one concern, and not likely a central issue, to broader public
interests in housing and community quality of life.
The foreclosure sale process matters only if the borrower is
unable to reinstate or redeem the loan, refinance the loan, sell
the property, or otherwise resolve the foreclosure prior to sale.
242
Most homeowners will likely resort to one of these options.
Stark’s analysis of Cook County foreclosures, for instance, found
that in over two-thirds of the cases the foreclosure did not result
in a sale.
243
Returning to the idea of a triage of borrowers, this
means only the lost homeowners, those without either the
resources to maintain ownership or equity in the property, or
those in the more fortunate two groups who for some reason do
not successfully execute a rescue or sale strategy, will face a
foreclosure sale.
244
When the sale does proceed, the borrower has an interest in
realizing equity from the home or in avoiding or minimizing a
deficiency judgment.
245
A deficiency judgment does not exist when
an antideficiency statute applies to the foreclosure.
246
Even where
a deficiency judgment is possible, deficiency judgments are rarely
pursued by the lender.
247
A deficiency judgment often will be hard
to collect because many borrowers in foreclosure presumably will
have few assets that are not exempt from collection, as well as
finance law has been marked by the attempt to balance between borrowers and lenders
rights).
241. See Johnson, supra note 211, at 959 (stating that in the majority of cases, the
foreclosure sale will produce an inadequate sale price); see also Robert M. Washburn, The
Judicial and Legislative Response to Price Inadequacy in Mortgage Foreclosure Sales, 53
S.
CAL. L. REV. 843, 848 (1980) (asserting that judicial has the same consequences as strict
foreclosure).
242. In several states, foreclosure laws make the sale all but irrelevant, regardless of
the homeowner’s ability to resolve the foreclosure. See N
ELSON & WHITMAN, supra note
100, at
§ 7.1 (explaining that statutory redemption rights permit the mortgagor to redeem
after a valid foreclosure sale). In our hypothetical State A, for example, a sale prior to the
statutory redemption right makes the foreclosure sale irrelevant because the incentives
for all parties is to have the lender make the only bid at sale for the amount of the debt.
243. Stark, supra note 91, at 242–43.
244. Stark, supra note 18, at 677 (stating that in the majority of cases the borrower
protects her equity in the property by either reinstating the loan or by redeeming the
property prior to foreclosure).
245. See James B. Hughes, Jr., Taking Personal Responsibility: A Different View of
Mortgage Anti-Deficiency and Redemption Statutes, 39 A
RIZ. L. REV. 124, 125 (1997)
(stating that antideficiency protections protect mortgagors when foreclosure sale proceeds
are insufficient to retire the mortgagor’s debt).
246. See id.
247. See Wechsler, supra note 118, at 895–96.
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722 HOUSTON LAW REVIEW [45:3
other debts.
248
Even if a lender succeeds in winning a deficiency
judgment, it is an unsecured debt that is dischargeable in
bankruptcy.
249
This leaves the borrower’s interest in realizing the equity in
his or her home following the foreclosure sale; it is this issue that
seems to animate much of the commentary on foreclosure law.
250
Depriving homeowners of their equity through defective sale
procedures is a matter of concern, but there are not that many
properties that proceed to a foreclosure sale in which the home
has any remaining equity.
251
Stark determined that in 90% of
examined foreclosure sales, the fair market value of the property
was less than the outstanding loan amount.
252
Similarly,
Wechsler found only about 80% of foreclosure sales ended in a
deficiency.
253
In other words, most of the foreclosure sales
probably occur with borrowers in the worst-off group who have no
equity and no means to retain ownership.
254
Even where some
equity exists at the time of the foreclosure sale, for the
homeowner in a nonforced sale to have realized the equity, it
must have been substantial enough to allow for a profit after sale
costs so the borrower cannot be said to have been deprived of the
equity.
255
Narrowing the issue to cases in which the foreclosure
process goes through to a sale and the borrower has sufficient
equity to have obtained money from a voluntary sale, the loss of
equity is not necessarily a function of flawed foreclosure sale
procedures.
256
Most borrowers with equity will best avoid any
inequities in the foreclosure sale process by listing their property
for sale rather than relying on the foreclosure sale to recover
their equity.
257
The borrower can control the seller’s side of the
248. Id.
249. Jacoby, supra note 90, at 328.
250. See Johnson, supra note 211, at 959–60.
251. See Stark, supra note 91, at 244 (stating that only in only a small percentage of
cases does a foreclosure sale cause a loss of equity for the mortgagor).
252. Id.
253. Wechsler, supra note 118, at 876.
254. See Stark, supra note 91, at 245 (concluding that in approximately 90% of the
cases, the borrower had no equity in the property at foreclosure).
255. Nor is there empirical support for the notion that lenders profit in any
substantial amount from manipulating foreclosure sales. Compare Wechsler, supra note
118, at 882 (concluding that lenders made a profit in about half of resales), with Stark,
supra note 91, at 244 (finding in only 12% of foreclosure sales cases did the lender make a
profit upon resale).
256. See Johnson, supra note 211, at 971–72 (stating that the mortgagee’s only
priority at the foreclosure sale is to make itself whole).
257. See id. at 974 (providing an example of a mortgagor protecting her equity by
selling her property herself).
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2008] AN APPROACH TO FORECLOSURE REFORM 723
sale process.
258
The obvious impediment to borrower disposition of
the property is a lack of time to complete the sale during the
foreclosure process.
259
In Georgia, for instance, the borrower can
lose title to the property in as little as two months or less from
the notice of default.
260
Yet a borrower losing equity in this type of
rapid foreclosure procedure is a function of the trade-offs in that
state’s law favoring lender’s interests in quick conversion of their
collateral rather than just the result of defects in the foreclosure
sale method.
261
V. F
ORECLOSURE LAW AS HOUSING POLICY
This Article argues that state foreclosure laws should be
evaluated by their impact on desired social outcomes for housing.
The dispute over borrower protection versus credit availability is
just one component of this evaluation. A broader public policy
perspective yields priorities and ideas that don’t fit well within
the current boundaries of debate.
Foreclosure law affects two goals that have been integral to
United States housing policy: (1) high levels of homeownership;
and (2) community stability and housing quality.
262
A. Sustainable Homeownership
Homeownership, meaning ownership of a residence by its
occupant, has been for decades an important social objective in
the United States.
263
Increasing homeownership rates is a
fundamental objective of public policy at every level of
258. See id.
259. Wechsler, supra note 118, at 872 (finding that in 92% of cases, the time between
the foreclosure action and the judgment was less than a year).
260. G
A. CODE ANN. § 44-14-180 (2007); see also MORTGAGE DIRECTORY, supra note
19, at 1, 89; Bajaj, supra note 19.
261. Consider the Smith example above. The sale procedures in State A are
irrelevant because the foreclosure sale almost surely will result in a successful credit bid
by the lender and there will be no other bidders. See supra Part III.B.2. In State B, the
Smiths face a difficult situation for realizing their equity because they have a short period
in which to try to refinance or sell the home. While reforms to the sale procedure may
increase the chance that the Smiths will recover some equity, the difficult situation is
forced on the Smiths by the rapid timeline of the foreclosure period, and extending the
timeline will do more for the Smiths’ efforts to retain their equity than reforming the sale
procedure.
