** Restatement of the Law Third,
Property (Mortgages)
xviii, 743 pp., 1997,
hardbound, Order Code 6076, $85 -- Order this item; softbound, Order Code 6080, $37.50 -- Order this item** Formerly called Restatement of the Law Third, Property – Security (Mortgages).
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This Restatement constitutes the Institute’s first comprehensive examination of the law of real estate mortgages and mortgage substitutes.
Because legislative reform in this field has not been uniform or consistent, the need for clarifying judicial resolutions of various issues has become increasingly apparent. While lack of uniformity may have been only a minor inconvenience in an earlier era, today it is a serious obstacle to the nation’s economic wellbeing. With the vast expansion in the flow of funds across state lines for real estate financing purposes, the mortgage market, which 30 years ago was almost entirely local in nature except for the Federal National Mortgage Association’s trading in FHA and VA loans, has now become truly national in scope. Mortgage loans, as well as securities and debt instruments collateralized by mortgage loans, are constantly traded across state lines in vast volume. It has also become common for lenders that originate mortgage loans to transfer the servicing rights to entities based in other jurisdictions.
Because legal differences from state to state can seriously impede the carrying out of these business arrangements, a major goal of this Restatement has been to assist in unifying the law of real property security throughout the nation. Thus, while lenders in the United States have made use of a variety of real estate security devices, the Restatement proceeds on the premise that only one real property security device, the mortgage, is needed. If the rules governing the mortgage are efficient, flexible, and equitable to both borrower and lender, there should be no need for the invention or perpetuation of other devices, and this Restatement in effect encourages their eradication by the courts and legislatures.
Applying classic legal concepts to contemporary social and economic circumstances, this Restatement provides both coherent doctrine and supporting analysis that will meet the legitimate needs of the lending industry while providing reasonable protection for borrowers.
The work is divided into eight Chapters:
Chapter 1
deals with the formalities of mortgage creation and function. Its principal goals are to eliminate unnecessary barriers to the creation of valid mortgages and to clarify certain minimum requirements of mortgage law.Chapter 2
draws on the best of both case law and statutory sources to arrive at a modern and doctrinally coherent approach to the law of future advances.Chapter 3
’s core concept is the mortgagor’s equity of redemption, the basic and historic right of a debtor to redeem the mortgage obligation after its due date, and ultimately to insist on foreclosure as the means of terminating the mortgagor’s interest in the mortgaged real estate.Chapter 4
’s principal theme is that a mortgage creates only a security interest in real estate. This reflects the adoption of the "lien" theory and the rejection of the "title" and "intermediate" theories of mortgage law. The Chapter deals in depth with many of the complexities of receivership, and, in addition, provides an approach to the thorny problem of rental assignments that is both innovative and grounded in the approach being developed in many of the states.Chapter 5
deals with transactions in which real estate encumbered by a mortgage is transferred either with or without an assumption of personal liability by the transferee.Chapter 6
considers such topics as the right of a mortgagor to prepay in the absence of an agreement prohibiting prepayment, the enforceability of prohibitions and restrictions on prepayment, limitations on enforcement of prepayment fees in connection with casualty insurance or takings in eminent domain, and redemption from a mortgage by performance or tender.Chapter 7
deals with common and sometimes difficult mortgage priority issues and related concerns. Importantly, it extends to priority questions created by mortgage modifications the approach that Chapter 2 applies to future-advances mortgages.Chapter 8
covers frequently litigated and often troublesome issues that arise during the foreclosure process.As a whole, this authoritative work treats a complicated subject in lucid terms, combining clear black-letter provisions with extensive explanatory Comments, clarifying Illustrations, and detailed Reporters’ Notes. The Comments thoroughly explicate the background, rationale, and applicability of the black-letter provisions, while the Reporters’ Notes document and discuss the sources for the black letter and Comments and provide a convenient basis for further research. The work is further enhanced by a table of cases, statutes, and cross-references to the West Digest System and ALR annotations, and by an Index. The volume is updated annually by a cumulative pocket part.
Reporters:
Grant S. Nelson, University of California at Los Angeles School of Law, Los Angeles, California; Dale A. Whitman, J. Reuben Clark Law School, Brigham Young University, Provo, Utah.Advisers:
Curtis J. Berger, Columbia University School of Law, New York, New York; Roger Bernhardt, Golden Gate University School of Law, San Francisco, California [from 1992]; Charles G. Blaine, Buffalo, New York [from 1991 to 1994]; Hugh A. Brodkey, Chicago, Illinois; Ann M. Burkhart, University of Minnesota Law School, Minneapolis, Minnesota; George H. T. Dudley, St. Thomas, U. S. Virgin Islands [from 1992]; Morton P. Fisher, Jr., Baltimore, Maryland; Marvin Garfinkel, Philadelphia, Pennsylvania; Richard R. Goldberg, Philadelphia, Pennsylvania; John A. Gose, Seattle, Washington; John D. Hastie, Oklahoma City, Oklahoma; Mendes Hershman, New York, New York [Deceased 1992]; Michael H. Hoeflich, University of Kansas School of Law, Lawrence, Kansas; Barbara Taylor Mattis, University of Miami School of Law, Coral Gables, Florida; Noel W. Nellis, San Francisco, California; Owen C. Olpin, Los Angeles, California; Anna B. Pope, San Francisco, California; Michael H. Rubin, Baton Rouge, Louisiana [from 1990]; Flora Schnall, New York, New York; Stefan F. Tucker, Washington, District of Columbia; George Whittenburg, Amarillo, Texas; Robert M. Zinman, Saint John’s University School of Law, Jamaica, New York.Tentative and Other Annual Meeting Drafts
Tentative Draft No. 1: Introduction; Chapter 1. Creation of Mortgages; Chapter 2. Future Advances; Chapter 3: Mortgagor’s Equity of Redemption and Mortgage Substitutes (§§ 3.1-3.3)
xxii, 183 pp., 1991, Order Code 5328, $30 -- Order this itemTentative Draft No. 2: Chapter 3. Mortgagor’s Equity of Redemption and Mortgage Substitutes (§§ 3.4 and 3.5); Chapter 4. Rights and Duties of the Parties Prior to Foreclosure (§§ 4.1 and 4.2); Chapter 5. Transfers of Mortgaged Real Estate; Chapter 1. Creation of Mortgages (Revision of § 1.6)
xxiii, 158 pp., 1992, Order Code 5377, $30 -- Order this itemTentative Draft No. 3: Chapter 4. Rights and Duties of the Parties Prior to Foreclosure (§§ 4.3-4.9); Chapter 6. Payment and Discharge (§§ 6.1-6.3)
xix, 152 pp., 1994, Order Code 5467, $30 -- Order this itemTentative Draft No. 4: Chapter 7. Priorities
xix, 145 pp., 1995, Order Code 5528, $30 -- Order this itemTentative Draft No. 5: Chapter 5. Transfers of Mortgaged Real Estate and Mortgages (§§ 5.4-5.5); Chapter 6. Payment and Discharge (§ 6.4); Chapter 8. Foreclosure; Chapter 1. Creation of Mortgages (Revision of § 1.6)
xxii, 204 pp., 1996, Order Code 5549, $35 -- Order this item