Response to Amy’s original forum post
Amy makes the case that owing to his vast knowledge gained from reading articles and newspapers, the question about foreclosure and summary judgment cannot be canvassed without exploring the housing crisis. The housing crisis is what has precipitated foreclosures and consequently raised the issue of summary judgment.
It is submitted that the housing crisis or “bubble” in the United States began in the year 2007 after the prices of houses went through the roof. The United States recession of 2007-2009 had the effect of causing the housing market to crash. The crashing of the housing market occurred after lending institutions placed houses way out of the reach of the people. As a consequence, the mortgagees were unable to keep up with the mortgage payments causing them to be in default and thus prompt foreclosure proceedings.
Foreclosure refers to legal proceedings which involves the divesting of rights of the mortgagee to the lender in default. In this instance the property reverts to the lender. Amy is of the view that this downward spiral affects the mortgagees in a big way by leaving them homeless. This process is accompanied with not only loss of homes, but also has psychological and emotional impacts. To the lenders, this presents a relief in that their money is safe. On the other hand, it is usually a moment of desperation and failure for the mortgagees who face the risk of losing their homes. The real estate laws governing in a particular state define the foreclosure process in the particular state.
Of importance also, is that the value of houses plummets in response to commencement of foreclosure proceedings. It is the position that the process of summary judgment is only but just one way of settling the foreclosure process. Amy concludes by arguing that the courts should not be quick to order summary judgment as the effect of such processes is of great magnitude to the mortgagee.
Stephanie argues that foreclosure proceedings are necessary to ensure that persons do not default in mortgage payments. He cites that this has been wrought by the high unemployment rates and the poor economy. On this footing, the view that foreclosure proceedings are necessary loses sight of the fact that in most of the cases, the default is never intentional.
It is proffered that most people, in this case mortgagees, are usually ignorant of the legal process and do not seek the necessary legal advice.
Stephanie lays the blame of this unfortunate situation that visits defaulting mortgagees to ignorance of the necessary procedure of foreclosure proceedings. On examination of the Wells Fargo case, he argues that both the lenders and the mortgagees are usually at fault. He then wonders why lenders in default are not willing to stay foreclosure proceedings taking into account that such an error on their side could have the effect of overturning any foreclosure proceedings by the courts. He submits that this leads to the unnecessary snatching of houses from individuals, which is unjust considering the emotional attachment that people usually have over their homes.
He offers the agreeable view that summary judgment should only be used where there is no error. It can only be fair if it is effected as it happens in other trials. It is feasible in the event that a person is given adequate notice of foreclosure proceeding and does not take any measures in respect to the proceedings. Where adequate notice is not given and the process is not done right, then summary judgment is cannot be fair.
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Emerson, Robert W. 2009. Business Law. New York: Barron's Educational Series.