Careful what you say in “Hardship Letter”

Modifications are tricky. They are trickier than you think. First of all the offer is made by a company who has no right to act as “servicer” or to change the terms of your contract. By changing the apparent lender or creditor to the named servicer, the agreement is probably tricking you into accepting a virtual creditor in lieu of a real one.

But the most important trick is that what they are really looking for is a direct or tacit acknowledgement of the status and ownership of the debt. So if you say that this “servicer” did something or that “lender” did that, you are admitting that the company who presents itself as servicer is inf act an authorized entity to administer, collection and enforce your loan.

And if you refer to a “Lender” you are directly  or tacitly admitting that a creditor exists and they own the loan and that raises the the almost irrebuttable presumption that the “lender” has suffered financial injury as a direct and proximate result of your “failure” to pay.

Not paying is not a failure to pay, a delinquency or a default if the party demanding payment had no right to do so. So if you admit the default in your “hardship” letter you are putting yourself into the position of defending against compelling arguments that you waived any right to deny the default or the rights of the parties to enforce the debt, note or mortgage.

I recognize that there is the factor of coercion and intimidation in executing a modification (just to stop the threat of foreclosure, regardless of whether it is legal or not). But the question is whether the entire process of modification is a legally recognizable event.

If the offer comes from someone who has no ownership or authority to represent the owner of the underlying obligation then the offer is a legal nullity. But if it is accepted then there is a possibility that the homeowner might be deemed to have waived defenses. Also if the beneficiary of the agreement and the payments made would go to a party who does not own a loan account then the agreement has been procured by misrepresentation or implied misrepresentations.

Proper pursuit of discovery demands will most often result in an offer of settlement and modification that is simply too good to refuse. The reason is that your opposition  has no answers to your question that would not constitute an admission of civil or even criminal liability.

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.

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Example of Homeowner Winning in Sarasota Florida

Ryan Torrens, Esq., a Florida attorney who apparently does his homework, posted this article on his website.

see Summary Judgment for Homeowner – Don’t give Up

For those of you in foreclosure who may wonder if you have any rights, the answer is yes, you do! I recently won a summary judgment against a foreclosing bank in a foreclosure case in Sarasota, Florida.

The bank was attempting to foreclose on a loan modification, which is not a negotiable instrument. [e.s.] See Bank of New York Mellon v. Garcia, 2018 WL 3286488 (Fla. 2d DCA 2018). The bank contended that it had standing to foreclose on the loan modification by an assignment of mortgage. However, the assignment of mortgage did not transfer the note, but only the mortgage. An assignment of mortgage that only assigns the note, not the mortgage, does not convey standing to the Plaintiff. See Peters v. Bank of New York Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017).

Due to this defect, I moved for summary judgment on behalf of the homeowner. The Court agreed that the bank could not prove standing in the case and that the homeowner was entitled to summary judgment as a matter of law. Accordingly, the Court entered this summary judgment in favor of my client.

If you are being foreclosed on, don’t give up. Stand up and fight for your family and your home. The banks are used to getting away with everything, but you have rights too. This case is just one example of a homeowner who stood up and fought, and won!

Thanks for reading.


Ryan Torrens

Foreclosure Defense Attorney

EDITOR’S NOTE: The only thing I would add, for clarification, is that the reason for the finding of lack of standing is that an assignment of mortgage without the debt is a nullity.

The assignment or indorsement of the note to the assignee of the mortgage is a transfer of “title” to the debt on its face.

Hence the presumption that is used, sometimes erroneously, that the claimant is the owner of the debt, note and mortgage or the authorized agent of such a party.

But it is often true that neither the assignor of the mortgage nor the previous “holder” of the note actually owned the debt nor were they authorized representatives of any party who could claim ownership of the debt, note or mortgage.  Accordingly, no effective transfer occurred as to the debt, note  or mortgage.

The fact that all this happened after a modification is worthy of mention. Most modification agreements contain intentional obfuscation of the true parties in interest and do not qualify as negotiable instruments nor do they effectively try to transfer anything other than the mortgage. Without a separate instrument transferring the debt from an owner of the debt (or an authorized agent of the owner of the debt) the modification  does NOT create standing.

The reason why the modification agreement does not make any express reference to the debt or the note is that doing so would be a direct or implied representation of ownership of the debt — a statement that would be patently untrue in most cases.

Before You Sign Anything, File Anything, Consider the Statute of Limitations

With tens of thousands of cases running many years before foreclosure is started and with many cases ripe for dismissal for lack of prosecution, the Banks are in a full court press attempting to get modifications or even going to trial on cases they know are problematic at best. I am receiving scores of reports of cases dismissed on the grounds they are barred that the statute of limitations has run.

