Most people that are facing foreclosure can get easily overwhelmed and feel like nothing can be done to salvage the situation. Millions of families have been in the same boat as you over the past few years. Some people have done nothing, and lost their house. Some families have fought to the bitter end and won. You can work through foreclosure, but you are going to have to do some heavy lifting, or have a professional do the heavy lifting for you.

There are a range of options that are available today that weren’t available a few years back. Today, we will go over a few of these options, and we will dial into more in depth solutions in the following posts.

The first thing you MUST do is SOMETHING. That may sound weird to you, but there are people who go into “foreclosure” avoidance mode and wind up losing their house when other options were available to them.

Foreclosure Options:

1. Sell Your House
If you have equity, and time, the best thing to do might be to go a traditional route and hire a professional real estate agent that specializes in distressed property. There is a company that specializes in helping people Sell Their House Fast

2. Short Sale Your House
If you are upside down on your mortgage, meaning you owe more than the home is worth, one avenue to explore is having a short sale on your house. A short sale is when you get the mortgage holder to accept less than the stated mortgage. To get this facilitated, reach out to a local short sale expert. In the next few weeks, we will introduce some of the top short sale experts in the country to you.

3. Apply for a Loan Modification Program
A load modification is when the mortgage holder modifies the original terms of the mortgage note. Sometimes the mortgage holder will reduce the monthly payments temporarily to help you if this is a short term trouble spot for you. The note holder might adjust your APR (annual percentage rate), this will reduce your monthly payments.

Another type of modification is when the mortgage holder takes all of the payments that you are behind and parks it on the back of the mortgage. This is a grace period and the back payments will still have to be made. Loan Modifications can come in all shapes and sizes, and we will explore these in depth as the weeks go on.

4.Offer your Bank a Deed In Lieu of Foreclosure
What this basically means is that you give the keys and all interest in the property back to the bank. This was once a popular tactic used by the banks because most homes in foreclosure a few years back had equity built in. The banks would sell the home and keep the profit. Today, less and less banks will accept a deed in lieu.

5. PICK UP THE DANG phone and call your mortgage company. Explain your situation, and ask them what special options they have for you. Banks DO NOT want to take your home via the foreclosure process. You will find a much more responsive loan officer on the phone today than you would have 3-4 years ago.

6. You can file bankruptcy
There are different types of bankruptcy and every state has different laws on the books. We will have state and national specialists post the various pros and cons of bankruptcy.

7. Strategic Default

When all else fails, and you have tried to sell your house, work with the bank, and do everything else you can, strategic default is always an option, although it is one the we would only recommend to a slight fraction of the homeowners facing foreclosure.

Our next series of posts will be on short sales, the process of short sales, and how to find a short sale expert near you.

Latest Acquisition Extends Consumer Reach of Company’s Real Estate Vertical

MARIETTA, GA- HBN Interactive today announced the acquisition of IAmFacingForeclosure.com, a leading foreclosure help website.

IAmFacingForeclosure.com has grown by 200% during the last two months and is projected to have well over 500,000 UVs (unique visitors) in 2010. This growth is driven by the site’s collection of foreclosure help experts and foreclosure assistance companies.

“This is a hot area,” said Duane LeGate, CEO of HBN Interactive. “Foreclosures continue to plague the real estate market and there are no clear cut solutions for homeowners. Our mission at IAmFacingForeclosure.com is to is to walk the homeowner through the minefield of options and provide them with the service(s) and advice that best suits their personal situation.”

IAmFacingForeclosure.com is a perfect compliment to HBN Interactive’s portfolio of real estate related companies. Some of which include: HouseBuyerNetwork.com which focuses on short sales on behalf of the homeowner, SellMyHouseFast.com which introduces homeowners to quick sale solutions, and ~4,000 other real estate web properties with related resources. Since its establishment in 2004, HBN’s real estate vertical has expanded from a single website to include over 4,000 principal websites which consist of millions of monthly page views.

“We are very focused on helping homeowners face the challenges in today’s extreme real estate market. By leveraging HBN Interactive’s suite of services, homeowners can: sell their house in a quick and efficient manner, short sale their house with HBN’s experts, buy discounted property, and perform various other real estate related transactions.” added LeGate. “We believe the market will continue to struggle for years, and we plan to continue to bring innovative solutions to the market that will benefit homeowners that need immediate assistance.”

About HBN Interactive

Founded in 2004, HBN Interactive is a unique and leading Internet Real Estate Media Company. HBN Interactive has assisted close to one million homeowners needing specialized assistance. HBN Interactive has built a network of the best professional service providers in the real estate arena that can assist both home sellers and home buyers.

HBN Interactive Media Contact
For all media inquiries and interview requests, contact us.

Contributed by Kevin Chern, Total Attorneys, Inc.

Homeowners facing foreclosure are, understandably, looking for hope. News reports of homeowners successfully asserting the “produce the note” defense to stop foreclosure have sparked that hope in many. It seems only logical that a company commencing a foreclosure action should be required to demonstrate that it is the real party in interest before that action can move forward. But simply demanding that a mortgage servicer produce the note or establish itself as the real party in interest isn’t the magic bullet it sometimes appears in the popular press.

We know mortgage documentation is rife with errors, misrepresentations and missing links. Various studies have estimated the percentage of mortgage claims containing substantial errors between 57% and 80%. Katherine Porter’s 2007 study of mortgage proofs of claim in bankruptcy cases revealed that 52.77% of proofs of claim lacked at least one clearly-required document. What those errors mean for the homeowner depends not only on the nature of the error, but also on the state and jurisdiction in which the claims are prosecuted.

Success Stories

Attorneys in some states have had tremendous success with the defense. In September of 2008, the First District Court of Appeals in Ohio ruled on a case in which Wells Fargo Bank had commenced a foreclosure action based on a mortgage it did not own. (Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603.)

Although Wells Fargo subsequently acquired the mortgage by assignment, the trial court ruled that this later acquisition did not cure the jurisdictional defect and dismissed with prejudice. The trial court also ordered that the law firm filing the case on behalf of Wells Fargo submit proof that its client was the real party in interest in all future foreclosure actions filed by that firm.

Publicity surrounding Wells Fargo and a handful of other similar cases produced a flurry of real party in interest defenses and optimistic news coverage. A year later, the Ohio Supreme Court declined to review a similar case in Wells Fargo Bank, N.A. v. Jordan, leaving stand an Eighth District Court of Appeals ruling that “If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”

At the same time, Florida legal aid attorney April Charney and a handful of others began challenging claims supported by affidavits of lost notes. It seemed that in the frenzy to slice, dice, flip and securitize the high-risk loans of the 1990s and early 2000s, many lenders and mortgage servicers had dropped the ball when it came to keeping accurate records. In many cases, the paper trail was broken, non-existent, or simply didn’t conform to legal requirements. Some plaintiffs in mortgage foreclosure cases found their claims dismissed outright for lack of documentation, and some homeowners found themselves in a better position than they’d ever imagined: enormous mortgage debt simply disappeared as it became clear that no proof of ownership of the debt could be produced.

It was heartening to see mortgage servicers taken to task and forced to follow the rules, but even in the oft-cited Byrd case, the real victory was scaled back considerably by the appellate court. While the dismissal was affirmed, the appellate court ruled that it should have been without prejudice; the order that the law firm submit additional documentation in subsequent cases was reversed. Those cases in which demanding the note and dissecting the paper trail resulted in a windfall for the homeowner were few and far between.

The State-by-State Difference

To a layperson, common sense dictates that a plaintiff would have to own the note and mortgage in order to file a complaint based on it; the big surprise is probably not the Ohio rulings above but the fact that the question ever arose. However, that question is far from settled in many states. Consumer attorneys in some states report that their courts are simply declining to entertain defenses like the one successfully raised in Byrd. The most likely explanation for this pattern is simple economy: a case dismissed without prejudice may be re-filed as soon as the defect has been cured, so many courts are apparently reluctant to go through the motions of dismissing a claim on procedural grounds only to have it filed as a new case soon after.

But disparate treatment of this issue by the courts isn’t the only—or even the most significant—difference from state to state. More than half of U.S. states allow for some form of non-judicial foreclosure. That means that the foreclosing party doesn’t have to file a court case in order to foreclose on the property. Non-judicial foreclosure doesn’t render true ownership of the mortgage irrelevant, but it does make it more difficult for the homeowner to pursue the issue.

While the defendant in a judicial foreclosure can simply raise the issue as a defense, the homeowner in a non-judicial foreclosure will typically have to file suit himself to get the issue of mortgage ownership and documentation before the court. That means not only filing fees and service of process, but also a host of procedural hoops unfamiliar to most homeowners. Few will be able to successfully prepare and argue such a claim without an attorney. That isn’t to say that the claim won’t succeed or isn’t worth pursuing in a non-judicial foreclosure state, but the process is far more complex, time-consuming and potentially expensive than the victory stories on television and in news reports might seem to suggest.

The Real Value of Demanding the Note / Questioning the Real Party in Interest

While demanding that the claimant produce the note / arguing that the claimant isn’t the real party in interest and doesn’t have standing to pursue a foreclosure action only occasionally results in a decision that effectively forgives the mortgage debt, the challenge can be a valuable tool for homeowners facing foreclosure. If a claim is dismissed and re-filed, that may buy the homeowner valuable time in which to negotiate or assemble funds to cure the default; the added procedural complications and the possibility that the mortgage servicer or alleged note holder may not be able to establish its claim provide an incentive for the claimant to compromise. Likewise, in a non-judicial foreclosure state, initiating a suit against the claimant may only rarely put an end to a foreclosure action altogether, but may still benefit the homeowner by slowing the proceedings and creating an incentive for the mortgage holder to negotiate a workable settlement.

– Kevin Chern
Total Attorneys, Inc.
25 East Washington Street, Suite 400
Chicago, IL 60602

Several times per week, I get phone calls from attorneys. These calls all start out the same. “I am unable to get loan modifications done through a lender. What can I do?” The first question I ask is if the lender is Indymac/One West. Invariably, it is.

I also field the same type of calls from homeowners and from loan modification companies. Everyone is having the problem of Indymac not cooperating with regard to doing loan modifications. Furthermore, if I google the issue or check out loan modification forums, the same is true on the internet.

What is going on with Indymac/One West? Why aren’t they doing loan modifications? This article will try and bring together the known facts for a better understanding of the situation, and discuss what the Indymac situation means for foreclosures in general — and the government’s response to the crisis. First, to understand the situation today, one must have an understanding of the recent history of Indymac.

History

Indymac was a national bank in the U.S. It was insured by the FDIC. On July 11, 2008, Indymac failed and was taken over by the FDIC.

Indymac offered mortgage loans to homeowners. A large number of these loans were Option ARM mortgages using stated income programs. The loans were offered by Indymac retail, and also through Mortgage Bankers would fund the loans and then Indymac would buy them and reimburse the Mortgage Banker. Mortgage Brokers were also invited to the party to sell these loans.

During the height of the Housing Boom, Indymac gave these loans out like a homeowner gives out candy at Halloween. The loans were sold to homeowners by brokers who desired the large rebates that Indymac offered for the loans. The rebates were usually about three points. What is not commonly known is that when the Option ARM was sold to Wall Street, the lender would realize from four to six points, and the three point rebate to the broker was paid from these proceeds. So the lender “pocketed” three points themselves for each loan.

When the loans were sold to Wall Street, they were securitized through a Pooling and Servicing Agreement. This Agreement covered what could happen with the loans, and detailed how all parts of the loan process occurred.

Even though Indymac sold off most loans, they still held a large number of Option ARMs and other loans in their portfolio. As the Housing Crisis developed and deepened, the number of these loans going into default or being foreclosed upon increased dramatically. This reduced cash and reserves available to Indymac for operations.

In July, 2008, the FDIC came in and took over Indymac. The FDIC looked for someone to buy Indymac and after negotiations, sold Indymac to One West Bank.

OneWest Bank and its Sweetheart Deal

OneWest Bank was created on Mar 19, 2009 from the assets of Indymac Bank. It was created solely for the purpose of absorbing Indymac Bank. The principle owners of OneWest Bank include Michael Dell and George Soros. (George was a major supporter of Barack Obama and is also notorious for knocking the UK out of the Euro Exchange Rate Mechanism in 1992 by shorting the Pound).

When OneWest took over Indymac, the FDIC and OneWest executed a “Shared-Loss Agreement” covering the sale. This Agreement covered the terms of what the FDIC would reimburse OneWest for any losses from foreclosure on a property. It is at this point that the details get very confusing, so I shall try to  simplify the terms. Some of the major details are:

• OneWest would purchase all first mortgages at 70% of the current balance
• OneWest would purchase Line of Equity Loans at 58% of the current balance.
• In the event of foreclosure, the FDIC would cover from 80%-95% of losses, using the original loan amount, and not the current balance.

How does this translate to the “Real World”? Let us take a hypothetical situation. A homeowner has just lost his home in default. OneWest sells the property. Here are the details of the transaction:

• The original loan amount was $500,000. Missed payments and other foreclosure costs bring the amount up to $550,000. At 70%, OneWest bought the loan for $385,000
• The home is located in Stockton, CA, so its current value is likely about $185,000 and OneWest sells the home for that amount. Total loss for OneWest is $200,000. But this is not how FDIC determines the loss.
• ‘FDIC takes the $500,000 and subtracts the $185,000 Purchase Price. Total loss according to the FDIC is $315,000. If the FDIC is covering “ONLY” 80% of the loss, then the FDIC would reimburse OneWest to the tune of $252,000.
• Add the $252,000 to the Purchase Price of $185,000, and you have One West recovering $437,000 for an “investment” of $385,000. Therefore, OneWest makes $52,000 in additional income above the actual Purchase Price loan amount after the FDIC reimbursement.

At this point, it becomes readily apparent why OneWest Bank has no intention of conducting loan modifications. Any modification means that OneWest would lose out on all this additional profit.

Note: It is not readily apparent as to whether this agreement applies to loans that IndyMac made and Securitized but still Services today. However, I believe that the Agreement does apply to Securitized loans. In that event, OneWest would make even more money through foreclosure because OneWest would keep the “excess” and not pay it to the investor!

Pooling And Servicing Agreement

When OneWest has been asked about why loan modifications are not being done, they are responding that their Pooling and Servicing Agreements do not allow for loan modifications. Sheila Bair, head of the FDIC has also stated the same. This sounds like a plausible explanation, since few people understand the Pooling and Servicing Agreement.  But…

Parties Involved

Here is the”dirty little secret” regarding Indymac and the Pooling and Servicing Agreement. The parties involved in the Agreement are:

• The Sponsor for the Trust was…………Indymac
• The Seller for the Trust was……………Indymac
• The Depositor for the Trust was………..you guessed it………….Indymac
• The Issuing Entity for the Trust was……………….(drumroll)……………….Indymac
• The Master Servicer for the Trust was……..once again………Indymac

In other words, Indymac was the only party involved in the Pooling and Servicing Agreement other than the Ratings Agency who rated these loans as `AAA’ products.

To make matters worse, Indymac wrote the Agreement in order to protect itself from liability for these garbage loans. By creating  separate Indymac Corporations — which the Depositor, Sponsor, and other entities were — Indymac created a bankruptcy-remote vehicle that could not come back to them in terms of liability. However, they did not count on certain MBS securities and portfolio loans coming back to bite them and force them under.

Now, the questions become:

• If Indymac was responsible for Securitization at every step in the Process, and was responsible for writing the Pooling and Servicing Agreement, can they be held accountable for the loans that they are foreclosing on?
• Since Indymac was the Issuing Entity, can they actually modify loans, but refuse to do so because they can make money for OneWest Bank by refusing to do so?
• Does Indymac have to “buy back” the loan from the Indymac Trust in order to do a loan modification?

These are questions that I have no answer for. All I know is that at every step of the way, Indymac was involved in the process, and have taken steps to protect themselves from liability for loans that should never have been made.

Loan Modifications

As referred to earlier, the Agreement covers all aspects of the Securitization Process. With respect to Loan Modifications, the Agreement for Indymac INDA Mortgage Loan Trust 2007 – AR5, states on Page S-67:

Certain Modifications and Refinancings

The Servicer may modify any Mortgage Loan at the request of the related mortgagor, provided that the Servicer purchases the Mortgage Loan from the issuing entity immediately preceding the modification.

Page S-12 states the same “policy”:

The servicer is permitted to modify any mortgage loan in lieu of refinancing at the request of the related mortgagor, provided that the servicer purchases the mortgage loan from the issuing entity immediately preceding the modification. In addition, under limited circumstances, the servicer will repurchase certain mortgage loans that experience an early payment default (default in the first three months following origination). See “Servicing of the Mortgage Loans—Certain Modifications and Refinancings” and “Risk Factors—Risks Related To Newly Originated Mortgage Loans and Servicer’s Repurchase Obligation Related to Early Payment Default” in this prospectus supplement.

These sections would appear to suggest that the only way that OneWest could modify the loan would be as a result of buying the loan back from the Issuing Trust. However, there may be an out. Page S-12 also states:

Required Repurchases, Substitutions or Purchases of Mortgage Loans

The seller will make certain representations and warranties relating to the mortgage loans pursuant to the pooling and servicing agreement. If with respect to any mortgage loan any of the representations and warranties are breached in any material respect as of the date made, or an uncured material document defect exists, the seller will be obligated to repurchase or substitute for the mortgage loan as further described in this prospectus supplement under “Description of the Certificates—Representations and Warranties Relating to Mortgage Loans” and “—Delivery of Mortgage Loan Documents .”

The above section may be the key for litigating attorneys to fight Indymac. If fraud or other issues can be raised that will show a violation of the Representations and Warranties, then this could potentially force Indymac to modify the loan.

HAMP

At this point, it becomes important to note that Indymac/OneWest signed aboard with the HAMP program in August 2009. Even though they became a part of the program, they are still refusing to do most loan modifications. Instead, they persist in foreclosing on almost all properties. And even when they say that they are attempting to do loan modifications, they are fulfilling all necessary requirements so that they can foreclose the second that they “decide” the homeowner does not meet HAMP requirements, — which, since they can make more money by foreclosing on the property, meets the HAMP requirements for doing what is in the best interests of the “investor”.

Why did Indymac even sign up for HAMP, if they have no intention of executing loan modifications?  Clearly, just for appearances.

