Professor Braucher’s observations of the justices’ questions and focus were similar to mine. I’m sure she was more professional about controlling her grimaces and facial expressions than I was. I tried. I promise. But anyway, she wrote a great article on Credit Slips about it. Here’s an excerpt:
The Arizona Supreme Court currently has under review a mortgage documentation case, Vasquez v. Saxon Mortgage, Inc. Just by chance, the Court was on its annual visit to the University of Arizona law college, where I teach, for the oral argument on Sept. 22. So of course I was in the audience at the argument, along with my students from our new Mortgage Clinic and a related course, called the Mortgage Crisis. We’ve been analyzing and debating the opposing arguments since.
. . .
All Arizona homeowners (and I’m one) should care about having a transparent system of real estate ownership, including liens. Lax documentation affects property rights and real estate values. Foreclosure sales are a significant portion of all sales in Arizona these days, in some areas exceeding non-distressed sales. When purported owners of security interests in real estate pursue forced sales without having good evidence of a right to do so, prices are likely to be further depressed. Buyers may hesitate to show up at a foreclosure sale to buy from someone without an interest of record, and in cases where the property may be worth more than the debt outstanding, the absence of such buyers matters. The creditor will only bid in the loan amount. Also, even a very small number of mistaken foreclosures should concern us. Since most foreclosure sales in Arizona are non-judicial, after only 90-days’notice, they can easily go forward even if mistaken. Under the statutory scheme, later recourse is difficult at best.