If grounds exist for dismissal (check with a lawyer who really knows) the case cannot be refiled if the statute of limitations has run. If the case has not started and you have been living in the home for years without paying, the statute may have already run or you might be able to “run the statute.” (Check with an attorney licensed in the jurisdiction in which the property is located).

The meaning of the statute of limitations is simple: everyone with a claim has a right to bring it. BUT the Courts will not entertain any action that is stale. There are two ways the case might be stale — (1) the statute of limitations which is by definition a statute passed by the legislature of each state and (2) the common law doctrine of laches that might be supplemented by statutes or rules of procedure (laches is rarely applied). Laches on its own is generally a weak defense. But combined with the one year rule in Florida, for example, for prosecuting the case forward, it might have more teeth. But you would need to show inaction for a long period of time (i.e., no suit filed) PLUS the failure to prosecute. There are specific rules of civil procedure covering the dismissal of a cause of action for failure to prosecute.

Applying the meaning of the statute as applied to mortgage foreclosures is apparent. The foreclosing party has sent a notice of default and acceleration because you didn’t make a payment or they have no sent a notice and you have not been making a payment. The time to sue on the note and mortgage is based is usually based upon the statute of limitations as applied to contracts, but there might be some states that specify mortgage foreclosures. If the “Bank” has run the statute of limitations they can never attempt to sue on the note or mortgage again and in non-judicial states they cannot file a notice of default and notice of sale.

There are things that delay or “toll” the statute of limitations like various payment plans or agreements like modifications (that could even re-start the statutory period), bankruptcy and anything else that prevents the claimant from filing the claim for damages or foreclosure. Each case must be examined as to the running of the statute of limitations. In Florida the statute is 5 years. So for example if the last payment you made was November of 2008, then the next payment due was in December of  2008. That is when the statute starts running. If the Bank in Florida, which is a judicial state, has not actually filed suit in foreclosure, they are probably now barred from doing so.

PRACTICE NOTE: THE BANKS ARE FREQUENTLY MAKING AN ERROR WHEN THERE IS A MODIFICATION AGREEMENT PRESENT THAT  MIGHT ENABLE YOU TO GET THE CASE DISMISSED FOR YOUR CLIENT AND, IF THE CASE IS STALE UNDER THE STATUTE, THE DISMISSAL COULD BE “WITH PREJUDICE” OR EVEN IF NOT WITH PREJUDICE IT WOULD AMOUNT TO THE SAME THING. The error they are making is that they take the date of the initial “default” (which of course can be challenged on many grounds that have been explained on this blog) and they sue on the default of the note instead of the the default in the modified note terms. The time to bring that up is as close to trial as possible when they can’t do anything about it. In Florida, this would force them to refile in the face of statutory requirements that requires them to be the owner of the loan.

For this reason I am suggesting to our own analysts as well as all the rest of the analysts assisting attorneys and pro se litigants to include the relevant statute of limitations in their report.

Here is a link that can assist you. I caution anyone about using this list. Things change so you need to look up the actual statute and the language of the statute might be such that only an attorney who has researched the statute will be able to gave an opinion as to whether it applies in your case.

For homeowners and lawyers seeking litigation assistance please call 520-405-1688 or go to



Obama: A Bold U.S. Plan to Help Struggling Homeowners

YOU DON’T NEED TO BE DELINQUENT TO SETTLE OR MODIFY. It might just be a good time to pick up the phone right now and call the servicer, trustee, or whoever is saying they have your loan (even though they don’t) and make a deal. Think about it first. Don’t be too generous to them and don’t be to greedy for yourself.  It’s true they don’t serve the home or the new mortgage, but if you can get the terms you need, and you get a court order confirming it, it won’t matter that the investors got ripped off in the deal. That’s not your problem.

Editor’s Note: Now that the plan is more fully described, hold the presses. It would seem that Obama got our message. This plan addresses all homeowners with securitized mortgages that were over appraised, and aims to keep them in their homes to avoid the obviously needless and lawless displacement that has been the rule up till now.
But don’t get lulled into complacency. The Banks are no more able or willing to give you that modification than they were before, with the possible exception of BofA. You still need legal weapons and ammunition, you most likely still need a lawyer, and you still need to get title quieted through a court order. It’s all possible if the settlement or “modification” agreement provides the right terms.
March 26, 2010

A Bold U.S. Plan to Help Struggling Homeowners


Will it work this time?

Once again, the federal government is adding to its arsenal of programs for troubled homeowners, seeking to help those who urgently need it while neither angering nor creating perverse incentives for those who do not.

The new measures, announced by financial policy makers at the White House on Friday, are among the boldest to date. They are aimed not only at the seven million households that are behind on their mortgages but, in a significant expansion of aid that proved immediately controversial, the 11 million that simply owe more on their homes than they are worth.

