Friday, February 3, 2017

#PropertySchmooze Panel 3: Adverse Possession, Mortgage Middlemen, and the Public Trust Doctrine

Panel three is up at the #PropertySchmooze!  Time to talk adverse possession, mortgages, and the public trust doctrine.

John Lovett (Loyola) is the lead batter for panel three discussing his work, What We Talk About When We Talk About Adverse Possession:  Part 1 (1881-1985). John's work looks at the history of adverse possession in the United States.  In looking at the scholarship on adverse possession through the centuries, John finds there are five themes scholars have focused on:  (1) what was adverse possession fundamentally--was it a statute of limitations or an affirmative means of acquiring property?, (2) what elements should be required for adverse possession?, (3) what was the social, legal, and institutional purpose of the doctrine, (4) how American adverse possesion law developed to be uniquely American, and (5) an attempt to influence courts analyzing adverse possession cases.  With those themes in mind, John walked through the works of Holmes, Pollock, Maitland, Ballantine, Bordwell, Fuller, Walsh, Stoebuck, Callahan, Helmholz, and Cunningham, discussing each scholar's perspective on adverse possession.  John focused on the scholarly debate on the doctrine, analyzing what each scholar said correctly and, in some cases, incorrectly.  In doing so, John provided a historical perpsective on adverse possession, clearing the path for his next piece on modern adverse possession law.   

Batting second is Chris Odinet (Southern), one of my co-bloggers here on #PropertyProfLawBlog.  Chris is talking about his book project, Foreclosed:  American Homeownership and the Mortgage Middlemen.  Chris' book analyzes the relatively unregulated world of mortgage field services and their agents. Mortgage servicers (or who Chris calls the "mortgage middlemen") are the people who manage your mortgage on a day-to-day basis and, importanty for Chris' project, begin foreclosure proceedings if need be.  Chris highlights the abuses that have occurred with mortgage servicers.  He is particularly interested in the "break-in foreclosure" abuse, where a mortgage field service agent breaks into a mortgagee's home before any default takes place, turns off the utilities, clears out the home, and padlock the door.  The purpose of the break-in foreclosure is to clear the property so it can be called abandoned and foreclosed on.  Chris' book sheds light on these problems by sharing stories of homeowners whose rights have been impared by mortgage middlemen.  He then proposes regulations for mortgage middlemen so as to tame the rogue industy practices.    

Last batter for panel three is Erin Ryan (Florida State) who is talking about The Public Trust Doctrine, Private Water Allocation, and Mono Lake:  The Historic Saga of National Audubon Society v. Superior Ct.  The case Erin is focused on concerns the public trust doctrine and Mono Lake, where the public trust doctrine and the prior appropriation doctrine butted heads.  Mono Lake, which is located in central California near the California/Nevada border, was used to provide water to Los Angeles (yes--LA, which is about 350 miles south of Mono Lake).  As one might expect, LA overused the lake, drying it up, injuring the brine shrimp that lived in the lake, thus killing the birds that ate the shrimp that lived in the lake.  This all led to litigation that pitted the public trust doctrine against the prior appropriation doctrine.  Ultimately the public trust doctrine won and the Mono Lake defenders and LA reached a copromise, so there was a happy ending for environmentalists, including for Erin who, as she told us, worked as a "grunt-level" range with the U.S. Forest Service at--you guessed it--Mono Lake.

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