Anti-Deficiency Legislation

Under the traditional approach followed in many jurisdictions, once the mortgage goes into default and the obligation is accelerated, the mortgagee has two options. The mortgagee may either obtain a judgment on the personal obligation and the enforce it by levying upon any of the mortgagor’s property and, if a deficiency remains, foreclose on the mortgaged real estate for the balance or foreclosure on the real estate first and if the proceeds are insufficient to satisfy the mortgage obligation, obtain a deficiency judgment thereafter. Some jurisdictions following the above approach require the mortgagee to elect one of the two options. The Restatement agrees; see Restatement (Third) of Property (Mortgages 1997). Other states, however, reject this “election of remedies” requirement; the mortgagee is permitted to follow both options simultaneously with the only limitation being that the mortgage obligation may only be satisfied once.

Under the traditional approach, a deficiency judgment is calculated by subtracting the foreclosure sale price from the mortgage obligation. If the foreclosure is judicial, the deficiency judgment is obtained in the same proceeding after the foreclosure sale. Where the foreclosure is by a power of sale, the mortgagee obtains a deficiency judgment by filing a separate judicial action against the mortgagor.

Forced sale even under stable economic conditions, normally will not bring a price that will reflect the reasonable market value of the property if it were marketed outside the foreclosure context. Moreover, in times of several economic downturn, mortgaged property often sells for substantially depressed prices. To make matters worse, mortgagees occasionally purchase at the foreclosure sale for a deflated price, obtain a deficiency judgment and resell the real estate at a profit.

The great depression of the 1930’s, as might be expected, produced a substantial amount of varied state legislation to provide relief for mortgagors. Perhaps best-known were the various moratoria statutes.  Such legislation different from state to state. Some statutes gave courts authority to grant foreclosure postponements on petition of mortgagors in the individual case. Other statutes extended the period of statutory redemption beyond the usual period or stretched out the periods of time in a foreclosure action. Most of this legislation was upheld against federal and state constitutional attack. Constitutional law students are a family with Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), which upheld the Minnesota legislation, finding it not to be an unconstitutional impairment of the obligation of contracts.

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