HOW TO CHOOSE AN AUDITOR, LOSS MITIGATOR, SHORT ALE “SPECIALIST”, LOAN MODIFICATION “EXPERT” — CHEAP IS DEAR, YOU GET WHAT YOU PAY FOR

ohio-ag-files-suit-against-loan-mod-predator-be-careful

The answer to your question is YES we have lawyers and the list grows every week. You can start with the “Lawyers Who Get it” at http://www.livinglies.wordpress.com. If you still have trouble then contact us again. In the meanwhile, allow me to point out that the process of defending your property is intimidating to many people. That is because the lenders’ lobbyists made it that way. The blog site and my seminars and workbooks untangle the apparent chaos and give the homeowner or the homeowner’s attorney the steps to prepare their case before going to a lawyer, if they don’t have some emergency because they waited too long to defend themselves. There are still steps they can take if they waited too long but they come in a different order.

BEFORE HIRING AN ATTORNEY:
Here are the basic steps that must be taken in order to effectively present a credible threat to your lender AND A CREDIBLE ORGANIZED PACKAGE TO A PROSPECTIVE LAWYER THAT MIGHT TAKE YOUR CASE. The goal is a substantial modification of the loan in which the principal and payments are reduced or eliminated. I have distilled the methods of everyone from the people who the very narrow “audit” comparing the Good Faith Estimate to the Settlement Statement, all the way through those who perform full forensic analysis. Since the cost can vary as much as between $200 to $20,000 and each company or person offering “audit,” “loan modification”, “loss mitigation”, performs a different set of services, I have created Garfield’s Continuum (1-2 day workshops for Lawyers and 1/2 day workshops for homeowners, and workbooks for each). The Continuum deals with legal strategies, theories and fact finding. Based upon what works and what doesn’t I have come up with the minimum menu of services that MUST be included if you are aiming to get a substantial modification and not one that merely extends your loan to 40 years and adds on your back payments to the principal due on the note.

ANY PERSON OR ENTITY THAT DOES NOT OFFER THESE SERVICES IS AT BEST “SCALING DOWN” JUST GET MONEY FROM YOU FOR UNDETERMINED RESULT OF QUESTIONABLE VALUE. THE COST OF THE BASIC  SERVICES SHOULD RANGE FROM $1500-$2500. EXTENDED SERVICES ARE BY AGREEMENT.


  1. Documents to be examined:
    1. Promotional literature, correspondence and borrowers notes from initial contact with mortgage broker of “lender.”
    2. Any document purporting to give the terms of a proposed loan including but not limited to Good Faith Estimate
    3. The Good Faith Estimate and documents supporting affordability and benefits
    4. The settlement statement
    5. The name and contact information and appraisal report including the actual person and license number of the appraiser, the amount of the previous sale, any prior appraisals available to borrower, and the borrower’s estimate of current value decreased by 12% for broker’s fees (6%) and current average discount from asking price (6%).
    6. The name and address of the mortgage broker, and the specific person the borrower dealt with, whether the mortgage broker is still in business.
    7. Identification of the loan originator
    8. Determination if FNMA or Freddie MAC were actually involved or if the standard forms were used from those or any other (HUD) GSE.  (Government Sponsored Entity)
    9. Identification of title agent with name and address
    10. Identification of title insurance company with name and address
    11. Identification of the escrow agent with name and address
    12. Identification of the closing agent with name and address
    13. Identification of the Trustee with name and address
    14. The set of closing documents given to the borrower: the ones provided before closing, the ones provided after closing and any documents that were transmitted appointing servicer or substitution of Trustee or assignment etc.
    15. SEC reports and annual reports of any of these entities or affiliates
    16. If available, Sampling investigation to determine if Pooling and Services Agreement, Assignment and Assumption Agreement, Insurance, Credit Default Swaps, Cross Collateralizing, Over-collateralizing, reserves, and bailouts from Federal Reserve or U.S. Treasury can be produced for examination.
    17. Documents, if available, showing authority of any party alleging rights to enforce, collect or perform modifications, issue notices of delinquency, default, sale or file foreclosure actions, unlawful detainer (eviction) actions etc.
  2. Basic Required Services — For expediency and cost purposes, the initial “analysis is presumed to be using a “sampling technique” that identifies probably information that is applicable but does not guarantee accuracy or completeness)

