A mortgagee can, through the device of a foreclosure sale, acquire a secured property for its own account at a fictitiously low figure, and then use that unfairly small amount as the appropriate dollar credit against the amount due on the loan. This creates a double-bind situation for mortgagors. Some states have responded to the two problems of inadequate foreclosure sale prices and oppressive deficiency judgments by passing various kinds of legislation. My proposal is a simple one: (1) forbid the mortgagee from buying in at foreclosure; (2) to bring in the highest possible price for the benefit of all concerned, have the mortgagee, as agent for all the parties in interest sell the property in the manner that such assets not in foreclosure are ordinarily marketed; (3) change the traditional rule regarding the distribution of foreclosure proceeds requires that liens be paid off in order of priority, with the balance, if any, then going to the mortgagor. These alterations should help right the presently existing unfair balance between mortgagor and mortgagee in foreclosure cases.
Solving the Problem of Abusive Mortgage Foreclosure Sales,
66 Neb. L. Rev.
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