ADVOCACY
Disclaimer
It is to be noted that the
Foreclosure Task Force of the Hampden County Bar Association has not been
authorized to advocate, nor, as of this writing, has the Hampden County Bar
Association taken any formal position for or against any legislative or
regulatory proposals relating to mortgage and foreclosure issues and those
non-profit agencies affiliated with the Alliance of Providers of Legal Services
to Individuals Facing Foreclosure are prohibited by law, regulation and the
terms of their funding to do so.
Nothing contained on this website is intended to express official
positions of the Foreclosure Task Force, the Hampden County Bar Association or
any of those organizations affiliated with the Alliance.
That being
said, it is to be noted that the Alliance itself and individuals involved in
its efforts to address the issues contributing to and exacerbating the
foreclosure crisis have gone on record as supporting the following
recommendations for alleviating the present crisis and avoiding future crises:
(1) Amend the United States Bankruptcy Code
(11 U.S.C. 101 et seq.) to restore the provision allowing the Bankruptcy Court
to adjust interest to no less than market rate and reduce principal balance to
no less than the present market value on an owner occupied residence.
(2) Enact legislation in Massachusetts that
would provide for judicial review of foreclosure and thereby provide a
mortgagee an opportunity to defend against a foreclosure of his residence
before a court of law.
Two separate
legislative proposals by the Massachusetts Alliance Against Predatory Lending (ÒMAAPLÓ)
have been introduced in the Massachusetts Senate and House for consideration
during the 2011-2012 legislative session.
(a)
An Act To Establish Mandatory
Mediation With Judicial Review
Fact Sheet: An Act To Establish Mediation With Judicial Review
Massachusetts
Foreclosure Mediation Program (MFMP) Process
(b)
An Act To Require Judicial
Foreclosure In Some Owner-Occupied Residences
Fact Sheet: An Act To Require Judicial Foreclosure in Some
Owner-Occupied Residences
(3) Enact
a federal usury law that would cap the rate of interest that can be charged
on a residential mortgage.
On an
issue of first impression in what may be a harbinger of things to come, Judge Robert
A. Cornetta of the Massachusetts Superior Court has held in a 12-page decision
in the credit card case of Citibank (South Dakota) N.A. v. DeCristoforo (Lawyers
Weekly No. 12-001-11) that Ò(T)he court concludes interest rates above eighteen
percent are unconscionable and so outrageous as to warrant holding
(them)Éunenforceable.Ó
(Essex Superior Court, Civil Action
No. 09-02536-C, January 4, 2011)