One Final Question

It now becomes incumbent upon me to ask one final question. The Shared-Loss Agreement states the following:

2.1 Shared-Loss Arrangement.

(a) Loss Mitigation and Consideration of Alternatives. For each Shared-Loss Loan in default or for which a default is reasonably foreseeable, the Purchaser shall undertake, or shall use reasonable best efforts to cause third-party servicers to undertake, reasonable and customary loss mitigation efforts in compliance with the Guidelines and Customary Servicing Procedures. The Purchaser shall document its consideration of foreclosure, loan restructuring (if available), charge-off and short-sale (if a short-sale is a viable option and is proposed to the Purchaser) alternatives and shall select the alternative that is reasonably estimated by the Purchaser to result in the least Loss. The Purchaser shall retain all analyses of the considered alternatives and servicing records and allow the Receiver to inspect them upon reasonable notice.

Such agreements are usually considered to be interpreted to the benefit of the homeowner, as with HAMP and other programs. In legalese, it is called “Intent”.

What was the “Intent” of the Shared-Loss Agreement? Was the intent to provide OneWest Bank solely with a profitable incentive to take over Indymac Bank? If so, then OneWest has been truly successful in every manner.

Or was the intent to offer to OneWest Bank a way to be compensated for losses for foreclosures, but with the primary goal to assist homeowners in trouble? If this was the intent, then OneWest has failed miserably in its actions. And if so, could OneWest be actionable by the Federal Government for fraud?

In fact the true “Intent” was to limit losses to the Treasury Department. Each and every loan modification done would save the Treasury, and the tax payer, from 80-95 cents on every dollar.

Since, technically, One West would get 5-20 cents of any savings, it should have been an incentive to use foreclosure alternatives. But the reality is  that the quick turnaround on foreclosure seems to give OneWest a better return. As a result, OneWest appears to simply ignore the intent and just foreclose (as far as I can tell).

So, OneWest’s failure to modify loans may actually amount to fraud on the Treasury and US taxpayers.

Conclusion

I have presented the story of Indymac/OneWest and what is happening today. But the story does not end with OneWest. There are over 50 different lenders and servicers who have Shared-Loss Agreements executed with the FDIC. Each Agreement offers essentially the same terms. Though other Lenders do not appear to be acting as flagrantly as OneWest, they are all still engaging in the same actions.

What is the solution for this problem?

• For homeowners individually, the most successes are being achieved by borrowers who are getting knowledgeable attorneys who will not just threaten litigation, but are also willing to act and file the necessary lawsuits. That tends to bring OneWest Bank to the table.
• For the country as a whole, and homeowners in mass, the problem must be brought to the attention of your local Congress Critters. You must hold their feet to the fire. They must know that if they do not respond to what OneWest and other lenders are doing, then they are subject to being voted out of their nice and cushy Congressional Offices.

Will this be easy? No way. After all, the lenders have the money and the ears of Congress. But if we do not draw the line here, then in 10-15 years, the Banks will devise another plan to “loot” the economy, as they do every 10-15 years.

Contributed by Rob Harrington
co-founder, LoanChex, Inc.

I basically got into the loan audit business as a means to save my properties. As a small-fish RE investor, I was able to retire in 2005, only to wake up in 2007 and find I was possibly going to lose everything. I started the same way many of you are starting–by researching the fraud in my own two WAMU loans. My Florida nightmare had begun.

A few weeks ago, after 2 and 1/2 years of pure hell, fear, misery, frustration…. (sound familiar…?) opposing counsel and whoever purported to “own my loan” failed to show up to the hearing. The hearing was to show cause as to why the Judge’s direct order to compel discovery was not followed. That is a no-no with Judges. It shows disrespect to the Judge, the court, and to justice and fairness. And my case was dismissed… for now.

As co-founder of a Mortgage Fraud Examination firm, I have talked to many of the best auditors in the country. Here is what you should consider before you spend more money towards your legal defense of your home.

1. Only get a loan audit if you are under direct supervision of a qualified foreclosure defense attorney. Your counsel will better determine the scope of work of the audit. I urge new auditors to work ONLY under Attorney supervision and NEVER directly be paid by the homeowner. The rationale behind my humble opinion is that history repeats itself. The Attorney Generals will soon be coming after the auditors as they did the loan mod types for many good reasons. Many auditors will be coming over from the loan mod business now that they are getting shut down. This industry will become “infested.”
2. Don’t buy an audit directly from an auditing firm. You may fall into the same problem that many struggling homeowners did over the last few years when hiring a loan mod company. Loan audits are very time consuming. Audits need to be exact and precise, and direct counsel to which laws are effected by breaking down the loan origination, underwriting, appraisal, closing documents, disclosures, pooling and service agreements, escrow accounts, payment histories… and the list goes on and on, ad nauseum.
3. Beware of simple TILA/RESPA software audits. They can be easily manipulated and biased if data is not entered correctly. My partner Dave is a 15-year mortgage expert who can tear a loan apart backwards and forwards. He is emphatic that you need to find fraud and serious errors to build good pleadings, effective affirmative defenses, and viable counter-suits. Additionally, focus on securitization/ownership issues and fraudulent assignments. That’s the meaty stuff! A simple TILA/RESPA is only a small fraction of the audit process, as well, the full audit cannot be performed until after full discovery. Your attorney and auditor will work better with a collaborative approach to building your proper defense. In other words, there are far better ways to ensure better results in court. A nationally prominent examiner describes a basic TILA/RESPA audit as a “band-aid on an amputation.” Spending $300 – $499 on a TILA/RESPA audit (over the internet?) will only limit the strength of your case. Your investment may be a waste of money. When it comes to YOUR case, “why bring a knife to a gun fight?”
4. Hold your attorney accountable and responsible for the audit’s content. Great attorneys win more cases than bad attorneys. Your attorney should be the key to increasing the odds of your success. Otherwise, why are you paying them to take on a losing case that they knew you would never win?
5. And your biggest question? How much? A comprehensive audit will average around $1500 to $2500. Ouch! I humanely suggest that the audit process can evolve over a long period of time and best compliments and supplements your attorneys work as your case evolves. Discovery may take a year or longer (as it did in my personal foreclosure case.) If your case gets dismissed earlier than the discovery phase, then you would never have paid the entire cost anyways with a phased-in metered approach. Your attorney should always explain the process and expense to you. More and more attorneys are starting to create creative billing systems for homeowners in today’s market. They oftentimes will take foreclosure cases with small down payments and reasonable monthly fees. If you already have been forced to stop paying your mortgage, IT MIGHT BE CHEAPER TO LITIGATE ON A MONTHLY BASIS THAN TO PAY RENT, OR A MORTGAGE PAYMENT, ON THE SAME MONTHLY BASIS. Additionally, set a flat fee for scope of work to include all work through discovery obtainment and analysis. This “caps” your high end of your legal investment so that you are not taking some crazy ride in a taxi from hell. This also helps you budget your expenses. Drastic times demand creative solutions. Demand creative payment solutions from your attorney. If they won’t, someone else will. Their ranks are growing by the day to meet the demand.

In fairness to foreclosure defense attorneys, today’s litigation defense is not as cut and dry as any of us would like to see it. Yet, case law is being made almost daily. Judges and attorneys alike are starting to see that loans made in the last ten years are a lot different than in earlier banking history. Securitization, exotic loan products, insane underwriting practices, lack of regulatory oversight, criminality, and pure greed, creates a different slant to today’s legal issues.

This is why it is crucial to hire an attorney who has been specially-trained in foreclosure defense [Editor's Note: You can find such attorneys through our site, IamFacingForeclosure.com]. This special rare breed should be an expert in contract law, real estate law, finance law and securities law, due to the overwhelmingly complex nature of this decade’s loans. Now you know WHY, in 2009, MILLIONS of (non-attorney) consumers are in foreclosure today!

By 2010, get ready for 3 more years of the exploding “Option Arms!” As lending insiders have famously stated, “Option Arms” are like neutron bombs…. kills the people but leaves the buildings standing.” Thanks guys!! See y’all in court!

So in the final analysis, hire the right attorney first–deal with the audit later!

Relax and keep the faith! I know of four foreclosure dismissals this last few weeks. The odds are tipping in your favor!

Rob Harrington
co-founder
LoanChex, Inc.
(850) 259-6422

PS – I am NOT an attorney. No information that I share should be construed as legal advice. Always consult with a qualified foreclosure defense attorney regarding your foreclosure. (I am only a ticked-off, entrepreneurial homeowner who stands for property rights, free speech, due process, justice, and fairness in the USA.)

Attention attorneys/auditor and other industry persons – please drop us a line if you think you can contribute to this blog.  Be seen!

As a homeowner begins research into the lending and foreclosure crisis, there will be many unfamiliar terms, names and companies that come to their attention. Chief among these will be MERS.

MERS is the acronym for Mortgage Electronic Registration Systems. It is a national electronic registration and tracking system that tracks the beneficial ownership interests and servicing rights in mortgage loans. The MERS website says:

“MERS is an innovative process that simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans. “

In simple language, MERS is an on-line computer software program for tracking ownership.

MERS was conceived in the early 1990’s by numerous lenders and other entities. Chief among the entities were Bank of America, Countrywide, Fannie Mae, Freddie Mac, and a host of other such entities. The stated purpose was that the creation of MERS would lead to “consumers paying less” for mortgage loans. Obviously, that did not happen.

This article will attempt to explain MERS in very general detail. It will cover a few issues related to MERS and foreclosure, in order to introduce the reader to the issues of MERS. It is not meant to be a complete discussion of MERS, nor of the legal complexities regarding the arguments for and against MERS. For a more in depth reading of MERS and findings coming out of courts, it is recommended that the reader look at Hawkins, Case No. BK-S-07-13593-LBR (Bankr. Nev. 3/31/2009) (Bankr. Nev., 2009) . It gives a good reading of the issues related to MERS, at least for that particular case. Though in Nevada, it is relevant for California.

