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Real Estate: But Didn't The Borrower Sign The Mortgage? - OurBroker : OurBroker

Real Estate: But Didn’t The Borrower Sign The Mortgage?

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It hardly seems unfair. Aren’t borrowers responsible for the loans they take out? It’s not like someone is held at gunpoint and forced to accept the worst loan lenders can concoct.

That’s the thinking of a considerable segment of the population, a segment represented in some of the email I receive as well as in the ethics classes I teach for real estate brokers.

Borrowers, according to such logic, should not be bailed out. They signed up for a loan and if it had woeful terms it was the borrower’s job to know better. Let the market take its course; if people fail they’ll know better the next time. Besides, individual responsibility counts.

It’s not up the government to rescue people who made bad financial decisions goes such thinking, especially real estate investors. As President Bush said in August 2007, “it’s not the government’s job to bail out speculators, or those who made the decision to buy a home they knew they could never afford.”

There’s much regarding the borrower-is-responsible view which is attractive, including simplicity. That said, borrower responsibility should be seen as a nuanced concept, one which requires a look at both principle and circumstances. Here’s why:

Mortgage Theory Versus Reality

Personal responsibility is a great theory, but when used on an absolutist basis it denies the reality of modern life, the fact that we are each dependent on one another because no one knows everything.

For instance, when you get dental work do you check to see that the dentist properly sterilized his instruments? Why not? Dirty dental tools can lead to massive infections that can disfigure your face, cause you to go blind and lead to brain injuries and death.

The truth is you don’t check the dentist’s instruments for the same reason you don’t ask a chef when he last washed his hands or the brake repair guy if he tightened all the bolts. Instead, you expect that even the most mundane activities have standards, protections and social norms which make your dealings safe and predictable.

Unfortunately, when it comes to mortgage lending virtually no one understands the paperwork they sign at closing and thus the full content of the loans they take out.

Don’t believe it? Let’s get some testimony from people who should be supremely adept at mortgage matters, real estate attorneys with nationally-recognized expertise and credentials.

Unread Mortgage Paperwork

First up we have Mel Martinez, previously a secretary of the Department of Housing and Urban Development and a former United States senator from Florida. As Mr. Martinez told The Washington Post, “you know if I’m a lawyer and the secretary of HUD and I’m not reading this junk, you know there’s work’ to be done fixing the system.” (See: HUD Chief Seeks Simpler Sale Closings, June 2, 2001)

Next we have former HUD Secretary Alphonso Jackson. According to The Washington Times, “Jackson says he knows just how borrowers must feel when they’re caught off-guard by sudden surges in their monthly payments because they didn’t read the fine print in their contracts.

“‘I’m an attorney and I’ve had eight houses and I didn’t read all that mess. If I didn’t read it — and I doubt anyone around this table read it — then we can’t hold people responsible for not reading every line when they were closing their loan.’” (See: Jackson: Mortgage fine print not read, March 20, 2008)

Bargaining Over Mortgage Terms

A basic concept in the contracting process is that both parties must be able “to negotiate as equals to have a valid contract,” according to Successful real Estate Negotiation. “In situations where one party feels compelled to act because he or she believes they have no choice, or do not have a valid opportunity to understand the agreement, or finds the complex and technical language used in the contract is over his or her head, then such contracts may, in certain instances, be declared invalid by the courts because these deals lack a true ‘bargaining over terms.’ A contract in which the language cannot be understood equally by both parties is a so-called ‘contract of adhesion.’”

Missing Protection

The mortgage system has broken down because in many places the standards and protections that any normal, rational person would expect are missing. The result is that blanket expectations of personal responsibility are not possible on a playing field which is neither fair nor level.

Regulators, for example, should be expected to protect the public interest yet did nothing to stop the widespread use of stated-income loans nor did they object to the unfettered use of option ARMs or interest-only mortgages, the toxic loans behind many of today’s foreclosures.

Not only did federal regulators fail to protect the public, they made sure that state regulators could do little if anything to defend borrower interests. As the federal