Talk:Mortgage law

message: 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)
replies: text: 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)
thread_title: Question

message: 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)
replies: text: I wholeheartedly agree. Lawrence Lavigne 22:42, 25 November 2005 (UTC)
replies: text: 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)
replies: text: 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)
replies: text: 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)
replies: text: 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)
thread_title: Dead pledge

message: 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.
# 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.
# "chattels" is a bit too specific and technical "other property" will do I suggest.
# 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.
# I've tried to reduce the level of technicality slightly (eg in definition of a mortgage by demise)
# 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.
# The following text:
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.
# 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.
# 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.
#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.
#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)
thread_title: Edits

message: 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)
replies: text: 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)

text: 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) →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)

text: 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)
thread_title: Accuracy

message: 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)
replies: text: 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)
replies: text: 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)
thread_title:  Predatory mortgage lending 

message: 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)
thread_title: Torrens title registration system

message: "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)
replies: text: 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)
replies: text: 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)
thread_title:  Islamic mortgages 

message: 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)
thread_title:  Do predatory practices exist world wide? 

message: 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)
replies: text: 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)

text: I strongly agree; the split makes perfect sense.Anoneditor 03:08, 18 December 2006 (UTC)
thread_title:  Propose split into mortgage and mortgage loan 

message: 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)
thread_title: "Subject to" mortgage

message: 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)
thread_title:  Renting vs. mortgaging 

message: Why does "par rate" redirect here? There's no mention of it. 205.228.74.12 22:05, 23 July 2007 (UTC)
replies: text: 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)
replies: text: I've redirected it to US mortgage terminology.  simonthebold 15:22, 25 July 2007 (UTC)
thread_title:  "Par rate" redirect 

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

message: 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)
thread_title: Definition

message: 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)
thread_title:  The Lead 

message: I've got a couple articles on mortgage law which could be good for this page. 
*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. 
II | (t - c) 22:43, 7 August 2009 (UTC)
thread_title:  Articles on mortgage law 

message: 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)
replies: text: 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)
thread_title:  The history section is a mess 

message: 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)
thread_title: Factual Error in section "Title Theory and Lien Theory"

message: 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)
thread_title:  Equitable Mortgage 

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