노인주거복지를 위한 역모기지(Reverse Mortgage) 방식의 미국 주택연금 제도 - Estate of Jones v. Live Well Financial, Inc. 미연방 법원 판례에서의 계약자유의 원칙 쟁점을 중심으로 -

A reverse mortgage, functioning as a home pension, provides necessary money, such as medicare and living expenses, to elderly applicants who have home property but do not have enough money. A reverse mortgage is insured by the U.S. government, referred to as HECM, and a private one is operated by a bank. The critical difference between those two types of reverse mortgages is whether the U.S. government ensures the risk of a reverse mortgage loan. HECM, which provides elderly applicants with housing security, requires a bank, a creditor of a reverse mortgage, to observe the public policy of the aged-decent housing. According to the law of Insurance of Home Equity Conversion Mortgages for Elderly Homeowners, a bank should guarantee decent housing to an elderly applicant of HECM as well as their spouse, who did not register HECM, regardless of contracts of a reverse mortgage. On the other hand, a private reverse mortgage should respect a bank’s right of contracts. In a private reverse mortgage, a spouse cannot prevent a bank following the contracts from foreclosing its living house if he or she did not register a private reverse mortgage as an applicant and perform its contractual duty of reverse mortgage. The federal courts’ case dealing in this paper reviews the purpose of HECM, which is to protect elderly applicants, including their spouse, who lack money although they have decent housing. Considering this purpose, each party argues whether a private reverse mortgage can also be followed by the law of Insurance of Home Equity Conversion Mortgages for Elderly Homeowners. The courts state that this law was enacted and modified to protect elderly applicants, including its spouse, and restrict the coverage of the U.S. government’s insurance for a reverse mortgage. Therefore, only a bank observing the requirements of the law and agreeing to follow the law’s direction can be insured by the U.S. government. This paper introduces how to moderate a conflict between public policy and the right of contracts. Thus, it sheds light on how to promote welfare for seniors without threatening the right of contracts.