Watch that modification agreement. You are being forced to accept a virtual creditor instead of a real one.

“Morality is an existential threat to commerce and politics. Although we legislate morality we refuse to enforce it. It is OK to lie to consumers or borrowers but not OK to lie to a financial institution who by the way is lying to you.” Neil F Garfield, October 2009 speech to regional bankruptcy conference in Phoenix Arizona.

The proposed modification agreement is an attempt to force or coerce the borrower into accepting a NEW term of the loan agreement that any attorney would advise against, to wit: acceptance of a designated creditor instead of a real one.  

The transmission of a proposed Modification Agreement by a “servicer” like Ocwen, PHH, SPS. SLS, Bayview etc. would be mail fraud if it was sent via USPS. It seeks to extort a signature from the borrower that directly acknowledges and accepts the existence of a virtual creditor.

The obligation was funded by a third party (investment bank) who did not take ownership of the debt, note or mortgage.

The reason the investment banks didn’t want ownership is that they were in the business of lending money without being subject (at least on the surface) to long standing federal and state statutes and common law restricting the behavior of lenders and requiring full and fair disclosure of the terms of the transaction. 

I recently received another modification agreement to review. The true nature of the agreement only appears when you read it carefully. If you do that, it is obvious.

In any normal circumstance where the lender existed and owned the underlying obligation because it had paid value for the note and mortgage, the lender, or its successor would be identified as such. And the Lender or Successor would insist on being named for its own protection, lest some third party claiming to be servicer runs off with the money.

This is not only custom and practice in the commercial banking and investment banking industry, it is also the only way, without committing legal malpractice, to draft such an agreement to protect the creditor from any intervention or claims.

But if you look carefully you will not see any reference like this: “Whereas, ABC was the owner of the loan account, note and mortgage and was succeeded by XYZ who purchased and paid value for said debt, note and mortgage on the __ day of ___, 2020,

Here is my recent analysis:

The modification agreement is very helpful because it corroborates what I have been saying.
*
The agreement first states that the parties to the agreement are the debtor, xxxxx yyyyy, and then two other parties, to wit: New Residential Investment Corp., [NewRes] who is not identified as to its role or relationship to the yyyyyyy loan, and Ocwen Loan Servicing LLC, [Ocwen] who is identified as the servicer or or agent for NewRes.
*
NewRes asserts in the public domain that it is an REIT. But records show that it grew out of a loan servicing business, which I believe to still be the case. In any event there is no representation or warranty in the modification agreement that states or even implies that NewRes is a creditor or lender. That status is raised by implication for the benefit of Ocwen. And who Ocwen is really working for is left out of the agreement altogether.
*
The statement that Ocwen is servicer for NewRes does not make Ocwen a servicer for the loan account. Unless NewRes is or was the owner of the account who paid value for the underlying debt, Ocwen’s agency might exist but it had nothing to do with the subject loan. This is why homeowners need lawyers arguing these points which, for most people, dulls the brain. “Because I said so” may work in the house with children but it was never intended to be accepted in courts of law.
*
So far the banks have fooled courts, lawyers and homeowners into thinking that this type of legal gibberish can be used with impunity and  that this gives the lawyers free license to characterize it in any way that is convenient for the success of a false, illegal and fraudulent foreclosure case. And they can do so because the lawyers are protected by the overly broad doctrine of  litigation immunity.
*
Authority is not magic. It can only occur if the loan account is owned by a creditor who paid value and authorized Ocwen to act as loan servicer or agent in their stead. Such a creditor would have the legal right to grant servicing rights to Ocwen in a servicing agreement (not a Power of Attorney).
*
When challenged, Ocwen is obliged under law to answer simple questions: (1) from whom did you receive authority to administer, collect or enforce the debt, note or mortgage? Is the grantor of such authority a person or entity that has paid value for the underlying obligation? If not, is the grantor representing a person or entity that has paid value for the underlying obligation?
*
Absent from the agreement is any reference or assertion or even implied assertion that NewRes paid value for the debt, or even the assertion that NewRes is the owner of the debt, note or mortgage.
*
This absence, in my opinion, is evidence of absence, to wit: that NewRes is not the owner of the debt, note and mortgage and does not maintain any entry in its bookkeeping records reflecting a purchase of the subject loan or any loan — at least not from anyone who owned it.
*

No such transaction could have occurred because the obligation was funded by a third party (investment bank) who did not take ownership of the debt, note or mortgage. In other words, there was nobody to pay and so payment was not made.

*
Instead the agreement says that Ocwen will be called the “Lender/Servicer or agent for Lender/Servicer (Lender).”
*
This statement corroborates my conclusion and factual findings that there is no loan account in existence, and therefore no creditor who possesses a legal claim for equitable or legal remedies to pay for losses attributed to the loan account as a result of the action or inaction of a homeowner.
*

If there was a party who had the yyyyy loan on its bookkeeping or accounting ledgers as an asset receivable it would be there because that entity had paid value for the debt — the key element and condition precedent to both ownership of the debt and the authority to enforce the note or mortgage.

Without authority from the owner of the underlying debt there is no legal foundation supporting the allegation that the claimant is a holder with rights to enforce. The allegation may be enough for pleadings but it is not enough for trial. Further the court has no authority to apply any legal presumptions arising out of the possession of the note unless the creditor is identified.

*
The agreement is clearly an attempt to insert Ocwen as the lender for purposes of the agreement. But Ocwen is not the lender nor a creditor nor even an authorized servicer on behalf of any party who has paid value for the underlying debt. NewRes appears to be yet another nominee in a long list of nominees and designees to shelter the investment banks from liability, even while they pursue profit by weaponizing administration, collection and enforcement of loans. 
*

The modification agreement is an attempt to force or coerce the borrower into accepting a term of the loan agreement that any attorney would advise against, to wit: acceptance of a designated creditor instead of a real one.  

*
This is further evidence of deceptive servicing and lending practices. They are evading the responsibility imposed by law to identify the creditor and the authority to represent the creditor. They are evading the responsibility imposed by law to provide an accurate accounting for the establishment and current status of the alleged obligation.
*
The reason for this behavior is that there is no current obligation claimed by any company to be owed to them as a result of ownership of the loan account arising from a transaction in which value was paid for the underlying debt.
*
Accordingly there can be no authority to act as servicer, agent, or “acting lender”, nominee or designee.
*
Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In the meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
*
Please visit www.lendinglies.com for more information.

2 Responses

  1. Won’t Ocwen claim they have the authority to modify under the PSA? Our servicer was Option One. I have the recorded original power of attorney which is now expired according to the terms outlined. I have asked Ocwen for a current POA showing they have legal authority to service the loan. They refuse to provide any proof or a new POA. We have a modification with Ocwen. We are paying but I believe none of the parties are entitled to receive any money. PS: Our mortgage was also with Option One Mortgage Corp., which was a suspended corp in CA at the time of the loan and all contracts are voidable!!!

  2. Modifications are great for kicking the can down the road. Just as the elites love to do.

Leave a Reply

%d bloggers like this: