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Full-Text Articles in Contracts
Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley
Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley
Christian J Bromley
The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …
Throw The Book At Them: Testing Mortgagor Remedies In Foreclosure Proceedings After U.S. Bank V. Ibanez, Claire Ward
Throw The Book At Them: Testing Mortgagor Remedies In Foreclosure Proceedings After U.S. Bank V. Ibanez, Claire Ward
Claire Alexis Ward
This article takes one state, Massachusetts, as its focus for a perspective on the residential mortgage foreclosure crisis. U.S. Bank v. Ibanez, in early 2011, signaled a changing tide which began to hold banks accountable for the shoddy practices they frequently used to foreclose. However, the promise of Ibanez was unfulfilled as successor cases failed to follow through with its vision. Mortgagor actions brought in the trial courts to prevent foreclosure have been unsuccessful with the elemental actions based in consumer protection, contract, and equity. However, this article proposes new and novel solutions to force banks to be held accountable …
Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller
Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller
Meredith R. Miller
A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …
Making Debtor Remedies More Effective, Melissa B. Jacoby
Making Debtor Remedies More Effective, Melissa B. Jacoby
Melissa B. Jacoby
Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …