isisis
LoanSafe Member
By reverses payments do you mean refuses to accept payments or something more specific?
Bagels at a Bar mitzvah Part II
- Thread starter isisis
- Start date
I don't know too much about the process or how to research this. I'll just play the waiting game to see what their next move is. I've read elsewhere too that some of these loan put in the trust are not able to be collected on due to the rules within the agreement but will be a very hard battle
Survivor_IN
LoanSafe Member
"Does not apply payment" would be the best characterization. Holding money, refusing to apply and not returning it. I know of times where a lender who rejects a payment like this and returns the payment --- but this is keeping the money without applying it.
moretrouble
LoanSafe Member
I have started paying my mortgage since last week.
No!!! not the "sending a check to the debt collector Bank of America" to satisfy my unsecured obligation to an unknown distressed debt buyer. I have started my legal research again, recording my hours as I go.
What's worse than scumbag is a stupid scumbag. Even after having received a free "Stay of Jail" card from the state courts, any attorney with a brain would be glad and let my case die, unpublished, but NO this attorney wants the fees from the new debt owner, filed a Praecipe and obtained a Writ of Excecution to schedule a sale of my house, forcing me to research into a complaint in the U. S. District court to file before the sale date. This my third sale sale date since 2010 so I am kind of use to it. Slept like a baby from 11:30PM to 8:00AM last night. I'll keep everybody informed and will post the case number so you can follow. I will also inform the American Property Onwers Group on Facebook to.
No!!! not the "sending a check to the debt collector Bank of America" to satisfy my unsecured obligation to an unknown distressed debt buyer. I have started my legal research again, recording my hours as I go.
What's worse than scumbag is a stupid scumbag. Even after having received a free "Stay of Jail" card from the state courts, any attorney with a brain would be glad and let my case die, unpublished, but NO this attorney wants the fees from the new debt owner, filed a Praecipe and obtained a Writ of Excecution to schedule a sale of my house, forcing me to research into a complaint in the U. S. District court to file before the sale date. This my third sale sale date since 2010 so I am kind of use to it. Slept like a baby from 11:30PM to 8:00AM last night. I'll keep everybody informed and will post the case number so you can follow. I will also inform the American Property Onwers Group on Facebook to.
Survivor_IN
LoanSafe Member
OH MY!
Okee DOOOKeee Mo'Truble
Okee DOOOKeee Mo'Truble
Survivor_IN
LoanSafe Member
you got mail
moretrouble
LoanSafe Member
For those who are considering suits in the Federal courts. These files maybe helpful
www.reuters.com
This case applies to Ocwen but could be revised to your own servicer.
Ocwen must face CFPB lawsuit, but not all claims: U.S. appeals court
A federal appeals court said the Consumer Financial Protection Bureau may pursue claims accusing Ocwen Financial Corp of mortgage servicing misconduct, rejecting Ocwen's contention that an earlier nationwide settlement precluded the lawsuit.
This case applies to Ocwen but could be revised to your own servicer.
OneHugeMess
LoanSafe Member
Can you tell me how they reversed the payment? Did they literally go in and take a payment you made and apply it to an escrow account, or return the funds to you? Generally, you only see this when someone is 3+ months behind, they refuse any payment on the account, and send back payments as a Cashiers Check.
I'm just curious. I've never really seen a servicer go in, and mass delete payments.
Survivor_IN
LoanSafe Member
I was paying regularly and current at the time. They reversed or withheld single payment application. No contemporaneous refund. Escrow was inflated but I actually paid the increase. Just a means to declare default and proceed to foreclosure. What I'm concerned about is the repudiation of the contract and intent of the servicer. I'm reviewing multiple items.
At one point Isisis discussed reasons which excuse performance. (contract law) I was just curious to what extent a servicer is liable for interfering with payment performance. This is not limited to one instance and I'm subject to potential adversarial review in forums now so I won't be detailing too much extra. Sorry.
At one point Isisis discussed reasons which excuse performance. (contract law) I was just curious to what extent a servicer is liable for interfering with payment performance. This is not limited to one instance and I'm subject to potential adversarial review in forums now so I won't be detailing too much extra. Sorry.
