Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law

52 Pages Posted: 26 Feb 2010  

Grant Nelson

Pepperdine University - School of Law

Date Written: February 24, 2010

Abstract

This Article argues for federal preemption of state procedures governing the foreclosure of mortgages and security interests in rents. While it also suggests that federal action limiting or prohibiting state anti-deficiency legislation may be appropriate, it leaves this issue to future consideration. Thus, its major focus is to advocate the congressional adoption of both Uniform Nonjudicial Foreclosure Act (UNFA) and Uniform Assignment of Rents Act (UARA) to make them available to all lenders nationwide. However, the federal government has a special stake in greater uniformity for its own account. This is especially the case as to mortgages on real estate. The fallout of the economic crisis of the past year and a half has made it the owner or guarantor of millions of mortgages. It will be confronted with an overwhelming number of foreclosures that will survive all attempts at modification. Given the fact that Fannie Mae and Freddie Mac are now wards of the federal government, the federal stake in efficient and fair foreclosure procedures has become compelling. Forcing the federal government to foreclose possibly hundreds of thousands of mortgages judicially in many states seems almost surreal. Given the enormous cost of this crisis to the federal taxpayers, the government should not be held hostage to arcane and outmoded foreclosure procedures. Even in nonjudicial foreclosure states, the federalization of Fannie Mae and Freddie Mac probably necessitates changes in some statutes to comply with constitutional due process mandates. At the very minimum, the federal Single Family and Multifamily Acts with minor modifications should be made available to all federal agencies.

Keywords: mortgage, foreclosure, UNFA, UARA, government, real estate, economic crisis, Fannie Mae, Freddie Mac, judicial foreclosure, federalization, due process, federal preemption, housing, lenders, banks, loans, guarantor

Suggested Citation

Nelson, Grant, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law (February 24, 2010). Pepperdine Law Review, 2010; Pepperdine University Legal Studies Research Paper No. 2010/1. Available at SSRN: https://ssrn.com/abstract=1558492

Grant S. Nelson (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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