(Please note. I am not an attorney and am not giving legal advice. I am just reporting arguments being made against MERS, and also certain case law and applicable statutes in California.

The MERS Process

Traditionally, when a loan was executed, the beneficiary of the loan on the Deed of Trust was the lender. Once the loan was funded, the Deed of Trust and the Note would be recorded with the local County Recorder’s office. The recording of the Deed and the Note created a Public Record of the transaction. All future Assignments of the Notes and Deed of Trust were expected to be recorded as ownership changes occurred. The recording of the Assignments created a “Perfected Chain of Title” of ownership of the Note and the Deed of Trust. This allowed interested or affected parties to be able to view the lien holders and if necessary, be able to contact the parties. The recording of the document also set the “priority” of the lien. The priority of the lien would be dependent upon the date that the recording took place. For example, a lien recorded on Jan 1, 2007 for $20,000 would be the first mortgage, and a lien recorded on Jan 2, 2007, for $1,500,000 would be a second mortgage, even though it was a higher amount.

Recordings of the document also determined who had the “beneficial interest” in the Note. An interested party simple looked at the Assignments, and knew who held the Note and who was the legal party of beneficial interest.

(For traditional lending prior to Securitization, the original Deed recording was usually the only recorded document in the Chain of Title. That is because banks kept the loans, and did not sell the loan, hence, only the original recording being present in the banks name.

The advent of Securitization, especially through “Private Investors” and not Fannie Mae or Freddie Mac, involved an entirely new process in mortgage lending. With Securitization, the Notes and Deeds were sold once, twice, three times or more. Using the traditional model would involve recording new Assignments of the Deed and Note as each transfer of the Note or Deed of Trust occurred. Obviously, this required time and money for each recording.

(The selling or transferring of the Note is not to be confused with the selling of Servicing Rights, which is simply the right to collect payments on the Note, and keep a small portion of the payment for Servicing Fees. Usually, when a homeowner states that their loan was sold, they are referring to Servicing Rights.)

The creation of MERS changed the process. Instead of the lender being the Beneficiary on the Deed of Trust, MERS was now named as either the “Beneficiary” or the “Nominee for the Beneficiary” on the Deed of Trust. The concept was that with MERS assuming this role, there would be no need for Assignments of the Deed of Trust, since MERS would be given the “power of sale” through the Deed of Trust.

The naming of MERS as the Beneficiary meant that certain other procedures had to change. This was a result of the Note actually being made out to the lender, and not to MERS. Before explaining this change, it would be wise to explain the Securitization process.

Securitizing a Loan

Securitizing a loan is the process of selling a loan to Wall Street and private investors. It is a method with many issues to be considered, especially tax issues, which is beyond the purview of this article. The methodology of securitizing a loan generally followed these steps:

• A Wall Street firm would approach other entities about issuing a “Series of Bonds” for sell to investors and would come to an agreement. In other words, the Wall Street firm “pre-sold” the bonds.
• The Wall Street firm would approach a lender and usually offer them a Warehouse Line of Credit. This credit would be used to fund the loans. The Warehouse Line would include the initial Pooling & Servicing Agreement Guidelines and the Mortgage Loan Purchase Agreement. These documents outlined the procedures for creation of the loans and the administering of the loans prior to, and after, the sale of the loans to Wall Street.
• The Lender, with the guidelines, essentially went out and found “buyers” for the loans, people who fit the general characteristics of the Purchase Agreement,. (Guidelines were very general and most people could qualify.” The Lender would execute the loan and fund it, collecting payments until there were enough loans funded to sell to the Wall Street firm who could then issue the bonds.
• Once the necessary loans were funded, the lender would then sell the loans to the “Sponsor”, usually the Wall Street firm. At this point, the loans are separated into “tranches” of loans, where they are then turned into bonds. Then, they went to the “Depositor”, usually either the Wall Street firm or back to the lender through as separate entity, and then they would be sold to the “Issuing Entity” which would be the created entity for the selling of the bonds. Finally, the bonds would be sold, with a Trustee appointed to ensure that the bondholders received their monthly payments.

As can be seen, each Securitized Loan has had the ownership of the loan transferred two to three times minimum, and without Assignments executed for each transfer.

(Note: This is a VERY simplified version of the process, but it gives the general idea. Depending upon the lender, it could change to some degree, especially if Fannie Mae bought the loans. The purpose of such a convoluted process was so that the entities selling the bonds could become a “bankruptcy remote” vehicle, protecting lenders and Wall Street from harm, and also creating a “Tax Favorable” investment entity known as an REIMC. An explanation of this process would be cumbersome at this time.)

New Procedures

As mentioned previously, Securitization and MERS required many changes in established practices. These practices were not and have not been codified, so they are major points of contention today. I will only cover a few important issues which are being fought out in the courts today.

One of the first issues to be addressed was how MERS might foreclose on a property. This was “solved” through an “unusual” practice.

• MERS has only 44 employees. They are all “overhead”, administrative or legal personnel. How could they handle the load of foreclosures, Assignments, etc to be expected of a company with their duties and obligations?When a lender, title company, foreclosure company or other firm signed up to become a member of MERS, one or more of their people were designated as “Corporate Officers” of MERS and given the title of either Assistant Secretary or Vice President. These personnel were not employed by MERS, nor received income from MERS. They werebeen named “Officers” solely for the purpose of signing foreclosure and other legal documents in the name of MERS. (Apparently, there are some agreements which “authorize” these people to act in an Agency manner for MERS.)

This “solved” the issue of not having enough personnel to conduct necessary actions. It would be the Servicers, Trustees and Title Companies conducting the day-to-day operations needed for MERS to function.

As well, it was thought that this would provide MERS and their “Corporate Officers” with the “legal standing” to foreclose.

However, this brought up another issue that now needed addressing:

• When a Note is transferred, it must be endorsed and signed, in the manner of a person signing his paycheck over to another party. Customary procedure was to endorse it as “Pay to the Order of” and the name of the party taking the Note and then signed by the endorsing party. With a new party holding the Note, there would now need to be an Assignment of the Debt. This could not work if MERS was to be the foreclosing party.

Once a name is placed into the endorsement of the Note, then that person has the beneficial interest in the Note. Any attempt by MERS to foreclose in the MERS name would result in a challenge to the foreclosure since the Note was owned by “ABC” and MERS was the “Beneficiary”. MERS would not have the legal standing to foreclose, since only the “person of interest” would have such authority. So, it was decided that the Note would be endorsed “in blank”, which effectively made the Note a “Bearer Bond”, and anyone holding the Note would have the “legal standing” to enforce the Note under Uniform Commercial Code. This would also suggest that Assignments would not be necessary.

MERS has recognized the Note Endorsement problem and on their website, stated that they could be the foreclosing party only if the Note was endorsed in blank. If it was endorsed to another party, then that party would be the foreclosing party.

As a result, most Notes are endorsed in blank, which purportedly allows MERS to be the foreclosing party. However, CA Civil Code 2932.5 has a completely different say in the matter. It requires that the Assignment of the Debt be executed.

• CA Civil Code 2932.5 – Assignment“Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.”

As is readily apparent, the above statute would suggest that Assignment is a requirement for enforcing foreclosure.

The question now becomes as to whether a Note Endorsed in Blank and transferred to different entities as indicated previously does allow for foreclosure. If MERS is the foreclosing authority but has no entitlement to payment of the money, how could they foreclose? This is especially true if the true beneficiary is not known. Why do I raise the question of who the true beneficiary is? Again, from the MERS website……..

• “On MERS loans, MERS will show as the beneficiary of record. Foreclosures should be commenced in the name of MERS. To effectuate this process, MERS has allowed each servicer to choose a select number of its own employees to act as officers for MERS. Through this process, appropriate documents may be executed at the servicer’s site on behalf of MERS by the same servicing employee that signs foreclosure documents for non-MERS loans.Until the time of sale, the foreclosure is handled in same manner as non-MERS foreclosures. At the time of sale, if the property reverts, the Trustee’s Deed Upon Sale will follow a different procedure. Since MERS acts as nominee for the true beneficiary, it is important that the Trustee’s Deed Upon Sale be made in the name of the true beneficiary and not MERS. Your title company or MERS officer can easily determine the true beneficiary. Title companies have indicated that they will insure subsequent title when these procedures are followed.”

There, you have it. Direct from the MERS website. They admit that they name people to sign documents in the name of MERS. Often, these are Title Company employees or others that have no knowledge of the actual loan and whether it is in default or not.

There, you have it. Direct from the MERS website. They admit that they name people to sign documents in the name of MERS. Often, these are Title Company employees or others that have no knowledge of the actual loan and whether it is in default or not.

Even worse, MERS admits that they are not the true beneficiary of the loan. In fact, it is likely that MERS has no knowledge of the true beneficiary of the loan for whom they are representing in an “Agency” relationship. They admit to this when they say “Your title company or MERS officer can easily determine the true beneficiary.

To further reinforce that MERS is not the true beneficiary of the loan, one need only look at the following Nevada Bankruptcy case, Hawkins, Case No. BK-S-07-13593-LBR (Bankr.Nev. 3/31/2009) (Bankr.Nev., 2009) – “A “beneficiary” is defined as “one designated to benefit from an appointment, disposition, or assignment . . . or to receive something as a result of a legal arrangement or instrument.” BLACK’S LAW DICTIONARY 165 (8th ed. 2004). But it is obvious from the MERS’ “Terms and Conditions” that MERS is not a beneficiary as it has no rights whatsoever to any payments, to any servicing rights, or to any of the properties secured by the loans. To reverse an old adage, if it doesn’t walk like a duck, talk like a duck, and quack like a duck, then it’s not a duck.”

