As governments continue to wage war in the form of legislation against lending institutions, we move one step closer to economic chaos and the collapse of marketable title. When business cannot rely on government and courts to enforce contracts and provide for the smooth transfer of assets, then traditional business will cease and the transfer of property shall continue only in primitive form. Since real estate is most families’ greatest investment and asset, our economy cannot afford to allow economic Armageddon. One such statute is the Home Equity Theft Prevention Act (HETPA). Now an anachronism, and fueled by the former free flow of credit to persons without income, jobs or assets, the statute targeted scam artists who would convince a home owner to “refinance” their property and then steal it from the homeowner. Besides providing a two-year right of rescission for investment residential home purchases, the statute is also loaded with so many procedural landmines as to imperil every residential foreclosure filed.

In May 2011, the Second Department came down with only the second appellate decision to construe the collection of procedures in mortgage foreclosure under HETPA, Aurora Loan Services v. Weisblum,1 reversing trial term but adhering to the larger trend in trial terms through the state to construe the procedures strictly against allowing the foreclosure to proceed. While such construction is intended to maximize consumer protections, it also presents additional hazards to the title industry unless it takes appropriate precautions.

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