Steve's Blog

Tenants rights in California following a foreclosure of investment property.

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 03 Nov 2009 10:40:01 -0600

The following is general legal information only and not to be construed as legal advice.

California tenants have rights when residential property is being foreclosed upon. The following two sections apply where a lender, trustee, beneficiary or authorized agent is seeking to foreclose on residential real property in the State of California:

(1) Under California Civil Code Section 2924.8 the following must be posted where the lender knows a tenant is in possession of residential real property subject to eviction

(a) Upon posting a notice of sale pursuant to Section 2924f, a trustee or authorized agent shall also post the following notice, in the manner required for posting the notice of sale on the property to be sold, and a mortgagee, trustee, beneficiary, or authorized agent shall mail, at the same time in an envelope addressed to the "Resident of property subject to foreclosure sale" the following notice in English and the languages described in Section 1632: "Foreclosure process has begun on this property, which may affect your right to continue to live in this property. Twenty days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a 60-day eviction notice. However, other laws may prohibit an eviction in this circumstance or provide you with a longer notice before eviction. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights you may have."

The following provisions also apply:

(b) It shall be an infraction to tear down the notice described in subdivision:

within 72 hours of posting. Violators shall be subject to a fine of one hundred dollars ($100).
A state government entity shall make available translations of the notice described in subdivision
which may be used by a mortgagee, trustee, beneficiary, or authorized agent to satisfy the requirements of this section.
This section shall only apply to loans secured by residential real property, and if the billing address for the mortgage note is different than the property address.
This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

(2) Under California Code of Civil Procedure Section 1161(b) the following provisions apply in regard to foreclosed property wherein a tenant resides in the subject property:

1161b. (a) Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit at the time the property is sold in foreclosure shall be given 60 days' written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter. (b) This section shall not apply if any party to the note remains in the property as a tenant, subtenant, or occupant. (c) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

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SOME OF THE ABOVE WEBSITES CAN BE VIEWED AT WWW.CUSTOMLAWNBLOGS.COM (CREATOR OF MY LEGAL BLOGS). THEY ARE OPERATED BY WWW.CONTINGENCYCASE.COM WEBSITE WHICH IS A WEBSITE DIRECTORY FOR CONTINGENCY CASE LAWYERS ACROSS THE UNITED STATES).

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NOTICE:

The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice. If you have specific legal questions about your foreclosure case, or loan modification case you should seek out the advice of a real estate attorney. In addition, the information posted above may not be 100% complete, accurate or up-to-date. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona. He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084. This is an advertisement and communication pursuant to State Bar Rules. Please do not send us private or confidential information through any of our above-listed websites. Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this).

TILA Rescission Rights - Basic Overview - Can you foreclose on your lender?

Steve Vondran (Law Offices of Steven C. Vondran) — Fri, 30 Oct 2009 19:24:54 -0500

NOTICE: The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice. If you have specific legal questions about your foreclosure case, or loan modification case you should seek out the advice of a real estate attorney. In addition, the information posted above may not be 100% complete, accurate or up-to-date. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona. He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084. This is an advertisement and communication pursuant to State Bar Rules. Please do not send us private or confidential information through any of our above-listed websites. Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this).

FEDERAL TRUTH IN LENDING LAW

The Truth in Lending Act (TILA) is a cornerstone of consumer credit legislation. The Statute is Congress's effort to guarantee the the accurate and meaningful disclosure of the costs of consumer credit and thereby to enable consumers to make informed choices in the marketplace. See 15 U.S.C. § 1601(a). The Act is designed to protect borrowers who are not on an equal footing with creditors either in bargaining power or with respect to the knowledge of credit terms. In other words, TILA was passed to aid the unsophisticated consumer. See Thomka v. A.Z. Chevrolet, Inc. 619 F.2d 246 (3d Cir. 1980). The Act is also remedial and must be liberally construed in favor of borrowers. See King v. California, 784 F.2d 910 (9^th Cir. 1986). Except where Congress has relieved lenders of liability for noncompliance, it is a strict liability statute. Courts should continue to assure that consumers are accorded the full remedies available under the Act for violations found, even if they might seem technical. See Rodash v. AIB Mortgage Co., 16 F.3d 1142, 1145, 1149 (11^th Cir. 1994). Although Congress permitted the Federal Reserve Board to issue regulations implementing TILA (Reg Z), and to issue interpretations and official staff commentary that the Courts consider to be persuasive authority, the FRB's authority is not without limits, and a regulation that conflicts with TILA cannot stand. See Fabricant v. Sears, Roebuck, Clearinghouse No. 54,563 (S.D. Fla. Mar. 5, 2002).

NOTICE OF RIGHT TO CANCEL - DISCLOSURE REQUIREMENTS

A common violation we find (and you can check your loan documents to see if you have such a violation) is that in a refinance transaction each borrower or person with ownership interest in the property did not receive two copies each of the federally required notice of right to cancel. If this is true, and your loan was originated within the statutory three year period (note that arguments for equitable tolling may exist) then this violation, although appearing technical in nature, can trigger an extended three year right to cancel your loan.

Under Federal Truth in Lending Law, each Borrower, or person with ownership interest in the property, (in a non-purchase loan or other exempt transaction) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling, shall be provided with TWO (2) COMPLETED copies EACH of a notice of right to rescind (cancel). It is the lender’s obligation to complete these forms and deliver TWO copies to each Borrower or person with Ownership interest in the Property. 15 U.S.C. § 1635(a), Reg. Z §§ 226.5(b), 226.23(b). If each borrower or person with ownership interest is not provided two adequate copies of this Notice, an extended three year right to rescind is permitted under the Federal Truth in Lending Law.

The notice shall identify the transaction or occurrence and clearly and conspicuously disclose the following:

The retention or acquisition of a security interest in the consumer's principal dwelling.
The consumer's right to rescind, as described in paragraph (a)(1) of this section.
How to exercise the right to rescind, with a form for that purpose, designating the address of the creditor's place of business.
The effects of rescission, as described in paragraph (d) of this section.
The date the rescission period expires. (See Reg. Z §§ 226.15(b)(5) and 226.23(b)(5))

See Meyer v. Argent Mortgage Co., (In re Meyer), 379 B.R. 529 (Bankr. E.D. Pa. 2007). If the notice is subject to more than one sensible reading, and different results ensue depending upon which of the readings is adopted, the creditor has not met the “clear and conspicuous standard.” SeeHandy v. Anchor Mortgage Corp., 464 F.32 760, 764 (7^th Cir. 2006).

TWO KEY POINTS WE WILL ARGUE (when the two copies each are received but the rescission dates are not filled in – a common TILA violation)

(1) The Lender must fill in the form and dates (not the borrower) – If the creditor uses the proper model form, properly completed…......and fulfills all other requirements, the borrower has no rescission right. This position is supported by the actual text of the law - See 15 U.S.C. §1635(h) - which states:

Limitation on rescission:

“An obligor shall have no rescission rights arising solely from the form of written notice used by the creditor to inform the obligor of the rights of the obligor under this section, if the creditor provided the obligor the appropriate form of written notice published and adopted by the Board, or a comparable written notice of the rights of the obligor, that was properly completed by the creditor, and otherwise complied with all other requirements of this section regarding notice.”

The plain-meaning implication of this statutory provision SEEMS TO BE clear (and therefore is controlling), the lender has the obligation to complete these forms, it is not the borrowers duty to determine what dates to insert into the forms, much less at the direction of a mobile notary. In fact, the escrow instructions and lender's instruction sheet for the notice of right to cancel form usually set forth the requirement that the dates be inserted before the borrower is asked to sign all copies. We will present credible testimony on this point as well. For now, please see attached Exhibit “A” which sets forth the evidence currently in our possession, of which we will rely on, and will build our discovery foundation upon.

This reading of the law (that it is the lender's obligation to insert the dates, and not the borrowers) is also consistent with the requirement #5 (set forth above) that “the lender shall clearly and conspicuously identify the date the rescission period expires.” In fact, at least two courts have held in the First and Second circuit: “the complexity of business transactions under TILA means that the average consumer cannot figure out when TILA rights expire.....” See Bonney v. Wash. Mutual Bank, No. 08-30087 (D. Mass. July 30, 2008). Placing this burden on the borrower strips the “truth” from the transaction.

Finally, adding yet more support that the lender, not the borrower, must fill in the dates of the TILA right to rescind notice is a holding from another court which held: “Under both TILA and Regulation Z, the test for disclosure of the rescission right is whether the form of notice that the lender provided constitutes a clear notice of that right. See Porter v. Mid-Penn Consumer Discount Co., 961 F.2d 1066, 1076 (3d Cir.1992) (“the law does not require an ideal notice of rescission rights, just a clear, accurate and conspicuous one.”).........the right to rescind can be clearly disclosed only ifthose two dates are filled in.” See Meyer v. Argent Mortgage Co., (In re Meyer), 379 B.R. 529 (Bankr. E.D. Pa. 2007).

(2) The Lender is required to provide TWO copies of the notice of right to cancel to EACH borrower along with a copy of all of the material TILA disclosures. Failure to meet these requirements also provides an extended three year right to rescind the loan transaction. See 15 U.S.C. § 1635(a); Reg. Z §§ 226.15(b), 226.23(b) and Webster v. Centex Home Equity Corp. (In re Webster), 300 B.R. 787 (Bankr. W.D. Okla. 2003).

HERE IS ANOTHER WAY TO GET THE EXTENDED THREE YEAR RESCISSION RIGHT (USUALLY A LOAN AUDIT IS REQUIRED) The material disclosures required in a closed-end transaction, (APR, including the existence of a variable rate feature, Finance Charge, Amount Financed, Total of Payments, and Payment schedule) the failure of which to disclose results in an extended three year right to rescind. See Gaono v. Town & Country Credit, 324 F.3d 1050, 1053, (8th Cir. 2003).

Where only one copy of the notice of right to cancel is received, or where each borrower does not receive two signed and completed copies of the required right to cancel an extended three year right to rescind will apply.

Note: the lender will argue “the borrower signed an acknowledgement that they received two copies each, and therefore there is no TILA violation, sorry case closed.” It seems these lenders and loan servicers forget to read the following section of the law which we will frequently have to raise.

REBUTTABLE PRESUMPTIONS UNDER TILA

Even assuming for the sake of argument that there are two signed, dated, and accurately completed notice of right to cancel documents in the lender's possession (or the consumer's acknowledgment of receipt of two completed copies), this merely raises a rebuttable presumption that the lender delivered two copies to the borrower. See 15 U.S.C. § 1635(c), and Johnson v, New Century Mortgage Corp., 320 F. Supp. 2D 606, 611 (E.D. Mich. 2004). Courts permit competent testimony to rebut this assertion of the lender.

The critical factor is not whether the creditor has two signed and completed copies of the notice, but whether the borrower has possession of two signed, dated, and completed copies of the notice of right to cancel. Whether borrowers were delivered a blank notice of right to cancel is a question of fact that will not be decided on a motion to dismiss. See Clay v. Johnson, 77 F.Supp. 2D 879 (N.D. Ill. 1999). The debtor's denial of receipt of the notices and disclosures creates a question of fact that will not be decided on summary judgment even where the borrower signed acknowledgement of having received two copies of the notice. See Moore v. Mortgagestar, Inc. 2002 U.S. Dist. LEXIS 27457, (W.D. W. Va. Dec. 18, 2002). Once the borrower rebuts the presumption of delivery (through competent testimony, affidavits, etc.) the burden shifts to the creditor to prove the delivery of the documents. See Bell v. Parkway Mortgage, Inc., 309 B.R. 139, 157 (Bankr. E.D. Pa 204).

In addition, where the debtors testify that they did not receive the disclosures (even if not “totally convincing”), the debtor's should prevail if the credit cannot produce from its own records any copy of the disclosures. See In re Pinder, 83 B.R. 905, 913.

In most cases, especially where the borrower has credibility and kept track of all their loan documents (and where a mobile notary was used to sign the loan docs) the borrower can normally make a fair argument to rebut any assertion that the lender complied with the clear and conspicuous notice requirements and can counter any such assertion with competent testimonial evidence.

THE FOLLOWING IS SOME GENERAL INFORMATION ON EXERCISING RESCISSION RIGHTS:

THREE YEAR EXTENDED RIGHT TO RESCIND

(a) Consumer's right to rescind. (1) “In a credit transaction in which a security interest is or will be retained or acquired in a consumer's principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction….”

(b) Exercising the right of Rescission:

226.23(3) – “The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last.If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer's interest in the property, or upon sale of the property, whichever occurs first. In the case of certain administrative proceedings, the rescission period shall be extended in accordance with section 125(f) of the Act.” There is also legal precedence for “tolling” the statute beyond three years where fraudulent concealment is shown. See Bank of New York v. Waldon, 751 N.Y.S.2d 341 (Sup. Ct. 2002).
226.23(2): (2) “To exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor's designated place of business.” There is also legal precedence for the proposition that filing a lawsuit demanding to exercise rescission rights is also sufficient notice. See Garedakis v. Indymac Bank, 2004 WL 2254676 (N.D. Cal. Oct. 4, 2004) and Jones v. Saxon Mortgage, Inc. 161 F.2d 2 (table), 1988 WL 614150 (4^th Cir. Sept. 9, 1998).

EFFECTS OF RESCISSION UNDER TILA (IN GENERAL):

I. STEP ONE:

When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.

THIS MEANS THE SECURITY INTEREST BECOMES VOID BY OPERATION OF LAW.

Following the 2003 Yamamoto decision (discussed below) the FRB added language to the commentary, (Section 226.23 of Regulation Z implements § 1635(b)). Which stated:

When a consumer rescinds a transaction, the security interest giving rise to the right of rescission becomes void and the consumer shall not be liable for any amount, including any finance charge.
Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.
If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor....
The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.

Note: This suggests section (1) above is NOT altered, and so when a consumer rescinds, "the security interest becomes void." Unless the Court alters the procedure, the Courts have the discretion.

Where the TILA statute is clear it must be followed. Courts only have the power to alter whether the lender has to tender first, or the borrower has to tender first. See Yamamoto v. Bank of New York, 329 F.3d 1167 (9th Cir. 2003), but see Semar v. Platte Valley Federal Savings & Loan Association, 791 F.2d 699, 705-06 (9th Cir.1986) (which stands for the proposition that the Court can alter the “procedure” of TILA but not the “substance” of TILA). The substance of TILA, as described above, is that the security interest becomes void upon the exercise of rescission, (although the Court can alter this procedure by requiring the borrower to tender first).

In Yamamoto, the Court held:

“There is no reason why a court that may alter the sequence of procedures after deciding that rescission is warranted, may not do so before deciding that rescission is warranted when it finds that, assuming grounds for rescission exist, rescission still could not be enforced because the borrower cannot comply with the borrower's rescission obligations no matter what. Such a decision lies within the court's equitable discretion, taking into consideration all the circumstances including the nature of the violations and the borrower's ability to repay the proceeds. If ... it is clear from the evidence that the borrower lacks capacity to pay back what she has received (less interest, finance charges, etc.), the court does not lack discretion to do before trial what it could do after. Determinations regarding rescission procedures shall be made on a “case-by-case basis, in light of the record adduced.”

This case illustrates that the Courts hold the ultimate power to exercise their discretion in any TILA rescission case, and does not NECESSARILY require that the borrower prove its ability to tender as a pre-condition to exercising rescission rights.

In fact, a California Court, in Pelayo v. Home Capital Funding, Slip Copy, 2009 WL 1459419, S.D.Cal.,2009, recently denied a lenders motion to dismiss a TILA rescission claim where the Defendant argued that the borrower was required to tender before rescission could be allowed (the Defendant essentially arguing that the security instrument was not automatically void), and where the Defendant argued the Court could not hear the case until the lender made its decision within 20 days (essentially arguing the TILA claim was not ripe for review). The Court held that the case could be heard and denied Defendant’s motion to dismiss. This ruling suggests that although the Court is permitted to modify the rescission procedure and require proof of tender by the Borrower first, it was also free NOT to modify the procedure and essentially treat the security instrument as being void (as the TILA statute requires), thus making the rescission case ripe for review.

There is also legal precedent which suggests that a Court could exercise its “equitable discretion” under TILA and allow the borrower to make payments over time as part of meeting the borrower’s tender requirement (essentially reducing the monthly payment over time). See. In re Stuart, 367 B.R. 541, 552 (Bankr.E.D.Pa.2007); Shepeard v. Quality Sliding & Window Factory, Inc., 730 F.Supp. 1295 (D.Del.1990) (allowing borrower to satisfy tender obligation by making monthly payments); Mayfield v. Vanguard Sav. & Loan Ass'n, 710 F.Supp. 143, 149 (E.D.Pa.1989) (allowing borrower to satisfy tender obligation by making monthly payment).

Also note, SOMETIMES (THIS IS PULLED OFF ONE LOAN) the Notice of Right to Cancel Form given to the borrower states:

“If you cancel the transaction, the mortgage/lien/security interest is also canceled. Within 20 CALENDAR DAYS after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage/lien/security interest on your home has been cancelled, and we must return to you any money or property you have given us or to anyone else in connection with this transaction.

You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 CALENDAR DAYS of your offer, you may keep it without further obligation.”

This SEEMS TO BE a legal assertion, in the form of an admission, that the security interest is automatically void upon the consumer’s exercise of rescission. Upon the consumers act of “cancelling the transaction” the “mortgage/lien/security interest is also cancelled.” A creditor should not be permitted to renege on this assertion (estoppels applies) and the lender is bound by law to honor it.

II. STEP TWO

Within 20 calendar days after receipt of a notice of rescission, the creditor shall return any money or property that has been given to anyone in connection with the transaction and shall take any action necessary to reflect the termination of the security interest.

Note: THE LENDER /SERVICER WILL NOT WANT TO DO THIS SO DON’T COUNT IT. In most cases, they would rather face a judge and see if you can prove your ability to tender.

III. STEP THREE

If the creditor has delivered any money or property, the consumer may retain possession until the creditor has met its obligation under paragraph (d)(2) of this section. When the creditor has complied with that paragraph, the consumer shall tender the money or property to the creditor or, where the latter would be impracticable or inequitable, tender its reasonable value. At the consumer's option, tender of property may be made at the location of the property or at the consumer's residence. Tender of money must be made at the creditor's designated place of business. If the creditor does not take possession of the money or property within 20 calendar days after the consumer's tender, the consumer may keep it without further obligation.

Again, the Court may alter only steps two and step three per the Federal Reserve Board’s commentary set forth above. Such FRB opinion should be seen as persuasive legal authority.

THE OTHER NICE THING ABOUT A TRUTH IN LENDING RESCISSION CLAIM IS THAT IT IS APPLICABLE AGAINST ANY AND ALL LOAN ASSIGNEES WITHOUT FEAR OF A HOLDER IN DUE COURSE ARGUMENT.

ASSIGNEE LIABILTY FOR RESCSSION

While assignees are only liable for TILA “statutory damages” that are “apparent on the face of the loan documents” assignees are subject to the rescission right to the same extent as the original creditor.

15 U.S.C. §1641(c) states:

Right of rescission by consumer unaffected

Any consumer who has the right to rescind a transaction under section 1635 of this title may rescind the transaction as against any assignee of the obligation.

See also the case of Ocwen Fed. Bank v. Russell, 53 P.3d 312 (Haw Ct. App. 2002) which rejected the assignees holder in due course argument as being no defense to rescission. As other courts have held: “without such protection for the consumer the right of rescission would provide little or no effective remedy.” See Stone v. Mehlberg, 728 F. Supp. 1341, 1348, (W.D. Mich 1989). A loan servicer is deemed an assignee if it “is or was the holder of the obligation.” See 15 U.S.C. §1641(f)(1). Please see our request to identify the holder of the loan obligation or master loan servicer below.

As a final note, in regard to reviewing whether any additional damages may be levied against an assignee of a loan, in the Meyer case cited above the Court held:

“TILA Section 1641 addresses the circumstances under which an assignee may be liable for violations committed by the prior holder. For loans-such as this one-which are secured by real estate, the statute provides as follows:

Liability of assignee for consumer credit transactions secured by real property

Except as otherwise specifically provided in this subchapter, any civil action against a creditor for a violation of this subchapter, and any proceeding under section 1607 of this title against a creditor, with respect to a consumer credit transaction secured by real property may be maintained against any assignee of such creditor only if -

(A) the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement provided in connection with such transaction pursuant to this subchapter; and the assignment to the assignee was voluntary.

For the purpose of this section, a violation is apparent on the face of the disclosure statement if the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement....”

We hereby reserve our rights and will seek to hold any assignees liable for any other violations uncovered following discovery.

Also note there is case law that dictates an injunction against foreclosure is also permitted even in the absence of a tender ability at the outset of the litigation. “Rescission premised upon tender is not mandatory but an option within the equitable powers of the court.” Avila v. Stearns Lending, 2008 WL 1378231 (C.D. Cal April 7, 2008).

Also note, the Courts have recognized the right to seek an injunction against foreclosure where this right (rescission) is ignored by the lender or assignee. See Horton v. California Credit Corp., 2009 WL 700223 (S.D.Cal.) 2009. Note, that the 9^th Circuit Court did not require an initial “tender” obligation from the borrower in granting the injunction where missing dates on the TILA notice of right to cancel were found.

CONCLUSION

If you have a refinance loan within the last three years (meaning it has not been more than three years since your last refinance, you may want to look at your previous loan file and determine whether or not you have a right to rescind the loan. In some cases, you will need to perform a mortgage loan audit to detect under-disclosure of APR and finance charges and other material disclosure violations. In other cases, look at your notice of right to cancel documents and see if you got two completed copies of the notice of right to cancel document (for each borrower or person with ownership interest in the property) and see if the rescission dates are filled in and otherwise accurate. If not, you may have an extended three year right to rescind your loan, and if so, you need to send in a rescission letter to protect your rights. If the lender refuses to acknowledge your legal rights under Truth in Lending Law (TILA) you may have grounds to file for an injunction to halt any slated foreclosures. In many cases, you will need to show some ability to tender back to the lender, the amounts which you would owe them (your loan balance) minus the amounts they owe you pursuant to their TILA tender obligation.

This area of the law can be tricky, so you may want to meet with an Attorney to discuss your case. In California, no attorney or other persona may accept advance fees for loan modifications pursuant to SB 94.

TRIAL PLAN FRAUD: WHAT IS IT AND CAN ANYTHING BE DONE LEGALLY TO STOP IT?

Steve Vondran (Law Offices of Steven C. Vondran) — Fri, 30 Oct 2009 17:09:26 -0500

The following is general legal information only and should not be relied upon as legal advice or a substitute for legal advice. For specific advice, contact an attorney. Steve Vondran, Esq. is a Real Estate Attorney licensed to practice law in Arizona (serving greater Phoenix) and California (Serving most areas of California). He currently practices foreclosure defense and predatory lending law. He can be emailed with comments at steve@vondranlaw.com

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Introduction: Many of the major lenders have been implementing President Obama’s Making Home Affordable Loan Modification Program (HAMP). The details of the program provide that lenders who believe that California and Arizona homeowners (these are the two states I am licensed to practice law in but the program applies in other states as well) qualify for loan modification programs should provide the homeowner with a three month “trial plan” modification program.

The lenders have been rolling out HAMP and have been sending homeowners these three month trial plan agreements.

For the purposes of this article I will refer to these agreements as “contracts” for the simple reason that they look like contracts (they have terms and conditions like a contract and signature blocks for both parties). The homeowner typically performs as if they are adhering in good faith to the terms of the contract, and the lender is accepting payments on the stated understanding that of the homeowner makes the three required payments set forth in the “contract” that the “lender” (see our produce the note articles) will provide the homeowner the badly needed loan modification that the lender has agreed to give if all payments are made under the trial plan, and assuming no material representations of the homeowner have changed.

Everything sounds groovy so far. The lenders appear to be working out loan modifications and saving neighborhoods from financial disaster, and the bailout money appears to be put to a worthwhile use.

What might/could happen next is interesting, yet disturbing at the same time:

The borrower typically makes all of their three scheduled trial plan payments on time
The borrower also submits all of the requested financial documentation in complying with the terms of the contract
After the third and supposedly final payment is made, we are learning some homeowners are told that either (a) they do not qualify for the loan modification (b) there are missing documents and more must be submitted before a “final decision” can be reached, and or (c) they get a whole new trial plan offer as if the homeowner is supposed to start all over again.
Another variation is getting the final loan mod and being asked to submit all the final documentation on the very next day (which is literally impossible to do, but which raises a “mailbox rule” issue for contract lawyers).

Bottom line, the promised final mod seems to be getting stuck in the loan modification pipeline. Is this being intentionally done? Are the lenders simply overloaded? Are they playing games with homeowners so they can simply “suck” more payments out of California and Arizona homeowners who may not be making their mortgage payments in the hopes of a loan modification (some people are told you will not be considered for a loan modification unless you are late on your payments – there is some truth to that but “imminent threat of being late” on the mortgage is supposed to be considered as well).

So we are left with a bunch of homeowners scratching their heads as to what is happening with the federal bailout money and communities that seek rising foreclosure stripping away their equity asking the same questions. Are the lenders engaged in fraud? Is this a bad faith breach of contract? Are the lenders required to follow-through with the loan modification when the borrower complies with the terms of the modification trial plan agreement?

LET’S DISCUSS SOME BASIC LEGAL INFORMATION AND ATTACKS THAT MAY BE USED TO FORCE THE LENDER TO COMPLY WITH THE AGREEMENTS (SPECIFIC PERFORMANCE OF THE CONTRACT).

(1) Fraud / Negligent Misrepresentation

Generally speaking, the elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damages. Lazar v. Superior Court, 12 Cal. 4th 631, 638, 49 Cal. Rptr. 2d 377 (1996).

The elements of negligent misrepresentation are similar to intentional fraud except for knowledge that the representation is false. Charnay v. Cobert, 145 Cal. App. 4th 170, 184-85, 51 Cal. Rptr. 3d 471, 482 (2006). In a claim for negligent misrepresentation, the elements are: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be true; (3) with intent to induce another’s reliance on the fact misrepresented; (4) justifiable reliance on the misrepresentation; and (5) resulting damages. Id.; see also Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 1239, fn. 4, 44 Cal. Rptr. 2d 352 (1995) (negligent misrepresentation is a species of the tort of deceit and like fraud, requires a misrepresentation, justifiable reliance, and damages).

In the loan modification trial plan offer setting the lender purports (depending upon the language of the trial plan offer – each document must be reviewed to make an accurate determination), the lender is acting as if the borrower applies for a loan modification. If the lender / loan servicer have absolutely no intent to provide a loan modification at all, (legal discovery would be required in most cases to try to prove this) then it would appear the lender is doing nothing more than to try to obtain additional loan payments from the borrower, and to ultimately “time release” the foreclosure of the property onto the marketplace.

These are items that may be tough to prove, but as some of the article on our website indicate, lenders are aware that not all loan modification trial plans will result in a successful loan modification. Where the lender/servicer has absolutely no intent to provide a modification, the trial plan offer may be fraudulent, and as discussed below, violate the duty of good faith and fair dealing implied in every contract.

Again, however, the lenders/servicers will probably try to argue that the trial plan agreement is not really a contract at all, but rather an offer to negotiate or some type of preliminary negotiation. Again, you are well advised to have an attorney review your trial plan agreement.

(2) Fraudulent Inducement

This is a claim which is like a hybrid claim of breach of contract and tort. The essence of the claim is that the defendant fraudulently induced a party to enter into a contract.

This cause of action generally requires knowing and intentional false statements of material fact (a material factual omission may not be sufficient but should be explored) which reasonably induce a homeowner to rely on the statements, and which false statements were relied upon to their detriment.

