Jill Fraley, ‘Modern Waste Law and Residential Mortgages’

ABSTRACT
… Using new research on the evolution of waste law, this Article traces the changes that allowed lenders – who at the common law had no standing – to bring waste actions and how the doctrine has evolved to make those actions more available and more lucrative for lenders. Drawing on that history, this Article argues that in the context of bankruptcy law, waste judgments create multiple problems, including frustrating the general purpose of a fresh start, amplifying concerns about peonage – particularly given the history of discriminatory subprime lending – and further obfuscating an existing circuit split on the rules for when a tort claim can be discharged. For property law, lender waste claims create additional problems …

Fraley, Jill, Modern Waste Law and Residential Mortgages (March 31, 2019). Cardozo Law Review, forthcoming.

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