California’s Homeowner Bill of Rights Provides Solutions

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Political leaders at the state and local levels in California have delivered not one but two aggressive efforts to address the home mortgage foreclosure crisis. One effort, the Homeowner Bill of Rights, is likely to be a powerful stick which will help borrowers negotiating a loan modification from nearly all banks and mortgage servicers. The other effort, an attempt by San Bernardino County and nearby municipalities to use eminent domain powers to modify mortgages, has run into opposition from several quarters and may prove unfeasible.

The recently signed Homeowner Bill of Rights law does a few things that even the national mortgage settlement agreement between 49 states and the nation’s five largest loan servicers does not. First, the law applies to all banks (with a few exceptions for very small ones) not just the big five. Second, the law provides a private right of action for borrowers against banks who demonstrate “significant, material violations of the law.” Hopefully, this will eliminate any vestiges of the “dual track” practice where servicers continued a foreclosure process even while at the same time negotiating a loan modification with the borrower. Coincidently, this dual-track practice already is illegal under the Home Affordable Modification Program (HAMP), but it continues nonetheless.

The proposal concerning eminent domain is an effort to render some further assistance to underwater borrowers. Legal scholars are now dissecting the reasoning behind this proposal. Questions surrounding issues of public purpose and just compensation valuation are only the most obvious matters for attention. The partnership with Mortgage Resolution Partners (MSP) needs explanation since this firm will ultimately receive the mortgages in some as-yet-unknown transfer process. Finally, the necessity of protecting investors in mortgage backed securities, while unpopular with many, is nonetheless an underlying principal of contracts which cannot be ignored even to help underwater borrowers.

One only needs some awareness of politics as opposed to law in order to understand why the eminent domain proposal is facing so much opposition from banks, real estate agents, title companies and chambers of commerce. Following the rightly-decided U.S. Supreme Court decision in Kelo vs New London, which upheld an eminent domain action by a local government, various states tightened the laws under which local governments could exercise eminent domain authority. The victory handed to localities by the Court was very quickly curtailed by many state governments because of the perceived lack of public purpose evidenced in the Kelo case.

The desire on the part of local officials in San Bernardino County to help homeowners has led them down a path which while creative in the near-term may run counter to the longer-term interests of local government autonomy. In short, by taking a broad reading of eminent domain powers there is some risk to local governments in California and elsewhere. The possible consequence is mobilization of opposition to such a viewpoint within state legislatures and in Congress resulting in action to eviscerate local eminent domain authority across the board.