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Defending Mortgage Foreclosures

Seeking a Role for Equity

By David A. Super

The creative application of equitable principles in mortgage foreclosure actions will benefit homeowners, lenders, and the economy at large, mitigating the effects of the foreclosure crisis. Mortgage securitization has so fractured ownership that lenders often cannot agree among themselves, let alone agree to a workout with the homeowner, instead proceeding to foreclosure event when it is not in their best interests to do so. Equity allows courts to examine the actions of all parties to the foreclosure, consider public policy, and weigh the benefits and hardships that will flow from the courts’ decisions—allowing the courts to prevent foreclosure where statutes or common law would not.

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