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Bank of America offered us a modification!


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Its a start. Last month we were denied, now we are approved but with a big increase. I don't really want to turn down an offer, but this isn't really an offer that we can even accept. It turns out to be something like 60% of our income. The mailing they sent says "You're on your way to a more affordable payment!"

 

I asked if this is a 15 year mortgage because it adds $150K to my loan over 30 years and they said they won't know until we complete the trial period. Doubtful!

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If your congress critter is a D, I would send a copy of this letter and ask them if this was the intent Congress had when they passed the modification laws. I might also consider sending a letter to the CFPB asking the same thing.

 

I'm not ready to do that yet. I'm dealing with their law firm Winston & Strawn who is handling the counter-claims I filed. They are pretty reasonable and professional and I don't want to pour vinegar on the baking soda quite yet. But yes, if I have to I will.

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Its a start. Last month we were denied, now we are approved but with a big increase. I don't really want to turn down an offer, but this isn't really an offer that we can even accept. It turns out to be something like 60% of our income. The mailing they sent says "You're on your way to a more affordable payment!"

 

I asked if this is a 15 year mortgage because it adds $150K to my loan over 30 years and they said they won't know until we complete the trial period. Doubtful!

 

It may be okay if they change it to a 30 year then. It should drop back down to what you were paying before.

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@WhoCares1000 I contacted their attorney and declined the offer as utterly unrealistic. Someone who has a decrease in income cannot consider a payment increase on this order (or any order).

 

We went back and forth and discussed cash for keys. I told her the bank already denied us for that (for being current on our loan, lol), and now that the mortgage forgiveness debt relief act is due to expire on 1/1/14, we would be taxed for the loss on the home, which could add as much as 20-30K to our tax bill.

 

She said she get could get the bank to agree to allow us to stay in the home for 30-60 days, but again I rebuffed, saying that even if the judgment was entered today, I would have 7 months, plus whatever time it takes for me to appeal ::devillaugh::, but besides, we haven't even hammered out the affirmative defenses or counter-claims or even started discovery, and we are now going into our 18 month of litigation. I have nothing but time, but will agree to end the case the moment a package shows up on my door that doesn't insult me, my family or my honest financial situation.

 

Don't get me wrong, I like this attorney for the bank. She has tried to be helpful and is generally pleasant. She said she will go back to the bank about reviewing the modification offer, but also told me to 'make the bank an offer.'

 

Anyone have a starting number I can go to the bank with?

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I would offer them a lawsuit and see what they say........Does your mortgage have a mers identification number on it? If so your mortgage and note have been split and sold as a mortgage backed security. Its hard telling who really owns the note and some one different owns the deed. I bet the bank you are dealing with right now cant prove they own the note or the deed.

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Where is the note? Did they present the original note? did they present all assignments to the note? If not you need to demand in court they produce the note and all assignments, if they can't or the note does not have proof of assignment to them they do not own the note. Who is the holder in due course.

Is New York  a judicial foreclosure state, in other words are you in court......?

 

This case is a precedent case

U.S. Bank, N.A. v. Ibanez, 458 Mass. 637 (2011)
held that only the mortgagee can foreclose and that a note holder requires an assignment of the mortgage to do so
 

Carpenter v. Longan, 83 U.S. 271 (1872)
In many if not most American jurisdictions, the mortgage is mere security for the note and follows the note as a matter of law.

 

Questions that need to be answered.

Agency cannot be proven out of the mouth of the agent, it has to be proven out of the mouth of the principal.

How do you have agency to represent the principal?

 

You need to study up on securitization of mortgages, Buy this book, Clouded Titles by David Krieger. it goes into detail. There is too much to sit here and tell you all about it. I have six school books on mortgage securitization.......they screwed us all.

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@WhoCares1000 they want me to make them an offer to leave my house.

This seems to be heading in the wrong direction IMHO. Assuming that I did not want to leave my home and the "nice" attorney (that sounds like a new car salesman running back and forth between the prospective buyer and the "manager") and her honest, we-never-changed-the-note client are incapable of proving they are the "party entitled to enforce" the note then litigation might become interesting. Stare decisis relative to foreclosures in the applicable state can be insightful.

 

Perhaps I don't want to leave my home and I am not even willing to sell it for full market value. No offer to leave is going to be acceptable to me. I am probably facing litigation or a 2nd or 3rd job/income.

 

Perhaps I just want to walk away with some cash. I find leverage helps in negotiations. I do not view the other side as "nice" in negotiations. The other side can only be courteous, as I would always be. The leverage I would bring to the table is that I am willing to litigate the issue to keep my home and believe I can successfully do so. We have the option of a battle in court or my requested amount for cash for keys (sans any deficiency). Ms. Attorney, "I am perfectly happy with either choice your client wishes to make".