Where this action lies, the Courts may allow specific performance of the contract as a remedy and where fraud is clearly shown, punitive damages may be available.

(3) Breach of Covenant of Good Faith and Fair Dealing

Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371, 6 Cal.Rptr.2d 467, 826 P.2d 710 (1992) (quoting Restatement (Second) of Contracts § 205). “The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Such power must be exercised in good faith. See Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, C.A.9 (Cal.),1999.

The Cause of action for tortious breach of implied covenant of good faith and fair dealing exists if special relationship between parties is characterized by elements of public interest, adhesion, and fiduciary responsibility. Kittredge Sports Co. v. Superior Court, 213 Cal.App.3d 1045, 261 Cal.Rptr. 857

The duty of good faith and fair dealing arises from every contract as an implied covenant generating both a contractual obligation and a duty in tort. Hess v. Transamerica Occidental Life Ins. Co., 235 Cal.Rptr. 715. The Implied covenant of good faith and fair dealing is an equitable doctrine which may validate otherwise unenforceable agreements. It is a doctrine of equity that the courts may use to achieve a just result when a contract (ex. The loan modification trial plan agreement) is unclear regarding a party's obligations and the doctrine can then allow the court to enforce what might otherwise be deemed an unenforceable agreement.

The implied promise requires each contracting party to refrain from doing anything to injure the right of the other to receive the benefits of the agreement Egan v. Mutual of Omaha Ins. Co., supra, 24 Cal.3d at p. 818, 169 Cal.Rptr. 691, 620 P.2d 141.

A “breach of a specific provision of the contract is not a necessary prerequisite” to a breach of an implied covenant of good faith and fair dealing. Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2 Cal.4th 342, 371, 6 Cal.Rptr.2d 467, 826 P.2d 710 (1992) “[T]he covenant is implied to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenant) frustrates the other party's rights of the benefits of the contract.” See Los Angeles Equestrian Ctr., Inc. v. City of Lose Angeles, 17 Cal.App.4^th, 434, 447, 21 Cal.Rptr.2d 313 (1993).

As a general principle, there can be no breach of the implied promise or covenant of good faith and fair dealing where the contract expressly permits the actions being challenged, and the defendant acts in accordance with the express terms of the contract. See Clark v. America's Favorite Chicken Co., 110 F.3d 295 (5th Cir. 1997) (applying Louisiana law)

This is so even where the contractual provision at issue is one that purports to grant to the defendant absolute discretion to take certain actions or engage in certain conduct under the contract; such a provision, stated simply, permits the defendant substantial latitude, and as long as the discretion is exercised as permitted under the contract, and without evident bad faith motive or malice, its exercise cannot be a breach of the more general implied promise of good faith and fair dealing. See Clark v. America's Favorite Chicken Co., 110 F.3d 295 (5th Cir. 1997).

Yet, even where a defendant is given absolute discretion, it must exercise that discretion in good faith. See Travellers Intern., A.G. v. Trans World Airlines, Inc., 41 F.3d 1570 (2d Cir. 1994) . Thus, a party who "evades the spirit of the contract,” willfully renders imperfect performance, or interferes with performance by the other party, may be liable for breach of the implied covenant of good faith and fair dealing. See Paul v. Howard University, 754 A.2d 297, 145 Ed. Law Rep. 702 (D.C. 2000).

Some courts have focused on the reasonable expectations of the parties, (See Savers Federal Sav. and Loan Ass'n v. Home Federal Sav. and Loan Ass'n, 721 F. Supp. 940, 945 (W.D. Tenn. 1989) while others have focused on whether the action taken by the breaching party was arbitrary and capricious. See Coles Dept. Store v. First Bank (N.A.)--Billings, 240 Mont. 226, 783 P.2d 932, 936, 11 U.C.C. Rep. Serv. 2d 1074 (1989).

In determining whether a party has breached the obligation or covenant of good faith and fair dealing, a court must examine not only the express language of the parties' contract, but also any course of performance or course of dealing that may exist between the parties. See Sanpete Water Conservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170 (10th Cir. 2000) (applying Utah law). Note: The court may be unwilling to imply any duty that the parties could not reasonably expect from the terms of their contract). Hejmadi v. Amfac, Inc., 202 Cal. App. 3d 525, 547-549, 249 Cal. Rptr. 5, (1st Dist. 1988).

Generally speaking, a Breach of the covenant is a breach of contract. Tort recovery for breach of the covenant of good faith and fair dealing is available only in limited circumstances, generally involving a special relationship between the contracting parties, such as the relationship between an insured and its insurer.

Potential Damages: In general, contract damages are available (not including pain and suffering or emotional damages) but the “benefit of the bargain” damages (consequential damages and perhaps specific performance of the contract – forcing the other party to provide the loan modification as agreed in the trial plan modification offer). See Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089, 8 Cal. Rptr. 3d 233 (2d Dist. 2004), reh'g denied, (Feb. 4, 2004).

(4) Violation of California Civil Code Section 17200

California's unfair competition law (Business and Professions Code Section 17200 et seq.) defines “unfair competition” to mean and include “any unlawful, unfair or fraudulent business act or practice.” See Kasky v. Nike, Inc., 27 Cal. 4th 939, 949, 119 Cal. Rptr. 2d 296 (2002). By defining unfair competition to include any unlawful business act or practice, “the UCL permits violations of other laws to be treated as unfair competition that is independently actionable.” In essence, an action based on the UCL to redress an unlawful business practice “borrows” violations from other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under Section 17200 and subject to the distinct remedies provided there under. See Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 566-67, 71 Cal. Rptr. 2d 731 (1998).

There is no single definition for the phrase "unfair business practices." It is an evolving concept reflecting the ingenuity of unscrupulous business persons in concocting new schemes to gain advantage at someone else's expense. The existence of an unfair business practice is a question of fact determined in light of all the circumstances surrounding a case. See People ex rel. Bill Lockyer v. Fremont Life Ins. Co., 104 Cal.App.4th 508, 128 Cal.Rptr.2d 463, Cal.App. 2 Dist.,2002.

Sperry & Hutchinson, supra, 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170, describes the test for fairness as one developed by the Federal Trade Commission to determine “whether a practice that is neither in violation of the antitrust laws nor deceptive is nonetheless unfair.” The test as stated by the court is as follows: “ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’

It is not necessary that all three components of this standard be satisfied; a practice may be unfair because of the degree to which it meets one of these criteria, or because to a lesser extent it meets all three. Expert testimony may be used to prove that business conduct is unfair. The court must determine on a case-by-case basis whether the alleged conduct is unethical, oppressive, or unscrupulous, or whether it was an appropriate exercise of good business judgment. This is a balancing test, whereby the fact finder weighs the utility of the offending party's conduct against the gravity of harm to the injured party or the public at large.

(5) Violation of California Consumer Legal remedies Act (Cal Civ. Code Section 1770 et seq.)

California's Consumers Legal Remedies Act (CLRA) establishes a nonexclusive statutory remedy for unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the SALE OR LEASE OF GOODS OR SERVICES to any consumer. See Gonzalez v. Proctor and Gamble Co., S.D.Cal.2007, 247 F.R.D. 616.

Purpose of California Consumers Legal Remedies Act (CLRA) is to attempt to alleviate social and economic problems stemming from deceptive business practices. See America Online, Inc. v. Superior Court (App. 1 Dist. 2001) 108 Cal.Rptr.2d 699.

I. Loan transactions are “goods or services” under the Act.

California Civil Code section 1754 provides that the CLRA "shall not apply to any transaction which provides for the construction, sale, or construction and sale of an entire residence or ... for the sale of a lot or parcel of real property, including any site preparation incidental to such sale." However, this provision bars application of the CLRA only to transactions for the sale or construction of real property; it does not also exclude financial services related to such transactions.

Cases in support of this proposition include:

Jefferson v. Chase Home Finance LLC, No. C06-6510, 2007 WL 1302984 (N.D.Cal. May 3, 2007) (concluding that the loan transactions between a mortgage finance company and the plaintiff involved "more than the provision of a loan; they also include the financial services of managing the loan.")
Knox v. Ameriquest Mortgage Co., No. C05-00240, 2005 WL 1910927 (N.D.Cal. Aug. 10, 2005) (finding that, in the context of predatory lending allegations and after a review of the case law, "California courts generally find financial transactions to be subject to the CLRA.");
In re Ameriquest Mortgage Co., No 05-CV-7097, 2007 WL 1202544, (N.D.Ill. Apr. 23, 2007) (stating, in dicta, that "it is not inconceivable that Plaintiffs could prove the existence of tangential 'services' associated with their residential mortgages and establish that these transactions were covered by the CLRA.").
In an unreported decision (Jefferson v. Chase Home Finance, LLC - 2007 WL 1302984, N.D.Cal., 2007.) the Court stated:

"the arranging of the loan, including but not limited to its origination, processing, documentation, wire-transmittal and underwriting constitutes 'services' within the meaning of subsection(b) of § 1761 of the CLRA......Plaintiffs did not seek just a loan; they sought defendants' services in developing an acceptable refinancing plan by which they could remain in possession of their home. Thus, unlike the Berry case cited above......the present case involves more than the mere extension of a credit line. Instead, the circumstances here deal not just with the mortgage loan itself, but also with the services involved in developing, securing and maintaining plaintiffs' loan.....in fact, in an effort to create an appropriate refinancing package, plaintiffs met with defendants' agent three times before finally agreeing on a payment plan that plaintiffs and defendants found acceptable.”

II. Prohibited Acts

Section 1770 prohibits, (among other things), the following:

Knowingly misrepresenting the character, uses and benefits of its products and services; Knowingly misrepresenting the standard and quality of products and services; Advertising goods or services with intent not to sell them as advertised; Misrepresenting that the consumer will receive.....an economic benefit if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction and, inserting an unconscionable provision in the contract (the Court will look to California Civil Code section 1670.5 in making the unconscionability determination).

CASES ILLUMINATING THE UNCONSCIONABILITY PRINCIPLE INCLUDE THE FOLLOWING:

Civil Code section 1670.5 follows the law developed primarily in the sale of goods, governed by the Uniform Commercial Code, in enabling courts to grant relief from unconscionable contracts or clauses. “The principle is one of the prevention of oppression and unfair surprise.” Whether a contract is unconscionable or not is a question of law for the Court. Shadoan v. World Savings & Loan Assn., 219 Cal.App.3d 97, 268 Cal.Rptr. 207 (1990).

As stated by the court in the seminal case of Williams v. Walker-Thomas Furniture Company (D.C.Cir.1965) 350 F.2d 445, 449, “Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”

Absence of meaningful choice occurs when a party to a bargain has little choice but to accept the terms stated by the other party. Hidden Terms in an agreement may qualify to show absence of meaningful terms.” See A & M Produce Co. v. FMC Corp. 135 Cal.App.3d 473, 486 (1982).

A contract may be procedurally unconscionable under California law when the party with substantially greater bargaining power presents a take-it-or-leave it contract to a customer, even if the customer has a meaningful choice as to service providers. Shroyer v. New Cingular Wireless Services, Inc., C.A.9 (Cal.)2007, 498 F.3d 976.

Discussion: California and Arizona homeowners (greater phoenix area) who are lead to believe that they qualify for a loan modification given the representations made by and concerning the trial plan modification program, may have a claim to assert for damages. It is not certain you can prove that the lenders loan modification services are covered by the act, but it does appear to be a claim worth investigating at any rate.

III. DAMAGES AVAILABLE

(A) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:

Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000 minimum).
An order enjoining the methods, acts, or practices.
Restitution of property.
Punitive damages.
Any other relief that the court deems proper.

(B) Any consumer who is a senior citizen or a disabled person, as defined in subdivisions (f) and (g) of Section 1761, as part of an action under subdivision (a), may seek and be awarded, in addition to the remedies specified therein, up to five thousand dollars ($5,000) where the trier of fact does all of the following:

(C) Finds that the consumer has suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct.

NOTE: GENERALLY, WHEN ASSERTING A CLAIM UNDER THE CALIFORNIA LEGAL REMEDIES ACT, A POTENTIAL PLAINTIFF MUST GIVE THE LENDER A 30 DAY RIGHT TO CURE NOTICE THAT GIVES THEM THE OPPORTUNITY TO REMEDY THEIR VIOLATION PRIOR TO FILING A LAWSUIT.

CONSLUSION:

If you were given a trial plan loan modification offer, agreement, or other documents, and you made payments under the trial plan as agreed in the loan mod document, and any material representations that you made pursuant to the agreement DID NOT CHANGE from the time you entered into the contract, to the time your final payment was made; and if the lender or loan servicer refused to follow through with the trial plan, said you don’t qualify for a loan modification, or sold you house from underneath you, you may need to see a real estate, predatory lending, and foreclosure attorney to review whether or not you have a valid legal case to assert for either specific performance of the contract, or potentially money damages, including potentially punitive damages.

There are causes of action that may be applied in the loan modification trial plan context such as fraud, deceit, fraudulent inducement to contract, breach of implied covenant of good faith and fair dealing, and/or violation of the California Legal Remedies Act. Lenders and loan servicers, who were well financed by the federal bailout, should not be preying in California and Arizona homeowners in the greater Phoenix area by trying to “trick” them into making additional loan payments were foreclosure is inevitable given the lender/loan servicer’s mindset as to whether or not you are truly a loan modification candidate.

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Attorney Steve Vondran can be reached at steve@vondranlaw.com or toll free at (877) 276-5084. Information about trial plan fraud can be found at www.TrialPlanFraud.com

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ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084

Offices:

Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

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Our Real Estate Law Services:

Loan Modifications / Loan Workouts (World Savings and Wachovia Loans
Commercial Lease Modifications
DRE audits, hearings and investigations
Real Estate Broker admissions cases
Foreclosure Defense
Mortgage Law & Predatory Law
Phoenix Real Estate Zoning Attorney – Greater Phoenix (Scottsdale, Goodyear, Buckeye, Casa Grande etc.)
Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 (Greater Phoenix)
Real Estate Arbitration, Litigation and Mediation
Foreclosure Consultant Contracts / Loan Modification Contracts
Real Estate LLC’s & Incorporations
Real Estate Partnership Law
Quiet Title Actions
Forensic Loan Audits – Greater Phoenix (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc).

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HELPFUL FORECLOSURE DEFENSE LINKS:

SUBMIT YOUR FORECLOSURE / LOAN SCENARIO: WWW.LOANMODSOLUTIONS.NET
SUBMIT YOUR LOAN MODIFICATION SCAM SCENARIO: WWW.LOANMODIFICATIONRIPOFF.NET
LITIGATING OPTION ARM LOANS WWW.OPTIONARMLAWYER.COM
CALIFORNIA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM
ARIZONA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM
STEVE VONDRAN REAL ESTATE WEBSITE WWW.VONDRANLAW.COM
INFORMATION ON TRIAL PLAN FRAUD: WWW.TRIALPLANFRAUD.COM
FORECLOSURE DEFENSE RADIO SHOW: WWW.LOANMODRADIO.COM
INFORMATION ON TRUTH IN LENDING LOAN RESCISSION: WWW.RESCINDMYLOAN.NET
INFORMATION ON PRODUCE THE NOTE: WWW.PRODUCETHENOTEATTRORNEY.COM

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NOTICE:

SB 94 a "Huge Victory" for California Homeowners - NOT! Our "legal side of loan mods show" (KLAA 830) now called "legal side of foreclosure" show

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 20 Oct 2009 13:40:26 -0500

WELL FOLKS, WE HAVE BEEN TALKING ON OUR RADIO SHOW FOR SEVERAL WEEKS NOW ABOUT THE SB94 LOAN MODIFICATION LAW. THIS LAW WAS INTRODUCED BY SENATOR CALDERON (BANKING AND FINANCE COMMITTEE) AND WAS DESIGNED TO PREVENT ANYONE (INCLUDING ATTORNEYS AND REAL ESTATE BROKERS) FROM ACCEPTING ANY ADVANCE FEES FROM ANY CALIFORNIA HOMEOWNER FOR LOAN MODIFICATION SERVICES OR LOAN FORBEARANCE SERVICES. WHAT THIS TRANSLATES TO IS THAT ATTORNEYS AND BROKERS CANNOT ACCEPT ANY MONEY IN ADVANCE OF PERFORMING ALL SERVICES THEY CONTRACT FOR (I.E. THEY WILL HAVE A HARD TIME PAYING THEIR OVERHEAD) AND THEREFORE VERY FEW COMPANIES, INCLUDING ATTORNEYS, WILL CONTINUE TO HELP CALIFORNIA HOMEOWNERS WHEN IT COMES TO LOAN MODIFICATION SERVICES. SENATOR CALDERON CALLED THE SIGNING OF THE BILL ON OCTOBER 11, 2009 A "HUGE VICTORY." NOT SURE IF HE MEANT A HUGE VICTORY FOR THE BANKS AND LENDERS OR A VICTORY FOR CALIFORNIA HOMEOWNERS. KEEP IN MIND, A HOMEOWNERS "FREEDOM OF CONTRACT" WAS LITERALLY STRIPPED AWAY LEAVING MANY HOMEOWNERS ON THEIR OWN TO PERFORM THE FOLLOWING LOAN MODIFICATION SERVICES WHICH APPARENTLY THE BANKS WOULD RATHER HAVE YOU DO FOR YOURSELF: (1) Review your loan documents for instances of predatory lending, including finding truth in lending violations that may give you a right to rescind your loan. If you know how to do your own forensic loan analysis, great for you. Lenders and loan investors would prefer you do not raise any legal violations over the loans they either originated, or purchased on the secondary market. (2) Pull a chain of title and send debt validation letters to lenders, investors and loan servicers seeking to foreclose on you (i.e. make them validate that they are owed a debt). (3) Send a demand that the loan servicer identify the holder of the loan (so you can validate the debt and make sure the chain of title is accurate). The failure to comply raises a legal claim. (4) Ensure that California foreclosure laws are followed - 2923.5-2924 et seq. (the failure to comply raises a legal claim) (5) Send a qualified written request to challenge any billing, fee, or accounting disputes (the failure to comply raises a legal claim) (6) Package and submit your financial documents (7) Draft and submit a hardship letter (8) Introduce relevant comparison properties so that the lender can calculate the true loss that will ensue by pursuing foreclosure (net present value test). Also lends itself to 2923.6 arguments. (9) Contact the lender on a weekly or bi-weekly basis to ascertain status on your case (if you do not call with frequency and log your calls, we have found you tend to get lost in the shuffle etc.). Note, homeowners trying to save their homes normally have jobs, and trying to take a 1/2 hour to an hour a week to call your lender while at work may not be a smart move. Also, if you would rather pay someone to avoid this, you have no right to do so. (10) Review and advise on trial plan offers (having seen several different plans, professional advisors are better equipped to tell homeowners what the "contract" means) (11) Re-submit your loan modification package if you are denied These are just some of the steps legitimate and quality lawyers and brokers can provide. However, the state feels you should be well equipped to do this yourself. You do not need to pay anyone to help you. If you cannot do it, then you are advised to call HUD.gov free counselors. Those are your only choices (assuming of course that you cannot find a broker or attorney willing to work for free and hope that you pay them at the end - a risk most are not willing to take based on my conversations with fellow professionals). So there you have it folks, another lost freedom - the freedom to contract as you see fit. As Benjamin Franklin said, those who trade freedom for security will get neither and deserve neither. Since we cannot perform loan modifications and accept advance fees, our show will discuss the legal side of foreclosure. Our office is still accepting World Savings and Wachovia Loans on a 100% contingency fee basis (no advance fees). Other than that, our only other function appears to be limited to filing lawsuits to vindicate predatory lending loans and/or to file for injunctions (assuming these acts are still permitted which we are currently researching). Again people, if you do not stand up for your rights, you will lose them as we have seen. Loan modification fraud has always been illegal and subject to prosecution and we just wish the right to earn a living and provide a legitimate service to some California homeowners who required it would have been protected. Last I checked, the banks were not opening their doors and allowing you to bring in your loan file to your local bank and have them consider you for a loan modification on the spot (heck, the love fees they could even charge a fee which most people would be happy to pay if they could be quickly considered for a modification). Instead, they are put into a 3-12 month pipeline and essentially asked to fend for themselves. A "huge victory" senator Calderon? ____________________________________________________________________________________________________

What is the Produce the Note Defense to Foreclosure? Some basic information learned at Neil Garfield Seminar

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 20 Oct 2009 12:52:16 -0500

The following is general legal information only and should not be relied upon as legal advice. From the years 2001-2008 most loans originated by so called ìlendersî (who lent none of their own money as can usually be verified by looking at the ìlenderísî financials) were securitized and sold on WALL STREET to investors such as mutual funds, municipal funds, hedge funds, insurance companies and foreign investors.

When Wall Street stepped into the picture during these years, the underwriting standards for most, if not all originating ìlendersî dropped significantly as the originating ìlenderî was more incentivized to produced as many assignable loans (or better yet, Security instruments) as it could in order to feed the Wall Street money-making machine that financially craved as many as these loans as could be produced.
The original ìlendersî rarely lent their own money which can be proved by looking at the originating ìlenderísî balance sheet. In fact, the originating ìlenderî had already contracted to sell the loan to a loan aggregator, investment banker or other entity and was to be paid back for the full loan amount plus typically a 2.5% return on the loan originated (i.e. these ìmiddlemenî in the securities transaction were all paid in full and had no interest in the loan and could not be deemed a ìlenderî but rather a conduit in a single securities transaction). Thus, it is clear the ìoriginating lenderî was doing nothing more than using borrower to issue unregulated negotiable securities (certificates of asset backed securities) on behalf of the Wall Street investors who were the true ìlendersî who funded the loan and who are entitled to any payment that may be due on the loan.
To state it another way, the activities of the originating ìlenderî in creating the negotiable security, along with the coordinated and contracted participation of the middlemen loan aggregators, investment bankers and others, was a SINGLE TRANSACTION that was literally designed to encourage predatory loans to be originated by the ìstraw manî or ìstand-inî originating ìlenderî that resulted in providing and issuing negotiable securities for literally anyone that could fog a mirror. Moreover, the more predatory the loan/security (ex. deceptive teaser rates, obscured negative amortization products, balloon payments, YSP, onerous pre-payment penalties, failure to properly underwrite, bait and switch tactics at the signing table, false assertions of a right to refinance, appraisal fraud, unverified stated income loans, etc.) often the more that was paid - higher yields - to both the originating ìlender,î the securities middlemen, and the ultimate investor-beneficiary.
What this created was a system wherein literally anyone with a pulse and FICO score over 500, was able to obtain a mortgage loan in the form and issue the negotiable security that would be sold on Wall Street. For the originating ìlender,î knowing that Wall Street would fund the loan through its investors, incentivized the originating ìlenderî to cut corners on proper underwriting and instead produce as many assignable notes as possible without regard to the ramifications.
The Securitization system was further set up in such a way as to eliminate the risks caused by predatory lending, defaulting loans, and other risks by insuring and cross-collateralizing thousands of loans in a loan pool. In fact, if foreclosure is pursued, we will show that the above referenced loan has in fact been paid-off in full by insurance proceeds, money from various guarantors, by the investors, and/or by the federal government. If the loan has been paid, there is no right to foreclose or threaten foreclosure.
The promissory notes and deeds of trust were separated making the notes unenforceable. MERS was used to track ownership of loan servicing rights and ownership rights and even pretends, at times, to be the beneficiary of many loans even though they do not collect any loan payments, have no right to collect such, and have no other financial interest other than being paid its ordinary fees for the tracking and registration service. MERS typically fails to record any assignments of the loans in the property County Recorderís office. This was done to avoid the paying of fees, among other reasons.
At the end of the day, in many cases a predatory loan was originated by the ìoriginating lenderî who was financed by the Wall Street investor in an elaborate unregistered security scheme. The loans were sliced and diced into loan pools, and many different investors are known to be the so-called ìowners of the noteî although no one, (including MERS, the originating ìlenderî, the Mortgage Loan Aggregators, Investment Bankers and the final Wall Street Investors) can produce a copy of the original promissory note that proves ownership of the ìloanî obligation and right to collect payments and ultimately foreclose.
If there is no note, and/or no properly recorded assignments of such, there can be no enforceable debt obligations. This is not a new principle, but rather embodies age-old principles and requirements of commercial law such as the Uniform Commercial Coded (U.C.C.).
Failure to provide validation of the debt or proof of ownership of the note/recorded assignments SHOULD MAKE A LENDER, LOAN SERVICER, INVESTOR, AND/OR TRUSTEE THINK TWICE BEFORE attempting, or undertaking any of the following acts ñ WHICH MAY BE WORTH CHALLENGING IN THE PROPER CASE (Note: we believe a proper case normally requires other more firmly established legal rights, such as a federal truth in lending violation raising extended rescission rights, fraud, or some other historically recognized ground for filing a lawsuit, rather than merely asserting a bare ìproduce the noteî defense):

1. No foreclosure should be permitted where the California Foreclosure statutes are not followed. Under California Law (California Civil Code Section 2923-2924 et seq. ñ California Foreclosure Law) the ìbeneficiary or their authorized agentî is required to contact the borrower to assess their financial information and discuss modification options. This statutory section requires, it would seem, the TRUE AND ACTUAL BENEFICIARY (I.E. THE TRUE HOLDER OF THE NOTE) to make contact and certify such contacts with the homeowner/borrower prior to making the required declaration in the Notice of Default. Failure to have the TRUE AND ACTUAL BENEFICIARY, AND/OR THEIR AUTHORIZED AGENT (who shall be required to prove first that they are complying with California Foreclosure law on behalf of the TRUE AND ACTUAL BENEFICIARY) precludes and nullifies any attempted foreclosure, and makes any assertion of such, and filing of the Notice of Default with the California County Recorder, fraudulent.
2. No one other than the TRUE AND ACTUAL BENEFICIARY, OR THEIR DULY AUTHORIZED AGENT SHOULD BE ABLE TO ASSERT PROPER STANDING AND PROVE THAT IT IS A REAL PARTY IN INTEREST IN ANY LEGAL PROCEEDING, INCLUDING RESPONDING TO A TEMPORARY RESTRAINING ORDER (TRO); PRELIMINARY INJUNCTION; BANKRUPTCY; OR EVICTION ACTION. As discussed above, without proof of ownership of the note and all required recorded assignments, any attempt to show up and defend any of the above actions (by the ìpretender lendersî and/or their ìagentsî who cannot prove their right to engage in any of the herein referenced activities) will result in attempting to perpetrate a ìfraud on the courtî and might wind up the subject of a motion for sanctions and other proper judicial relief. Moreover, any attorney/trustee attempting to pursue any of the herein referenced actions on behalf of a beneficiary or their agent, who cannot satisfy and prove ownership, would be well advised to consider all of the legal ramifications.
3. No one other than the TRUE AND ACTUAL BENEFICIARY, OR THEIR DULY AUTHORIZED AGENT SHOULD BE ABLE TO ASSERT a right to collect Loan payments (including principal and interest), late fees, attorney fees, etc., and may not legally demand or collect such. All funds illegally collected from California Homeowners might be subject to the appointment of a receiver or the imposition of a constructive trust in a lawsuit demanding a full refund along with damages and attorney fees.

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NOTES: These are just a few basic ideas to consider in regard to debt validation and produce the note theories. Again, it would seem the case might be better if you have a traditional and historically recognized legal theory (aside from commercial code) to bring and to basically try to bend the judges ear on the PRODUCE THE NOTE STRATEGY, as a side issue, rather than the focal point of the lawsuit. Judges may be reluctant to having their courts used as a grounds for testing somewhat novel legal theories where some might see it as an attempt to ìget your home for free when you are in default of the loan documents.î If granted, this may also lead to ìfloodgate litigation.î

As referenced, above, many loan servicers try to keep it secret who the real ìlenderî or ìbeneficiaryî of a loan is. I suppose the securitization process demands secrecy in debt collection to make it work. Of course, this seems counter-intuitive that a person is not entitled to know who their debt is actually owed to. Steve Vondran can be reached at steve@vondranlaw.com or (877) 276-5084.

