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Law Library Blog (February 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Note: City Of Oakland V. Wells Fargo Co.: Examining The Proximate Cause Standard Under The Fair Housing Act, Ava Lau-Silveira

Golden Gate University Law Review

The Financial Services Modernization Act of 1999 partially deregulated the financial industry under the premise of helping “everyone attain the American dream of home ownership.” In 1999, the “Fannie Mae” made subprime mortgage loans readily accessible to those who normally would not qualify. People in Oakland, who “used to find it difficult to obtain mortgages,” were suddenly able to obtain mortgage loans, but with subprime terms, which started with low monthly payments, but would increase based on changes in the market interest rates. By 2008, subprime borrowers began defaulting on their loans at an unprecedented rate.

During the 2008 mortgage …

Non-Debt And Non-Bank Financing For Home Purchase: Promises And Risks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the phenomenon of the NDNBs in home purchase and finance that has gained a growing presence in the mortgage marketplace since the 2008 crisis. Part II offers a deeper discussion of the risk-prone practices leading to the 2008 housing crisis and the regulatory and industry responses for recovery. Parts III and IV describe the emerging new models of home purchase. Part IV explores some of the apparent and hidden risks in these transactions. Part VI concludes with suggestions for assessing and managing risks and for reforms.

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review (2017-Present)

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The Court …

Klaim Asuransi Pesawat Udara Sewa Guna Usaha (Operating Lease) Sebagai Objek Jaminan Fidusia, Sukarmi Sukarmi, M. Sudirman, Dwi Egawati

Jurnal Hukum & Pembangunan

Airlines in the process of procurement of an Aircraft, one of which is through Operating Lease with the Leasing Company. The Leasing Company (Lessor) in purchasing an Aircraft with funding mechanism from the Bank shall encumber the Aircraft with a mortgage as its securities. In the Aircraft Lease Agreement, Insurance Claim over the Aircraft shall also be encumbered with fiduciary by Airlines. Nevertheless, under Article 10 paragraph b Law of The Republic of Indonesia Number 42 of 1999 on Fiduciary (hereinafter referred to as UUJF) states that unless otherwise agreed, Fiduciary includes the Insurance Claims in the event that the …

Yesterday I Was Lying: Creeping Preclusion Of Reciprocal Fee Awards In Residential Foreclosure Litigation, Eric A. Zacks, Dustin A. Zacks

St. John's Law Review

(Excerpt

As a result of the high volume of foreclosure litigation in the wake of the Great Recession, scholars have explored several outgrowths of the foreclosure crisis, developing a burgeoning body of research. Scholars and commentators have authored studies about a wide variety of foreclosure-related topics, ranging from the disparate racial effects of the housing crisis to the many legislative and court-instituted policies enacted to ameliorate the harsh reality faced by financially distressed homeowners, all the way through books examining the aftermath of the crisis and lessons learned from the entire experience.

Our previous contributions to this evolving body of …

Path To Destruction: Cook County's Property Tax System Is A Cause For Concern As It Mimics The Defunct Taxing Procedures That Led To The Detroit Foreclosure Crisis, Robert Romano

Chicago-Kent Law Review

For decades, Cook County, Illinois, has had one of the highest property tax rates in the country, and as a result the County has begun to experience unprecedented foreclosure rates which has contributed, in part, to the State’s significant population decline. Residents are forced to endure a property tax system that disproportionately burdens low-income homeowners, while providing tax breaks to higher-income individuals and commercial owners. The primary causes and characteristics of Cook County’s defunct property tax system are strikingly similar to those that sent the City of Detroit spiraling into bankruptcy in 2013.

This note provides a comparative analysis of …

By Any Means: How One Federal Agency Is Turning Tribal Sovereignty On Its Head, Clifton Cottrell

American Indian Law Journal

No abstract provided.

Crossing The Line: Prime, Subprime, And Predatory Lending, Nathaniel R. Hull

Maine Law Review

The cornerstone of the “American Dream” has long been marked by the purchase of a home. Most families cannot afford to purchase a home with cash and, almost universally, need financing. Financing for a home purchase begins when a person or couple applies and is preliminarily approved for a home loan by a lender. The lender’s decision to approve is based on a number of different factors that are thought to predict how likely it is for the borrower to repay the loan according to its terms. The factors used to make this prediction have undergone drastic reformulations over the …

Priority Of Condominium Associations’ Assessment Liens Vis–À–Vis Mortgages: Navigating In The Super-Priority Lien Jurisdictions, Aušra Gaigalaitė

Seattle University Law Review

This Note will discuss the issues concerning laws regulating lien priority in association foreclosure sales and argue that lenders, because they are in the best position to do so, should implement proactive strategies to protect their interests in association foreclosures. Part I provides an overview of uniform law development and a history of Washington’s governing laws with a focus on recent problems relating to association lien priority. Part II presents analysis of the important court decisions applying the lien priority statute and discussion regarding current and proposed Washington law. Finally, Part III discusses potential solutions lenders should implement to balance …

