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Foreclosure Mediation Comes to Bankruptcy Court?

by Heather Scheiwe Kulp
March 2011

From the Just Court ADR blog

Heather Scheiwe Kulp

The end of March marked the end of two madnesses: Connecticut’s journey to the championship and a foreclosure mitigation bill’s journey through the Senate Judiciary Committee. But the journey is over in only one court.

On March 31, the Senate Judiciary Committee approved the first federal bill to back foreclosure negotiation programs. While foreclosure is usually a state issue, federal bankruptcy courts deal with home mortgages as one of a filer’s debts. Therefore, a recent court case grappled with the issue of whether a federal court could create processes to manage foreclosures. In January, a federal court declared that bankruptcy courts have jurisdiction to create programs for servicers and borrowers to talk about properties that may be foreclosed on.

The federal Limiting Investor and Homeowner Loss in Foreclosure Act (S. 222) is modeled after the Rhode Island loss mitigation program (the subject of the aforementioned legal battle) and a similar New York mediation program. S. 222 permits bankruptcy courts to create loss mitigation programs for debtors and debt holders to discuss foreclosure alternatives. After heated discussion, and in the messy foreclosure milieu that includes the House ending the Home Affordable Modification Program (HAMP), the bill passed out of the Committee by a vote of 10-8. The blogosphere sent up a cheer: the feds were finally supporting foreclosure mediation! But is this really what they think it is?

While encouraging bankruptcy courts to create these programs may provide a valuable point of contact between borrowers and servicers, S. 222 is not a foreclosure mediation bill. Certainly, some loss mitigation programs may include mediation (and I hope many do). But, nowhere in the bill is there mention of a third-party neutral – a mediator, shall we call it? – facilitating the conversation. Nor are there any rules, guidelines, or standards for the parties to follow. Mediation without a mediator, without a process, without ethics, is no mediation at all.

This points to a larger problem in the emerging world of alternative foreclosure programs. Many processes that help borrowers and servicers discuss options call themselves mediation when, in fact, the informal process proposed is mitigation. Mediation may explore ways to mitigate a foreclosure, but meditation does not guarantee mitigation. By confusing the terms, mediation is getting an incorrect (sometimes negative) name. I’m concerned this may jeopardize attempts to implement actual mediation programs in the future.

I’m not opposed to foreclosure mitigation programs: quite the opposite. But let’s call the ones that don’t use mediators something other that mediation, eh?

As for S. 222, a bi-partisan effort by Sen. Sheldon Whitehouse (RI), the primary sponsor, and Sen. Jon Kyl (AZ) will help the bill move through the Senate. It’s been placed on the Senate legislative calendar for later this spring.

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Biography


Heather Scheiwe Kulp is a lecturer on Law at Harvard Law School and a Clinical Instructor at the Harvard Negotiation & Mediation Clinical Program.

Prior to joining Harvard Law, Heather was a Skadden Fellow at Resolution Systems Institute/Center for Conflict Resolution in Chicago. While there, she designed court- and government-based conflict management systems for self-represented and low-income parties. She focused on foreclosure dispute resolution programs, but also conducted research and systems design in the areas of elder, child custody, and small claims mediation. Her conflict management consulting clients have included Physicians Computer Company, the State of Hawaii, the Uniform Law Commission, and the Utah Bar Association. Her work is published in scholarly and popular press, including the American Bar Association, the Los Angeles Times, the Pepperdine Dispute Resolution Law Journal, and Wipf & Stock.



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