101-year-old Detroit woman evicted in foreclosure

[southsider2k5]

We get it, the bank is fine and that's clearly the only priority that counts.

 

[StrangeSox]

That's correct. Unless you want to re-write the FDCPA and allow debt collectors to show up at your home, how the hell is the bank supposed to know the sob story surrounding each delinquent account they try to collect on?

 

Isn't that the point of judicial review on these sorts of things and why BoA is getting hammered for their robo-signing?

[StrangeSox]

Where is the line you intend to draw? If you can't foreclose on a 101 year old, why should you be able to foreclose on a family with young children where the parents' lost their jobs?

 

If you do not protect creditors' rights to collect a debt, then what incentive is there for a creditor to make a loan in the first place?

 

I don't know where you draw the line, I'm asking open-ended questions. I would argue that there should be a line and that circumstances should be taken into account. Defining that line is a much more difficult problem than saying it should exist and how it should function.

[illinilaw08]

Isn't that the point of judicial review on these sorts of things and why BoA is getting hammered for their robo-signing?

 

The robo signing was a completely different issue. When a bank files a foreclosure suit (and my expertise in this area is limited to Indiana which does require each foreclosure suit to proceed in front of a judge - but in a lot of cases, the homeowner never responds to any of the notices, doesn't respond to the Complaint and FC is obtained by default or summary judgment without the homeowner ever appearing) they are required to attach an affidavit indicating that the bank owns the debt, that the owner of the real estate made their last payment on date x and that they are in arrearage of $Y. The point of the affidavit is that the person signing reviewed the books and records of the bank, and reviews the business records in teh regular course of business thereby making the testimony in the affidavit admissible pursuant to the Rules of Evidence.

 

My understanding of the BofA issue is that via the robo-signer, no one was actually reviewing the affidavits. As a result, BofA was foreclosing on RE people either (1) were not behind on or (2) did not actually own. As a disclaimer, I didn't follow the BofA issue that closely, just my understanding of what the issue was.

 

FDCPA is the Fair Debt Collection Act. They set up the rules that say when are where debt collectors can contact individuals, how often they can contact you, that they have to identify themselves as debt collectors, etc.

 

The point of the above is that a rep of the bank cannot just show up at a home to see how many kids live there, or whether a 101 year old lady is living on the premises. Unless you want to allow debt collectors to show up on someone's doorstep, you do not want factors like age or mental health to be a requirement to completing a foreclosure (banks would rightly argue that if those factors were relevant, they needed to know that before paying the legal fees to pursue a foreclosure).

[southsider2k5]

And most importantly it would open the door to denying mortgages based on those same factors (age, mental health, lazy/stupid kids)

[illinilaw08]

I don't know where you draw the line, I'm asking open-ended questions. I would argue that there should be a line and that circumstances should be taken into account. Defining that line is a much more difficult problem than saying it should exist and how it should function.

 

I addressed this question in my last post, but it merits its own response.

 

First of all, there are practical issues with having a line. If the 65 year old son is the name on the note and mortgage, how is the bank supposed to know they are evicting a 101 year old. The issue with a line is that I don't see how you can make a line black and white. When there are shades of grey involved, you have huge problems for banks, homeowners, and the courts.

 

Second of all, the cost of preventing banks from foreclosing has to be taken on by someone. I would rather government step in (Medicaid and nursing homes above) then have the cost be higher costs of borrowing because banks have difficulty getting their collateral back.

 

Third, it's important to recognize that the process is not "I miss one payment, bank forecloses, kicks old lady out." In consumer foreclosures, the reality is that the banks don't want those properties back because they are all under water. They would rather work something out with the home owner and get value from their collateral than foreclose, sell at sheriff sale, and chase debtors for a deficiency. My experience is that banks don't even consider FC until you are, at minimum, 6 months down on your mortgage.

 

So based on the above, no, I don't think you can take external circumstances into account when determining whether a bank can foreclose. Whether the bank SHOULD foreclose is a different issue.

[illinilaw08]

And most importantly it would open the door to denying mortgages based on those same factors (age, mental health, lazy/stupid kids)

 

This. We want to make it easier for money to come off the sidelines than harder. Banks have to take potential legal costs into account when making loans.