If one accepts the above ruling, which MERS does not agree with, MERS would not have the ability to foreclose on a property for lack of being a true Beneficiary. This leads us back to the MERS as “Nominee for the Beneficiary” and foreclosing as Agent for the Beneficiary. There may be pitfalls with this argument.

• When the initial Deed of Trust is made out in the name of MERS as Nominee for the Beneficiary and the Note is made to AB Lender, there should be no issues with MERS acting as an Agent for AB Lender. Hawkins even recognizes this as fact.
• The issue does arise when the Note transfers possession. Though the Deed of Trust states “beneficiary and/or successors”, the question can arise as to who the successor is, and whether Agency is any longer in effect. MERS makes the argument that the successor Trustee is a MERS member and therefore Agency is still effective, and there does appear to be merit to the argument on the face of it.The original Note Holder, AB Lender, no longer holds the note, nor is entitled to payment. Therefore, that Agency relationship is terminated. However, the Note is endorsed in blank, and no Assignment has been made to any other entity, so who is the true beneficiary? And without the Assignment of the Note, is the Agency relationship intact?

Uniform Commercial Code may address this issue, however, it can be argued in the negative:

Uniform Commercial Code§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.

“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a non-holder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Are you confused yet? I am. Most attorneys are. And most courts are…….

Separation of the Note and the Deed

There is one more issue that I will now address. That is the separation of the Note and the Deed of Trust. Again, case law is confused on this.

In the case of MERS, the Note and the Deed of Trust are held by separate entities. This can pose a unique problem dependent upon the court. There are many court rulings based upon the following:

“The Deed of Trust is a mere incident of the debt it secures and an assignment of the debt carries with it the security instrument. Therefore, a Deed Of Trust is inseparable from the debt and always abides with the debt. It has no market or ascertainable value apart from the obligation it secures.

A Deed of Trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the Deed Of Trust without a transfer of the debt is without effect. “

This very “simple” statement poses major issues. To easily understand, if the Deed of Trust and the Note are not together with the same entity, then there can be no enforcement of the Note. The Deed of Trust enforces the Note. It provides the capability for the lender to foreclose on a property. If the Deed is separate from the Note, then enforcement, i.e. foreclosure cannot occur. The following ruling summarizes this nicely.

In Saxon vs Hillery, CA, Dec 2008, Contra Costa County Superior Court, an action by Saxon to foreclose on a property by lawsuit was dismissed due to lack of legal standing. This was because the Note and the Deed of Trust were “owned” by separate entities. The Court ruled that when the Note and Deed of Trust were separated, the enforceability of the Note was negated until rejoined. ( Note: LFI did the audit for this loan.)

All Saxon could do on this loan would be to rescind the foreclosure, reunite the Deed and the Note by Assignment and then foreclose again.

Other examples of this is that in the past month, LFI has done audits whereby it was determined that Notary Fraud was present with regard to the signing of the Deed of Trust. This immediately made the Deed of Trust void, and as a result, the Note was then “Unsecured Debt”, and the property was unable to be foreclosed upon. There is even question as to if the Note is void as well.

As I have attempted to show, the whole concept of MERS is fraught with controversy and questions. Certainly, at the very least, MERS actions pose legal issues that are still being addressed each and every day. As to where these actions will ultimate lead, it is anybody’s guess. With some courts, the court sides with the lender, and others side with the homeowner. However, there does appear to be a trend developing that suggests, at least in Bankruptcy Courts, MERS is losing support.

I would like to again make note of the fact that this is simply a basic primer on MERS and the issues surrounding it. To fully cover MERS, I could easily write 100 pages, quoting statutes, case law and legal theories regarding how to defend against MERS.. However, I will save that for the attorneys, and someday, when I have time to write a book on the battles occurring daily in the courts.

Update:

As I wrote this article, a case pending on appeal in Kansas was finally decided. This case, Landmark vs Kesler, Milliennia, MERS, Sovereign Bank and others was finally decided. It offered some interesting conclusions, and reinforces what I had written about in the above article.

I must stress that this case is a guide only. It was in Kansas, and draws from case law in many different states. What is important is that with any Court, case law within the jurisdiction of the Court must be considered first in arguments. If such case law for arguments does not exist, then case law from other jurisdictions can be used to support the arguments.

What this case does do is provide guidelines for arguing in other venues. I do find the case very interesting in that it does highlight the general issues that I addressed above. It supports Haskins very nicely.

It should be noted that various articles have already been written, some of which promote the idea that it will mean free homes for millions of people. This is not likely for various reasons. However, it does offer interesting possibilities regarding certain lawsuits that I am currently assisting with. Of course, LFI has anticipated this occurring and is currently assisting attorneys in refining the argument.

This case is about a foreclosure that had occurred. The lender is trying to overturn a default judgement in favor of another lender. MERS has sided with that lender. As such, the differences in this case could weigh heavy in future rulings. I will just cite relevant portions without going into great detail, which would take a day to write. My comments follow each quote from the ruling.

“While this is a matter of first impression in Kansas, other jurisdictions have issued opinions on similar and related issues, and, while we do not consider those opinions binding in the current litigation, we find them to be useful guideposts in our analysis of the issues before us.”

This supports my contention that this is only useful in other jurisdictions to argue, but jurisdictional case law takes precedence in each area. Therefore, arguments must be made that can overturn such case law.

“Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, usu. in a very limited way” and as “[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.” Black’s Law Dictionary 1076 (8th ed. 2004). This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves……..The legal status of a nominee, then, depends on the context of the relationship of the nominee to its principal. Various courts have interpreted the relationship of MERS and the lender as an agency relationship.”

This is the essence of the Agency Relationship that I presented above.

“LaSalle Bank Nat. Ass’n v. Lamy, 2006 WL 2251721, at *2 (N.Y. Sup. 2006) (unpublished opinion) (”A nominee of the owner of a note and mortgage may not effectively assign the note and mortgage to another for want of an ownership interest in said note and mortgage by the nominee.”)”

This case, if used and upheld in California, could portend great consequences for all homeowners.

The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is “[o]ne to whom property is mortgaged: the mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting “solely” as the nominee of the lender.

Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.

“The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009).

“MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.” 284 S.W.3d at 624; see also In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009) (standard mortgage note language does not expressly or implicitly authorize MERS to transfer the note); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal. 2008) (”[I]f FHM has transferred the note, MERS is no longer an authorized agent of the holder unless it has a separate agency contract with the new undisclosed principal. MERS presents no evidence as to who owns the note, or of any authorization to act on behalf of the present owner.”); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D. Cal. 2008) (unpublished opinion) (”[F]or there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. . . . MERS purportedly assigned both the deed of trust and the promissory note. . . . However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority . . . to assign the note.”).

This identifies the real issue, as I mentioned previously. The Note and the Deed were separated, so without Assignments uniting them, there can be no foreclosure.

What stake in the outcome of an independent action for foreclosure could MERS have? It did not lend the money to Kesler or to anyone else involved in this case. Neither Kesler nor anyone else involved in the case was required by statute or contract to pay money to MERS on the mortgage. See Sheridan, ___ B.R. at ___ (”MERS is not an economic ‘beneficiary’ under the Deed of Trust. It is owed and will collect no money from Debtors under the Note, nor will it realize the value of the Property through foreclosure of the Deed of Trust in the event the Note is not paid.”). If MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right. See Vargas, 396 B.R. 517 (”[w]hile the note is ‘essential,’ the mortgage is only ‘an incident’ to the note” [quoting Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 275, 21 L. Ed 313 (1872)]).

This reinforces the Hawkins argument that without a “Beneficial Interest”, there is no ability to enforce the note.

This ruling in Kansas comes down to several basic issues. These are that:

• MERS had no Beneficial Interest in the Note, therefore, they could not be a Party of Interest and had no authority in the case.
• MERS and the Agency Relationship did not exist with the Assignment of the Note without a new Agency Agreement.
• The Note and the Deed of Trust were separated, therefore, the Note could not be enforced by the Deed of Trust.
• MERS did not have a power to assign the Note.

This ruling, along with Hawkins, can offer the attorney a practical roadmap on how to attack MERS. It should not be taken for granted that this will apply in all states immediately, nor that this will be easy. Jurisdictional Case Law will certainly have to be fought out and overcome. Additionally, I do expect further appeals of this case, especially with other parties joining in to side with MERS because of the practical implications of this ruling.

Disclaimer: Pulatie and LFI are not attorneys and do not dispense legal advice. The purpose of LFI is to assist attorneys and homeowners in their fight.

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Daily, in the newspapers, radio, television and the internet, articles are written about the difficulty that borrowers face in getting loan modifications.  These reports come not just from reporters, but from loan modification companies and also attorneys who are attempting to do the loan modifications.

At the same time, the Federal Government and the Obama Administration announce new programs to assist homeowners in getting loan modifications. These programs are going to solve the problems that homeowners have, and are going to save their homes. Yet, closer inspection of the program’s details raises eyebrows about if the new program will benefit homeowners. Then within a few months of implementing the program, reports come out that the programs are not working. Homeowners are not getting the needed help. Foreclosures are increasing.

