Extent of Bankrutpcy Reforms Hinges on Detials

This is an interesting story and we are publishing with the courtsey of Washington Post.

Extent of Bankruptcy Reform Hinges on Details

By Renae Merle
Washington Post Staff Writer
Saturday, February 21, 2009; D01

When President Obama touted reform of the bankruptcy code while unveiling his foreclosure prevention program earlier this week, it wasn’t much of a surprise. He had advocated allowing judges to modify troubled loans several times before, including during the presidential campaign.

But in the fine print of Obama’s proposal were restrictions that some of his fellow supporters of bankruptcy reform said could blunt its impact. Opponents, meanwhile, have said they viewed the president’s version of the proposal as a move in the right direction.

For one, the Obama initiative would cap the value of mortgages that could be revised in bankruptcy court. It would also pertain only to loans originated in the “past few years,” according to a summary of his proposal.

How the administration chooses to define several parts of its plan will impact whether tens of thousands of homeowners are excluded, said Henry Sommer, a past president of the National Association of Consumer Bankruptcy Attorneys. “It could affect a lot of people or very few people, we don’t know,” he said.

The details will ultimately be hammered out on Capitol Hill, where lawmakers have been wrangling with the financial services industry for years about allowing bankruptcy judges to lower the principal owed on home loans. Now, bankruptcy judges are precluded from modifying mortgages on primary residences, a practice known as cramdown. The House, where bankruptcy reform has already been approved in committee, could take up the measure as soon as next week, a Democratic aide said.

Republicans and the financial services industry fiercely oppose the measure, complaining it could drive up mortgage rates and increase losses to lenders. But some financial industry sources have said they expect some version of the legislation to pass and are working to limit its scope.

“What the administration put out was encouraging, because it looked at bankruptcy as a last option rather than a first option,” said Francis Creighton, chief lobbyist for the Mortgage Bankers Association.

Scott DeFife, senior managing director of government affairs at the Securities Industry and Financial Markets Association, said that his industry “saw the president’s proposal as improvements to the bankruptcy cramdown debate.”

The provision will also be a key part of a housing package being put together by Congress to codify changes to housing policy called for by Obama, a congressional aide said. The administration has designed a program to lavish incentives on lenders that modify mortgages. The incentives are the carrots to encourage more modifications, and bankruptcy reform is seen by the administration as the stick lenders would face for failing to comply.

Democratic congressional leaders aim to have the legislation passed within the next month, the aide said.

Nearly three-quarters of homeowners in Chapter 13 bankruptcy — which allows borrowers to restructure their debt — have unaffordable home payments, said Katie Porter, a University of Iowa law professor who has studied the bankruptcy process. About 20 percent of homeowners spend at least half of their income on their mortgage. Having an unaffordable mortgage can be a major stumbling block to completing the bankruptcy process successfully, she said.

Obama’s plan would limit bankruptcy cramdown to mortgages written in “the past few years” — a restriction advocated by industry officials.

“It will curb the number of people who can use [the bankruptcy court] — and probably not in a sensible way,” said Porter. “The people who are still in homes they bought in ’04 really fought hard to stay,” she said. “We should be giving them help.” Many subprime and other loans now burdening homeowners were taken out at least four years ago, she noted.

The proposal would also cap the value of the loans eligible for bankruptcy modification to limits set by mortgage finance firms Fannie Mae and Freddie Mac, which could be difficult in parts of the country that saw the biggest run-up in prices.

(The conforming loan limit is currently $417,000 in most parts of the country and $625,000 in high-price areas, including the Washington region, though the limit in these areas will soon rise to $729,750.)

“At certain points during the bubble, 60 percent of the homes purchased in California were above the conforming loan limit,” Sommer said.

Obama’s plan mimics a provision included in the House version of the legislation requiring homeowners to contact their lender before filing for bankruptcy. But the White House version also requires the homeowner to certify that they have complied with requests for information from their lender. Industry officials said that would help weed out homeowners that received their mortgage fraudulently.

But the provision could also allow lenders to disrupt the bankruptcy process by contending they did not receive all requested information, Sommer said. That would be frustrating to homeowners who complain that lenders ignore their pleas for help even after submitting and resubmitting information, he said.

“What we don’t want is where someone would think they had provided reasonable information, and the lender comes into bankruptcy court and says, ‘You can’t do this, we wanted to ask you for more information,’ ” Sommer said. “We don’t want to create a potential gotcha situation where they can try to trip people up.”

Details of Obama’s Plan:Some Answers

Here is an interesting article from NY Times.
More Housing Details Are Pending, but First Some Answers
The Obama administration’s housing plan aims to help millions of homeowners who fall into two categories: either they have been struggling to pay their mortgages or they have been shut out of the refinancing market.

The initiative gives lenders incentives to modify the mortgages of the three million to four million homeowners on the brink of foreclosure or who cannot make their monthly payments. The goal is to reduce the payments to levels they can afford.