262. One could argue, of course, that there are other goals to national housing policy,
such as nondiscrimination or stimulating economic production.
263. See M
ALLACH, supra note 184, at 1; Philip Halpern, Creating Fair and Efficient
Subsidies for Home Ownership, 4 J.
AFFORDABLE HOUSING & COMMUNITY DEV. L. 125,
125 (1995).
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724 HOUSTON LAW REVIEW [45:3
government.
264
The central mission of numerous nonprofit
organizations is to increase homeownership.
265
Higher
homeownership has been linked to lower crime, better health,
and a variety of other social quality measures.
266
Although there
is disagreement that homeownership is always beneficial,
267
there
is little dispute that policymakers at all levels of government
afford homeownership a central place in national housing
goals.
268
Foreclosure laws have both a direct and an indirect effect on
homeownership.
269
The obvious direct effect of foreclosure law on
homeownership is that foreclosure laws may provide rights or
benefits to borrowers that make it possible for more borrowers to
retain ownership.
270
Foreclosure laws that provide more time to
borrowers, or allow the right of redemption, likely increases the
percentage of borrowers in foreclosure that avoid loss of
ownership.
271
These borrower protections also raise the costs of
foreclosure for lenders and thus increase lender willingness to
forebear or negotiate an alternative result to initiating or
completing foreclosure.
272
Furthermore, homes lost in foreclosure
264. See Julia Patterson Forrester, Mortgaging the American Dream: A Critical
Evaluation of the Federal Government’s Promotion of Home Equity Financing, 69 T
UL. L.
REV. 373, 394 (1994) (describing the role the federal government has played in directing
capital into the mortgage market and encouraging people to purchase by giving tax
incentives and special treatment in bankruptcy).
265. See, e.g., HomeSight, http://www.homesightwa.org/ (last visited Sept. 5, 2008).
There are similar organizations in most states. See, e.g., Neighborhood Housing Service of
Chicago, http://www.nhschicago.org/content/index.php (last visited Sept. 5, 2008).
266. R
OBERT D. DIETZ, THE SOCIAL CONSEQUENCES OF HOME OWNERSHIP 4
(2003), available at http://www.newtowncdc.org/pdf/social_consequences_study.pdf
(“[H]omeownership is positively associated with physical, mental and emotional health.”);
N
AT’L ASSOC. OF REALTORS, SOCIAL BENEFITS OF HOMEOWNERSHIP AND STABLE HOUSING
12 (2006), available at http://www.realtor.org/Research.nsf/files/05 Social Benefits of
Stable Housing.pdf/$FILE/05 Social Benefits of Stable Housing.pdf (“Research on crime
and homeownership shows that homeowners are far less likely to become crime victims.”).
267. See, e.g., Forrester, supra note 264, at 378 (stating the risks of home equity
loans to borrowers are both financial and psychological); Jacoby, supra note 90, at 324–25
(noting that some scholars have suggested that homeownership and mortgage debt lead to
poverty);
268. See Halpern, supra note 263, at 125.
269. See A
PGAR & DUDA, supra note 56, at 9 (stating that borrowers’ direct costs
include monetary costs; indirect costs result from increased future borrowing costs as a
result of poor credit quality).
270. See Stark, supra note 91, at 241–42 (stating that borrower protections initiated
in some states are aimed at providing borrowers with a chance to protect any equity they
have in their property).
271. See id.
272. See Schill, supra note 203, at 496 (asserting that mortgagor protection laws
create higher costs). Conversely, the loss of a house in foreclosure from fewer borrower
protections means the foreclosed homeowner will have financial and perhaps
psychological obstacles to again achieving homeownership, thereby reducing future
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2008] AN APPROACH TO FORECLOSURE REFORM 725
may be more likely to go to an investor and thus drive down
homeownership rates.
273
An indirect affect of foreclosure laws on homeownership is
their impact on mortgage lending activity.
274
Ready access to
mortgage financing for prospective or existing homeowners rests
in part on the ability of lenders to convert efficiently the home
into cash on default by the homeowner.
275
The exact relationship
between borrower protective provisions of foreclosure laws and
the terms of credit has been hard to determine.
276
While the indirect costs of foreclosure protections for lenders
have been studied and decried by economists and legal scholars,
almost no consideration has been given to whether borrower
protections in foreclosure promote retention of homeownership.
277
An empirical study of whether borrowers in states with judicial
foreclosure or with long redemption periods are more likely to
retain homeownership would be very helpful in determining the
relative benefits of foreclosure protections versus the costs
imposed on credit price and availability.
There is increasing concern that homeownership be
sustainable.
278
Low income and minority homeowners are more
likely to obtain a subprime loan
279
and are more likely to lose
ownership of their home.
280
Foreclosure has a negative effect on a
borrower’s credit status, and thus it is unlikely that foreclosed
homeowners will be able to return to homeownership.
281
A study
homeownership rates.
273. B
ALTIMORE, supra note 62, at 33.
274. See Clauretie & Herzog, supra note 202, at 231 (“[S]tate foreclosure laws affect
the risk of residential mortgage lending.”).
275. See Stark, supra note 18, at 646 (asserting that the ability of lenders to recover
collateral quickly saves the lender money and may reduce costs of restoring the property).
276. See supra note 205. A counter-veiling indirect benefit to homeownership may
occur if borrower protections make homeowners more comfortable that they will be
treated fairly (from their perspective) in foreclosure, although it is unlikely that this
information would be meaningful ex ante to many borrowers.
277. See Clauretie & Herzog, supra note 202, at 221 (studying the effect of
foreclosure laws on mortgage lending).
278. C
URRENT STATE, supra note 186, at 1, 6 (“[There is] growing concern about the
sustainability of homeownership for traditionally underserved populations.”); see also
M
ALLACH, supra note 184, at 2 (“Home-ownership initiatives that might lead to a
disproportionately high level of abandonment and foreclosure in the future would be in
the interest of neither the buyers, the lenders, nor the community as a whole.”); Jacoby,
supra note 90, at 327–28 (emphasizing the importance of studying of foreclosure
prevention).
279. See supra notes 57–64 and accompanying text.
280. Todd & Grover, supra note 141 (collecting studies showing racial and income
differences in sustaining homeownership).
281. See Mattingly, supra note 97, at 109 (noting the negative effect foreclosure has
on a borrower’s credit history).
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726 HOUSTON LAW REVIEW [45:3
in England cataloged the multiple adverse health and social
consequences for borrowers facing foreclosure, including severe
stress and social isolation.
282
One homeowner in north
Minneapolis described the experience of owning a home and
losing it in foreclosure:
It’s been horrible, you know, because of the choices I made.
I would not say owning a home is terrible, but the debt I got
into and it was a downward spiral I felt I would never get
out of . . . once you are vulnerable like that, these kinds of
things can happen to you.
283
It is not as simple, then, as weighing the net impact of
foreclosure laws on homeownership.
284
If foreclosure laws help
maintain families in homes, or raise costs in a way that prevents
homeownership that will result in a future foreclosure, these
results have social value distinct from the net overall level of
homeownership.
B. Foreclosure Law Affects Community Stability and Housing
Quality
States have a strong public interest in maintaining stable
and prosperous residential communities.
