Bagels at a Bar mitzvah Part II

[Luca Bayon]

As far as FC homeowners in need of refinance ....The ones you want to concentrate on are the ones where the sale date is cancelled. These are the parties actively trying to save their homes. You do have their name and address from the complaint.

As far as identifying abuse or malicious, that would be when you see a single attorney or group of attorneys all from the same firm with 25-100% of the FC sale listings. They do things in bulk and are difficult to deal with and represent multiple lenders and several states. I call 'em foreclosure mills because they win by default using a template. They play dirty when you challenge them. In my area, you will see the Lenders in the bulk listings on the FC auction listings and you could just use the search term to pull up listings using SLS, RTR, etc.

Thank you so much for the response. Is there anyway you could hop on a call with Erik & I this week and go into depth about this? I get what you're saying but I am having trouble executing. I can't seem to find a site that allows me to search SLS, RTR etc with ease. I have to open each file for a document and then skim them to see who it is FC'ing @Survivor_IN

 

[Survivor_IN]

Different States, even different Counties, have different systems. Everyone here is from a different State, so what works for one might not work for another. Check your messages and good luck with that very large rabbit hole.

 

[isisis]

In March in Sheen v. Wells Fargo California Supreme Court ruled against the existence of a duty of care in a mortgage loan contract and thus a cause of action for negligence.

Google Scholar

scholar.google.com

Technically the court was correct and the decision shouldn't leave borrowers to twist in the wind. But where the court could have provided guidance we are instead met with a familiar condescension as if borrowers in default are errant and somewhat dimwitted.

The court points out that in the language of the contract the borrower agrees that their property may be seized and sold in the event of default. Then points to the absence of language requiring the servicer to provide a modification. Um, this is an adhesion contract with an imbalance of bargaining power. It would be more remarkable if there provisions providing protection to the borrower much less an affirmative duty to modify.

Last time I checked we were paying these guys top dollar for legal brilliance and insight. So why are they employing the reasoning acumen of a junior high gym teacher?

There's also an absence of any language in the loan contract providing the servicer with immunity or an exemption from fair business practices. Does that suggest that they can be uncooperative and provide misinformation that leads the borrower into default?

This group of legal scholars should be well aware that a contract is interpreted as a whole not according to individual provisions. The power of sale can only be invoked if certain prerequisites have occurred and the right to foreclose is predicated on the creditors constructive condition of cooperation. In its absence the duty to perform has yet to occur and there has not been a default.

While seemingly touting the strength of contract law doctrines the court doesn't quite connect the dots. They needed to roll up their sleeves and get their hands dirty applying those doctrines to the rampant misconduct that's led to countless people losing their homes. Instead of predictably passing the buck to the legislators they needed to acknowledge that part of the problem has been the unilateral treatment of the loan contract by the courts.

They could have stepped up and cut Sheen some slack by demonstrating how the bank's misconduct breached the covenant by frustrating his right to receive the benefits of the contract and that unlike the economic loss rule in tort contract law is designed to allow recovery for financial damages. In theory at least.

Given the perilous nature of the mortgage loan contract I think the Supreme Court had duty of their own to safeguard consumers to the extent possible by using the law as the equalizer that it's supposed to be
.
They missed their big chance to win our respect. I mean it could have been a teachable moment. We could have ended up all sitting around the campfire together holding hands and singing Kumbaya. But no. Guess they were thinking with their pensions.

 

[moretrouble]

Some one from BOfA hang a note on my door saying: "It's important that you call us at this number 1800 xxx xxxx and please have your account number ready when you call".

These banks' employees are cocky. Just because they hang a note on my door that I have to call them. It's maybe important to them but not to me. What 's worse that they can do to me, kick me out of my house? they 've been trying that for 12 years. Similarly, just because they send me a statement saying balance due is $350,000 I have to write a check for $350K to BofA, even the statement does not specify pay to whom, unlike your normal bills always specify "please pay to YYY".. Reader would assume he/she should write a check to be paid to BofA because the statement is from BofA. Silly people.

 

[Survivor_IN]

MT
I think they are taking means to verify the property is owner occupied (among other things that are possible). I am sure this is an extra 59.99 charge for the service of unknown parties. With that in mind, you might consider a cease and desist *letter* requiring the servicer to not trespass and informing them that the property is occupied and maintained. Otherwise, they might very well use the lack of response in a legal fashion against you to fast track possession of an allegedly vacant property. Like you, I am very leery of using phone contact as that invites intrusion and listing/sale of such data for more calls, collection or otherwise.

 

[Survivor_IN]

Isisis,

Someone dropped the ball on crafting this argument, WF took it up and ran with it to obtain the "no duty of care" result. The borrower did not provide supporting points of authority or citation of relevant law, where it could have. Once the arguments were made, the court denied amending the complaint which could have cured certain deficiencies.

This is sad in that the borrower was obviously confused in the meaning of the communications, where he could have argued deceptive presentations, promissory estoppel, and related mortgage servicing laws as to the events and requirements the lender/servicer had in acknowledging the modification application. Lots of technical errors. What a shame. The end result is an apparent adoption of the mortgage bankers association's amicus brief decidedly in favor of strict contract language.

