Tag Archives: Mortgage broker

How Homeowners Can Effectively Handle the Mortgage Loan Modification Challenges

13 Wednesday Apr 2016

Posted by in Banks and Lenders, Judicial States, Loan Modification, Non-Judicial States, Your Legal Rights

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For the past few years, homeowners in foreclosure situations have discovered the ugly protocol involving mortgage loan modification. These series of repeated process between the homeowner and the alleged lender can sometimes lead to frustrations, stress and emotional distress. This post is designed to help homeowners cope with the frustrations of mortgage loan modification protocol.

1) Before agreeing to any more loan applications, write to your lender.  Ask them to stipulate to the following statements in an affidavit form:
“Please stipulate and warrant that you are the owner of the obligation, or have the authority from the owner of the obligation to modify my loan.
If you can not or will not stipulate and warrant that you have the authority to modify my loan within 30 days, then you fully admit that you never had the authority to modify my loan.  You acted not in good faith and are practicing fraud and deceit.

This is an admission that will be used in all future litigation against your company.  You can not represent that you have the ability and authority to modify my loan while hiding the fact that you actually do not have such authority.”

BE SURE TO ASK FOR THE SPECIFIC NAME OF THE PERSON MAKING THE DECISION FOR YOUR LOAN MOD. You can get a deposition from this person if you move in to litigation.

2) Get a Securitization Audit.
If you get a third party expert witness to testify that your loan has been securitized, then present the audit to your servicer.  Ask them pointedly:
“It seems that my loan has been securitized.  Please see the enclosed securitization audit.  If my loan has been securitized, then you no longer own my promissory note.  If this is the case, then I am very confused.  Please explain to me how you have the authority to modify my loan.
Please stipulate and warrant that you are the owner of the obligation, or have the authority from the owner of the obligation to modify my loan.
If you can not or will not stipulate and warrant that you have the authority to modify my loan within 30 days, then you fully admit that you never had the authority to modify my loan.  You acted not in good faith and are practicing fraud and deceit.

This is an admission that will be used in all future litigation against your company.  You can not represent that you have the ability and authority to modify my loan while hiding the fact that you actually do not have such authority.”

3) Sue Your “Lender”
If you can gather enough evidence to prove that:
a) Your servicer has no authority to modify your loan, yet represent that they do.
b) They have acted not in good faith…and have continued to deny your loan mod, time and time again…especially with contradictory statements like “you make too much money” followed by “you make too little money”.
c) Find out from your securitization auditor that you qualify for HAMP but no actual application with HAMP was done with your loan.
d) You were put into a trial payment program…which you pay on time consistently…and are either foreclosed upon, or denied anyway for good measure, then you have a justifiable cause of action.

The title of your action would be asking for a “Permanent Injunction”.  Consult your attorney.  Basically, a permanent injunction is such that your bank can not foreclose on your home until such times as they offer you a sustainable loan modification.  The basis for this injunction is because they represent to you that they have the authority to modify the loan, and go through the motions of giving you a loan modification application.

The principle we want to use here is to prove that the “lender” is not acting in good faith.  We are going to make them eat their words.  In other words, if they represent that they can do a loan modification, but in fact, they can not…then they are guilty of misrepresentation.  Be sure to consult the Fair Debt Collections Practices Act under misrepresentation as another claim in your civil action.

The strategy here is, by suing your “lender”, you are now costing them big money…to the tune of $10,000 to $25,000 just to defend your action against them.  When it starts to hurt them…then they will be more likely to come to the table to deal with you more fairly.  Currently, there is ABSOLUTELY NO REASON for them to give you a loan mod.

Home owners should wake up TODAY! before it’s too late by mustering enough courage for “Pro Se” Litigation (Self Representation – Do it Yourself) against the Lender – for Mortgage Fraud and other State and Federal law violations using foreclosure defense package found at http://www.fightforeclosure.net “Pro Se” litigation will allow Homeowners to preserved their home equity, saves Attorneys fees by doing it “Pro Se” and pursuing a litigation for Mortgage Fraud, Unjust Enrichment, Quiet Title and Slander of Title; among other causes of action. This option allow the homeowner to stay in their home for 3-5 years for FREE without making a red cent in mortgage payment, until the “Pretender Lender” loses a fortune in litigation costs to high priced Attorneys which will force the “Pretender Lender” to early settlement in order to modify the loan; reducing principal and interest in order to arrive at a decent figure of the monthly amount the struggling homeowner could afford to pay.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and need a complete package that will show you step-by-step litigation solutions helping you challenge these fraudsters and ultimately saving your home from foreclosure either through loan modification or “Pro Se” litigation visit: http://www.fightforeclosure.net

Using Federal Laws To Your Advantage On Your Foreclosure Defense

15 Wednesday May 2013

Posted by in Foreclosure Defense, Litigation Strategies

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Real Estate Settlement Procedures Act (RESPA)

RESPA was designed to give home buyers and sellers better disclosure of settlement costs; and to elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.