Are you being charged with a loan modification scam, under DRE investigation, or facing a criminal charge in regard to loan modification activities?

Steve Vondran (Law Offices of Steven C. Vondran) — Wed, 14 Oct 2009 12:27:02 -0500

This blog is to announce a joint venture between the Law Offices of Steven C. Vondran and the Law Office of Daryl Thompson. As many of you who have been reading my blogs probably realize, there was/is an epidemic of loan modification scam and ripoff cases affecting California Homeowners. The California State bar has been inundated by over 1,000 complaints of loan modifications scams and ripoffs per month. In addition, the California Department of Real Estate (DRE) has also experienced the same types of complaints against attorneys, brokers, "attorney-backed" and "attorney based" - law centers and law groups, foreclosure consultants, and others who are engaged in accepting advances fees for loan modifications. The same holds true for the Federal Trade Commission (FTC) and the California Attorney General. These regulators are now out in full force seeking to suspend and revoke real estate and law licenses and in some cases may be seeking to put violators in jail.

Now, our office has stood up for people that we believe were wrongly scammed and victimized by loan modification brokers and attorneys who were literally ripping people off. This will not change. However, one thing we have also noticed is that in this process, there are some people who simply did not qualify for a loan modification and did not therefore receive a loan modification who then complained to the above-mentioned regulatory agencies which in many cases will trigger a investigation and perhaps subsequent investigation, indictment, and/or licensing proceeding. In other words, there are many individuals coming under investigative scrutiny, and while some of these cases are undoubtedly valid, others are likely wrongful forcing the named defendants to justify their activities and otherwise defend themselves.

In some cases, we are hearing that individuals who work for companies deemed to be scam loan modification companies are also being indicted and coming under licensing and other scrutiny. At the end of the day, there is a major "round-up" of companies and individuals facing disciplinary and other legal action in regard to their loan modification activities.

These cases will test many different areas of the law and ethics including:

(1) California Foreclosure Consultant Law

(2) California Laws of Fraud and Deceit

(3) Issues of Breach of Fiduciary Duty

(4) Criminal Law and Criminal Procedure

(5) California Attorney Ethics including fee-splitting, partnership with non-attorneys, runners and cappers, etc.

(6) False Advertising

(7) DRE advance fee agreement rules

(8) Trust Fund Accounting

(9) Search and Seizure

(10) SB 94 (illegal collection of advance fees under the new law which prohibits such)

Thus, the interplay between criminal law and real estate law makes these types of cases challenging to analyze and defend. The join venture between our law firms is designed to help you analyze your case given these multiple legal and ethical issues that must be explored.

If you are being charged with a crime (district attorney of attorney general), or with administrative licensing or disciplinary proceeding (DRE or State Bar) you need legal counsel on your side that can determine what defenses, if any, are available to you. As is typical in any case of this nature, it is often in your best interest not to speak to anyone until you have spoken to your lawyer.

We have provided a website that provides resources involving the regulatory investigations, criminal proceedings, and other resources involving the loan modification fallout at www.ThompsonVondran.com.

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NOTICE:

The foregoing information is general legal information only and shall not be relied upon as legal advice, or a substitution for legal advice. If you have specific legal questions about your foreclosure case, or loan modification case you should seek out the advice of a real estate attorney. In addition, the information posted above may not be 100% complete, accurate or up-to-date. The Law Offices of Steve Vondran is licensed to practice law in the state of Arizona and California and only seeks to solicit and serve Clients in these two states. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona. He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084. Daryl Thompson, Esq. is only licensed to practice law in California.

This is an advertisement and communication pursuant to State Bar Rules. Please do not send us private or confidential information through any of our above-listed websites. Sending us an email does not create an attorney-client relationship (only signing a legal retainer will do this). Past indications and references to success in other cases is not indicative of future results and cannot be relied upon as such. Every case, lender, investor, borrower, and property are different.

Offices:

Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.

California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

KEYWORDS: DRE DEFENSE LAWYER / DRE DEFENSE ATTORNEY / LOAN MODIFICATION CRIMINAL DEFENSE / FORECLOSURE CONSULTANT DEFENSE LAWYER / STATE BAR INVESTIGATION HEARINGS / DRE LICENSING ISSUES / CALIFORNIA ATTORNEY GENERAL LOAN MODIFICATION / CRIMINAL DEFENSE AND DUE PROCESS / ADVANCE FEE AGREEMENT VIOLATIONS / SB 94 LEGAL VIOLATIONS / DISTRICT ATTORNEY LOAN MOD CHARGES

What is this three month trial plan loan modification? Is the lender or loan servicer required to honor the trial agreement?

Steve Vondran (Law Offices of Steven C. Vondran) — Thu, 08 Oct 2009 00:18:35 -0500

What is “Trial Plan Fraud” in the Context of Loan Modifications?

What we are seeing is that lenders such as Countrywide / Bank of America and Indymac (as well as other lenders) are placing Clients into three month “trial plan” loan modification agreements.

These agreements are designed to lead a borrower to believe that they qualify for a loan modification (normally involving interest rate reduction), at least on some type of preliminary basis, and that if they will just send in three or more payments, then the lender will provide them a loan modification.

While they borrower believes the lender/loan servicer is working in good faith to dole out a badly needed loan modification, the lender (at times anyway) has alternative motivations and/or simply cannot honor their trial plan offers calling into question whether the proposed modification and 3 month trial plan offer was ever intended to be honored at all.

See our website at www.TrialPlanFraud.com which aims:

To expose some of the potentially fraudulent, oppressive, false, and deceptive practices we are seeing and hearing as a California and Phoenix, Arizona loan modification law firm (ex. bait and switch tactics and fraudulent inducement to contract);
To alert California and Arizona homeowners to some of the pros and cons of signing trial plan agreement for a loan modification (ex. do you waive your predatory lending rights or truth in lending rescission rights that may exist in return for a trial plan agreement that has more wiggle room than a hula hoop dance floor);
To inform California and Arizona homeowners of some of the vague and ambiguous trail plan clauses to be on the lookout for when they are contemplating what they are signing;

To provide an outlet to foreclosure defense / predatory lending counsel where California and Phoenix borrowers can obtain legal help that may assist in any of the following areas: (a) properly advise clients before they sign these trial plan offers, (b) to demand that these contracts/trial plans be honored when breached by lender, and/or (c) to file “wrongful foreclosure” lawsuits where the lender refuses to play fair and/or honor its contractual or trial plan arrangements.
To keep California and Arizona owners apprised of any legal rights or recent legal developments that may arise in the context of loan modification three month trial period plans.

Here is an Arizona Case to Get you Started (note: all information provided herein is general legal information only and is not intended to be relied upon as legal advice or a substitute for legal advice - if you have specific legal questions please contact an attorney to discuss). Also, please do not file lawsuits relying on any of the following cases without first consulting legal counsel.

Herring v. Countrywide Home Loans, Inc., 2007 WL 2051394 (not reported):

Intro Note: This was an Arizona District Court Case (federal court):

In this case the borrower went into default on their home loan. The lender, Countrywide, offered a repayment plan if the borrower agreed to send in a payment by a certain date, along with the signed agreement. The borrower signed the agreement and faxed in the payment three days prior to the sale date. Deciding it would do as it pleased, Countrywide foreclosed on the Plaintiff’s property (which apparently was purchased by a bona fide purchaser for value - “BFP”).

The Plaintiff filed a lawsuit for breach of contract and for the tort of “wrongful foreclosure” here are a couple of things the court stated in reaching its decision:

BREACH OF CONTRACT CONTRACT CLAIM

In order to succeed on a claim for breach of contract, the Plaintiff must prove the existence of a contract, its breach by CHL, and resulting damages. Graham v. Asbury, 540 P.2d 656, 657 (Ariz. 1975). A contract is formed when there is manifestation of mutual assent to the exchange and a consideration. Hill-Shaefer partnership v. Chilson Family Trust, 799 P.2d 810, 815 (Ariz. 1990).
The Repayment Plan Agreement indeed states that if the Plaintiff signed and returned it within five days, and the stated sum of $2,978.25 was paid, the Trustee's Sale would be postponed. It is undisputed that the contract was accepted then ratified by the Plaintiff's signature and submitted via fax to CHL. The consideration for the agreement, $2,978.25, was submitted the same day via electronic funds. Despite Plaintiff's clear compliance with her commitment to CHL, the Defendant failed to adhere to its obligation to postpone the Trustee's Sale.

WRONGFUL FORECLOSURE CLAIM

Although this Court is aware that the state of Arizona has yet to recognize the tort of Wrongful Foreclosure, it is also clear that Arizona courts have not refused to recognize it either. Furthermore, other jurisdictions have recognized this tort, and based on the undisputed facts of this matter, the Court finds it appropriate to join those jurisdictions and hold the Defendant liable for wrongfully foreclosing on the Plaintiff's home. See Heritage Creek Development Corp v. Colonial Bank, 601 S.E. 2d 842 (Ga.App.Ct. 2004).
Wrongful Foreclosure is a tort that “exists as a statutory duty .... to exercise fairly and in good faith the power of sale in a deed to secure [a] debt.” A breach of this duty is a tort compensable at law. Boaz v. Latson, 580 S.E.2d 572, 577 (Ga. Ct. of App.2003)
Arizona Revised Statute Section 33-807(A) confers a duty upon the trustee of a trust deed to only sell the property at issue “after a breach or default.” The statutory provision states:

“By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold, in the manner provided in this chapter, after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed. At the option of the beneficiary, a trust deed may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property in which event chapter 6 of this title governs the proceedings. The beneficiary or trustee shall constitute the proper and complete party plaintiff in any action to foreclose a deed of trust. The power of sale may be exercised by the trustee without express provision therefor in the trust deed.”

The Plaintiff's well founded arguments focus on the fact that her default was cured when she executed the Repayment Plan Agreement and fully complied with its terms. The Court agrees. Furthermore, on April 15, 2005, the Plaintiff executed a Repayment Plan Agreement and submitted funds to cure her default and postpone the sale. Clearly, the Plaintiff was operating under the belief that the Defendant was also upholding its duty under the agreement.
Had the Defendant acted in compliance with the law, certainly injunctive relief would have been wholly unnecessary.

Bottom Line: In this case, the Defendant induced Plaintiff to send in her payment check and agreement in order to prevent foreclosure. Plaintiff did what a reasonable person would do who wanted to save her home (i.e. she complied with the terms of the repayment plan). This is a similar situation to what we are seeing with Trial Plans under President Obamas Making Home Affordable loan modification program. Plantiff’s are induced to believe that by making the required three payments under the trial plan, and sending in the signed agreement that incidentally has a signature space not only for the borrower, but also for the lender, that the default would be cured and the foreclosure sale date averted. In many cases, it appears the lenders and loan servicers are merely seeking to draw additional payments out of the homeowner while they decide when to “time-release” the property into the foreclosure marketplace. If there was no intent to provide a modification, wouldn’t this be false, deceptive, fraudulent and potentially a breach of contract?

To make a legal assessment of your case, the facts of the case, and the agreement must be reviewed. See also www.TrialPlanFraud.com

For more information or questions, contact Attorney Steve Vondran at (877) 276-5084 or email steve@vondranlaw.com

We are licensed to practice law in California and Arizona only and only seek to solicit clients in these states. This is an advertisement and communication pursuant to state bar rules. No attorney-Client relationship is formed by sending us an email or calling us. Only a signed retainer agreement will suffice for this purpose. Any legal citations provided above may be incomplete or inaccurate.

Our Offices:

Newport Beach: CA: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

(B) Phoenix, Arizona: 2415 E. Camelback Road, Suite 700, Phoenix, Arizona 85016

KEYWORDS: FORECLOSURE DEFENSE / THREE MONTH TRIAL PLAN / 3 MONTH TRIAL PLAN FOR LOAN MODIFICATION / LOAN MODIFICATION ATTORNEY / LOAN MODIFICATION LAWYER / ARIZONA FORECLOSURE DEFENSE / CALIFORNIA FORECLOSURE DEFENSE / PREDATORY LENDING LAWYER / PREDATORY LENDING ATTORNEY / BREACH OF CONTRACT TRIAL PLAN / TRIAL PLAN FRAUD / PHOENIX ARIZONA REAL ESTATE LAWYER / NEWPORT BEACH REAL ESTATE LAWYER / CONTRACT REVIEW FOR TRIAL PLAN / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAWYER / NOTICE OF SALE / NOTICE OF DEFAULT / TRUSTEE SALE

California state bar reveals loan mod attorneys / lawyers under investigation......

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 06 Oct 2009 11:30:06 -0500

While all persons and innocent until proven guilty, if you are using on the following loan modification attorneys in California, you need to contact your lender to make sure they are actually working for you. We are getting calls from people who are not sure if their file is being worked on. Call your lender and ask if your representative has been working on your case. Here is the list of lawyers under California State Bar Investigation:

David Arase, [#233705], Costa Mesa, Arase Law Firm and National Housing Assistance Stephen Burns, [#113371], Los Angeles, Legal Group Network Robert Buscho, [#122556], Fullerton, United Law Group Nicholas Chavarela, [#251632], Santa Ana, Rodis Law Group and America’s Law Group Steven Feldman,[#103676], Mission Viejo, Feldman Law Center Eric Johnson, [#224065], Culver City, Avantgarde Group Paul Lucas, [#163076], Aliso Viejo, Lucas Law Center Brandon Moreno, [#233750], Santa Ana, U.S. Foreclosure Relief Corp. Jeffrey Nemerofsky,[#213014], Laguna Niguel, U.S. Advocacy Law Group and U.S. Financial Products Gregory Paiva, [#207218], Ontario, Law Offices of Gregory Paiva Adrian Pomery, [#249664], Orange, U.S. Foreclosure Relief Corp. Ronald Rodis, [#181873], Newport Beach, Rodis Law Group and America’s Law Group Mark Shoemaker, [#134828], Long Beach, Advocates for Fair Lending Marc Tow, [#78429], Newport Beach, Marc Tow and Associates Michael Yellin, [#255050], Los Angeles, A Fresh Start Loan Modification Sean Rutledge, [#255938], Irvine, United Law Group.

Here is a direct link to the STATE BAR ARTICLE THAT DISCUSSES LOAN MODIFICATION LAWYERS UNDER INVESTIGATION.

http://calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/October2009&sCatHtmlPath=cbj/2009-10_TH_03_foreclosure.html&sCatHtmlTitle=Top%20Headlines

IF YOU HAVE BEEN VICTIMIZED BY A LAWYER OR AN ATTORNEY-BACKED OR ATTORNEY-BASED SCHEME, FILE A "FEE ARBITRATION" WITH THE CALIFORNIA STATE BAR.

CALIFORNIA HOMEOWNER SEMINAR - NEWPORT BEACH 2009 - LEARN HOW TO MODIFY YOUR OWN LOANS

Steve Vondran (Law Offices of Steven C. Vondran) — Fri, 18 Sep 2009 13:28:27 -0500

SEMINAR DATE: OCTOBER 24, 2009 - NEWPORT BEACH (ADDRESS TO FOLLOW)

TIME: 8:30 A.M. TO 7:00 PM.

COST: $475 PER PERSON (CALL 877-276-5084 TODAY TO RESERVE YOUR SEATS)

LUNCH: THERE WILL BE A 1 HOUR LUNCH BREAK

INTRODUCTION: CALIFORNIA STATE LEGISLATURE IS TRYING TO PASS A LAW CALLED SB94 THAT, IF PASSED, WOULD PREVENT ATTORNEYS AND MORTGAGE BROKERS FROM ACCEPTING ADVANCE FEES FOR PERFORMING LOAN MODIFICATIONS. IF THAT HAPPENS, CALIFORNIA HOMEOWNERS WILL LARGELY BE RELEGATED TO USING FREE HOUSING COUNSELORS THAT THE LENDERS WOULD LOVE YOU TO USE INSTEAD OF TRAINED AND EXPERIENCED LOAN MODIFICATION ATTORNEYS AND BROKERS. THIS SEMINAR IS DESIGNED TO GIVE YOU THE TOOLS YOU NEED TO HANDLE YOUR OWN LOAN MODIFICATION IN THE EVENT THE LENDER LOBBY PREVAILS IN CALIFORNIA.

THIS IS YOUR CHANCE TO SPEAK WITH SEVERAL PROFESSIONALS IN THE PREDATORY LENDING / FORECLOSURE DEFENSE / LOAN MODIFICATION FIELDS TO DISCUSS YOUR OPTION ARM LOAN, INTEREST-ONLY LOANS, SUBPRIME ARM LOANS AND THE LIKE. CALL TODAY TO RESERVE YOUR SEAT (877) 276-5084. OR VISIT US ON WWW.LOANMODRADIO.COM

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SEMINAR AGENDA

I. THE MATHEMATICS OF MODIFICATION - Mark Heller, Principal - Imperial Home Mortgage (8:30 - 11:30 a.m.)

Bio: Mr. Heller is the owner of Imperial Home Mortgage a Northern California Real Estate Brokerage and licensed loan modification company. He is one of the early entrants into the loan modification field and has been helping hundreds of homeowners navigate the loan modifcation process in California. Mr. Heller also hosts a radio show that aims to educate California homeowners and he is a licensed DRE instructor.

Mr. Heller will be discussing the following topics (time permitting):

Understanding Obama’s Making Home Affordable Plan
Other Modification Programs
Packaging yourself up for loan modification success
The mental side of managing your loan modification
What to do if you are denied a loan modification
Question and Answer Session

LUNCH BREAK - 11:30-12:30 p.m. (NUMEROUS RESTAURANTS IN THE AREA)

II. THE LEGAL SIDE OF LOAN MODS - Steve Vondran, Attorney at Law (12:30-4:00 p.m.)

Bio: Mr. Vondran is an Attorney licensed to practice law in the states of Arizona and California. He also hold real estate broker licenses in both states. Prior to becoming an attorney, Mr. Vondran worked in the mortgage industry as a loan officer. He left the mortgage industry when pitching negative amortization option ARM loans became required practice. Mr. Vondran has helped over 50 companies get properly licensed to perform loan modifications in the state of California and has been performing loan modifications for California homeowners over the past 15 months since the literal inception of the loan modification business.

Mr. Vondran will be discussing the following topics (time permitting):

Understanding the difference between pre-litigation and litigation loan mods
The Qualified Written Request (QWR) - Understanding what they are and how to use them
Securitization of Loans - General Overview
Truth in Lending request to Identify the Holder of the Loan or Master Servicer
Exploring the “Produce the Note” foreclosure defense strategy
Creating leverage for a loan modification where often their is none
Attacking option ARM loans
Forensic Loan Audits (Truth in Lending and RESPA overview)
Requests for Loan Modifications under California Civil Code Section 2923.6
Foreign Language COntracts Act (California Civil Code Section 1623 update)
Exploring alternatives to loan modification (short sale /deed-in-lie / bankruptcy)
The Fair Debt Collection Practices Act (FDCPA)
SB 94, Advance Fees, and the Politics of Loan Modification
Loan Modification Scam Red Flags (Discussing the “Attorney-backed” phenomena)
Foreclosure Defense: Understanding the Temporary Restraining Order (TRO) and Preliminary Injunction process in California
Question and Answer Session

SHORT SALE OVERVIEW - Speaker TBD (4:30 - 5:00 p.m.)

BANKRUPTCY OVERVIEW - Speaker TBD (5:00-5:30 p.m.)

V. QUESTION AND ANSWER WITH PANEL GUESTS (5:30-7:00 p.m.)

Note: Short 15 Minute Breaks will also be provided during each section.

SIGN UP NOW TO RESERVE YOUR SEATS FOR THIS EXCITING INFORMATION SEMINAR. IF SB94 PASSES, MANY HOMEOWNERS WILL BE FORCED TO FIGHT FOR THEIR OWN LOAN MODIFICATIONS. GET THE TIPS, TRICKS, TACTICS, AND STRATEGIES YOU NEED NOW TO BEST PRESENT YOUR CASE FOR LOAN MODIFICATION AND/OR PREPARE FOR FORECLOSURE DEFENSE LITIGATION WHEN THE LENDER REFUSES TO MODIFY.

CALL TODAT TO RESERVE YOUR SEATS (877) 276-5084 OR VISIT US ON WWW.LOANMODRADIO.COM / SEMINAR.

NOTE: WE RESERVE THE RIGHT TO CANCEL THE SEMINAR IF A MINIMUM NUMBER OF ATTENDEES IS NOT REACHED. IN THIS EVENT, WE WILL NOTIFY YOU BY EMAIL AND WILL PROVIDE A REFUND TO YOUR CREDIT CARD WITHIN 3 DAYS. SEMINAR DATE AND TOPICS ARE SUBJECT TO CHANGE WITHOUT NOTICE.

THIS IS AN ADVERTISEMENT AND COMMUNICATION PURSUANT TO STATE BAR RULES.

Produce the Note - Should Foreclosing Parties be required to prove their status under CA foreclosure laws?

Steve Vondran (Law Offices of Steven C. Vondran) — Wed, 16 Sep 2009 20:16:15 -0500

The following is California Foreclosure Statute. I have made some comments of a general nature in italics below certain sections. These note are not to be relied on as legal advice, but merely provide food for thought on the "produce the note" strategy that we have been hearing about, and some possible ways to raise these claims in a Court of Law. I recently attended a California State Bar Approved course on the Securitization of Note and the Produce the Note Strategy. My comments present just my own personal opinions and thoughts on the matter. For specific legal advice, especially a pre-requisite before filing any lawsuit, consult a qualified foreclosure defense attorney or predatory lending lawyer to discuss. The comments below may not be accurate, valid, or complete.

CIVIL CODE
SECTION 2920-2944.5

2920. (a) A mortgage is a contract by which specific property,
including an estate for years in real property, is hypothecated for
the performance of an act, without the necessity of a change of
possession.
(b) For purposes of Sections 2924 to 2924h, inclusive, "mortgage"
also means any security device or instrument, other than a deed of
trust, that confers a power of sale affecting real property or an
estate for years therein, to be exercised after breach of the
obligation so secured, including a real property sales contract, as
defined in Section 2985, which contains such a provision.

Note: This Section indicates there must be a "breach of the obligation" before foreclosure is proper. Where a lender cannot prove there was a breach of the obligation OWED TO THEM, then a foreclosure by that party or its agents should not be permitted. Therefore, a foreclosing party should be forced to prove (a) that there was an obligation owed to them (i.e. show us the original promissory note) and (b) that there was a breach of the note (ex. non-payment of scheduled payments and proper accounting of all payments received). If we send a qualified written request under RESPA Section 6 to produce a copy of the note properly endorsed, assigned and recorded, and the lender fails to comply (i.e. they cannot show possession of the note), how are we to know for sure that the obligation is owed to them, and not some other entity that claims an interest in the note?

2921. A mortgage may be created upon property held adversely to the
mortgagor.

2922. A mortgage can be created, renewed, or extended, only by
writing, executed with the formalities required in the case of a
grant of real property.

2923. The lien of a mortgage is special, unless otherwise expressly
agreed, and is independent of possession.

2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized
agent may not file a notice of default pursuant to Section 2924 until
30 days after contact is made as required by paragraph (2) or 30
days after satisfying the due diligence requirements as described in
subdivision (g).

Note: It seems that this section of the code would require that only the TRUE beneficiary of the Loan, and/or the TRUE Trustee of the loan (or other proper agent) be permitted to execute a file a notice of default and thus initiate the foreclosure action. In order to be able to file the NOD, and start the foreclosure clock running, the Beneficiary should be required, if requested, to prove that they hold the obligation and the note that entitles them to payment. In other words, they should be required to prove that they are in lawful possession of the promissory note (just like if you were suing someone in small claims court for not paying you on a IOU, you would certainly want to produce the IOU (show possession of) as proof of the debt owed. Unlike an IOU, in real property transactions, all interests in real estate (including the promissory note and deed of trust, are required to be in writing under the statute of frauds). 

(2) A mortgagee, beneficiary, or authorized agent shall contact
the borrower in person or by telephone in order to assess the
borrower's financial situation and explore options for the borrower
to avoid foreclosure. During the initial contact, the mortgagee,
beneficiary, or authorized agent shall advise the borrower that he or
she has the right to request a subsequent meeting and, if requested,
the mortgagee, beneficiary, or authorized agent shall schedule the
meeting to occur within 14 days. The assessment of the borrower's
financial situation and discussion of options may occur during the
first contact, or at the subsequent meeting scheduled for that
purpose. In either case, the borrower shall be provided the toll-free
telephone number made available by the United States Department of
Housing and Urban Development (HUD) to find a HUD-certified housing
counseling agency. Any meeting may occur telephonically.

Note: Again, this seems to require the REAL and TRUE "Mortgagee, Beneficiary, or Authorized Agent" to contact the borrower and discuss loan modification options. This begs the question,who is the TRUE beneficiary of the loan? First, what is a "beneficiary." According to caselaw, the beneficiary must be the person entitled to performance of the promised activity, usually repayment under a note. See Watkins v. Bryant (1891) 91 C 492, 27P.775. It seems you would only be entitled to repayment if you can show possession of the promissory note that entitles you to such. Otherwise, what's to say that your next door neighbor cannot make a claim for repayment of your note and call themselves the beneficiary of your note? Again, if someone is the beneficiary of the obligation, shouldn't there be a legal requirement to prove it? And if the "agent of the beneficiary" is contacting your (i.e. a loan servicer) shouldn't they be required to prove both their agency status, and the fact that they are working on behalf of the TRUE beneficiary entitled to repayment? If there is no promissory note in proper possession of a party seeking to enforce an obligation (i.e. to foreclose), and which TRUE beneficiary has the obligation to contact a defaulting lender under California law, but where this is not being properly performed by a TRUE beneficiary or their agent, doesn't there seem to be some defects in the threatened foreclosure?

(b) A notice of default filed pursuant to Section 2924 shall
include a declaration from the mortgagee, beneficiary, or authorized
agent that it has contacted the borrower, tried with due diligence to
contact the borrower as required by this section, or the borrower
has surrendered the property to the mortgagee, trustee, beneficiary,
or authorized agent.

NOTE: Again, if the TRUE and ACTUAL beneficiary (the one in lawful possession of the promissory note) is not the one contacting the defaulting borrower to assess their finances and discuss loan modification solutions) is not the party making the declaration in the Notice of Default, doesn't this also cast defects on the foreclosure process being sought against the borrower?

(c) If a mortgagee, trustee, beneficiary, or authorized agent had
already filed the notice of default prior to the enactment of this
section and did not subsequently file a notice of rescission, then
the mortgagee, trustee, beneficiary, or authorized agent shall, as
part of the notice of sale filed pursuant to Section 2924f, include a
declaration that either:

Note: I think you are getting the idea. We need proper parties doing taking the required action under the California Foreclosure Statutes. Why should the proper documentation not be available especially from sophisticated financial entities and investors who should know the need to comply with formal requirements that are needed to protect their investment? Should a homeowner not be permitted to challenge these sophisticated financial persons to ensure they are the proper parties to initiate the threatened foreclosure? Does a court exceed it powers if it requires such documentation, when a legal challenge is made to protect ones home from foreclosure in an action seeking an injunction? When something as serious as someones home is on the line is it too much to require proper documentation?