The plan also aims to help the four million to five million homeowners who have been unable to refinance their mortgages because their home values dropped, erasing much or all of their home equity. Some of them would have a fresh shot at refinancing.

While the administration offered some details about the programs, more information will be available on March 4, when the programs begin.

Below are answers to some of the questions that troubled borrowers may have.

Q. Am I eligible?

A. Your loan must be owned or guaranteed by Fannie Mae or Freddie Mac, the government-controlled companies that together account for about half of the mortgage market. The problem is that many of the most problematic loans do not fall under the Fannie-Freddie umbrella. You can call your mortgage lender after March 4 to find out if your loan qualifies.

You will need to have “sufficient income to make the new payment and an acceptable mortgage payment history,” according to documents about the initiative. Precise details will be released next month.

In the meantime, you should get your financial house in order. That means collecting the paperwork you will need to refinance, including information detailing your gross monthly income; most recent income tax returns; information about any second mortgages; payments made on credit cards if you carry a balance; and payments on other loans, like auto or student loans.

Q. What if my home is under water?

A. If you owe more on your mortgage than your property is worth, you may still be eligible. But there is a giant caveat: your new mortgage cannot exceed 105 percent of the property’s current market value. That means many homeowners in areas like Florida, Arizona and Nevada, where home prices have plunged the most, will not be eligible.

If your property is worth $200,000, you can qualify if you owe $210,000 or less. Your property will be valued after you apply to refinance.

Q. What if I have a second mortgage?

A. You are still eligible as long as the amount due on the first mortgage is less than 105 percent of the property’s value and you have the wherewithal to meet the new terms on your first mortgage. But the lender on your second mortgage needs to agree to remain in a “second position,” which means that if you declared bankruptcy, the second loan would be less likely to be repaid. To date, these lenders have not been wholly cooperative.

Q. What kind of interest rate am I likely to get?

A. All loans that are refinanced under the plan will have a 15- or 30-year term with a fixed rate, which will be based on market rates at the time of refinancing, as well as any associated points and fees charged by the lender.

Q. Am I eligible for that?

A. To qualify, your monthly mortgage payment needs to exceed 31 percent of your monthly gross income and the house you are refinancing must be your primary home. Mortgages on two-, three- and four-unit properties are also eligible, as long as you also consider one as your primary home. You do not need to be behind on your payments to qualify. If your income is no longer enough to make the payments (because your paycheck has shrunk, your expenses rose or your mortgage rate is about to reset higher), you would still qualify.

Moreover, the loan amount must not exceed current Fannie Mae or Freddie Mac loan limits, which are $417,000, but up to about $729,000 in certain high-cost areas.

Unlike the refinancing program, the loans do not have to be owned or insured by Fannie or Freddie. Only primary loans may be modified.

Q. Will the plan reduce my mortgage balance?

A. Lenders are most likely to lower your payments to a level you can afford by reducing your interest rate. But that does not preclude lenders from reducing your loan amount. All borrowers who make timely payments will be able to cut their balance by up to $1,000 a year for five years.

Q. What if I am about to lose my house to foreclosure?

A. Call the company that services your mortgage or your credit counselor. Many lenders have stopped foreclosures on houses that may qualify for the modification program. If you are already working with a counselor, ask him or her to consider your case for the new program.

Q. Is my lender required to comply?

A. No, but the government is offering lenders incentives if they do. The government expects that most major lenders will participate.

How Lenders Violations Can Help Modify Your Loan?

By Malik Ahmad attorney at law, Las Vegas, Nevada.

Here is what Nevada Attorney Malik W. Ahmad of the Law Office of Malik W. Ahmad would look for violations in your home loan papers when seeking to modify your loan. This is just a short list, you may or may not have all these violations. Even though we do not claim any expertise on any “Forensic Loan Audit”, we nevertheless sees to ourselves if we can find any prima facie violations of federal laws like RESPA,TILA and HOEPA.

– ARM Rate Calculations must be correct
– ARM Adjustment Disclosures must be correct
– APR (Annual Percentage Rate) must be adequately disclosed

Here is some basic information about RESPA from the Housing and Urban Development Website (HUD)

Scope of RESPA
1. What kinds of transactions are covered under RESPA?

Transactions involving a federally related mortgage loan, which includes most loans secured by a lien (first or subordinate position) on residential property. This includes: home purchase loans, refinances, lender approved assumptions, property improvement loans, equity lines of credit, and reverse mortgages.

2. What types of transactions are generally not covered?

The following are kinds of transactions that are not covered: an all cash sale, a sale where the individual home seller takes back the mortgage, a rental property transaction or other business purpose transaction.

3. Is a “time share” a covered transaction under RESPA?
Yes, if the lender’s interest is secured by a lien on residential property.

4. Is a loan secured by a condominium unit or a cooperative share a covered transaction under RESPA?

Yes, as long the units are not used for business purposes.

5. Is a loan secured by a manufactured home (mobile home) covered transaction under RESPA?
Yes, but only if the manufactured home is located on real property on which the lender’s interest is secured by a lien.

