Talk:Mortgage law

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Question
The main article does not appear to mention interest payable on a mortgage and how this is determined. For my own curiosity I am often lead to wonder why it seems short term interest rates are used to determine the mortgage interest rate on a loan which is typically over 25 years or more. Any answers?

Soarhead77 10:51, 25 April 2007 (UTC)
 * Thanks for asking, but this article isn't about mortgage loans, so interest isn't mentioned. As it says at the top: "This article is about the legal mechanism used to secure property in favor of a creditor. For loans secured by mortgages, such as residential housing loans, see mortgage loan." Notinasnaid 11:04, 25 April 2007 (UTC)

Dead pledge
There have been some "helpful" people changing dead pledge to "death pledge". The former makes more sense than the latter. The mortgages derive from pledges, but the pledge element has ceased to operate and is "dead". "death pledge" conjures ideas of something made in a will.

The analysis (the pledge being dead) is from Littleton so is authoritative. A friend, who holds a Phd in Romance linguistics tells me that "dead pledge" is, in any case, the better translation.

So please no more changes without discussing it here. Francis Davey 21:56, 25 November 2005 (UTC)
 * I wholeheartedly agree. Lawrence Lavigne 22:42, 25 November 2005 (UTC)
 * While I do not disagree with the translation of the term, my understanding is that a "mortgage" was traditionally contrasted with a "live gage". A live gage was a loan to be repaid from the profits from the land itself (e.g., farming or raising cattle), while a mortgage was to be repaid from other proceeds (e.g., the now-usual "day job" that pays for a place to live).  I do not have an authoritative source, however. chrylis (talk) 20:33, 7 October 2008 (UTC)


 * No. That's exactly right. Its covered in most good introductory legal history books. "dead gage" isn't a good translation because "gage" isn't modern English. Francis Davey (talk) 17:59, 8 October 2008 (UTC)


 * In that case, if you have a ref, I would find it helpful to mention the history of the term in the article, because just giving the translation into Modern English doesn't make much sense, whereas historically it is entirely sensible. chrylis (talk) 01:13, 10 October 2008 (UTC)


 * My understanding is this, mortgage is a deceptive word used by people in power. It is derived from mort+gage, which in french is dead pledge. It's changed to death pledge because for the common people, when you buy a house-dwelling, most will pay for it until they are deceased. Add in inflation, and this calculation becomes more realized as the years go by. The forefathers of our world knew all of this, and that's why some of these translations cannot be understood. Now you see how many people seem to be adding death pledge, maybe there is burden of proof within the edits taking place itself. And Wikipedia being a free Encyclopedia, maybe some of these people want to add plausibly factual information to prevent others from deception of those in power. The true definition of the word would put fear into human beings, which is what banks would not want, for people to buy their property better ways instead of paying 200% or more what it is worth because of interest. —Preceding unsigned comment added by 8Michael-Thomas1 (talk • contribs) 10:13, 24 November 2010 (UTC)

Edits
I've made some edits to the top of the page, and I thought I should explain them so that they don't get needlessly reverted.

In legal terms, the creation of a mortgage by legal charge gives the legal title of the land to the debtor and an equitable title (called "equity of redemption") to the creditor. The legal title, however, only exists as a security for a debt and does not convey any title or powers associated with real property. "Is simply wrong (there is an equity of redemption in both classes of mortgage and the legal title in the mortgagor is far from illusory; the creditor does not gain an equitable title -- the debtor has the equity of redemption -- they have a charge) etc."
 * 1) the fact that mortgages differ in form the world over means that we need to avoid a term like "conditional pledge", or "lien", which have specific meanings in some jurisdictions that exclude mortgages. I've used "method" as a neutral term.
 * 2) "chattels" is a bit too specific and technical "other property" will do I suggest.
 * 3) I've reduced or removed references to real property, "fee simple" and so on. Ship mortgages are just too important to ignore mortgages of personalty.
 * 4) I've tried to reduce the level of technicality slightly (eg in definition of a mortgage by demise)
 * 5) I think The property is offered as security to the lender by way of a legal charge (technically charge by deed expressed to be by way of legal mortgage) to ensure the debt is honoured. is much too technical, since it doesn't really say what a "legal charge" is, and the terminology "deed... legal mortgage" sounds very England and Wales POV to me.
 * 6) The following text:
 * 1) It may be that in some jurisdictions the registering of a mortgage creates a lien, but not here and not, I suspect, in quite a few other places. Besides a lien isn't a mortgage everywhere.
 * 2) In England and Wales there are still two ways of mortgaging real property: by demise of leasehold or by way of legal charge, so I have deleted an inaccuracy there.
 * 3) I've deleted everything that is said about mortgage instruments. Until I've seen some evidence of any common form of instrument, it should stay that way. I can grant a mortgage by way of deed, I suspect I can grant an equitable mortgage more easily than that still.
 * 4) I've added some more explanation to the history section and I am actively researching the position in US states to augment my own knowledge of EW. Francis Davey 22:15, 7 November 2005 (UTC)