CONCLUSION: The point here is that it seems that the California State Legislature, in enacting the California Foreclosure sections set forth above, requires that the TRUE AND PROPER PARTIES (i.e. the mortgagee, beneficiary, or trustee, or their properly authorized agents), should be the parties that are required to engage in the required foreclosure process and procedures such as contacting the borrower, assessing their financial situations, discussing loan modification options, filing notice of defaults with the required declarations, filing the notice of sale, and ultimately conducting and carrying our foreclosure sales. If a California Homeowner wishes to challenge (through the filing of a temporary restraining order, or seeking a preliminary injunction to halt foreclosure) whether or not these entities are the proper entities and the TRUE parties permitted to actually foreclose - especially where the loan servicer ignores or fails to comply with a RESPA Qualified Written Request which sought to establish the identity of the true beneficiary - shouldn't the Courts entertain the Borrower's final stand to save their property from foreclosure and require that the foreclosing entity prove that they are the real beneficiary, real trustee, or agent of the real party? To fail to require this would be akin to allowing a neighbor to foreclose on his neighbors property by presenting false claims of default, false county recording filings, false attempts at modification, etc. As the financial entities were in the best position to safeguard their financial instruments and investments and to ensure their claims are enforceable, is it too much to make them prove, under the California Foreclosure laws, that they are the Real Party entitled to Act? Isn't that what our legislators contemplated when they passed the above referenced foreclosure sections?

Although there is sparse legal authority on "produce the note" in California and Arizona, is it such a novel concept that could not be considered in regard to proper application and enforcement of the Foreclosure laws? We believe that produce the note strategy should be permitted to be heard where other valid legal grounds exist to seek an injunction or TRO (such as a truth in lending rescission claim or wrongful foreclosure action, or 1632 foreign language law violation that seeks rescission), where other good faith grounds exist to file a lawsuit, it would seem natural and proper to raise the produce the note defense and force the lender, loan servicer, or whatever entity that is claiming the legal right to foreclose on your property, and your dreams, to prove it has the legal right to do so. Again, this is just our opinion and reasonable minds may differ on this issue.

ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084

Offices:

Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020.

California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

Our Real Estate Law Services:

Loan Modifications / Loan Workouts
Commercial Lease Modifications
Broker Advance Fee Agreements (Residential and Commercial)
DRE audits, hearings and investigations
Real Estate Broker admissions cases
Foreclosure Defense
Predatory Lending
Mortgage Law
Phoenix Real Estate Zoning Attorney
Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207
Real Estate Arbitration, Litigation and Mediation
Foreclosure Consultant Contracts
Real Estate LLC’s
Real Estate Partnership Law
Quiet Title Actions
Forensic Loan Audits (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.)

______________________________________________________________________________

KEYWORDS: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER / TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION ATTORNEY / NEWPORT BEACH LOAN MODIFICATION LAWYER / NEWPORT BEACH LOAN MODIFICATION ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAW.

______________________________________________________________________________

HELPFUL LOAN MODIFICATION LINKS:

SUBMIT YOUR LOAN MODIFICATION SCENARIO: WWW.LOANMODSOLUTIONS.NET
SUBMIT YOUR LOAN MODIFICATION SCAM SCENARIO: WWW.LOANMODIFICATIONRIPOFF.NET
RESIDENTIAL AND COMMERCIAL ADVANCE FEE AGREEMENTS: WWW.ADVANCEFEECONTRACT.COM
CALIFORNIA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM
ARIZONA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM
STEVE VONDRAN WEBSITE WWW.VONDRANLAW.COM
INFORMATION ON FORENSIC LOAN AUDITS: WWW.ATTORNEYMODS.COM
LOAN MODIFICATION RADIO SHOW: WWW.LOANMODRADIO.COM

______________________________________________________________________________

LOAN MOD FREQUENTLY ASKED QUESTIONS (FAQ):

Does everyone qualify for a loan modification? No. In general, there are requirements that must be met. In some cases you may have grounds to file a lawsuit which may create some leverage for a loan modification.
Am I able to sue my ender for predatory lending practices? In some cases (ex. truth in lending violation cases) you may have grounds to file a lawsuit. Other grounds such as wrongful foreclosure may also exist. Contact an attorney and ask about forensic loan audits.
What is a forensic loan audit? This is basically reconstructing the loan to see if you were a victim of predatory lending loan practices including truth in lending violations, RESPA violations fraud, and the like. Of particular importance is Option Arm Loans. The strength of the audit findings will often depend on whether the original lender is still profiting from the predatory loan or whether it is in the hands of a “holder in due course.” Call us to discuss.
What types of loan modifications are lenders providing? Sample modifications may include interest rate reductions, interest-only payments, loan forbearance, principle loan balance reduction (our firms has documentable evidence of principal loan balance reduction on Wachovia and World Savings Option Arm Loans. If you have a Wachovia or World Savings loan please contact us as soon as possible to submit your loss mitigation package, in many cases, we offer a 100% refund if you do not sign a loan modification agreement.
What is usually needed to get a loan modification? In most cases, you will need to have documentable income, an unaffordable monthly mortgage payment (high housing ratio), and a verifiable hardship (ex. loss of job, etc.). In lieu of these typical requirements, you need strong evidence of predatory lending violations such as Truth in Lending to support a case for modification. Typically in the form of an extended three year right to rescind your loan along with a reasonable plan for tender. Contact us to discuss TILA claims.
How long do I have to try to get a loan modification? In California, when you get a notice of default you have 90 days before you can expect to get a notice of sale. The Notice of Sale will provide notice that the house may be sold after 20 days. During these 110 days, you still have time to negotiate a loan modification. Contact us to discuss your case. Do not waste time.
Can I seek my own modification? Absolutely. However, you should prepare to spend alot of time dealing with lenders and loan servicers who, frankly, could care very little about your rights. In addition, a lawyer will be able to send out a qualified written request, demand to produce the holder of the loan, and ensure that your legal rights are protected and that the lender follows the foreclosure laws. A law firm can also perform a forensic loan audit that may reveal additional rights and remedies and potentially leverage for a loan modification.

_____________________________________________________________________________

NOTICE:

What is a Qualified Written Request (QWR) under the Real Estate Settlement Procedures Act (RESPA)oran

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 15 Sep 2009 11:08:04 -0500

Here is some basic information on RESPA qualified written requests as provided under the Real Estate Settlement Procedure Act (RESPA). RESPA COVERAGE: RESPA applies to a “federally related mortgage loan,” which is defined as:

The term “federally related mortgage loan” includes any loan (other than temporary financing such as a construction loan) which is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from one to four families, including any such secured loan, the proceeds of which are used to prepay or pay off an existing loan secured by the same property; and is made in whole or in part by any lender the deposits or accounts of which are insured by any agency of the Federal Government, or is made in whole or in part by any lender which is regulated by any agency of the Federal Government, or is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by the Secretary or any other officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary or a housing or related program administered by any other such officer or agency; or is intended to be sold by the originating lender to the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Home Loan Mortgage Corporation, or a financial institution from which it is to be purchased by the Federal Home Loan Mortgage Corporation; or is made in whole or in part by any “creditor”, as defined in 15 U.S.C.A. § 1602(f) who makes or invests in residential real estate loans aggregating more than $1,000,000 per year, except that for the purpose of this chapter, the term “creditor” does not include any agency or instrumentality of any State.

QUALIFIED WRITTEN REQUEST UNDER 12 U.S.C. 2605 et seq. (RESPA - QWR) A. THE LAW: 12 U.S.C. § 2605 STATES: (1) Qualified written request:

For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that includes, or otherwise enables the servicer to identify, the name and account of the borrower; and includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower. (RESPA therefore provides the explicit statutory right for a borrower to request "other information" as deemed necessary to the borrower).

NOTE: This Section makes clear that a Borrower may request "other information" (with no limits placed on what constitutes "other information"). Therefore, please do not state that this request "goes beyond that which is permitted by RESPA." RESPA places no statutory limitiations on the information which can be requested. A loan servicer is not therefore entitled to ignore this provision merely because of any perceived inconvenience in responding.

B. LEGALLY MANDATED LOAN SERVICER ACTIONS REQUIRED (LOAN SERVICER DUTY): (1) Action with respect to inquiry:

Not later than 60 days (excluding legal public holidays, Saturdays, and Sundays) after the receipt from any borrower of any qualified written request under paragraph (1) and, if applicable, before taking any action with respect to the inquiry of the borrower, the servicer shall make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);

After conducting an investigation, provide the borrower with a written explanation or clarification that includes to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or after conducting an investigation, provide the borrower with a written explanation or clarification that includes information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.

NOTE: This makes clear that 2605 requires the lender or loan servicer to take action includling providing information requested by the borrower, conducting an investigation of the borrower's concerns, providing an explanation or clarification of the reasons the servicer believes the account is correct and, if necessary, making appropriate corrections to the borrower's account. Once a borrower makes a “qualified written request" RESPA requires loan servicing companies to: (a) provide written notice to the borrower (within 20 days) acknowledging receipt of the request, (b) take appropriate action with respect to the inquiry either by making corrections or providing a written explanation or clarification; and (c) protect the borrower's credit rating by not reporting to credit bureaus the overdue payments relating to request for 60 days after receiving the request.

(3) Protection of credit rating:

During the 60-day period beginning on the date of the servicer's receipt from any borrower of a qualified written request relating to a dispute regarding the borrower's payments, a servicer may not provide information regarding any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency.

NOTE: This Section provides for damages for any negative credit which is reported to any credit bureau which causes damage to my Clients.

C. RECOVERABLE DAMAGES FOR NON-COMPLIANCE:

Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts:

(1) Individuals:

In the case of any action by an individual, an amount equal to the sum of any actual damages to the borrower as a result of the failure; and any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.

(2) Class actions:

In the case of a class action, an amount equal to the sum of any actual damages to each of the borrowers in the class as a result of the failure; and any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not greater than $1,000 for each member of the class, except that the total amount of damages under this subparagraph in any class action may not exceed the lesser of $500,000; or 1 percent of the net worth of the servicer.

(3) Costs:

In addition to the amounts under paragraph (1) or (2), in the case of any successful action under this section, the costs of the action, together with any attorneys fees incurred in connection with such action as the court may determine to be reasonable under the circumstances.

D. "ACTUAL DAMAGES" MAY PERMIT RECOVERY OR EMOTIONAL DAMAGES SUFFERED DUE TO NON-COMPLIANCE:

NOTE: If a lender or loan servicer breaches this duty, a borrower may recover any “actual damages” proximately caused. "Actual damages" includes time spent on the case (and lost wages if required to be away from work), attorney fees, and there is legal precedent for the recovery of emotional distress damages for a loan servicer's failure to comply with RESPA. See Johnstone v. Bank of America, N.A., 173 F.Supp.2d 809, 814-16 (N.D.Ill.2001) (RESPA plaintiffs may recover for mental suffering); Ploog v. HomeSide Lending, Inc., 209 F.Supp.2d 863, 870 (N.D.Ill.2002); and Rawlings v. Dovenmuehle Mortgage, Inc., 64 F.Supp.2d 1156, 1166 (M.D.Ala.1999). See also Wanger v. EMC Mortgage Corp., 103 Cal.App.4th 1125, 127 Cal.Rptr.2d 685, Cal.App. 5 Dist.,(2002)

___________________________________________________________________________________________________ ABOUT US:

The Law Offices of Steve Vondran in licensed to practice law in California and Arizona. Steve Vondran, Esq. is a licensed attorney and real estate broker in California and Arizona.

He can be reached by email at steve@vondranlaw.com or toll free (877) 276-5084 Offices: Arizona Office (Esplanade): 2415 E. Camelback Road, Suite 700, Phoenix, AZ, 85020. California Office (Fashion Island): 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660 ___________________________________________________________________________________________________ Our Real Estate Law Services: Loan Modifications / Loan Workouts Commercial Lease Modifications Broker Advance Fee Agreements (Residential and Commercial) DRE audits, hearings and investigations Real Estate Broker admissions cases Foreclosure Defense Predatory Lending Mortgage Law Phoenix Real Estate Zoning Attorney Phoenix Eminent Domain Attorney / Inverse Condemnation / Prop 207 Real Estate Arbitration, Litigation and Mediation Foreclosure Consultant Contracts Real Estate LLC’s Real Estate Partnership Law Quiet Title Actions Forensic Loan Audits (Truth in Lending (TILA), RESPA, HOEPA, Fraud, etc.) __________________________________________________________________________________________________

KEYWORDS: ARIZONA FORECLOSURE DEFENSE ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE ATTORNEY / PHOENIX FORECLOSURE DEFENSE LAWYER / SCOTTSDALE FORECLOSURE DEFENSE ATTORNEY / SCOTTSDALE FORECLOSURE DEFENSE LAWYER / ORANGE COUNTY PREDATORY LENDING LAWYER / ORANGE COUNTY FORECLOSURE DEFENSE ATTORNEY / ORANGE COUNTY FORECLOSURE DEFENSE LAYWER / TRUTH IN LENDING LAWYER / TRUTH IN LENDING ATTORNEY / SOUTHER CALIFORNIA MORTGAGE LAW ATTORNEY / MORTGAGE LAWYER / RIVERSIDE FORECLOSURE ATTORNEY / RIVERSIDE FORECLOSURE LAWYER / RESPA LAWYER / RESPA ATTORNEY / FORECLOSURE DEFENSE LAW / PHOENIX LOAN MODIFICATION ATTORNEY / PHOENIX LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION LAWYER / ORANGE COUNTY LOAN MODIFICATION ATTORNEY / NEWPORT BEACH LOAN MODIFICATION LAWYER / NEWPORT BEACH LOAN MODIFICATION ATTORNEY / CALIFORNIA FORECLOSURE DEFENSE LAWYER / PREDATORY LENDING LAW SAN DIEGO.

___________________________________________________________________________________________________ HELPFUL LOAN MODIFICATION LINKS:

SUBMIT YOUR LOAN MODIFICATION SCENARIO: WWW.LOANMODSOLUTIONS.NET SUBMIT YOUR LOAN MODIFICATION SCAM SCENARIO: WWW.LOANMODIFICATIONRIPOFF.NET RESIDENTIAL AND COMMERCIAL ADVANCE FEE AGREEMENTS: WWW.ADVANCEFEECONTRACT.COM CALIFORNIA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM ARIZONA FORECLOSURE DEFENSE ATTORNEY STEVE VONDRAN WEBSITE: WWW.VONDRANLEGAL.COM STEVE VONDRAN WEBSITE WWW.VONDRANLAW.COM INFORMATION ON FORENSIC LOAN AUDITS: WWW.ATTORNEYMODS.COM LOAN MODIFICATION RADIO SHOW: WWW.LOANMODRADIO.COM

___________________________________________________________________________________________________ LOAN MOD FREQUENTLY ASKED QUESTIONS (FAQ):

(1) Does everyone qualify for a loan modification? No. In general, there are requirements that must be met. In some cases you may have grounds to file a lawsuit which may create some leverage for a loan modification.

(2) Am I able to sue my ender for predatory lending practices? In some cases (ex. truth in lending violation cases) you may have grounds to file a lawsuit. Other grounds such as wrongful foreclosure may also exist. Contact an attorney and ask about forensic loan audits.

(3) What is a forensic loan audit? This is basically reconstructing the loan to see if you were a victim of predatory lending loan practices including truth in lending violations, RESPA violations fraud, and the like. Of particular importance is Option Arm Loans. The strength of the audit findings will often depend on whether the original lender is still profiting from the predatory loan or whether it is in the hands of a “holder in due course.” Call us to discuss.

(4) What types of loan modifications are lenders providing? Sample modifications may include interest rate reductions, interest-only payments, loan forbearance, principle loan balance reduction (our firms has documentable evidence of principal loan balance reduction on Wachovia and World Savings Option Arm Loans. If you have a Wachovia or World Savings loan please contact us as soon as possible to submit your loss mitigation package, in many cases, we offer a 100% refund if you do not sign a loan modification agreement.

(5) What is usually needed to get a loan modification? In most cases, you will need to have documentable income, an unaffordable monthly mortgage payment (high housing ratio), and a verifiable hardship (ex. loss of job, etc.). In lieu of these typical requirements, you need strong evidence of predatory lending violations such as Truth in Lending to support a case for modification. Typically in the form of an extended three year right to rescind your loan along with a reasonable plan for tender. Contact us to discuss TILA claims.

(6) How long do I have to try to get a loan modification? In California, when you get a notice of default you have 90 days before you can expect to get a notice of sale. The Notice of Sale will provide notice that the house may be sold after 20 days. During these 110 days, you still have time to negotiate a loan modification. Contact us to discuss your case. Do not waste time.

(7) Can I seek my own modification? Absolutely. However, you should prepare to spend alot of time dealing with lenders and loan servicers who, frankly, could care very little about your rights. In addition, a lawyer will be able to send out a qualified written request, demand to produce the holder of the loan, and ensure that your legal rights are protected and that the lender follows the foreclosure laws. A law firm can also perform a forensic loan audit that may reveal additional rights and remedies and potentially leverage for a loan modification.

___________________________________________________________________________________________________ NOTICE:

How to file for a TRO or Preliminary Injunction in an effort to Stop foreclosure in California

Steve Vondran (Law Offices of Steven C. Vondran) — Sat, 22 Aug 2009 19:25:30 -0500

Don't forget to hear our loan modification radio show on every Monday & Friday from 12:30 pm to 1:00 pm

The Process of Obtaining an Injunction Against Foreclosure in California

INTRODUCTION: The following information is being posted as a public service to all california homeowners. many of my clients cannot afford to hire an attorney to prevent the threatened sale of their property, yet they have valid LEGAL grounds for filing for an injunction to stop the foreclosure. the following article is not legal advice and is not intended to be a substitute for you obtaining the advice of an attorney, lawyer, or law-firm to assist you in evaluating the particular facts in your case and determining whether or not you have a valid case worth pursuing in a court of law. THERE ARE POTENTIAL DAMAGES TO YOU FOR FILING FALSE AND MERITLESS CLAIMS. if you have specific questions about your case you must contact a lawyer to discuss. the following is general legal information only and is not to be relied on without discussing YOUR case with legal counsel. certain portions of this article may be incomPlete or inaccurate as the law is constantly evolving AND EACH COURT IS DIFFERENT. it is my goal to TRY TO educate california homeowners of the basic process involved in trying to obtain an injunction against foreclosure in california. people have legal rights that they should be informed of. there are lenders and loan servicers that are simply seeking to take advantage of homeowners who may have been the victim of predatory lending and/or loan servicing. where you have legal rights, every homeowner should have the opportunity to assert these rights, not just the wealthy FEW individuals who may be in a better financial condition to pursue their legal rights. ___________________________________________________________________________________________________________________ ATTORNEY STEVE VONDRAN CAN BE REACHED AT (877) 276-5084 OR EMAILED AT STEVE@VONDRANLAW.COM. MR. VONDRAN IS LICENSED TO PRACTICE LAW IN CALIFORNIA AND ARIZONA AND HOLDS A REAL ESTATE BROKER LICENSE IN BOTH STATES. WE SEEK ONLY TO SOLICIT, SERVE AND REPRESENT CLIENTS IN THESE TWO STATES. ___________________________________________________________________________________________________________________

The Process of Obtaining an Injunction Against Foreclosure in California

First, a General Overview of one Injunction Provision of California Law: California Code of Civil Procedure: 525. An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. (a) An injunction may be granted in the following cases:

When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.
When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.
When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
When pecuniary compensation would not afford adequate relief.
To prevent the breach of a contract the performance of which would not be specifically enforced.....(parts omitted)

NOTE: when filing for an injunction, you need to keep in mind the california rules of court. in particular sections 3.1200-3.1207 and 3.1150-3.1152. Here is a link to these and other provisions that you should be aware of. Here are some other rules to review: California Rules of COurt Injunctions ___________________________________________________________________________________________________________________

The Process of Obtaining an Injunction Against Foreclosure in California

Here is an overview of the steps

(1) There must be valid grounds for obtaining an injunction (as opposed to seeking money damages). In the context of foreclosure defense, the following are types of legal violations that may provide a valid and good faith right to seek an injunction against foreclosure of real property:

Truth in Lending Violation within the past three years, which violation provides an extended three year right to rescind the loan, and where the homeowner sought to exercising these rights (by sending in a rescission letter) that the lender or loan servicer ignored. If your right to rescind the loan was disregarded, you have a right to seek to file an injunction to stop the threatened foreclosure (Note: here is a list of some of the items we look for in our forensic loan audits in an attempt to find truth in lending and other violations that we may be able to use as leverage for a loan modification);
Wrongful Foreclosure – This arises where the homeowner can prove they are not actually in default of the loan (i.e. that payments are current, etc.). Normally this one reason we file for a Qualified Written Request under RESPA Section 6, to see how and when payments were made and applied (Click here to see my blog post on Qualified Written Requests under RESPA Section 6);
Lender has failed to properly follow California foreclosure statutes that mandate, among other things, contacting borrower to discuss financial situation and loan modification options, proper filing of notice of default and proper filing of notice of sale, etc; (See California Civil Code Section 2924 et seq.)
d. Lender failed “duty” to provide a loan modification under California Civil Code Section 2923.6 (See the law here) where loan modification presents a better “net present value” proposition to the holder of the loan than does pursuing foreclosure (these grounds are being reviewed in the Courts today as to whether or not this grounds for injunction against foreclosure will ultimately succeed). The thrust of the argument is really that a “loan modification should have been reached;”
Loan Modification Agreement “was” reached – This is another experimental area where I believe a good faith argument can be made that there is no right to foreclose where the borrower and lender/loan servicer has reached an agreement to modify the loan rather than pursue foreclosure. This situation arises where the homeowner was lead to believe (probably requires a written agreement) that a loan modification or trial payment plan was in effect and the lender is moving forward anyhow and attempting or threatening to foreclosure. The Courts should be asked to enjoin a foreclosure where this type of false, deceptive, and misleading behavior is perpetrated by a lender or loan servicer, and the Courts should require the lender to provide the modification it agreed to, proof of which being sufficient (a related topic is whether the lender has “waived” right to foreclose);
Enjoining the enforcement of false, deceptive, and unconscionable option arm loans and possibly subprime loans in California under the California Consumer Legal Remedies Act (Here is an article I wrote discussing the predatory and toxic option arm loans);
Where loan terms and conditions are negotiated in Spanish (or other protected foreign languages) but where the final loan documents are unfairly printed in English, a right of rescission applies which should prevent the foreclosure action of the lender, and even the loan assignee (See California Civil Code Section 1632); note; here is a blog post I wrote on this law: http://activerain.com/blogsview/727174/se-habla-espanol-california-civil-code-section-1632-and-the-loan-modification-can-you-rescind-your-mortgage-loan-

Other equitable grounds depending upon the facts of the case. (2) IF THE LENDER/LOAN SERVICER SEEMS INTENT ON FORECLOSING, RATHER THAN CONSIDERING YOU FOR A SHORT-SALE, DEED IN LIEU OF FORECLOSURE, OR PROVIDING A MEANINGFUL LOAN MODIFICATION, AND ASSUMING ONE OF THE ABOVE POTENTIAL GROUNDS TO FILE FOR AN INJUNCTION EXIST, YOU NEED TO FOLLOW THE FOLLOWING GENERAL STEPS (NOTE ADDITIONAL RULES AND RESTRICTIONS MAY APPLY SO YOU ARE ADVISED TO SEEK OUT THE ASSISTANCE OF A FORECLOSURE DEFENSE LAWYER TO ASSIST YOU):

Serve a certified letter on the party seeking to foreclose, including any of their agents, etc. who they are working in concert with them to foreclose, notifying them of your intent to file for a temporary restraining order (TRO) to prevent the threatened sale from occurring on the scheduled date. Also, state the time, date and address where you will be filing for relief, and ask whether they intend to appear. You may also want to fax and email them if you can, but the certified letter (which gives you legal proof they have notice of the TRO application) should be sent. You will need to submit a declaration that you did all of the above with your application.

Note: There are time frames to keep in mind in regard to notifying the opposing parties and/or their attorney (See here). Here are some other things to keep in mind regarding providing note – you must make a declaration to the Court that you gave or tried to provide notice to the opposing parties (See here)

File a Complaint (i.e. lawsuit) with the proper Court in your County (you may have to call the Court and ask them which court in your County is the proper one). In some cases, a case may be filed in Federal court, as opposed to State Court. This is a good question for an attorney practicing foreclosure defense and predatory lending law. Also, ensure proper venue. The complaint must set out your request for a temporary restraining order (TRO) and preliminary injunction halting foreclosure. You need to properly plead all the relevant facts of the case, including the legal violations which give rise to your right to halt the foreclosure proceeding or private trustee sale. In regard to verifying your proper grounds, legal “points and authorities” will need to be cited to the Court and attached to your application that seeks the ex parte TRO.
Compliance with California Rules of Court in regard to seeking an ex parte motion (this is where generally only you show up and the other party, although permitted to show, may not actually attend) for a TRO:

Rule 3.1201. Required documents A request for ex parte relief must be in writing and must include all of the following: (1) An application containing the case caption and stating the relief requested (note: the application must contain the (Click here for Contents of the application); (2) A declaration in support of the application making the factual showing required under rule 3.1202(c); (3) A declaration based on personal knowledge of the notice given under rule 3.1204 (basically proving you tried to contact the other party); (4) A memorandum (basically citation to legal points and authorities that support your request for an injunction); and (5) A proposed order (so that the judge can issue a TRO that the other party will be required to comply with). Note: Local Court Rules regarding obtaining injunctions are supposed to be pre-empted by these California Rules of Court. LIS PENDENS ALERT: It is probably also wise after filing the complaint and application for TRO / OSC to file what’s called a “lis pendens” (this gets filed in the County Recorder’s Office rather than the Court). A lis pendens is latin for “suit pending” and can only be filed where the lawsuit challenges an interest in the real property that is subject to litigation. There can be serious penalties for misusing the lis pendens process so consult with a real estate attorney prior to making this determination and filing. What the lis pendens does is to put any potential purchasers of the property on notice (called constructive notice) that the property is the subject of litigation (title is disputed), and if they buy the property, they take title subject to the claims involved. Filing the lis pendens then can have the effect of deterring bids to buy the property at a foreclosure sale, and can also provide grounds to counter the potential “bona fide purchaser for value” or ‘holder in due course” argument if the Court denies the preliminary injunction and the house is sold to a third party. Rather than being relegated to money damages against the purchaser of the property in this event, there could be a case for “quiet title” to the property and set-aside the sale. Contact a real estate foreclosure defense lawyer to discuss this somewhat complex topic. After you file for the lis pendens, the lender or trustee may request that a bond be filed and can seek to lift the lis pendens (they don’t want clouds on title at the foreclosure sale). You should argue for a nominal bond in this case as the property is not going anywhere and delaying foreclosure in a down market can hardly have a big effect on the lender.

Once you file all of these documents with the Court (the complaint, OSC, TRO Application with Client Declarations and Memorandum of Legal Points and Authorities, Declaration of Notice to Opposing Parties, and Proposed Order) you are on your way. The Court will set a hearing date and you need to find out what that date is, and provide notice to the opposing parties. You might also want to see if they use court reporters in these hearings, and if not, look into obtaining one (this may help if you need to appeal an order denying an injunction).
Again, after all the Court filings are complete, you now have a pending suit, and if advisable in your case, the filing of a lis pendens might be a good move.
At the OSC hearing, Defendant (if they decide to show up) must show good cause why the injunction should not issue. That being said however, the burden of proof on why the injunction should be granted are on the Plaintiff, who is known as the “moving party.” (If called this by the judge, one response to lighten up the situation might be “hopefully we are not moving your honor” said with a smile). At the hearing, if you are represented by an attorney he or she must show up. In ruling on the TRO, the Court will normally look to the declarations but also has discretion to hear oral testimony from the homeowner or others (advance written request to the Court to present oral evidence should be requested).
If the Court grants the TRO, it will normally be effective only for about 15-22 days until such time as a preliminary injunction hearing is undertaken where both sides are fully represented. If the TRO issues, the Court may required the posting of a bond to recover any damages the defendant may suffer if the TRO was wrongfully granted and the preliminary injunction is ultimately denied. Plaintiffs must be aware of this possibility and should speak with a bonding agent prior to the OSC hearing date for the TRO. If granted, the TRO will not normally be effective until the bond posts. Don’t get caught short-handed on this one. If the TRO issues, the Plaintiff should serve a copy of the Order on all parties which will then be bound by Court order not to foreclose on the property, at least until the preliminary injunction stage.
At the hearing for a preliminary injunction, both sides may appear and if the preliminary injunction issues, then the judge MUST require the posting of a bond. However, it is at this point that the Defendants may want to discuss providing a reasonable loan modification, accepting a short-sale, accepting Client’s rescission, or approving a deed in lieu / cash for keys type of deal or settling on some other relevant terms.