Survivor_IN
LoanSafe Member
Lender Liability (commercial loans). The Bank lost claims against it for Breach of Duty of Good Faith and Fair Dealing (based on breached contract claims) and was held liable for tort claims involving misrepresentations. Willfull (mis)conduct in the Bankruptcy of the debtor.
So many of these cases get resolved in bankruptcy and I wonder about a lender's actions on using civil courts as a means to collect consumer loans (foreclosure process) without regard to the bankruptcy discharge. Notable are meaningless offers of modifications with unsupported balances.) Is it only possible to make effective claims for lender liability under 13 bankruptcy? I do know Ocwn has been slammed on this one. But Ocwn, having lost 3 million as punitive damages during the process ( Saccameno v. Ocwn) ... continued to fight the claims and declared the homeowner's award (for harassment and wrong doing) as "excessive." It's as if their only means to achieve their reputation is to extend court process and fight tooth and nail for exclusion of evidence and fight tooth and nail to get any deserved penalty either a) reduced or b) under a confidentially agreement in order to settle.
https://restructuring.weil.com/case...er-liability-is-real-and-can-cost-you-dearly/
So many of these cases get resolved in bankruptcy and I wonder about a lender's actions on using civil courts as a means to collect consumer loans (foreclosure process) without regard to the bankruptcy discharge. Notable are meaningless offers of modifications with unsupported balances.) Is it only possible to make effective claims for lender liability under 13 bankruptcy? I do know Ocwn has been slammed on this one. But Ocwn, having lost 3 million as punitive damages during the process ( Saccameno v. Ocwn) ... continued to fight the claims and declared the homeowner's award (for harassment and wrong doing) as "excessive." It's as if their only means to achieve their reputation is to extend court process and fight tooth and nail for exclusion of evidence and fight tooth and nail to get any deserved penalty either a) reduced or b) under a confidentially agreement in order to settle.
https://restructuring.weil.com/case...er-liability-is-real-and-can-cost-you-dearly/
isisis
LoanSafe Member
Defendants in my case may have made a big mistake. I think they placed themselves in check and I'm one move away from winning. My attorney sees it very differently. He thinks I should find out if they're still willing to do the sucky settlement they offered even though it's unconscionable and unlawful. My attorney's been practicing law for 35 years, I've never practiced law at all. The opposing counsel are no slouches either, like my attorney they've got some precedent under their belts with a published opinion related to MERS.
My attorney is of the opinion that the banks aren't really accountable under the law and I think most of us would agree that that's how it tends to play out. But I keep stubbornly thinking that the courts have to follow the law and it's frustrating because I got these guys. In any other contractual dispute they'd be toast.
Here's the way the pieces on the chess board rearranged while all this legal talent was looking the other way. Between the deposition and the settlement all of the relevant significant circumstances in determining the materiality of a breach occurred.
Restatement (Second)of Contracts § 241
In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
At the depositing I testified under oath and on the record to how they actively induced default by preventing and refusing performance and the consequent economic injury which exceeds the arrears. In other words I've been deprived of a substantial portion of the reasonably expected benefit.
At the settlement they offered a modification that would lower monthly payments but double the total amount. They take the foreclosure charges and fees and the high interest arrears and add them to the balance to create an endless income stream. I asked them to remove those amounts but they refused.
So they won't compensate for the deprived benefit, they refuse to cure their material failure to perform and instead want to increase the debt amount. Implicitly if this offer goes unaccepted they will then foreclose. Doesn't sound like good faith and fair dealing, does it?
Technically what that did was make it possible to be discharged from performance and to terminate the loan contract. Because - again technically - Defendants committed a total breach of contract by refusing to cure.
My attorney is of the opinion that the banks aren't really accountable under the law and I think most of us would agree that that's how it tends to play out. But I keep stubbornly thinking that the courts have to follow the law and it's frustrating because I got these guys. In any other contractual dispute they'd be toast.