6. Does a federally related mortgage loan only involve FHA, VA or other government sponsored loans?
No, RESPA covers most conventional loans too. See the statute or regulations for the definition of a federally related mortgage loan.

7. Are home equity loans covered under RESPA?
Yes, home equity loans secured by residential property are covered.

8. How does the coverage of home equity loans and subordinate lien loans differ from other RESPA covered loans?

If the loan involves an open-end line of credit, providing the disclosures required by Regulation Z satisfies the RESPA good faith estimate and the HUD-1 or HUD-1A requirements.

Both subordinate lien loans and open-end lines of credit (home equity loans) in first lien position are exempted from the loan servicing requirements.
9. Are construction loans covered under RESPA?No. Unless: 1) the loan is used as, or may be converted to permanent financing by the same lender; or 2) the lender issues a commitment for permanent financing; or 3) the loan is used to finance a transfer of title to the first user; or 4) the loan is for a term of two years or more, unless it is to a bona fide builder.

10. If a construction loan is covered under RESPA, how do you account for construction loan closing on the HUD-1 if funds will be held back by the lender until performance?

List the sales price of the land on Line 204, the construction cost on Line 105 (Line 101 is left blank) and the amount of the loan on line
102. The remainder of the form should be completed taking into account adjustments and charges related to the temporary and permanent financing which are known at the date of the settlement.

11. When the loan transaction includes an option for the borrower to obtain additional funds in the future merely by signing a note for the new amount, must RESPA’s disclosure requirements be followed for the future advance of additional funds?
Yes, because there is a new note. This is consistent with Truth in Lending Act provisions.

12. If a loan is sold within 1-7 days of closing to another lender, does the sale of that loan fall within RESPA’s coverage?

The sale of a loan after the original funding of the loan at settlement is a secondary market transaction. Such a sale is exempt from RESPA coverage as a secondary market transaction. However, any transfer of ownership and/or servicing rights is subject to RESPA’s requirements in Section 6.

13. Does the exemption from RESPA for the sale of a land parcel of at least 25 acres apply even if there are 2 homes on the property?Yes, as long as the property is a single parcel.

14. Can a credit agency provide a lender with a dedicated printer to expedite communication between the credit agency and the lender?Yes, provided the printer can only be used for communication with the lender and not for general use. If it’s for general use it may be considered payment for the referral of business.

15. Can a flood zone certification company examine a lender’s existing loan portfolio for free or at a reduced rate, in exchange for the lender sending the company future business?No. Flood zone certification is a covered settlement service (24 CFR 3500.2), therefore RESPA would apply to agreements by companies or persons providing portfolio reviews. Providing free or reduced reviews is a thing of value. Providing this service in exchange for referrals of future flood insurance business would violate Section 8(a) of RESPA which provides that “[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.”

16. Can a lender set up a contest for real estate agents under which the agent who provides the lender with the most business will win a trip to Hawaii?

No. Under RESPA, the trip itself, and even the opportunity to win the trip, would be a thing of value given in exchange for the referral of business.

17. Can a lender give a borrower an incentive, such as a chance to win a trip or a rebate, for doing business with the lender?
RESPA does not prohibit a lender or other settlement provider from giving the borrower an incentive for doing business with it as long as the incentive is not based on the borrower referring business to the lender.
18. Can a mortgage banker and a real estate broker advertise their services together, for example, on the same brochure or newspaper advertisement?
Nothing in RESPA prevents joint advertising. However, if one party is paying less than a pro-rata share for the brochure or advertisement, there could be a RESPA violation.
19. Can a lender give a real estate agent note pads with the lender’s name on it?
Yes. Such note pads with the lender’s name on it would be allowable as normal promotional items. However, if the lender gives the real estate agent note pads with the real estate agent’s name on it for the agent to use to market clients for its real estate business, then the note pads could be a thing of value given for referral of loan business, because it defrays a marketing expense that the real estate agent would otherwise incur.
20. Can a mortgage broker be compensated for referring business to a lender that is unrelated to a real estate transaction, such as automobile loans?

Yes, provided that the compensation is exclusively related to the automobile loan and does not represent, in whole or in part, compensation for the referral of real estate business, and no lien is placed on a residence to secure the auto loan.

Affiliated businesses
21. If a lender refers a consumer to more than one of its affiliated settlement service providers, does the lender have to provide a separate affiliated business arrangement disclosure statement for each referral?No, the lender can use one disclosure statement.

22. If a lender refers a consumer to a settlement service provider with which it does not have an affiliate relationship, as defined by RESPA, does the lender still have to provide the affiliated business arrangement disclosure statement?No, the affiliated business arrangement disclosure statement is only for affiliates.

23. When a principal in a law firm is a member of the board of a lender and the lender refers RESPA covered settlement service business to the firm, but not personally to the principal, must the relationship be disclosed?

Yes. When the lender refers the borrower to the law firm, the borrower must be given an Affiliated Business Arrangement Disclosure Statement.

Fee splitting

24. Can a lender charge a borrower a fee for sending documents via courier and disclose it on the HUD-1 where in fact the borrower stops by the lender’s office and picks up the documents instead?
No, because the charge for the courier service does not represent a charge for work actually performed which can be imposed on the borrower.

25. Can a lender collect from the borrower an appraisal fee of $200, listing the fee as such on the HUD-1, yet pay an independent appraiser $175 and collect the $25 difference?No, the lender may only collect $175 as the actual charge. It is a violation of Section 8 (b) for any person to accept a split of a fee where services are not performed.

26. Can a lender charge a borrower at closing a one time charge for setting up an account with a tax service to arrange for tax payments?
Yes, the lender may collect a reasonable charge for the service provided.

27. Can a title company, which has the only convenient closing room in the area, provide it to any interested party at $100 per closing?Yes, provided the charge is reasonably related to the value of the space.

Specific forms and consumer information
28. Where a mortgage broker is used, is it the mortgage broker’s responsibility to provide the Good Faith Estimate (GFE) to consumers, or is that the lender’s responsibility?

If the mortgage broker is not an exclusive agent of the lender, the broker should provide a GFE within 3 days of receiving an application. The lender is not required to send an additional GFE; however, it is the lender’s responsibility to ascertain that one was sent and includes an estimate of all costs that are likely to occur. Where the broker is the exclusive agent of the lender, either the broker or the lender shall provide the GFE.
29. When must the special information booklet be provided and by whom?
In general, the lender or mortgage broker should provide the special information booklet at application. Alternatively, they may place it in the mail to the applicant not later than three business days after the application is received or prepared.

30. Must a mortgage servicing transfer notice be given for a prospective table funded transaction?

Yes, by the mortgage broker.
31. When the potential borrower furnishes a substantial amount of financial information for prequalification, but no particular property has been identified, must the good faith estimate be furnished to the borrower?No. A submission by a borrower to a lender that does not identify a property is not an application and thus does not trigger the Good Faith Estimate requirement. However, HUD encourages providing information to the borrower on settlement costs as soon as it can be estimated, so that the borrower may be better able to shop.

32. If the servicer neglects to pay the homeowner’s insurance bill out of escrow and, as a result, the consumer loses coverage, what are the servicer’s responsibilities and what is the servicer’s liability for harm to the consumer that results? The servicer is required to pay escrow items on time, so long as the borrower is timely in his/her mortgage payments. If the borrower is damaged by the servicer’s failure to pay for the insurance on time, the borrower can sue under section 6.

Additional FAQs
33. If the borrower is getting a “no cost” loan, must the lender list charges the lender is going to pay?

Yes. The charges to be shown on the GFE and the HUD-1 must include any payments by the lender to affiliated or independent settlement providers. These payments should be shown as P.O.C. (paid outside of closing).

34. The regulations at 3500.15 (b)(1)(i) state that where a lender makes a referral to a borrower the condition for providing an Affiliated Business Disclosure (AfBA) may be satisfied as part of and at the time of the GFE. Does this mean the lender does not have to give a separate AfBA disclosure if the information is part of the GFE?

No. A separate AfBA must be given. The regulation means the AfBA may be given at the time the GFE is given if this is when the affiliate is referred or is required to be used (a lender may require the use of an appraisal, credit reporting company, or attorney).

35. Must a mortgage broker disclose payments he receives that the borrower does not pay for directly?

Yes. The mortgage broker must disclose all payments and fees he receives whether they are received directly from the borrower or indirectly from the lender.

36. If I have a question concerning the calculation of the “Annual Percentage Rate” or “APR”, can HUD answer it?The calculation of the APR is part of the Truth-in-Lending Act (TILA) which is administered by the Federal Reserve Board. Questions concerning TILA as well as Section

32 (high cost loan disclosure) may be directed to the Federal Reserve Board at (202) 452-3693 .

37. May a settlement service provider charge a fee that reflects its own fee plus any recording fees as the servicer provider’s fee? Example: An attorney charges $500 for its services and the county charges $30 for recording fees. May the attorney simply charge the consumer $530 and pay the county as a cost of doing business?

No. The “Line Item” instructions to the HUD-1 state that “[f]or all items except for those paid to and retained by the lender, the name of the person or firm ultimately receiving the payment should be shown.” The attorney must disclose all entities ultimately receiving the fee.

38. May real estate agents that are independent contractors be considered employees under the “employer-employee” exemption, for purposes of being allowed to be paid referral fees from employers?No. The exemption applies only to bona-fide employees.

39. If the borrower’s escrow account includes a surplus greater than $50 which HUD’s rules require be refunded, may the servicer credit the surplus directly to the principal, rather than refund the surplus to the borrower?No. However, the servicer may inform the borrower in the information accompanying the return of the surplus that the borrower may elect to use the refund to reduce principal or have it credited against the next year’s escrow payments.