In order to obtain an injuction against foreclosure the Plaintiff (the homeowner) which is known as the "moving party" must prove the following:

Likelihood of success on the merits of the case (for example, likelihood of proving a TILA violation that allows for rescsission)
That money damages - the usual remedy at law - are inadequate and will not make the Plaintiff whole (for example, property is unique, and money damages will not make the Plaintiff whole since she cannot go and re-purcahse the exact same property, plus if the property is sold, the owner will not likely be able to get it back)
That Plaintiff will face imminent irreperable harm and injury if the threatened action (i.e. foreclosure of the property) is permitted to ensue.
That the balance of equities favors granting the injunction (Court will weigh the harm to the Plaintiff if the injunction is not granted, versus the injury to the Defendant if the injunction is granted). Generally, there will be limited harm to the Defendant by having to wait until the conclsusion of the litigation to sell the property. The Court can require a posting of a bond by Plaintiff to protect against any perceived harm caused by the TRO and/or injuction.

So that is a general and basic overview of the process of obtaining a temporary restraining order (TRO) / preliminary injunction in California and how it may help you obtain a loan modification, or else any money damages that you may be entitled to for RESPA violations, QWR violations, Truth in Lending Violations, Business and Professions Code Section 17220, 17500 violations, violations of the Fair Debt Collections Practices Act, California Consumer Legal Remedies Act, etc. Where the lender or loan servicer has violated your rights, and where a valid and good faith grounds exists for filing for filing a lawsuit and TRO to halt a foreclosure sale is present, you may have a strong defense in pursuing your legal claims. Plus, when you haul these lenders into Court with good faith and valid grounds, this is a good time to raise the “produce the note” strategy, which makes the trustee and loan servicer prove they have possession of the original promissory note, and all recorded assignments as required under California Commercial law of Negotiable Instruments. If they cannot prove their right to enforce the debt, the Court should (although there is not solid legal precedence on this claim in California) kick these “strangers” out of court. Otherwise, they might as well allow your neighbor to privately foreclose on your property. ___________________________________________________________________________________________________________________ A separate issue that can arise in the foreclosure context, is where the house has already been sold, and the borrower believes the sale is wrongful or in violation of law. In this situation, where the lender has purchased the property at the foreclosure sale, there may be a way to “quiet title” and use a “lis pendens” procedure. Claims that may be raised after a sale date are truth in lending rescission claims, failure to sell property per the deed of trust, sale improprieties such as not using an independent third party, chilled bidding, failure to properly advertise the sale etc. If the property was sold to a bona fide purchaser for value (see an attorney to discuss what this means and how it works) then your legal action would likely be limited to a claim for money damages. These issues can also be raised in a lender seeks to file for a default judgment following a private trustee sale. If all else fails, this could be a nice way of “getting the final word” with the lender or loan servicer. Contact a real estate attorney in your area to discuss your case. CONTACT US TO DISCUSS OUR LOAN MODIFICATION SERVICES. (877) 276-5084 Note: There are no guarantees that a loan modification will be obtained as services are offered on a "best efforts" basis. To have your situation reviewed please fill out our form at www.LoanModSolutions.net Loan mod scam victims are encouraged to visit www.LoanModificationRipoff.net The Law Offices of Steve Vondran has been processing loan modification files and has experience dealing with the following mortgage lenders and loan servicers:

Bank of America
Countrywide
Chase
Aurora Loan Services
Washington Mutual
Nationstar
World Savings (Call us if you have a World Savings Option Arm Loan - we have been getting principal reduction in select cases)*
Wachovia (Call us if you have a Wachovia Option Arm loan - we have been getting principal balance reductions in select cases)*
Wells Fargo

_________________________________________________________________________________________________________________________________ Other Legal Services we Provide: (877) 276-5084

Forensic Loan Audits - Truth in Lending Violations / RESPA violations / Predatory Lending
Loan Modification Company Setup / Broker Contracts
Predatory Lending Law (Predatory Option Arm Loans, Subprime Arm Loans, Elder Abuse, Loan Fraud)
Foreclosure Prevention / Loan Workout
Commercial Lease Modification (Time to re-negotiate your commercial lease?)
Real Estate Zoning in Greater Phoenix area (Variances, Special Use Permits, Zoning Disputes)
Eminent Domain, Inverse Condemnation, and Proposition 207 cases
Real Estate Arbitration
Real Estate Mediation
Real Estate Litigation
Loan Modification Scams and Fraud (Foreclosure rescue scams)

Find us on the web on www.VondranLegal.com / www.VondranLaw.com / www.LoanModRadio.com ___________________________________________________________________________________________________________________ Our Offices: (1) Phoenix, Arizona: 2415 E. Camelback Road (Esplanade) Suite 700, Phoenix, Arizona 85016 (877) 276-5084 (2) Newport Beach, California: 620 Newport Center Drive (Fashion Island), Suite 1100, Newport Beach, CA 92660 (877) 276-5084 Email: Steve@Vondranlaw.com This is an advertisement and communication pursuant to State bar Rules. Law Offices of Steven C. Vondran is licensed to practice law in California and Arizona and only seeks to serve Clients in these states. *We make no guarantees, warranties or representations of any particular outcome in any type of case including loan modification and loan workout cases and no guarantees of principal loan balance reduction in any case.

What does an attorney look for in a mortgage audit?

Steve Vondran (Law Offices of Steven C. Vondran) — Sat, 15 Aug 2009 14:35:55 -0500

We are often asked what we look for in a forensic loan audit.

Typical items we look for when conducting a forensic loan audit:

(1) Did each borrower or person with ownership interest in the property get two copies of the proper Notice of Right to cancel with the Rescission dates filled in? (Federal Truth in Lending requirement - TILA).

(2) Were the material TILA disclosures made, and were they accurate if made (APR, Finance Charge, Amount Financed, Total of Payments, Payment Schedule). If these disclosures were not or defective in nature, an extended three year right of rescission exists in non-exempt transactions.

(3) Were the good faith estimate and preliminary truth in lending statements given to the borrower within 3 days of giving the loan application?

(4) Were advance fees improperly collected?

(5) Was the broker/loan officer/lender properly licensed at all stages of the loan origination process?

(6) Was the ARM / Option ARM / Negative Amortization Loan accurately disclosed in the note and adjustable rate rider and any loan program disclosure? Were the disclosures consistent?

(7) After the broker/lender ran the credit, were the credit scores disclosed and factors affecting risk properly disclosed?

(8) Did the Client receive a copy of the appraisal?

(9) Can the lender or investor produce the promissory note and prove it has the legal right to collect the debt? This is not so much a forensic audit issue, but rather an issue that can be raised at a later date. Not finding a copy of the promissory note in the loan file also triggers the need to have them produce the note so we can verify the actual terms of the note.

(10) Is the note clear and comprehensible (or do we have grounds to argue that a contract was never formed - that there could be no meeting of the minds)?

(11) Unfair Competition - If we find a violation of RESPA, Truth in Lending or HOEPA, or other law, do we have grounds to assert that the lender has engaged in unfair, deceptive and/or fraudulent business acts and practices and seek the imposition of a constructive trust forcing the lender to disgorge any ill-gotten gains or to seek an injunction? Countrywide was sued under Business and Professions Code Section 17200 and 17500 for false advertising and deceptive business practices.

(12) Were the loan documents properly signed and notarized?

(13) Option Arms / Negam Loans: These loans are predatory in nature and potentially unconscionable. The terms of the note and adjustable rate rider and loan program disclosures may conflict making it virtually impossible to properly understand the terms of the loan and to disclose this properly per truth in lending requirements.

(14) Is the loan substantively unconscionable and thus unenforceable?

(15) Was there fraud, deceit, deception, coercion or undue influence used against the elderly (elder abuse issues)?

(16) If the lender targeted minority groups, where the contracts negotiated in the language of the borrower (lender would be required to sign documents in a certain protected language of the borrower or a right to rescind is created?

(17) Was there predatory underwriting on stated income loans (i.e. underwriter did not verify borrowers stated income via salary.com, 4506-T statements, or in another manner as required by their internal policies - turning a blind eye and not following their own underwriting policies to get a loan done)?

(18) Were there excessive fees that Violate HOEPA? Or a Lack of HOEPA disclosures? Or excessive YSP fees that are predatory in nature that feathered the nest of the broker at the expense of the borrower?

(19) Was the borrower asked to sign conflicting disclosures or documents such as two different ARM disclosures or two different truth in lending statements that reflect two different APR's or Interest rates (evidencing potential bait and switch or deceptive loan practices)?

(20) Were FICO scores and credit risk factors properly disclosed?

As you can see, we are closely scrutinizing the work of the lenders and holding their feet to the fire. They have rules they need to comply with, and they should be held accountable where their legal violations are uncovered.

Note: The strength of these violations depends upon whether or not your originating lender still holds the loan or whether a third party investor purchased the loan on the secondary market. In addition, there are no guarantees, promises or representations made that a loan audit will reveal any of these loan compliance or legal errors. Every file is different. We are never required to follow-up our audits or loan modification services with actual litigation. Attorney has the sole discretion whether or not to accept any litigation cases. This is an advertisement and communication pursuant to state bar rules. We only seek to represent Clients in Arizona and California where the attorney is licensed to practice law.

Don't forget to hear our loan modification radio show on KLAA radion or www.LoanModRadio.com

Loan Modification Frequently Asked Questions (FAQ)

Steve Vondran (Law Offices of Steven C. Vondran) — Thu, 13 Aug 2009 12:19:30 -0500

(1) What is the foreclosure process / timeline in California?

ANSWER: Many people hear the word foreclosure and think of it as an isolated event. It is actually a process that spans 4 or 5 months or so, sometimes longer. We have had Clients who have not made payments for as long as 20+ months or so.

The process is defined by California Civil Code Section 2924 and generally requires the following to be strictly adhered to:

(A) Breach of loan contract (default). Typically we have seen a lender will wait three or four months or more before formally declaring a default.

(B) Notice of Default (lender is formally claiming a default of the loan contract has occurred). Lender files a "NOD" with the County Recorder's Office and serves the homeowner with the notice and posts a notice on the property. Filing this notice normally "starts" the foreclosure process in California. Per 2924, the lender may not give notice of sale for at least 90 days once the NOD is filed.

Loan Mod Tip: The NOD is required to state certain things (such as a declaration that the lender has tried to contact the borrower, assess their financial situation and discuss loan modification options ) if they fail to make these attempts to modify your loan, and/or to make this declaration in the NOD, this can provide potential grounds to enjoin the foreclosure proceeding (SB 1137 Requirement). Only a law firm can insist your legal rights be honored in this regard.

(C) Notice of Trustee Sale (aka "Notice of Sale"). Following the 90 day period after the NOD is filed, the Lender may file and record a NOS with the County Recorder. This notice must specify the time and date of the sale which must be at least 20 days after the notice of sale is filed (typically the lender will schedule the sale date on the 21st day following filing of the NOD).

(D) Reinstatement Rights: Normally, the Borrower may reinstate the loan up to 5 days before the foreclosure sale date

So, as you can see, the process can take 110 days or more. You can seek to negotiate a loan modification during this process.

Loan Mod Tip: When Clients hire our law firm, we can typically get the lender to stop or postpone the sale date by us submitting financial documents and a letter of representation on your behalf. While this does not happen all the time, normally the lender is willing to work with the homeowner, especially where the property is really upside-down and the lender faces a huge loss by foreclosing.

LOAN MOD DEFINITIONS: THE LANGUAGE OF LOAN MODS: We should also get the terms on the table for those who have not taken real property law and are wondering what all the words are that they are seeing on the Notice of Default.

- Deed of Trust is a Three Part System: (Definitions)

- Trustor: This is the borrower

- Beneficiary: One to whom the obligation is owed (ex. the bank or investor)

- Trustee: Holds the Deed and is the one who is instructed to foreclose by the Beneficiary if you do not pay off the loan as agreed. If you pay off the loan, it is the trustee that re-conveys the deed to you.

Loan Mod Tip: When you get that foreclosure notice it is time to take action (it's never to late to start talking with the lenders about a loan modification)!! Calendar the dates and times of the scheduled notice of sale and notice of default. You can also contact the lender and see if they have any modification offers for you. Note: Don't take anything as true unless the lender puts it in writing. The major lenders have so many departments and so many employees, it is not uncommon to hear different things depending upon who you talk to. We have had loan modification companies tell us they haven't received the loan modification package, only to find that we have obtained a loan modification the very same week.

(2) Are California homeowners guaranteed a loan modification?

(a) No. It would be nice to think Congress would have provisioned a loan modification for every California homeowner, unfortunately they did not. The Banks obviously have no interest in helping all homeowners either. While the government is busy bailing out AIG, the Banks, and Big Auto companies, the homeowner on Main Street gets only a little bit of consideration.

We are dealing with tough economic times right now. Everyone is suffering and our financial institutions are getting the financial care they need, while the homeowner has to fight for everything they get.

(b) The other problem is that we need to keep in mind that the loan you took out was a legal contract between yourself and your lender where in you pledged your house as collateral (in the deed of trust) in the even at some point you were unable to pay back your loan (as referenced in the promissory note). So at the end of the day, we are fighting for a loan modification with tough-nosed bankers who put their financial interests in front of yours. As we tell our Clients, there is no constitutional right to a loan modification.

In fact, if anyone promises you or guarantees you a loan modification you should run for the hills. What we are finding with these loan modification scam companies is that they promise you the world and deliver very little. Don't be the next victim of false promises.

(3) What should a California Homeowner do when they get a foreclosure notice?

(1) Keep in mind you are not alone. Receiving a NOD can be an embarrassing and frustrating event. Thoughts of loading the moving truck and moving out of your house in the middle of the night with your family and kids, and saying good-bye to the American Dream and moving into uncertainty can be a daunting task for anyone. That being what it is, DO NOT IGNORE YOUR NOD.

No matter how dire the situation appears, you have to face it straight on. Ads my mother used to say, "tough times never last....but tough people do. You may be able to obtain a loan modification, or short sale of the property or seek Chapter 13 bankruptcy protection.

(2) Contact your lender see if they are willing to work with you. Ask them if they are implementing loan modifications. Most lenders have a loan modification (or "loss mitigation") department set up to handle defaulting borrowers. If you have the time to devote to the process of obtaining a loan modification, you may want to handle the case yourself.

•1. Find a reputable company to represent you: If you want to be represented by a loan modification company such as a law firm like ours, give them a call and ask them about their services and fees, etc.

Loan Mod Tip: Be careful with choosing a loan modification company. There are many loan modification and foreclosure rescue scam companies out there.

•a. Brokers without advance fee agreements / trust accounts

•b. "Attorney backed" or "Attorney Based" loan modification companies (false advertising)

•c. Law Firms that used to practice personal injury, family law, divorce law, etc. and moved into loan modifications purely for a profit motive, and who may or may not have solid real estate experience.

•d. As we discussed, I am an Attorney Licensed in Arizona and California and have a Broker's license in both states. I have sold mortgage products and understand the loan origination process.

•e. OTHER TIPS: Beware of offers of principal reduction. This is what everyone wants right now and the scammers will tell you what you want to hear. They will also tell you about having lender connections, and 2% interest rates, and having years of experience. BEWARE!!! Also beware of the 100% Money back Guarantee. While attractive, we find once a scammer has the money in the bank, good luck getting it back. Do your homework. Contact the state bar, goolge the company using the word "scam" at the end, check with the State Bar (is the attorney licensed?), check with the DRE advance fee agreement list.

FREE OFFER: Call our office at (877) 276-5084 and we will help you research the company you are considering using. We will not disparage other companies but we will point out some obvious things that you may not be aware of.

Baseball: Ted Williams was one of the greatest hitters of all time. In his instructional book "The Science of Hitting" Ted (Mr. Baseball) said that the most important thing in hitting is to get a good pitch to hit. Without getting a good pitch, even the best swing is of little help. The same is true in seeking a loan modification company - FIND A GOOD COMPANY THAT WILL WORK HARD FOR YOU!

(4) Discuss your options: (bankruptcy / short-sale / deed-in-lieu of foreclosure / loan modifications etc.). Knowledge is power - and by hiring a law firm that is prepared to discuss the full realm of options available to you.

•1. Submit Honest and Accurate Information on a Timely Basis and work with your Representative.

(6) Save as much money as you can: No matter what eventually happens you will want to save up as much money as possible. If you make the voluntary decision not to make your mortgage payments (we do not advise homeowners not to make their mortgage payments), do not go on a spending spree. Save your money. MONEY MATTERS: (a) If you decide to sell or walk away from your home, you will have to pay moving expenses, security deposits, etc. (b) If the lender is willing to modify, they may request the borrower bring money to the table to workout a deal. If you ultimately decide a chapter 13 bankruptcy is the best bet, you will need advance fees to pay a bankruptcy attorney as well.

Rather than taking the governments approach to problems (spend money) your best bet will be to preserve your capital to the extent possible.(4) Should a California Homeowner Stop Making Mortgage Payments when they are seeking a loan modification?

This is a question we cannot answer for you, and will not advise you on. While the conventional wisdom on the street is that you have to be late in order to obtain a loan modification, this is not always true. Under President Obama's Making Home Affordable Program (HAMP), a lender may still provide a loan modification and seek financial incentives where a borrower can demonstrate that they are in "imminent threat" of being late on the mortgage. This language suggests that a homeowner does not actually have be late on the loan to obtain a modification.

Loan Mod Tip: In fact, our office has obtained loan modifications where borrowers had not yet missed a mortgage payment. Keep this in mind as you seek to preserve your credit. While it will not hurt our case if you are late on your mortgage, whether or not to make your scheduled mortgage payment is a personal decision and should be based upon your overall financial situation and ability to pay.

(5) What are some of the options to a homeowner facing foreclosure?

1. Seek a loan modification

•1. Pursue a short sale (list house for sale with short-sales realtor). Submit purchase contract, estimated HUD-1 to both first and second mortgage. Second must also agree to the sale. The first may give some of the sales proceeds to the second to compensate the second. However, the second mortgage retains the right to charge-off their debt / seek a deficiency judgment.

Bank of America has a new program (in short sale agreement) asking sellers in a short sale to agree to repay the difference that the bank is compromising. I have seen Aurora try this also. The lenders claim this is simply to protect their investors and insurers.

Short Sale or BK? In chapter 7 bankruptcy, maybe the debtor will lose the house, but liability to both the first and the second mortgage lenders will be wiped out. Even in chapter 13, the debtor can often get rid of second mortgage by "lien stripping" and keep the house by making payments over a period of 3 to 5 years. Contact a Bankruptcy specialist for more information.

•1. Walk away and allow foreclosure to run its course

Have to consider deficiency judgments: First may not come after you following a trustees sale, but a junior lien-holder (2nd mortgage) may charge off your debt and seek to collect. Deficiency judgments and other debts may be able to be written off in BK if the lender persists in pursuing a judgment following a sale.

•1. File for bankruptcy

•2. Hand over the deed in lieu of foreclosure

(6) What is a deed in lieu of foreclosure?

This is where a homeowner basically wants to walk from the property and seeks to quitclaim the deed back to the lender. The lender must be willing to accept the deed and if they do this wipes out the loan via merger.

The lender may not want to accept the deed because basically it will still have to deal with any second mortgage, tax liens, judgment liens, etc. on the property that remain after the DIL. A foreclosure wipes out these other liens. Many lenders would therefore prefer to foreclose and get clean and marketable title.

Note: The DIL only transfers the property to the lender. It does not wipe out the debt unless the lender agrees to do so. The lender may retain the ability to come after you for a deficiency judgment if the ultimate sale of the property does not net the amount owed (which normally it doesn't these days).

Loan Mod Tip: I have been told that Deed in lieu can hurt your credit just as much as a foreclosure or bankruptcy. Apparently this can cost you about 200 points on your credit if your lender accepts. Also, many lenders will issue a 1099-C for any debt forgiven resulting from a DIL. Pursuing a short-sale may be provide a better solution and should be looked at.

(7) Should consumers be paying advance fees when they are seeking a loan modification? (Who ya gonna call?)

There are many organizations and regulators who take the position that homeowners do not need to pay an advance fee in order to obtain a loan modification. If you are talking about just submitting your financials (tax returns, pay stubs, bank statement etc.) and see what, if anything, the lenders are willing to provide you as far as a loan modification is concerned, I would say yes, you can do that yourself and no need to pay anyone an advance fee, UNLESS OF COURSE YOU JUST DON'T HAVE THE TIME TO CONTACT THE LENDERS AND YOU WANT TO HIRE SOMEONE TO DO THIS WHILE YOU AVOID THE HASSLES AND POTENTIAL EMBARASSMENT AND/OR ASSUMING YOU WANT TO SPEND TIME WITH YOUR KIDS AND FAMILY AND FIRNDS RATHER THAN DEALING WITH YOUR FINANCIAL CRISES.

Now, a fair number of our Clients tried to get their own loan modification and either were denied, or ultimately gave up for the inability to contact their lenders. This is what they tell us, this is not fabricated by us.

Still others see some of the benefits to hiring a lawyer of which I will lay out THE TOP REASONS TO HIRE A LAWYER, ATTORNEY OR LAW-FIRM TO ASSIST YOU IN SEEKING A LOAN MODIFICATION.

•1. Some people really truly do not want to deal with their financial crises and would rather hire someone to do this for them. Some people figure hiring a lawyer (since the lenders have lawyers on their side) is the best option for them. They voluntary enter into agreements with attorneys who agree to assist them in this endeavor. If the attorney does not lie, mislead, deceive the consumer, then there is no harm.

•1. Some people don't know anything about dealing with their mortgages, discussing interest rates, discussing workout programs, etc. Just as some people could do their own taxes, or write their own holographic wills, or file their own lawsuits people should be free to hire someone they trust, and someone who is licensed to do this for them.

•1. Some loan modification agreements (ex. Wachovia) specifically state "borrower acknowledges they have had the opportunity to have a lawyer review this agreement...." This suggests that a borrower should consult with an attorney before signing the loan modification agreements provided by a lender or servicer. I don't know how many attorneys would get involved in the limited task of reviewing loan modification agreements, especially where there is a larger role to play.

•1. Only an Attorney can assert and protect your legal rights and ensure the lenders and loan servicers follow the very limited rules of their business. For example, only an attorney can assure that the servicer complies with:

(a) Foreclosure rules that require beneficiaries and/or their agents to contact you to review your financial condition and discuss loan workout solutions before filing a NOD. Is a broker or non-profit agency able to protect your rights in this regard? An attorney can file for an injunction against foreclosure where the lender fails to honor this new legal requirement and insist that this right be honored. What good is this law if no one can enforce it? See California Civil Code Section 2923.5

(b) Submitting a qualified written request (QWR) under RESPA that seeks to ensure the lender is properly servicing your loan and applying payments. Only an attorney can seek to force the lenders to comply with these requests and to potentially file a lawsuit for a RESPA violation and/or seek an injunction against foreclosure (on grounds of wrongful foreclosure) where the servicer is found to be cheating or otherwise improperly servicing the loan. Only an attorney can fight to demand a full and fair accounting in this regard. Brokers and non-profits are not able to assert these demands and insist these rights be honored.

(c) Demanding the loan servicer identify the holder of the loan obligation (a right set forth under Federal Truth in Lending law - USC ). What good is this right if there is no one there to enforce it, or use the law? Is this just a law that is supposed to sit on the books and collect dust? Only a lawyer can make this legal demand and seek to hold the loan servicer accountable where it fails to comply. By identifying the holder of the loan obligation, two or three things become possible: (1) if the loan servicer refuses to modify the loan, a final demand can be sent to the holder of the loan, and (2) if there are proper grounds to file a lawsuit to rescind a loan (which is applicable to loan assignees) then the holder of the loan should be forced to show up in Court and explain why the right of rescission was not honored (assuming a client sends in a rescission notice). If there is no way to identify the holder of the loan, then there is no way to ensure TILA rights (you know, that pesky consumer law) will be protected. Finally, (3) if there are grounds to bring the holder of the loan into court, shouldn't it be proper to ask the judge to have the holder of the loan show that it is entitled to foreclose on you? To show that it holds the promissory note, proper assignments, and that they are entitled to enforce the loan? Brokers and non-profit organizations which do not practice law, and which are not permitted to do so, simply cannot protect these important rights, that may even play a role in seeking a loan modification

(8) What is this whole "produce the note" strategy we are hearing about?

This is a foreclosure defense strategy that basically says if a foreclosing beneficiary, or its agent, who is attempting to foreclose on your property, cannot produce the promissory note and any assignment of the note, then it has no legal right to foreclose on your property.

The strategy has mostly been successful in states that require judicial foreclosure (as opposed to states like California and Arizona which permit private trustee sales outside of court).

In those states where judicial foreclosure is mandated, the lender is already in Court, and it makes sense for a defendant (the homeowner who answers the complaint) to ask the the judge make the Plaintiff (lender) actually prove they have the legal right to foreclose on the loan as owner.

Now, the California foreclosure statute (California Civil Code Section 2924 et seq.) do not require that the note be produced as part of a private judicial foreclosure sale. However, that is not to say that there may not be a way to work this strategy into a foreclosure defense, or that there might not be a judge willing to require that the foreclosing entity prove it has the legal right to do so. The key however is probably having a legal right to go to Court on other grounds, and then raising the produce the note issue as a strategy.

In at least one California case a Bankruptcy judge required that the lender produce the note. So there is legal precedent in California for this proposition. In addition, more cases may be coming up on appeal.

So where I see this is playing a role in foreclosure defense is where you have a truth in lending three year right to rescind (for TILA violations) which is applicable against the loan assignee. If you send in a rescission letter and the lender refuses to honor the request, the borrower has a right to file a lawsuit seeking an injunction and TILA damages from the lender. If that is the case, why not also seek an injunction against foreclosure and demand that the foreclosing lender prove its right to foreclose at the same time.

Again, loan brokers and non-profit entities are not able to detect, assert or enforce your rights in this area.

When it comes to saving your home from foreclosure, you pull out all of the stops. You never know who is going to be waring the robe, or what the current state of the law will be once you get before that person. You have to literally turn over every rock.

(9) What is the Bankruptcy "cramdown" bill?

This is a bill that many homeowners were hoping would pass. While BK judges are already permitted to "lien strip" second mortgages that are not secured by any equity in a homeowners property (i.e. they get rid of your second mortgage), the cramdown law would have given the Bankruptcy judges the power to strip principal off the first mortgage as well with very little the lenders could have done about it. This would have been great because it probably would have compelled more lenders to seek meaningful loan modifications, rather than just modifications on their terms. The law failed to pass, but there is talk about a revised bill resurfacing.

(10) What is "cash for keys"?

After a lender forecloses on a property, and the homeowner stays in possession of the property, the homeowner essentially becomes a tenant. The new owner of the property who purchased the property at a foreclosure sale (usually the bank if they were the highest bidder) will want the owner out of the property, but also wants the property not to be ripped apart as often happens in foreclosed properties. To remedy the situation, the lender or owner may offer to give the tenant "cash for keys." In other words, if the tenant leaves the property within 2-4 weeks, the tenant will receive a cash incentive to hand over the keys and a well maintained property. Often the cash can amount to one or two months worth of rent.

