A Real (estate) Game Changer for Unsuccessful Loan Modifications

By
Real Estate Attorney with federalfinanciallawgroup.com

This could be a real (estate) game changer!  Home owners who attempted to get a loan modification through the Home Affordable Modification Program (HAMP) and who were unsuccessful appear to have legal rights in certain circumstances.  Many home owners have been rejected under various programs after they successfully completed a trial period plan.  A Federal Appellate Court in California recently made this determination. The 9th U.S. Circuit Court of Appeals ruled that Wells Fargo was obligated to “offer plaintiffs a permanent mortgage modification since the plaintiffs submitted accurate financial documents and completed their trial period plan.” The bank had argued that it did not have to offer a permanent loan modification because it had never sent a signed modification agreement. Although Wells Fargo won in a lower district court via dismissal, the appeals  circuit court overturned the ruling and “held that the district court should not have dismissed the plaintiffs’ complaints when the record before it showed that the bank had accepted and retain the payments demanded by the TPP,” read the court opinion.

paddy deighan loan modification

The ruling will affect borrowers in several western states, including California, Arizona, and Nevada (the 9th Circuit). A federal appeals court in Chicago reached a similar conclusion last year. These cases could and should affect rights in other states as well – especially if the other state has not ruled in this issue yet. Lenders have claimed that their refusal to offer permanent loan modifications in specific circumstances have “merits” and “strong defenses”. In some cases, the ,enders plan to appeal or otherwise  “prepared to present its case”. The ruling does not guarantee borrowers a loan modification, but it simply guarantees them the right to sue the lender if the loan modification is denied after successful completion of the Trial Period Plan. In its opinion, the appeals court said that HAMP “seems to have created more litigation than it has happy homeowners.”….WOW!!!!

 

Paddy Deighan J.D. Ph.D

 

http://www.homesavers.pro

Comments (32)

Jimmy Faulkner
Florida. Homes Realty & Mortgage - Wantagh, NY
The Best Of St. Augustine

I hear" I hope the banks get stuck." That is not the answer. We have to change the system that is hurting us. Wells Fargo took the money, had the docs signed an then changed their minds. This is a DICTATORSHIP and it happened because those who voted, voted for the person who spent the most money on the campaign. How do you expect things to turn out for the average person when we behave like children.

Aug 12, 2013 01:01 PM
John Mosier
Realty ONE Group Mountain Desert - Prescott, AZ
Prescott's Patriot Agent 928 533-8142

I agree with you, Jimmy.  The result of poor political choices are the cause of much of what ails our country. The actions of Wells Fargo and the other big banks bring it out so we can see it. Too bad not enough people are watching and learning.

Aug 12, 2013 02:59 PM
Wayne Johnson
Coldwell Banker D'Ann Harper REALTORS® - San Antonio, TX
San Antonio REALTOR, San Antonio Homes For Sale

The playing field is never even when indivicuals compete with corporate entities. Maybe the courts will provide some needed justice to this situation for a few more citizens.

Aug 12, 2013 03:28 PM
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M

Paddy - It will be interesting to see how this finally settles out for the lenders and the home owners.

Aug 12, 2013 04:42 PM
Sandy Padula and Norm Padula, JD, GRI
HomeSmart Realty West & Lend Smart Mortgage, Llc. - Carlsbad, CA
Presence, Persistence & Perseverance
Paddy, it looks like our brothers actively practicing the law have found another profit opportunity that will most likely result in a class-action. Now we all know who gets rich in class action suits and it usually is not the injured party.
Aug 12, 2013 06:45 PM
Scott Fogleman
New Home Team 804-573-9592 - Richmond, VA
Greater Good Group

Paddy- I hope this resolves the issues many homeworners have had,we often hear about them being strung along. 

Aug 12, 2013 08:37 PM
Sally K. & David L. Hanson
EXP Realty 414-525-0563 - Brookfield, WI
WI Real Estate Agents - Luxury - Divorce

We have yet to see any homeowner come out a "winner" in  a loan modificaiton....it buys the homeowner a little time...and the bank far more money.

Aug 12, 2013 08:58 PM
Andrea Swiedler
Berkshire Hathaway HomeServices New England Properties - New Milford, CT
Realtor, Southern Litchfield County CT

Paddy, I must be jaded, I hold out little hope this will amount to much and that the banks will win again. But it is a step one court was willing to take in a better direction.

