The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases

Henry Rose

Abstract

The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases

(Abstract)

A group who have been hard hit by the recent mortgage foreclosure crisis in the United States are residential tenants. It is estimated that forty percent of the households who have been displaced by mortgage foreclosures are tenants.

Some tenants have been evicted from their homes without notice pursuant to foreclosures of the mortgages on the buildings where they reside. In states which require judicial supervision of mortgage foreclosures, it likely violates basic principles of procedural Due Process for tenants to be evicted without notice. In states that allow non-judicial foreclosures, constitutional Due Process protections of notice and an opportunity to be heard may not be available to tenants due to a lack of state action.

A federal law, the Protecting Tenants at Foreclosure Act of 2009, provides new substantive law protections to tenants who reside in buildings undergoing foreclosure. However, this law is much weaker in creating procedural rights for tenants. The law should be amended to provide all tenants in the United States with notice and an opportunity to be heard when a foreclosure threatens to terminate their tenancies.