285
It only takes a drive
through certain urban neighborhoods hard-hit by foreclosures to
see the direct relationship between foreclosure and the quality of
community life. Foreclosed homes are likely to suffer
maintenance problems, and the increase in vacant properties as
a result of rising foreclosures causes neighborhood
deterioration.
286
Foreclosure laws can encourage or permit deterioration or
abandonment of houses in foreclosure.
287
Long foreclosure periods
can result in deterioration of property when owners have little or
282. Sarah Nettleton & Roger Burrows, When a Capital Investment Becomes an
Emotional Loss: The Health Consequences of the Experience of Mortgage Possession in
England, 15 H
OUSING STUD. 463, 467–68, 474–75 (2000).
283. Jeff Crump, Performing Housing Markets: Sticky Fingers and Subprime
Lending (unpublished, on file with the Houston Law Review) (interviews by David Tyler
Mackay, Department of Geography, University of Minnesota).
284. See Kurt Eggert, Held Up in Due Course: Codification and the Victory of Form
over Intent in Negotiable Instrument Law, 35 C
REIGHTON L. REV. 363, 581 (2002)
(observing that homeowners may experience psychological and emotional trouble due to
the loss of their homes).
285. See 42 U.S.C. § 1441 (2000).
286. See supra notes 68–79 and accompanying text.
287. See Johnson, supra note 211, at 984 (asserting that in jurisdictions where the
mortgagor remains in possession of the property there is a risk that the property will lose
value due to neglect).
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no incentive to maintain the property.
288
In particular, foreclosure
laws that permit lost homeowners to retain possession of a
property for longer periods can create a problem with property
maintenance.
289
Conversely, there is little doubt that abandoned
properties are substantially worse for a community.
290
Thus,
maintaining homeownership and possession where foreclosure
likely will lead to a vacant property is a benefit to the
community.
This calculus takes on special significance in the current
environment where subprime lending is resulting in a
concentration of vacant properties in a community.
291
The
geographic concentration of subprime lending has resulted in an
overwhelming number of foreclosed properties in neighborhoods
with declining property values, which is overwhelming municipal
governments attempting to manage the rapidly increasing
number of vacant homes.
292
In such circumstances, keeping a
homeowner in a deteriorating property is a net benefit to
community stability if the alternative is a long period of vacancy.
VI. I
MPLEMENTING FORECLOSURE REFORM
AS HOUSING POLICY
This Article argues for two types of legislative reforms of
state foreclosure laws to promote the policy goals identified
above. The most direct and substantial reform to achieve these
goals is to bifurcate the foreclosure procedure into separate
processes for foreclosing loans to homeowners and foreclosing
loans to investors and commercial property owners. This Article
argues for shorter, less costly foreclosure procedures for investor
and commercial property, and longer foreclosure procedures with
extended reinstatement rights for homeowners. A corollary
proposal is that homeowners should be given incentives to avoid
waste to partly address situations where there is no reasonable
possibility of either maintaining homeownership or obtaining
equity.
A secondary recommendation is a legislative reform of notice
procedures to help homeowners better understand and manage
288. See Patrick A. Randolph, Jr., The Future of American Real Estate Law: Uniform
Foreclosure Laws and Uniform Land Security Interest Act, 20 N
OVA L. REV. 1115, 1117
(1996) (claiming that the longer a foreclosed property remains in the possession of the
defaulted mortgagor, the likelier it is that waste and deterioration will occur).
289. See id.
290. See supra notes 69–79 and accompanying text.
291. See supra notes 57–64 and accompanying text.
292. See supra note 79 and accompanying text.
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728 HOUSTON LAW REVIEW [45:3
their options in foreclosure. This Part also looks at options for
implementing the proposed changes, including the difference
between these proposals and uniform law efforts.
Some of these proposals would be considered “pro-lender”
and others “pro-borrower,” but they share a common purpose of
promoting sustainable homeownership and improved
neighborhood quality.
293
These goals might also be furthered by
other reforms, such as better coordination of local property
abandonment law and foreclosure law to reduce the public costs
of vacancies.
294
It is housing policy goals that should be the
driving force in evaluating foreclosure law reform.
A. Bifurcated Foreclosure by Property Type
Current foreclosure law generally is a one-size-fits-all
proposition.
295
The young woman who “invested” in ten
residential properties in North Minneapolis and then let them all
fall into foreclosure after her partners harvested the fruits of
financing is treated the same in foreclosure as a family that owns
a home and defaults when one of the parents loses a job due to
illness.
296
A separate foreclosure procedure for residential owner-
occupied property and other types of properties would allow for
the appropriate alignment of incentives to meet broader public
objectives. The disproportionate tendency of investor loans to
default, as well as the large and increasing share of investor
properties in foreclosure, provides urgency to this proposal.
297
1. Shorten the Foreclosure Process for Investment Property.
Both of the identified policy goals weigh in favor of expediting
foreclosure on residential investment or commercial property.
Allowing a lengthy foreclosure process can be justified as a
benefit to homeownership only if the borrower is a homeowner.
Owners of residential investment property and commercial
buildings do not improve homeownership rates by emerging from
foreclosure with title to their properties. Nor is there a public
interest reason to allow a statutory redemption period for
293. See, e.g., Halpern, supra note 263, at 125 (asserting that promoting
homeownership and neighborhood stability are central goals of a national housing policy);
Todd & Grover, supra note 141 (discussing efforts to increase homeownership rates
among minority and immigrant groups in Minnesota).
294. See V
ACANT PROPERTY, supra note 69, at 13; see also APGAR & DUDA, supra note
56, at 18–19.
295. See Johnson, supra note 211, at 959 (stating that in most states a mortgagor
who cannot pay his mortgage must enter into a foreclosure).
296. See id.
297. See supra notes 160–71 and accompanying text.
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residential investment property. From a public policy
perspective, even a successful redemption by the investor means
that a likely financially marginal investor retains the property.
Borrower protections in foreclosure laws provide property
investors the opportunity to own a residential property while
disinvesting in it.
298
A judicial foreclosure or other lengthy process
can leave the property in the control of the investor for an
extended period.
299
Unless the investor is maintaining the
property in order to sell it, the investor has little incentive to
make sure that the property is maintained during a lengthy
foreclosure process.
300
The investor likely will be able to collect
rent during the foreclosure procedure while avoiding such
investment, as described above with hypothetical investor Jones
in State A.
301
Assuming the property is not abandoned by all parties, there
are three types of possible owners after completion of the
foreclosure process: the lender or a junior lien holder; a new
investor; or a person intending to occupy the property as her
residence.
302
Any of these parties is likely better positioned, on
the whole, to help achieve public benefits than the defaulting
investor-owner.
303
A purchasing homeowner, while perhaps the
least likely outcome, would serve the public purpose of increasing
homeownership. A new investor seeking to earn income from the
property would have, at worst, no less incentive to maintain or
improve the property than the investor who let the property
proceed to foreclosure. And the investor able to gain financing is
likely a more substantial entity than the investor who defaulted
on the property. The third option is that the home becomes “REO
property,” a term used for property held by the lender following
foreclosure.
304
Although municipalities have had serious problems
with lenders in control of abandoned property, a lender is more
298. See Schill, supra 203, at 534 (asserting that antideficiency laws promote “moral
hazard on the part of the borrower” because once the borrower loses his equity he no
longer has any incentive to maintain the property; redemption laws create a “heightened
risk of waste”).