In the 80's I had to attend a seminar that had to do with health care and town assistance. There was a speaker there who used to work for a very large insurance company and spoke about the 5 finger rule. (It could have been 4 finger, I can't remember exactly now) It had to do with how large the pile of claims were on each claims processor's desk. Anything higher than 5 fingers was thrown out. The theory was.. either they would continue to refile until the claim was paid (if they ever were lucky enough to stay out of the trash) or they would give up. I was horrified.

What I learned way back then was that life isn't fair, and there are those companies who get to do what they want no matter who knows about their activities. 

Once I started hearing about what was happening to most people trying to get a loan modification I knew it was the same thing as the old 5 finger rule I had learned about so many years ago. Approve just enough to fool the government and maybe some naive folks in the real world, and deny the rest. Toss out information sent confounding and confusing everyone. 

Only the banks are winnning. 

Aug 12, 2013 09:45 PM
Fernando Herboso - Broker for Maxus Realty Group
Maxus Realty Group - Broker 301-246-0001 - Gaithersburg, MD
301-246-0001 Serving Maryland, DC and Northern VA

How many failed modifications I saw that resulted in a desperation short sale. . many of my clients decided that it was just too much and they wanted closure. .

Aug 12, 2013 10:05 PM
Brien Berard
Remax Professionals Laurel MD - Laurel, MD
Maryland Real Estate Agents - Laurel Real Estate

This is amazing stuff.  How are these banks getting away with this stuff?  Lets hope the legal system holds them accountable.

Aug 12, 2013 10:41 PM
Michael Setunsky
Woodbridge, VA
Your Commercial Real Estate Link to Northern VA

Paddy, the loan modification process is just a way to appease homeowners into thinking they will be able to save their homes. When all along the banks have an ulterior motive to foreclose.

Aug 12, 2013 11:18 PM
Paddy Deighan MBA JD PhD
federalfinanciallawgroup.com - Vail, CO
Paddy Deighan J.D. Ph.D

All, I too hope that the banks get their "just desserts" (never knew exactly what that meant - LOL. However, the real culprits here are the Wall Street pirates...I will explain in my next blog

Aug 13, 2013 02:01 AM
Paddy Deighan MBA JD PhD
federalfinanciallawgroup.com - Vail, CO
Paddy Deighan J.D. Ph.D

...not to mention the Securities Fraud, IRS fraud and more...all committed by the Wall Street thieves....banks were unknowing pawns in a complex scheme orchestrated and conducted expertly by Wall Street.

Aug 13, 2013 02:03 AM
Paul Collier
Patriot Home Mortgage - Huntington Beach, CA
Paul Collier

With their sketchy track record on foreclosure, it's hard to believe they won't find a way around this one too. Hopefully it will be a life raft for a few.

Aug 13, 2013 02:40 AM
Gary Frimann, CRS, GRI
Eagle Ridge Realty / Signature Homes & Estates - Gilroy, CA
REALTOR and Broker

"Never forget with how little wisdom the world is being governed".  That's all I can say.  Forgot who said it first, but it is from a few centuries ago.

Aug 13, 2013 05:19 AM
Paddy Deighan MBA JD PhD
federalfinanciallawgroup.com - Vail, CO
Paddy Deighan J.D. Ph.D

Gary, I will quote a CZECH Republic newspaper...."the problem is not with American politicans, it is the people who vote for them,"

Aug 13, 2013 05:25 AM
Lloyd Binen
Certified Realty Services - Saratoga, CA
Silicon Valley Realtor since 1976; 408-373-4411

Paddy, if a borrower and lender have voluntarily entered into a mortgage contract why is everyone else interfering?  Haven't the parties to that contract already agreed what happens if the borrower defaults?  

Aug 13, 2013 09:50 AM
Paddy Deighan MBA JD PhD
federalfinanciallawgroup.com - Vail, CO
Paddy Deighan J.D. Ph.D

Lloyd, that is certainly one approach  for me and many courts have ruled along those lines...the tie-breaker for me is that when the borrower went into default, credit default swap insirance paid off the loan (and then some)

Aug 13, 2013 10:29 AM
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

Many home owners don't have the fortitude or resources to fight their lender. Why Glass-Steagall needs to be put back in place to freeze Wall Street in its tracks. I look forward to your next blog. Thanks for the update today. 

Aug 13, 2013 01:01 PM
Wayne Zuhl
Remax First Realty II - Cranford, NJ
The Last Name You'll Ever Need in Real Estate

Good info for borrowers. The "right to sue" doesn't seem like enough of a guarantee to me.

Aug 14, 2013 04:54 AM

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