    1. Retainer Agreement in Writing for analysis, collection etc., that allows for attorney tot ake over relationship on certain conditions.
    2. Written authroization form Borrower executed in triplicate and notarized (each copy)
    3. Analysis of disclosures and promotional literature to determine the nature of the deal the borrower thought he/she/they were getting and comparison with the actual result.
    4. Analysis of GFE etc. and comparison with actual deal, disclosures of third party funding, table funding, surprise fees, undisclosed fees, undisclosed parties, etc.
    5. Analysis of settlement statement to determine the representation of the parties at closing to the borrower and comparison with actual deal.
    6. Appraisal Sampling analysis to determine negnligence or fraud based upon comparables of time, geography and whether developer asking prices were used to inflate the appraisal. Calculation of potential claim for inflated appraisal. Determination of the expected life of the loan based upon adjustments, expected market conditions etc. Calculation of probable effect on APR over the expected life of the loan.
    7. Analysis of whether the closing conformed to GSE guidelines as industry standards
    8. Analysis of conduct of the mortgage broker to determine potential claim for negligence or fraud
    9. Analysis of conduct of the title agent to determine potential claim for cloud on title, negligence or fraud
    10. Analysis of conduct of the title insurance company to determine potential claim for cloud on title, negligence or fraud
    11. Analysis of conduct of the escrow agent to determine potential claim for negligence or fraud
    12. Analysis of conduct of the closing agent to determine potential claim for negligence or fraud
    13. Analysis of results of investigation for compliance with TILA, RESPA, HOEPA, RICO, Deceptive Business, Deceptive Lending, usury etc.
    14. Analysis of conduct of the Trustee or successor Trustee on Deed of Trust, if applicable to determine potential claim for negligence or fraud
    15. Sampling analysis to identify potential successor trustees (Pool, SIV, SPV etc.)
    16. Sampling analysis to determine where the borrowers payments have been sent and how they have been applied, if available.
    17. Sampling analysis to determine if the the named entity as Payee on the Promissory note has been paid in full by a third party — and preliminary abalysis as to whether the note became non-negotiable, whether the borrower owes anyone any amount, and if so who that might be and how much it might be, if it is possible to make such determinations in the preliminary investigations.
    18. Issuance of Preliminary Findings Report to be sent to servicer or whoever the borrower is sending payments to or otherwise in communication with.
    19. Challenge letter to each party seeking to enforce, whether lawyer or party, raising defensive positions concerning their authority to act.
    20. Extensive Qualified Written Request with suggestions for resolutions, coupled with Notice and contract for appointment of Borrower or Borrower’s designee as attorney in fact for reconveyance as per RESPA.
    21. Demand letter and notice if Lender fails to comply.
    22. Challenge letter if Lender denies claims or requires additional written authorization
    23. If available, counsel’s recommendation of next steps
  3. Extended Services:
    1. Appointment of agent for reconveyance
    2. Recording reconveyance
    3. Recording other instruments in property records
    4. Expert Affidavit
    5. Expert testimony
    6. Exhibits prepared for court
    7. Form complaints, motions and affidavits
    8. Legal ghost Writing
    9. Consultation with Borrower’s attorney
    10. Appearances in Court
    11. Forensic Review
      1. Basic, non sampling
      2. Full audit including examination of servicer’s ledgers etc.

12 Responses

  1. I became recently married and did not realize how my bad my husbands financial situtation was. The home is in foreclosure, tax warrant’s and judgments. He has filed BK in the past.
    My heart goes out to all the people who are struggling and losing their homes and jobs. AT this point I am in need of all and any information on how to tackle this big monster and what ramifications this will have on me. I am filing separately but still need to provide his SSN on my return.
    I have lived within my means and have been very blessed with meeting my needs until this. My mother has lived with me for over two years and she is living with us presently. I am fearful for her future at this point. Shame on me , but it is what it is.
    HELP please. We live in Southern OK.