Accuracy
As written the definition part of this article is hopeless. First it assumes that all mortgages are mortgages of real property -- whereas it was perfectly possible to mortgage any property and indeed ship mortgages are very important in England and Wales. Second, in my common law jurisdiction, a lien is quite a different thing from a mortgage. The notions may have merged elsewhere, but that needs to be clear in the definition. Hmmmmm. Francis Davey 20:45, 26 August 2005 (UTC)


 * I've just tried to improve the accuracy a bit. Historically mortgages are not liens (I checked). Francis Davey 19:41, 1 September 2005 (UTC)

No offense to the people who wrote this article, but (to a layman) it reads like it was translated (badly) from another language. Just try the 2nd paragraph:


 * At common law, a mortgage was a conveyance that on its face was absolute and conveyed a fee simple estate, but which was in fact conditional, and would be of no effect if certain conditions were met --- usually, but not necessarily, the payment of a debt by the original landowner. Hence the word "mortgage," Law French for "dead pledge;" that is, it was absolute in form and in theory required no further steps to be taken by the creditor.

Can someone who understands it better than I please clarify the article. (I would if I know more about them) &rarr;Raul654 10:19, Feb 1, 2004 (UTC)

Can anyone add the history of mortgages? I know they were not known under Roman law; I know that one pope had to issue special bulla to allow mortgages in Poland - i know that they were popular in Poland since XIV or XV century, the same with Bohemia, and that Polish laws on mortgage were partly then adopted by Prussians (and Austrians too?)... Szopen

I've heard that most US mortgages are based on a 360 day year. Using the equations provided, they match with numbers of an amateurization schedule that supposedly fit a 360 day year calculation. Does anyone know the specifics of this?--Mylon 14:59, 2 Apr 2005 (UTC)

I wanted to comment on the following: ''In legal terms, the creation of a mortgage gives the legal title of the land to the mortgagee and an equitable title (called "equity of redemption") to the mortgagor. The legal title, however, only exists as a security for a debt and does not convey any title or powers associated real property.''

I only have a first year law student's property class understanding of mortgages, but I can say that whether a mortgage conveys title and what powers are invested in the mortgagee by that title depends on the State you're in. For example, some states, known as lien states, do not transfer title. (see this Buffalo Law School, State University of New York, Professor's mortgage page). Is there an attorney who is willing to edit the entry? &rarr;Bmg 15:15, Jun 18, 2005 (UTC)


 * They don't convey title here (England and Wales) either, I've tried to amend the main heading a little. Here you can convey leasehold title, but that is now rarely done. Francis Davey 19:41, 1 September 2005 (UTC)

Difficult to understand
I agree that this article is very difficult to understand. I thought that I knew all about mortgages, but couldn't begin to make edits to this text.

Is the article refering to mortgages in the US? Maybe that's why it makes no sense to me in the UK? --JimmyTheWig 12:08, 20 Jun 2005 (UTC)


 * I think that the article certainly starts out very clear and concise. After that it does get a bit difficult to understand.  I think that some of this is just that the article is getting pretty long (31K) with lots of details.  Perhaps we can break off more content into other articles.  There's already an article just for UK mortgage terminology, for example.


 * I'm thinking that some of the details about the notes can be left in other articles. For example, some of the details about how the note amortizes (full, balloon, interest only, option, bi-weekly) and how payments are adjusted (fixed, adjustable rate, hybrid, graduated payment) could probably be made simpler in this main article.


 * What else could we pare off? Sciprogrammer 06:13, 6 November 2006 (UTC)


 * The sections specific to the US and the UK could go in separate pages; in fact a lot of the info is specific only to the US and could be generalized to make reading easier. Likewise, the more specific legal details could probably be split out (i.e. deed of trust vs everything else). It may also be worthwhile to split out residential mortgages entirely. I also agree that the specifics of the notes are not needed here. The interest types could also be split out into a separate article or series of articles.--Gregalton 08:26, 14 December 2006 (UTC)

Deeds of Trust
This article makes absolutely no mention of a deed of trust, which is a critical instrument in the process of mortgaging in the State of North Carolina, USA, and presumable other many other states and nations which have similar laws regarding real property interests and secured debts.

In North Carolina, a mortgage commonly refers to a loan which is secured by an interest in real property. The loan is secured by a contract called a Deed of Trust. When a purchaser obtains title to a property, the property is convened by a document called a transfer deed. If previous owner conveys the fee simple interest in the property in conjunction with a warranty of title, the transfer deed is more specifically referred to as a warranty deed; if the previous owner is simply relinquishing his, her or its claims to any interest in the property to another party, the transfer deed is more specifically referred to as a quitclaim deed.

