Matt Weidner – Fighting With The American People

Posts Tagged ‘hamp’

The Treasury Department has allocated $75 billion to entice lenders to let beleaguered borrowers stay in their homes. And the companies getting most of that money—well, they’re the same companies that got the borrowers into this mess. At least 21 of the top 25 recipients in the Home Affordable Modification Program were major subprime lenders, according to the Center for Public Integrity. Meanwhile, not even 1 in 5 homeowners eligible for the program has gotten help.

Finally, as reported here in today’s edition of the Wall Street Journal, BofA is going to start reducing the principal balance on mortgages.

After being pumped full of billions of dollars in taxpayer money and after acquiring many of the loans that will be reduced for cents on the dollar….reducing principal is just something that makes sense.

Read on and stay tuned….much more on this later. This is a trend that will undoubtedly make its way to other lenders as well!

I’ve frequently posted comments and figures which document what a dismal failure the modification efforts have been….under the HAMP program, the federal government has set aside $75 billion dollars and we’ve gotten fewer then 180,000 modifications.

Having said that, getting a modification may be worse for the consumer in the long run

than not getting one.

Homeowners and advocates need to think long and hard before agreeing to any sort of modification.  What we’re seeing across the board and in many cases is that lenders simply cannot produce the basic paperwork and evidence they need in order to complete a foreclosure.  Rather than try and correct these paper deficiencies in legally permissible ways (although in some cases, there may be no way to correct these fatal flaws), the lenders and their agents are papering the files in fraudulent and impermissible ways that often leads to the case being dismissed.  Most of my residential foreclosure cases are now either stalled at the Motion to Dismiss stage or they have been dismissed and the case not refiled after a Motion to Dismiss based on the issues described above.

Mortgage Modification- How The Wolf Gets in Your Door

Some of the initial modification agreements had clear terms and conditions that were relatively favorable to homeowners.  The agreements I’ve seen lately however, turn the tables and have the homeowner giving away many of the important rights and defenses I can use to defend their case in foreclosure.  Put simply, buried in the modification agreement are terms to the effect that the homeowner agrees and consents that the new document they sign is evidence that the lender has the right to foreclose.   I suppose if the modification were a great deal for the homeowner, it might make sense to sign the agreement, but I have yet to see any modification that was so desirable that it made sense to trade important rights for.

When mediations start in wide scale across Florida, there will be a real push to sign new agreements.  It will be more important than ever for homeowners and advocates to be aware of this issue and not give up any important rights as part of any agreement.

A story in the Huffington Post, and available here reports that the federal government’s response to the foreclosure crisis is a dismal failure with a mere 33% of those who were in a trial modification converting to a permanent one.  Of the millions of Americans that are struggling, all the might and power of the federal government (and $75 billion of our taxpayer dollars) has only provided any assistance to less than 180,000 people.

• Rep. Jim Jordan, an Ohio Republican on the House Oversight Committee was more blunt: “It’s not surprising these numbers are lower than expected,” he said in an email. “This program has been a waste of taxpayer dollars and harmful to the very families it was supposed to help.”
• “I’ve come to the reluctant conclusion that the only way to accelerate the program and also provide adequate incentives for homeowners who sacrifice to stay in their own homes is through permanent, locally-tailored, unconditional reductions in mortgage principal,” he said. (Dennis Kucinich)
• A senior Treasury official told HuffPost on Monday that the department was heading towards more writing down of principal as part of its mortgage modification efforts, and that an announcement was to be expected in the next few weeks.

An article in today’s Wall Street Journal, found here reports that Congress is getting real serious about forcing banks to work with homeowners (taxpayers) in foreclosure.  They are so serious, that Rep. Barney Frank wrote a letter!  He wrote a letter.  See apparently, banks aren’t working with homeowners and the foreclosure problem continues to slog on.  Not to worry though, once the lenders get THE LETTER things are bound to get better.

• Many second liens have little value because of the plunge in home prices, Rep. Frank wrote, adding: “Yet because accounting rules allow holders of these seconds to carry the loans at artificially high values, many refuse to acknowledge the losses and write down the loans.”