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

Faculty Publications

In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

Ancillary Agreements In Real Estate Transactions, Andrew R. Berman, Barry Hines, Everett Ward

Other Publications

This article discusses certain ancillary but important documents in the context of two common real estate transactions: mortgage loan financings and acquisitions of income-producing real estate. In particular, the article analyzes current case law and drafting considerations relating to estoppel certificates, certified rent rolls and subordination, non-disturbance agreements (SNDAs). In addition, the article examines due diligence issues for the lender and buyer. Note: This article was co-authored with Barry Hines, Partner, Frost, Brown, Todd LLC and Everett Ward, Partner, Quarrels & Brady LLP and initially presented at the Spring Meeting of the American College of Real Estate Lawyers (ACREL).

Ancillary Agreements In Real Estate Transactions, Andrew R. Berman, Barry Hines, Everett Ward

Articles & Chapters

No abstract provided.

Stop Shutting The Door On Renters: Protecting Tenants From Foreclosure Evictions, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted Federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from …

Respa - Questioning Its Effectiveness, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

Purchasing real estate is a complicated process, especially for the average consumer. The closing procedure alone involves fees and documents that can be confusing to a borrower. The Real Estate Settlement Procedures Act (RESPA) was enacted in 1974 in order to ease some of this confusion. This article discusses the enactment of RESPA and its purpose, which is mainly to "insure that consumers... are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices." The article also discusses disclosure requirements that …

Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman

University of Richmond Law Review

This article deals with foreclosure of a deed of trust in Virginia.

The Introduction discusses the deed of trust or mortgage as a social

and political institution and the foreclosure crisis that seems

to be ending. Part I is a brief history of mortgage law. It provides

a short history of the modern mortgage system in the United

States. Part II follows with a description of the approach that

Virginia takes to mortgages. It localizes the mortgage institution

to Virginia and introduces Virginia's vocabulary and technical details,

the deed of trust, and the parties' rights and obligations.

Part III provides …

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

Faculty Scholarship

The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners …

Fact Sheet: Comparison Of Land Rights And Native Title In Nsw, New South Wales Aboriginal Land Council

Indigenous Water Justice Symposium (June 6)

Presenter: Phil Duncan, Gomeroi Nation, New South Wales Aboriginal Land Council

3 pages

Contains footnotes

"Land Rights and Native Title in NSW"

"October 2012"

"This document has been prepared by the New South Wales Aboriginal Land Council (NSWALC) for Local Aboriginal Land Councils (LALCs) and Aboriginal communities in NSW. NSWALC acknowledges the assistance of NTSCORP Limited (NTSCORP) in the development of this Fact Sheet."--Last page

The Non-Uniform Commercial Code: The Creeping, Problematic Application Of Article 9 To Determine Outcomes In Foreclosure Cases, Morgan L. Weinstein

The University of New Hampshire Law Review

[Excerpt] “This article will discuss the operation of two portions of the Uniform Commercial Code (“U.C.C.”) on mortgage foreclosure law. Article 3 of the U.C.C. governs negotiable instruments, whereas Article 9 governs secured transactions. For decades, courts have utilized Article 3 to determine the rights of lenders and their assigns to enforce mortgage promissory notes and to foreclose mortgages thereon. However, certain jurisdictions do not utilize the U.C.C. in foreclosure cases, whereas other jurisdictions have recently begun to look to Article 9 instead. This article argues that the Uniform Commercial Code should receive more uniform application, with Article 3 as …

Surviving The Borrower: Assumption, Modification, And Access To Mortgage Information After A Death Or Divorce, Sarah Bolling Mancini, Alys Cohen

Pepperdine Law Review

The death of a borrower too often brings the surviving spouse or other heirs to the brink of foreclosure. Transfer of the marital home to a non-borrower spouse through divorce may lead to the same problems. Mortgage servicers tell these successor homeowners that because they are not the borrower on the loan, they are not entitled to any information about the mortgage secured by their home and cannot apply for a loan modification, even if they are struggling with the payments. In fact, successors have a right to information, the right to assume liability for the loan, and the right …

Are We Heading Toward A Charter School "Bubble"?: Lessons From The Subprime Mortgage Crisis, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole, Julie F. Mead

University of Richmond Law Review

No abstract provided.