Typically, if a property is purchased with conventional financing, the seller prepares a waranty deed conveying fee simple interest to the buyer. The lender prepares a document called a deed of trust, which states that the buyer agrees to pay back the pertinent loan, and that if the buyer defaults, title to the property will transfer to a trustee (not the lender) who is obligated to sell the property to the highest bidder at the courthouse door, the proceeds going to repay the loan.

The warranty deed, deed of trust, and the funds necessary to compensate the seller are delivered to an attorney, who files the deeds simultaneously with the county register of deeds. All signatures are notarized to ensure the authenticity of the parties. The money is disbursed to the seller, and (or) to the seller's lender, if a previous deed of trust need be satisfied. The purchaser is typically required to carry title insurance, which is usually procurred by the attorney.

In all deeds, the party conveying an interest is called the grantor, and the party receiving an interest conveyed is called the grantee, usually with the singular male term representing any single, plural, male, female, private or corporate entity; in antiquity, grantees, grantess, and grantesses may have been used.

Before the new owner may convey his, her, or its acquired fee simple interest in the subject property, the register of deeds will require that the deed of trust be satisfied (cancelled). This typically occurs by the lender's attorney filing a satisfaction (cancellation) of the deed of trust with the county register of deeds at such time that the mortgage is repaid.

If the owner cannot repay the debt, the fee simple interest to the property is conveyed to the trustee, who then offers the property for auction at the courthouse door. Typically there are no sufficient bids, and the lender bids the amount equal to what remains owed. Then title passes to the lender by means of a transfer deed.

The lender will then typically sell the property on the open market in order to reclaim the loss. --Mm35173 19:22, 3 August 2005 (UTC)


 * Fascinating. I wonder how that system of mortgages was developed. It is nothing like the historic system that operated in England (where the concept originated). Can you give a reference for the above? It could go in as a variant.


 * See and adjacent chapters of the state general statutes. BTW, I am a real estate appraiser, not a lawyer.

--Mm35173 18:13, 21 September 2005 (UTC)


 * In WA state, also, there are technically two options: mortgage and deed of trust, and all transactions are deed of trust rather than mortgage because deed of trust allows nonjudicial foreclosure and the debtor has no redemption rights. I'll add this if no one else does it.--Zilonis 14:00, 27 July 2006 (UTC)


 * This is specific enough that perhaps a separate article and a link to it would be more useful? It is detailed enough and useful info to warrant a separate article. —The preceding unsigned comment was added by --Gregalton 08:31, 14 December 2006 (UTC)

Predatory mortgage lending
I removed the section with the above title, created a separate article and included a link to the new article. The main reason for doing so is the issue being discussed is not NPOV and smacks of a personal crusade by the author.

Secondly the mortgage page has been refined by numerous editors for some time now to give some logical flow to the subject and to remove country specific language and bias. The author of this section is obviously writing from a US perspective and makes reference to many US only issues. To the general (global) reader these references are meaningless.

I suggest the content be re-written from an informed global perspective and include possibly as part of a mortgage regulation page that discusses the need for regulation and different approaches from around the globe. I will be happy to add the UK perspective to the page. simonthebold 09:38, 10 April 2006 (UTC)
 * Simon, I would welcome a global perspective on the subject of predatory mortgage lending. But I fail how it can be described as a "personal crusade". On the contrary, its a valid subject which should be addressed in any article on mortgage. At the very least there should be some mention of this within the body of the article. Piercetp 00:10, 11 April 2006 (UTC)
 * I saw the edit and it suits me fine. Good work Simon. I am glad we could come to an agreement in a mature way.Piercetp 20:42, 11 April 2006 (UTC)

Torrens title registration system
I removed this section of the article. While it does relate to the recording/registration of interests in land, it has nothing specifically to do with Mortgages and is covered in more appropriate articles. 24.248.56.59 18:59, 13 April 2006 (UTC)

Formulas
Would it be possible for someone to include the formulas used in creating/managing mortgages? http://www.datadynamica.com/FinCalc/Fin3.htm might be helpful. It would also be helpful to include a formula to find which month the mortgage is in... Like month 230 of 360 without having to count... possible? Just my 2c.
 * Don't really have to count. Is 12 * elapsed years + months really that difficult to calculate?

Average Percentage Rate (APR) Calculations are very important to the mortgage market as they are used as a comparison for the mortgage rates. In the UK and EU they have different requirements to the USA when doing APR calculations. There is a good list of the difference in these criteria here http://www.ukmortgagez.co.uk/APR_calculations.htm I hope this helps.

Islamic mortgages
"All of these methods are still compensating the lender as if they were charging interest, but the loans are structured in a way that in name they are not."