(11) What are the effects on California homeowners when foreclosures proceed at such a high clip?

Communities all over the country continue to be devastated by foreclosure. Housing prices are decreasing (bad for owners locked into their properties, but good for first time homebuyers).

The Obama home affordability program was designed to help make communities stable, but plenty of lenders are not giving homeowners mortgage modifications. Instead, they are giving homeowners the finger - the middle one to be exact. Can we expect better solutions on the horizon other than just the banks and financial institutions getting bailed out? As Senator Durbin stated: "The Banks own the Senate." Don't expect much change here.

(12) What about stated income loans?

Also called liars loans. Allowed anyone that could fog a miror to get a loan. The brokers and lenders packed the loan applications, and did whatever they had to do to get the loan to pass though the underwriting department. 4506-T IRS tax return forms were not completed and borrower returns were not checked for accuracy. Even lenders did not verify salary.com figures to make sure stated incomes were at least in the realm of reasonableness.

Now, lying borrowers cannot expect a lot of sympathy. But if the Broker unilaterally placed income figures on the 1003 loan applications, this could raise a case of fraud against the original broker and lender. If the loan is held in a portfolio loan, this could provide some legal leverage against a lender especially where the borrower has credibility that they would not have trumped up the income level, and where the tax returns will verify a different picture than the 1003 reflects.

(13) What is this SB 94 Bill?

This is the California proposed bill that seeks to limit attorneys, brokers, and loan modification companies from accepting advance fees for performing loan modifications. The goal is to protect homeowners from scams. Our office is against this law for the following reasons:

•a. Borrowers and homeowners should be free to hire any properly licensed professional they want to perform services they themselves do not want to perform.

•b. The Lenders have paid lawyers on staff working these modifications. Homeowners should be able to be on a level playing field in seeking a loan modification.

•c. Out of state brokers and lawyers will undoubtedly continue to seek to assist California homeowners, which harms the local California economy which is badly in need of local revenues.

•d. The goal should be to outlaw "attorney backed" or "attorney based companies" that do little more than falsely advertise legal services that normally aren't involved.

•e. Lawyers will not likely work if advance fees cannot be collected (would BK attorneys work if they could not collect an advance fee)? This prevents California homeowners from being able to hire lawyers to adequately represent them.

•f. Lawyers are the only ones who can protect and assert consumer rights and file lawsuits if necessary to preserve these rights. Attorneys should not be forced out of this process.

(14) How Can you Leverage a Loan Modification where the Investor Claims they are a "Holder in Due Course?

Trying to Leverage Loan Modifications against the Assignee Holder in Due Course.

One of the Key things we try to figure out as loan modification attorneys is who holds your loan? Who is entitled to enforce the Note?

Who will be initiating foreclosure proceedings? Do they have all of the proper assignments and promissory note?

Who can we try to leverage (ex. Sue if we have to) to obtain a loan modification?

One way we try to find answers to these questions is by making a demand on the current loan servicer (the company collecting your mortgage payment each month) to tell us who the holder of the loan obligation is, their name, address and phone number. We make this request under Truth In lending law ( U.S.C. ).

One of the major problems with this law is that it does not state exactly when the loan servicer is required to supply this information. Now, some servicers are good about providing this information in a timely manner. Some comply but only identify the holder of the loan (ex. Wells Fargo as Investor on the loan). Other lenders just ignore their legal compliance obligations altogether in defiance of a homeowner's rights. Aurora Loan Servicing is one of the more pathetic companies that come to mind in this regard.

The key thing to think about is that if your originating lender is servicing the loan, a loan audit may reveal some potent violations against them and you may be able to threaten a lawsuit that seeks legal damages.

In many cases, the loan was sold off in the secondary market, securitized, and purchased by investors who claim there is no liability against them as they are "holders in due course" of the loan, and are free from legal claims and defenses. While this holds some degree of truth, we would still want to audit your loan file to find potential truth in lending violations that may provide an extended three year right to rescind. Rescission rights are applicable against any and all loan assignees, including these holders in due course.

One way to find out whether or not your loan was sold off and securitized on the secondary market is to use some free online search toools. Many fannie mae and freddie mac loans were securitized and sold off. Use the two tools below (check your address in both databases) and you will probably get a good idea whether or not you will be dealing with the "innocent investor" defense raised by "holders in due course."

Does Freddie Mac own your loan?

https://ww3.freddiemac.com/corporate/

Does Fannie Mae own your loan?

http://loanlookup.fanniemae.com/loanlookup/

Now, even where the loan is owned by investors and the holder in due course problem arises, there are still some claims that can be asserted against these loan assignees. The best assertion is rescission claims. However, here are a few arguments that can be looked at when trying to evaluate the strenght of a potential lawsuit against the "innocent investor" and trying to obtain some type of leverage for a favorable loan modification decision.

Note: we have not tested the strength of these legal theories but these and other theories might be worth exploring:

(1) Conspiracy

(2) Joint venture

(3) Creating the Marketplace for Predatory Option Arm loans

(4) Aiding and abetting 17200 violations

(5) Frauduent Schemes

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Notice of Sale? Notice of Default? There may still be time to obtain a loan modification. Loan Modification Attorney Service

Steve Vondran (Law Offices of Steven C. Vondran) — Mon, 03 Aug 2009 20:38:33 -0500

LOAN MODIFICATION ADVERTISEMENT:

HELLO EVERYONE MY NAME IS STEVE V0NDRAN - ATTORNEY/BROKER - CA/AZ / OFFICES IN BOTH STATES (PHOENIX AND NEWPORT BEACH).

TOPIC TODAY IS LOAN MODIFICATIONS - WHAT THEY ARE / HOW THE PROCESS WORKS ETC.

MY FIRM HAS BEEN HANDLING LOAN MODIFICATIONS FOR ABOUT A YEAR NOW (AS OF THIS POSTING), WHICH IS FAIRLY WELL EXPERIENCED AS FAR AS THE LOAN MODIFICATION INDUSTRY IS CONCERNED. SOME COMPANIES ARE NOW CLAIMING 20 OR THIRTY YEARS OF EXPERIENCE IN THIS BUSINESS. DO YOU RECALL ANYONE SAYING THEY WERE LOAN MODIFICATION LAWYERS OR COMPANIES 20 YEARS AGO? BE VERY SUSPICIOUS OF THESE TYPES OF CLAIMS AS WELL AS "ATTORNEY-BACKED" OR "ATTORNEY BASED" CLAIMS THAT OFTEN AMOUNT TO LITTLE MORE THAN FALSE ADVERTISING.

JUST TO PROVIDE A LITTLE BACKGROUND - PRIOR TO THE OBAMA MAKING HOME AFFORDABLE PROGRAM, THE BANKS WERE GIVING LOAN MODIFICATIONS BUT REALLY ONLY FOREBEARANCES OR REPAYMENT PLANS. (REMEMBER, A LEGAL CONTRACT BETWEEN YOU AND THE BANK WAS PREVIOUSLY SIGNED). NOW, THE BANKS ARE DOING MORE SIGNIFICANT MODIFICATIONS THAT INCLUDE INTEREST RATE REDUCTIONS AND IN SOME INSTANCES MAY PROVIDE PRINCIPAL REDUCTION.

I HAVE TO MAKE THE NOTE UP-FRONT, NO ONE AND NO COMPANY CAN GUARANTEE YOU A LOAN MODIFICATION OR PRINCIPAL REDUCTION. EVERY CASE, EVERY LENDER, EVERY BORROWER, EVERY PROPERTY IS DIFFERENT.

IN GENERAL, THERE ARE TWO TYPES OF LOAN MODIFICATIONS, (A) MODIFICATION BASED UPON A FINANCIAL HARDSHIP AND (B) A MODIFICATION THAT MAY BE MORE HEAVILY INFLUENCED BY LEGAL VIOLATIONS, SUCH AS TRUTH IN LENDING VIOLATIONS WHICH WE WILL DISCUSS LATER.

BEFORE WE GET STARTED, I WANT TO SAY A WORD OR TWO ABOUT LOAN MOD SCAMS: THERE ARE LOTS OF COMPANIES THAT GOT INTO THE LOAN MOD GAME (BROKER / NON-BROKERS / FORECLOSURE CONSULTANTS / ATTORNEYS ETC.) YOU NEED TO BE CAREFUL WHO YOU DECIDE TO WORK WITH. KEEP IN MIND THERE IS NOTHING PREVENTING YOU FROM SUBMITTING YOUR FINANCIAL INFORMATION FOR A FINANCIAL HARDSHIP

OUR FIRM IS HANDLING LOAN MOD SCAMS AND TRYING TO OBTIAN REFUNDS FOR OUR CLIENTS ON A CONTINGENCY FEE BASIS. IF YOU HAVE BEEN LIED TO, CHEATED, SCAMMED OR RIPPED OFF BY A LOAN MOD COMPANY CALL US AT (877) 276-5084.

BROKERS MUST BE ON DRE APPROVED LIST - ADVANCE FEE AGREEMENT (MY COMPANY HAS SET UP ABOUT 50 BROKERS TO LEGALLY DO THIS, AND THESE COMPANIES ARE VICTIMS OF UNFAIR COMPETITION WHEN UNLICENSED COMPANIES DO WHATEVER THEY WANT WITHOUT THE PROPER CREDENTIALS. CHECK DRE.GOV WEBSITE.

BEWARE OF SO-CALLED “ATTORNEY BACKED” (THERE EITHER IS NO ATTORNEY OR THEY DO VERY LITTLE WORK).

LAWYERS AND LAW FIRMS - CHECK THE STATE BAR WEBSITE (CALBAR.ORG) AND MAKE SURE NO DISCIPLINE

IF YOU ARE UNSURE WHETHER THE LOAN MODIFICATION COMPANY YOU ARE CONSIDERING DOING BUSINESS WITH CAL US AT (877) 276-5084 AND PERHAPS WE CAN SHED SOME LIGHT ON THE MOD COMPANY YOU ARE CONSIDERING. ANOTHER TRICK IS TO TYPE THE NAME OF THE COMPANY IN GOOGLE AND SEE WHAT YOU FIND. YOU MAY BE SURPRISED AS MANY CALLERS ARE WHO CONTACT US.

OKAY, LET’S TALK ABOUT LOAN MODIFICATIONS. FIRST THING I WANT TO DISCUSS IS WHAT THE DIFFERENCE BETWEEN WORKING WITH A REAL ESTATE BROKER AND REAL ESTATE ATTORNEY IS:

BROKER = SUBMIT FINANCIALS. THERE ARE SOME GOOD BROKERS OUT THERE PERFORMING LOAN MODS AS A SERVICE.

ATTORNEY = SERVICE SEEKS TO UNCOVER POTENTIAL LEVERAGE FOR NEGOTIATIONS, AND SEEKS TO PUT THE LENDER ON NOTICE OF THE CLIENTS POTENTIAL LEGAL CLAIMS AND SETS FORTH A LOAN MODIFICATION PROPOSAL. BASICALLY, WE TAKES A PRE-LITIGATION POSTURE AND SEEK TO OBTAIN OR UNCOVER EVIDENCE THAT MAY ASSIST IN TIPPING THE SCALES FOR A LOAN MODIFICATION.

TYPICAL SERVICES PROVIDED IN AN ATTORNEY LOAN MODIFICATION:

FORENSIC LOAN AUDITS
LEGAL DEMAND LETTERS
QUALIFIED WRITTEN REQUESTS
DEMAND TO PRODUCE THE HOLDER OF THE NOTE
REQUESTS TO DEAL ONLY WITH THE ATTORNEY UNDER FAIR DEBT COLLECTION PRACTICES ACT
ABILITY TO THREATEN AND FILE LAWSUITS
ABILITY TO ADVISE ON TOPICS SUCH AS DEED IN LIEU OF FORECLOSURE AND DEFICIENCY JUDGMENTS
ATTORNEYS CAN HANDLE NOTICE OF DEFAULT CASES IN CALIFORNIA, WHILE BROKERS CANNOT ACCEPT ADVANCE FEES FOR SUCH SERVICES.

OUR GOAL IS TO HELP YOU KEEP YOUR HOME, AND ON TERMS / PAYMENT THAT YOU CAN AFFORD. WE DO THIS SERVICE FOR A PRICE THAT IS COMPARABLE TO WHAT MOST BROKERS CHARGE FOR THEIR SERVICES.

IF YOU ARE LATE ON MAKING YOUR MONTHLY PAYMENTS, OR IN IMMINENT THREAT OF BEING LATE, CONTACT US TODAY TO DISCUSS YOUR SITUATION. THERE MAY BE HELP AVAILABLE. CALL US AT (877) 276-5084. A REPRESENTATIVE IS WAITING TO TAKE YOUR CALL.

JUST KNOW THIS, THE BANKS WERE BAILED OUT BY PRESIDENT OBAMA. THEY HAVE THE ABILITY TO MODIFY YOUR LOAN IN MANY CIRCUMSTANCES. CONTACT A LAW FIRM TO HELP YOU MAKE THE CASE FOR MORTGAGE MODIFICATION. LET ME SAY THAT AGAIN IN CASE YOU DIDN’T QUITE HEAR THAT - THE BANKS HAVE THE POWER TO MODIFY YOUR LOAN: DON’T TAKE A FORECLOSURE NOTICE LYING DOWN - YOU MAY HAVE LEGAL RIGHTS THAT YOU CAN ASSERT THAT MAY HELP YOU SAVE YOUR HOME FROM FORECLOSURE. CALL ATTORNEY STEVE VONDRAN TODAY AT (877) 276-5084. WHY BEG WHEN YOU MAY HAVE THE LEGAL RIGHT TO DEMAND?

EXAMPLES: LET’S TALK ABOUT A FEW EXAMPLES OF LOAN MODS MY OFFICE HAS BEEN ABLE TO OBTAIN. NOTE THAT PAST RESULTS CAN NOT BE USED TO SUGGEST ANY PARTICULAR OUTCOME IN YOUR CASE:

WE HAD ELDERLY CLIENTS STEERED INTO A PREDATORY OPTION ARM LOAN (IN CASE YOU DON’T KNOW, OPTION ARM ALLOWS YOU TO MAKE 4 DIFFERENT TYPES OF PAYMENTS). WE AUDITED OUR CLIENTS LOAN FILE AND FOUND TRUTH IN LENDING VIOLATIONS. WE ALSO MADE PREDATORY LENDING CLAIMS UNDER CALIFORNIA’S ELDER ABUSE STATUTE (IF YOU WERE OVER 65 AT THE TIME OF REFINANCING YOUR LAST LOAN, AND FEEL YOU WERE A VICTIM OF PREDATORY LENDING, CONTACT US FOR A NO-COST DISCUSSION - CALIFORNIA’S ELDER ABUSE LAW HAS SOME SERIOUS TEETH AGAINST PEOPLE WHO VIOLATE THE LAW). ANYWAY, WE SENT IN DEMAND AND WERE ORIGINALLY DENIED A LOAN MOD. WE PERSISTED MAKING OUR CASE TO THE LEGAL DEPARTMENT AND WERE EVENTUALLY ABLE TO OBTAIN A MOD BY THREATENING A LAWSUIT. WE HAVE A COPY OF THE TESTIMONIAL VIDEO WE DID FOR ANYONE WHO WOULD LIKE TO SEE IT. SIMPLY CONTACT US AT (877) 276-5084 AND WE WILL EMAIL YOU A LINK TO THE VIDEO. AGAIN, AS A LAW FIRM, WE SOUGHT OUT THE EVIDENCE THAT COULD BE USED TO HELP MAKE OUR CASE FOR A LOAN MOD. IF YOU WERE THE LENDER / INVESTOR, WHAT WOULD YOUR CHOICES BE? A MUTUALLY BENEFICIAL LOAN MODIFICATION IS IN EVERYBODY’S INTEREST.

TRUTH IN LENDING VIOLATIONS HELP CREATE LEGAL LEVERAGE FOR A LOAN MODIFICATION. IN CONDUCTING OUR FORENSIC LOAN AUDITS, WE LOOK FOR PREDATORY LENDING VIOLATIONS, IN PARTICULAR WE ARE LOOKING FOR TRUTH IN LENDING VIOLATIONS.

TRUTH IN LENDING VIOLATIONS CAN ARISE FROM THE LENDERS FAILURE TO PROVIDE MATERIALS DISCLOSURES TO THE CONSUMER (INCLUDING APR AND FINANCE CHARGE) OR THEY CAN ARISE FROM PROBLEMS IN RELATION TO THE NOTICE OF RIGHT TO CANCEL, WHICH IS A REQUIRED DISCLOSURE IN NON-PURCHASE MONEY TRANSACTIONS. WE DO NOT HAVE TIME TO GO INTO THE DETAILS OF WHAT THESE VIOLATIONS CONSIST OF, BUT SUFFICE IT TO SAY THAT THESE VIOLATIONS CREATE AN EXTENDED THREE YEAR RIGHT TO RESCIND YOUR LOAN. LET ME SAY THAT AGAIN, IF WE FIND A TRUTH IN LENDING VIOLATIONS IT MAY TRIGGER AN EXTENDED THREE YEAR RIGHT TO RESCIND, OR CANCEL YOUR LOAN.

AS A LAW FIRM WE CAN USE THE EXTENDED RIGHT TO RESCIND TO CREATE LEGAL LEVERAGE THAT CAN BE USED TO ASSIST YOU IN OBTAINING A MEANINGFUL LOAN MODIFICATION. WE HAD ONE CLIENT THAT WAS SEEKING A LOAN MODIFICATION, BUT WE WERE TOLD HE MADE TO MUCH MONEY. AFTER CONDUCTING A FORENSIC LOAN AUDIT AND UNCOVERING A MATERIAL TRUTH IN LENDING VIOLATION, WE PRESENTED A SCENARIO FOR RESCISSION TO THE LENDER. THE LENDER WAS VERY UPSET ABOUT OUR USE OF THE TRUTH IN LENDING LAW, BUT WE INFORMED THEM THAT THIS IS OUR CLIENTS LEGAL RIGHT AND THAT THE LAW MUST BE FOLLOWED. AFTER A FEW WEEKS OF WRANGLING BACK AND FORTH WE WERE ABLE TO SETTLE ON A 4% LOAN MODIFICATION.

NOTICE OF DEFAULT / NOTICE OF SALE DATE (ITS NOT TOO LATE TO NEGOTIATE DURING THE NOD/NOS PROCESS): WE RECENTLY HAD A CLIENT THAT WAS ON THE BRINK OF FORCECLOSURE. HE HAD BEEN ABUSED BY SEVERAL LOAN MODIFICATION COMPANIES AND DECIDED TO USE THE SERVICES OF A LAW FIRM TO SEEK A MEANINGFUL LOAN MODIFICATION. WE AUDITED HIS FILE, SUBMITTED OUR DEMAND LETTER AND WERE ABLE TO EXTEND THE SALE DATE ON THE PROPERTY. ULTIMATELY WE WERE SUCCESSFUL IN OBTAINING A LOAN MODIFICATION.

THESE ARE JUST A FEW EXAMPLES OF CALIFORNIA HOMEOWNERS WE WERE ABLE TO ASSIST WITH OUR ATTORNEY LOAN MODIFICATION SERVICES. AGAIN, OUR PRICING IS COMPETITIVE WITH THE PRICING OF REAL ESTATE BROKERS WHO PROVIDE THE SAME SERVICE (ALTHOUGH NORMALLY WITHOUT ALL OF THE SERVICES WE PROVIDE).

LOAN MOD TIP: DO NOT TAKE THE LENDER’S WORD FOR ANYTHING UNLESS IT IS IN WRITING!! HOMEOWNERS HAVE BEEN PROMISED THAT NO SALE OF THEIR PROPERTY WOULD OCCUR WHILE A LOAN MODIFICATION WAS BEING WORKED OUT, ONLY TO HAVE THE HOUSE SOLD FROM UNDERNEATH THEM. DO NOT TRUST LENDERS TO TREAT YOU FAILRY. YOU NEED A LAW FIRM TO PROTECT YOUR INTEREST.

IF YOU ARE A HOMEOWNER IN NEED OF A MEANINGFUL LOAN MODIFICATION, CONTACT OUR OFFICE TO DISCUSS. WE HAVE A REPRESENTATIVE STANDING BY TO DISCUSS YOUR LOAN. CALL US AT (877) 276-5084.

LET ME SAY THAT AGAIN IN CASE YOU DIDN’T QUITE HEAR THAT (BULLHORN) THE BANKS HAVE THE POWER TO MODIFY YOUR LOAN: DON’T TAKE A FORECLOSURE NOTICE LYING DOWN - YOU MAY HAVE LEGAL RIGHTS THAT YOU CAN ASSERT THAT MAY HELP YOU SAVE YOUR HOME FROM FORECLOSURE. CALL ATTORNEY STEVE VONDRAN TODAY AT (877) 276-5084. WHY BEG WHEN YOU MAY HAVE THE LEGAL RIGHT TO DEMAND?

WACHOVIA / WORLD SAVINGS SUBPRIME LOANS AND OPTION ARM LOANS: FOLKS, IF YOU HAVE A WORLD SAVINGS OPTION ARM LOAN OR A WACHOVIA OPTION ARM LOAN, CONTACT US TODAY TO DISCUSS YOUR LOAN. WE HAVE BEEN VERY SUCCESSFUL IN OBTAINING SWIFT RESULTS (NORMALLY IN 7-30 DAYS) WHICH IN SOME CASES HAVE RESULTED IN OBTAINING PRINCIPAL REDUCTION. AGAIN, WE DO NOT GUARANTEE ANY PARTICULAR RESULTS. WE TAKE THESE WACHOVIA AND WORLD SAVINGS LOAN ON A CONTINGENCY FEE BASIS, WHICH MEANS YOU PAY NOTHING UNLESS WE OBTAIN A LOAN MODIFICATION FOR YOU.

CALL US TODAY AT (877) 276-5084 TO DISCUSS YOUR WACHOVIA OR WORLD SAVINGS LOAN.

WRAP UP: AGAIN, THE BANKS AND LENDERS HAVE THE ABILITY TO MODIFY YOUR LOAN. IT IS NOT TOO LATE TO SAVE YOUR HOME FROM FORECLOSURE AND LOWER YOUR INTEREST RATE.

CONTACT OUR FIRM TO DISCUSS YOUR CASE.

OUR NUMBER AGAIN IS (877) 276-5084. WE ARE HERE AND STAND READY TO FIGHT FOR YOU TO SAVE YOUR HOME AND GET YOU THE MEANINGFUL LOAN MODIFICATION YOU ARE SEEKING AND WHICH IN MANY CASES THE LENDERS ARE INCENTIVIZED TO PROVIDE.

YOU CAN FIND MORE INFORMATION AT WWW.VONDRANLEGAL.COM . Submit your property information at www.LoanModSoultions.Net. If you are a victim of loan modification scams submit your information at www.LoanModificationRipoff.net.

ARIZONA OFFICE: 2415 E. Camelback Road, Suite 700, Phoenix, Arizona 85016

CALIFORNIA OFFICE: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

_______________________________________________________________________________________________________________________

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Military Loan Modifications - Army, Navy, Air Force, Marines, Coast Guard, National Guard - Loan Mod Lawyer Service

Steve Vondran (Law Offices of Steven C. Vondran) — Mon, 27 Jul 2009 13:43:47 -0500

I have been getting calls lately from a few active military personnel asking if there are any special loan modification rules and laws that may help a soldier or person employed by the army, navy, air force, marines, national guard or coast guard stay in their home, avoid foreclosure and obtain a meaningful loan modification. This blog post will discuss in general terms only, the "Servicemembers Civil Relief Act" which can be found at 50 USC Section 501-596.

The following is general legal information only. If you have any specific questions about our attorney loan modification services in Greater Phoenix, Arizona or the State of California please email me at Steve@VondranLaw.com or call us at (877) 276-5084. We also have websites at www.VondranLaw.com and www.VondranLegal.com. Emails are not confidential and do not create an attorney-client relationship so please do not send confidential information.

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The Servicememebers Civil Relief Act (SCRA) was passed on Dec. 19, 2003. This law amends the Soldier's and Sailors Civil Relief Act of 1940.

In general, the law seeks to protect active duty service members and their families from facing foreclosure while in active duty, or within 90 days after discharge. In addition, financial provisions cap interest rates at 6% while the servicemember is on active duty. This may help you if you are facing foreclosure and seeking a meaningful loan modification to protect you, your family, and your real estate investment.

If you have more questions about this law, contact us at steve@vondranlaw.com or call (877) 276-5084.

Emails sent to us are not confidential and do not create an attorney-Client relationship. This is an advertisement and communication pursuant to state bar rules. The above information is not legal advice nor is it intended to serve as legal advice.

The Law Offices of Steve Vondran is licensed to practice law only in California and Arizona. We do not seek to solicit clients outside of these two states. Steve Vondran is licensed as a Broker and Attorney in both California and Arizona.

Arizona Office (Serving Greater Phoenix Homeowners) 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85020.

California Office: (Servicing San Diego County, Riverside County, San Bernardino County, Orange County, and all other towns and cities in California). 620 Newport Center Drive, Suite 1100 Newport Beach, Ca. 92660.

www.VondranLaw.com / www.AttorneyMods.com / www.LoanModificationRipoff.net / www.AdvanceFeeContract.com

Loan Modification Lawyer takes Wachovia and World Savings Loans on Contingency Fee Basis!

Steve Vondran (Law Offices of Steven C. Vondran) — Sun, 26 Jul 2009 20:28:53 -0500

Attention California and Arizona homeowners - if you are facing foreclosure and cannot afford your loan in its current condition (i.e. you have an adjustable rate mortgage that is about to adjust or a negative amortization ARM that you cannot keep up with) give us a call to discuss our attorney loan modification service. Basically, we have been having very good success in obtaining loan modifications for Wold Savings Option Arm Loans and Wachovia Option Arm loans. Also for subprime loans for Wachovia and World Savings.

The best part about all of this is YOU PAY NO UP-FRONT FEES UNTIL AND UNLESS WE OBTAIN A LOAN MODIFICATION FOR YOU. YES, THAT MEANS WE WILL TAKE THE CASE ON A CONTINGENCY FEE BASIS. All we need from you is a payment coupon, income documentation, hardship letter and usually that will suffice. At times we may require other documents such as tax returns, rental agreements, bank statements, etc. But this is the exception rather than the rule.

Timeframes: Barring any issues with mortgage insurance, we are able in most cases to get an approved loan modification in 10-30 days. Compare that with the usual 30-120 days most other loan modifications company take and you have a pretty good deal there. Now, please note we can make no guarantees, warranties or promises that we will be successful in obtaining a loan modification. If you make too much money, or make too little, there may be obstacles to obtaining a meaningful modification. But when there is no advance fee, what do you have to lose?

Contact us to discuss your loan situation. What's more impressive about the World Savings Options Arm and Subprime Loans, and Wachovia Option Arm Loans and Subprime loans service is there is a realistic chance of obtaining principal loan balance reduction. This means, the lender may be willing to reduce your loan balance from $400,000 to $300,000 etc. (this principal loan balance reduction obviously will result in a reduced loan payment because you are paying you loan on a lesser amount than you are now).

Types of Loan modifications we are obtaining on a contingency fee basis for Wachovia and World Savings Option Arm and Subprime Arm Loans:

(1) Interest rate reductions

(2) Converting ARM loans into fixed loans

(3) Reducing principal loan balance ("principal reductions")

(4) Interest rates starting in the low 2% (again no guarantees)

(5) The lender (now owned by Wells Fargo) likes to give "step-up" interest rate programs (ex. the interest rate is 2.5% first year, 3.0% second year, 3.5% third year. etc.). Again this is just an example.

