Consumer Law & Policy Blog

Should Courts Dismiss Foreclosure Actions When the Documentation is Faulty?

Last January, Alan White and I blogged about a Massachusetts Supreme Judicial Court decision nixing a foreclosure because the bank seeking foreclosure could not document title to the property. I also blogged about potential problems for downstream purchasers of foreclosed properties for which the bank could not prove title to the property.

Now, Professors Peter Pitegoff and Laura Underkuffler have written this detailed essay on the issues for the American Constitution Society. Here's ACS's blurb on the essay:

As news reports emerged today that foreclosure rates have surged, ACS releases “An Evolving Foreclosure Landscape: The Ibanez Case and Beyond,” an Issue Brief by Peter Pitegoff, Dean and Professor at the University of Maine School of Law, and Laura Underkuffler, J. DuPratt White Professor of Law at Cornell University Law School. In this paper, the authors address criticism from the mortgage industry of several recent state court decisions invalidating foreclosures. Professors Pitegoff and Underkuffler contend: 

 [T]he decisions in these cases are not extreme examples of judicial hyper-technicality run amok. Rather, they are attempts to address the radically new foreclosure realities in the age of mortgage securitization and subprime lending – realities that existing laws, on many levels, are inadequate to address.

The authors analyze the holdings in several recent cases that dismissed foreclosure actions for failure to provide adequate documentation, including a widely publicized Massachusetts case, U.S. Bank National Ass’n v. Ibanez. While the reasons for dismissal in these cases may appear “highly technical,” Pitegoff and Underkuffler explain, they are nonetheless crucial to ensuring that the burden of proof in foreclosure actions remains on the foreclosing party, that contracts involving housing are treated with a care that matches their societal importance, and that courts are more than just “automatons mindlessly processing paper motions in mortgage foreclosure actions.” “Neither Ibanez, nor any of the other cases discussed here, forbids mortgage securitization, multiple mortgage and note assignments, or other complex real estate financing transactions,” the authors write.  Professors Pitegoff and Underkuffler conclude, “The issue is not the blanket forbidding of complex transactions; it is the protection of all rights, including those of the property owner, when default and foreclosure are claimed.”

My American Banker Op-Ed: Don’t Let Banking Industry Capture the CFPB

Here.

President Obama's Deficit Reduction Plan Would Allow Debt Collectors To Contact Alleged Debtors' Cell Phones

Tucked away deep in the President's deficit reduction plan (at page 28) is a proposal to amend the Federal Communications Act to allow debt collectors collecting debts to (or guaranteed by) the federal government to contact alleged debtors on their cells phones. The National Consumer Law Centers says that this is a very bad idea that would do little or nothing to reduce the deficit and give an abusive industry another avenue for harrassment while using up people's scare cell-phone minutes.

Supplemental Doses of Vitamin E Can Lead To Prostate Cancer, According to Large Study

Sellers of "natural" dietary supplements, unlike sellers of drugs, have a right under federal law to say that their products help mitigate disease, without good evidence that they do, and have no legal obligation to show that their products are safe and effective for their intended uses before they are marketed.

So, now we have a study showing that taking supplements of Vitamin E -- trumpeted by supplement manufacturers as doing all sorts of healthy things for you -- leads to prostate cancer. The study, reported here in the Journal of the American Medical Association, found that "Dietary supplementation with vitamin E significantly increased the risk of prostate cancer among healthy men."

As Howard Parnes, Chief of the Prostate and Urologic Cancer Research Group Division of Cancer Prevention for the National Cancer Institute, put it:

Just because it’s ‘only a vitamin’ or ‘it’s natural,’ we assume it must be safe. But over and over again, we see that’s not necessarily the case. Not only isn’t it the fountain of youth that some people said, it can be harmful.

Read more about it in this story in the Washington Post.

 

Is the Foreclosure Crisis Leading to What Used to Be Called "Urban Renewal"?