Here's the way the pieces on the chess board rearranged while all this legal talent was looking the other way. Between the deposition and the settlement all of the relevant significant circumstances in determining the materiality of a breach occurred.
Restatement (Second)of Contracts § 241
In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
At the depositing I testified under oath and on the record to how they actively induced default by preventing and refusing performance and the consequent economic injury which exceeds the arrears. In other words I've been deprived of a substantial portion of the reasonably expected benefit.
At the settlement they offered a modification that would lower monthly payments but double the total amount. They take the foreclosure charges and fees and the high interest arrears and add them to the balance to create an endless income stream. I asked them to remove those amounts but they refused.
So they won't compensate for the deprived benefit, they refuse to cure their material failure to perform and instead want to increase the debt amount. Implicitly if this offer goes unaccepted they will then foreclose. Doesn't sound like good faith and fair dealing, does it?
Technically what that did was make it possible to be discharged from performance and to terminate the loan contract. Because - again technically - Defendants committed a total breach of contract by refusing to cure.
isisis
LoanSafe Member
Of course it's nowhere near that simple but most of the complication works in my favor. Such as this which might be helpful to other people getting corralled into an unfavorable modification.
Repudiation is a complicated subject but in Rest. 2nd of Contracts § 250 comment d it gets specific.
When A Statement Or An Act Is A Repudiation comment d.
But where a party wrongfully states that he will not perform at all unless the other party consents to a modification of his contract rights, the statement is a repudiation even though the concession that he seeks is a minor one, because the breach that he threatens in order to exact it is a complete refusal of performance.
Hint: doesn't have to be a statement, it can be inferred from actions.
A refusal of performance qualifies as a failure of consideration as their performance was part of the bargained for exchange and that allows for contract termination or rescission.
Repudiation is a complicated subject but in Rest. 2nd of Contracts § 250 comment d it gets specific.
When A Statement Or An Act Is A Repudiation comment d.
But where a party wrongfully states that he will not perform at all unless the other party consents to a modification of his contract rights, the statement is a repudiation even though the concession that he seeks is a minor one, because the breach that he threatens in order to exact it is a complete refusal of performance.
Hint: doesn't have to be a statement, it can be inferred from actions.
A refusal of performance qualifies as a failure of consideration as their performance was part of the bargained for exchange and that allows for contract termination or rescission.
isisis
LoanSafe Member
Survivor,
A servicer is absolutely liable for interfering with performance; their cooperation is a constructive condition. If their interference is active that may mean the condition requiring payments didn't occur.
§ 225. Effects Of The Non–Occurrence Of A Condition comment b. excuse
It may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing (§ 205).
Since they had a duty to cooperate with your performance that places them in breach. But - to walk that back just a tad - there is an operative word in all that which is "active". There's a difference between interference and prevention which I suppose is a matter of degree and perhaps of intent. Was the interference deliberate, was it foreseeable that it would cause you damage that could significantly impede performance? If it was material it should suspend performance, if not it might still be a claim for partial breach.
A servicer is absolutely liable for interfering with performance; their cooperation is a constructive condition. If their interference is active that may mean the condition requiring payments didn't occur.
§ 225. Effects Of The Non–Occurrence Of A Condition comment b. excuse
It may be excused by prevention or hindrance of its occurrence through a breach of the duty of good faith and fair dealing (§ 205).
Since they had a duty to cooperate with your performance that places them in breach. But - to walk that back just a tad - there is an operative word in all that which is "active". There's a difference between interference and prevention which I suppose is a matter of degree and perhaps of intent. Was the interference deliberate, was it foreseeable that it would cause you damage that could significantly impede performance? If it was material it should suspend performance, if not it might still be a claim for partial breach.
moretrouble
LoanSafe Member
This is an interesting case. One crook sued another. The second crook went to jail. Could substitute the second crook with Ocwen. I like the introduction.. to the point. 12 years for only 7 mils in losses. What about billions of dollars in losses that victimized millions of homeowners because of the fraud from BOfA and Ocwen?
www.justice.gov
NATIONSTAR V SORIA - COMPLAINT - An outline of the United States 21st Century Genocide against its people.
