It might seem to many that the industry is blind to title problems caused by false claims of securitization or even real claims based upon securitization. It might also seem that there is nothing about which you can litigate when it comes to HAMP and HARP modifications. The big seminar promoters are offering a gaggle of of short and long seminars on these subjects, indicating that they recognize that litigation and title snarls are getting traction across the country and they admit that the future litigation will include clearing title and litigating over HAMP modifications.
The principal problem that homeowners and their lawyers are missing is that the duty to consider the modification does not require the the acceptance of a homeowner for modification. Some servicers are getting more lenient than others, including, from what I hear, Ocwen. But the litigation that is being filed and which the pretender lenders are losing is on the precise question of whether the actual creditor was given notice of the offer of modification and whether the servicer did anything to apply any formula to the the almost inevitable denial of modification.
What we have started doing at my firm is (a) supplying the required material, return receipt requested, together with (b) a specific offer of modification on which an expert (real estate broker, mortgage broker or other professional in the real estate industry) gives an opinion that is worded something like the auditors do when they complete an audit, to wit:
“Based upon industry standards and conditions, the enclosed offer of modification reflects actual current conditions in the relevant real estate market and provides the creditor with two benefits that are not present in the event of foreclosure. The first is that the question of the perfection of the mortgage lien and enforcement of the lien is completely resolved, thus clearing title and the second, is that the net proceeds from the enclosed proposal for modification results in a far higher benefit to the actual creditor than the proceeds from foreclosure, which is a fraction of the offer. There is no known criteria in the industry under which this proposal would be rejected under normal circumstances unless the parties rejecting the modification had some risk of loss unrelated to the loan itself.”
When the denial comes back, you have a basis for alleging that they are lying to the court, that the modification was never considered, that inappropriate criteria was used to guarantee denial and that the creditor was never notified. The anecdotal reports I am receiving strongly suggests that this strategy is getting a lot of traction and is resulting in very favorable settlements within hours after the Judge enters an order requiring the servicer and pretender lender to show cause why they should not be ordered to provide a evidence of the “consideration” and the reasons why the proposal or request was denied.
The National Business Institute is offering three seminars that will be the subject of the member teleconferences (become a member of this blog now to get into the discussion: Become a member, for discounts, online teleconferences etc.). I strongly recommend that these short seminars be attended and that you even order the recordings as well.
Go to http://www.nbi-sems.com (livinglies is not paid for this endorsement directly or indirectly). I would suggest ordering the following seminars:
HAMP litigation: breach of contract and related claims, June 21, 2013 2 p.m. to 3:30 p.m.
Resolving complex commercial title defects June 11 2013 11:00 a.m. to 12:30 p.m.
Handling short sales and deed in lieu of foreclosure 2 p.m. to 3:30 p.m. July 11 2013
- The Role of MERS in Mortgage Origination and Foreclosure June 3 2013 1PM-2:30PM
Filed under: CDO, CORRUPTION, Eviction, foreclosure, GARFIELD GWALTNEY KELLEY AND WHITE, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: breach of contract, consideration of modification, deed in lieu of foreclosure, fraud upon the court, HAMP litigation, modification, notice to creditor, SEMINARS, short sales, title defects | 9 Comments »