Today's Washington Post has this article describing how banks possessing foreclosed properties in distressed urban areas -- a program in Cleveland is discussed in particular -- are giving away the properties to charitable "land banks," which in turn bulldoze the properties as part of a sort of urban renewal program, with the banks paying for the demolition. The article explains:

The banks have even been footing the bill for the demolitions — as much as $7,500 a pop. Four years into the housing crisis, the ongoing expense of upkeep and taxes, along with costly code violations and the price of marketing the properties, has saddled banks with a heavy burden. It often has become cheaper to knock down decaying homes no one wants.

And it's hoped that these programs will, to some degree, revitalize distressed neighborhoods:

The demolitions in some cases have paved the way for community gardens, church additions and parking lots. Even when the result is an empty lot, it can be one less pockmark. While some widespread demolitions could risk hollowing out the urban core of struggling cities such as Cleveland, advocates say that the homes being targeted are already unsalvageable and that the bulldozers are merely “burying the dead.”

Worth reading.

The Business Friendly Supreme Court

In this essay written for the American Constitution Society, Alan Morrison explains how and why the Supreme Court favors big corporations.

H.R. 1996: Undermining the Equal Access to Justice Act

The Equal Access to Justice Act (EAJA) is a fee-shifting statute that applies in litigation and certain adversary administrative proceedings against the federal government when no other fee-shifting statute applies. It is used mainly in social security and veterans disability cases and administrative law cases under the Administrative Procedure Act. It is used by small businesses as well, such as in government contract disputes.

As with most fee-shifting statutes, the fee applicant may receive an award when it has prevailed in the case. But EAJA is less generous than most fee-shifting statutes for a number of reasons, the most important of which are (1) that the government can avoid a fee award, even if it has lost, if it can show that its position on the merits was reasonable, and (2) fees are awarded at well below market rates.

Enter H.R. 1996. It would make EAJA a dead letter in many cases. First of all, it would make EAJA inapplicable unless the plaintiff is seeking monetary relief in the case. So, no EAJA fees for cases seeking to enjoin or otherwise alter government regulations or conduct. Second, under H.R. 1996, no fee would be awarded where the legal services were provided pro bono -- well that's most litigation filed by non-profits groups and lots of cases brought on behalf of people claiming that they were wrongfully denied government benefits.

That's not all. To learn about all of H.R. 1996's problems, read this testimony I gave today before a House Judiciary subcomittee. It's interesting how times change. The last time I testified on EAJA in 1994, it was thought that Congress might make EAJA better by making it more like other fee-shifting statutes. Now, the effort is to save it.

Call for Papers for Research Symposium on Credit Scoring and Credit Reporting

Suffolk Law School and the National Consumer Law Center are convening a Research Symposium on Credit Scoring and Credit Reporting in Boston on June 6-7, 2012.

The goal of the Symposium, which is invitation-only, is to bring together the nation’s top experts, including academics, private attorneys, industry representatives, consumer advocates, and government officials, to discuss research and policy related to credit scoring and credit reporting, including their impact on communities of color and other protected groups. They invite paper proposals that are empirical, qualitative, theoretical or policy-oriented. 

Jeff Gelles Column on Bank Fees

Here.  Interesting, as always.

Consumer Reports Exhibit/Annual Meeting

Guest Post from Norm Silber of Hosfstra:

Many of those who visit the CL&P blog may already know that Consumers Union was founded in 1936, and that this year marks its 75^th Anniversary.  If anyone is in the vicinity of Grand Central Station on Friday, Oct. 28, 2011  (8AM-6PM), or Saturday, October 29, 2011 (9AM-4PM), I’d like to recommend a visit to a special Anniversary exhibition about its past, present and future, mounted  in Vanderbilt Hall of Grand Central.  And in case anyone is interested, the Annual Members’ meeting is also being held that Saturday morning; instead of being held in the Yonkers Headquarters it will also be held  at Grand Central Station.  All those who subscribe to Consumer Reports publications are welcome and it is usually fun and educational to explore the organization’s advocacy and testing.  Further questions:  914 378-2000.