40. If there is a surplus in the escrow account and the borrower is in default, may the servicer retain the surplus as payment towards the amount in default?
HUD’s escrow rules are inapplicable to loans that are in default, which is defined under the RESPA rules as current payments which are more than 30 days delinquent. The parties should consult the mortgage documents or state law to resolve whether escrow funds are available for this purpose.

41. May a consumer delay or avoid a mortgage transaction if it discovers that there exists a RESPA violation?

No. RESPA specifically provides that it does not affect the validity or enforceability of any sale or contract for the sale of real property, or any agreement arising in connection with a federally-related mortgage loan.
42. How should I report a violation of RESPA? You should send a written complaint describing the practice that you believe violates RESPA.

The complaint should include the names, addresses and phone numbers of the alleged violators. It is preferred that you include your name and phone number in case an investigator wishes to ask further questions. You may request confidentiality. Send the complaint to:

U.S. Department of HUD
Office of RESPA and Interstate Land Sales
451 7th Street, SW, Room 9154
Washington, DC 20410

43. You may also wish to send a complaint to State and other Federal agencies that have the responsibility for regulating the settlement providers engaged in the referenced practice.

The Law Office of Malik W. Ahmad can also audit your loan of course, on a limited basis to to see if HOEPA was violated:

Here is some basic information about HOEPA from the Federal Trade Commission Website:
High-Rate, High-Fee Loans (HOEPA/Section 32 Mortgages)

If you’re refinancing your mortgage or applying for a home equity installment loan, you should know about the Home Ownership and Equity Protection Act of 1994 (HOEPA). The law addresses certain deceptive and unfair practices in home equity lending. It amends the Truth in Lending Act (TILA) and establishes requirements for certain loans with high rates and/or high fees. The rules for these loans are contained in Section 32 of Regulation Z, which implements the TILA, so the loans also are called “Section 32 Mortgages.” Here’s what loans are covered, the law’s disclosure requirements, prohibited features, and actions you can take against a lender who is violating the law.

What Loans Are Covered?
A loan is covered by the law if it meets the following tests:

• for a first-lien loan, that is, the original mortgage on the property, the annual percentage rate (APR) exceeds by more than eight percentage points the rates on Treasury securities of comparable maturity;

• for a second-lien loan, that is, a second mortgage, the APR exceeds by more than 10 percentage points the rates in Treasury securities of comparable maturity; or

• the total fees and points payable by the consumer at or before closing exceed the larger of $561 or eight percent of the total loan amount. (The $561 figure is for 2008. This amount is adjusted annually by the Federal Reserve Board, based on changes in the Consumer Price Index.) Credit insurance premiums for insurance written in connection with the credit transaction are counted as fees.
The rules primarily affect refinancing and home equity installment loans that also meet the definition of a high-rate or high-fee loan. The rules do not cover loans to buy or build your home, reverse mortgages or home equity lines of credit (similar to revolving credit accounts).
What Disclosures Are Required?
If your loan meets the above tests, you must receive several disclosures at least three business days before the loan is finalized:

• The lender must give you a written notice stating that the loan need not be completed, even though you’ve signed the loan application and received the required disclosures. You have three business days to decide whether to sign the loan agreement after you receive the special Section 32 disclosures.

• The notice must warn you that, because the lender will have a mortgage on your home, you could lose the residence and any money put into it, if you fail to make payments.

• The lender must disclose the APR, the regular payment amount (including any balloon payment where the law permits balloon payments, discussed below), and the loan amount (plus where the amount borrowed includes credit insurance premiums, that fact must be stated). For variable rate loans, the lender must disclose that the rate and monthly payment may increase and state the amount of the maximum monthly payment.
These disclosures are in addition to the other TILA disclosures that you must receive no later than the closing of the loan.
What Practices Are Prohibited?
The following features are banned from high-rate, high-fee loans:

• All balloon payments – where the regular payments do not fully pay off the principal balance and a lump sum payment of more than twice the amount of the regular payments is required – for loans with less than five-year terms. There is an exception for bridge loans of less than one year used by consumers to buy or build a home: In that situation, balloon payments are not prohibited.
• Negative amortization, which involves smaller monthly payments that do not fully pay off the loan and that cause an increase in your total principal debt.

• Default interest rates higher than pre-default rates.

• Rebates of interest upon default calculated by any method less favorable than the actuarial method.

• A repayment schedule that consolidates more than two periodic payments that are to be paid in advance from the proceeds of the loan.

• Most prepayment penalties, including refunds of unearned interest calculated by any method less favorable than the actuarial method. The exception is if:

o the lender verifies that your total monthly debt (including the mortgage) is 50 percent or less of your monthly gross income;
o you get the money to prepay the loan from a source other than the lender or an affiliate lender; and
o the lender exercises the penalty clause during the first five years following execution of the mortgage.