299. See Freyermuth, supra note 138, at 5 (stating the judicial foreclosure process
takes six months to a year in most states).
300. See Dale W. Cottam & Jack D. Edwards, Wyoming Foreclosure Law: Conforming
to the Broad Changes Made by House Bill 112, 6 W
YO. L. REV. 1, 27 (2006) (suggesting a
successful foreclosure bidder should refrain from improving the property until the
mortgagor’s redemption period is over).
301. See supra note 138.
302. See Stark, supra note 91, at 234–35.
303. See Schill, supra note 203, at 534 (asserting that once a borrower’s equity
disappears he has no incentive to maintain the property).
304. See R
AO ET AL., supra note 21.
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730 HOUSTON LAW REVIEW [45:3
likely to be a substantial entity with the resources and stability
to be held accountable for noncompliance with local regulation of
home appearance, such as lawn maintenance, and vacancy
control.
305
Finally, to the extent that an expedited foreclosure process
lowers lender costs and thereby results in any benefit to
borrowers in the terms of mortgage origination, this result would
reduce the costs of residential property ownership and benefit the
goal of quality housing. This is especially true given the evidence
that lender costs appear to be higher when foreclosing on
investor-owned property.
306
A shorter foreclosure period for
investors thus would promote either homeownership or rental
housing quality and community stability.
2. Lengthen the Foreclosure Process for Homeowners. This
Article argues for shortening the foreclosure period for investor
property, but for the opposite legislative change for
homeowners—longer foreclosure procedures through longer
reinstatement periods. As a corollary proposal, this Article
suggests that states replace redemption rights with a
reinstatement right.
a. Increasing Opportunity for Ownership Retention. Delay
is an end in itself for the foreclosed borrower. For homeowners
with the possibility of maintaining ownership, delay provides
opportunity. Homeowners who slip into mortgage default
through loss of a job have additional time to find new
employment. A drop in income and an increase in debt due to
illness may be rectifiable with time to heal. A homeowner in
these circumstances will also have more of a chance to obtain
refinancing after finding new work or otherwise increasing
income. Although the benefits of pro-borrower provisions have
been woefully understudied, there is some evidence of the
effectiveness of longer foreclosure periods in helping homeowners
avoid a completed foreclosure.
307
A higher percentage of
foreclosed homeowners retaining ownership clearly promotes the
305. See generally VACANT PROPERTY, supra note 69 (discussing the costs of vacant
properties to municipalities).
306. Capozza & Thomson, supra note 198, at 127.
307. Stark, supra note 91, at 243 (finding a twenty-one day period to redeem and an
eighteen day period to reinstate the loan deprives borrowers an opportunity to preserve
their equity in a property). In the 1994 cases in the Empirical Study, the median period to
redeem was four months, and in the 1993 cases the median period to redeem was nine
months. Id.
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sustainable homeownership goal that should be driving
foreclosure reform.
A more subtle benefit would occur from the incentives for
lenders to engage in a workout rather than complete the
foreclosure. As the study by Clauretie found, states with more
lengthy foreclosure procedures have lower foreclosure rates.
308
Lenders facing longer reinstatement periods for homeowners will
have more interest in pursuing options to avoid the foreclosure
process, including loan modifications and forbearance to retain
ownership for the defaulting homeowner.
309
Delay also works to the benefit of homeowners with home
equity wanting or needing to sell their homes.
310
In states with
rapid power of sale procedures, homeowners have less
opportunity to market the property.
311
In such states, the
homeowner must make a quick determination that selling the
property is the best alternative, find an agent to list the property
(or try to sell it herself), and hope that the property sells and
closes quickly enough to beat the foreclosure sale date.
312
An
impending foreclosure sale can make it harder to sell the home.
313
A lengthened foreclosure process combined with the suggested
reforms to notice procedures would allow homeowners a better
chance to sell their home prior to the public announcement of a
foreclosure sale.
314
b. Lengthen Restatement Periods. An extended
reinstatement period is the best method of creating opportunities
afforded to homeowners by delay. In all states, an extended
reinstatement period would mean more homeowners would be
likely to reinstate because of the lower barriers to a partial
refinance.
315
A homeowner seeking to maintain ownership would
have the best chance at new financing because the homeowner
would only need to arrange a junior lien loan to pay off the
amount of arrears, rather than obtain a refinance loan for the
full amount of the mortgage loan.
308. Id. at 242–43.
309. Id.
310. Id. at 232.
311. See Stark, supra note 18, at 685 (noting that a power of sale can be structured to
take only two to four months).
312. See Johnson, supra note 211, at 974–75.
313. See id.
314. See Stark, supra note 91, at 242–43 (asserting that federal legislation deprives
borrowers an opportunity to save their homes by only providing eighteen days to reinstate
the loan).
315. Id.
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732 HOUSTON LAW REVIEW [45:3
Consider an example. Assume a homeowner lives in a state
with a judicial foreclosure process that takes a minimum of ten
months after the initial foreclosure notice: New Jersey, for
example.
316
The first lien mortgage in foreclosure is at an 8%
interest rate. The homeowner has defaulted due to an extended
period of unemployment, but finds a well-paying job four months
into the foreclosure process. The homeowner now has the income
for a possible refinance and, due to the equitable right of
redemption in every state, has the right to pay off the entire
balance of the loan prior to completion of the foreclosure. But due
to her mortgage default, the refinance would be at a 13% interest
rate, which results in unaffordable monthly payments. A right to
reinstate would make it possible for the homeowner to obtain a
higher rate second mortgage to cure the arrears but retain the
lower cost primary mortgage. Homeowners simply avoiding the
crushing reality of foreclosure and who delay seeking help with
the problem also would benefit from the lower burdens imposed
by reinstatement.
A lengthy reinstatement period would be easy to implement
in most judicial foreclosure states by creating a statutory right to
reinstate until the time of the foreclosure sale, or shortly before
that date. Judicial foreclosure generally is preferred by advocates
for borrowers primarily because it creates delay.
317
The more
significant change would have to occur in most power of sale
states, where an extended reinstatement would mean
lengthening the existing foreclosure period.
318
For states with redemption periods, it especially makes
sense to replace redemption rights with a period for
reinstatement. Redemption periods force the homeowner with
options into a refinance of the entire loan balance while still
imposing the cost of delay on the lender.
319
Unlike the extension
of reinstatement rights in states with short foreclosure periods,
there is little cost to the lender involved in exchanging a
redemption right with a reinstatement right.
320
The length and
cost of the foreclosure process is the same. The two differences for
the lender are: (1) some homeowners will reinstate rather than
316. MORTGAGE DIRECTORY, supra note 19, at 1-199–203.
317. See Stark, supra note 91, at 232 (suggesting that borrowers prefer judicial sale
because the longer period of time gives a greater opportunity to redeem or reinstate).
318. Id. at 243 (suggesting that a longer reinstatement period would allow borrowers
to save their homes from foreclosure).
319. See Schill, supra note 203, at 496–97 (stating that mortgagor protection laws
create high costs but also give mortgagors time to recover from financial difficulty).