Shouldn't the article mention that if the bank buys the house first and then rents it with an option to buy to the debtor it is assuming the risk of the transaction? I'm not editing the article because I don't have sources and I'm not really sure, but in Spain the law says that if you can't pay the monthly mortgage payment the bank can get the house, auction it (with a less-than-market price) and if that's not enough to pay off the loan you must keep on paying the difference, so if the house price drops you find yourself paying a high price for a small home. With Islamic mortages (this is where I would need sources) if the creditor can't pay the loan the bank keeps the house but since it wasn't lending you money but renting the house it can't keep charging the creditor for it, doesn't it?

Also, my first wikipedia post, my name is Joaquin. This might go wrong, hope it helps

OK, I already did the edit. Asked an islamic friend and he told me that the risk sharing is true. I am still looking for a good souce to link to this. There are some Islamic Mortgages like UM Financial and Salam Financial. All they do is that you pay 25% of the house then you pay them the rest every month using 0% interest Then what does the bank earn?


 * The interest is still there, just being called a different name. Think of a finance lease: you make an advance payment and monthly payments. At the end you may "own" the asset. There is no interest identified as such, but the interest is implicit (I can assure you the banks doing islamic finance are calculating "interest" for their internal use).--Gregalton 08:35, 14 December 2006 (UTC)


 * The description of Islamic mortgages has been taken out of the article for some reason. Could it either be put back, or a link to a new article made, please? --New Thought 09:10, 8 March 2007 (UTC)
 * This article is now only about the legal concept of a mortgage (" legal mechanism used to secure property in favor of a creditor"). It was split up, with the information about the loan in a new article; the information you seek is now in mortgage loan. Notinasnaid 09:15, 8 March 2007 (UTC)

Do predatory practices exist world wide?
I am wondering because the article cites Predatory Mortgage practices only in the context of the United States. Either the laws regarding unethical mortgage practices are very strict in other countries and well enforced (as they should be.... sorry a bit of personal opinion here), or the practices have not been addressed in the article. Piercetp 18:43, 19 November 2006 (UTC)

Propose split into mortgage and mortgage loan
Looking at this article, it seems that it began as an article on the mortgage itself (the legal concept of security); and has now morphed into a long article on mortgage loans and mortgage lending. I would propose splitting this into separate articles. Are there opinions on this? Anyone massively object? —The preceding unsigned comment was added by Gregalton (talk • contribs) 08:53, 15 December 2006 (UTC).


 * In absence of responses and in the interest of being bold, I've moved much of the text to mortgage loan, leaving the legal mechanism of a mortgage/security here. This should also be an opportunity to get more specific/less specific for various countries. Grateful all reactions, but before reverting back, please look at the other page and see if this split makes sense.--Gregalton 15:29, 16 December 2006 (UTC)


 * I strongly agree; the split makes perfect sense.Anoneditor 03:08, 18 December 2006 (UTC)

Other Terminologies
It seems to me that a problem with this section of the article is that it is heavily influenced by U.K. practice; some of the terms, such as "sealing fee" have no usage in the U.S. Perhaps the section ought to be labeled as U.K. mortgage "jargon," and a separate section added to the treatment of U.S. mortgages covering the same kinds of issues. Also, "Bridging Loan" probably doesn't belong here because it is not a mortgage issue, as such, but merely one of many kinds of loan that might or might not be secured by a mortgage. Anoneditor 22:52, 28 December 2006 (UTC)

[edit]The deed of trust The deed of trust is a deed by the borrower to a trustee for the purposes of securing a debt. I don't understand the above part of this article. Is it possible to explain without using the word 'deed' in the definition.

84.9.43.190 16:14, 8 January 2007 (UTC)


 * I don't think you can explain the deed of trust without reference to a deed. However, perhaps a better understanding of this requires a trip down the memory lane of the English common law of mortgages.  I believe the early practice in England was for a borrower to secure the repayment of a debt to his lender by giving the lender the deed to his property.  In the eyes of the English law courts, this deed was a conveyance of the title to the property that made the lender the owner even though the lender's agreement with his borrower was that he would reconvey the title to the property back to the borrower when the debt was paid.  Notice that this is the use of a deed to the property to secure the repayment of a debt.


 * The original states of the U.S. adopted the old English law on this subject. However, in modern times in the U.S. (and I believe in England, too) securing the repayment of a debt with the title to land is performed by the borrower giving a mortgage to his lender, rather than a deed.  However, if a deed is used for this purpose, the statutes of almost every state deem the deed to be a mortgage.  That means that the deed does not convey title to the property but merely creates a mortgage lien upon it for the amount owed.