  2. SHOULD WE BUY P-JELLY OR WAIT?

    We left out the APR disclosure Violation in the Fed Box & on the ysp and appraisal as well as the other factors too. Thanks Niel, Tim

  3. Dear Readers and New Visitors to Mr. Garfield’s web blog; if you can, please donate to this web blog as Mr. Garfield provides help to needy consumers and industry professionals! This is so important and if we were not so strapped for funds with paying lawyers, we would support this web blog generously as this really is a public service to all citizens whether they know it or not as every consumer that saves their home and every educated lawyer, judge or industry professional who learns how to help consumers fight the fight, and do the right thing, stops the declining property values in your community and this is why it is so very important to contribute to this web blog please! These are very noble and good works as to receive, you/we must give! God bless you Neil! Thank you, Tim

  4. PLEASE LET US KNOW IF IT IS TIME TO PURCHASE ANOTHER CASE OF PETROLEUM JELLY?

    Hi Neil, we must tell you this too, the Final Truth in Lending Disclosure, Within the Federal Box, the amount financed, is also incorrect because Wells Fargo over charged in the loan payoff; Wells Fargo failed to apply 5 years of interest and payments and submitted a loan payoff balance to Lehman that was only 1500.00 less then what we had financed 5 years earlier; amortizing the FHA, Wells Fargo loan at 7% on 136,000 balance, resulted in about a 12,000 overpayment to Wells Fargo; the new complaint has dropped these Wells Fargo Claims alike but, this act of mortgage fraud, as Lehman had a fiduciary duty to ensure the payoff balance was correct, resulted in all numbers within the Fed Box also being wrong & constitutes TIL Material Disclosure Violation!

  5. IS IT TIME FOR US TO PURCHASE ANOTHER CASE OF PETROLEUM JELLY?

    Bless you Neil! As you know as we have shared, our newly retained lawyer changed our complaint to a HOEPA complaint; We are having second giving to this as we believe, for us, this was and is a very costly way to go? We really knew little of the HOEPA law and have read thru and researched our National Consumer Law Library books, and according to these legal experts, HOEPA should only be used where there are few or little material disclosure violations that would give rise to TIL action or your rights have tolled, neither here applies to us?

    We have also gleaned from our library, that filing a HOEPA is an uphill legal battle as according to NCLA authors and experts opinions contained in their credit series, HOEPA is distained by most judges, bk trustees and lenders because it basically suggest you have a simple case of buyers remorse!

    Our second concern between HOEPA and TIL material violation claims and deceptive acts is there is not as much case law on the books due to HOEPA being a relatively newer law that was enacted on or around 1995.

    The defendants in our pending action have answered our lawyers HOEPA complaint with a 36 page Motion to Dismiss alleging frivolous, malicious allegations ranging from we just have buyers remorse,(which we don’t, sobs committed mortgage fraud and forged loan docs and did not apply our payments), but most importantly, our now newly amended complaint by our lawyer no longer alleges our TIL material violation and drops off the scummy trustees who filed fraudulent foreclosure against us devoid of delinquency!

    We do not know HOEPA as well as we know our Material TIL claims and will take us more time then we have to read thru our NCLA books to glean this information but, we are again concerned about legal counsel and the direction he has taken our case in.

    We are having a hard time wrapping our heads around what would motivate counsel to abruptly change the direction of our case from what is evident on the face of our loan documents, Material loan violation disclosures of about 30 in toll vs. HOEPA?

    We are concerned there may be a need for a case of petroleum jelly soon and want some of your pearls of wisdom here please.

