Those deeply underwater on their homes have a nice option that renters and those with equity in their homes don’t. That option is to stop making home payments, effectively living in their home or condo scotfree, for as long as they can.

Millions have take the option, and with each person doing so, the longer the delays. Thus, the more who take that option, the greater the reward for all who do.

The Wall Street Journal reports that it takes 492 Days From Default to Foreclosure, up from 244 days in August 2007.

The average borrower in the foreclosure process hadn’t made a payment in 492 days as of the end of October, according to LPS [LPS Applied Analytics]. That compares to 382 days a year ago and a low of 244 days in August 2007.

In other words, people who default on their mortgages can reasonably expect, on average, to stay in their homes rent-free more than 16 months. In some states such as New York and Florida, the number is closer to 20 months.

Speeding up the process won’t be easy, as demonstrated by the banks’ continuing legal troubles related to robo-signers, bank employees who signed foreclosure affidavits without properly checking the required loan documentation.

Millions of Americans still are paying their mortgages even though they owe more than their homes are worth. The more banks’ backlog grows, the more likely they are to join it, adding to the already giant pile of foreclosures weighing on the housing market.

Imperative to Speed Up Foreclosures

Clearly it is imperative to speed up the foreclosure process. To not do so is inequitable and creates moral hazards.

However, some who do not like the current system pretend to be worried about the .0004% or whatever preposterously low number of homeowners who might be kicked out of their homes allegedly in error.

Making matters even worse, a large and growing number of misguided souls think it is “unjustifiable” to boot homeowners unless and until someone can “produce the note”.

Such thinking encourages still more defaults, weighs down the courts, and does nothing to produce an equitable solution, for anyone.

Simple Undeniable Facts

The simple, undeniable fact of the situation is that anyone who has not paid their mortgage for over 90 days deserves to lose their home, except in very limited conditions I describe below.

The acid test for me is the simple question “Have the mortgage payments been made, and if not, then why not?” If the answer is no, then the home owner should be given a chance to become current or lose the house.

The “limited exception” is as follows: If a homeowner can provide reasonable evidence he is late due to fault of the lender or processor, then we need to work out a suitable remedy. One equitable approach would be to remove all penalties and late fees and fine the hell out of the processor or lender, especially if there are repeated errors, perhaps giving some of those fines or fees to the homeowner.

That’s it. You either paid your mortgage or didn’t, either through your fault or the fault of the lender (e.g. They misapplied your mortgage payment, jacked up late fees while doing so, and did not address your concerns when you brought them up).

Anyone care to address the percentage of loans that meet that criteria?

Otherwise, booting out the homeowners for nonpayment is an equitable solution. If the lender wants to work out other solutions, that is fine by me as long as there is no requirement lenders have to make such attempts.

If a lender thinks it is in their best interest to foreclose (providing the borrower has not made payments), then foreclosure it should be.

Addressing Fraud

A second situation arises because booting out homeowners does not address robo-signings and other errors by lenders and processors, of which some are mistakes, others clearly fraudulent.

Equity in those situations can (and should) be dealt with via severe fines, suspensions, and firing those involved, all the way to the top of the pyramid.

The key point is there are two separate and distinct issues that do not have to be solved simultaneously, regardless of how many misguided souls try to portray two issues as one.

Mike “Mish” Shedlock
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