April 2014 Bar Bulletin
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April 2014 Bar Bulletin

A Foreclosure Mediator's Musings on Good Faith

By Jeff Bean


(Second of two parts)

In Musings Part 1 (February Bar Bulletin), I wrote how I understand what the Foreclosure Fairness Act's duty to mediate in good faith means.1 I described how it was helpful to me to focus on the FFA's explicit legislative intent to "create a framework for communication."2

I also explored the active communication language the FFA uses to describe what the parties need to do to have an effective foreclosure mediation,3 the issues the Legislature requires the parties to address in the mediation4 and what they need to do to "cooperate with the mediator."5

It was helpful then to look at what the Legislature put in the FFA when it was enacted. Now it can be just as informative to look at what the Legislature didn't put in the FFA.

What the FFA Doesn't Do

When I read the FFA, I don't see anywhere that it dictates any particular outcome in any foreclosure situation. Its intent is to "reach a resolution and avoid foreclosure whenever possible," but it doesn't ever tell us when it is possible to avoid foreclosure and when it isn't.6

The FFA does not dictate when the parties must reach a resolution or otherwise agree to avoid foreclosure. No standard is provided. Nowhere does the Legislature ever provide the foreclosure mediator or anyone else with any authority to impose a decision on the parties. The mediator is given no authority to decide the outcome or impose a resolution that is legally binding on the parties.

As the mediator I have no authority to decide that the borrower will stay in their home. I have no authority to decide that the foreclosure will proceed. I am just not given the authority to make that decision. That is not my job.

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