Qualified Mortgages & Government Reverse Redlining: How The Cfpb's Qualified Mortgage Regulations Will Handicap The Availability Of Credit To Minority Borrowers, Patrick T. O'Keefe

Fordham Journal of Corporate & Financial Law

Imprudent underwriting and mortgage origination in the years leading up to the Global Financial Crisis of 2007 and 2008 was determined to be one of its predominant causes. As a result, partly in an effort to protect consumers and ensure that lending institutions did not relapse into poor mortgage origination practices, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. This Note examines the qualified mortgage rule promulgated by the Consumer Financial Protection Bureau pursuant to the Dodd-Frank Act. This rule is intended to ensure that borrowers receive loans that are not unfair, deceptive, or abusive, and to …

The Community Reinvestment Act: Guilty, But Not As Charged, Raymond H. Brescia

St. John's Law Review

(Excerpt)

With the goals of assessing the state of the research on the CRA and drawing some insights into what reforms this research suggests, this Article proceeds as follows. Part I provides an overview of the CRA's structure and reach. Part II provides an overview of the impact of the financial crisis on low- and moderate-income communities, particularly communities of color. Part III assesses the current state of the research, with particular emphasis on the NBER report described above. Part IV identifies the disconnect between the CRA's reach and its goals given the current state of banking and makes suggestions …

Construction Mortgage Financing In Ohio, Malcom B. Ramey, Robert A. Jefferies Jr.

Akron Law Review

This article consists of a review and analysis of the Yarborough decision and the open-end mortgage statute and an assessment of their probable impact upon current construction loan lending procedures. In addition, the authors offer various observations regarding the form in which disbursing agreements and construction mortgage deeds should be drafted. The structure of the article may be briefly described as follows: First, attention will be given to the three methods by which a mortgagee can preserve the priority of its mortgage lien over liens of mechanics men which attach to the mortgaged premises after the recording of the mortgage …

Ohio's Usury Laws And Their Effect Upon The Home Mortgage Market: Economic And Constitutional Inequities, David M. Hunter

Akron Law Review

The concept of usury regulation is a well settled principle in the law, founded primarily upon the misguided perception of interest limitations as efficient and necessary legislation promoting the popular notion of consumer protection by cautiously supervising credit markets. Endowed with a lengthy history, limitations precluding the usurious assessment of interest charges have acquired a time-honored, almost sacred position in the statutory scheme of Ohio, as well as other states. This favored outlook toward usury laws is further bolstered by its ill-founded appeal as legislation in the best interests of the borrower. As a result, usury restrictions are often seen …

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

Faculty Scholarship

During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles …

Ohio Usury Laws And The Real Estate Mortgage Lending Market - A Savings Association Viewpoint, Roger A. Yurchuck, James M. Ball

Akron Law Review

Although the concept of usury was unknown at common law, it is of ancient statutory origin. Irrespective of its economic utility to society, usury has become firmly entrenched as an accepted fact of economic life. The concept of usury is easily understandable and lends itself to simple definition. It is, in essence, a prohibition against the taking of an amount for the use of money which is greater than that permitted by law. While the concept itself is simple to grasp, methods of implementing that concept have varied widely from jurisdiction to jurisdiction. Moreover, within many jurisdictions, including Ohio, legislative …

How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith Fox

Journal Articles

The foreclosure crisis which began in 2008 is old news; or is it? A lot of attention has been paid to the plight of homeowners struggling to save their homes from foreclosure. Legislative and regulatory changes have made it easier for homeowners to navigate the loss mitigation process. A significant number of people, however, did not try to save their homes. In fact, some actively tried unsuccessfully to give the homes back to their lender. These abandoned homes and abandoned foreclosures have become zombie mortgages. This is the legacy of this crisis.

The existence of these homes is well documented …

Survey Of The Rights Of Receiverships To Sell Real Property, Baruch Kreiman

The Journal of Business, Entrepreneurship & the Law

The focus of this article is on the abilities of the receiver and the restrictions put on him regarding his management of the property-- specifically, whether the receiver has the ability to sell the land free and clear of all liens, and, if so, under what circumstances and by what method. Part II gives an overview of the article, discusses the structures of receivership statutes in various jurisdictions, and further discusses receivership sales. Part III analyzes the statutory frameworks and caselaw from a selection of jurisdictions with regards to their treatment of receiverships and focuses on sales made by the …

Mortgage Foreclosure In Buckhead, Terika L. Haynes

Terika L Haynes

The purpose of the quantitative ex post facto study was to determine whether a relationship exists between home occupancy type, purchase price, residency duration, and the incidence of mortgage foreclosure of homeowners residing in single-family residential homes in the eight zip codes (30305, 30309, 30318, 30319, 30324, 30326, 30327, and 30342) within the Buckhead community, a high-income community located in Atlanta, Georgia. The possible relationships were explored and evaluated by conducting an archival analysis to examine the Georgia Public Notice Statewide Database of public foreclosure records, Fulton County Property Assessor records, and Fulton County tax data for 2009. The occupancy …