320. See Clauretie, supra note 203, at 547 (asserting that state laws which slow the
foreclosure process increase lender’s costs).
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 733
redeem; and (2) some homeowners will reinstate rather than let
the lender or a junior lien holder obtain full ownership and
possession rights at the end of the redemption period.
321
Increased reinstatements in place of redemptions may or may not
be considered beneficial from the lender’s perspective, depending
on whether the lender views the particular loan as profitable.
Yet, the lender will not suffer substantial loss on the loan and
thus sustains no significant burdens. The latter consequence,
reinstatements rather than homeownership loss, will be a benefit
to the lender if the property is worth less than the loan amount
plus lender resale costs.
322
If the property has a surplus that
could be realized by the lender or a junior lien holder,
reinstatement will deprive the lender of that benefit, but this
surplus should belong to the homeowner in any case.
An additional advantage of replacing the redemption period
with reinstatement is that it will make the foreclosure sale
potentially more meaningful for the occasional borrower who
maintains equity in the home at the end of the foreclosure process.
In a state with a redemption period, the incentives align to make it
inevitable that the lender will almost always make a successful
credit bid of the amount owed at the foreclosure sale.
323
The
homeowner then either redeems the property or loses any
possibility of retaining equity at the end of the process. Eliminating
the redemption period in favor of reinstatement would move the
sale to the end of the foreclosure process and afford the possibility of
the homeowner retaining some equity after the sale.
3. Objections to Extended Reinstatement Rights for
Homeowners. Commentators have questioned whether
homeowners should receive any preference in foreclosure
procedures.
324
Common objections to extending the length of the
foreclosure procedures for homeowners are the costs imposed on
lenders by delay and the possibility of waste to the property
during an extended foreclosure period.
325
This Section addresses
these objections.
321. Stark, supra note 91, at 234 (explaining that the mortgagor has both the right to
redemption and the right of reinstatement).
322. Ambrose & Capone, supra note 146, at 106–09 (setting forth the instances in
which lenders will consider foreclosure alternatives).
323. See Nelson & Whitman, supra note 91, at 1423 (exhibiting how foreclosure sales
will frequently only fetch “full credit bids”).
324. Les Christie, Major Lenders Put Freeze on Foreclosures, CNNM
ONEY.COM, Feb.
12, 2008, http://money.cnn.com/2008/02/12/real_estate/foreclosure_freeze/index.htm.
325. See Pence, supra note 203, at 177 (indicating that lenders in states with friendly
mortgagor laws have higher costs).
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734 HOUSTON LAW REVIEW [45:3
a. Disinclination to Preferences for Homeowners. Although
no state has a wholly distinct foreclosure process for residential
homeowners, a few state foreclosure laws have some additional
rights that apply only to these borrowers.
326
The most recent
uniform law proposal, the UNFA, has a variety of provisions that
only apply to residential debtors, including additional notices and
the right to request a meeting with the lender to raise objection
to the foreclosure.
327
Scholars have generally treated the notion of protections for
homeowners as a cheap trick of political expediency.
328
Johnson
states that foreclosure laws designed to best enable protection of
homeowner equity are motivated by politicians who engage in
“castigating banks and financial institutions for profiting on the
misery of poor, desperate homeowners . . . [who] vote.”
329
Nelson
and Whitman, although less cynical, generally are not
sympathetic to treating residential homeowners differently than
investors in rental property or owners of commercial property:
It is not entirely clear that there is a sound basis for this
distinction between residential and commercial
debtors. . . . But the political appeal of providing extra
protections to residential borrowers cannot be denied.
There are a large number of residential borrowers, and they
vote. . . . UNFA contains a number of special protections for
residential borrowers, many of which were included with an
eye toward “enactability.” In essence, these provisions make
the Act more politically attractive. This is not to say that
the special protections lack a sensible policy basis. On the
contrary, perfectly plausible arguments can explain most of
them.
330
These objections to, or lukewarm sentiments toward,
different protections for homeowners reflect a view of foreclosure
law as designed solely to balance competing interests between
borrowers and lenders; specifically, a lender’s interest in the
most cost-effective means of selling its collateral and a borrower’s
interest in obtaining any equity remaining in the property.
331
326. See Nelson & Whitman, supra note 91, at 1447 (noting example state
foreclosure laws with protections for residential homeowners).
327. See UNFA, supra note 96, at 7–8.
328. See Johnson, supra note 211, at 960 (suggesting that historical data exists
showing political reaction to the economy of the times).
329. Id. But see Schill, supra note 203, at 515–16 (setting forth the notion that
owners need protection based on worse information / risk assessment).
330. See Nelson & Whitman, supra note 91, at 1447–48.
331. See Stark, supra note 18, at 660–61.
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2008] AN APPROACH TO FORECLOSURE REFORM 735
The argument in this Article proceeds from a different
premise—that the structure of the foreclosure process affects
social outcomes, and that the law should be constructed to
promote national housing goals, as well as reflect the normative
preference of each state in balancing borrower and lender
interests. Homeowners do not have to be portrayed as more
innocent of misconduct than lenders to justify a foreclosure law
that provides homeowners more rights. Greater rights for
homeowners under foreclosure law, as opposed to investors,
benefits our collective interests in sustainable homeownership
and community quality. As a policy matter, elected officials act
consistently with public policy goals when providing greater
rights to homeowners in foreclosure, whatever their motivations.
b. Costs of Lengthy Reinstatement Rights. Longer
foreclosure periods mean costlier foreclosures for lenders.
332
The
delay created by a longer reinstatement period undoubtedly
increases the costs of the foreclosing lender in states with more
rapid foreclosure processes.
333
Economists and legal scholars tend
to frame the issue as weighing the impact of increased
foreclosure costs on new mortgage loan originations against
benefits to homeowners attempting to preserve ownership or
equity in foreclosure. At best, this is a question that might be
substantially informed by empirical research. Current research is
inconclusive on the effects of foreclosure law on mortgage
origination and almost nonexistent on the benefit of borrower
protections in preserving homeownership.
This cost-benefit analysis misses an important gain from
higher foreclosure costs in cases involving homeowners.
Particular lending practices, especially with recent subprime
lending, are known to be associated with increased
foreclosures.
334
Higher foreclosure costs provide incentives to
332. Some borrowers arguably might abuse the reinstatement right by repeatedly
entering foreclosure and then reinstating the loan near the end of the foreclosure process.
Borrowers with any equity or interest in building equity in the property have little
incentive to engage in this practice because the costs of foreclosure are substantially
shifted to the borrower. In any case, legislatures can limit the right of reinstatement or
redemption to prevent repeated use by a borrower. Some states have such a provision
limiting the right of reinstatement or redemption. See, e.g., A
LASKA STAT. § 34.20.070(b)
(2006) (limiting right of reinstatement in Alaska to two opportunities).
333. This objection is true only in power of sale states without a long redemption
period; in other words, in states with a short foreclosure process for homeowners. In
states with judicial foreclosure or long redemption periods, extending the statutory right
to redeem will not impose the costs of delay.
334. See supra notes 43–44 and accompanying text.
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736 HOUSTON LAW REVIEW [45:3
lenders to avoid or limit practices that result in foreclosure.
335
This calculation is already occurring as to mortgage origination
practices in the subprime industry,
336
and increased foreclosure
costs will provide further disincentives to engage in practices
likely to lead to foreclosure.
337
If higher foreclosure costs
adversely affect loan origination practices so as to slightly
restrict credit availability and homeownership, then higher
foreclosure costs logically would restrict lending practices most
likely to result in foreclosure.
338
Such a result benefits the goal of
sustainable homeownership.
Return to Karen Pence’s assertion that longer foreclosure
procedures are “foreclosing opportunity” for mortgage borrowers
in judicial foreclosure states by reducing loan amounts.
339
Even if
Pence is correct that longer foreclosure periods result in a slight
aggregate decrease in mortgage loan amounts, this consequence
could just as likely be a healthy outcome for sustainable
homeownership.
340
Subprime loans for the full amount of the
market value of the house, known as 100% loan-to-value
mortgages, have been strongly associated with foreclosure risk.
341
If longer or most costly foreclosure procedures result in greater
prudence by lenders as to the type of loans that are more likely to
end in foreclosure, that result is a social benefit from “pro-
borrower” foreclosure provisions.
342
Additional loan volume is not
a justification for allowing lenders to impose on society the costs
of mortgage lending failure.
c. The Problem of Waste and Homeowner Incentives.
Another objection to longer reinstatement periods is that lost
homeowners will have no incentive or capacity to maintain their
homes during this extended foreclosure period. Ideally,
335. Brendan McDonagh, CEO, HSBC Fin. Corp., Testimony Presented to the Senate
Committee on Banking, Housing, and Urban Affairs (Mar. 22, 2007) (transcript available
at http://banking.senate.gov/public/_files/mcdonagh.pdf).
336. See Z
ELMAN ET AL., supra note 45, at 56.
337. See id. at 1.
338. See id. at 6.
339. See Pence, supra note 203, at 177–180.
340. Id. at 180.
341. See Z
ELMAN ET AL., supra note 45, at 1; see also Dale Westhoff, Senior Managing
Dir., Bear Stearns, Subprime Spillover, Presentation at JPMorgan Conference, Repricing
Subprime Mortgage Credit: Assessing the Fallout (Mar. 9, 2007).
342. See Governor Edward M. Gramlich, Subprime Mortgage Lending: Benefits,
Costs, and Challenges, Remarks at the Financial Services Roundtable Annual Housing
Policy Meeting (May 21, 2004) (transcript available at http://www.federalreserve.gov/
boarddocs/Speeches/2004/20040521/default.htm) (“[F]urther social benefits would result if
various institutions could agree on and implement changes that would lower
foreclosures.”).
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 737
homeowners entering foreclosure could be sorted efficiently into
one of the three primary categories previously described: those
with a reasonable chance to maintain ownership; those with
equity but no chance to maintain ownership; and lost
homeowners. The lost homeowners could be foreclosed through
an expedited procedure.
343
Unfortunately, this triage exists only
in theory, as there is no cost-effective and fair means for such a
sorting determination. Providing incentives to such homeowners
for early termination and loss mitigation would ameliorate this
concern.
Several scholars have suggested addressing the problem of
lost homeowners through a form of mandatory sorting, typically
by appraisal that would separate homeowners with equity from
those without equity.
344
This proposal fails to address either the
limits of the sorting mechanisms or the costs and fairness of the
procedure.
Homeowners who owe more than the fair market value of
the house may still have both personal and economic reasons for
attempting to maintain ownership of their homes.
345
Personal
attachments to the home or community motivate some
homeowners to maintain ownership even if the rational financial
choice is to abandon the property.
346
Homeowners also have
economic reasons for trying to maintain homes in which they
have no equity. A homeowner very likely will not be able to
obtain financing for a new home after his or her credit is
seriously damaged by the foreclosure.
347
Losing the home in
foreclosure means little possibility of homeownership for years.
348
Unless the sorting mechanism includes the daunting task of
evaluating a homeowner’s ability to payoff, reinstate, or redeem
the home, sorting by equity will mean the loss of ownership for
343. While it may make sense in a normal period of mortgage financing to shorten
the foreclosure period for homeowners with no equity and no chance to maintain the
home, homeowners caught in the subprime mortgage meltdown likely present an
exception. Such homeowners were so often the victim of unfair or predatory lending, it
can be argued that states should not be allowing routine foreclosure of all such mortgages.
344. See supra notes 213–34 and accompanying text; see also Jacoby, supra note 90,
at 331–38 (suggesting that Chapter 13 could be a base model for such a sorting system).
345. D
ESIREE HATCHER, FORECLOSURE ALTERNATIVES: A CASE FOR PRESERVING
HOMEOWNERSHIP 2 (2006), available at http://www.chicagofed.org/community_
development/files/02_2006_foreclosure_alt.pdf (detailing effects of foreclosure on
homeowners).
346. T
HERESA A. SULLIVAN, ELIZABETH WARREN & JAY LAWRENCE WESTBROOK, THE
FRAGILE MIDDLE CLASS: AMERICANS IN DEBT 203, 230–31 (2000).
347. See H
ATCHER, supra note 345, at 2.
348. Also, transaction costs change the calculus of equity in the home. The cost of
moving and other relocation expenses makes it economically rational for some
homeowners to attempt to save a home.
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738 HOUSTON LAW REVIEW [45:3
homeowners who could have saved their homes in foreclosure
despite having little or no equity in the home.
The appraisal sorting proposals have a second problem. The
costs of using an independent party to sort borrowers are not
given much consideration in these proposals. Homeowners
presumably would be given the right to object to the value
determination, thus further increasing the costs of the procedure.
The right to object is especially important if the appraisal is
conducted at the direction of the foreclosing lender. Inaccurate
appraisals and lender conflicts of interest in pressuring
appraisers have been a subject of concern with the recent
subprime lending problems.
349
It is possible to mitigate some of the consequences resulting
from lost homeowners in foreclosure. The UNFA provides a well-
considered approach to the problem of waste with these
homeowners.
350
It permits an action for a deficiency judgment
against a homeowner only if the lender can establish that the
debtor did not act in good faith and that this conduct by the
debtor caused “significant loss or damage to the foreclosing
creditor or the collateral.”
351
A presumption of lack of good faith
can be established by the lender proving that the homeowner
failed to peaceably vacate the property, failed to take precautions
against damage to the property by others or by natural causes, or
three other express circumstances.
352
While the value of this
provision for lenders may be limited by the necessity to bring an
action and prove certain conduct by the homeowner, the
existence of the duty might provide homeowners an incentive to
take actions to prevent waste to the property.
353
Another approach to this problem would be to put the
burden on the homeowner to obtain the right to an extended
reinstatement period. A homeowner could be required to file a
form indicating that she occupies the home as a primary
residence and that she is actively seeking to cure the default or
arrange a solution to the foreclosure. A more stringent model
could tie the extended reinstatement right to a certification by a
licensed foreclosure prevention counselor that the homeowner
has a plan that has a realistic possibility of succeeding in
349. See STATE FORECLOSURE GROUP, supra note 130, at 5; Federal Reserve Board
Proposed Rule Comment, 73 Fed. Reg. 1671, 1700–02 (proposed Jan. 9, 2008) (discussing
widespread concerns with coercion of appraisers in home mortgage lending).