• A due-on-demand clause. The exceptions are if:

o there is fraud or material misrepresentation by the consumer in connection with the loan;
o the consumer fails to meet the repayment terms of the agreement; or

o there is any action by the consumer that adversely affects the creditor’s security.
Creditors also may not:

• make loans based on the collateral value of your property without regard to your ability to repay the loan. In addition, proceeds for home improvement loans must be disbursed either directly to you, jointly to you and the home improvement contractor or, in some instances, to the escrow agent.

• refinance a HOEPA loan into another HOEPA loan within the first 12 months of origination, unless the new loan is in the borrower’s best interest. The prohibition also applies to assignees holding or servicing the loan.

• wrongfully document a closed-end, high-cost loan as an open-end loan. For example, a high-cost mortgage may not be structured as a home equity line of credit if there is no reasonable expectation that repeat transactions will occur.

How Are Compliance Violations Handled?

You may have the right to sue a lender for violations of these new requirements. In a successful suit, you may be able to recover statutory and actual damages, court costs and attorney’s fees. In addition, a violation of the high-rate, high-fee requirements of the TILA may enable you to rescind (or cancel) the loan for up to three years.
(4) Our Law Office audit your loan file to see if the ARM was adequately disclosed
(5) Our Law Office look at whether costs and fees were excessive/predatory
If we can find a legal violation of any of these statutes we can seek an appropriate remedy in a Court of law. Of course, these remedies may include monetary damages, punitive damages, attorney fees, court costs, rescission of your loan, restitution and/or a loan modification.
Note: We do not file lawsuit in every case and or not obligated just by auditing a loan to file a lawsuit. Our Attorney retains the discretion whether or not to file any case. Each suit is depends again on many other factors including the size of the loan, the nature of the lender and the complexity of litigation. Our audit is written in simple, precise and concise manner readable by anyone and understanable in simple ways. A lender faced with the prospects of an attorney filing a lawsuit overnight changes to a decent human being again eager to help his customers. This is a welcome change, and of course our borrowers like to deal with this new lenders. Now we can request the following from this newly chaged lenders:
(a) modify the Client’s loan as an act that seeks to take accountability for their non-compliance with serious loan and mortgage laws, or
(b) face the prospects of losing in court to a jury that may be largely unsympathetic to these lenders who have largely caused the economic crises we are facing? Let’s not forget this bailout is touted as a bailout for lenders. People are not at all happy about this. If we find a serious loan compliance error or omission in your loan files following a loan audit, we will be in a very strong position to compel the lender to give you the loan modification you so badly need.

(1) You have negotiated your own loan modification and the lender wants you to relinquish your rights in a new loan modification agreement. Send us the loan modification agreement your lender sent you and have us review it.

(2) Even if you are not late on your mortgage (which in today’s loan modification market means noone wants to deal with you as far as banks go) have your file audited and see if the tune changes. After all, if you find a legal error, doesn’t that give you a potential right to sue your bank or lender or do you have to wait until you are late on your mortgage to sue your bank? Keep in mind, in the legal world, statutes of limitations are always running.

Why a Loan Modification Attorney is Required?

Why an Attorney Must For Loan Modification?

We all know it is very time consuming to talk or even to find the right person for a request for loan modification. We are constantly transferred from one line to another and of course to various countries during few minutes. Well, my experience in contacting the lenders has resulted many times in many frustrating experiences as well. However, when I told them that I am an attorney some of the non sense is washed away very quickly. Phones messages starts returning, letters being replied and they cut short the delaying tactics which are meant for almost all of the borrowers. I meet clients all day in reference to their loan modification needs.

Here, is the summary of all the experiences what my clients had told me and my office staff in handling their own loan modification requests:

-We were transferred from one phone to another.
-We were transferred to a dead line.
-The average time of greetings last about 5 minutes, and each transferred calls is started again with greeting on the phone.
-You are advised to identify yourself each time.
-You are requested to send the same papers which you had faxed many times before.
-At each layer, the representative would ask you money.
-Each representative would give you same stale information, and invariably the first answer is “there is nothing we can do”.
Okay here is an experience of congresswoman ABC Nightline“>Maxine Waters.

Watch California Loan Mod Fraud Again.

lllegal California Loan Modification Companies Attacking Nevada Again.

Not a day go by when I do not receive calls from some California company wanted to do business with me or having partnership with me to do loan modification. I have told them many times that such partnership is illegal and against the professional rules of conduct of State Bar of Nevada. Apparently, they don’t listen to that. Now, some of these companies are putting ad to hire attorneys and they would “train” themselves. This is funny, how someone can be trained by totally untrained and unscrupulous people. Remember, these are the companies who have approved loan for a dead person also. They are the master of this flawed invention called “No doc”, “Low Doc” collectively called Liars Loan.

These California companies are back on this fraud game again. They apparently think that people in Las Vegas, and in Nevada are gullible and would believe this fraud again. If Nevadans are losing their homes to foreclosures in drones, these scam artists from this “sister” state are responsible.

They never cared to verify the job, the income, the debt to income or loan ratio, or even length of job. The qualified everyone. They never even asked if some had declared bankruptcy. They did not ask any single question in good faith. Now, all these loans where they had deceived these people, they are back on this game to modify their loan.

