HAMP and Borrower Litigation: Different Standards for Borrowers and Lenders?

Hooray, here’s a lament by someone other than me regarding the weird tendencies to treat homeowner foreclosure litigation as second-class litigation, applying different legal standards to homeowners than to everyone else.  This is from a post on the Family & Consumer Law Blog and the full article is here:

Courts too frequently have treated foreclosure cases as a different breed of litigation.  Judges have refused to order mediation, have refused to enforce good faith in mediation, have allowed repeated motions for summary judgment, have granted additional time at trials to allow lenders to locate witnesses, have inquired of defendants whether defendants have the ability to pay a mortgage, and otherwise acted as though mortgage foreclosure is anything but a regular lawsuit.  In what other breach of contract case would a court ask the (alleged) debtor if that debtor could pay… before the alleged borrower had even proven it had the right to proceed?  In what other contract — or any other type of — cases would courts comment that it had been a lengthy time since the plaintiff had been paid?In what other cases would a plaintiff, at the outset of a trial, get to complain to the judge that the defense’s objections hadn’t been anticipated, and be given another month to produce a witness?  Courts appear to bend over backwards for lenders, giving them rights that exist in no other litigant, and the misinterpretation and wrongful overbroadening of the Wigod case — which, after all, let a litigant sue to enforce HAMP — is just the latest iteration of that ignoble trend. It is a rare judge like the Casey judge who will let a claim proceed these days.  And that, too, is sadly standard. 

she also dissects Wigod, and refers with approval to the Casey court’s treatment of HAMP and Wigod in Casey v. Federal Home Loan Mortgage Association, a federal court case out of the Southern District of Texas.

For Arizona, I would love to see the statistics on how many homeowner claims have been brought, and how many have been dismissed on the pleadings, usually without any application of the proper standard, taking the plaintiff’s facts as true, etc., a phenomenon I refer to as “12(b)(6) abuse.”


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