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9 Real Prop. Prob. & Tr. J. 421 (1974)
Current Developments in Summary Foreclosure

handle is hein.journals/rpptj9 and id is 431 raw text is: CURRENT DEVELOPMENTS IN SUMMARY FORECLOSURE BY JAMES M. PEDOWITZ* New York, New York I. INTRODUCTION The mortgage which we all recognize today to be a security instrument was originally a conditional conveyance or qualified estate about 500 years ago, with title becoming absolute in the grantee upon the happening of the default.' In the United States, the various states have each developed their own common and statutory law of mortgages. Some states consider the mort- gagee as the fee title owner; most consider the mortgagee as merely a secured lienor, while there are some others that might be considered as hybrid.2 From shortly after the time that the English chancery courts first recog- nized the principle of the equity of redemption in 1625,8 some form of fore- closure has been required in order to cut off the equity of redemption. First it was strict foreclosure which simply barred the equity of redemption without any further sale. The harshness of this type of decree eventually resulted in strict limitations on its use, usually by statute, to the extent it remained available at all. The development of judicial foreclosure and sale gave rise to various efforts to circumvent the time consuming and relatively expensive proce- dures which it required. One such effort was the development of the deed of trust which is utilized in many states, and generally considered the same as a mortgage. The title is conveyed to a trustee upon a trust to reconvey to the grantor when the obligation is satisfied, and in the event of a default to sell the property, usually by public sale. In many respects, it is similar to another widely accepted method of avoiding judicial foreclosure through a contractual power of sale contained in the mortgage whereby the mort- gagee is empowered to sell the property in the event of default. The utiliza- tion of the power of sale is frequently regulated by state statute and some states do not permit it at all. Powerful forces both within and outside of government circles have long been seeking a quick, clean and inexpensive method of effecting sum- mary foreclosures of defaulted mortgages that would be uniformly available throughout the entire country. *James M. Pedowitz is Vice President and Eastern Regional Counsel of Pioneer National Title Insurance Company and First Vice President and Chief Counsel of The Title Guarantee Company. He is also Adjunct Professor of Law at New York University Law School. This article is based upon a presentation to the Real Property Division of the Section of Real Property, Probate and Trust Law of the American Bar Association at its Annual Meeting in Honolulu in August, 1974. 136 AM. JutR. 690. 2OSBORNE, MORTGAGES 32-33 (1951). sEmanuel College v. Evans, 1 Rep. Chan. 18, 21 Eng. Rep. 494 (1625). 421

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