Thanks to Living Lies and Neil Garfield for this Post. Neil writes: Insider Lawsuit Summarizes the BIG LIE About “Securitization.” This is an insider case filed in April 2018. The ironic aspect of this case is the probability that Nationstar probably
www.academia.edu
West Hollywood Man Sentenced to Over 12 Years in Prison for Real Estate Fraud Scheme that Victimized More Than 2,000 Homeowners
A West Hollywood man was sentenced today to 152 months in federal prison for orchestrating a real estate fraud scheme that victimized more than 2,000 homeowners, involved fraudulent filings that affected the title to properties across the country and caused more than $7 million in losses.
www.justice.gov
isisis
LoanSafe Member
More Trouble,
I'm sorry to hear that. I was hoping they would just back off and leave you in peace. No one deserved to beat these guys more than you. Your research was so thorough and your complaint so professional, I was in awe. But how can anyone win if the other guys don't have to play by the rules and if the judge's mind is made up in advance. There was something stretchy about your judge, retiring right afterwords and all. I wanted to find out if there had been any real estate acquisitions or title changing hands under her name contemporaneous with your case but your County records said info wasn't available on line. You probably checked that out though.
If the sale was non judicial you could at least buy some time....How about an adversary proceeding in Chapter 13 and name them as an unsecured creditor? There's also something deep within the recesses of TILA that can reduce the amount you have to pay back under certain circumstances. However, not by much.
Thinking about you. Let me know if there's any way I can help.
moretrouble
LoanSafe Member
Thanks for your thoughts Isisis. No scheduled sale yet. I am just getting ready. I will eventually file a complaint in the federal court to clear my title anyway. If there will be a scheduled sale it will have just accelerated my time table. I am not worry. I am a lot more experienced in court procedures now, in terms of discovery, requests for production, requests for admission, motion to compel ( that’s what I did not do in the state court). I have the help of another pro se who’s been battling bank on New York/countrywide for 3 years in the federal court, he is willing to go all the way to U.S. Supreme Court, me too. It’s a long road. As you already know, BOaA will push you to the limit to see how you react. I did not yield even when I needed a house for the kids,I won’t yield now with the kids all gone. they keep hanging stuff on my door with 800 number to call, but they won’t call me, because that would be wire fraud (mail fraud is in the bag already). If The 25 year-old Cassidy Hutchinson has the courage to act, if would not take a mod bribe to let the fraud against us (homeowners/taxpayers/consumers) go unnoticed. Losing the house is nothing, more freedom without the house. I hate the thought of my property taxes go to these corruptEd judges’ pensions. Cheers.
Survivor_IN
LoanSafe Member
I stumble across this Homeowner's Assistance Fund....
The Feds found a COVID cure. Allegedly.
HAF is the new HAMP, and I think .gov has experience this time.
HAF is one time payment to homeowner's impacted by COVID. It can pay off past due mortgage payments (up to 35K) for reinstatement. Must be pandemic related loss. You will have to verify your income was lost or reduced during the pandemic with pre-pandemic income W2s or taxes showing losses after Jan 20 2020. It cover's certain homeowner expenses such as non-escrowed insurance past due and amount needed to reinstate.
I hope this helps someone.
home.treasury.gov
The Feds found a COVID cure. Allegedly.
HAF is the new HAMP, and I think .gov has experience this time.
HAF is one time payment to homeowner's impacted by COVID. It can pay off past due mortgage payments (up to 35K) for reinstatement. Must be pandemic related loss. You will have to verify your income was lost or reduced during the pandemic with pre-pandemic income W2s or taxes showing losses after Jan 20 2020. It cover's certain homeowner expenses such as non-escrowed insurance past due and amount needed to reinstate.
I hope this helps someone.