Next, states like California decide to try and pass legislation to prevent homeowners from paying money upfront to loan modification companies and attorneys for assistance in dealing with the Lenders and Servicers. Then President Obama declares that homeowners should not pay for loan modifications and that their lenders and servicers are doing the modifications for free.

Who does a homeowner believe? What is the real truth? This article will attempt to shed some light on the issues. I will focus primarily upon loans that have been securitized. These are loans that have been sold to investors, unlike portfolio loans that are kept by banks and lenders. Portfolio loans can be easier to modify, if the lender is cooperative.

What type of help can be expected from the lenders and servicers?

Typically, when a borrower falls behind on a mortgage, there are few programs available to help them get current. Refinances are generally out of the question, and bankruptcy is not a viable option for most people. What can homeowners then expect from the Servicer?

• The First Program likely to be offered is a forbearance agreement. This is an agreement that “allows” a homeowner to catch up on his late payments, without really modifying the loan. The Servicer will “offer” the homeowner a choice of usually from 4 to 12 months of higher payments, to bring the loan current. These payments are generally $1,000 or more higher than the original payments, and will often at the end of the time period end up requiring a lump sum payment to get caught up. There is no attempt by the Servicer to address the root causes of the payment issues, so the positive effects of this program are dubious to say the least.A variation of this program is to have the borrower bring in a lump sum payment at the beginning of the forbearance plan, a “Good Faith Payment”. After 4 months of making regular payments, the Agreement is made to sound like if you complete 4 months of payments on time, you will have the loan modified to something that you can afford. If you can’t make the payments, then you must come in with the rest of the lump sum that is due. Almost always, you are denied for the loan modification. The reason for the denial is that you did not meet the guidelines. In reality, you have proven that you can make your regular payment, so why give you a loan modification?This offer has been quite typical of what America’s Servicing Company does.
• The Second Program you are likely to see is an actual Loan Modification. In this program, an actual Loan Modification will be offered to the homeowner. The offer, if sincere, will usually entail an interest rate reduction down to anywhere from 2-5%. It is good for a limited period of time, before the rate increases again. I have seen these programs last from 6 months, up to 5 years. Occasionally, I will see one for thirty years, but that offer will have interest rates that are 5-6% usually.What is bad about these offers is that at the end of 5 years, you are back where you started. Either you can make the monthly payment due then, or you have to seek another loan modification, or you prepare to sell or lose your home. Most lenders will make this type of offer.
• The newest offer being made by the Fannie Mae and Freddie Mac backed loans is similar to the second program. A trial period of 4 months is offered to see if you can make the new payment. At the end of the trial period, if you have made all payment in a timely manner, then the Servicer is supposed to offer you a loan modification. This program is too new to get any reliable reading on it yet. Within the next month or two, we will begin to see if the lenders will offer permanent changes.
• There is another program for loan modifications that homeowners are hoping to get. That involves a reduction in principal on the loan amount. These offers are very rare, as I will explain later.It must be noted that the Fannie Mae and Freddie Mac programs do offer loan reductions, as well as World Savings loans on occasion. Do not be fooled by these offers. They require that if you sell the home, or when you come to the end of the loan and you think that you have paid off the mortgage, you will pay back the principal reduction that was given to you at first. So it really is no reduction at all. It simply forces you to stay in your home for many, many years, with no hope of selling or moving up until your home has appreciated in value again.

I must warn homeowners that any company who says that they are doing loan modifications and getting principal reductions of any significant amount, i.e. 25% or more, and then represent that they are getting these results continuously is likely a scam. I know of no companies regularly getting such reductions. When a company claims to do so, I ask for proof, and never hear from them again.

Why Aren’t Servicers helping homeowners?

This is the question that people are asking. Occasionally, you will hear a partial answer to the question, usually like a recent New York Times article whereby the author stated that by starting foreclosure and delaying the process, the Servicer earns more fees through late payments, attorney fees and other junk fees. This is a short-sighted answer from someone who really does not understand the process. The actual reason is much more complicated.

When loans were executed, they were usually sold to investors in the process known as Securitization.  To simplify the explanation, loans were “bundled together” by the lender and placed into trusts for IRS tax purposes and then for sale to investors. The “Issuing Entity” of the Securities “sliced and diced” the loans into “tranches”. Theses tranches were sold to securities dealers who could then sell the tranches to investors, or if they desired, they could again slice and dice the tranches again into smaller pieces and have these sold to investors.

To ensure that all parties were paid monthly, a trustee was named to oversee the payments and the correct functions of all the parts and parties to the transactions.  The trustees often included US Bank, Citibank, Chase, Deutsche Bank, Lasalle Bank, Lehman, and others.

All factors related to the Securitization Process is governed by the “Pooling and Servicing Agreement” for each trust.  The Agreement covers all aspects of the transaction from the origination of the loan, to the final disbursements.  This Agreement is where the problem in negotiating loan modifications and principal reductions occur.

The Agreements all have similar language regarding loan modifications.  Paraphrased, the Agreements authorize the Master Servicer to do loan modifications when the default of a particular loan is inevitable or likely.  It is this phrase that “prevents” servicers from modifying a loan that the borrower is up to date on payments. Here is the wording of a New Century Agreement regarding defaults:

“The servicer will be required to act with respect to mortgage loans serviced by it that are in default, or as to which default is reasonably foreseeable, in accordance with procedures set forth in the servicing agreement. These procedures may, among other things, result in (i) foreclosing on the mortgage loan, (ii) accepting the deed to the related mortgaged property in lieu of foreclosure, (iii) granting the mortgagor under the mortgage loan a modification or forbearance, which may consist of waiving, modifying or varying any term of such mortgage loan.”

(including modifications that would change the mortgage interest rate, forgive the payment of principal or interest, or extend the final maturity date of such mortgage loan) or (iv) accepting payment from the borrower of an amount less than the principal balance of the mortgage loan in final satisfaction of the mortgage loan. These procedures are intended to maximize recoveries on a net present value basis on these mortgage loans.

Notice the portion that is underlined. The Servicer must act with regard to what actions will maximize the money returned to the investor and will minimize their losses.

Furthermore, the Servicers of these loans have no vested interest in doing loan modifications.  They are simply acting as “collection agencies” most of the time.  In fact, not foreclosing is in the worst interest of the Servicer. There is another section of the Agreement that must be considered:

“The servicer is required to make P&I Advances on the related Servicer Remittance Date with respect to each mortgage loan it services, subject to the servicer’s determination in its good faith business judgment that such advance would be recoverable. Such P&I Advances by the servicer are reimbursable subject to certain conditions and restrictions, and are intended to provide both sufficient funds for the payment of principal and interest to the holders of the certificates. Notwithstanding the servicer’s determination in its good faith business judgment that a P&I Advance was recoverable when made, if a P&I Advance becomes a nonrecoverable advance, the servicer will be entitled to reimbursement for that advance from any amounts in the custodial account. The Trustee, acting as successor servicer, will advance its own funds to make P&I Advances if the servicer fails to do so, subject to its own recoverability determination and as required under the trust agreement. The servicer (and the Trustee as successor servicer and any other successor servicer, if applicable) will not be obligated to make any advances of principal on any REO property. “

This is the second part of the problem. Simply stated, for each payment missed by a homeowner, the Servicer, from its own money, must “Advance” funds from its own money, to ensure that the payment stream to the Trust and Investors are kept up. They must keep advancing this money until they foreclose on the property and take back the home. At that point, they no longer need to keep the Advance on that property going, but they will still not be able to recover their own money until the property is actually sold.

To be totally blunt, it is in the best interest of the Servicer to foreclose on the property as fast as possible to stop having to make advances out of their own money. This was the true purpose of TARP, to give the servicers money so that they would have money to continue to advance funds to the Trusts, without having to trigger a gigantic foreclosure wave (this also explains why so many people are getting to live in their homes even when they are not making payments – Uncle Sam is substituting the payments for them).

At this point, another factor comes into play, “Net Present Value”.

Net Present Value

Net Present Value is a mathematical equation. Its purpose is to determine what will earn an Investor the best return for different potential investments. The equation takes the payments to be made over a period of time for different investments in different time frames and calculates what the return would be in today’s dollars. It is a methodology that compares “apples to apples” instead of “apples and oranges”. An attempt to fully explain the equation and the process of determining Net Present Value is not in the purview of this article.

When a request for a loan modification is made, the Servicer must determine what will be of most benefit to the Investor. Which of these three options will return the most income to the Investor?

• Make no modification of the loan and balance the likelihood of the homeowner being able to repay the loan against the risk and percentage of default and the potential payments in Present Dollars.
• Modify the loan and determine the payments to be made in Present Dollars.
• Foreclose on the property and after all costs and losses, determine the Present Dollars left to the Investor.

In addition to the Net Present Value Test, the Servicer will also factor into the decision as to what will get them back their “Advances” to the Trustee.

• If they don’t modify the loan and foreclose immediately, then they must continue paying the Advances.
• If they modify the loan and do not get an upfront payment of past due amounts from the homeowner, then they must wait to get back Advances as the borrower makes the “larger” payment than what was before.
• If they modify the loan at a lower payment than what is contractually required, then the Servicer must make up the difference in Advance payments, unless the Investor has agreed to the modification (this virtually never happens).
• If the Servicer forecloses, then they stop making the Advance payments and when the property is sold, they keep their Advances out of the proceeds.

As can be seen, it is certainly in the best interest of the Servicer to foreclose on the property.