350. See UNFA, supra note 96, at 2.
351. Id. at § 607(b)(2).
352. Id. at § 607(c).
353. Id. at § 607 cmt.
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2008] AN APPROACH TO FORECLOSURE REFORM 739
preventing the completion of the foreclosure. Adopting a burden
on homeowners to secure extended rights would require careful
attention to effective notice procedures and available
independent counseling assistance.
4. Defining Property Types in a Bifurcated System.
Bifurcating foreclosure laws in the manner proposed here raises
the practical issue of creating a workable definition of the
different property types. The lender must be able to effectively
identify owner-occupied homes among the properties it seeks to
foreclose. Although numerous states have some form of specific
protections or rights afforded to homeowners with accompanying
definitions, the UNFA provides a good starting point. It provides
homeowner protections for an individual who owns a one-to-four
unit property that “is used or is intended by its owner to be used
primarily for . . . personal, family or household purposes.”
354
A problem with the UNFA definition is that it defines the
personal use limitation in terms of the situation or intent of the
owner at the time the mortgage is originated.
355
The UNFA
definition provides a discernible bright line for the foreclosing
lender, but fails to capture borrowers who start out as
homeowners and later convert the property to rental, investors
who later convert the property to their residence, or borrowers
who purposefully deceive the lender about the occupancy status
at loan origination.
356
This omission could be remedied by
allowing the borrower or the lender to provide a notice that the
property’s use has changed since the use designated at
origination. This notice procedure could be accompanied by an
appeal procedure and consequence for bad faith use or appeal,
such as penalties and attorney’s fees, or even criminal sanctions.
B. Notices to Homeowners
Foreclosure notice procedures would be generally
recognizable to real estate attorneys from the 1930s. Legislative
change could make the system more transparent and
understandable to homeowners, and increase the likelihood they
could preserve their ownership. This section proposes two
354. Id. at § 102 (16)–(17). The UNFA definition is somewhat broader in that it
includes property owned by an artificial entity, such as a trust or corporation, if the entity
is controlled by the individual who otherwise would qualify as a residential debtor. As the
Comment to section 102 correctly notes, “personal, family or household use” is a
commonly used phrase in both federal and state consumer protection laws. See id. at 16.
355. See id. at 11.
356. See Nelson & Whitman, supra note 91, at 1449.
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740 HOUSTON LAW REVIEW [45:3
changes in notice procedure. First, the timing and content of
notices should be constructed to disclose useful information to
homeowners, such as sources for homeowner assistance. Second,
there should be a delay in initial public notice of foreclosure to
allow for homeowner education prior to solicitation by foreclosure
buyers.
1. Plain Language Homeowner Assistance Notices. The
current system of notice service and advertisement requires or
permits notices that are incomprehensible to many
homeowners.
357
Foreclosure notices often contain lengthy legal
descriptions of the property but omit the street address, use
terms like “mortgagee” or “pursuant,” and generally make little
sense to most homeowners, or are intimidating to them. Even the
exemplar model Notice of Default under the UNFA, which would
not be a required format or language under the uniform law, is
less than easily digestible for unsophisticated homeowners.
358
More importantly, homeowners entering foreclosure need to
know more than that they are in foreclosure. They need to know
all of their options for confronting the possible loss of their home,
including the possibilities of a loan workout. Half or more of
homeowners in foreclosure are unaware of basic options available
to them.
359
Foreclosure laws should be reformed to require
lenders to send multiple informational notices to homeowners
facing foreclosure.
A simple and prominent series of notices directing
homeowners to a listing of such services could be of practical
assistance for many.
360
Homeowners could be sent information
outlining the potential for loan workouts, contact information for
pursuing a loan workout, the steps of the foreclosure process in
that state, and options typically available to homeowners. Even if
counseling services are not readily available in the area in which
the home is located, this information could be useful to
357. George Hathaway, Plain English in Real Estate Papers, 72 MICH. B.J. 1308,
1310 (1993) (criticizing foreclosure notices for not being written clearly).
358. See UNFA, supra note 96, at § 202. For example, a part of the model Notice of
Foreclosure states: “If completed, the foreclosure will terminate your rights in the
property unless First Financial Corp. elects to send you a notice stating that your rights
are being preserved.” Id. at 44.
359. See supra notes 180–82 and accompanying text.
360. Minnesota, for instance, has since 2004 required a single “foreclosure advice
notice” be provided with every communication about the foreclosure sent to a residential
owner-occupant. M
INN. STAT. ANN. § 580.041 (West 2000 & Supp. 2008). The notice must
contain statutorily required language, be on its own page of separately colored paper, and
conform to other requirements for prominence of disclosure. Id.
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 741
homeowners in determining their options in foreclosure.
361
Unlike
origination of the mortgage, when the homeowner is
overwhelmed with paper and the disclosures seem of remote
consequence, some homeowners in foreclosure are intently
focused on the documents received during the process. This
information could be provided in the form of a DVD with multiple
language options, as a brochure or booklet, or as a series of
individual notices.
These notices could be timed to meet the likely needs or
issues facing homeowners at the time in the foreclosure process
that the notice is delivered. For instance, if the UNFA deficiency
judgment provisions were enacted, some of the notices in the
latter part of the foreclosure process could be targeted to
describing the disincentives for homeowners to allow or engage in
property destruction or deterioration.
Simple, repetitive, and timely notices designed to direct
homeowners to counseling assistance or informing them of their
options in foreclosure would impose no significant costs on the
foreclosing lender. By improving the chances that a homeowner
would understand her rights or seek assistance in negotiating
the foreclosure process, such notices would promote sustainable
homeownership with little costs to any other housing policy
goal.
362
2. Nonpublic Notice of Default to Public Entities. The
second suggested reform of foreclosure notice requirements is
aimed at engaging public entities and non-profit organizations in
the process and at protecting the homeowner from fraud.
Foreclosing lenders should be required to file notices of default
with an appropriate public entity, but public disclosure of these
notices should be delayed.
While the current notice system varies tremendously by
state, almost all states require some form of public recording or
advertisement of the foreclosure prior to the sale. In many power
of sale states, this notice is the first public record of the existence
of the foreclosure. The proposed notice system in the UNFA
361. See U.S. Department of Housing and Urban Development (HUD), Tips for
Avoiding Foreclosure, http://www.hud.gov/foreclosure/index.cfm (last visited Sept. 5,
2008).
362. Notices during the foreclosure process must also serve the formal legal purpose
of ensuring that borrowers are made aware of the existence of the action. See Mattingly,
supra note 97, at 92–94. In a judicial foreclosure state, such foreclosure notices must
contain information that would allow an attorney for the borrower to defend. While
important for the few homeowners who can obtain counsel, there is little practical value
to a homeowner.
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742 HOUSTON LAW REVIEW [45:3
includes a Notice of Default and right to cure followed no less
than thirty days by a publicly recorded Notice of Foreclosure.
363
In judicial states, the foreclosure action is initiated by a public
court filing.
364
In all states, public or nonprofit counseling
agencies, whose purpose is to assist homeowners, receive no
advance notice of the foreclosure before public recording or
advertisement of the foreclosure proceeding unless the
homeowner seeks out such assistance while in default but prior
to initiation of foreclosure.
