Menu Close

Tools of Ignorance: An Appraisal of Deficiency Judgments


Alan M. Weinberger


June 9, 2015

While achieving success as a major league catcher, Mike Matheny was preparing for a post-baseball career in real estate development. He could not have picked a worse time to pursue his aspiration. Matheny lost his accumulated savings and his family’s home after being held personally liable for a $4.2 million deficiency judgment following foreclosure of property he was unable to develop or market during the Great Recession. Matheny’s failure to succeed in real estate was the proximate cause of his return to baseball as manager of the St. Louis Cardinals.

Matheny’s story provides the backdrop for examining the methods by which deficiency judgments are calculated. The traditional common law approach has been criticized as unjust and overdue for reform. The most widely adopted variation, known as the “fair value” method, is hollow at its core. It provides no meaningful guidance to triers of fact charged with adjudicating value. This Article proposes a re-imagination of the method of calculating deficiency judgments based on experience in transactional practice and alternative dispute resolution. It seeks to accommodate the interests of borrowers and lenders, and the public interest in judicial efficiency and access to affordable credit.


Alan M. Weinberger, Tools of Ignorance: An Appraisal of Deficiency Judgments, 72 Wash. & Lee L. Rev. 829 (2015).