I find the "privity" explanation interesting. One of the things lender's have argued are that borrowers can not object to robosigning and irregularities of the lender and PSA requirements because they are not "in privity to the contract" and have no rights to argue defective, even unlawful, performance where those parties ratify the use of robosigners, etc....

"After reviewing case law bearing on this question, we articulated the following rubric for resolving the issue:

"The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm." (Id. at p. 650, italics added.)

Biakanja itself thus makes clear that its multifactor test finds application only when the plaintiff is a "third person not in privity" with the defendant. (Biakanja, supra, 49 Cal.2d at p. 650.) Under its terms, Biakanja does not apply when the plaintiff and defendant are in contractual privity for purposes of the suit at hand."

The "privity of contract" has spread like wild fire as a means to quash HAMP lawsuits by Lenders. This is where the homeowner/borrower had to turn it's expectations on HAMP into promissory estopple versus a duty to perform in contract because they did not contract with the government but the lender contracted with the government. (Caselaw actually depends on verbiage and whethor the parties actually signed a trial modification with a 3 month effective date or whethor the trial deceptively uses "will be considered for" and evades a commitment.) The privity of the HAMP contract as a defense was effectively dropped by most lenders but is still used as defense on irregular assignments and PSA duties. As far as robosigners and false affirmations, I think a person not privy to the third party contract should be allowed to use such (third party contract) details as a way to verify what constitutes an authentic action versus questionable document and fraud upon the court amongst other things.

While the ruling does little more than provide analysis and citations ad naseum in support of an equally divided CA court (likely authored by the mortgage bankers association who also supplied an amicus brief)... In a mere footnote, we find mention of the correct way to use tort law with regards to modifications without upsetting the contract principal of pure economic loss.

" [10] And of course, in situations when a borrower has been injured by a lender's intentional conduct during the loan modification process, the borrower may pursue various intentional tort theories, such as fraud and intentional misrepresentation. (See, e.g., Robinson, supra, 34 Cal.4th at p. 984 [holding that the economic loss rule does not apply to claims for intentional misrepresentation or fraud]; see also Meixner v. Wells Fargo Bank, N.A. (E.D.Cal. 2015) 101 F.Supp.3d 938, 955-957 [finding that the plaintiff had properly pleaded an intentional misrepresentation claim against a bank for conduct taken in a loan modification process]; McGee v. Citimortgage (D.Nev., May 31, 2013, No. 2:12-CV-2025 JCM (PAL)) 2013 U.S.Dist. Lexis 76675, pp. *14-*15 [finding that the plaintiff had stated a fraud claim].)

 

[isisis]

Survivor,

That's California's one connection between contract and tort; if the conduct was "intentional with harm intended". Even then though the necessary proof can be inferred.

The thing about privity of contract is that it's supposed to be protective and it shouldn't be necessary to use tort law to enforce your expectation interests. For some reason in the context of mortgage contracts the doctrines that govern contracts are simply ignored.

More Trouble,

Sounds like they're on a fishing expedition. Is there some way of making it abundantly clear that your place is owner occupied without responding to them?

 

[moretrouble]

Also I noticed on my last statement there was an $600 title fee. This normally happens when there is a new debt-buyer for my loan, based on old records. I think BofA is servicing/collecting for the new buyer now.
i checked county recordings last week , no new document recorded. All my fraudulent assignments on my properties purged. It’s clear that the house is occupied . I don’t bother to response. If they want anything they can write me. What can they do? Forge another note , file another foreclosure suit?

 

[isisis]

Hi everyone, I am a new Associate Loan Officer working under Erik Sandstrom (the owner of this forum). We are proactively trying to help as many homeowners as we can with these Charged-Off 2nd Liens that have come back to haunt people. I figured this would be a great platform to ask this question:

Does anyone know of any sites like the one above that would allow us to see if RTR, SLS or any others that have a tendency to be malicious, are actively trying to foreclose? Here's another site but it seems to be limited. However, I was able to find one Real Time related foreclosure: https://salesweb.civilview.com/Sales/SalesSearch

Ultimately the goal is to get in front of these people and try to help them avoid foreclosure. We work for a nationwide lender so ideally the platform would not be confined to certain counties.

Two sites that I'm aware of are auction.com and elitepostandpub.com.

 

[Luca Bayon]

Two sites that I'm aware of are auction.com and elitepostandpub.com.

Thank you so much for the insight. Please let me know if you guys find anything else that would allow us to easily find people with malicious 2nd's. I know that they don't make it easy:/

 

[Luca Bayon]

Two sites that I'm aware of are auction.com and elitepostandpub.com.

It seems as though I cannot search through the beneficiaries on Auction.com to see who the second Lien holders are

 

[Luca Bayon]

If I were to make a facebook group for these charged off 2nd mortgages, would you guys be interested in joining?