Lenders could be required to file the Notice of Default with a
designated public entity when homeowners reach sixty or ninety
days delinquent on their mortgages.
365
The public entity would
hold the notice for days or weeks prior to publicly recording the
notice or otherwise making the fact of default available to the
public. For states that are interested in developing a
comprehensive strategy to ameliorate the current wave of
foreclosures, this early notice would allow public agencies to
directly contact homeowners or provide the information to
nonprofit counseling agencies. Consumer-friendly notices to
homeowners from a source other than the lender may prompt a
certain percentage of them to contact their lender to explore a
workout or seek counseling assistance. Early intervention by
counseling agencies could have an impact on homeownership
retention rates.
An important component of this early notice system would
be the delay between this notice and public access to information
about homeowners in foreclosure.
366
Homeowners in foreclosure
are besieged by direct mail, phone calls, and personal
solicitations as soon as the foreclosure becomes public. A
substantial problem for homeowners with equity is falling victim
to a foreclosure rescue scam perpetrated by one of these solicitors
and losing both title to the property and the remaining equity.
367
At least five states have passed laws in the last three years
designed to severely restrict transactions with foreclosed
363. UNFA, supra note 96, at § 202.
364. N
ELSON & WHITMAN, supra note 100, at 559–60.
365. States could also require that the notice be filed electronically and include some
basic information about the homeowner, if known to the lender, such as the amount of the
loan balance and arrearage. A more sophisticated program might include solicitations in
the language of the homeowner or targeted solicitations based on the data from the lender
and public records that would provide a gauge of whether there is equity in the property
or the likelihood of a workout arrangement.
366. This proposal would impact and may require changes in each state’s data
practices laws to clarify the public or nonpublic status of the filed foreclosure notice data.
367. R
AO ET AL., supra note 21, at § 15.1, §§ 15.2.1–2.3; Cox, supra note 191, at 607.
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 743
homeowners that usually lead to this result.
368
Providing public or
nonprofit agencies a period of advance notice could help educate
homeowners about the dangers of foreclosure rescue scam
solicitations.
369
C. Implementation of Foreclosure Reform
The history of foreclosure reform is a series of failed
attempts to enact uniform laws generally designed to make
foreclosure less costly for lenders and improve sale procedures.
370
A decentralized and public policy-based approach is more likely
to be enacted, as well as be better designed to achieve results
that will promote housing policy goals.
Numerous commentators have advocated uniformity in
foreclosure procedures to accompany the increasing national or
even global character of real estate finance markets.
371
Writing in
1996, Patrick Randolph Jr. stated: “Political and market
conditions now indicate that we will have universal private
foreclosure laws across the nation in the relatively near future.”
372
Twelve years later, the “near future” of 1996 has not remotely
taken shape.
373
Uniform foreclosure law efforts, such as the ULSIA and
UNFA, ask too much of state elected officials. For most states,
uniform laws require the abandonment of existing foreclosure
procedures familiar to those involved in matters of local real
estate, including realtors, real property attorneys, the courts, and
others.
374
The promoted advantage of this radical reform is that it
will be more efficient for lenders to foreclose and that national
uniformity will reduce the costs of lenders engaged in
368. See Johnson, supra note 211, at 961. Adopting changes to foreclosure notice
procedures would be part of a comprehensive legislative structure for controlling
foreclosure equity stripping.
369. Another advantage of this proposal is that it provides homeowners with equity
who are attempting to sell the property more time do so before potential buyers are aware
that the homeowner is in foreclosure—a fact which can discourage buyers and depress
prices.
370. See supra note 96.
371. See Nelson & Whitman, supra note 91 at 1415; see, e.g., Ann M. Burkhart, Real
Estate Practice in the Twenty-first Century, 72 M
O. L. REV. 1031, 1036 (2007).
372. See Randolph, supra note 288, at 1110.
373. Uniform Law Commissioners Facts, A Few Facts About the Uniform
Nonjudicial Foreclosure Act
(2002), http://www.nccusl.org/Update/uniformact_factsheets/
uniformacts-fs-unfa.asp (last visited Sept. 5, 2008) (indicating that no states have adopted
the UNFA).
374. See Randolph, supra note 288, at 1112. Today, these institutions, including title
insurers, local lenders, appraisers, and brokers, regard with suspicion and distrust
proposals for sweeping reforms that would do away with the many specialized rules.
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744 HOUSTON LAW REVIEW [45:3
securitization of mortgages.
375
Local pain for alleged global gain is
rarely a recipe for substantial law reform.
There are other barriers to a national policy of foreclosure
reform. Regulation of real estate is a quintessentially local
matter. Globalization in the secondary market for United States
real estate finance investments does not change the reality that
the secured property sits permanently in a locale. It is the local
sheriff’s office that will ultimately evict some of the homeowners
who cannot escape foreclosure. The current wave of foreclosures
driven by securitized subprime loans provides little incentive to
elected officials to ease the burden on lenders from varying state
foreclosure laws while local communities are attempting to cope
with the community devastation wrought by the practices of
these lenders.
Many state legislatures are grappling with foreclosure law
reform as states face this explosion of foreclosures.
376
A state
could adapt pieces of the proposals in this Article and the UNFA
as they fit the unique configuration of foreclosure procedures and
protections, as well as the normative preferences, of that state. A
state with a history of borrower protections, like Illinois, may
want to adopt more rapid foreclosure for property investors, yet
include small businesses or farmers along with residential
homeowners in the group benefiting from longer foreclosure
procedures. A state more familiar with a rapid power of sale
procedure and no redemption period, like Texas, may want to
extend reinstatement rights for homeowners for a short period,
perhaps an additional three months, and offer only a partial
deficiency protection for early foreclosure termination. In short,
an incremental approach to foreclosure reform is more likely to
lead to reforms that make a difference for public policy goals that
are affected by state foreclosure laws.
VII. C
ONCLUSION
Foreclosure law affects individual borrowers and lenders,
but it also makes a difference in how our communities cope with
the collapse of subprime mortgage lending. This Article focuses
on sustainable homeownership and community stability and
quality as outcomes that should drive changes to foreclosure
375. See Nelson & Whitman, supra note 91, at 1399.
376. Office of State–Federal Relations, Nat’l Conf. of State Legislatures, Floor Alert
(May 6, 2008), http://www.ncsl.org/statefed/FloorAlert_Mille_LaTouretteAmendment.htm
(urging state legislative support for a bill which would curb abusive foreclosure practices);
see also Nicholas Confessore & Jeremy W. Peters, A Plan to Help Stem Foreclosures, but
No Moratorium, N.Y.
TIMES, June 20, 2008, at B3.
(2)COX 9/20/2008 3:02 PM
2008] AN APPROACH TO FORECLOSURE REFORM 745
laws. Bifurcating foreclosure procedures, with greater protections
for residential owner-occupants and an expedited process for
foreclosing investor-owned property, would promote both
sustainable homeownership and community quality. Improving
notice procedures for homeowners in foreclosure would increase
the likelihood of borrowers maintaining ownership.
The devastation caused by a decade of escalating subprime
lending will force foreclosure reform onto the agenda of state
legislatures. That debate should proceed from a policy basis that
focuses on the consequence of changes for our shared concerns
with housing quality and ownership. National housing policy
goals, however construed, should drive foreclosure law reform.