 * Foreclosures of mortgages (or deeds deemed mortgages) usually must be done through court process. However, many states will allow foreclosure of a mortgage lien by a much faster out-of-court auction process if a deed to a trustee (who is nominally a trustee for the borrower and the lender).  This is the deed of trust to which the article refers.  Just as with the deed given directly to the lender to secure repayment of the debt, almost all states view deeds of trust as creating mortgage liens rather than putting title to the property in the mortgage lender.  However, they will allow the quicker, non-judicial foreclosure process if these instruments are used.


 * Please let me know if this is not helpful. It occurs to me that I may have told you how to make a clock when all you asked me for is the time. Anoneditor 03:36, 9 January 2007 (UTC)

There seems another problem with this section: it does not properly reflect that this article is about the legal mechanism, and not about the loan. The following do not seem to belong here: Base rate, bridging loan, Early Redemption Charge / Pre-Payment Penalty / Redemption Penalty, equity, Mortgage Payment Protection Insurance, Private Mortgage Insurance. Comments? Notinasnaid 23:27, 27 March 2007 (UTC)
 * I agree. This is likely remaining stuff from the mortgage/mortgage loan split of the article. There is probably more that should be edited out.--Gregalton 15:34, 28 March 2007 (UTC)
 * I also agree. Not enough time to pull it all out, but then this article in general seems rather confused. Sephui 16:54, 28 March 2007 (UTC)
 * Add my vote, too. I agree this should be about the legal aspects of mortgages and not the business of mortgage lending.  Maybe I can do some work in it. Anoneditor 23:25, 28 March 2007 (UTC)

I've completed the split of "terminologies" and "see also" sections into mortgage loan. Nothing was intentionally removed. Notinasnaid 00:07, 14 April 2007 (UTC)

"Subject to" mortgage
I reverted the last edit by Scientizzle because it describes a process relevant to the business of mortgage lending, as distinguished from the mortgage itself. Though there are other such sub-sections of this article, I thought it didn't help to add one more.

It seems to me that what is needed is an article on mortgage lending, as distinguished from this one on mortgages themselves. Anoneditor 01:23, 6 July 2007 (UTC)

Renting vs. mortgaging
I've lived in my dad's rented home's for 20 years. Our family of two never really mortaged anything. I don't know how mortages work. Mortaging and renting should be opposites, right? For sure, you have own a home to do that right. I don't know, I just feel the article can benefit by including some kind of comparison of the two, uh, markets. I dunno. Talk to my on my talk page if you think it's there's a topic in this somewhere. Nastajus 04:47, 9 July 2007 (UTC)

"Par rate" redirect
Why does "par rate" redirect here? There's no mention of it. 205.228.74.12 22:05, 23 July 2007 (UTC)


 * I don't have any idea why, either. It looks to me like it should redirect to "Yield spread premium" but I don't know how to accomplish that. Anoneditor 02:17, 25 July 2007 (UTC)


 * I've redirected it to US mortgage terminology. simonthebold 15:22, 25 July 2007 (UTC)

Mortgage types
just wanted to add this useful guide to uk mortgage types  anybody looking for information may find it useful  —Preceding unsigned comment added by 86.135.53.91 (talk) 19:38, 9 September 2007 (UTC)


 * You're not reading the article. All this stuff belongs at Mortgage loan. 199.71.183.2 13:30, 2 November 2007 (UTC)

Definition
It looks to me as if "seasoned mortgage" belongs at Mortgage loan rather than here. 199.71.183.2 13:30, 2 November 2007 (UTC)

Death wage
A recent edit has glossed mortgage as "death wage". Please see my remarks above concerning "death pledge" and the reference I gave there. I am going to revert and ask that the matter be discussed here with evidence please. Francis Davey (talk) 14:01, 11 December 2007 (UTC)
 * Agree entirely. You could probably avoid this by putting the reference directly in the article (note the reference I saw above goes to a list of towns, so being more specific would help). Other editors will notice changes/deletions of clearly referenced text and defend it more readily.--Gregalton (talk) 14:26, 11 December 2007 (UTC)


 * For what it's worth, I was always under the impression that the translation was "dead pledge." See, Webster's New Collegiate Dictionary (1960) and Webster's New World Dictionary (1958).  Both state that it is from the French, and literally translated is mort, dead and gage, pledge.  Although these dictionaries are old, they are by two different publishers, and the mortgage is older yet so I guess the translation is valid. For a web dictionary etymology with the same result, see: http://dictionary.reference.com/browse/mortgage . Anoneditor (talk) 23:47, 11 December 2007 (UTC)


 * That seems right - if you could provide specific references and put it in the text (or with a link), that would more or less settle the issue.--Gregalton (talk) 23:57, 11 December 2007 (UTC)


 * Thank you for your recent revision, Greg. Anoneditor (talk) 23:43, 16 December 2007 (UTC)


