Bagels at a Bar mitzvah Part II

isisis

isisis

LoanSafe Member
No amount of punishment via litigation damages, protests or Frank Dodd style legislation/complication is going to change anything unless we adjust the mechanics of the situation which is hopelessly skewed towards abuse and corruption. The reason the mortgages system is harmful to individuals and society is that it's a mutation of contract law. The theory behind contract law and the reason it's so powerful is it allows society to function efficiently to everyone's benefit. It fosters cooperation by enforcing promises and prevents problems by providing safeguards and boundaries. It's like a carrot and a stick, if both parties keep their promises each will receive the agreed on benefit, if either party screws up they lose out and the aggrieved party can find relief from the court. This engenders trust - usually - and cooperation and society benefits because waste - which is a byproduct of conflict - is avoided. An elegant system.

The mortgage loan misappropriates the power of the contract making it one sided and imbalanced. It makes taking out a loan a high stakes gamble with a good chance you'll lose your shirt. The consequences of breach by the borrower are draconian and non existent to the lender. No, worse. Breaching the loan contract can be extremely beneficial, irresistibly so.
Instead of being rewarded by performance the lender in some cases enjoys a greater benefit by breaching. Because their investment is secured by an asset accruing in value and because amortization works in their favor we are oftentimes at the mercy of their capacity to exercise restraint in the face of a windfall.

Is it realistic for society to expect financial institutions to put ethical concerns ahead of profits? If you place a fox in a hen house they aren't going to become vegan. And yet these entities are placed in a position with the power to affect the material interests of borrowers. And no matter what they suffer no consequences. That's what blows me away.

This situation won't change unless there is some balance. As long as the mechanism for exploitation is there that borrower can get screwed.

The way all of this could be corrected is if mutuality was applied to the loan contract. Homeowners should cancel the mortgage contract when the lender defaults on its legal obligations under the loan contract.

Easier said than done as the legal system is curiously unaware of the mutual nature of contract law. Go figure.
 
isisis

isisis

LoanSafe Member
The doctrine of mutuality at its most basic is the requirement that all rules must apply to all parties to a contract for the contract to be enforceable. It does make its way into case law regarding arbitration clauses in adhesion contracts and courts grant that there must be a "modicum of mutuality" in order to be enforceable as a bilateral contract, i.e., the weaker adhering party (that's us) is entitled to some fairness. Personally I'd think a modicum is a bit on the scant side but at least they go that far.

But for the lack of that modicum the issue of unconscionability is raised and this allows the court to not enforce a unconscionable clause such as arbitration if it gives the stronger party a unfair advantage.

Mutuality should certainly apply to provisions in the loan contract that allow the stronger party to foreclosure for a few reasons. First the terms of breach aren't necessarily material. Under general determinations a breach goes to the heart of the contract and defeats its purpose. A could late payments does accomplish anything of the sort. Under the (admittedly ambiguous) standards of the Restatement § 241 they don't even come close. Among other things the defaulting party will suffer forfeiture despite conforming to the standards of good faith and fair dealing, despite there being a possibility of cure which the stronger party made more difficult by the absolute requirement to tender charges, fees and legal expenses.

Second, it's unconscionable because there is no corresponding right given to the borrower. While that right may exist nonetheless that's not a matter of general public knowledge. If the borrower isn't afforded the right to terminate the contract for uncured material breach it's not technically an enforceable contract.
 
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cookiemom

LoanSafe Member
So...still fighting over here...but no longer letting it consume me and fall into the research rabbit hole.

Question though. Will getting married mess this up more? We are supposed to get married next month. I'm not gonna stop it...we've been together 13 years...I've waited long enough. I just want to be prepared. It's not like I'm submitting a hardship so I don't see how it will affect this...but just wanted to check.
 
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Survivor_IN

LoanSafe Member
cookiemom said:
Will getting married mess this up more?
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I've learned not to put off life trying to cure the past.
Congrats!:)

Not sure what it does to the situation. Let the chips fall but don't give em any reason to amend and incorporate new disclosures. This is personal affair. (It may come into play at a later date with regard to community property and state law but you aren't in foreclosure and aren't going through divorce! It's no reason to NOT get married.)
 
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cookiemom

LoanSafe Member
Survivor_IN said:
I've learned not to put off life trying to cure the past.
Congrats!:)

Not sure what it does to the situation. Let the chips fall but don't give em any reason to amend and incorporate new disclosures. This is personal affair. (It may come into play at a later date with regard to community property and state law but you aren't in foreclosure and aren't going through divorce! It's no reason to NOT get married.)
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Ok. At first I was worried because I remember in the loss mitigation paperwork it wanted you to list the income of people living with you. Which I found so stupid because that not a reliable source of income, you could have a roommate that can move out at anytime. Then again, I haven't filled out this paperwork because it pissed me
Survivor_IN said:
I've learned not to put off life trying to cure the past.
Congrats!:)

Not sure what it does to the situation. Let the chips fall but don't give em any reason to amend and incorporate new disclosures. This is personal affair. (It may come into play at a later date with regard to community property and state law but you aren't in foreclosure and aren't going through divorce! It's no reason to NOT get married.)
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Ok. Just remember seeing within the loss mitigation paperwork the request to list the income of anyone living with you. Which I found ridiculous because unless your placing them on the loan it should not be a contributing factor. Its not reliable...you could have a roommate and then they move out. I was annoyed with all the information they wanted...it was as if I rebuyng the house. I haven't filled this paperwork out, even though they said my loss mitigation app was declined and provided a new repayment plan with $20k down and 5% interest on what they claim is the full amount. Wtf. So, I'd be paying 5% interest on the $60k that has been accruing on an originalnote of $40k?
 
