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Notes -
Court opinion somewhat relevant to the culture war:
According to lawmakers: "New Jersey is consistently in the top three in the nation with the highest foreclosures. Our state also has the widest racial wealth gap in the country. Black and brown wealth is hemorrhaging through the loss of foreclosed property, and the people who live in the community often do not have deep enough pockets to even participate in the foreclosure process." "The current process favors companies that have the money to purchase property at sheriff sales and resell it for a profit." In response to these concerns, the state govt. enacts a law ensuring that, whenever a residential property is foreclosed on, a right of first refusal is granted to the owner, his next of kin, and his tenants (if the owner is an individual rather than a company), and a right of second refusal is granted to certain redevelopment-oriented nonprofits (regardless of the owner's identity). Normally, foreclosure results in an auction starting at an "upset price" (minimum/reserve price) set by the foreclosing lienholder (presumably the lender of the property's first mortgage). However, these two new rights of refusal allow the property to be purchased for the upset price without an auction. The lawmakers say: "This legislation will help to keep property ownership within the community." "This is what equity in systems looks like."
However, the new law causes problems because it often results in undervaluation of the property, so that junior lienholders don't get paid back. For example, in one of the cases consolidated here: A residential property with estimated fair market value of at least 680 k$ was foreclosed on. US Bank held a first mortgage for 281 k$, and PNC Bank held a second mortgage for an amount that I can't find in the court documents. US Bank set the upset price at 309 k$. PNC was prepared to bid the auction up to 401 k$, which presumably would suffice to pay off both mortgages. However, instead a nonprofit exercised its right of second refusal and bought the property at the upset price of 309 k$, paying off US Bank's mortgage but leaving PNC with substantially less than what it would have gotten at auction. In PNC's words: "The refusal to recognize other bids results in illegal lien-stripping and the illegal taking of substantial surplus that would have been realized, and the deprivation of PNC's property interest that would have attached to that surplus." (PNC also alleges that the nonprofit is a sham. It was created just a few days before the auction would have taken place, and is not registered as a nonprofit with the state govt. or with the federal IRS.)
The trial judge rules that the nonprofits' right of second refusal is an unconstitutional taking without just compensation, and the appeals panel affirms. The federal Supreme Court recently found that it is unconstitutional for the govt. to foreclose on a property for a 200-k$ tax delinquency, sell it at auction for 300 k$, and pocket the extra 100 k$. Likewise, if a property is encumbered with a 300-k$ mortgage, it is unconstitutional for the govt. to let a nonprofit buy it for 200 k$ and magically extinguish the extra 100 k$ of debt owed to a lender. (Nobody has invoked the owner's, next of kin's, and tenants' right of first refusal, so it technically is not at issue in this case. But if the right of first refusal is challenged in the future it presumably will be held unconstitutional under the same rationale.)
I quite like the first right of refusal part of this law, and find the second right of refusal for non-profits to be a pretty obvious opportunity for abuse which has been rightly litigated.
I also think such a right of refusal should side-step the foreclosure rules. The problem is that the debts on the property are discharged in foreclosure, whether they're paid off or not. If I'm a tenant who wants to purchase the building that the owner defaulted on, either I should pay enough to discharge those debts, or I need to take them on myself. The whole reason foreclosure exists is for a mortgaged property that nobody is willing to buy normally - if there is a buyer, but at a discounted price, then foreclosure shouldn't even apply. Or am I missing something?
Isn't even this ripe for abuse? You have a big mortgage; you get foreclosed on; and your spouse or kid buys it at a steep discount. Or am I misunderstanding how it works?
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