This article focuses primarily on the descriptive question (i.e., can a mortgage lender privatize the foreclosure process through arbitration?). There remain substantial differences of opinion about whether mandatory pre-dispute arbitration is just, particularly in the consumer context, and efforts continue in Congress to amend the FAA to prohibit mandatory predispute arbitration in consumer disputes (which would include enforcement of residential mortgages). While this article is not intended to resolve the broader normative question (i.e., should a mortgage lender be able to privatize the foreclosure process through arbitration?), Part IV does offer some concluding thoughts about foreclosure-by-arbitration in the context of residential mortgages.

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