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Congress Suggests - But Does Not Require - Residential First Mortgage Foreclosure Moratorium
By Elizabeth C. Yen

Section 401 of Public Law 111-22 (signed by President Obama on May 20, 2009), the Helping Families Save Their Homes Act of 2009, includes a “Sense of the Congress” that first mortgage foreclosures on property used as the owner’s principal dwelling should be subject to a moratorium “until the foreclosure mitigation provisions, like the Hope for Homeowners program, as required under Title II, and the President’s ‘Homeowner Affordability and Stability Plan’ have been implemented and determined to be operational by the Secretary of Housing and Urban Development and the Secretary of the Treasury.” Note also that Section 304 of Public Law 111-24 (signed by President Obama on May 22, 2009), the Credit Card Accountability Responsibility and Disclosure Act of 2009, includes a “Sense of the Congress” that institutions of higher education should limit the number of locations on campus from which credit cards may be marketed, and offer “credit card and debt education and counseling sessions ... as a regular part of any orientation program for new students.” What exactly is a “Sense of the Congress?”

Case law indicates that a “Sense of the Congress” statement inserted into a federal law is a suggestion or recommendation, not an actual statutory mandate. A “Sense of the Congress” provision has “persuasive appeal,” but is not mandatory. See, e.g., Yang v. California Dept. of Social Services, 183 F.3d 953 (9th Cir. 1999) and cases cited therein. In some cases, where Congress has deliberately used a “Sense of the Congress” provision to clarify Congressional intent behind a pre-existing statute, the “Sense of the Congress” provision may be used as legislative history to help interpret the pre-existing statute. See, e.g., State Highway Com. v. Volpe, 479 F.2d 1099 (8th Cir. 1973) and cases cited therein. However, a “Sense of the Congress” provision is not binding on courts, and does not carry the same weight as an actual statutory mandate. See, e.g., Dunn-McCampbell Royalty Interest v. Nat’l Park Service, 2008 U.S. Dist. LEXIS 79101 (S.D. Tex. 2008) and cases cited therein. Some court cases refer to “Sense of the Congress” provisions as being “precatory”—defined in some dictionaries as “a wish or advisory suggestion” that does not have the force of law, and which carries no negative consequences if the wish or suggestion is not followed.

In short, a “Sense of the Congress” provision “is appropriate if Congress wishes to make a statement without making enforceable law.” (See Congressional Research Service, Report for Congress, “Statutory Interpretation: General Principles and Recent Trends” (rev. August 31, 2008) at page 33. A copy is available at http://assets.opencrs.com/rpts/97-589_20080831.pdf).

Elizabeth C. Yen is a partner in the Connecticut office of Hudson Cook, LLP. Basis Points readers can reach Elizabeth at 203-776-1911 or by email at eyen@hudco.com.

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