If you are facing foreclosure and have received a notice of default or notice of sale, you might want to consider hiring a California or Arizona loan modification law firm. There are lots of companies calling themselves "attorney-backed" or "attorney based" especially in Phoenix, Arizona, but no one has been able to really describe to me what that means or how it benefits you as a homeowner.

What we typically find in these scenarios is that there is either no attorney whatsoever (i.e. they lure you in with the "attorney badge") only to learn there is no attorney at all, or they will claim an attorney will do the loan audit and negotiation (only to find out they outsource this to a non-attorney processing company) or there is an attorney but the contract you sign indicates the attorney will not represent you and will not provide legal advice or legal services. I ask you, what is "attorney backed" or "attorney based" loan modification company? If you really want an attorney, why not just hire one?

Call us to discuss your loan modification. (877) 276-5084. We have offices in Phoenix, Arizona and Newport Beach California. Attorney Steve Vondran, Esq. is licensed to practice law in both states, and he also holds a real estate broker license in both states. Mr. Vondran has previously worked in the mortgage lending arena and essentially his last day of work was when the owner insisted that all salespersons sell the option arm negative amortization ("negam") loans. These products are an example of predatory loans that are deceptively marketed and rarely understood by the non-investor borrower. Mr. Vondran can be reached at steve@vondranlaw.com or www.vondranlaw.com.

Because most all of our work with you and the lenders is done by phone, fax, and email, we are able to serve California and Arizona homeowners in all of the following cities and towns:

Arizona

CALIFORNIA

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If you are a homeowner looking for an attorney or law firm to handle your loan modification request, please visit www.loanmodsolutions,net Fill out the form and a representative of our firm will contact you promptly to discuss your situation.

Homeowners who believe they may have been a victim of loan modification fraud should visit www.LoanModificationRipoff.net . Fill out the form and a representative of our firm will contact you promptly to discuss your situation.

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You can also reach Steve Vondran, Esq. at steve@vondranlaw.com OR visit www.VondranLegal.com

Commercial advance fee contract at www.commercialadvancefeeagreement.com

Residential advance fee agreement at www.advancefeecontract.com

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Other legal services we provide to our California and Arizona Clients:

Real Estate Zoning & Entitlements in Phoenix and Scottsdale area (and surrounding cities)
Greater Phoenix Eminent Domain and Prop. 207 law (inverse condemnation)
Real estate Arbitration
Real Estate Litigation
Quiet Title Actions
Real Estate Broker Law (contracts, partnerships, commission disputes, etc.)
Loan Modification / Loan Workout (Foreclosure Prevention)
Forensic Loan Audit
Predatory Lending Law
Arizona Restaurant Law (Purchase, Sale, Site Selection)

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OUR OFFICES:

ARIZONA OFFICE (Phoenix, Arizona)

2415 E. Camelback Road, Suite 700
Phoenix, Arizona
85016
Phone: (877) 276-5084
Email: Steve@VondranLaw.com

CALIFORNIA OFFICE (Newport Beach, California)

620 Newport Center Drive, Suite 1100
Newport Beach, California
92660
Phone: (877) 276-5084
Email: Steve@VondranLaw.com

THIS IS AN ADVERTISEMENT AND COMMUNICATION PURSUANT TO STATE BAR RULES.

Some thoughts by an Attorney on SB 94 Calderon Loan Modification Bill Preventing Advances Fees from Being Paid for Loan Modifications

Steve Vondran (Law Offices of Steven C. Vondran) — Tue, 14 Jul 2009 12:05:16 -0500

The California legislature has moved to pass a bill known as SB 94. The law seeks to prevent Brokers (and according to Governor Schwarzennegar) and Attorneys to prevent them from taking advance fees for performing loan modifications. My office has received many calls from Brokers and Attorneys inquiring into the practical effect of this law, if it in fact passes. Here are just a few of my comments to which I welcome rebuttal points:

First, here is the governor's point of view: http://www.prweb.com/releases/loan-modifications/california/prweb2618464.htm

And here is a text to the actual proposed bill: http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0051-0100/sb_94_cfa_20090327_152419_sen_comm.html

(1) Submitting a loan modification package to a lender seeking a loan modification is not an easy task (it takes alot of time to package the file, submit, contact lender, follow-up etc.), and if someone wants to pay a licensed broker or a licensed attorney to handle this as a service, the California homeowner should be able to do that. What is this "nanny state" where the legislature tries to tell a California homeowner how they can spend their money? If someone wants to pay a loan modification attorney to perform a service, shouldn't they be entitled to do that? If they don't want to pay in advance they can shop around for those options too. As a consumer, they are free to shop around and do their homework.

(2) The loan modification is a unique business. For many California homeowners, they want a great modification (not just any ole modification) and if Brokers and Attorneys were forced to wait for payment until after services are performed, and if the homeowner were to either get no loan modification at all, or a modification they were not pleased with, in some cases the homeowner will not be willing to pay for the services provided. This hardly seems a fair result either and works to de-incentivize Brokers and attorneys from taking loan modification cases where advances fees cannot be charged. Also note, that many times (even for me as a lawyer) the bank sends the loan modification agreement directly to the homeowner. This also adds to the difficulty of getting paid, especially if the homeowner made a few calls to the banks and talked to the lender, and they feel they are the reason they got a loan modification.

(3) If attorneys are de-incentivized to take foreclosure assistance cases, and if California homeowners are directed toward non-profits and companies that will work without an advance fee, then there will be a serious void of legal advice available for California homeowners. Non-profit associations may not give legal advice, neither may brokers or other companies that will not take advance fees. This means, the lenders have a slew of lawyers advancing their causes, while the homeowner is virtually left with little or no opportunity for obtaining legal advice. Why doesn't the law also say bankruptcy attorneys cannot charge an advance fee in performance of services?

(4) Undoubtedly, many California homeowners will be solicited by out-of-state brokerages and non-broker "loan mod companies" who will seek to serve these Clients for a fee, despite the California requirements. This will take money out of California, and divert it to other states and their local economies (after all, loan modifications is currently a pretty good business for many California Brokers and Attorneys). This business will be gone along with a chance to keep the California economy healthy. Schwarzennegar does not seem to care about local and state-wide economics, at least at the attorney/broker level.

(5) There could be stringent licensing and education requirements imposed on California brokers and attorneys who want to engage in the loan modification business (ex. special licensing requirements) and fees could be charged for these services. This would help raise revenue and the level of services would it not? I never seem to hear about proposals of this nature. Rather, the focus is merely on protecting consumers by prohibiting advance fees.

(6) California homeowners need legal advice in many cases during the loan modification process. They ask questions about truth in lending, RESPA, the foreclosure process, legal rights and remedies, qualified written requests, deficiency judgments and asset protections, charge offs, etc. To require attorney to provide all of this information without collecting an advance fee does not seem rationale. If a person wants to pay for this advice so they know where they stand in relation to their lender, or want to know if they have rights against the lender, broker, loan servicer, etc., they should be permitted to exercise their free will, shop around for the best deal and best attorney they can find (or licensed loan modification broker) and freely contract for valuable services to be rendered. Isn't there a principal known as the "freedom to contract?"

Interstingly, the California State bar supports the bill. See http://docs.google.com/gview?a=v&q=cache:wFiRUorfdIAJ:bog.calbar.org/docs/agendaItem/Public/agendaitem1000004814.pdf+california+state+bar+sb94+july+22,+2009&hl=en&gl=us

The word I am hearing is that the Banking Lobby is behind this bill because they would rather have homeowners paying them, than paying loan modification brokers and attorneys.

These are just a few of my thoughts. I welcome any commentary or rebuttal.

Steve Vondran, Esq. can be reached at steve@vondranlaw.com or (877) 276-5084. Mr. Vondran is an attorney licensed in California and Arizona and is licensed as a real estate Broker in both states. He is helping homeowners with loan modifications (you can submit your information at www.LoanModSolutions.net) and loan modification scams (submit your scam at www.LoanModificationRipoff.net). Emails are not confidential and not subject to attorney client privilege and create no relationship with the attorney by submitting such. This is an advertisement and communication pursuant to state bar rules.

We have offices in Phoenix, Arizona and Newport Beach, Ca. (See links below for complete office address)

Also be sure to visit www.VondranLaw.com and www.VondranLegal.com.

Procuring Cause in California - A general overview of procuring case principles and guidelines to help you in your real estate commission dispute

Steve Vondran (Law Offices of Steven C. Vondran) — Sun, 12 Jul 2009 23:47:18 -0500

Procuring Cause and Real Estate Commission Disputes - Some Tips and Guidelines to Help Analyze your Commission Dispute (edit/delete)

ENFORCING REAL ESTATE COMMISSIONS IN CALIFORNIA - THE REQUIREMENT TO HAVE AN AGREEMENT AND BE THE PROCURING CAUSE OF THE SALE.

The following is general legal information only and may not be 100% accurate, complete or up-to date. Additional legal cases may need to be reviewed. In addition, this article is not designed to be, nor should it be construed as legal advice, or a substitute for legal advice. Rather, it is merely an overview of some of the legal issues and cases involving procuring cause. For specific questions about your case, please consult with a qualified attorney to discuss the unique facts of your case.

Attorney Steve Vondran is licensed to practice law in both California and Arizona and is a licensed real estate broker in both states. He can be reached at steve@vondranlaw.com or by calling (877) 276-5084.

Generally speaking, there are three requirements necessary to assert a right to enforce a real estate commission in California:

Proper licensing of the broker / salesperson

A valid and enforceable written commission agreement obligating either the buyer or seller, to pay a commission (this is a statute of frauds requirement Under California Civil Code Section 1624), or, an agreement (oral or written) with the Listing Broker to pay a commission.

The broker or salesperson seeking the commission must be able to prove, by a preponderance of the evidence, that he or she is the “procuring cause” of the sale.

Note: Agency Relationships do not determine whether or not a party is entitled to compensation. Agency is a separate issue. The issue is whether or not there is an enforceable agreement for compensation between either: (a) the cooperating broker and the listing broker that would entitle the cooperating broker to recover a portion of the commission from the listing broker (in this event there must be an express agreement between brokers to share the commission, but the agreement need not be in writing), or (b) whether the cooperating broker has an enforceable right to recover compensation from either the owner or buyer directly based on contract principles that require a written agreement in that event.

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Let’s look at each of these issues briefly.

I. Requirement of a Valid Real Estate License at the time of the real estate transaction: This pretty much goes without saying, but a brokerage is only entitled to a real estate commission if it is properly licensed at the time of the real estate transaction (basically meaning at the time the compensation agreement was signed with the Seller). If there is no valid license then the compensation and listing agreement would likely be deemed void and unenforceable thus quashing the broker’s claim for a commission.

A salesperson can only be paid through a broker who has a duty to supervise the activities of the salesperson. By contacting the DRE, it is possible to obtain a licensing history on any individual claiming to be properly licensed and working for a broker and this can be verified. You may also want to check for basic licensing information on the California Department of Real Estate website which can be searched here: http://www2.dre.ca.gov/PublicASP/pplinfo.asp

II. There must be a writing creating a commission obligation. This is a statute of frauds requirement in California (Civil Code Section 1624) and a pre-requisite to obtaining commissions claimed.

This section of the code states:

1622. All contracts may be oral, except such as are specially required by statute to be in writing.

1623. Where a contract, which is required by law to be in writing,is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party.

1624. (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent:

(1) An agreement that by its terms is not to be performed within a year from the making thereof.

(2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.

(3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.

(4) An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate where the lease is for a longer period than one year,

for compensation or a commission.

Pursuant to this Section, a broker's real estate agency/commission agreement, with either the buyer or seller of the property must be in writing (as per California Civil Code Section 1624(d)), and the writing must unequivocally show on its face the fact of employment of the broker if the broker seeks to recover a real estate commission. It is for the court to determine whether letters, memos, and other documents passed between parties constitute an agreement between them.

In order for a memorandum to satisfy the statute of frauds, only the essential terms must be stated, while details or particulars need not be, and what is essential depends on the agreement and its context and also on the subsequent conduct of the parties. Restatement Second of Contracts Section 131. A memorandum of a contract for the sale of real property must identify the buyer, the seller, the price, and the property. See Sterling v. Taylor, 40 Cal.4th 757 (2007).

A licensed real estate broker's presumed knowledge of the statute of frauds precludes him from showing the reasonable reliance on an oral agreement that is necessary to assert equitable estoppel.

Likewise, an oral promise by a broker's principal to execute the required writing at a later date will not give rise to estoppel. Likewise, a broker's reliance on an oral promise to pay a commission or an oral promise to execute the required writing at a later date cannot be sufficiently reasonable to support an action for fraud. A broker's reliance, however, on a representation that the necessary contract has in fact been executed may be reasonable and thus support an action for fraud or the assertion of equitable estoppel. Phillippe v. Shapell Industries, 43 Cal.3d 1247 (1987).

To summarize the above material another way, If the agreement is to employ a real estate agent for the purpose of obtaining a commission, this agreement must be in writing per California Civil Code Section 1624. To enforce a right to commission against an owner or property (or against the Buyer who may employ you as an agent), a written agreement would be required. Many Buyer representation agreements provide that the Buyer agrees to pay the commission if the Seller does not. What this means is that at the end of the day if you are a Broker and you want to enforce a real estate commission against either the buyer or seller directly (where you have procured a ready, willing, and able buyer on terms and conditions of the listing), you are wise, and indeed usually required, to have a signed written agreement setting forth the fact of employment and other important details of the representation.

As an example, a Buyer’s agent may submit an offer directly to the seller. If the written offer contains a commission obligation, and the Seller agrees to the price and terms set forth in the offer this agreement will create an express contractual right of the Buyer’s agent to enforce the commission against the seller. Also Note, There may be limited grounds to enforce the commission against the seller - who signed a written contract with the listing agent, which contract expressly sought and authorized (appointed) the participation of the 3rd party co-operating buyer’s brokers (A third party beneficiary of the seller / listing agent contract). See Steve Schmidt & Co v. Berry, 183 Cal.App.3d 1299 (1986) and Smith v. Wright, 188 Cal.App2d 790 (1986).

If, however, a co-operating broker (ex. Buyer’s agent) is seeking to enforce a commitment to pay a commission against the other broker (ex. listing agent), an express writing / contract is NOT required. An oral/verbal or written agreement (ex. MLS Listing that seeks cooperation from other brokers and which assert/agrees to pay a commission if a seller ready, willing and able to complete the transaction on terms acceptable to the seller is procured) with the co-operating broker is a sufficient agreement to enforce a right to commission against the listing broker directly. When the listing broker receives their compensation, they are obligated, pursuant to the duty to execute contracts in good faith, to ensure your commission is paid as agreed.

Basically, a brokerage MLS listing is an offer of a unilateral contract, the act requested being the procuring by the broker of a purchaser ready, able and willing to buy upon the terms stated in the offer and is revocable at will of owner in good faith at any time before performance, regardless of broker's efforts. Baumgartner v. Meek, 126 Cal.App.2d 505, 508 (1954).

III. The Broker must be the “Procuring Cause”

Assuming the Broker/Salesperson is properly licensed, and assuming a right to enforce the commission exists, the Broker (whether listing agent or buyer’s agent) still needs to be able to show that they were the “procuring cause of the sale.” One or more licensees / entities may be claiming to be the procuring cause of a sale, thus initiating the commission dispute.

Although there is no easy way to answer the question as to what PROCURING CAUSE OF A SALE actually is, and therefore identify who is entitled to the commission, here are a few general guidelines. We also have a few “factors” and “considerations” that may provide some measure of guidance.

Procuring cause’ has been defined as the cause originating a series of events that, without break in their continuity, result in the accomplishment of the prime object of the employment.‘ (9 Cal.Jur.2d, Brokers, § 80, pp. 242-243).

Where several agencies have been active in bringing about a sale the crucial question is, which broker was the predominating efficient cause? The Sessions case case held that: “Predominating efficient cause may be defined as the broker who set in motion a chain of events, which, without their break in continuity, cause the buyer and seller to come to terms as the proximate cause if his peculiar activities, the mere fact that he contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest being insufficient.” A Broker who is, in fact, the primary procuring cause, will not be deprived if his commission merely because negotiations were completed through someone else, even perhaps, without broker having personally met or communicated with the Buyer. See Sessions v. Pacific Imp. Co. 57 Cal.App 1, 18.

‘The word 'procure’ does not necessarily imply the formal consummation of an agreement. ... In its broadest sense, the word means to prevail upon, induce or persuade a person to do something. ... The originating cause, which ultimately led to the conclusion of the transaction, is held to be the procuring cause. Rose v. Hunter, 155 Cal.App.2d 319 (1957).

If the broker is, in fact, the procuring cause ‘it is unnecessary for the broker to prove that he was the first one to bring to the attention of the purchaser the fact that the property in question was for sale. ...‘ Webster v. Parra, 72 Cal.App 639.

FOR MY ARIZONA BROKER CLIENTS: A broker is the "procuring cause" of a sale, (entitled to commission), if her efforts are the foundation on which the negotiations resulting in a sale are begun. A cause originating a series of events which, without break in their continuity, result in accomplishment of the prime objective of the employment of the broker who is producing a purchaser ready, willing, and able to buy real estate on the owner's terms. Mohamed v. Robbins, 23 Ariz. App. 195.

According to the National Association of Realtors (NAR) - Professional Standards in regard to procuring cause:

A broker is the “procuring cause” if the broker’s efforts are the foundation on which negotiations resulting in a sale begin.

They go on to state: “it is the cause originating a series of events which, without break in their continuity, result in the accomplishment of the prime objective of the employment of the broker who produces a ready, willing and able purchaser to buy real estate on the owner’s terms.”

Whether a broker is deemed to be the procuring cause of a sale depends on looking at and analyzing a wide variety of factors. There is no simple solution in most cases, but a case-by-case, fact-by-fact analysis is normally required. Here are a few factors to think about in regard to who is the procuring broker of a sale (a hypothetical broker #1 and the subsequent, or perhaps simultaneous broker #2). No fact should be deemed conclusive, but rather, just tipping the scale in favor of one broker or the other. Procuring cause is complicated and not always predictable.

In addition, in an arbitration or commission dispute hearing the arbitrator or hearing panel will likely consider all available facts and evidence and seek to achieve a fair and just outcome. They may also find that two or more brokers are “partial procuring cases” thus requiring a split of the commission.

Factors Leading toward a Finding of Procuring Cause for Broker #1 (Intro Broker)

Broker #1 was the first to show or introduce the actual property to be purchased to the buyer (more than merely mentioning the property is listed for sale). Closing Broker never showed the Property. Note: merely being the first to show the property or present an offer will not automatically make a broker the procuring cause;
Buyer was ready, able and willing to buy and a written offer was communicated to the Seller even if not accepted;
Closing Broker submitted a similar offer within a short time frame of Broker #1’s offer;
The introduction by Broker was instrumental in creating the desire to purchase (broker motivated the buyer);
Broker gave proper agency disclosures when making an offer;
Broker makes continued efforts and continued contacts with buyer after showing the property (didn’t withdraw from the representation in the eyes of the buyer) and/or removed impediments to the sale;
Broker made a proposal upon which the final transaction was based;
Broker exerted more effort than any other broker (ex. provided significant information about the property, neighborhood, schools, financing, etc. (things that contribute to the Buyer’s interest);
Broker acted in good faith at all times during the transaction;
There was a continuous and uninterrupted closing of the sale (buyer did not come back and buy the property many months or years later);
Subsequent broker interferes in bad faith (ex. before representing Buyer, Closing Broker never asked if Buyer had dealt with any other brokers or signed any agreements with anyone);
Seller “locks out” or “freezes out” the Broker in an attempt to avoid paying a commission;

On this topic note: Normally, the price at which a broker is authorized to sell the property (i.e. the asking price listed in the MLS) is usually just a guide for the broker to consider in conducting her negotiations with co-operating brokers. Therefore, if the broker procures a purchaser willing to pay a lower price to purchase the property, the owner cannot deprive the broker of a commission simply by eliminating the broker and conducting the final negotiations himself, and, selling at a lower price to the purchaser who was actually procured by the broker. See Palmtag v. Danielson, 30 Cal. 2d 517, 521, Bail v. Glantz, 78 Cal. App. 49, and Rutherford v. Berick, 82 Cal. App. 2d 331.

13. The sale would not have occurred “but for” the efforts of the broker #1;

14. Intro Broker knows Client will be attending open houses and informs Buyer to tell any other broker that they are represented by Broker #1;

15. Closing Broker is not a member of the MLS wherein the property was listed; or a reciprocal MLS, and had no other commission agreement with the Listing broker for a commission;

16. Intro Broker has a written right to represent buyer (either exclusive or non-exclusive), signed and dated before Broker #2 enters the scene.

These are just some of the factors that will weigh into a finding that Broker#1 was the procuring cause of the sale and thus owed a real estate commission.

Factors that Mitigate against a finding of Procuring Cause for Broker #1 (Meaning, Broker #2 - Closing Broker - is more likely to be deemed the procuring cause)

   1. Buyer knew of Property before Intro broker introduced (buyer found property on his own) and Closing Broker also showed property;
   2. There were previous dealings between the buyer and the seller so that Intro Broker’s Claims of introduction are not as strong;

   3. Buyer Found property via an open house through no help of Broker #1;

   4. Broker #1 engaged in some type of mis-conduct (act or ommission, lack of knowledge, misrepresentations, lack of professionalism etc.) that made the buyer seek out a second broker. A buyer who has not signed a buyer’s agency agreement is free to choose a new broker to work with;

   5. Closing Broker set forth events that created the desire to purchase the subject property (broker #2 motivated buyer to purchase);

   6. Closing Broker made offer to purchase after significant passage of time from the previous offers and exerted greater effort in getting the deal done;

   7. Original negotiations broke down with Broker #1 (gap in continuity) and were revived in good faith and without intentional interference by Broker #2;

   8. Closing broker wrote and negotiated offer and performed all closing services while escrow was closing;

   9. Intro Broker failed to keep in touch with Buyer after first offer was rejected;

Again, these are all just factors that are weighed along with the facts of the case to make the factual determination of who the procuring broker was entitled to a commission. An arbitrator will hear and weigh all of the facts surrounding the case.

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Typical Defenses Raised by Sellers in an attempt to defeat a commission dispute:

The commission contract is not valid and enforceable;
The broker was not the procuring cause of the sale;
Breach of fiduciary duty by Broker (ex. broker breaches duty of reasonable care, skill, loyalty, etc.);
Broker had knowledge the Seller was not able to convey the property (ex. Broker knew Seller could not convey marketable title);
Broker did not fulfill the terms and conditions of the Broker agreement;
Buyer was not ready, willing and able to buy the property on Seller’s terms;
Brokers claims for commission are outside the statute of limitations period.

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Potential Damages a Seller / Broker May face who refuses to Pay the commission owed (this assumes for the most part that litigation of the dispute, rather than arbitration, is pursued):

Commission owed;
Interest on Commission;
Reasonable Attorney Fees;
Punitive damages where the property owner / Broker has committed bad faith acts (willful, wanton, and/or malicious) designed to interfere with the Listing Broker’s / Co-operating broker's entitlement to a commission.

IF YOU ARE IN NEED OF LEGAL REPRESENTATION TO ANALYZE YOUR COMMISSION DISPUTE, OR ASSERT A CLAIM FOR COMMISSIONS OR DEFEND A CLAIM OF PROCURING CAUSE, CONTACT US TO DISCUSS YOUR SITUATION. WE CAN OUTLINE YOUR LEGAL POSITION TO YOUR OPPONENT AND HOPEFULLY DETRACT THEM FROM PURSUING THE MATTER. IF FORCED TO ARBITRATE OR LITIGATE YOUR CLAIM, WE ARE HERE TO HELP FRAME YOUR CASE IN THE BEST POSSIBLE LIGHT.

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OTHER LEGAL SERVICES PROVIDED BY THE LAW OFFICES OF STEVEN C. VONDRAN, P.C.

Real Estate Commission Disputes - Procuring Case
Real Estate Arbitration and Litigation (www.VondranLaw.com)
Phoenix / Scottsdale Eminent Domain Law
Zoning and Land Use in the Greater Phoenix area
Real Estate Broker Law (Commission disputes / Business Formation/ Broker Contracts)
Advance Fee Agreements (www.AdvanceFeeContract.com)
Loan Modification / Loan Workout (www.VondranLegal.com) (http://www.www.LoanModSolutions.net)
Loan Modification Scams / Ripoffs (www.LoanModificationRipoff.net)
Forensic Loan Audits\

We are able to serve our California Broker Clients in the following California Counties and Cities

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OUR OFFICES:

ARIZONA OFFICE (Phoenix, Arizona)

2415 E. Camelback Road, Suite 700
Phoenix, Arizona
85016
Phone: (877) 276-5084
Email: Steve@VondranLaw.com

CALIFORNIA OFFICE (Newport Beach, California)

620 Newport Center Drive, Suite 1100
Newport Beach, California
92660
Phone: (877) 276-5084
Email: Steve@VondranLaw.com

We help California brokers and salespeople in the following cities: San Diego, La Jolla, Newport Beach, Huntington Beach, Dana Point, Huntington Beach, Anaheim, Fullerton, Brea, Orange, Laguna Beach, Laguna Niguel, Mission Viejo, Aliso Viejo, Rancho Santa Margarita, Dana Point, Coto de Caza, Riverside, San Bernardino, Los Angeles, San Francisco, Fresno, and other cities in California.

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This is an advertisement and communication pursuant to state bar rules. The law offices of Steven C. Vondran, P.C. is licensed to practice law only in the States of California and Arizona and only seeks to represent Clients from these two states.

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Commercial Loan Modifcation Advance Fee Agreement For Sale.....has received a letter of non-objection

Steve Vondran (Law Offices of Steven C. Vondran) — Mon, 22 Jun 2009 23:57:36 -0500

There has been a lot of talk lately about commercial loan modifications and how this will be the next wave in the loan modification wave. I have had several California Real Estate Brokers contact me asking if I have had any commercial advance fee agreements approved.

I have recently submitted, and the DRE has issued a letter of non-objection for an advance fee agreement and verified accounting that focus on commercial real estate property. My agreement allows you to charge a pretty good amount and best of all, it has already authorized for use.

Contact me to discuss my commercial advance fee agreement. As an attorney, I have legally setup over 45 companies to legally engage in the loan modification business in the State of California. If you are a California licensed real estate broker and looking to assist California homeowners or California commercial properly owners, please give me a call at (877) 276-5084 to discuss my commercial advance fee agreement. In this business, time is money and I can help get you setup as fast as possible with the DRE.

You can see my commercial advance fee agreeement advertisement at http://www.commercialadvancefeeagreement.com/ I have another advance fee agreement website at www.advancefeecontract.com

OTHER LEGAL SERVICES WE PROVIDE: REAL ESTATE ARBITRATION / REAL ESTATE LITIGATION / FORENSIC LOAN AUDITS / PREDATORY LENDING LAW / BROKER CONTRACTS AND AGREEMENTS / REAL ESTATE ZONING AND ENTITLEMENTS IN PHOENIX AND SCOTTSDALE ARIZONA (AND SURROUNDING CITIES) / EMINENT DOMAIN AND INVERSE CONDEMNATION IN THE GREATER PHOENIX, ARIZONA AREA / ARIZONA RESTAURANT LAW - PURCHASE AND SALE AND SITE SELECTION.

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CALL US TOLL FREE (877) 276-5084

The Law Offices of Steven C. Vondran, PC

Arizona Office
2415 E. Camelback Road, Suite 700
Phoenix, AZ 85016

California Office
620 Newport Center Drive, Suite 1100
Newport Beach, CA 92660

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This is an advertisement and communication pursuant to State Bar Rules. We are licensed to practice law only in California and Arizona and only represent Clients in these two states.