 

[Survivor_IN]

That's California's one connection (to tort)
The thing about privity of contract is that it's supposed to be protective and it shouldn't be necessary to use tort law to enforce your expectation interests. For some reason in the context of mortgage contracts the doctrines that govern contracts are simply ignored.

What's notable to me is that bankers used the "protective" aspect of privity ad nauseum as a means to misdirect liability for frauds in robosigning with respect to assignments (important for non-judicial) but it was ultimately argued that one could question something that makes the document void (Yvanna?) not just "voidable at the election of the parties in privity." This gives rights to challenge. The bankers have avoided that recognition by simply not addressing it. At least that has been the case on this side of the Mississippi. A means to quash arguments where, in fact, the argument is not based on privity but is rather based on matters of law or matters of evidence that affects the validity or authenticity of the evidence.

Effectively, arguments can be made on the lender's continued use of robosigning (aka attacking spurious signatures of persons without knowlege producing questionably legal "evidence" for court) and lack of reliability of evidence and affirmations, in particular, where it demonstrates a mismatch of procedures of the trust etc. Some of these further arguments and rulings are buried or not published. It does appears some pro se are dropping the arguments in full due to complexity and simply guessing as to which argument is most effective. This is a shame, but some points of law are akin to banging ones head against the wall, but if you neglect to include them, they will be disregarded in appeal.

And of course, Judges are giving lenders multiple bites to come back with additional proofs and continue to delay pro se rights to dismiss the case based on lack of standing. No wonder there is not attorneys available to defend borrowers. We have delayed justice and lender's hanging on waiting for others to create legal rulings and citations for them, which in itself, creates unreasonable and self-serving delays. I am having an issue with the court bending over backwards to help the lender with its failed standing and its failed cause of action. Ultimately, the servicer aka "lender's legal representative" enjoys the limbo because they get their annual and monthly fees and delays creates more debt for their credit bid and REO. The process of continuation harms the borrower and the property deteriorates because of an inability to access equity and the risks of doing so for the homeowner. Yet courts refuse to dismiss. Raise your hand if you've had to file a complaint on a judge or lender attorney. (No, don't. Would be crowded field.)

MT, your note has been transferred or something like that as evidenced by the title fee. Purchasers generally charge for title fees allegedly having knowlege of liens etc prior or condition of transfer. In other words, if there's an issue, they don't get to claim holder status and deny liability because they have knowlege. lol. Doubtful they will come forward so you can add them to the lawsuit. They have a need to hide the ownership and operate their collections under the name of the servicing agents nd third party grunge on your property. Henchmen. Which is actually against them when they foreclose without that type of proof and only using copies.

 

[Survivor_IN]

If I were to make a facebook group for these charged off 2nd mortgages, would you guys be interested in joining?

Idk about FB (but others do have similar groups there posting occasional info.) You might start a general discussion on seconds in Loansafe in an independent thread. Ample people interested in what to do. Especially on those newly discovered HUD claims. And also pandemic related surprises. Remember, people will find you when you offer solutions and the discussion can be found online. Facebook is almost too personal in that in these situations, persons don't want a potential financial or FC discussion connected to their real name and family pictures. Of course you can do one in order to advertise or promote services and utilize the private messaging or website link.

Oh and there's this. Repeat news of Ocwen's self-dealing circa 2014. Auction sites do not negotiate!

New York regulator suspects Ocwen Financial of possible 'self-dealing'

Ocwen Financial is suspected of 'self-dealing' by regulators and accused of overcharging borrowers and investors to auction off foreclosed properties.

www.cnbc.com

 

[Luca Bayon]

That's a good point. I will create a thread on here that will hopefully be used as a resource by those who are looking for help. I'll also go through this forum to share important findings and links!

 

[JohnFL]

Hi Luca, I was wondering if you created the thread for the malicious 2nd's? Do you have an email address? I wouldn't mind seeing if there is anything you can do to help with my 2nd. Thank you, have a Great Day!

 

[Luca Bayon]

I am still working on putting that thread together but I should have it done by next week. We'd love to see if we can help. I will send you a direct message on here, @JohnFL

 

[Survivor_IN]

If a Lender reverses payments, does anyone know if this is an effective repudiation of the contract? In other words, is the contract is impossible to perform where a borrower can not control payment application. We have some discussion in the past but alas bookmarks gone.

 

[isisis]

If I were to make a facebook group for these charged off 2nd mortgages, would you guys be interested in joining?

I don't have a second and know very little about them.

 

[isisis]

If you were included in a settlement and securitization how can you prove this or use as a defense? I keep seeing cwheq 2006-i trust appear in these pooling docs that a settlement was reached....

So, you're in one of the Countrywide trusts? Me too, Cwabs 2006 SD2. There was extensive litigation with an investor's settlement but it really had no effect on borrowers. They just shuffled us around to special servicers. Cwheq trusts might be in a different settlement.There was also much discussion regarding the borrower's standing with the California Supreme Court ruling by the book and citing the Restatement and then subsequent rulings essentially negating it. The issue is state specific falling along the general lines of judicial vs. non judicial, i.e., if you get due process you might have standing. Then there's the whole issue of agency...