 * My pleasure. Came across it when I was reviewing an unrelated piece that referred to it as "grip of death", so your recent comments were quite helpful to me.--Gregalton (talk) 00:01, 17 December 2007 (UTC)

Theaveng, it seems to me that whatever language President Bush speaks is irrelevant to this issue. Two etymological sources specify old French. If you are correct, you should be able to source your position. Besides, when did Norman become Norman-French and then French relative to the origin of the phrase, "dead pledge?" Anoneditor (talk) 00:50, 20 December 2007 (UTC)


 * Norman never became French. It's a separate language that is still spoken in the northern part of the mainland.  English absorbed various words, not from the French language, but from the northern Norman language.  -  Theaveng (talk) 12:08, 20 December 2007 (UTC)


 * That's quite right. Its certainly the case that a lot of administrative French used just after the conquest is quite a long way from Francien (the dialect that ends up contributing most to modern French). Law French might be a neutral way of putting it, and then we can argue over the derivation of that in another article. Francis Davey (talk) 15:08, 20 December 2007 (UTC)


 * I don't disagree about the derivation of Norman, Francien, law French, even the form of whatever language it is called that is used in the Channel Islands for some legal matters.
 * But the basic principle is simple: references and sources say Old French. To say it is derived from whatever would require a reference to that effect.--Gregalton (talk) 16:09, 20 December 2007 (UTC)

Mortgage conveyance condition
This is the second time that someone has stated, at the beginning of the "History" section, that the mortgage conveyance was absolute on it's face, but was in fact conditional, "and would be of no effect if certain conditions were not met --- usually, but not necessarily, the repayment of a debt..." [Emphasis added.] It seems to me that the addition of the word "not" destroys the sense of the sentence. The common law idea was that between the mortgagor and mortgagee, the deed was to be inefective if the mortgagor's debt was paid. It was to be effective if the debt wasn't repaid. Also, in the last revision of the article, the anonymous reviser substituted "In common law" for "At common law." At least in the U.S., the correct legal term is "At common law." Unless the reviser or someone else can explain why I'm wrong on this within a week or so, I'm going to change these two revisions back to where they were. Anoneditor (talk) 23:47, 15 March 2008 (UTC)


 * Maybe it's just the legal concepts that are confusing, but to layman like me it only makes sense with the "not" (or with "if" replaced with "unless"). Here's the process of a normal transaction in the layman's mind:
 * Seller advertises the house for sale.
 * Buyer agrees on a price with seller. This agreement establishes a contract of sale.
 * Buyer gives money to seller, seller transfers title to buyer.
 * In an ordinary sale, after step 3 the seller has his money, and the buyer has his new property; the transaction is over. Here is a mortgage, by contrast:
 * Seller advertises the house for sale.
 * Buyer agrees on a price with seller. This agreement establishes a contract of sale.
 * Buyer promises to give money to seller over a period of time (this period, interest etc. agreed with the seller), seller transfers title to buyer.
 * In this case, after step 3 the buyer has his property but the seller doesn't have his money; instead he has a (legally binding) promise from the buyer to pay in instalments, backed up by the seller's right to reposess the house and sell it on (probably discharging the remaining debt) if the buyer defaults.
 * In the context of the above sentence, this seems on its face to be a simple transaction, except that it has no effect if the condition of payment is not met. If this condition is met, the conveyance of property has taken effect! With this interpretation I don't see how it makes sense to leave out the "not".
 * I guess what really happens is this:
 * Seller advertises the house for sale.
 * Buyer agrees on a price with seller.
 * Seller transfers title to buyer.
 * Buyer signs a contract with seller transferring the title back to seller, but this contract is ineffective if the condition (payment of debt) is met.
 * So the technical term "mortgage conveyance" means the act in step 4, i.e. that the property is conveyed back to the seller but this conveyance has no effect if the debt is paid off. Here we have a classic example of the layman misunderstanding a concept and the one in the know offering an explanation that just makes the layman more confused! Hairy Dude (talk) 13:53, 9 May 2008 (UTC)

The Lead
When I was last more involved in editing this page the lead used to say:

A mortgage is a method of using property (real or personal) as security for the performance of an obligation, usually the payment of a debt.

Now it says:

A mortgage is the pledging of a property to a lender as a security for a mortgage loan. While a mortgage in itself is not a debt, it is evidence of a debt. It is a transfer of an interest in land, from the owner to the mortgage lender, on the condition that this interest will be returned to the owner of the real estate when the terms of the mortgage have been satisfied or performed. In other hi words, the mortgage is a security for the loan that the lender makes to the borrower.

