Mortgage Laws and Contracts

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Each state within the U.S. varies significantly from the other on its mortgage laws both on the legal theory that inspire mortgage contracts and how the rights of creditors are balanced with that of borrowers. Despite these differences, mortgage laws across the U.S. can be traced back to America’s history. However, to better understand how mortgage fraudulent activities occur, it is essential to trace the history of mortgage laws in the U.S including how states adopted statutes that currently govern real estate security instruments such as deeds of trusts and mortgages and what caused differences on the time required for the borrower to redeem the property before or after foreclosure.
The word mortgage was conned from a French term which means death pledge; thus, the pledge ends when either the property is taken through foreclosures or the obligation to pay the amount required within a specific period is fulfilled (The free dictionary, 2013). History of the U.S. mortgage laws starts in the medieval England where mortgages were based on the title theory of mortgage law. Early English laws were derived from civil law and the Roman hypotheca (Kent, 1830). The debtor kept the property while the creditor (lender) was entitled to action hypothecaria (obtaining possession when debtor was in default). Kent, (1830) states that under civil law, a pledge could not be traded whilst lacking judicial approval except in the present of a special agreement.
Under title theory of mortgage law, a lender has the right to formal ownership of the property for the duration of the mortgage (Kent, 1830). However, borrowers legally own the property during terms of the mortgage under lien theory (Gadow, 2000). During this period, all lending interests we...

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