    Material TIL loan disclosure violations in our case that are EVIDENT AND CONSPICUOUS ON THE FACE OF OUR CLOSING DOCUMENTS, the Good Faith Estimate, The Notice of Right to Cancel, The Final Truth in Lending Disclosure, The Note and the HUD-1 are as follows to cite a few:

    The GFE, NORTC, FTILD & HUD-1 all disclose the loan as being a Conventional, 30 year obligation HOWEVER, The Note discloses a 120/10 interest only and 240; this is also out of consort with the disclosures and payment schedules on the GFE, which shows 3 changes in payments vs. FTILD which reflects 6 changes in scheduled payments & constitutes a TIL material disclosure violation;

    The Note & Deed; appoints Lehman as the recipient of our $ 1542.00 monthly payments however, Aurora Loan Services, surfaces after loan closing whereupon our settlement agent asked we sign a signature affidavit at the request of Lehman so he could substantiate our signature,(we know, this is how they fabricated the ALS Forged Loan Documents & Sec. violations and the selling of the note forward), but, Aurora maintained they only purchased our loan on 9/30/03, 15 days after the loan closing; this is when they, ALS, changed the loan terms to a payment option loan and jacked our first monthly payment up to $ 1924.00 and now instructed us to send the first payment to them therefore causing yet another violations under scheduled payments & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 803, neither disclose the appraisal fee of $ 350.00 paid in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 808, Lehman fails disclose his Tax Service Contract fees in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 809, Lehman fails disclose his Underwriting fees in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 811 Application Fee, None on GFE & 2003-2004 Annual Property Tax Fee on HUD-1, Lehman fails to disclose these cost AND, Wells Fargo failed to forward the paid taxes as a rebate credit because the taxes had just been paid by the refinanced lender Wells Fargo and constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 812 Commitment Fee, None on GFE & Processing Fee on HUD-1, Lehman fails to disclose his Processing Fees in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 813 Warehouse Fee/Interest Differential, None on GFE & Courier Express Fee on HUD-1, Lehman fails to disclose these Courier Express Fee in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 814, Yield Spread Premium, None on GFE & Underwriting Fee to Lehman on HUD-1, Lehman fails to disclose these Underwriting Fees to Lehman in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    GFE & HUD-1, Line # 815, Servicing Related Premium or Kickback and theft by stick-up with HUD-1, BUT None on GFE & Yield Spread Premium to be Paid to Broker Congressional Funding POC, Payment Out of Contract on HUD-1, Both Conspire to Commit Fraud & Theft by STICKUP WITH HUD-1, Both fail to disclose the illegal Yield Spread Premium in connection with the extension of the credit & constitutes, Mortgage Fraud, Respa Violation & TIL material disclosure violation;

    GFE & HUD-1, Line # 902, ALS added undisclosed PMI in connection with the extension of the credit & constitutes a TIL material disclosure violation;

    Moreover, according to a letter from ALS/Aurora 5 months after closing the loan, ALS admits they are charging undisclosed PMI and further informs us they were not the holder of the note at the 9/15/03 closing but merrily purchased the loan from Lehman on 9/30/03 or 15 days after the loan closing,(a lie, as ALS, according to Sec xchng. filings, is Lehman’s master servicer and this was an act of outright mortgage fraud from inception) But, constitutes a TIL Material Violation under timing and payment schedules; We must note also, we received after closing of the loan and signing the signature affidavit, 3 additional first payment letters all containing 3 different payment amounts to be sent to 2 different locations all to be sent on 11/1/2003 which further constitutes a TIL Material Violation under timing and payment schedules;

    Interest rate disclosed in GFE vs. FTILD, is in conflict, the GFE discloses a Conventional Loan as does the FTILD, however the GFE discloses a 5.87% vs. the FTILD federal box APR disclosed was 4.95% Plus on the right side of the Fed Box, just above Total of Payments, the interest rate is disclosed as being 5.87%; again, further constitutes a TIL Material Violation under Annual Interest;

    GFE vs. FTIL Lender; the lender/Lehman was never disclosed on the GFE which was given only 14 hours prior the loan closing; this is a long one but, the violations are, but not limited to; None of Lehman cost were disclosed…ouch for LEH, & is a TIL material disclosure violation; the true loan terms were not disclosed & is a TIL material disclosure violation; the true and accurate payment schedules varied considerable from the GFE to the FTIL therefore, making disclosure inaccurate;

    Early ARM disclosures were never given or reissued as would have had to occur here if we had agreed to a 5/1 Payment Option Loan and is the WHY GFE, NORTC, FTIL & HUD-1 all disclose a Conventional 30 Fixed Rate Loan & is a TIL material disclosure violation;

    Neil, these are just a few of the TIL Material Disclosure Violation as I could just go on, and on, and on, and on!

