Apr
05

Hawaii Court rules: No valid assignment means Deutsche has no standing to foreclose


Last week, Hawaii homeowners at risk of foreclosure had reason to be pleased.  Not ecstatic… not jubilant… and certainly not electrified, as other bloggers have intimated might be appropriate.  The decision is not cause for any of those emotions… there’s no curtain lifting on a big show, if you will.

 

District Court Judge J. Michael Seabright ruled in favor of a Hilo homeowner, dismissing a complaint filed by Deutsche Bank as Trustee, who was seeking to foreclose.  According to the court’s ruling, the plaintiff failed to establish that it was validly assigned the Mortgage and Note and therefore lacked standing to foreclose on the defendant’s property.

 

The court’s decision was very straightforward and should be easy to understand.

 

Basically, Deutsche Bank produced an assignment from Home 123/New Century Mortgage on January 13, 2009… but Home 123 was in bankruptcy liquidation as of January 13, 2009, having filed for bankruptcy in 2007, and a liquidation plan was confirmed in July 2008 as part of the bankruptcy of New Century Mortgage.  So, obviously that assignment was not valid.

 

Deutsche then claimed that it was assigned the loan in 2007 through the Pooling & Servicing Agreement (“PSA”), dated January 1, 2007.  Judge Seabright, however, pointed out that although the plaintiff MIGHT have been assigned the Mortgage and Note through this PSA, the plaintiff offered no evidence for the record establishing which mortgages were included in the PSA.

 

In a nutshell, all the judge said is that he wants some admissible evidence of the transfer of the loan to Deutsche Bank.  The 2009 assignment was obviously not valid… and if it was assigned through the PSA in 2007, then Deutsche Bank needed to present some evidence of that fact… and they didn’t… this time around anyway.

 

As such, the judge granted the homeowner’s motion to dismiss Deutsche’s complaint, but he did so “with prejudice,” which means that he left the door open for Deutsche Bank to come back to court with evidence of the assignment, and re-file the foreclosure complaint.

 

Of course, some people will say that Deutsche Bank won’t be able to produce a valid assignment of the loan, while others will say that’s just wishful thinking.  If you want my vote… I’d have to say that Deutsche will be back for sure, so this decision will likely represent a delay, which I’d have to say is something short of extraordinary, as far as ramifications are concerned.

 

The better question really is… when they return to foreclose, what will they bring with them in the way of an assignment?

 

What if they lost the note?

 

If Deutsche Bank can’t find the original note it doesn’t mean that they can’t foreclose… there are a number of other ways the bank could establish that they have the right to foreclose.

 

Judge Seabright left it open as to what would constitute acceptable evidence of the assignment, so it doesn’t necessarily have to be the note itself, rather it could be a schedule of loans that accompanied the PSA… it could be a lost note affidavit, or an affidavit by the custodian of records, or some sort of acknowledgement of receipt.

 

This is a court of equity, and it’s not giving away free houses as a reward for being delinquent on a mortgage just because the foreclosing party doesn’t have the actual note.

 

In fact, the Uniform Commercial Code (“UCC”) sets forth conditions related to enforcing lost, destroyed or stolen instruments in section 3-309, subsection (b) as shown below.

 

§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.

 

  • (a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

 

  • (b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

 

What a difference a day makes…

 

According to Massachusetts attorney Glenn Russell (one of the lead attorneys in the now famous Ibanez decision), if Deutsche Bank did in fact buy the loan from New Century in 2007, the precise date of the assignment they present to the court is going to matter… a lot.

 

Here’s why…

 

The PSA that Deutsche presented to the court was dated January 1, 2007.  But according to the transcript of the First Day Hearing of the New Century bankruptcy, dated April 03, 2007, at the time of New Century’s bankruptcy, the company only owned 2,000 loans, and their internal term for these loans was LNFA, which stood for: “Loans Not Financed Anywhere.” 

 

And, these loans, by the way, were sold to Ellington Capital Management Group LLC Capital, and the servicing rights were sold to Carrington.  So, because the closing date for the PSA would be sometime in March of ’07, the date of the assignment of this loan to Deutsche would have to be sometime in March ’07, but before April 3, 2007.

 

To see for yourself… here are links to the Exhibit documents from the New Century bankruptcy proceedings.

Exhibit F – Opening Day Hearing of New Century Bankruptcy

Exhibit H – Amended Disclosure, February 2, 2008

 

The End.

