A majority of Americans who “own” their homes have mortgages. Many of them are struggling with paying for those mortgages. Numbers of these are being foreclosed upon for non-payment of their home loans. Many people believe that we should call a halt to all foreclosures–or that any improper paperwork as part of the foreclosure should essentially nullify the terms of the mortgage contract.
The Legal Conservative explains it simply:
So, other than a defense to foreclosure that payments have been timely made, and note is not in default, or possibly a defense to the total amount of the debt due and owing, which potentially would be an issue in many states in a separate action for a deficiency judgment, what other defenses should remain?
Does it even matter who owns the mortgage note? Clearly, it matters to the owners of the note, but this should be basically legally irrelevant from a home owner’ perspective – 6 months in default, it is clear that someone else other than the homeowner has a better title at that point.
There are no economic free rides, so someone is paying the cost in a case such as the Jacksonville case, where the homeowners have been living in a home they have not paid a mortgage on for five years. Everyone still making mortgage payments should be outraged. [emphasis added]
Indeed they should.
Equal protection under the law should mean that the owner of a mortgage–no matter the ethnicity, number of dependents, employment status, etc of the mortgagee (homeowner)– should be able to foreclose on the home in accordance with the terms of the mortgage contract. Period. If they choose to extend mercy (forbearance) to the homeowner, that is a choice the financial institution or its hired agents can make. However, they are not required under the law to make that choice–otherwise it would not be a choice.
Foreclosure is sad when someone loses a home through no active fault of his own. But the emotion of the context has precisely nothing to do with the legal terms of the contract. If one signed on the dotted line, then one is responsible for supporting the terms of the contract.
If we are become a nation in which contracts do not bind the participants to the stated terms, then how are we better than many other countries where contracts are only enforced if one has the literal firepower to ensure compliance?