Some of these people, if the government plan works, will emerge with a house whose payments they can afford and whose new mortgage reflects its market value. Unlike many previous modification recipients, they would presumably be less likely to re-default, helping to stabilize a housing market that remains queasy.

“We’re walking that delicate balance to make sure these solutions are sustainable and not temporary,” said David H. Stevens, commissioner of the Federal Housing Administration.

It is a balancing act in numerous ways. If the plan falls short — and some experts were skeptical on Friday — the Obama administration could find itself having to start over yet again in six months or a year.

“The housing market is the Vietnam War of the American financial system,” said Howard Glaser, a housing consultant. “The federal government is in so deep, they have to keep ramping up to find a way out.”

The latest programs, together with foreclosure assistance efforts already in place, are aimed at helping as many as four million embattled owners keep their houses. But the measures, which will take as long as six months to put into practice, might easily fall victim to some of the conflicting interests that have bedeviled efforts to date. None of these programs have the force of law, and lenders have often seen no good reason to participate.

To lubricate its efforts, the government plans to spread taxpayers’ money around liberally. For instance, it had previously planned to give homeowners that sell their homes rather than let them go into foreclosure a “relocation assistance” payment of $1,500. The plan announced on Friday increases that amount to $3,000.

All told, the new measures are expected to cost about $50 billion. The White House was careful to stress that the money will come from funds already set aside for housing programs in the Troubled Asset Relief Program. There will be “no additional commitment of taxpayer dollars,” Michael S. Barr, an assistant secretary of the Treasury, said at the White House briefing.

Here is what the $50 billion is supposed to buy:

The simplest component of the plan involves assistance to unemployed homeowners. Mortgage companies will now be encouraged to reduce payments for at least three months and possibly six months while the homeowner pursues a new job.

To be eligible, borrowers must submit proof they are receiving unemployment insurance. The new payments will be 31 percent or less of their monthly income. The missing money will be tacked onto the loan’s principal.

A second and more complicated program is a requirement that mortgage servicers consider writing off a portion of a borrower’s loan to get it down to a more manageable level.

Borrowers in the government modification plan who owe more than 115 percent of the value of their home and are paying more than 31 percent of their monthly income toward the mortgage are eligible. The write-downs are to take three years, with the borrowers in essence being rewarded for making their payments on time.

The third major new program strays the farthest from the government’s previous approach. Borrowers who owe more on their homes than they are worth will get a chance to cut their debt — providing the investor or bank who owns the loan agrees.

Mr. Stevens of the F.H.A. said the program was “for responsible homeowners who through no fault of their own find themselves in a situation of negative equity.”

There is no official requirement that these homeowners be in distress, but it would probably make the investor more receptive to a deal. Whether homeowners will scheme to get into the program is one of the big uncertainties.

The investors will write down the loans to 97.75 percent of the appraised value of the property, at which point the F.H.A. will refinance them through new lenders. The F.H.A., which currently insures about six million homes, will insure the new loans as well.

If the homeowner has a second mortgage, as many do, the total value of the new mortgage can be as much as 115 percent of the value of the property. The F.H.A. will spend up to $14 billion to provide incentives to the banks that service the primary loan as well as the owners of the secondary loans. Some of the money will also provide additional insurance on the new loans.

Numerous parties will have to work together to make these deals fly. The primary loan might have been bundled into a pool and sold to investors during the housing boom. The investor must agree to cut the principal balance for a deal to work, and any bank holding a second mortgage on the property would have to go along, too.

The only incentive for the first lien holder is a quick exit from a loan that might ultimately default. Payments for second lien holders will be made on a sliding scale.

Early reaction to the refinance program among lending groups was less than enthusiastic.

“The magnitude of this program will likely be measured in the tens of thousands rather than the hundreds of thousands of borrowers,” said Tom Deutsch, executive director of the American Securitization Forum. Both banks and investors belong to the forum.

The Mortgage Bankers Association, which represents the banks that service the primary loans and own outright many of the secondary loans, warned that “each servicer will need to determine whether this is the best approach to help the individual borrower.”

The new proposals irked many people, who flooded online forums Friday. Some said those in trouble deserved their fate. Others asked why the government was propping up housing prices when many renters still could not afford to buy a house. And some wondered about the message these rescue plans were sending to those who resisted the housing bubble.

Dave Juliette, a software worker in Pittsburgh, is in the last group. He paid off his loan eight years ahead of schedule and now owns his house free and clear. “I’m a homeowner in a more genuine sense of the word than many of these people with mortgages,” Mr. Juliette said. “But I won’t be seeing a dime.”

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