Homeowner Assistance Fund
*/ The purpose of the Homeowner Assistance Fund (HAF) is to prevent mortgage delinquencies and defaults, foreclosures, loss of utilities or home energy services, and displacement of homeowners experiencing financial hardship after January 21, 2020. Funds from the HAF may be used for assistance...
home.treasury.gov
This started out looking like a good idea but probably failed alot of homeowners, at least in FL. The state received the money for the fund in March 2021. approx 550mil. It took the state of FL over a year to implement it's program. Finally in May 2022 they started issuing funds. I was on tier 2 due to being over max income. I think max income for tier 1 was approx. 80k. per year. So state of FL has used all funds for tier 1 applicants. They stated they have issued 400mil to approx 8000 consumers and will not be able to help anyone else. My question is each person they helped received approx 50k if you do the math. Now how did they give each applicant's mortgage company 50k. That would be one hell of a mortgage payment that was due, yet they could only have 80k in income. Something seems fishy to me.
isisis
LoanSafe Member
Considering that the Defendants in my case began their campaign to wrongfully foreclose on my home in 2009 I've been up against a problem with the SOL. Various workarounds have presented themselves but I've just found the best one courtesy of the California Supreme Court. Anyone similarly bedeviled might want to listen up since Supreme Courts tend to be herd animals so the solution probably isn't state specific.
Anybody with time barred claims might want to consider a claim for repudiation. It appears to occupy a special niche of its own which allows a party the election of when the claim accrues. Unusually lenient.
"... when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract. (See 1 Witkin, Summary of Cal. Law,Contracts, §§ 800-801, pp. 723-724.)
The other reason this isn't state specific is it's according to Corbin. He's the Godfather of modern contract law, kind of like Neil Young is the Godfather of grunge and infinitely citable.
"For the purpose of determining when the period of limitation begins to run, the defendant's non-performance at the day specified may be regarded as a breach of duty as well as the anticipatory repudiation. The plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately." (4 Corbin, Contracts (1951 ed.) § 989, p. 967.)
Anybody with time barred claims might want to consider a claim for repudiation. It appears to occupy a special niche of its own which allows a party the election of when the claim accrues. Unusually lenient.
"... when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract. (See 1 Witkin, Summary of Cal. Law,Contracts, §§ 800-801, pp. 723-724.)
The other reason this isn't state specific is it's according to Corbin. He's the Godfather of modern contract law, kind of like Neil Young is the Godfather of grunge and infinitely citable.
"For the purpose of determining when the period of limitation begins to run, the defendant's non-performance at the day specified may be regarded as a breach of duty as well as the anticipatory repudiation. The plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately." (4 Corbin, Contracts (1951 ed.) § 989, p. 967.)
Survivor_IN
LoanSafe Member
I think it takes time to recognize the repudiation (loan contract) given that the historic mortgage solution has always been another modification. I just wonder if when the alleged modified mortgage replaces the original mortgage, and is repudiated, would that become a repudiation of the original mortgage that it replaces too? Sounds destructive. (which may be good or bad depending on your needs) I have heard of courts voiding contracts and then later the lawyers not being able to get their fees paid because there was no contract stating they got their fees and this cost someone based on the clause no longer being effective. I don't know if this is truly a thing or just a one off ruling.
Maybe this circles back to first breach of the contract and a stated election of non-performance of a party not in breach. If you give a party the option to perform and they don't, then you would be within your rights to terminate and go elsewhere. The only cases like this I've seen are consumer goods and merchant accounts. People buy and selling goods. If you don't get a shipment then you can buy from someone else. (like produce or tvs) I could be wrong. I can't see SOLs being a penalty in this scenario (because you would know quickly they did not deliver and probably not going to wait long to replace missing product) , but some types of claims have 1` or 2 year SOLs.
Maybe this circles back to first breach of the contract and a stated election of non-performance of a party not in breach. If you give a party the option to perform and they don't, then you would be within your rights to terminate and go elsewhere. The only cases like this I've seen are consumer goods and merchant accounts. People buy and selling goods. If you don't get a shipment then you can buy from someone else. (like produce or tvs) I could be wrong. I can't see SOLs being a penalty in this scenario (because you would know quickly they did not deliver and probably not going to wait long to replace missing product) , but some types of claims have 1` or 2 year SOLs.