Law Commons^™

Facing The Facts: An Empirical Study Of The Fairness And Efficiency Of Foreclosures And A Proposal For Reform, Debra Pogrund Stark

Debra Pogrund Stark

Lenders view real estate foreclosures as too expensive and time consuming a process which needlessly increases the costs of making loans. Others complain that the foreclosure process fails to adequately protect the borrower's equity (the value of the property in excess of the debt secured by the property) in the mortgaged property.

This article tests these views by gathering new data on the fairness and efficiency of the foreclosure process. Based on the data collected (which confirms some assumptions but disproves others), the author proposes a reform of the foreclosure process to promote the interest of both lenders and borrowers. …

Consumer Bitcredit And Fintech Lending, Christopher K. Odinet

Christopher K. Odinet

Super Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Christopher K. Odinet

In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used …

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Christopher K. Odinet

Absolute Conveyance As A Mortgage In Iowa, Doug Rendleman

Doug Rendleman

None available

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Should The Mortgage Follow The Note?, John Hunt

John P Hunt

The law of mortgage assignment has taken center stage amidst foreclosure crisis, robosigning scandal, and controversy over the Mortgage Electronic Registration System. Yet a concept crucially important to mortgage assignment law, the idea that “the mortgage follows the note,” apparently has never been subjected to a critical analysis in a law review.

This Article makes two claims about that proposition, one positive and one normative. The positive claim is that it has been much less clear than typically assumed that the mortgage follows the note, in the sense that note transfer formalities trump mortgage transfer formalities. “The mortgage follows the …

Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan

Donald J. Kochan

Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down. Leading up to the crisis, as securitization became vogue and the housing boom blurred …

Park's Cases On Mortgages, Robert C. Brown

Dr Robert Brown

No abstract provided.

Toward A Convention For The International Sale Of Real Property: Challenges, Commonalities, And Possibilities, Christopher K. Odinet

Christopher K. Odinet

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

The Debt Financing Of Parenthood, Melissa B. Jacoby

Melissa B. Jacoby

In this contribution to the symposium Show Me the Money: Making Markets in Forbidden Exchange, I explore an under-appreciated participant in the assisted reproduction and adoption industries: consumer lenders. Through fertility clinics and other service providers, financial institutions market and distribute loans specifically to finance acquisition of treatments, drugs, and human eggs. Adoption foundations and agencies advertise for-profit loans to intended parents, while small foundations offer adoption loans that appear to be low-cost financially but may condition loan approval on intended parent characteristics such as religious observance, marital status, sexual orientation, and adherence to traditional gender roles. After discussing how …

Home Mortgage Problems Through The Lens Of Bankruptcy, Melissa B. Jacoby

Melissa B. Jacoby

Based on a lecture at a predatory lending conference at Loyola University New Orleans School of Law, this brief paper discusses the 2007 Consumer Bankruptcy Project and how the empirical study of bankruptcy law informs our understanding of the intersection of mortgages and homeownership with financial distress, and whether bankruptcy can provide meaningful redress.

Lashed To The Mast And Crying For Help, Kurt Eggert

Kurt Eggert

This article is an attempt to solve one of the central conundrums of consumer protection and the protection of elders: how to provide protection to those consumers and elderly who need it without unduly restricting the rights and freedom of those who do not need or want the limitations of autonomy that added protection might bring. The article starts by analyzing autonomy itself and how philosophers and others have defined and described autonomy. Autonomy does not consist of mere lack of restraints or in a multiplicity of options. Instead, a crucial element of autonomy is the ability to make considered …

Held Up In Due Course: Predatory Lending, Securitization, And The Holder In Due Course Doctrine, Kurt Eggert

Kurt Eggert

This second article of a two-article set analyzes the conjunction of the holder in due course doctrine, securitization of residential mortgages and predatory lending. Predatory and deceptive lending, widely documented in the media and in Congressional and regulatory hearings, is the practice by unscrupulous lenders of originating loans at above-market rates through deceptive practices or undue influence or by taking advantage of the ignorance, desperation, or susceptibility to fraud of borrowers. These lenders have been targeting primarily elderly, poor and minority borrowers throughout the country. Even worse, these practices have been funded by Wall Street. This article explains how predatory …

Held Up In Due Course: Codification And The Victory Of Form Over Intent In Negotiable Instrument Law, Kurt Eggert

Kurt Eggert

This first article of two articles on the holder in due course doctrine traces the history of the development of negotiable instrument law and the changing roles that the form of the instrument and the intent of the maker play in that law. The article describes the forgotten role that the intent of the maker of a note originally played in the development of negotiable instrument law. Almost universally, scholars have concluded that the codification of negotiable instrument law did not significantly change the common law regarding negotiability, but merely preserved it. Instead, this article shows that the codification of …

A Mortgage By Any Other Name: A Plea For The Uniform Treatment Of Installment Land Contracts And Mortgages Under The Bankruptcy Code, Juliet M. Moringiello

Juliet M. Moringiello

No abstract provided.