 

So, that’s as far as it goes for the Deutsche v. Williams decision.  It’s not exactly the second coming, but it is reason to be pleased.  It’s probably worth noting that this decision seems to have gone the way it did because of the transfer from a company that was in bankruptcy… that seems to be what led Judge Seabright to his ultimate conclusion.

 

Also, you can’t assume that this decision will carry over into your state.  In California, for example, this wouldn’t have been a problem because California state law says that the deed automatically follows the note, you can’t separate the two.

 

According to Honolulu attorney, Gary Dubin, Hawaii state law is unclear as to whether the mortgage automatically follows the note.  I spoke to him, and he was nothing short of thrilled at the court’s decision.  (Watch for a podcast with Gary as my guest coming up soon.)

Gary has been fighting foreclosures and various other mortgage improprieties in Hawaii for a long time… in fact, when he started his practice, I don’t even think the Big Island was above sea level yet.  (Kidding, just kidding… I love Gary… I just couldn’t help myself.)

 

I understand why Gary was so excited by the decision… he even told me that he’s fought for this same sort of outcome in Hawaii’s state courts on numerous occasions only to find the courts all to willing to disregard anything but the borrower’s delinquent status, and I do understand how frustrating that can be and often still is for foreclosure defense lawyers all over the country.


The Notes Are NOT Lost…

 

Florida foreclosure defense attorney Matt Weidner says that he’s tried thousands of cases and he’s NEVER has had a case in which the bank didn’t eventually show up with the actually note.   “They’re not lost… they know where they are.  They just don’t want to go to the trouble of producing then.  But when push comes to shove, they always manage to find them,” Matt explains.

 

 

According to Weidner…

 

“I’ve taken depositions that have explained how the LPS system for tracking notes is very sophisticated.  To take a note out of the vault, the system generates something called a Dailee Agreement, and there’s even an insurance policy that travels with that note in case it’s lost or damaged.  But it’s time consuming.  And the compensation system encourages foreclosing attorneys to do everything fast and faster above all else, so if they can get away not producing the note, so much the better.”

 

Tom Cox, the foreclosure defense lawyer from Maine, agrees.  He says you can absolutely count on the bank to show up with the note every single time… if they have to.  He’s never seen them not do it… ever.  “Oh, they’ve got the notes… of course they do.”

 

Coincidentally, Matt Weidner just days ago lost a case for the first time and that has him ready to chew on glass.  Incredibly, none other than “Linda Green signed the assignment and yet the judge in the Florida court just did not care.

 

Here’s an excerpt of Matt in court, from the transcript…

 

This plaintiff has come into your courtroom asserting they’re the service that asserts that they’re an agent-ship for someone else.  They haven’t disclosed who the principal is.  They’ve given you zero evidence that they have any authority to be here on behalf of the principal.

 

The plaintiff has failed to introduce any evidence whatsoever that either one of the witnesses that they have called have any relationship to the note or mortgage in question.  They have, in fact, said, both witnesses, we are the servicer but they have not introduced a single piece of evidence which gives them the authority to be here in front of the Court.

 

Misinformation and hyperbole making a bad situation worse…

 

The blog, Deadly Clear, reported on this story a few days ago, but rather than stopping where the case stopped, the author made the decision sound like much more than it is.  Here’s an example…

 

Attorney Bickerton faced off in court and explained to the Judge oral argument that the banks didn’t just miss the date to file their assignments or needed to tidy up paperwork, this was a ‘Business model using the loans for overnight lending.’  Bickerton told the Court that if this wasn’t dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williamses’ loan.

 

This is the thinking that ultimately leads to believing that the borrower doesn’t owe any money because some combination of insurance policies and credit default swaps have combined to pay off all of the loans, making all of the investors whole and allowing the servicers to now collect again from the homeowners who actually own their homes free and clear.

 

It’s not true.  Neither default insurance, which is issued by monoline insurers, nor credit default swaps ever pay off loans.  If you want to know how these deals work in detail, I just published a couple of articles on the topic, “If WE Owned a Pool of Loans, Would WE Allow Principal Reductions.” AND… “An Insider’s View of an Actual RMBS Securitization at Mandelman U.”

 

The writer seems to be saying that Deutsche is profiting from the loan so there should be an offset of some kind.  This line of thinking is not only not true, but it’s also not relevant.  The actual loss by the bank in a default is not relevant to the amount owed by the borrower.

 

And the writer goes on… and on…

 

Understanding the premeditated intentions of these banks, how they pledge, collateralize, swap, sell, lease, and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard – the fraud upon the homeowners, the courts and the state.

 

Look, the writer is obviously passionate, and I don’t want to take anything away from that, but we can’t fall into the trap of not being accurate and correct in what we say and do…. or we will lose.