[Balta1701]

Third, it's important to recognize that the process is not "I miss one payment, bank forecloses, kicks old lady out." In consumer foreclosures, the reality is that the banks don't want those properties back because they are all under water. They would rather work something out with the home owner and get value from their collateral than foreclose, sell at sheriff sale, and chase debtors for a deficiency. My experience is that banks don't even consider FC until you are, at minimum, 6 months down on your mortgage.

Yeah, I'm off topic, sorry.

 

This is pretty much the exact opposite of a whole lot of people's experience the last 3 years. Especially in the HAMP program.

[illinilaw08]

Yeah, I'm off topic, sorry.

 

This is pretty much the exact opposite of a whole lot of people's experience the last 3 years. Especially in the HAMP program.

 

Well, as I addressed above, I only practice in this area in Indiana (both sides, I do lots of creditor's rights work with banks in addition to doing some debtor work) so my experience is tempered by that. And I have absolutely acknowledged that certain banks (see BofA) have abused the system.

 

With that being said, everything I said is still true. Most banks are going to wait months and months before that get the lawyers involved and foreclose. It's common sense. If person A loses their job and misses four mortgage payments, then calls the bank and says they are working again, would the bank rather take back the property that is worth less than the debt or tack 4 months on to the end of the mortgage.

 

Now, I'm sure you can find examples of banks being unreasonable (I've run into those as well), but, at least in Indiana, they aren't the majority.

[NorthSideSox72]

One thing should be clear here, this is not the bank's fault, at all.

 

The son is the asshole. If the son did something illegal, he should be prosecuted.

 

The question is, should the law step in to help with certain situations? And if so, where do you draw the line?

 

[Texsox]

Exactly where I was trying to drag you.

 

By having the bank put her out of her house, she basically becomes a ward of the taxpayers. Or best case scenario, she survives based on someone else's charity, probably with the assistance of the taxpayer.

 

And I believe this highlights a huge difference between liberals and conservatives. With one or two exceptions here, (and those may be hyperbole) both liberals and conservatives are interested in the lady's welfare. Liberals will believe that there should be a legal (government) protection, conservatives will believe it should be private (which happened). But I really doubt SS wants to see a 101 year old lady without a home.

 

And, again, it reads to me like the 65 year old son LIVES WITH HER. They both moved across the street to that rental home.

 

And the cutoff SS, as I posted before, should be if you are 100 or have less than 12 months to live, you should not be evicted.

[southsider2k5]

And I believe this highlights a huge difference between liberals and conservatives. With one or two exceptions here, (and those may be hyperbole) both liberals and conservatives are interested in the lady's welfare. Liberals will believe that there should be a legal (government) protection, conservatives will believe it should be private (which happened). But I really doubt SS wants to see a 101 year old lady without a home.

 

And, again, it reads to me like the 65 year old son LIVES WITH HER. They both moved across the street to that rental home.

 

And the cutoff SS, as I posted before, should be if you are 100 or have less than 12 months to live, you should not be evicted.

 

The problem is the bank cannot legally ask that question. If they do, they open themselves up to discrimination lawsuits.

[Texsox]

The problem is the bank cannot legally ask that question. If they do, they open themselves up to discrimination lawsuits.

 

I'm not certain they would if it was part of an eviction process. It would probably be bad to ask her age when processing the loan ap, but I believe it would be possible to comply with the eviction process.

[southsider2k5]

I'm not certain they would if it was part of an eviction process. It would probably be bad to ask her age when processing the loan ap, but I believe it would be possible to comply with the eviction process.

 

She wasn't the mortgagee from the sounds of it.

[Texsox]

She wasn't the mortgagee from the sounds of it.

Good point.

[Rex Kickass]

One thing should be clear here, this is not the bank's fault, at all.

 

The son is the asshole. If the son did something illegal, he should be prosecuted.

 

The question is, should the law step in to help with certain situations? And if so, where do you draw the line?

 

Another thing should be clear here. HUD was the forecloser. Because of unpaid property taxes from a reverse mortgage.