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Foreclosures & The Rule of Law

During a momentary escape from a brief I’m trying to complete before the end of today, I ran across an article on the Pennsylvania Litigation Blogabout a sheriff who has become a hero to some because he won’t conduct auctions on foreclosed homes as the law requires.

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008. It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do. At least, it was the morally right thing to do in that commenter’s opinion.

I disagree. At least I think I disagree. (Keep reading!)

So when I read the comment praising the sheriff, I started to post the following comment in response, but then decided that since my comment was getting a little long, and since that post was so old, and since my current briefing schedule has temporarily interfered with my completing a blog article for this blog, I’d post it here instead. Hopefully, it will inspire some fresh commentary, because (when I stop and think about it), I’m not 100% sure how I feel about this myself!

This is what concerned me and what I started to post:

Does that mean you think the law does not matter?

I agree that it would be great to find a way to help people keep their homes. However, approving of the sheriff’s refusal to enforce existing law just because you like the result is bad precedent.

What will you do when he decides — based on his own moral code — to refuse to enforce laws that you think are good? What will you do if he decides to take away some of your rights, because they get in the way of what he wants to do?

Because that’s exactly what he’s done here: he’s taken away the rights of those who paid for the property. Remember, when you buy a house, the bank actually pays for it. You then pay the bank back. If you don’t pay the bank back, you’ve taken their money. If the sheriff refuses to evict you and sell the property, he’s a government agent endorsing an improper taking contrary to the Fifth Amendment.

In fact, it’s even worse, because he’s not really taking private property for public use; he’s merely endorsing your theft of property. One can argue he’s taking private property from one party (the bank) for private use by another (you).

Frankly, I believe banks need to be better regulated so that they cannot take advantage of people who don’t always understand the long-term consequences of their acceptance of the kinds of loans the banks give them.

But a sheriff who decides which laws to enforce and which not to enforce is no sheriff at all. He is, in essence, no better than a criminal, ignoring the rule of law.

When the law is “wrong” and hurts people, the law should be changed by the legislature; not because the sheriff decided to ignore it.

Now, mind you, I’m not unaware — as I believe I pointed out above — that it’s a real shame what’s happening to people in the current market, with the economy and housing going the way it is right now. My own house is “upside-down,” as they say.

I’m also aware that the Adjustable Mortgage Rate (ARM) type of loan that many people (including me, by the way) bought into is the cause of many a default when the rates zoom skyward.

Something should be done about this. From what I understand, the last run of defaults is about to be repeated in a new wave this coming year when several people (myself included!) will see their ARMs kick in.

But that “something” is not for a sheriff to take it upon himself to decide that he won’t perform his duties — to decide that it’s okay for banks to be stiffed — because homeowners are suffering.

I hope banks do end up losing out for their refusal to help fix a mess they helped create. (People like me who made misjudgments about how these loans would play out helped, too. And we are losing out, believe me!)

But, again, I’m not at all sure that the answer is a sheriff who refuses to do what his job requires.

Now that I’ve said that, though, let me throw this out there: What if sheriffs throughout the land had refused to endorse “Jim Crow” laws in the last century? That would have been a moral thing, right? But it would also have been contrary to law, right? And it’s the duty of sheriffs — as with all law enforcement officers — to uphold the law, right?

The water is a little murkier now.

I can’t even completely argue that the situation is different here because the foreclosure problem just has to do with people losing their homes — it’s a property question — and “Jim Crow” laws weren’t. But weren’t they, to some extent at least, property laws? White bigots wanted to bar African-Americans from access to their property. White bigots wanted to choose to whom they would provide services. White bigots, having power, wanted to use the power to their own advantage and to the disadvantage of non-whites.

How is that different from what the banks want to do now?

But if — as I do strongly believe — it would have been acceptable for sheriffs to refuse to enforce “Jim Crow” laws, why is it not acceptable for sheriffs to refuse to force people from “their” homes and sell them on behalf of the banks who actually own them?

I don’t have an answer. It’s definitely something for me to mull over. My fear is that saying it’s alright for a sheriff to pick and choose which laws to follow — and how — is contrary to the rule of law and ultimately hurtful to us. The Benevolent Fascist is no more welcome in my world than The Nasty Fascist. Today, the duty the sheriff refuses to perform is enforcing laws pertaining to mortgage contracts, foreclosures and sales of foreclosed homes. Tomorrow, might not it be our civil rights?

Or is this just a cloaked slippery slope argument?