The earlier lead is, in my view, much better than what is there now, for the following reasons:


 * It was more accurate - mortgages exist of both real and personal property, the existing lead is POV in that it assumes only real property. Furthermore, not all mortgages are (now) transfers of interest in land, even if that was their origin. Many jurisdictions (such as mine) have changed the common law so that the mortgagor retains the title to the property. The lead should reflect this to be properly NPOV. The history of mortgages can be explained in the body.
 * The new lead is confusing in that it uses another term which, at least in British English is used in a partially technical sense. "pledging" property is not a term used in normal language. And a "pledge" (in the law of England and Wales and at Common Law is technically different from a mortgage). The reason I originally wrote "a method" is because the term "mortgage" does cover a number of slightly different kinds of security. Something the body should make clear.
 * Pedantically a mortgage is neither a debt nor evidence of a debt -- quite how that is a helpful way to put things I do not know.

My suggested lead could be expanded, but I think it is a better beginning than what we have. In my view, the lead should stand along as a clear, pithy and correct definition of the subject matter. Woolly and vague explanations have no place here. The body of the article does leave something to be desired, but lets clear up the lead first shall we? Francis Davey (talk) 16:34, 8 September 2008 (UTC)

li
how mortgage different from a bank overdraft —Preceding unsigned comment added by 60.54.211.205 (talk) 04:19, 17 September 2008 (UTC)


 * A bank overdraft occurs when checks written by the owner of a checking account are presented to the bank when there is not enough money in the account to honor them. Unless an arrangement has been made with the bank to loan the money to the account holder when that happens, the check "bounces" because of insufficient funds to pay it.  If the arrangement has been made, the overdraft results in the automatic making of a loan to cover it.  This loan is not necessarily, or even usually, a secured loan.  That is, the account holder does not usually have to put up collateral as security for the repayment of these loans.
 * A mortgage, on the other hand, is the giving of security in some kind of property to back up the promise to pay a debt. The general idea is that if the borrower who gives the mortgage doesn't pay the debt, the lender can have the property sold and use the sale proceeds to pay down the debt.  These arrangements are not usually automatic, as in bank overdraft loans, above.  I hope this helps. 02:49, 18 September 2008 (UTC)

Articles on mortgage law
I've got a couple articles on mortgage law which could be good for this page. II | (t - c) 22:43, 7 August 2009 (UTC)
 * I've read through most of Renegotiation in the Common Law Mortgage and the Impact of Equitable Redemption by Fisher (2004); the modeling isn't that useful, but the law and mechanics discussion is.
 * Will Mortgage Law Survive by Shanker (2003 is also interesting; I've only read a few pages of it and it isn't freely-accessible, but I can email it if anyone's interested.

I'm interested in fleshing out the history section more, so I did a bit of digging and came up with:
 * Story of the Mortgage Retold by Rabinowitz
 * Historical Introduction to the Corporate Mortgage by Draper
 * The Story of Mortgage Law by Chaplin. II  | (t - c) 07:02, 12 June 2010 (UTC)

Requested move

 * The following discussion is an archived discussion of the proposal. Please do not modify it. Subsequent comments should be made in a new section on the talk page. No further edits should be made to this section. 

Page moved to Mortgage law. Consensus was clear to move but the target was not as clear however including law in some way appeared to have support. Using parentheses is discouraged if another name would do, hence the choice I made. If this is a big problem, I have no objection to renomination to decide on a better name. Vegaswikian (talk) 20:45, 24 May 2010 (UTC)

Mortgage → Mortgage (law) — See WP:PRIME. The instrument (Mortgage loan) is the primary topic, not the security interest (Mortgage).

Pnm (talk) 01:54, 16 May 2010 (UTC)


 * Note: Over 1,000 articles link to Mortgage (Special:WhatLinksHere/Mortgage). The majority of them should link to the instrument (Mortgage_loan).


 * History: Mortgage used to cover both the instrument and the security interest. Mortgage loan split off in 2006 (talk entry)


 * Pnm (talk) 01:56, 16 May 2010 (UTC)


 * Conditionally support as long as Mortgage loan is not actually moved to Mortgage instead. Mortgage loan is a subtopic of mortgage (law), I would think.  Also, it looks from the intro of Mortgage loan that someone intends its scope to become residential mortgage, as opposed to Commercial mortgage, which has its own article, so that might end up split even further and become less "primary".  (On the other hand, the intro may not properly describe the thrust of the article.)  I support moving this article to mortgage (law) if Mortgage becomes a disambiguation page &mdash; or, if not that, then at least a redirect to mortgage loan rather than the actual article title.  That way it is clear to people that "mortgage" is not the "precise" way to refer to a mortgage loan, and people who link mortgage knowing its precise meaning only look like they linked ambiguously, not incorrectly. --Closeapple (talk) 07:00, 16 May 2010 (UTC)
 * That's a good point. I support leaving Mortgage loan where it is and making Mortgage a redirect to mortgage loan.


