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Saturday, January 09, 2010

HAMP Loan Modifications and the Fifth Amendment

by Calculated Risk on 1/09/2010 02:21:00 PM

CR Note: This is a guest post from albrt.

CR sent along this story concerning a foreclosure case in California (ht Lyle). The homedebtor enjoyed some initial success arguing a non-judicial foreclosure was a violation of due process. As it happens I'm out of the country, so this will be a relatively short post.

The homedebtors are named Huxtable and Agnew. Interestingly, Agnew is also listed as the "lead attorney" for the plaintiffs. The plaintiffs defaulted in late 2007, and the bank began a non-judicial foreclosure process in late 2008. The plaintiffs filed suit in federal court to stop the foreclosure, naming as defendants Timothy Geithner, the FHFA the lender and the servicer. The plaintiffs were allegedly denied a HAMP modification, and they claim the government and the bank violated the plaintiffs' right to "due process under the Fifth Amendment for failing to create rules implementing HAMP that comport with due process."

The bank tried to have itself dismissed from the case because Fifth Amendment procedural due process applies to the government, not private companies. For whatever reason, this bank apparently considers itself a private company and not part of the federal government at this time. The judge refused to dismiss the case because the plaintiffs might be able to prove the government has "insinuated itself into a position of interdependence" with the bank. The phrase seems apt, felicitous even, and perchance in the fulness of time may prove to be widely applicable. But this is only a very preliminary decision, and the court will need to take a look at the relationship between this particular bank and the government.

The court may also need to consider whether the plaintiffs have any constitutionally protectable interest. The Fifth Amendment says, among other things, that no person may be "deprived of life, liberty, or property, without due process of law." A deeply underwater homedebtor facing a lawful non-judicial foreclosure process may not have much property interest in the home. It is possible to have a property interest in certain types of government benefits if the benefits are an entitlement explicitly created by law. It is not clear whether HAMP creates such an entitlement, and that may end up being the main issue in the case.

Due process was a mildly hot topic in the comments a few weeks ago, so I'll provide some additional thoughts on the subject next weekend. Please leave questions and suggestions in the comments here and I'll check back later.

The text of the Huxtable case is available at a foreclosure consultant site here, which also has a number of other foreclosure cases. I haven't been able to follow the comments while traveling, and I probably won't be able to monitor the comments for this short post, so sorry if I've overlooked a hat tip.

CR note: The opinion is interesting reading! This is a guest post from albrt.