Arizona Loan Modification Attorney Frequently Asked Questions......FAQ

Steve Vondran (Law Offices of Steven C. Vondran) — Sat, 20 Jun 2009 19:30:37 -0500

Here are some questions we routinely receive and our typical responses to such. Note, as with all of our callers and emailers, the following is general legal information only and not intended to be construed as legal advice or a substitute for legal advice. For specific loan modification or foreclosure prevention questions, please consult with a qualified attorney.

Attorney Steve Vondran, Esq. may be contacted at (877) 276-5084 or by email at steve@vondranlaw.com

Thank you for visiting our site. We hope you find the material enjoyable.

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What is a loan modification?

A loan modification is any adjustment, alteration, or modification, of the terms of your existing mortgage loan, whether first and/or second mortgage. Typical types of loan modifications offered by the lenders are:

 Arranging for the delinquent payment amounts to be added to the end of loan (forbearnace)

 Reducing fixed interest rates to lower fixed rates

 Reduce adjustable interest rate CAPS

 Stopping the upward adjustment of adjustable interest rates

 Converting adjustable interest rate into fixed rates

 Arrange for the delinquent payment amounts to be added to a longer loan period

 Setting up alternative payment plans

 Elimination or reduction of delinquent payment amounts

 Reducing hte principal balance loan

 Lender may accept discounted pay-off

The type of modification you qualify is typically up to the borrower. There is no legal requirement as of the writing of this blog that would suggest any loan modification or certain type of modification is rquired to be presented to any borrower.

Do I qualify for a loan modification?

In order to qualify for a loan modification, at the minimum you normally need to show a financial hardship (loss of job, loss of income, but also the ability to afford a reasonable monthly payment on your loan).

The job of your loss mitigation representative (loan modification attorney) is to package up your financials and hardship letter and submit these to the lender for review.

Where an attorney is involved, you will normally have a detailed forensic loan audit performed which is designed to identify potential predatroy lending violations (RESPA, Truth in Lending, Loan Mortgage Fraud, etc.) that may be used to leverage yor lender or loan servicer.

The Obama "making home affordable" program created new options for loan modifications and the criteria for qualifying for these programs are easily obtainable. In fact, we have written a prior summary of these requirements. Here is an outline that presents other possible guidelines for loan modifications: http://activerain.com/blogsview/971756/where-is-the-change-obama-s-loan-modification-plan-offers-little-more-than-voluntary-loan-modifications-and-more-incentives-for-the-financial-institutions-

What is a forensic loan audit?

A forensic loan audit is an evaluation of your loan documents in an effort to identify potential predatory lending violations that may serve as the basis for leveraging a loan modification. This is especially true where the originator of the loan is the same entity that is currently servicing the loan.

Typical items we look for when conducting a forensic loan audit:

(1) Did each borrower or person with ownership interest get two copies of the Notice of Right to cancel with the Rescission date filled in? (Federal Truth in Lending requirement - TILA).

(2) Were the material TILA disclosures made, and were they accurate if made (APR, Finance Charge, Amount Financed, Total of Payments). If these disclosures were not made or defective in nature, an extended three year right of rescission exists.

(3) Were the good faith estimate and preliminary truth in lending statements given to the borrower within 3 days of giving the loan application? (if not, a right to rescind may exist).

(4) Were advance fees improperly collected?

(5) Was the broker/loan officer properly licensed at all stages of the loan origination process?

(6) Was the ARM / Option ARM / Negative Amortization Loan accurately disclosed in the note and adjustable rate rider?

(7) In a non-purchase loan, did the borrower receive the required three day right to rescind?

(8) After the broker ran the credit, were the credit scores disclosed and factors affecting risk properly disclosed?

(9) Can the lender produce the promissory note and prove it has the right to collect the debt?

(10) Is the note clear and comprehensible (or do we have grounds to argue that a contract was never formed - that there could be no meeting of the minds)?

(12) Were the loan documents properly signed, executed and notarized?

(13) Option Arms / Negam Loans: We will assert that these loans are predatory in nature and potentially unconscionable. The terms of the note and adjustable rate rider may conflict making it virtually impossible to properly disclose this in a truth in lending statement.

(14) Is the loan unconscionable and thus unenforceable?

(15) Was their any fraud, deceit or undue influence used against the elderly?

(16) If the lender targeted minority groups, where the contracts negotiated in the language of the borrower?

(17) Was there predatory underwriting on stated income loans (i.e. underwriter did not verify borrowers stated income via salary.com or in another manner as required by their internal policies - turning a blind eye and not following their own underwriting policies to get a loan done)

(18) Were there excessive fees that Violate HOEPA? Or YSP fees that are predatory in nature that feathered the nest of the broker at the expense of the borrower?

(20) Were FICO scores and credit risk factors properly disclosed?

Note: There are no guarantees, promises or representations made that a loan audit will reveal any of these loan compliance or legal errors. Every file is different. We are never required to follow-up our audits or loan modification services with actual litigation. Attorney has the sole discretion whether or not to accept any litigation cases.

More information about our California and Arizona Forensic Loan Audits can be obtained at www.AttorneyMods.com

What documents are required for a loan audit?

At a minimum the following documents should be located and provided for a loan audit.

Promissory note
Riders and addendums to the promissory note
Deed of Trust
Riders and addendums to the deed of trust
Loan program disclosures
Credit score disclosures
Copy of appraisal (if you have it)
Good faith estimate
Initial Truth in Lending Statement
Final Truth in Lending Statement
CHARMS Booklet / ARM Disclosures
All other initial Disclosures
Final HUD Settlement statement
Copy of all loan applications

If you do not have these loan documents check with your original broker/lender or escrow company. A qualified written request may also help you obtain these documents.

Does a forensic loan audit guarantee a loan modification?

NO. There are rarely any guarantees that can be made about a loan audit. At best, these audits can be used to provide leverage for a loan modification (a lender does not want to be sued). In addition, these audits may raise legal claims against the broker who got you into the toxic sand predatory loan in the first place.

However, when it is your home that you are seeking to save, most of our clients have agreed that it is in your best interest to do everything possible to try to find some leverage that can potentially be used to assist you in obtaining a loan modification.

How long does the loan modification process take?

Typically you can expect the process to take anywhere from 30-150 days. If you are facing a notice of sale date the lenders have evidenced a willingness to movefaster. In many other cases, the process can be time consuming and re-submission of updated financials and new packages is always a possiblity.

The key thing to remember is to be patient and always provide accurate updated information as soon as possible after the request is made.

How much does a loan modification cost?

Prices typically range from $500 to $5,000. Contact us at (877) 276-5084 for our pricing.

What lenders have you represented Clients against?

The Law Offices of Steve Vondran has been processing loan modification files and has experience dealing with the following mortgage lenders and loan servicers:

Bank of America
Countrywide
Chase
Aurora Loan Services
Washington Mutual
Nationstar
World Savings (Call us if you have a World Savings Option Arm Loan - we have been getting principal reduction in select cases)*
Wachovia (Call us if you have a Wachovia Option Arm loan - we have been getting principal balance reductions in select cases)*
Wells Fargo

Is it realistic to think a homeowner can obtain principal loan balance reduction in the loan modification process?

I would say realistically this is very difficult, although not impossible. My office was obtained prinicpal loan balance reduction on Wachovia - World Savings Option Arm loans in certain circumstances. Not all loans will apply.

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We are assisting California and Arizona loan modification clients. Attorney Sean Bodkin is licensed in Arizona only and only represents Arizona clients.

Keywords:

AVONDALE LOAN MODIFICATION / BUCKEYE LOAN MODIFICATION / FOUNTAIN HILLS LOAN MODIFICATION / PHOENIX LOAN MODIFICATION / SCOTTSDALE LOAN MODIFICATION / SURPRISE LOAN MODIFICATION / GLENDALE LOAN MODIFICATION / PEORIA LOAN MODIFICATION / TUCSON LOAN MODIFICATION / FLAGSTAFF LOAN MODIFICATION / MARICOPA LOAN MODIFICATION / SUN CITY LOAN MODIFICATION / GOODYEAR LOAN MODIFICATION / FLORENCE LOAN MODIFICATION / CASA GRANDE LOAN MODIFICATION / APACHE JUNCTION LOAN MODIFICATION / PRESCOTT LOAN MODIFICATION / TEMPE LOAN MODIFICATION / MESA LOAN MODIFICATION / GILBERT LOAN MODIFICATION / CHANDLER LOAN MODIFICATION / SIERRA VISTA LOAN MODIFICATION / LAKE HAVASU LOAN MODIFICATION

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Notice/Disclaimer /Contact Information: The preceeding information is general information only and not intended to serve as legal advice or a substitute for legal advice. For specific legal questions please contact a qualified attorney licensed in your state to assist you. There are no warranites or representations made that the following information is accurate, complete or up to date. In addition, any emails sent to us are not confidential and do not create an attorney client relationship. Please use your discretion before sending confidential information. The Law Offices of Steven C. Vondran is operated by Attorney Steve Vondran. Mr. Vondran is licensed to practice law in the States of Arizona and California and only seeks to solicit and serve Clients in these states. Mr. Bodkin is licnsed to practice law only in teh State of Arizona and serves only Clients in Arizona.

This is an advertisement and communication pursuant to state bar rules. There are no guarantees a loan audit will reveal any legal errors of compliance violations. There are likewise no guarantees any lender or loan servicer will modifiy any loan. Each loan, property, borrower, investor and servicer are different. In addition, there are no representations made that Mr. Vondran will accept any litigation case following a loan audit and/or a demand letter to the lender.

For more information about Mr. Vondran's law firm please visit www.VondranLaw.com the Attorney Loan Audit program can be reviewed at www.AttorneyMods.com If you are a California Real Estate Broker looking for a DRE Approved Advance Fee Agreeement please visit www.AdvanceFeeContract.com We have over 20 approved DRE companies as of this writing and have several advance fee agreement options available including an advance fee agreement that allows for outsourced Attorney Loan Audits and/or a letter to the Lender. We also have spanish advance fee agreements available.

If you are a homeowner and are looking for an attorney or law firm to handle your loan modification request, please visit www.loanmodsolutions,net Fill out the form and a representative of our firm will contact you promptly to discuss your situation. We also have loan modification information available at www.AttorneyLoanAudit.com

Homeowners who believe they may have been a victim of loan modification fraud should visit www.ModScams.com or www.LoanModificationScams.net to learn more about what you can do to fight foreclosure rescue scams.

Our Offices: California: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

Arizona: 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016

Phone (877) 276-5084 Email: Steve@VondranLaw.com

This is an advertisement and communication pursuant to state bar rules! We only seek to represent Clients in CA and AZ where the attorney and firm are licensed to practice law.

Truth in Lending in the loan modification context - can a TILA violation help you leverage a loan modification?

Steve Vondran (Law Offices of Steven C. Vondran) — Sat, 20 Jun 2009 17:55:51 -0500

TRUTH IN LENDING VIOLATIONS MAY HELP YOU OBTAIN A LOAN MODIFICATION.

Attorney Steve Vondran, Esq. may be reached at (877) 276-5084 or emailed at Steve@VondranLaw.com. The following is provided as general legal information only and may not be completely accurate or up-to-date since laws change frequently. You are advised to seek the advice of an attorney for your specific questions. Thank you for visiting our site.

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The Truth in Lending Act (TILA) requires "meaningful disclosure of credit terms" and reflects a shift in emphasis from "let the buyer beware" to "let the seller disclose." It is designed to protect consumers against inaccurate and unfair credit billing by lenders.

The purpose of the truth in lending act is to protect consumers by promoting economic stabilization and competition in the consumer lending market by the informed use of credit in consumer credit transactions. This means that by having better informed consumers, the consumer will be able to make a better decision about his transactions and compare offers from multiple lenders to obtain the ‘best deal'.

The Act is in Title I of the Consumer Credit Protection Act and is implemented by the Federal Reserve Board via Regulation Z (12 C.F.R. Part 226). The Regulation has effect and force of federal law. Since this is a federal law, it takes precedence over any state laws that may conflict with it (this is called federal pre-emption).

TILA is to be liberally construed in favor of consumers, with creditors who fail to comply with TILA in any respect becoming liable to consumer regardless of nature of violation or creditors' intent. This results in increased leverage for consumers when any violation exists, allowing consumers to obtain increased leverage when negotiating with a lender for a loan modification.

TILA applies to each individual or business that offers or extends credit when ALL four of the following conditions are met:

•· The credit is offered or extended to consumers,

•· The offering or extension of credit is done "regularly" [extends credit more than 25 times (or more than 5 times for transactions secured by dwelling) per year],

•· The credit is subject to a finance charge or is payable by written agreement in more than four installments, and

•· The credit is primarily for personal, family, or household purposes.

While this makes TILA applicable to most mortgage transactions, having an owner of a property ‘carry back' the loan on a home would not fall under TILA since the lender does not meet the four criteria outlined above.

TILA requires specific disclosure statements that must be made (1) "Clearly and conspicuously, (2) in meaningful sequence, (3) in writing, and (4) in a form the consumer may keep. The Federal Reserve Board promulgates model disclosure forms, but where they would be misleading, lenders should provide tailored notices consistent with TILA. Common violations of TILA that can be used to your advantage when negotiating for a loan modification occur when a lender uses a ‘custom' form rather than one of the standard forms approved by the Federal Reserve Board. Also, failure to provide copies of the required disclosures to the consumer is another common TILA violation that can be used in negotiating with a lender.

Closed-end Credit Transactions (which includes most mortgage loans) include typical features such as credit being advanced for a specific time period and the amount financed, the finance charge, and the schedule of payments are agreed upon by both the creditor and the consumer.

In a mortgage transaction, the required disclosures include:

•· Identity of the creditor.

•· Amount financed,

•· Itemization of amount financed

•· Annual percentage rate, including applicable variable-rate disclosures,

•· Finance charge,

•· Total of payments,

•· Payment schedule,

•· Prepayment/late payment penalties,

•· If applicable to the transaction: (1) Total sales cost, (2) Demand feature, (3) Security interest, (4) Insurance, (5) Required deposit, and (6) Reference to contract.

So, in addition to the required disclosure forms, the lender must provide all of the specified information in an approved format to the consumer. A comprehensive loan documentation audit will reveal any violations of the disclosure requirements of TILA.

Creditors are liable for violation of the disclosure requirements, regardless of whether the consumer was harmed by the nondisclosure, UNLESS:

The creditor corrects the error within 60 days of discovery and prior to written suit or written notice from the consumer, or the error is the result of bona fide error. The creditor bears the burden of proving by a preponderance of the evidence that (1) The violation was unintentional and (2) The error occurred notwithstanding compliance with procedures reasonably adapted to avoid such error. (Error of legal judgment with respect to creditor's TILA obligations not a bona fide error.)

Speial rules may applicable to loan assignees and holders in due course may apply where you loan is sold after loan origination.

Civil remedies for failure to comply with TILA requirements:

Generally, action may be brought in any U.S. district court or in any other competent court within one year from the date on which the violation occurred. This limitation does not apply when TILA violations are asserted as a defense, set-off, or counterclaim, except as otherwise provided by state law.

Remedies available to consumers are applicable to violations of provisions regarding credit transactions, credit billing, and consumer leases. These remedies include

•· Actual damages in all cases.

•· Attorneys' fees and court costs for successful enforcement and rescission actions.

•· Statutory damages.

•· (1) For individual actions, double the correctly calculated finance charge but not less than $100 or more than $1,000 for individual actions.

•· For class actions, an amount allowed by the court with no required minimum recovery per class member to a maximum of $500,000 or 1% of the creditor's net worth, whichever is less.

•· Can be imposed on creditors who fail to comply with specified TILA disclosure requirements, with the right of rescission, with the provisions concerning credit cards, or with the fair credit billing requirements.

TILA: Right of rescission

In addition to remedies described above, consumers who enter home equity loans and other covered loans may also have rescission rights. Under TILA, a consumer may rescind a consumer credit transaction involving a non-purchase-money security interest in the consumer's principal dwelling:

•· Within 3 business days if all TILA disclosure requirements met, or

•· During an extended statutory period (three (3) years from the date of the transaction) for TILA disclosure violations such as:

•o Failure to give adequate notice of right to rescind. Two (2) copies of the required disclosure must e delivered to the consumer, unless it is delivered electronically. In that case, only one copy needs to be delivered,

•o Failure to give adequate TILA credit term disclosures. These disclosures include the Finance Charge, Payment terms, fees imposed by the creditor and the Annual Percentage Rate (APR).

Rescission voids the security interest in the principal dwelling. Consumer must have ownership interest in dwelling that is encumbered by creditor's security interest. Consumer need not be a signatory to the credit agreement. TILA rescission rights do not apply to business credit transactions, even if secured by consumer's principal dwelling.

The continuing right to rescind exists if required disclosures are not made or made incorrectly, but there is statutory cut-off of extended right to rescind at three years after consummation. In addition, the right to rescind will be cut off earlier by transfer of all consumer's interest in the property (including involuntary transfer such as foreclosure), or sale of the property.

Failure to give proper rescission notice violations giving rise to an extended three-year right to rescind. Creditors are required to deliver two copies of the right to rescind to each consumer entitled to rescind. Failure to provide these two required copies will allow the extended three year right to rescind. Also, the notice must disclose (1) The retention or acquisition of a security interest in the consumer's principal dwelling, (2) The consumer's right to rescind, (3) How to exercise the right to rescind, with a form for that purpose, setting forth the creditor's business address, (4) The effects of rescission, and (5) The date the rescission period expires.

A failure to disclose credit terms of the transaction in accordance with TILA (i.e., interest, payment terms, etc.) is also a violation of the disclosure requirement.

Other terms, conditions,and exemptions apply. Please consult an attorney to discuss your situtation.

WHAT THIS MEANS TO YOUR LOAN MOD

When approaching a financial institution for a modification to your loan, any leverage you have will assist you in maximizing the terms of the modification in your favor. A loan audit of your documents by a licensed attorney may discover items that can be used in the negotiation process to obtain the best possible outcome for you. Note: there are never any guarantees that a loan modification will be obtained whether or not truth in lending violations are uncovered.

The potential of having to pay damages to a consumer (for truth in lending violations uncovered within one year of loan origination) or rescinding the loan (refunding of all principal and interest payments, all closing costs and any down payment) is likeiwse not an action a lender normally wants to face.

To have your situation reviewd please fill out our form at www.LoanModSolutions.net

Loan mod scam victims are encouraged to visit www.LoanModificationRipoff.net

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We also serve Arizona Homeowners: Call us to discuss our Phoenix Arizona Attorney Loan Modification Services. We also assist Arizona homeowners in loan modification services. We server our Arizona Clients in the following cities: Tempe, Mesa, Buckeye, Goodyear, Avondale, Surprise, Sun City, Peoria, Chandler, Gilbert, Casa Grande, Florence, Tuscon, Flagstaff, Prescott, Phoenix, Scottsdale, Fountain Hills, Apache Junction, Maricopa, Kingman, and other surrounding cities.

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Other Legal Services we Provide:

Forensic Loan Audits - Truth in Lending Violations / RESPA violations / Predatory Lending
Loan Modification Company Setup / Broker Contracts
Predatory Lending Law (Predatory Option Arm Loans, Subprime Arm Loans, Elder Abuse, Loan Fraud)
Foreclosure Prevention / Loan Workout
Commercial Lease Modification (Time to re-negotiate your commercial lease?)
Real Estate Zoning in Greater Phoenix area (Variances, Special Use Permits, Zoning Disputes)
Eminent Domain, Inverse Condemnation, and Proposition 207 cases
Real Estate Arbitration
Real Estate Mediation
Real Estate Litigation
Loan Modification Scams and Fraud (Foreclosure rescue scams)

___________________________________________________________________________________________________

Our Offices:

Phoenix, Arizona: 2415 E. Camelback Road (Esplanade) Suite 700, Phoenix, Arizona 85016 (877) 276-5084

Newport Beach, California: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660 (877) 276-5084

www.VondranLaw.com

Email: steve@Vondranlaw.com

This is an advertisement and communication pursuant to State bar Rules. Loan Modification Lawyer Processing Service is available to Attorneys and Law Firms Only. Law Offices of Steven C. Vondran is licensed to practice law in California and Arizona and only seeks to serve Clients in these states. *We make no guarantees, warranties or representations of any particular outcome in any type of case including loan modification and loan workout cases.

RESPA and Loan Modifications: California Attorney Loan Modifications

Steve Vondran (Law Offices of Steven C. Vondran) — Sat, 20 Jun 2009 17:53:03 -0500

TRUTH IN LENDING VIOLATIONS MAY HELP YOU OBTAIN A LOAN MODIFICATION.

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LOAN MODS AND RESPA: WHAT ARE YOUR RIGHTS

The Real Estate Settlement Procedures Act ("RESPA") requires the following in a covered loan transaction:

(1) Good faith estimate be provided to the borrower within 3 business days of the loan application

(2) A final HUD be provided to the borrower which outlines the costs and fees of settlement

(3) There are also other provisions governing escrow and transerring of loans

(4) RESPA also governs a Qualified Written Request:

Federal law requires lenders to comply with certain timelines regarding loan modification inquiries. Section 6 of The Real Estate Settlement Procedures Act "RESPA" requires lenders to acknowledge receipt of a Qualified Written Request "QWR" within twenty (20) days. Additionally, lenders are required to respond to a QWR within sixty (60) days. A properly executed QWR may also protect the borrower from having information about past due payments reported to certain credit reporting agencies by the lender.

However, not all inquiries constitute a QWR for RESPA purposes. A lender's failure to comply with the requirements of RESPA may give rise to damages, costs and attorney's fees payable to the borrower by the lender. Some of the specifics of RESPA requirements are outlined below.

Notice of receipt of inquiry

If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.

What is a Qualified Written Request (QWR)

For purposes of RESPA, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that:

(A) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(B) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.

What takes place after a QWR is sent

(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);

(B) after conducting an investigation, provide the borrower with a written explanation or clarification that includes: (i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and

(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or

(C) after conducting an investigation, provide the borrower with a written explanation or clarification that includes: (i) information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and

(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.

What about my credit?

What are damages if the lender violates RESPA in regards to a QWR?

Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts.

For Individuals

In the case of any action by an individual, an amount equal to the sum of:
(A) any actual damages to the borrower as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.

In Class actions

In the case of a class action, an amount equal to the sum of:
(A) any actual damages to each of the borrowers in the class as a result of the failure; and
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not greater than $1,000 for each member of the class, except that the total amount of damages under this subparagraph in any class action may not exceed the lesser of-
(i) $500,000; or
(ii) 1 percent of the net worth of the servicer.

Costs are recoverable

The lender has an opportunity to correct the problem

A transferor or transferee servicer shall not be liable under this subsection for any failure to comply with any requirement under this section if, within 60 days after discovering an error (whether pursuant to a final written examination report or the servicer's own procedures) and before the commencement of an action under this subsection and the receipt of written notice of the error from the borrower, the servicer notifies the person concerned of the error and makes whatever adjustments are necessary in the appropriate account to ensure that the person will not be required to pay an amount in excess of any amount that the person otherwise would have paid.

RESPA also covers kickbacks and unearned fees

No person may give or receive any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, as part of a real estate settlement on a loan covered by RESPA. This applies generally to any arrangement for referrals between any parties in the transaction, including brokers, title companies and real estate agents. Exceptions to this rule are affiliated business arrangements that are properly disclosed.

There are times when a shocking YSP (Yield Service Premium) paid to a broker may violate this section and create a cause of action against the brokerage, if they are still in business.

What are damages for violating the kickback provision of RESPA?

A violation of this provision of RESPA creates a right of action against ALL participants in the violation, jointly and severally. What this means that all parties have 100% liability for all damages, so your chances at recovery are much higher then if only one party was liable. Recovery could be up to three (3) times the amount of any charges paid for the settlement, plus court costs and attorney's fees.

RESPA and civil liability under TILA

While civil liability for failure to provide some of the required disclosures under RESPA are limited, many of these violations of RESPA may also trigger a violation of the Truth in Lending Act (TILA). These disclosure deficiencies include:

(1) Failure to provide a CHARM (Consumer Handbook on Adjustable Rate Mortgages) booklet on a variable rate loan.

(2) Failure to provide a Good Faith Estimate within three (3) days of taking a mortgage application

(3) A copy of a HUD-1 statement not provided before settlement.

These are not a comprehensive list of the potential opportunities that can be discovered during a loan audit that can be used as potential leverage during a loan modification negotiation. A comprehensive loan audit will look for these and other issues with the original loan documentations and process used for your original loan.

Other terms, conditions,and exemptions to these laws apply. Please consult an attorney to discuss your situtation.

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WHAT THIS MEANS TO YOUR LOAN MOD

When approaching a financial institution for a modification to your loan, any leverage you have will assist you in maximizing the terms of the modification in your favor. A loan audit of your documents by a licensed attorney may discover items that can be used in the negotiation process to obtain the best possible outcome for you. Note: there are never any guarantees that a loan modification will be obtained whether or not truth in lending violations are uncovered.

To have your situation reviewd please fill out our form at www.LoanModSolutions.net

Loan mod scam victims are encouraged to visit www.LoanModificationRipoff.net

The Law Offices of Steve Vondran has been processing loan modification files and has experience dealing with the following mortgage lenders and loan servicers:

Bank of America
Countrywide
Chase
Aurora Loan Services
Washington Mutual
Nationstar
World Savings (Call us if you have a World Savings Option Arm Loan - we have been getting principal reduction in select cases)*
Wachovia (Call us if you have a Wachovia Option Arm loan - we have been getting principal balance reductions in select cases)*
Wells Fargo

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We also Serve Arizona Homeowners: Call us to discuss our Phoenix Arizona Attorney Loan Modification Services. We also assist Arizona homeowners in loan modification services. We server our Arizona Clients in the following cities: Tempe, Mesa, Buckeye, Goodyear, Avondale, Surprise, Sun City, Peoria, Chandler, Gilbert, Casa Grande, Florence, Tuscon, Flagstaff, Prescott, Phoenix, Scottsdale, Fountain Hills, Apache Junction, Maricopa, Kingman, and other surrounding cities.

___________________________________________________________________________________________________
Other Legal Services we Provide:

Forensic Loan Audits - Truth in Lending Violations / RESPA violations / Predatory Lending
Loan Modification Company Setup / Broker Contracts
Predatory Lending Law (Predatory Option Arm Loans, Subprime Arm Loans, Elder Abuse, Loan Fraud)
Foreclosure Prevention / Loan Workout
Commercial Lease Modification (Time to re-negotiate your commercial lease?)
Real Estate Zoning in Greater Phoenix area (Variances, Special Use Permits, Zoning Disputes)
Eminent Domain, Inverse Condemnation, and Proposition 207 cases
Real Estate Arbitration
Real Estate Mediation
Real Estate Litigation
Loan Modification Scams and Fraud (Foreclosure rescue scams)

___________________________________________________________________________________________________

Our Offices:

Phoenix, Arizona: 2415 E. Camelback Road (Esplanade) Suite 700, Phoenix, Arizona 85016 (877) 276-5084

Newport Beach, California: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660 (877) 276-5084

www.VondranLaw.com

Email: sean@Vondranlaw.com

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Procuring Cause and Real Estate Commission Disputes - Some Tips and Guidelines to Help Analyze your Commission Dispute (edit/delete)

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Arizona Loan Modification Attorney Frequently Asked Questions......FAQ

Truth in Lending in the loan modification context - can a TILA violation help you leverage a loan modification?

RESPA and Loan Modifications: California Attorney Loan Modifications

CIVIL CODE
SECTION 2920-2944.5