Determining Net Present Value

The process for determining the Net Present Value of either not modifying the loan or else foreclosing on the property is relatively straight-forward. The calculations are not that difficult. However, when considering the Net Present Value of the Loan Modification, that is where the issues arise.

To determine the Net Present Value of the Loan Modification, the Servicer must determine exactly how much the homeowner can afford to pay. Pay too much, and the homeowner will still likely default. Pay too little, and the Investor is losing money. So the Servicer must do a Debt Ratio Analysis like when the loan was approved, except that instead of it being Stated Income and having either a 45% or 50% total Debt Ratio, the income must be totally documented and the Housing Debt Ratio must usually be 31% for Fannie Mae, and can be up to 38% for private investors. In essence, the Servicer is now going to try and correct the mistake of not properly qualifying a person when he got the loan, and with default in evidence, the Servicer will do things “right”.

To submit for a loan modification, the Servicer will require that the homeowner provide verification of all income and all debts and expenses. The income must be realistic and meet underwriting standards, no non-verifiable income allowed. The expenses must be realistic as well. If the homeowner claims that food costs are $800 per month for a family of three, then receipts had better be provided showing it is realistic and steak and lobster is not being eaten twice a week. Clothing expenses and entertainment expenses will not be accepted.

At the point that all documentation has been provided, the Servicer will then determine what modifications are necessary to get the homeowner down to a 31% Debt Ratio. (Most are going to use 31%, because it makes qualifying for a loan modification much more difficult.) The Servicer will start reducing the Interest Rate incrementally until such time as the 31% is achieved. If the lowest level of Interest Rate is reached and the 31% Debt Ratio is still not present, then the Servicer will play with reducing the principal, if it is allowed. (The minimum basis Interest Rate is 2% above the 10 Year Monthly Treasury Average, the MTA Index.)

If principal reduction is not allowed, and the homeowner cannot reach the 31% Debt Ratio at the minimum Interest Rate, then the modification will not be approved. If principal reduction is allowed, it is likely that the reduction amount will be “forgiven” only until such time as the borrower can repay the loan at which time he must pay the “forgiven” amount, or when he sells the home and then must pay the amount.

Let us assume that the borrower has been able to reach the 31% Debt Ratio Guidelines. At this point, the lender will now do the Net Present Value Test for the modification. The Servicer will factor into the Test the likelihood of the borrower defaulting even after the modification, and other various events. (This gives the Servicer the ability to manipulate the data.) The results are compared to not doing a loan modification and for foreclosing. What works out best for the Investor is what the Servicer will chose, while also considering how quickly they can get their own money back.

I previously mentioned that the Net Present Value calculation for foreclosure was relatively easy. I still hold to that statement. However, there are issues with the calculation.

For one, the Servicer is the party that determines all the factors and the values used in determining the Net Present Value. And, it is the values that are assigned to particular factors that will determine the outcome. Some factors to consider:

1. The easiest factor to manipulate will be the current value of the property. The Servicer will provide a value to the property that may or may not be realistic. This value would set the baseline for the Test.
2. How long it takes the property to sell and at what price it would sell then.
3. Condition of the property and how much it would cost to bring the property back up to resale shape.
4. Cost of foreclosing.
5. How much in Advanced Payments had been made to the Investor.
6. Sales commission.
7. Legal Costs.

Depending upon the values assigned to these and other factors by the Servicer, the decision to foreclose or not to foreclose could be easily manipulated.

It must also be remembered that the Servicer is likely to believe that this crisis will continue for many years. Foreclosures are going to continue. Unemployment is going to increase as the economy turns worse. Home values are going to continue to drop. And, as homeowners become further underwater in home values, the decision to simply walk away will become much easier. Under these circumstances, for the Investor, it would make sense for the Servicer to foreclose on every property that they could, when they could, and to salvage as much of the remaining value of the investment as possible, instead of waiting for the “inevitable” loss. One could easily compare it to the Stock Market, where you sell early, take what you can when you can, and limit your losses.

What You Can Do About It

Now that I have presented such a gloomy picture of what to expect with foreclosure, what can be done about it with the homeowner who is in trouble and looking to save his home? After all, the Servicer is not on his side, and can work the numbers so that the Net Present Value Test will indicate that foreclosure is the best option. So what is the homeowner to do?

Having seen the games that the Servicer plays time and again, trying to discourage the homeowner to such a point that he gives up and walks away, the answer is at least simple to say:

Fight Back!!!!

Don’t let the Servicers beat you into submission. They created this mess with inappropriate lending. Chances are that you should probably have been declined for the loan, but since the lender did provide you the loan, then they have to answer for it. (This may be hard for many to accept that you really did not qualify for the loan, but it is likely the truth.)

In my opinion, based upon what I have seen the past two years, the best way to fight back will be to obtain an attorney, have a true forensic audit done on your loan, and then prepare to do battle because you are going to war against the lender.

If the lenders want your home, make them pay for it. Make them realize that you will take them to court and fight them every step of the way. If you lose a round, you come back even stronger on your appeal and fight harder.

But beware. Don’t set it up in your mind that you are going to go to court and have the jury award you the home free and clean, and putative damages. It will not usually happen, and mostly because the lender has more resources and money than you have, and they can afford to drag the proceedings out until you run out of money.

Instead, your goal is to get the lender “to the table” whereby reasonable and frank discussions can occur that will lead to resolving the situation. Often, this can occur with as little action as the filing of a Restraining Order temporarily stopping the auction of your home. Sometimes, it might take sterner terms. But the goal is to use the “minimum amount of legal force necessary” to bring the lender to the table.

By following this type of action, you may be able to save your home and have an excellent modification or reduction. Does it always work? No. There are no guarantees. But, it is better than simply walking away, letting the lender have your home, and then regretting the decision for the rest of your life.

The problem is that most people, including loan modification companies and attorneys do not understand what they are fighting against.  Nor are they helped to understand the fight because of incompetent “audit” companies who do not understand this either.  LFI will attempt to shed light on this subject as we continue our series of articles.

Disclaimer:  Pulatie and LFI are not attorneys and do not dispense legal advice. The purpose of LFI is to assist attorneys and homeowners in their fight.

Attention potential contributors!  Do drop us a line if you think you have something insightful to say.

When facing foreclosure, the homeowner is always confronted with the difficult task of researching information to acquaint him or her with what to expect in the coming months. This research will include a number of different subjects covering such issues as the foreclosure process, loan modification, legal statutes, and current trends. Somewhere in the process of researching this information, the homeowner will come across the subject of forensic loan audits and TILA and RESPA. The question then becomes, “What is TILA and RESPA and how can it help me?”

TILA and RESPA are the two main pieces of Federal Legislation that govern certain processes regarding lending, and especially so in the mortgage lending arena. TILA stands for the Truth In Lending Act, and RESPA stands for the Real Estate Settlement Procedures Act. These are specific legislative acts designed to protect the borrower.

TILA is the main effort of Congress to ensure fair lending and to protect the borrower. Its purpose is to promote the informed use of consumer credit, the costs of borrowing money, the terms of the loan and other much needed information. It requires the providing of certain disclosures of relevant information for each transaction that is considered, and it provides the legal remedies for each violation of the Act.

RESPA is the “other” main effort of Congress to regulate lending. RESPA is designed to protect the borrower by ensuring (1) fair settlement proceedings through early disclosure of settlement costs, (2) the prevention of “kickbacks” and “illegal referral fees” that increase borrowing costs to the consumer, and (3) the prohibition of certain acts that increase borrowing costs.

There is much more detail to these acts, but the purpose of this article is to provide a basic understanding of the Acts and how courts and lenders are responding to various challenges. It will focus primarily on TILA, so that the reader will better understand the legal options of any TILA violation. (Most foreclosure defenses will be based upon TILA violations.)

Under TILA, when a mortgage transaction is considered, the lender must provide a borrower within three days of receiving a loan application a number of disclosures, of which the main disclosure is the Truth In Lending Disclosure. This disclosure identifies the terms of the loan, APR, Amount Financed, Finance Charge, Total Payments, and the Payment Schedule. These disclosures are to be as accurate as possible. The purpose of providing the disclosures is so that the borrower will be better able to compare loans from different lenders.

When the loan is ready to close, and you have the “final signing”, the lender is required to provide the borrower with a Final Truth In Lending Disclosure. This disclosure, along with the final settlement statement and the Right to Cancel Notice, are the key elements in foreclose defense, when arguing a TILA violation

TILA is a technical statute. This simply means that any “material violation” can invoke the remedies as provide for in the Act. The “material” violations that most frequently invoke potential remedies are:

• APR
• Finance Charge
• Amount Financed
• Total Payments
• Payment Schedule
• Right to cancel violations.

Common Remedies for violations of TILA are

• Attorneys’ fees and court costs for successful enforcement and rescission actions.
• Statutory damages, a minimum of $200 but no more that $2,000
• Actual damages
• Double the correctly calculated finance charge (but not less than $100 or more than $1,000 for individual actions).
• Rescission

For the homeowner in foreclosure trouble, the most important of the offered remedies is Rescission, and this article will pay particular attention to it. The other remedies do not offer any ability to stop a foreclosure as Rescission can, but Rescission is entirely misunderstood and is often used in the wrong situation.

Rescission is the process of legally canceling a loan. If a violation of material disclosures is severe enough, and the threshold for severity is quite low, then the borrower has the opportunity to “rescind” or “cancel” the loan. At that point, the confusion comes in.

