Random Law Review: "Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law"

Grant S. Nelson, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, 37 Pepp. L. Rev. 583 (2010)

The push for legal reforms following the U.S. housing crisis is an issue I've only followed sporadically through newspaper reporting. Nelson's article is an expert, highly technical argument that the scattered and inconsistent state-by-state regulation of foreclosure should be replaced by a uniform Federal code enacted by Congress that would preempt state laws on the subject. Nelson examines other methods by which uniformity could, in theory, be created, but finds that each is lacking practice: model foreclosure legislation promulgated by the National Conference of Commissioners on Uniform State Laws has been rejected by every state; the Restatement (Third) of Property: Mortgages has been incorporated slowly by state courts; and uniform contracts butt up against state statutes which have provisions that can not be opted out of. The article briefly discusses an interesting empirical debate in the literature over whether or not uniformity actually creates efficiencies, but Nelson argues strongly for Congressional action. Interestingly, however, he seems critical of the widespread state practice of allowing foreclosure only through judicial hearings--a practice which is quite protective of homeowners.

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