    I have not done the many disclosure violation contained within the Federal Box of the Final Truth In Lending Disclosures but will just touch on the main violation that are;

    The Annual Interest Rate of 4.96%, was used nowhere in the computation of the Finance Charges, Amount Financed & Total Payments After All Payments Have Been Made, therefore making all of these numbers wrong & constitutes a TIL Material Violation under clear, conspicuous & concise Disclosure Requirements; This further makes all sums relied on incorrect and therefore makes all disclosures within the Fed Box & constitutes TIL Material Disclosure Violation;

    Now, given Disclosures were not given and, the lender has failed to date to provide said corrected disclosure, our claims have tolled into perpetuity or infinitely therefore we see no logical reason our lawyer has selected HOEPA.

    Do we need to order a case of petroleum jelly yet Neil?

    We ask that you please address this in this forum for the benefit of us all and thank you in advance for your time addressing this very important matter.

    Best Regards, Tim

  6. dny: Thick my arse. the answer is YES> And the language in RESPA is “personal use” which might even include investment properties.

  7. Sorry if I’m a bit thick about this… but are you suggesting that EVEN IF the mortgage was on a second home, then Reg Z Exempt Transaction (§226.3) “Credit in excess of $25 thousand not secured by real or personal property used as the principal dwelling of the consumer” would not necessarily get the Lender off the hook because the transaction is in fact a non-exempt securities transaction or credit extension which is not exempted by Reg Z language ” Credit extended by a broker-dealer registered with the Securities and Exchange Commission (SEC) or the Commodity Futures Trading Commission (CFTC), involving securities or commodities accounts;”?

    I’ve heard folks say that if TILA rescission is asserted regarding a mortgage loan, it can ONLY apply to primary residence because of the Reg Z “Exempted Transactions” list. If seen as a non-exempt transaction (such as fraudulent sale of securities), then rescission should be able to be asserted on a second home. So by “ALL” mortgage transactions … you mean “ALL” mortgage transaction!?! !)

    Thanks for your clarification.

  8. Reg Z: True enough on its face. But the REAL transaction was NOT a mortgage loan — it was the sale of unregulated securities under false pretenses thus having an illegal object (Fraud) as its objective. It is my opinion that the exemptions do NOT apply to 98% of these loans and that the remedies are available for ALL “mortgage” transactions. In addition because non-disclosure, appraisal fraud and identity theft lay at the heart of the scheme, NONE of the rescission remedies are time-barred until full disclosure is completed. In plain language the closing is not complete until the parties are fully disclosed. Since that never happened (in most cases) the three-day rescission, three-year rescission and rescission for fraud and identity theft are not time-barred because the time never started to run. Of course, when the appraisal fraud is added as a cost tot he loan, the APR is misstated and is probably over the legal limit making the transaction illegal. If the state has usury laws, which most do, then the remedy is nullification of the note, mortgage and obligation, treble damages and attorney fees, plus return of all money paid. The usury exemptions do not apply for the same reason that the time does not start to run — the real party in interest who funded the loan was never disclosed and, in fact, was NOT a chartered financial institution which negates the claim of exemption.

  9. Under Reg Z & 15 USC 1635(e)(2) with certain exceptions, rescissions are limited when the same creditor refinaces the loan, then rescission only applies to the extent of the new advance.

    This is clear to us but where we are having trouble is when a broker originates a loan and then brokers it out to say Wells Fargo, then a different broker originates a new refinace and brokers it out to Wells Fargo too. In this case would Wells Fargo be considered the “same creditor” under the statute limiting rescission?

    Thank you,
    Steve

  10. Neil,

    I am receiving a referral or two from you so thank you. I have ideas I also want to share privately subject to a few mass action suits. Sooo!