These companies are committing a misdemeanor in Nevada by practicing law here without a license; they are illegally taking advance fee payments that “rescue” companies are not allowed to accept; they make false and exaggerated promises; and they are unlicensed and unregulated. These loan agencies are run by the same type of people, same old mortgage brokers, tired looking loan officers, and their henchmen, and some collusive brokers.

I have a strong belief that a loan mod should only be handled by a local licensed attorney who can review all of the relevant options and who can also assist with foreclosure defense and counterclaims.

Furthermore, they are doing business under the guise of providing loan audit, the so called fancy name of forensic loan audit. What exactly is a forensic loan audit? It is the finding of violations based on TILA and RESPA. Let us if they find some violations, who is going to file this law suit? Not these scam artists. They are not licensed to practice law in the great state of Nevada, and the attorneys working in California are not qualified either to file suit, unless they hire a local attorney. Folks please be prepared to face this onslaught and for your safety and the safety of your home, please ask them questions, and never let them continue your peace of mind.
Ask them few questions, and never be reluctant to ask them:

1. Be wary if they call around dinner time.
2. If you hear lots of noise in the background, it must be a boiler room with lots of caller calling all over USA.
3. If there a slight pause when you pick up the phone, and mostly the person mispronounces your name.
4. Ask them the first thing what is their phone number and the name of the caller. You would notice a reluctance in their demeanor. They would hesitate, and if they give out their name, they would only give a short version like Bill, Joe, Dina, etc.
5. They would interview you for few minutes, and would get straight to the most sensitive issues, like how much is your interest rate, how many months are you behind etc.
6. They would also show some compassion to you and use high tech words which you probably may not understand.

More tips later

How to Do Loan Modifications With Your Lenders?

How to do loan modification with some top lenders?In this article, I am suggesting ways and means to talk, handle and finally negotiate a loan modification with your lenders. These are time tested tricks, and procedure which people who does not want to hire an attorney, can use and be successful. I am not saying that you should not hire a licensed attorney, and by all means should hire a Nevada attorney but I am saying that if you are so hard pressed but otherwise feel capable of doing your own loan modification and like to sail through this troubled tsunami, then have my blessings and read the following pearls of wisdom.
First with Countrywide, there are some important steps you need to take.

Countrywide has made a settlement with State Attorney General of Nevada to do loan modifications. Countrywide, a rule of caution for everyone, is one of the most crooked bank of USA. Yes, close to the savings bank debacle of the 80’s. If one institution had single handedly destroyed the American fabric and American Home Dream, this is the one. What does Countrywide Bank need to see from you in order to approve your loan modification application? Here are some of the items you will need to prepare and submit with your application:
• Hardship Letter-a brief explanation detailing the circumstances that caused you to become delinquent, explain how you have tried to remedy the situation and tell the lender about your plan to get back on track and stay there
• Recent Income documents: pay stubs, W2, benefit statements, unemployment
• Bank statements and Tax returns for last 2 years
• Complete & accurate financial statements
How all of these documents are prepared and presented to Countrywide loss mitigation department can make the difference between getting your loan modified to an affordable payment or being denied.

A little up-front knowledge and preparation will give you the fighting chance you need to save your home with a loan workout. Once you know what Countrywide Bank is looking for in an acceptable loan modification application, you will be able to present your case in the best possible light to get an approval.

First, send them an authorization, if some third party is handling your case like an attorney. Then, wait a few days, and send them a hardship letter. Please see my blog for writing a hardship letter. Then just give them basic financial information about your mortgage, expenses, and income. A rule of caution, don’t give them all the details, so in case you need to change down the road, you can do that. Try some intelligence with them. Don’t beg them. Tell them that they had done something wrong. Not a single day passes, when Countrywide does not settle with someone the ongoing litigation.

Here are 8 Tips that will help you get your loan modification application approved:

Tip #1: You should know the lenders guidelines for approval before you even send your documentation. Wells Fargo is strict about all these guidelines, and your case would be unnecessarily delayed, if some of your documents are missing.

Tip #2: Make a financial statements which can show all your income and expenses, and that you are trying to cut down your expenses, and in fact, balancing your budget and expenses. Eliminate all the unnecessary expenses like cable tv, cell phone bill, extra car sitting in garage for long time, including of course sending in-laws back to their original home.

Tip #3: Write a convincing letter explaining your circumstances about your hardship situation. I have given some templates. Use them extensively with some revision. Sooner, I am going to write more about different economic hardship situation.

Tip #4 Substantiate your economic hardship with supporting documents. Each fact should be corroborated with documentary evidence.

Tip #5: Calculate your monthly mortgage payment yourself, and prepare yourself, if you can live with it because this is the payment you are going to pay for the next 30 years or so.

Tip #6: Take your time and complete the required loan modification application forms. Call the lenders to find out if they had received all the papers.

