The elusive mortgage cram down has suffered another agonizing defeat. Debtor’s attorneys’ hopes that we could finally do something to keep people in their homes are gone, and we’re back to our debtor attorney acclivities, watching creditors start avalanches while our hapless clients smile and wave in the village below. Although as bankruptcy attorneys, we can help our clients by seeking relief from second mortgages on their primary residences and first mortgages on second homes, the sacred cow first mortgage cannot be touched, even if it is a rotting diseased piece of meat polluting all the air around it.

The mortgage foreclosure crisis is literally sucking the life and human spirit from our country. Foreclosure and eviction forces a family from a home and causes psychological trauma. The very real human emotions of shame, anger, loss, and fear all flow from foreclosure. Losing a home is not just separation from a mere piece of property. A home is a shelter, a place of comfort, a place to collect memories, a place to gather with friends and family, and very importantly a home is a place where a human being can to do the kind of labor that creates pride, satisfaction, and a sense of accomplishment. A bank cares not for these very real intangibles. A piece of real property is not a home to a bank—it is only one line item on an ever-growing list of liabilities.

In order to assuage the grief of families of the nation losing their homes, congress considered a bill to give families relief from the crisis. It’s genesis was H.R. 1106, the Helping Families Save Their Homes Act of 2009. Congress has failed, however, for many families in Michigan who face the very real specter of foreclosure and eviction. The bill to give relief to the average American, failed in the United States Senate, and is only the latest victim of the very powerful credit lobby, who brought us gems like the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). There is a special place at the table for the credit lobbyists, but the growing number of voices begging their elected officials for help are falling on deaf ears.

After listening to the arguments in support of and against the mortgage cram down, it seems that the creditor arguments are good on face, but end up being fairly shallow in substance. For example, one argument I have heard is that if bankruptcy judges are allowed to modify principal mortgage obligations, then there will be rampant inflation as banks add premiums in the form of fees and higher interest rates to mitigate the potential risk of involuntary modification. This argument, however, fails to acknowledge that the bill would only apply retroactively, not affecting new mortgages. Another popular argument advanced by the credit industry is that if they offer mortgage modification to a select few, it would open the flood gates to everyone else to demand modification. The simple answer to that is that the industry should be willing to sacrifice the amount on every mortgage they wrote in an irresponsible fashion. In other words, if the bank can prove, even in a cursory fashion, that its decision to give a mortgage was based in the realities of the mortgagor’s financial situation, then no modification. These simple responses have been ignored, however, in favor of the ill-reasoned creditor arguments that seem always to carry the day.

I suppose I’ll go back to counseling people as I have been:

Come current or give up,

hope is an illusion for you,

start looking for a place to rent.

I’ll just resign myself to be the kind of attorney continually giving these gems of advice lest I become anything but a cog in the giant legal machine that exists only to hustle people along and keep the line moving.