    Nationwide Loan Servicing is an Expert and case development firm. We are not attorneys. We are that service in California for examining the events and circumstances in states enforcing a power of sale for recovery or one action procedure.

    But we do differentiate ourselves as follows.

    1. Only non agency private labels stuff. NO GSE
    2. No modification or short sale promises (you’re being stroked folks – it doesn’t exist due to recourse versus ownership of the asset)
    3. We can demonstrate early on a major material breach and real abuse of the system.
    4. You must sign a release stating
    you have the intestinal fortitude to hang it out – it’s not fun nor easy folks.

    The claims stem from a shocking and unlawful deviation from policy and code whereby a relatively simple transaction and those that necessarily evolved from it and were not concluded or carried out in a manner satisfactory to the laws. For example – The Trust requirements causing MERS and 1st Franklin to split the lender and beneficiary are a joke

    First, we are not necessarily equipped to opine as experts with regard to Fannie Mae and the GSE’s. We just don’t know it.

    Next as for MOD’s and Short’s – (Example) The originating entity, say 1st Franklin is specifically prohibited from owning any assets in a pass through structure due to nature of the Trust. Yet they are filing (tax returns) stating they SOLD the asset which is fine. But 1st Franklin subsequent to funding will jump back in with their servicing arm under a sub servicing agreement. (It’s the proverbial China Wall) That is a potential trust violation if one officer is working both ends or comingling of assets takes place and are shown where reporting. .

    A trust cannot be messed with if you will and that’s a hard fact! (These people are so exposed is sickening).

    Other Arguments

    Now you don’t know who is calling you when you (the borrower) are down 60 days. Is it FFFC the lender depository or 1st FFC the servicer? I say this because one of the two (guess) has recourse committing them to buy back the loan you want to modify. None the less, 60 days is a great time to call us as it is the trigger for recapture.

    My point about modifications is in reference to where most of our cases do end up. If they won’t modify a loan on their own (THEY WONT) had they still owned the receivable they certainly are not going to cough up the cash to buy it back and then take a hit.

    Modifications are a stroke and waste of time diverting you into a false sense of hope.As you say, the lender here is not a lender (depositor) and sponsor, etc. However we also know MERS is a straw and not a beneficiary. What’s important is the lender lives in perpetuity forever on record by way of settlement.

    A REAL LENDER may elect to transfer its beneficial interest but pursuant to IRS code only for valuable consideration. Therefore the assignees are the new beneficiary but the assignor remains noted only for posterity, on record. They actually live forever. However, subsequent to assigning the asset that originating lender will have no remainder interest.

    See the problem with the MERS argument. It was created for adherence to the SEC and Trust guidelines under GAAP as a SPE. . It fails under HUD and according to civil code they also fail in the substitution of trustee. Joke I tell you -what a joke.

    This oddity is probably due to the structure of a trust and need to hold collateral in a bankruptcy immune SPE (special purpose entity).

    So the lender or I mean “The Parties” to the obligation (MERS, etc) will strip the beneficiary from the lender after settlement and voila MERS appears (deed) in name sake only. WRONG. Lender upon release may live forever but not as a recognized legal participant or with power of attorney.

    Our motivation is to set the case up for an average attorney to walk into court and blow out the doors of even corrupt proceedings (LOL).

    Our clients are the plaintiffs who prey the court will enjoin all Defendants, known herein solely from public records, to release Plaintiff from personal liability for certain secured debt shown to be dischargeable due to statutory violations that govern a rescission.

    Got to run
    http://www.borrwerhotline.com
    MSoliman
    213-985-0157
    925-550-1826

  11. Great outline of what is needed. Very comprehensive and to the point. Thank you all the information you provide. I’ve learned a world of information and then some. My Countrywide negotiations are just beginning. We’ll see what they have to offer.

  12. Thank you for this info Mr. Garfield great stuff.
    I start my quiet title action on December 24th, I hope for happier holidays for everyone, specially those like you are giving hope to everyone of us.

    I will keep you posted.

    Will you be able to explain in some detail what quiet title action is and what its ramifications are and what do we all have to be aware of and be alert?

    Some attorneys may be gun shy about this maneuver.

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