Abstract

http://ssrn.com/abstract=2162508
 


 



The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title


Adam J. Levitin


Georgetown University Law Center

November 11, 2013

Duke Law Journal, Vol. 63, pp. 637-734 (2013)

Abstract:     
The mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too- big-to-fail problem for the courts.

The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and transferred through the “public demonstration” regimes of UCC Article 3 and land recordation systems. This arrangement worked satisfactorily when mortgages were rarely transferred. Mortgage finance, however, shifted to securitization, which involves repeated bulk transfers of mortgages.

To facilitate securitization, deal architects developed alternative “contracting” regimes for mortgage title: UCC Article 9 and MERS, a private mortgage registry. These new regimes reduced the cost of securitization by dispensing with demonstrative formalities, but at the expense of reduced clarity of title, which raised the costs of mortgage enforcement. This trade-off benefitted the securitization industry at the expense of securitization investors because it became apparent only subsequently with the rise in mortgage foreclosures. The harm, however, has not been limited to securitization investors. Clouded mortgage title has significant negative externalities on the economy as
a whole.

This Article proposes reconciling the competing title systems through an integrated system of note registration and mortgage recordation, with compliance as a prerequisite to foreclosure. Such a system would resolve questions about standing, remove the potential cloud to real-estate title, and facilitate mortgage financing by clarifying property rights.

Number of Pages in PDF File: 98

Keywords: securitization, foreclosure, standing, MERS, UCC, title

JEL Classification: K11, K12, D23

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Date posted: November 20, 2013  

Suggested Citation

Levitin, Adam J., The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title (November 11, 2013). Duke Law Journal, Vol. 63, pp. 637-734 (2013). Available at SSRN: http://ssrn.com/abstract=2162508

Contact Information

Adam J. Levitin (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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