• Most first-lien home loans are held by the government-controlled mortgage companies Fannie Mae and Freddie Mac or by other investors in mortgage securities. By contrast, banks hold most of the seconds and other junior-lien mortgages.

• About $1.05 trillion of junior-lien home mortgages were outstanding as of Sept. 30, according to the Federal Reserve. Of those, $766.7 billion were held by commercial banks; most of the rest were owned by savings banks and credit unions.

I attach here a copy of an Order signed by Judge Charles Roberts in Sarasota on February 26, 2010.  Please take time to read it carefully.  In it, the judge makes specific findings of fact that the Plaintiff:

1. Failed to show it was entitled to foreclose;

2. Failed to show it was the holder of the note and mortgage;

3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

Caught one Stinking Fish….How Many Got Away?

The fact that these major issues were caught is good.  The problem is, how many tens of thousands? tens of hundreds of thousands? millions? of judgments of foreclosure have been signed across the country when the Plaintiff:1. Failed to show it was entitled to foreclose 2. Failed to show it was the holder of the note and mortgage 3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

I believe there are tens of thousands, maybe hundreds of thousands of judgments entered across the state (millions across the country?) where this is the case. I believe depositions of key employees at document preparation mills and foreclosure mills is going to reveal assembly line document fabrication which purports to give Plaintiffs a basis for forecloure, when no proper evidentiary basis exists.  At some point in time in the foreclosure files that the mills have rushed through are going to be carefully examined..if not by defense attorneys what about junior lienholders, certificate holders, bondholders, investment firms….when that happens now we’re talking major problems.

What happens when the assignments of mortgage were improper/fraudulent on their face?

What happens when the note and mortgage and allegations contained within the pleadings are all inconsistent, yet Final Judgment was entered based on “facts” that are of record that do not support that judgment?

And now my final question of the post….WHY ARE PLAINTIFF’S FIRMS/LENDERS BOTHERING TO GET ASSIGNMENTS OF MORTGAGES AT ALL? If Johns v. Gillian and the law as it exists is that lenders do not need an assignment of mortgage, why bother with word processing hundreds of thousands of assignments of mortgages in law firms and document mills all across the country?  In many cases, lenders are coming to the table with original notes. Ignore for the moment how they got them and what entity purports to hold them.  Ignore for the moment that the endorsements/allonges are sloppy/inconsistent/questionable on their face.  Even if a proper lender couldn’t come up with a note, they could still re-establish the note through a copy and there would be no need whatsoever (if the whole “mortgage is but an incident to the debt” argument remains valid) to have an assignment of mortgage.

Why are document mills and foreclosure mills working weekends and around the clock to spit out assignments that purport to transfer mortgages out of MERS and other lenders/entities and into other entities that we no nothing about?

How are we allowing tens of hundreds of millions of dollars to be transferred into things like “The IXIS 2006 Certificateholder, Asset Backed Trust”?

Do judges/courts have any idea who these entities are?  (I’ll answer that one, the answer is no.)

Why are courts across the country transferring bajillions of dollars into alphabet soup entities that no one has any idea who controls or where they are located or what rules apply?

Why Are Courts in Florida Continuing to Rely on Legal Reasoning That Existed in 1938?

Remember that the Johns v. Gillian “mortgage is but an incident to the debt” reasoning applied in tiny little town where parol documentation and other evidence existed that supported the foreclosing lender’s claim to ownership of both the note and the mortgage. Remember Johns v. Gillian is a 1938 case! The judge probably knew everyone in his courtroom (he probably knew the lawyers since they were snot nosed kids running around town kicking cans.  He probably walked past or rode a horse past the property in question each day.  And remember the Johns reasoning applied decades before MERS was even conceived of….Johns simply cannot stand true in the MERS environment…here is Greg Clark’s splitting/Kessler v. Landmark reasoning….Johns only applies when the mortgage and note were not separated right from the very beginning.…How can the Johns reasoning apply in the MERS environment?

Consider all the cases, including WM Specialty v. Saloman and Chemical Residential v. Rector….assignments were of record in those cases and other evidence existed to support claims of ownership.  There is almost no additional evidence of ownership or interest in the cases that are being shoved through courts other than a few questionable documents…..but again the burning question….

Why The Assignments of Mortgage?