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Survivor_IN

LoanSafe Member
It's your loan. I would not incorporate a non-party to the loan. That's ridiculous. I've heard of asking for or requiring other persons in the household (as income) when applying for gov benefits like SNAP, but not on a loan.
 
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cookiemom

LoanSafe Member
Survivor_IN said:
It's your loan. I would not incorporate a non-party to the loan. That's ridiculous. I've heard of asking for or requiring other persons in the household (as income) when applying for gov benefits like SNAP, but not on a loan.
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Oh, well, maybe that is why then....is a loss mitigation considered gov assisted program? Maybe they use that to then see if you qualify for HAMP...
 
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Survivor_IN

LoanSafe Member
I don't know. I did not receive any such request when I applied for HAMP. They may have asked for household size and children though. The only way this matters is against your taxable income and deductions... or if you possibly get child support or alimony as a part of your income. HAMP is dead. It's been gone since, idk, 2017? The only thing left on that program is the bonus money and PRN reductions. Maybe partial claims on any FHA or HUD reductions on the second.

I have not seen the current "requests" for information being used during COVID.
 
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Survivor_IN

LoanSafe Member
I can't see this being legit. Do you NEED to apply for assistance now? I'm suspicious. Many have said don't give this (financial and first payoff) to the second because they are "fishing." Maybe someone else has thoughts.
 
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cookiemom

LoanSafe Member
Survivor_IN said:
I can't see this being legit. Do you NEED to apply for assistance now? I'm suspicious. Many have said don't give this (financial and first payoff) to the second because they are "fishing." Maybe someone else has thoughts.
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Yeah, I really don't plan on submitting this....but...I think they have to offer this by law before the initiate foreclosure
 
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Survivor_IN

LoanSafe Member
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moretrouble

LoanSafe Member
Spent a little bit of time searching thru the appellate briefs and outcomes of the app cases (using courts' websites). I have the following observations:
1 - All the briefs which results in the foreclosing parties' favorable results show up in the result of my search. None of the briefs where valid arguments from the homeowners never shows, especially mine (maybe there is a NOSHOW flag in the search software).
2 - Even when homeowners lost on appeals WITH valid arguments and evidence (to some kind of servicing/debt collection fraud) the banks/ faked sevicers never went thru and try to enforce the foreclosure judgments ( several since 2012), similar to my case.
3 - Foreclosure cases in the of banks (Bank of New York, US Bank, Wells, Chase, etc..) almost completely disappear. The fraud has been exposed. None of these entities lost any money. We as taxpayers paid them all.

In summary, don't be discouraged even if you lost in trial and/or appellate courts. There are remedies post judgement and you'll be surprised if you will be left alone for a long time (don't have to move) because to them it's all cost/benefit. It may cost them substantially more (in legal fess, publication, potential capital loss from suits other investors, etc..) to enforce the foreclosure judgement.
 
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Survivor_IN

LoanSafe Member
This is true Mo' Trouble. Banks really do work hard to prevent searchable errors on their part. The problem with homeowners is usually they have some small defect in procedure or don't exactly know the correct procedural or legal phrasing to end the bank's cause of action. Even if they do have an excellent argument (with supporting evidence), it is ignored and there is a round robin to evade recognition. I'm definitely working on that one. So far no judgement. After 10 years I'm winning ...but I'm not. Yes, all of these robomills foreclosure attorneys need an education and are getting one by using outside counsel to aid them. This is what we are up against!

Also, you don't see the cases where the bank settled or withdrew the case. I think this is what happens when they know they are losing and the argument against them is definitive. They don't want to risk losing on appeal because that generally causes a searchable publication.
 
isisis

isisis

LoanSafe Member
I'm starting to suspect that all attorneys or at least the vast majority thereof need to take their rightful place along with mortgage bankers at the bottom of the sea.

I've gone to lengths to point out to my attorney that in Western Civilization it's generally frowned on to employ terrorist style tactics in debt collection. Rule of thumb: if Amnesty International wouldn't approve neither would a jury. This means psychological torture is out. Despite this and a court ruling that foreclosure would be wrongful my servicer - in all their too big to fail arrogance - repeatedly subjected me to mock execution style foreclosure sales presumably for entertainment purposes. They'd schedule a sale and it would stay on the calender only to be cancelled at the last minute.

This is a violation of the FDCPA, a cause of action for IIED, oppressive and reprehensible but just part of doing business in the mortgage industry.

Anyway I go see my attorney about this and the federal case were filing and all he wants to talk about is this awful settlement offer they made which is unconscionable and extortionate. Arrgh!