 

The leverage for others might be different. Everyone has to find their own comfort level. I have always had better results bringing powerful leverage into my negotiations. I like to give the other side two or three simple choices. I am honestly OK with whatever they choose. At least one of the choices I offer (or don't offer) is going to be within my power to execute even if the other side attempts to choose "none of the above".

 

I don't bluff and I don't bluster. It is a non-emotional business decision. 99.99999%+ of the time home loan disputes are related to a contract. A contract that I did not negotiate. A contract that I did not draft. I am unclear on the logic that claims that non-performance of a business contract is a moral issue. Was there a discount on the interest rate for moral vs. non-moral borrowers? It seems almost laughable, especially regarding a contract that provides for any and all significant remedies to be uni-laterally performed against the weaker, non-drafting party. Hmm, maybe there is a legitimate argument to be made for morality in a home loan contract. Against the unconscionable drafting of a one-sided agreement.

 

I recommend that homeowners read their mortgage/deed of trust. Not just once but until there is a bit of understanding. I am always curious to review things like whether the security accurately references the note.

 

...

You need to study up on securitization of mortgages, Buy this book, Clouded Titles by David Krieger. it goes into detail. There is too much to sit here and tell you all about it. I have six school books on mortgage securitization.......they screwed us all.

Some other "good reads": http://www.creditinfocenter.com/community/topic/321519-has-anyone-sued-their-lender-for-fraud/#entry1263380

 

Yes, they got us all.

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Am I missing something?  Why didn't you qualify for the HAMP program?

 

Two years ago this month I received a mod from BofA under the Make Your Home Affordable Program after a fifteen month battle and after I called the Hope Helpline.  Did you call the Hope Helpline?  

 

My payment was adjusted to 30% of my income.  By that time I was 120 days late. 

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At this point, that check better have a number with 4 and a high number at the beginning or 5 zeros at the end of it to even consider leaving. It is obvious that even if you left today, the bank is already in the red so deep that they will never get out and if they indeed chase you for all the costs, a BK would wipe that out. They have nothing to gain here at this point. by trying to get you out of the house.

As for the "nice" lawyer, realize at the end of the day, she is going to do what her client tells her to do. She does not have your interests in mind. In fact, she probably knows this is a black hole and is trying to end this as quickly as possible. She knows the bank cannot win here.

I would make my offer (probably at 25% rather than 30% of income though) and include a little note that if they want you out of the house, you are going to fight every step of the way. At this point, you expect that litigation will take another 18 - 24 months before the judge renders a decision. If the bank is successful, it is another 7 months until they can file for eviction for the redemption period. This also could be extended another 3 months by a BK filing. In other words, they are looking at another 2 - 3 years before they get you out of the house and that is if everything goes their way which up to now, has not happened.

Now, if the bank is unsuccessful, then they have 2 choices. They could appeal which could take another 1 - 2 years. If they are unsuccessful there, the clock for a civil case might run out by that time (remember, if litigation is not successful, the clock restarts as if the case had never been filed). They could otherwise go for a civil case as an unsecured creditor which again, could take 1 - 2 years. Even if they are successful on the civil litigation, you could file BK or just let them foreclose after all the lien filings BUT they now must give you your exemption before they get their part AND if you file BK, they must share with the other creditors. If the bank is unsuccessful there, then they really lost as now you have a house free and clear and no way for the bank to collect on the loan other than asking you nicely.

In other words, the bank is looking at a nightmare scenario no matter what if they want you out of the house. Hence, that is why I would make my offer.

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I will have to look up that book BTO. You are right about us being screwed however. In fact, I am considering doing a quite title proceeding once my mortgage is paid off to make sure the title is not clouded. B of A still has not sent me the actual note/mortgage after my last refinance and it has been about a year now.

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Am I missing something?  Why didn't you qualify for the HAMP program?

 

Two years ago this month I received a mod from BofA under the Make Your Home Affordable Program after a fifteen month battle and after I called the Hope Helpline.  Did you call the Hope Helpline?  

 

My payment was adjusted to 30% of my income.  By that time I was 120 days late. 

 

The OP probably does qualify for HAMP. However, the bank wants all its court fees for 18 months of litigation too which is why they are playing this game. That is why I am suggesting the OP contact the CFPB and Congress Critters with this latest offer and see if this is what they meant to happen when they passed HAMP.

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You need to bring up in court the chain of custody on the note and the mortgage. Look at the mortgage and see if it has a MERS number on it.....also go to your local county recorder and see if the note, mortgage, and all assignments were filed. If they did not file those at the recorder there is a break in the chain of ownership.

 

I went back to school to get more in depth on the mortgage security stuff. If is amazing how illegal all this nonsense is. I have six books if front of me right now covering this issue, plus the one I mentioned. You can find it on amazon. Its only around 26 bucks or so.

 

Your note and mortgage has a MERS number, it was already pooled into the trust before you even signed it. Here is how you tell if you have an asset backed security,if it says something like Truman loan Trust asset back pass through not 2002-2 or anything similar, your not and mortgage were bifurcated. They then sell the note and mortgage separate from each other as asset backed securities on wall street. One person(or trust) could one your note while another could own your mortgage. It is expensive around a 1000 bucks but you can have a securitization audit done on your mortgage. Some states will listen to this evidence and some will not. A lot of ties the judge is not well educated on the securitization issue and you have to educate him.

 

The MERS number will be 18 digits, and a lot of time when they present it to the court, like they did in my case, they cross it out so you cannot trace the information, is they did this you need to object to the evidence being tampered with. Mine has been going on since 2006. But they filed while i was in Iraq so there is a lot more of an issue with mine.

 

Before you even signed the note an electronic file was already setup identifying the transaction you made at closing,,,were you told this? Think TILA. The biggest thing you need to concentrate on is produce the note and prove its real owner. Just like with a jdb you need chain of title. Ask for the note and all assignments in discovery.

 

Bill Beckmann who is the CEO Of Mers in 2011 admitted in a open panel forum at the Property Records Industry Association that ALL MERS records are transparent. Bank of America attorneys admitted In the Taylor, Bean and Whitaker case that loan portfolios were pledged three even four times or more as collateral at the same time. Another thin to remember i that your mortgage has more than likely already been filed with the insurance(several insurance companies at the same time) and paid by the insurance. If you can prove this you own your home,,,its already been paid off by the insurance. They take a 300,000 dollar mortgage and turn it into around 1.2 million with the insurance companies, thats why AIG went under, they didnt tell us that when they went under but thats what caused them to go under and then our tax dollars bailed them out. AIG held the biggest bulk of insurance on the securitized loans.

 

Is MERS named as a nominee or beneficiary in your mortgage? They think that this nomination makes MERS the owner and they can assign the rights to it as needed for foreclosure actions. In the lower right hand corner of the mortgage they presented for evience was there a number about 8 to 10 digits long that they crossed out so you cant read it? Thats the MERS electronic mailing number.

 

In Landmark National Bank v Kesler the Kansas Supreme Court defined the term "nominee" for MERS mortgage as a strawman. Is IL a deed of trust state? If so did you know that MERS also wants to be the trustee also? Look at your deed, does it specifically mention MERS where it would give them the right to hold legal title. I bet you don't, So my question is how can MERS then assign you note to ANYONE, legally.

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@SkippieB we were 'permanently modified' under HAMP. Until the first statement arrived. The bank apparently couldnt stomach the terms they wrote up so they added like $45 in fees (even though the HAMP agreement said no fees) and tacked an extra $100+ onto the escrow. Add in the escrow shortage of $50, and a 'mishandled' payments, the bank issued a 'notice of intent to accelerate' 6 weeks after they signed the HAMP agreement.

 

HAMP was a total failure. It was a setup. HOPE line was useless.

 

That is why we a countersuing for among other things, breach of contract, trespassing, and fraud.

 

Now--this 'new' modification we were offered was a Freddie Mac Classic modification. I was told that we didn't even qualify for it but the bank put something together in good faith. Its like a drunk driver killing someone and paying the victims family $5.

 

With regards to BK, I have failed to mention that my cousin is an attorney. She practices exclusively in BK, so I have that end covered, and I won't be afraid to go that route.

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@SkippieB we were 'permanently modified' under HAMP. Until the first statement arrived. The bank apparently couldnt stomach the terms they wrote up so they added like $45 in fees (even though the HAMP agreement said no fees) and tacked an extra $100+ onto the escrow. Add in the escrow shortage of $50, and a 'mishandled' payments, the bank issued a 'notice of intent to accelerate' 6 weeks after they signed the HAMP agreement.

 

HAMP was a total failure. It was a setup.

Breech of contract anyone?

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@BTO429 Exactly.

 

Also, we filed a class action FDCPA suit against original counsel for BoA. They violated the FDCPA in 2 ways:

 

1. On the dunning letter they identified the servicer as bank of america. They also identified bank of america as the 'creditor to whom the debt is owed.' Our loan is owned by Freddie Mac.

 

2. We were dunned for about 10K MORE than we were sued for. (Not part of the class action claim)

 

They filed a MTD. The judge took 5 months to rule on it, but he denied their MTD on Monday. Our case can finally move forward.

 

So our little foreclosure case is going to get real expensive...for a lot of people.

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