 

Let’s discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID.

 

This is the REMIC trust issue.  REMIC trusts are the type of trust used when issuing mortgage-backed securities, and while the writer may be right, in some instances, it just doesn’t matter because the Internal Revenue Code is not something homeowners can enforce.  The IRS has made it clear that they have no interest in going after this issue, and it isn’t something that impacts the borrower… so it’s a distraction, nothing more.

 

And let’s suppose we can see the trading in the trust is active, numerous investors have already been paid off – where is the “injury”….hmmm?

 

Okay, I hear this type of thing every day lately… I don’t know where this rumor came from but it’s NOT TRUE.  Investors have NOT been paid off… not even close.  Just read any of the lawsuits being brought by investors against the issuers of mortgage-backed securities and you’ll get the message in a damn hurry.

 

We’re connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in… and eventually we’ll know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to “off” us)… it’s coming soon – to a court room near you…

 

The borrower didn’t have to intend to participate in anything having to do with securitization, and borrowers are not securities without disclosure.  These are rumors dreamed up by someone who wants to sell homeowners on signing up for a lawsuit.  Someone showed it to me about a year ago.  It’s grown out of control.

 

Don’t buy into these things… don’t write anyone a check to join such a lawsuit.  It’s nothing but a rip-off, I promise.  And you don’t have to take my word for it… for any of this… call experts all over the country… ask them.  You’ll see…

 

Look, I know how homeowners feel today, and the stress is increasing as things get progressively worse, so many people want to believe that there’s something out there that can save them… that’s why the scammers are so successful… at some point people buy magic beans.

 

The key to getting through this is education… educate yourself… double check everything… read books, articles… listen to my podcasts with the country’s leading experts.  That’s how we will win… because the more you learn the more powerful you become.  And that’s a fact.

 

So, be pleased about this decision… it’s a good decision.  But that’s all it is… the race is long… and in the end it’s only with yourself.

 

Mandelman out.

 

 

Apr
05

Hawaii Court rules: No valid assignment means Deutsche has no standing to foreclose


Last week, Hawaii homeowners at risk of foreclosure had reason to be pleased.  Not ecstatic… not jubilant… and certainly not electrified, as other bloggers have intimated might be appropriate.  The decision is not cause for any of those emotions… there’s no curtain lifting on a big show, if you will.

 

District Court Judge J. Michael Seabright ruled in favor of a Hilo homeowner, dismissing a complaint filed by Deutsche Bank as Trustee, who was seeking to foreclose.  According to the court’s ruling, the plaintiff failed to establish that it was validly assigned the Mortgage and Note and therefore lacked standing to foreclose on the defendant’s property.

 

The court’s decision was very straightforward and should be easy to understand.  (Deutsche v, Williams)

 

Basically, Deutsche Bank produced an assignment from Home 123/New Century Mortgage on January 13, 2009… but Home 123 was in bankruptcy liquidation as of January 13, 2009, having filed for bankruptcy in 2007, and a liquidation plan was confirmed in July 2008 as part of the bankruptcy of New Century Mortgage.  So, obviously that assignment was not valid.

 

Deutsche then claimed that it was assigned the loan in 2007 through the Pooling & Servicing Agreement (“PSA”), dated January 1, 2007.  Judge Seabright, however, pointed out that although the plaintiff MIGHT have been assigned the Mortgage and Note through this PSA, the plaintiff offered no evidence for the record establishing which mortgages were included in the PSA.

 

In a nutshell, all the judge said is that he wants some admissible evidence of the transfer of the loan to Deutsche Bank.  The 2009 assignment was obviously not valid… and if it was assigned through the PSA in 2007, then Deutsche Bank needed to present some evidence of that fact… and they didn’t… this time around anyway.

 

As such, the judge granted the homeowner’s motion to dismiss Deutsche’s complaint, but he did so “without prejudice,” which means that he left the door open for Deutsche Bank to come back to court with evidence of the assignment, and re-file the foreclosure complaint.

 

Of course, some people will say that Deutsche Bank won’t be able to produce a valid assignment of the loan, while others will say that’s just wishful thinking.  If you want my vote… I’d have to say that Deutsche will be back for sure, so this decision will likely represent a delay, which I’d have to say is something short of extraordinary, as far as ramifications are concerned.

 

The better question really is… when they return to foreclose, what will they bring with them in the way of an assignment?

 

What if they lost the note?

 

If Deutsche Bank can’t find the original note it doesn’t mean that they can’t foreclose… there are a number of other ways the bank could establish that they have the right to foreclose.

 

Judge Seabright left it open as to what would constitute acceptable evidence of the assignment, so it doesn’t necessarily have to be the note itself, rather it could be a schedule of loans that accompanied the PSA… it could be a lost note affidavit, or an affidavit by the custodian of records, or some sort of acknowledgement of receipt.

 

This is a court of equity, and it’s not giving away free houses as a reward for being delinquent on a mortgage just because the foreclosing party doesn’t have the actual note.

 

In fact, the Uniform Commercial Code (“UCC”) sets forth conditions related to enforcing lost, destroyed or stolen instruments in section 3-309, subsection (b) as shown below.

 

§ 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.

 

  • (a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

 

  • (b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

 

What a difference a day makes…

 

According to Massachusetts attorney Glenn Russell (one of the lead attorneys in the now famous Ibanez decision), if Deutsche Bank did in fact buy the loan from New Century in 2007, the precise date of the assignment they present to the court is going to matter… a lot.

 

Here’s why…

 

The PSA that Deutsche presented to the court was dated January 1, 2007.  But according to the transcript of the First Day Hearing of the New Century bankruptcy, dated April 03, 2007, at the time of New Century’s bankruptcy, the company only owned 2,000 loans, and their internal term for these loans was LNFA, which stood for: “Loans Not Financed Anywhere.” 

 

And, these loans, by the way, were sold to Ellington Capital Management Group LLC Capital, and the servicing rights were sold to Carrington.  So, because the closing date for the PSA would be sometime in March of ’07, the date of the assignment of this loan to Deutsche would have to be sometime in March ’07, but before April 3, 2007.

 

To see for yourself… here are links to the Exhibit documents from the New Century bankruptcy proceedings.

Exhibit F – Opening Day Hearing of New Century Bankruptcy

Exhibit H – Amended Disclosure, February 2, 2008

 

The End.

 

So, that’s as far as it goes for the Deutsche v. Williams decision.  It’s not exactly the second coming, but it is reason to be pleased.  It’s probably worth noting that this decision seems to have gone the way it did because of the transfer from a company that was in bankruptcy… that seems to be what led Judge Seabright to his ultimate conclusion.

 

Also, you can’t assume that this decision will carry over into your state.  In California, for example, this wouldn’t have been a problem because California state law says that the deed automatically follows the note, you can’t separate the two.

 

According to Honolulu attorney, Gary Dubin, Hawaii state law is unclear as to whether the mortgage automatically follows the note.  I spoke to him, and he was nothing short of thrilled at the court’s decision.  (Watch for a podcast with Gary as my guest coming up soon.)

Gary has been fighting foreclosures and various other mortgage improprieties in Hawaii for a long time… in fact, when he started his practice, I don’t even think the Big Island was above sea level yet.  (Kidding, just kidding… I love Gary… I just couldn’t help myself.)

 

I understand why Gary was so excited by the decision… he even told me that he’s fought for this same sort of outcome in Hawaii’s state courts on numerous occasions only to find the courts all to willing to disregard anything but the borrower’s delinquent status, and I do understand how frustrating that can be and often still is for foreclosure defense lawyers all over the country.


The Notes Are NOT Lost…

 

Florida foreclosure defense attorney Matt Weidner says that he’s tried thousands of cases and he’s NEVER has had a case in which the bank didn’t eventually show up with the actually note.   “They’re not lost… they know where they are.  They just don’t want to go to the trouble of producing then.  But when push comes to shove, they always manage to find them,” Matt explains.

 

 

According to Weidner…

 

“I’ve taken depositions that have explained how the LPS system for tracking notes is very sophisticated.  To take a note out of the vault, the system generates something called a Dailee Agreement, and there’s even an insurance policy that travels with that note in case it’s lost or damaged.  But it’s time consuming.  And the compensation system encourages foreclosing attorneys to do everything fast and faster above all else, so if they can get away not producing the note, so much the better.”

 

Tom Cox, the foreclosure defense lawyer from Maine, agrees.  He says you can absolutely count on the bank to show up with the note every single time… if they have to.  He’s never seen them not do it… ever.  “Oh, they’ve got the notes… of course they do.”

 

Coincidentally, Matt Weidner just days ago lost a case for the first time and that has him ready to chew on glass.  Incredibly, none other than “Linda Green signed the assignment and yet the judge in the Florida court just did not care.

 

Here’s an excerpt of Matt in court, from the transcript…

 

This plaintiff has come into your courtroom asserting they’re the service that asserts that they’re an agent-ship for someone else.  They haven’t disclosed who the principal is.  They’ve given you zero evidence that they have any authority to be here on behalf of the principal.

 

The plaintiff has failed to introduce any evidence whatsoever that either one of the witnesses that they have called have any relationship to the note or mortgage in question.  They have, in fact, said, both witnesses, we are the servicer but they have not introduced a single piece of evidence which gives them the authority to be here in front of the Court.

 

Misinformation and hyperbole making a bad situation worse…

 

The blog, Deadly Clear, reported on this story a few days ago, but rather than stopping where the case stopped, the author made the decision sound like much more than it is.  Here’s an example…

 

Attorney Bickerton faced off in court and explained to the Judge oral argument that the banks didn’t just miss the date to file their assignments or needed to tidy up paperwork, this was a ‘Business model using the loans for overnight lending.’  Bickerton told the Court that if this wasn’t dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williamses’ loan.

 

This is the thinking that ultimately leads to believing that the borrower doesn’t owe any money because some combination of insurance policies and credit default swaps have combined to pay off all of the loans, making all of the investors whole and allowing the servicers to now collect again from the homeowners who actually own their homes free and clear.

 

It’s not true.  Neither default insurance, which is issued by monoline insurers, nor credit default swaps ever pay off loans.  If you want to know how these deals work in detail, I just published a couple of articles on the topic, “If WE Owned a Pool of Loans, Would WE Allow Principal Reductions.” AND… “An Insider’s View of an Actual RMBS Securitization at Mandelman U.”

 

The writer seems to be saying that Deutsche is profiting from the loan so there should be an offset of some kind.  This line of thinking is not only not true, but it’s also not relevant.  The actual loss by the bank in a default is not relevant to the amount owed by the borrower.

 

And the writer goes on… and on…

 

Understanding the premeditated intentions of these banks, how they pledge, collateralize, swap, sell, lease, and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard – the fraud upon the homeowners, the courts and the state.

 

Look, the writer is obviously passionate, and I don’t want to take anything away from that, but we can’t fall into the trap of not being accurate and correct in what we say and do…. or we will lose.

 

Let’s discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID.

 

This is the REMIC trust issue.  REMIC trusts are the type of trust used when issuing mortgage-backed securities, and while the writer may be right, in some instances, it just doesn’t matter because the Internal Revenue Code is not something homeowners can enforce.  The IRS has made it clear that they have no interest in going after this issue, and it isn’t something that impacts the borrower… so it’s a distraction, nothing more.

 

And let’s suppose we can see the trading in the trust is active, numerous investors have already been paid off – where is the “injury”….hmmm?

 

Okay, I hear this type of thing every day lately… I don’t know where this rumor came from but it’s NOT TRUE.  Investors have NOT been paid off… not even close.  Just read any of the lawsuits being brought by investors against the issuers of mortgage-backed securities and you’ll get the message in a damn hurry.

 

We’re connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in… and eventually we’ll know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to “off” us)… it’s coming soon – to a court room near you…

 

The borrower didn’t have to intend to participate in anything having to do with securitization, and borrowers are not securities without disclosure.  These are rumors dreamed up by someone who wants to sell homeowners on signing up for a lawsuit.  Someone showed it to me about a year ago.  It’s grown out of control.

 

Don’t buy into these things… don’t write anyone a check to join such a lawsuit.  It’s nothing but a rip-off, I promise.  And you don’t have to take my word for it… for any of this… call experts all over the country… ask them.  You’ll see…

 

Look, I know how homeowners feel today, and the stress is increasing as things get progressively worse, so many people want to believe that there’s something out there that can save them… that’s why the scammers are so successful… at some point people buy magic beans.

 

The key to getting through this is education… educate yourself… double check everything… read books, articles… listen to my podcasts with the country’s leading experts.  That’s how we will win… because the more you learn the more powerful you become.  And that’s a fact.

 

So, be pleased about this decision… it’s a good decision.  But that’s all it is… the race is long… and in the end it’s only with yourself.

 

Mandelman out.

 

 

Jan
11

Roger Simon throws in the towel on Newt

Newt: an "angry warthog emerged, snorting across the public stage, unable to control his emotions."


Roger L. Simon, author, editor, director and pundit, has an apology for his readers. (Full disclosure… Roger pays me from time to time on a freelance basis.) He would like everyone to know that he may have made an unforced error with his early jump onto the Rick Perry juggernaut. I fell for Rick Perry, [...]

Read this post »

Jun
17

Mandelman’s Uncommon Advice for Getting Through the Loan Modification Process Without Losing It

How to hold up under the stress and strain of getting a loan modification…


Every single day of the last 18 months I’ve talked to homeowners who are somewhere in, around, or near the process of attempting to get a loan modification.  Some who call or email me have yet to apply, some have only just applied, many have been living through the hellish experience for over a year.

There are those with a sale date only days away, and then there are those who have already lost their home to foreclosure.  I’ve spoken or emailed with literally thousands of homeowners, some for hours on end and on more than one occasion.

I’ve seen the emotions people go through as the process incomprehensibly drags on, month after unbearably stressful month.  I’ve seen the happy days, when something inexplicably seemed to go right, and the absolutely terrible days, when nothing the bank said made sense or came true.  It’s one of the fundamental paradigm shifts that everyone goes through at some point during the loan modification prices: they come to the realization that banks lie often and whenever it suits them, and there’s nothing anyone can do about it.

We weren’t raised to think of banks as liars or con artists, so it’s a difficult thing for most people to accept, but after a few first hand experiences, everybody ends up in the same place: stunned at the realization that the bank doesn’t care about us as customers at all.

There’s no point in sugarcoating this… getting a bank or mortgage servicer to agree to modify a mortgage is never a pleasant experience.  In fact, it’s pretty much horrible, even when it’s good.  You may finish the process with a permanent loan modification, but it’s unlikely that you’ll feel much like celebrating.

There are a few things you should know about the loan modification process, from the bank’s perspective, that may make it a little easier to get through the process.  Because in my experience, when it comes to loan modifications, it’s the uncertainty that will drive you to distraction.

First of all, it’s important to understand that banks know that some people who become delinquent and apply for a loan modification will end up bringing their account current again on their own.  The banks refer to this as “self-curing” and it should be obvious that to a bank, modifying a loan that would end up self-curing would be like throwing money out the window.

The problem is that the only way a bank can tell if a borrower is going to self-cure is to basically torture that borrower.  The bank will do just about anything to make a borrower who becomes delinquent feel uncomfortable.  Banks call at all hours of the day and into the evening, and, of course, send collection letters that are designed to make borrowers feel guilty, irresponsible, ashamed and afraid.  No one who falls behind on mortgage payments gets through it unscathed.  Most people stop answering their home phone, some even turn it off, and the days of happily walking to the mailbox to get the mail are over.

Homeowners who are delinquent on their mortgage are not only being tortured by their banks in the hopes that they will breakdown and bring the loan current on their own, but at the same time they’re tortured by others around them as well.  From television programs that talk about “irresponsible homeowners” who borrowed too much, to friends or relatives who don’t understand why anyone would “get in over their head,” it’s no picnic to feel like the only one in the room who is at risk of losing your home.

Bound by Shame…

You see, when people are ashamed of something they don’t talk to others about their problem.  They keep in inside… hidden… a dark secret that no one can ever know.  And that makes it worse… and worse… and worse.  It’s something like being in solitary confinement.  Over time, and loan modifications can take plenty of time, it can become unbearable… and lead to lashing out… sometimes at loved ones, or at others who are trying to help.

I can tell you that I’m contacted at least once each week by a homeowner who tells me that his or her spouse either has already left, or may soon leave the marriage because one blames the other for the predicament in which they find themselves.  Many others have told me that without some of the articles I’ve written, they would not have made it through the storm as they did, and frankly it’s these emails that have kept me going every time I wanted to stop writing on Mandelman Matters.

I’ve also received more than a dozen calls from people that have lost someone to suicide as a result of the pressure and shame that can come along with losing a home.  It makes me sick, and I’ve been reduced to tears more than a few times as I’ve come to understand what’s really happening in millions of American homes today.  I know… if the foreclosure crisis has not yet affected you personally, then you can’t see it or feel it… but it’s there and its growing every day.

There is still a portion of our society that feels little if any empathy for homeowners at risk of foreclosure, and they justify their intolerant views by telling themselves that foreclosures only happen to irresponsible homeowners… certainly never to them, they rationalize.  They, after all, are responsible.

Well, let’s dispense with these viewpoints right away.  It’s not the fault of borrowers, what we’re going through was caused by the banks, Wall Street, commercial, and miscellaneous others.  Period.  Is that to say that some homeowners didn’t borrowers more than they should have… of course not.  But, three years into this crisis, it has affected tens of millions and unless something changes, it will affect tens of millions more.  If you’re not losing your home today, you’re lucky.  And unless you sold bonds to Iceland… then our global economic meltdown and financial crisis is not your fault.

I’ve said it before and I’ll say it again now… foreclosures breed foreclosures… they lead to reduced consumer spending, which cuts corporate profits and leads to increasing unemployment, which leads to more foreclosures, which destroys even more equity and contributes to more foreclosures still.  And in addition to that disastrous downward spiral, foreclosures continue to make the toxic assets residing on the balance sheets of many of our nation’s banks, that much more toxic, thus deepening our problems.

So, if you’re a homeowner at risk of foreclosure, start by letting yourself off the hook because it’s not your fault, and you didn’t do anything wrong, except in hindsight, of course.  And if you’re still unsure, or have someone in your life that simply won’t listen to reason, send that person one of the links below, and if they still want to argue, tell them to come argue with me.

Senate Investigation Says Banks Caused Crisis Not Borrowers

Phoenix Couple Says Wells Fargo Is the Loan Modification Scammer

Mandelman U Presents Securitization of Mortgage Backed Securities

Physical & Fiscal Health: About Alcohol, Sugar, Exercise… and Sleep.

The stress involved in the loan modification process is debilitating, but there’s plenty you can do to make it even worse, and people do these things all the time.  Consider the following information on four things that you can do that will make the process that much easier.

A. Alcohol is a bad idea when you’re under a great deal of stress.  The problem is, it can also feel like the right thing to do, when you’re under a great deal of stress.  While there’s no way for you to stop someone who’s determined to drink through stressful times, you may be able to stop, or at least slow, those who just need to hear someone tell them to be aware of this issue.

I always tell homeowners entering the loan modification process that they should consider being aware of the tendency to drink more alcohol when feeling stressed… you want them to remember that drinking doesn’t make it easier… it makes it harder… much harder

B. Sugar is another drug that people turn to when stressed out.  It’s also a substance with few true positive benefits. Too much sugar makes one sleepy and the ability to calculate and remember is lost.

Here’s a link to an article about sugar titled: Refined Sugar… The Sweetest Poison of All.

C. Exercise is the best stress reliever of all for several reasons.  In fact, the best way to deal with stress is to increase the amount of exercise you get.  Any exercise will do.  Even walking three times a week can mean the difference between restful sleep and nights spent tossing and turning.

  • Exercise decreases ‘stress hormones’ like cortisol, and increases endorphins, which are your     body’s ‘feel-good’ chemicals.  The result gives your mood a natural boost.
  • Physical activity can take your mind off of your problems. Exercise usually involves a change of     scenery as well, either taking you to a gym, a park, a dojo, a biking trail, or a neighborhood     sidewalk, all of which can be pleasant, low-stress places.
  • Exercise helps you lose weight, and many people feel a boost as clothes look more flattering on,     and as a result they project increased confidence and strength.
  • Stress can cause illness, and illness can cause stress.  So, improving overall health with exercise     can also save a great deal of stress in the short run, by strengthening your immunity to colds, the     flu and other minor illnesses, and in the long run, by helping you stay healthier longer.
  • Research shows that physical activity may be linked to lower physiological reactivity toward     stress. Simply put, those who get more exercise become less affected by the stress they face.

The 180-Day Savings Challenge

Maybe your loan will  loan be modified, maybe it won’t.  Maybe it’s bankruptcy that’s the best path, or maybe it’s not.  There are many potential outcomes for homeowner at risk of foreclosure.  But all of them involve one thing: money.

The answer is money.  What was your question?

Start saving on day one of your loan modification process, and it may be advantageous to think of this  saving as part of a challenge.  Here’s what I’ve often said to homeowners when they’ve called me to tell me they just started the loan modification process.

1. I start by reminding them that the process is lengthy, stressful and no fun.

2. I explain bluntly that six months from now, they may or may not have been successful getting their mortgage modified, but regardless of where that situation stands six months down the road, they’re going to want to have as much money as they can sock away.  And there’s no better time than right away to start saving even small amounts.

3. I recommend everyone applying for a loan modification start their own 180-Day Savings Challenge.

4. Here’s all you need: A calendar to mark off the days as they pass, and chart progress along the way.  A large jar in which to throw change and small bills.  A commitment to answering the question: How much can we possibly save in 180-days if we try our absolute hardest to save every nickel.

Why is this important?  Because if your lender or servicer fails to modify your loan as you hope they will, the only thing that may save your home is money, so you’ll need all you can get.  Also, along the way… your lender or servicer may do something illegal or unfair under the law, and an attorney may be able to file a suit on your behalf.  Check out how homeowners are slowly regaining some of their power:

Court Rules Private Right-of-Action Exists for Violations of CA Civil-Code-2923-5

HAMP-It’s a Real Class Action

But suing a bank isn’t cheap, much less free, so you’ll need money on hand for that.  And lastly, maybe everything will work out exactly as planned, meaning that your loan will be modified to fit your financial situation, so you won’t need the money you’ve saved over the past six months, but who cares?

Won’t it be cool to know how much you can save in a six month period of you tried your hardest to do so?  You bet it would, so there’s no reason not to get started immediately.  Hold a garage sale?  Sure.  Babysitting on weekends, why not.  Bake sale… sure but make it sugar-free.

In Conclusion…

I have to tell you that after spending all of my waking hours shoulder deep in the foreclosure crisis, watching our government bungle everything it touches, and talking with homeowners in almost all 50 states, I’ve wanted to quit a thousand times, and yet I’d never did.  Because I’ve also met some of the world’s greatest people who I am proud to call friends today.

We’re in this together, whether you’re losing your house today… or possibly tomorrow.  The link below will take you to my last bit of advice… and it’s perhaps the single most important thing you can do.  It’s called the REST Report and you send it into your lender or servicer.  It shows how the investor who owns your loan will come out by modifying instead of foreclosing.  I wouldn’t even consider starting down the loan modification path without it.

How and why to use the rest report when applying for a loan modification

And I’m here: mandelman@mac.com

Aug
04

Mortgage Hardship: Solutions to Avoid Foreclosure

Here’s a link to my similar article at EZinesArticles.com: http://ezinearticles.com/?Mortgage-Hardship—Solutions-to-Avoid-Foreclosure&id=2710389

If you are facing a hardship with making your mortgage payments, you’re not alone. The national foreclosure rate is now at one in every 555 households. If you live in the Ft. Myers/Cape Coral area, that statistic jumps to 1 in every 18 households now in foreclosure.

A mortgage hardship is very common with unemployment numbers rising daily and US homeowners losing the values in their homes on a monthly basis as well

When someone loses their income they go through all sorts of emotions when they cease to have the ability to pay their bills. Fear can easily be all-consuming when facing a mortgage hardship and foreclosure.

The first thing I tell my clients is to not be afraid. Fear can take a root in our lives and cripple us from taking action and acting wisely.

Don’t cave in to the fear tactics of your mortgage servicer or lender – or any other creditor for that matter. You’re still in control even though you may not feel like it.

There are precise steps you can take to protect yourself and your interests. There are legal rights that you possess and can use to help yourself in difficult times. The biggest challenge is that most American consumers and homeowners don’t know they have legal rights. You have foreclosure rights…when you’re facing a mortgage hardship, all hope is not lost.

We have helped families stay in their home for an extra 6 months, 8 months and over a year. We never provide a precise time frame or outcome. There are so many variables… if you have a company giving you a bunch of promises and charging a lot of money upfront for now finite service, be extremely wary and cautious.

Another very likely issue is that the financial institution attempting to collect and/or foreclose doesn’t even own your loan or have the legal right to collect. Over 80% of all foreclosures filed in Florida right now contain a “Lost Note” count alleging that they (the plaintiff) have lost the most important document as evidence of the debt they claim you owe – the Note

There are several affirmative defenses that a qualified and competent foreclosure attorney will know how to bring in your case.

A TILA mortgage rescission may be something that you can assert if there are material disclosure violations found in a forensic loan audit of your loan documents. Obtaining a true forensic loan audit is probably the best first step you as a homeowner in mortgage hardship can take.

A forensic loan auditor will truly break down the entire package of loan documents and examine them for state and federal loan violations along with a forensic examination for fraud and failure to disclose, appraisal fraud and loan application and underwriting fraud.

Be certain that you are truly dealing with a reputable and knowledgeable auditor. I find that a very select few of us really know what to look for and truly know the laws. So many people will tell you what you want to hear without preserving integrity and honesty.

There is a litany of scams out there so be careful. Take your time, ask questions, find a professional who will help and educate you. Knowledge is truly power. The more you know and understand your foreclosure rights, the better off you’ll be.

Quantified violations of the Truth in Lending Act (TILA) and other federal violations can be used a Claims in Defense by Recoupment in any foreclosure action brought against you. A forensic loan audit (done right) is highly valuable for you.

You’ll land on your feet. You’ll make it through this tough time. Be a sponge for information, read it with common sense in mind and find a person or two who can be your mentor or advisor through this time. You’ll make it… I promise.

Website Designed and Developed by Tampa Web Designer