 * Pnm (talk) 22:31, 18 May 2010 (UTC)


 * I could support a move to "Mortgage law", but not "Mortgage (law)". II  | (t - c) 00:59, 19 May 2010 (UTC)


 * Why? Pnm (talk) 03:13, 22 May 2010 (UTC)


 * More descriptive, easier to to wikilink, and more inclusive of legal aspects which come into play when a mortgage is involved in the loan. A mortgage cannot exist without a loan - it is quite impossible. Therefore I don't think it is all that helpful to emphasize to the reader that the mortgage is the lien the real property, and I think it's excessive to have an entire article devoted to that single. This is rather an article where we delve into things like perfection, legal recourse in mortgage loans, and equity of redemption. II  | (t - c) 10:38, 22 May 2010 (UTC)


 * Rename this article, dabify "Mortgage" - as primary is questionable. 70.29.210.155 (talk) 04:59, 22 May 2010 (UTC)
 * The above discussion is preserved as an archive of the proposal. Please do not modify it. Subsequent comments should be made in a new section on this talk page. No further edits should be made to this section.

Since this move was completed, I have not seen any progress in fixing over 1,000 other articles that contain links to "Mortgage" that now need to be disambiguated. I would have expected those who participated in the above discussion to take responsibility for fixing the erroneous links they had caused. --R'n'B (call me Russ) 10:14, 27 May 2010 (UTC)


 * How are you measuring progress? I disambiguated 85+ on May 25. There isn't a deadline, and you can help. -- Pnm (talk) 13:05, 27 May 2010 (UTC)
 * On May 25 there were 1,063 links and on May 27 there were still 1,038, according to . Although there is indeed no deadline, one would hope to see a more rapid and steady rate of decline.  And, I have helped.  --R'n'B (call me Russ) 19:29, 27 May 2010 (UTC)

It seems reasonable to have plural mortgages redirect to mortgage loan. As Vegaswikian suggested here, mortgage loans may well be the primary use of mortgages.

I've already linked a number of articles to it. It's frustrating to have it pulled out from under them. -- Pnm (talk) 07:54, 30 May 2010 (UTC)


 * Mortgages seems like it will be used in a lot of the same instances as mortgage, so it seemed reasonable to treat them consistently. With that said, I have no problem with you switching it back since I can see how referring to the legal concept in the plural would be less common. II  | (t - c) 16:49, 30 May 2010 (UTC)


 * All the mortgage links are done. Nice work, everyone. (I did a bunch, but fewer than 10%.) I pointed the last one to Mortgage (disambiguation) to make it clear that we want it there. --Pnm (talk) 00:39, 4 June 2010 (UTC)

The history section is a mess
It looks like the history section was drafted by several editors who do not have legal training (I just traced the article history).

I was just reading a book about this (California Mortgages, Deeds of Trust, and Foreclosure Litigation by Roger Bernhardt). The underlying problem at common law was the prohibition against springing future interests, so one could not convey by saying, "If I fail to repay this debt, I will give you this land." To get around that, conveyancers would have the debtor convey by way of a fee simple subject to condition subsequent (NOT a fee simple absolute as implied in the article). But then this ran into a second problem at common law: failure to comply exactly with the condition subsequent (one had to have the exact amount ready to tender on the exact due date) resulted in the holder of the fee simple (the lender) not having to reconvey the property. Therefore, the right of redemption was created by equity courts to allow for redemption in cases where compliance was close but not close enough, and so as long as the borrower could eventually tender the amount due plus interest, they could redeem and get their land back.

Anyway, I'm going to revise the history section in a few weeks, unless anyone can provide some sources for the history section as it currently stands. --Coolcaesar (talk) 04:03, 21 June 2010 (UTC)


 * I'm interested in seeing what you add, but could you be more specific about what part of the history you're talking about - for example, time period and region? Does Bernhardt cite any sources to support his statements? I recently read Chaplin's The Story of Mortgage Law, which provides some interesting history. Could you read it and let me know what you think? II  | (t - c) 02:12, 22 June 2010 (UTC)

Factual Error in section "Title Theory and Lien Theory"
Section states "most states are lien theory states" but the map of Title versus Lien theory states, at http://title.grabois.com/index.html, shows 27 Title Theory states and 23 Lien Theory states (plus Puerto Rico). — Preceding unsigned comment added by 72.70.205.5 (talk) 14:11, 21 January 2014 (UTC)

Equitable Mortgage
I took out text that was from a copyrighted source. I do not know the subject well enough to replace it. I chose not to report the editor who put in the copyrighted material. I left in the sources--they are not impressive. One source I split into two because the title did not match the document. However, the title of the PDF does not match either. This section needs some work for sure.--David Tornheim (talk) 01:57, 25 February 2017 (UTC)

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