Tip #7: Submit a complete, accurate and acceptable application that meets the Wells Fargo loan modification program guidelines. Remember, if you are missing on any of these documentation, you are losing valuable time.
When you call the lenders on phone, make sure you plan to stay longer period of time, and also to be very polite with the representatives. Make sure you get their name, and write on your journal with time and date, and the result of the conversation.

More later.

What are the Defenses to a Wrongful Foreclosure?

There can be a whole set of defenses for a wrongful foreclosure as long as you file your case in time. And, let us assume we are following the time tested constraint that “Time is the essence” in all kinds of foreclosure litigation.

1. Truth in Lending Act (TILA) violations enabling rescission. This recisision period which is 3 days in Nevada, can be extended to 3 years in Nevada.

The bank or your lender supposed to provide the disclosure–of course all the disclosures, and if a single one is missing, then you are entitled to a rescission without a doubt.

2. Truth in Lending Act (TILA) violations enabling damages.

If you purchased the property with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money damages to offset the foreclosure.

3. Home Ownership and Equity Protection Act (HOEPA).
This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money damages that can be in excess of the loan’s dollar amount.

4. Failure to Provide a Correct Notice of the Right to Rescind.

There is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.

5. Breach of Contract. These are the same contractual remedies which are available in every business litigation.

6. Real Estate Settlement Procedures Act.

This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees.

7. Fair Debt Collection Practices Act.

This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt. A failure to follow this law enables statutory damages and attorney’s fees.

8. Fair Credit Reporting Act.

This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. Violations of this act also enables damages and attorney’s fees. Punitive damages might be available under this act.

9. Real party in interest.

This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.

10. Unconscionability.
This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.

11. Failure to state a claim upon which relief can be granted.
This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.

12. Failure to establish conditions precedent.

13. Failure to comply with FHA pre-foreclosure requirements.
FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.

And finally, if there is a surrender of deed in lieu of foreclosure, you can use it as a collusive surrender in a bankruptcy court petition of Chapter 13. A surrender should only be negotiated if you don’t like the publicity of foreclosure and also if your lenders agrees with you not to report to the credit agencies of bad rating on your credit.

Modification News

Fannie Working on Pilot Mod ProgramFederal cramdown legislation that would allow bankruptcy judges to modify mortgages has its supporters and detractors. In other modification news, bankruptcy specialists will debate modifications this spring, while Fannie Mae has reached an agreement with a consumer advocacy group to restructure unaffordable mortgages.

The program involves restructuring mortgages to achieve an affordable payment.
read full story

REOs Ease as Foreclosure Prevention Grows
Mortgage servicers are preventing an increasing number of foreclosures by modifying loans, according to a new industry report. Loan delinquency continued to increase — though repossessions eased late last year.

Isn’t Loan Modification Just Begging?
Don’t beg your predatory lender for a loan modification, you may
be entitled to a total refund. If we find fraud you could be entitled
to millions. Contact Mortgage Fraud Examiners and find out how.

Wells Launches Rescue Plan for Wachovia BorrowersWells Fargo Home Mortgage hopes to prevent nearly a half million Wachovia Corp. foreclosures. The company boasts a 70 percent success rate on its modifications.
Modification Statistics and Programs
As mortgage companies commit to an increasing number of loan modifications, more modification firms are popping up. Two groups testified before Congress last week that funds from the Troubled Asset Relief Program should be used to modify loans — with one of the groups calling for cramdowns on as many as 5 million mortgages that are not even in bankruptcy.

BoA Earnings & Originations Worse, Apps Higher
Bank of America Corp. saw quarterly originations decline but said new activity picked up at the end of the year. While earnings deteriorated last year, results might have been worse without the acquisition of Countrywide Financial Corp. The institution said it plans to modify more than a half million loans.

Countrywide Sued Over Denied Modification
Attorneys for a couple who became delinquent on their mortgage and were subsequently foreclosed on are accusing Countrywide Home Loans of claiming in public to be pursuing a diligent loan modification strategy while denying legitimate modification requests.

The Modification Report
Two firms said they are among only 80 approved by the State of California to collect advance fees for helping delinquent borrowers obtain modifications from loan servicers. Other recent modification activity includes banker opposition to cramdown legislation endorsed by one of its own, modification agents being recruited from the ranks of mortgage brokers and a report that calls for federal compensation of servicers.

Citi Supports Cramdowns
Senate Democrats have found an ally in Citigroup Inc. for their proposed legislation to allow bankruptcy judges to modify mortgages. Citi’s endorsement follows an endorsement by U.S. homebuilders — though it is in opposition to the position taken by the country’s mortgage bankers.

FDIC Sells $500 Million Portfolio
A mortgage company run by former Countrywide Financial Corp. executives has acquired more than a half billion dollars in mortgages originated by a failed bank.

The Modification President
A stimulus plan proposed to Congress by President-elect Barack Obama calls for his cabinet to use its existing authority to step up loan modifications. It also proposes that servicers not be held liable for modifications and that bankruptcy judges be empowered to modify loan balances.