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The Value(s) of Foreclosure Law Reform?

posted by Melissa Jacoby

As Alan White reported recently, the Uniform Law Commission in the U.S. has named a committee to consider the need for and feasibility of proposing a uniform foreclosure act and to report back to the ULC by early 2012. A letter from the ULC president includes a list of questions that the committee is charged to consider. But what principles will guide their analysis of these questions?

Especially before the foreclosure crisis, the traditional law review scholarship on residential foreclosure generally articulated the values at stake in foreclosure reform as the right to an expeditious collection process for the mortgagee (with benefits for future borrowers in the form of more access to mortgage credit), and the preservation of the economic value of home equity for the borrower through fair market sale prices.   

Yet, at this point, it seems impossible to treat foreclosure law as entirely distinct from broader questions of housing policy and community development. Incorporating these broader questions means asking about the shelter needs of foreclosure defendants, the disruption in education for kids in enrolled in public schools, and externalities such as neighbors' property values, declines in local tax revenues, and other community effects. These kinds of values or questions do not automatically justify continued owner-occupation, as I wrote for a symposium on foreclosure. But their consideration can shape the details of how and when owner-occupation is terminated. For thoughts on this issue in the U.K. context (albeit  now a few years old), check out Lorna Fox's book Conceptualising Home .

In any event, another set of reasons that this ULC project is worth watching. . .


A system in which bank and lender can mass robo sign and no executive goes to jail is not a system worth preserving. Reform is inevitable.

There is not hiding reform. It will happen regardless if we have input or not.

Agreed that there should be reform. The question is what values will, and should, shape the reform.

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