Mortgage Defense and the Law of Restitution

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Wanton and willful financial misconduct in the origination, securitization, servicing and foreclosure of a mortgage debt will not bar collection and enforcement of the debt. Notwithstanding the creditor’s misconduct, the sanctity of debt is the controlling and paramount variable. Judges believe that absent strict enforcement of the obligation to repay debt, the engine of commerce will grind to a halt without lubrication of the gears with commercial credit. Courts throughout the country faced with the choice of enforcing rules or protecting the flow of commercial credit have overwhelmingly found it in the public interest to enforce debt.

Just because a court determines that the remedy of judicial cancellation of the debt is not warranted does not mean that willful mortgage related misconduct does not result in liability compensable by monetary damages.

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Published In: Bankruptcy Updates, Civil Remedies Updates, Finance & Banking Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Richard Kessler | Attorney Advertising

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