On the bright side of things there was a recent published opinion holding that the Rosenthal Act - which is California's version of the FDCPA - does apply to foreclosures. Yeah, about time!


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moretrouble

LoanSafe Member
isisis said:
I'm starting to suspect that all attorneys or at least the vast majority thereof need to take their rightful place along with mortgage bankers at the bottom of the sea.

I've gone to lengths to point out to my attorney that in Western Civilization it's generally frowned on to employ terrorist style tactics in debt collection. Rule of thumb: if Amnesty International wouldn't approve neither would a jury. This means psychological torture is out. Despite this and a court ruling that foreclosure would be wrongful my servicer - in all their too big to fail arrogance - repeatedly subjected me to mock execution style foreclosure sales presumably for entertainment purposes. They'd schedule a sale and it would stay on the calender only to be cancelled at the last minute.

This is a violation of the FDCPA, a cause of action for IIED, oppressive and reprehensible but just part of doing business in the mortgage industry.

Anyway I go see my attorney about this and the federal case were filing and all he wants to talk about is this awful settlement offer they made which is unconscionable and extortionate. Arrgh!

On the bright side of things there was a recent published opinion holding that the Rosenthal Act - which is California's version of the FDCPA - does apply to foreclosures. Yeah, about time!


Google Scholar

scholar.google.com scholar.google.com
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The more I learn about attorneys, the less respect I have for the profession, maybe I should say legal profession to include the judges, collecting salaries form the homeowners/ tax payers and allowing the banks to use the courts as collection agencies stealing houses from the same tax payers who pay them. They will work for anybody who is willing to pay them. I know a couple law firms with attorneys both defending the homeowners while others in the firms arguing for the banks. Maybe they collude to argue back and forth to squeeze fees out of both parties knowing the end result will be same: the banks win. The best we can do is the status quo, back to where we were befor the complaint: Banks get to go the next victims on the list, forget about the fiercely contesting dead beats (if you pay them just to have them go away , you are stupid). hope we can win when we go to Federal court because of more publicity the federal judges have more to lose. Time will tell.
Also ,next time remember to demand a jury trial, don’t trust theses judges. Good thing , none of my kids want to be attorney. That would drive me crazy.
 
isisis

isisis

LoanSafe Member
Anyone else feel like we've fallen through the Looking Glass and we're living in some strange alternate universe these days? Neil Young has apparently abandoned his sixties ideals. He's forgotten about Question Authority and "Ten Soldiers and Nixon coming, were finally on our own". Now he's all believe the science and trying to demonize Joe Rogan for having credentialed scientists on his podcast questioning medical authorities. Maybe Neil smoked more pot than Joe and forgot that without dissent there's no democracy.

Meanwhile we've got Ted Cruz deviating from his normal go to Cancun while everyone freezes, reptilian ways and doing something decent instead to help the truckers convoy with go fund me.

Rogan's right though, there's been a lot of strange things happening. Wuhan lab leak theory turned out to be true and Fauci's been involved in gain of function research there. All the waffling on masks, a vaccine that's not exactly a vaccine, you can still transmit and contract but it's mandated.

Meanwhile the pharmaceutical companies are raking it in while we're being kept in the dark about other ways to protect ourselves such as numerous studies showing the efficacy of Vitamin D in doing the same things the vaccine does. The problem with Vitamin D of course is that it's not patentable. But it's cheap. I bought a big bottle of D gummies in lemon, orange and cherry. Yum!

Stay safe everyone.
 
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Survivor_IN

LoanSafe Member
And I'm so, so tired of everything being political. It's exhausting! No doubt workers being sick creating shortages in the pipeline and delivery and investors benefiting from inflation. No effect on the stock market but folks creating so much hoopla on every pandemic woa being a product of the presidency. I give it a qualified, "maybe." One person does not have power. All they can do is try to do what they have been elected to do. Nothing really gets done when Congress is in a holding pattern, basically tied in deadlock but capable of veto power on the veto power. We just don't know until we get there.

Looks like Pfizer making enough on pandemic to pay off lawsuits on the opioid crisis they created so all is good? Yes, great job on vaccines and at least reducing hospitalizations. But the debate and discord continues... Corporations pulling strings for profits on both sides of the aisle.
 
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Survivor_IN

LoanSafe Member
I'm researching a few things here and beginning to see how legal aid did not protect me. It appears that attorneys do take advantage of folks that don't know law and procedure and they use it to "excuse themselves" from making appropriate claims or responses. Yeah. There IS a reason why so many people HATE attorneys!!!
 
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kraftykrab

LoanSafe Member
Spoke to an attorney this past week, I was informed that through her experience, the court I've been in this whole time has a reputation within the legal profession as being one of the more attorney-friendly courts...meaning, if you're a pro se, they are more likely than not to ignore your arguments even if your arguments are valid. This would explain why I had to go to the CoA to undo the improper actions of the trial court.

Gee, I wonder where I've seen that actually happening before....oh, yeah, in my case lol.

A lot more was said in this conversation but since we know that people come in here to spy for the pretenders, I'll just leave it at that for now.
 
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