In theory, this is the process of rescission:

1. Borrower finds violations of the TILA that offer rescission as a remedy.
2. Borrower notifies lender of rescission by letter.
3. The security interest (the Note and Deed of Trust) automatically becomes void and the lender has 20 days within which to take any and all actions necessary to reflect the termination of the security interest. The lender is obligated to return any money or property given as earnest money or down payment within those twenty days. The borrower is not liable for any finance or other charges and is entitled to recover all fees incurred in the transaction.
4. The borrower is obligated to return to the lender any money or property the borrower received as part of the credit transaction within twenty days, as their part of the rescission.
5. If the lender does not take possession of the property or money within 20 days, then the property is retained by the borrower and is held

Wow! You may get your home free and clear… at least that is what many scandalous loan modification companies and auditor firms say.

But here is the reality of rescission:

• In California, since homes are underwater and the borrowers owe more than the home is worth, they cannot tender back to the lender the money that was borrowed, so rescission is not an effective course of action in California, and for that matter, most other states as well.
• Courts have the ability to “change the order” in which rescission is tendered, meaning that the borrower must show the ability to make a valid tender, before the security interest in the loan is cancelled.
• No ability to tender the amount due means that there is no valid rescission.

In other words, rescission does not do what the homeowner probably wants the most – to remove any financial obligation connected to the house (as before they purchased it) – since the lender is only obligated to take back the original money lent, minus fees, and tear up the contract.

What to Expect when you rescind a loan

When you go to rescind a loan, you need to be aware of what will actually happen. What I write is based upon the experience of having done over 1000 audits, and working with attorneys who do attempt loan rescissions. (In this period of time, I have seen one offer of rescission, and a number of “talks” with lenders about rescission, always after a Restraining Order is granted to a homeowner trying to stop an auction. These “talks” have usually gone nowhere.)

When you and your attorney rescind a loan, here is the actual process:

1. Your attorney will usually send a “Demand Letter” to the lender. The purpose of the letter is to notify the lender that violations of the TILA have been found in your loan and you are invoking rescission rights as remedy.
2. The lender will respond in one of two ways: (a) ignore the letter altogether, or (b), send a reply where they deny that there are any violations of TILA and that they refuse to honor rescission.
3. At this point, the homeowner has only one real option left. That will be to file for a Temporary Restraining Order to stop the sale of the property, and to request a Preliminary Injunction to be granted stopping the sale on a more permanent basis, until the lawsuit that has been filed at the same time can be heard.
4. When the lawsuit is filed, and prior to the Preliminary Junction Hearing, if there is one Federal Charge alleged in the complaint, the lender will usually have the lawsuit remanded to Federal Court and away from State Court. The purpose will be to request a dismissal of all charges. They have a simple reason for doing this. The lenders know that Federal Court judges tend to be more receptive to the lender’s side and often will dismiss the case. This appears to happen more often than not. As a result, it is beneficial for lenders to have the case remanded to Federal Court.
5. If the lawsuit is not dismissed, then the Preliminary Injunction Hearing will be held. This is actually a “mini-hearing” of the case before a judge. Based upon what is presented as evidence, the judge will determine the likelihood of the homeowner prevailing at trial, and if he finds that there is a likelihood of the borrower winning the case, he grants the injunction. Once the Injunction is granted, the lender will usually begin to talk seriously with the homeowner and attorney about resolving the issue.
6. If talks do not work out, then the homeowner is going to trial. This is a process that will take months to years to reach a conclusion and will become very expensive, especially to the homeowner. (I currently have one client that has been in settlement hearings over a year, and her lawsuit began in Dec 07.)

The homeowner must understand that the lender has a very specific goal in mind during this phase of the lawsuit. The lender wants to stall the entire process, causing extensive costs to the homeowner. It is hoped that the homeowner will simply run out of money or give up and let the home be foreclosed upon, which happens quite often.

It should also be noted that Truth In Lending and RESPA lawsuits have been regularly filed since the mid 1990’s. Case Law is extensive and often contradictory. The lenders know the cases and the rulings and taper their arguments to fit those rulings. Most of the attorneys who are taking on cases do not know these cases, so many of the arguments that they make, the lenders already have the counter arguments ready.

The way to take on the lenders is to use different plans of attack, using statutes other than TILA and RESPA. The problem is that often a lender will attempt to raise the defense of Federal Preemption, whereby Federal Law takes precedent over state law.

Federal Preemption can be fought. In most states, the statutes exist to counter Federal Preemption claims. These statutes are versions of the Federal Trade Commission Act, Section 5, which identifies Unfair and Deceptive Acts and Practices (UDAP). Lenders will claim that that these are not applicable, however, the Office of the Comptroller of the Currency, the Office of Thrift Supervision and the FDIC have all at one time or another, in guidance letters, have asserted that even National Banks could be subject to such state statutes. Case law does indeed support such actions in many instances.

Conclusion

I hope that this article has provided much needed information regarding TILA/RESPA and what can be expected when one uses them to attempt rescission and then the likelihood of court action after rescission is denied and has cleared up misconceptions about the rescission process. My next article will provide information into the audit process and what a “true” audit is designed to accomplish.

Disclaimer:  Pulatie and LFI are not attorneys and do not dispense legal advice. The purpose of LFI is to assist attorneys and homeowners in their fight.

The Bush Administration proposed a new foreclosure relief plan today in response to the mortgage crisis. The plan encourages lenders to write down loans and shift risk to the government-backed FHA program.

Hoping to assist more than 100,000 homeowners, the administration announced their intention to expand the FHASecure program. The expansion will allow the FHA to insure new mortgages for struggling borrowers, including those with ARMs and those who owe more than their homes are worth.

Not everyone will qualify though. High risk borrowers and borrowers who missed more than just a couple of mortgage payments will be turned away. Approval will also depend on a lender’s willingness to write down the mortgage principal owed. The maximum amount that could be borrowed under the expanded program would be either 90 or 97 percent of the home’s value, depending on the borrower’s risk profile.

Democrats are expected to oppose the effort. They are in the midst of writing more aggressive legislation to deal with the foreclosure problem. Although their legislation also calls for expansion of the FHA program, there are a lot of other provisions in the bill.

The FHA’s Financial Woes

Although both Democrats and Republicans are looking to the FHA to rescue homeowners in trouble, there is some question as to whether or not the agency is equipped to deal with the foreclosure crisis.

By its own estimates, the FHA will be operating in the red this year. Congressional officials are projecting a $1.4 billion shortfall in fiscal 2009 for the agency. If this happens, American taxpayers will be forced to subsidize the FHA for the first time in its 74-year history.

Some housing officials are now blaming the bad ink on an FHA program that allows seller-financed down payment loans. Under the program, sellers arrange to cover buyers’ down payments. The seller concessions are generally added to the total cost of the loan.

Only 2 percent of FHA insured loans were seller-financed down payment loans in 2000, but they grew in popularity during the boom and the FHA did nothing to keep the program in check. By 2007, seller-financed down payment loans accounted for a whopping 35 percent of all FHA loans.

The problem with this is that the foreclosure rate on seller-financed down payment loans is two to three times that of other loans, putting the FHA’s portfolio in a very precarious position.

Already, the FHA backs 3.8 million loans worth approximately $365 billion. If Congress and the Bush Administration have their way, the agency will be greatly expanded. Since the FHA has a government insurance fund of only $20 billion, and statistics show that 25 percent of FHA insured borrowers go into default again after a workout, there is almost no doubt the agency will have problems handling all the loans that do end up in foreclosure.

Project Lifeline is the new relief plan that grants a 30-day grace period to homeowners facing foreclosure proceedings. Critics say the plan is for banks, not homeowners.

In mid February, six major lenders (Bank of America, Citigroup, Countrywide Financial, JPMorgan Chase, Washington Mutual and Wells Fargo) voluntarily agreed to an initiative known as Project Lifeline.

Less than a week after the announcement was made, the rest of the lenders in the Hope Now Alliance jumped on the bandwagon. Members of the Alliance include nearly 90 percent of the subprime servicing market and nearly 70 percent of the entire mortgage servicing market.

Although Project Lifeline has been adopted by most U.S. servicers, it will not be extended to all borrowers. The lifeline is aimed at severely distressed borrowers only. Homeowners who are less than 90 days past due will not even be considered.

Furthermore, Project Lifeline is more of a statement of intent than an actual program. All it really does is freeze foreclosure proceedings for 30 days to buy homeowners a little more time to work out their mortgage problems. It is not a workout plan, but a delay that allows borrowers more time to sell, refinance or engage in some type of loan modification program.

It is also worth noting the 30 day freeze is not automatic. All lenders are agreeing to do is initiate contact with borrowers. Homeowners who respond may or may not be considered for the 30-day reprieve. It’s up to the lender to decide who gets it and who doesn’t.

Too Little, Too Late?

Not surprisingly, Project Lifeline has been heavily criticized for being a stall tactic for banks versus an actual lifeline for people who are drowning in mortgage debt.

Some of the banks who have voluntarily agreed to this are so capital impaired that they can’t afford to eat the loans and just let borrowers walk away from an appreciating asset. In other words, it is the banks that desperately need a lifeline.

There is also some question as to whether or not the Project Lifeline gesture is just for show. Although lenders have been foreclosing, most have been willing to sit on a bad loan a lot longer than they normally would.

Terry Francisco, a spokesperson for Bank of America, has admitted that Project Lifeline would have little impact on what the bank was already doing to help borrowers.  Francisco said the real goal of the initiative is to make the borrower process “easy to understand.”