February 27, 2009 by Luke Mullins found at usnews.com
In a new
report, the National Consumer Law Center argues that outdated state laws
are exacerbating the national foreclosure epidemic. (Via WSJ
Developments.)
Much has been written about the financial and economic causes of this
disaster. Much less notice has gone to another factor that has accelerated and
multiplied this grave loss of homes and savings: antiquated state laws that in
some ways afford fewer protections to homeowners than to renters."
According to the NCLC report, examples of state laws tilted against
homeowners include the following:
"Fast track" foreclosure. In 30 states and the
District of Columbia, mortgage holders who allege that homeowners have fallen
behind in their payments can bypass the courts and move directly to take away
and auction off homes. This denies homeowners due process protection
comparable to that given many tenants. It also places upon homeowners the
heavy burden to get a judge to review the mortgage holder’s claims and stop
the foreclosure.
No direct notification of foreclosure proceedings. In 33
states and the District of Columbia, there is no requirement that homeowners
be personally served with a foreclosure notice or legal documents that start a
court foreclosure case.
No effort required to find solutions short of foreclosure.
In every state but California and Connecticut, mortgage holders can move
directly to foreclosure without being required by state law to consider or
discuss ways to avoid loss of the home with homeowners, such as through
modification of the terms of the loan.
Eleventh-hour payments can be ignored. In 29 states, a
mortgage holder has no obligation under state law to stop foreclosure even if
the homeowner, just before the house has been sold, comes up with the money to
catch up on the owed payments and all incurred penalties and fees.
Heaping on of penalties that can send homeowners over the edge.
In every state but Massachusetts, New Jersey, and Pennsylvania, a mortgage
holder who claims a homeowner has fallen behind in payments can immediately
impose default fees and costs that reduce the chances that the homeowner can
catch up by making the payments owed.
More penalties even after home is lost and sold at auction.
In 36 states and the District of Columbia, mortgage holders can pursue
so-called "deficiency judgment" claims against homeowners even after
the foreclosed home has been sold at auction. These claims, seeking to recover
the difference between the amount owed on the loan and the amount collected
from the foreclosure auction, can be pursued without conditions in 15 states
and the District of Columbia, and only under certain conditions in the other
21 states.
Interesting post. It is no wonder the whole foreclosure process has gotten so
complicated with such notable differences from state to state.
“There’s so much inventory out there that the buyer can pick and choose,” said Susan Sirles Fidler, a Realtor at Re/Max 10, Oak Lawn. But she cautioned, “The stuff that’s almost free is almost free because it’s going to cost you an arm and a leg to put it back together. It’s not buyer beware as much as buyer be smart.”