Prohibition Against Kickbacks and Referral Fees

12 U.S.C. §2607(a); 24 C.F.R. § 3500.14(b). RESPA prohibits the giving or receiving of any fee, kickback or other thing of value for the referral of a “settlement service” (defined at 12 U.S.C. § 2602(3) and 24 C.F.R. § 3500.2).

One court has stated that, in order to state a claim alleging a violation of this section, one must demonstrate:
1) an agreement between the parties to refer settlement service business,
2) the transfer of a thing of value, and
3) the referral of settlement service business. “An agreement or understanding for the referral of business incident to or part of a settlement service need not be written or verbalized but may be established by a practice, pattern or course of conduct.” 24 C.F.R. § 3500.14(e).

Yield-spread premiums: A yield spread premium is a fee paid by a mortgage lender to a mortgage broker for arranging a loan with an interest rate at a higher amount than the par rate. Payment of a yield spread premium is not a per se violation of this section, but may be illegal under RESPA based on a factual inquiry into the circumstances surrounding the payment.

HUD (the agency charged with interpretative, investigative and enforcement powers under RESPA) recommends a two-step inquiry to determine whether a yield spread premium is illegal. First, one determines whether the payment of the yield spread premium was for services actually performed; if it is not, then the payment is an illegal kickback. If the payment was for services actually performed, then one looks at whether the total compensation paid to the broker reasonably related to the value of the services; if the compensation does not reasonably relate to the value of the services, the payment is a violation of this section.

Recently, some Courts have fashioned a five-part pleading standard for alleging a YSP-based violation of RESPA, three-part test and on HUD statements:

“(1) the existence of an agreement between the lender and broker whereby the broker promises to refer settlement service business to the lender;

(2) the transfer of a thing of value between the lender and broker based upon that agreement;

(3) the referral of settlement service business by the broker to the lender and either that

(4) the broker received a YSP without providing any goods or services of the kind typically associated with a mortgage transaction or (5) if the broker did provide such goods or services, the total compensation paid to the broker was not reasonably related to the total value of the goods or services actually provided.. As part of pleading (4) or

(5), a borrower must plead what services were offered, the reasonable value of those services, and the fact that total broker compensation exceeded that value. Also, a borrower alleging a YSP-based violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, or a YSP-based breach of fiduciary duty, can only do so by (also) meeting the RESPA pleading standard.

Prohibition Against Unearned Fees and Fee Splitting 12 U.S.C. §2607(b); 24 C.F.R. §3500.14(c). RESPA prohibits the giving or receiving of “any portion, split or percentage of any charge made or received for the rendering of a settlement services in connection with a transaction involving a federally related mortgage loan other than for services performed.” The regulations further state that, “A charge by a person for which no or nominal services are performed or for which duplicative fees are charged is an unearned fee and violates this section.”
Remedies

There is a private right of action for violation of § 2607 (Illegal referral fee or kickback and fee splitting). Statutory damages: person charged for the settlement service can recover an amount equal to “three times the amount of any charge paid for such settlement service,” plus attorney’s fees and costs. 12 U.S.C. § 2607(d).

Practice Tip:

The bottom line is that any payment by the lender to the broker is illegal if it is not for the reasonable value of services actually performed. So if you see a high up-front broker’s fee plus a yield-spread premium or other broker fee paid by the lender, there’s a good chance the lender-paid fee is “unearned gravy” and constitutes a violation.

There is a private right of action for violation of § 2605 (Servicing requirements and administration of escrow accounts). Actual damages for each failure to comply, additional damages for a pattern and practice of noncompliance, plus attorney’s fees and costs. 12 U.S.C. § 2605(f).

Statute of Limitations

• 1 year for affirmative (kickback and fee-splitting) claims. 12 U.S.C. § 2614;
• Unlimited as a defense to foreclosure in the nature of a recoupment or setoff.