Livinglies's Weblog

By J. Guggenheim

Servicers don’t want to modify.  They don’t want to short-sale, and they don’t want to allow you to refinance. In fact, the sole objective is to use whatever means are necessary to take one missed payment and leverage it into a future default while piling on the penalties and fees to erode all of your equity.  The service wants your house and they will lie, steal, forge and fabricate documents if required.

We have a client at Lendinglies who received a loan modification in 2010 and completed all three payments as agreed by the repayment plan offered by CitiMortgage. According to CitiMortgage, the agreement was done “in-house” and required no outside approval.

After receiving the modification the couple proceeded to renovate the entire home while complying with the monthly payments.  Once they had fully restored their home and made their last payment, they let friends know they were taking offers on the home.  Within days they had two people who wanted to purchase the home.  Upon contacting CitiMortgage, they were told “just be patient- we are finalizing your loan documents.”  Our client continued to make payments for four more months not wanting to give CitiMortgage any reason at all to renege on the agreement.

Our client continued waiting for the final terms-when their payments beyond the first three trial payments were returned with no communication about the repayment plan being completed. No denial letter was sent, no communication about appeal, and no consideration for another loss mitigation program.

Not only had our client done a full loan qualification (tax returns, paystubs, application, etc), under the HAMP waterfall, CitiMortgage was required to modify their loan.  After exhausting their retirement funds to renovate the home and with buyers waiting to proceed,  our client started getting very concerned.

The owner would later find out that while they were continuing to make the repayment plan payments, that CitiMortgage had filed to foreclose on them (dual-tracking) instead of sending them the final loan terms as agreed.   Expecting final loan terms, CitiMortgage took advantage that the homeowner’s focus was on receiving the final loan terms, while stealthily trying to foreclose on them and catch them unaware. The homeowners discovered the Notice of Sale while conducting an internet search.   CitiMortgage planned to foreclose on the home while they were current with the terms of the repayment plan.

The seller had now spent almost $40k on the home and exhausted all of his retirement funds.  He had a gorgeous home he couldn’t sell, $160k in equity, good credit, excellent income- and buyers for the home! Yet CitiMortgage DID NOT want payment!!!

The couple were willing to pay almost any amount demanded by CitiMortgage to free themselves from 7 years of ongoing harassment including people sitting outside their home taking photos and peeking in their front windows.  CitiMortgage would continue to mail the homeowners offers to modify their loan while they were in a current modification.

Today, 8 years later the house still contains everything they own.  In 2011 they walked away leaving everything they owned behind, believing they would soon find a resolution to this “misunderstanding”. Instead of CitiMortgage receiving a financial windfall in 2010 and allowing the homeowner to go on with their lives, CitiMortage has held our client hostage.  CitiMortgage has likely spent over $200k in legal expenses- when they would have received approximately $75k in penalties back in 2010 plus payment in full.

There is no end in sight with this litigation. The home has lost approximately $100k in value from sitting for years vacant.  Even if CitiMortgage forecloses on the home, they are taking back a home that will need another full renovation. So instead of CitiMortgage being paid in full in 2010, they have spent over $200k in legal fees on a home that is worth about $200k now as it stands- deteriorating.  CitiMortgage has the Insurance Default insurance within their vision- and that has to be  asignificant enough reward to warrant committing fraud.

CitiMortgage wants the foreclosure at all costs.  To date CitiMortgage has resorted to unconscionable acts liking breaking into the home, stealing items, and their latest tactic was to add an endorsement to the mortgage note in order to prevail in court during an appeal!  Our client fears that CitiMortage could even resort to arson at this point to get rid of a depreciating asset, and for the insurance proceeds.

The client now fears, despite there now being four versions of the Note, including the one that received a forged endorsement a decade after the company ceased to exist, that CitiMortgage will pull a lost Note affidavit.  They are slowly running out of options.  There are no assignments to date, but CitiMortgage knows how to use a desk-top publishing program and copier to create the illusion of a chain of title.

The homeowners were willing to do almost anything to remove themselves from the clutches of CitiMortgage and pay any amount demanded but CitiMortgage set out to destroy them and has done a very good job.   Ironically, after 15 years of litigation with CitiMortgage, in 2015 after defeating the client on appeal with fabricated documents- CitiMortgage who has always proclaimed to be the lender/creditor and in possession of the actual note- did a 360 degree turn, and now claim they are only the servicer for Fannie Mae.  This is the epitome of legal abuse and meanwhile the judiciary has ruled against our client on every claim.  Unconscionable.

Although a home is not a right, by law, a creditor must demonstrate the right to foreclose by producing actual evidence that they own the note if challenged and if they can’t do so they should be barred from foreclosing.  Since the majority of lenders cannot demonstrate ownership, chain of title or having paid for the note- they should be barred from pursuing a foreclosure action- even if the homeowner has not made payment.  This is the law.  Therefore, creditors should keep good records of their purchases and not resort to fraud by fabricating mortgage documents and forging signatures to create the illusion of ownership.  In turn, the homeowner should be willing and able to pay the true creditor.  This is the way a contract works.

Sadly, this is no longer the way a mortgage contract works because the mortgage is no longer a contract but a security mitigated by insurance and leveraged as a derivative.  The homeowner’s closing creates an undisclosed security in which millions of dollars will be made while the homeowner carries all the risk and receives none of the return.  I would not have agreed to the use my identity as an international security while people profited off of my loan.  The contract I signed at closing was void because the contract lacked disclosure, a meeting of the minds, consideration and acceptance.

The servicer must prove four elements to show that a contract existed:

1. Offer – One of the parties made a promise to do or refrain from doing some specified action in the future.

2. Consideration – Something of value was promised in exchange for the specified action or nonaction. This can take the form of a significant expenditure of money or effort, a promise to perform some service, an agreement not to do something, or reliance on the promise. Consideration is the value that induces the parties to enter into the contract.

The existence of consideration distinguishes a contract from a gift. A gift is a voluntary and gratuitous transfer of property from one person to another, without something of value promised in return. Failure to follow through on a promise to make a gift is not enforceable as a breach of contract because there is no consideration for the promise.

3. Acceptance – The offer was accepted unambiguously. Acceptance may be expressed through words, deeds or performance as called for in the contract. Generally, the acceptance must mirror the terms of the offer. If not, the acceptance is viewed as a rejection and counteroffer.

If the contract involves a sale of goods (i.e. items that are movable) between merchants, then the acceptance does not have to mirror the terms of the offer for a valid contract to exist, unless:

(a) the terms of the acceptance significantly alter the original contract; or
(b) the offeror objects within a reasonable time.

4. Mutuality – The contracting parties had “a meeting of the minds” regarding the agreement. This means the parties understood and agreed to the basic substance and terms of the contract.

When the complaining party provides proof that all of these elements occurred, that party meets its burden of making a prima facie case that a contract existed. For a defending party to challenge the existence of the contract, that party must provide evidence undermining one or more elements.  However, the courts now give all presumptions to the lender despite over a decade of revealing the depths of the bank’s nefarious crimes.

At this point we have real concerns about the mental health of our client.  Although CitiMortgage has presented no evidence to date that they own the homeowner’s loan, have refused to identify the true creditor, and have fabricated a note and forged an endorsement to prevail in court- they continue to hold our client hostage.   For 15 years every expendable dime they have including their entire retirement funds have gone to defending their home against an imposter.   They have milked our client dry.  And every single day has been marred by the CitiMortgage Dark Cloud of Doom hovering over their heads. The family is falling apart and all they wanted to do was to pay CitiMortgage in full.

This is an act of torture.

Filed under: foreclosure |