Powerful New Tools to Procure Mortgage Modifications - Federal Cause of Action

Consumer Litigation

Powerful New Tools to Procure Mortgage Modifications - Federal Cause of Action

Prior to January of 2014, homeowners who were active­ly engaged with servicers in an attempt to modify their mortgage loan had no remedy or private right of action when mortgage loan servicers also moved forward to foreclose on the borrower's home (a phenomenon identified as dual tracking). The same impediments prevented a borrower bringing claims for mistakes in escrow calculations or unfair corporate advances or late fees or against lenders who failed to send easy to understand monthly mort­gage statements.

On Jan. 10, 2014, the Consumer Finance Protection Bureau (CFPB) enacted a pow­erful new regulatory scheme under the Real Estate Settlement Protection Act (RE­SPA) 12 U.S.C 2601 et seq. and the Truth in Lending Act (TILA) 15 U.S.C. 1026 et seq that set new high standards for the con­duct of mortgage loan servicers. Lawyers who work with clients who have potential issues with their home mortgage lenders and bankruptcy practitioners in particu­lar should be on the lookout for potential claims that their clients may have against their mortgage loan servicer.

Awareness of potential liability of mort­gage loan servicers has become even more important in light of the recent decision by many national bank loan servicers to get out of the loan servicing business resulting in more and more mortgage loans being serviced by small, thinly capitalized non-bank servicing companies.

Regulations X and Z in a Nutshell

Powerful new regulations that have been promulgated by the CFPB, under RESPA and TILA, create a private right of action when mortgage loan servicers fail to prop­erly and promptly respond to requests for information, correct irregularities with ap­plication of payments, assessments of fees and charges, or to comply with new strict timelines for handling applications for loan modifications, deeds in lieu of fore­closures and short sales.

Clients Who Could Benefit From Reg X and Z Case Review

• Borrowers who have been recently dis­charged from Chapter 13 or Chapter 7.
• Borrowers who have filed bankruptcy to avoid foreclosure but who had an ap­plication for loss mitigation pending.
• Borrowers who had a contract to sell their home by way of a short sale, the servicer failed to make a decision with­in 30 business days from submission of application and the buyer withdrew.
• Borrowers with loan modifications where the loan modification has not been honored by a loan servicer or successor loan servicer.
• Borrowers who have trial loan modifi­cations that last beyond three months.
• Borrowers with lender placed or forced placed insurance.
• Borrowers with excessive escrow de­ficiencies.

Practitioners and Borrowers should be on the lookout for the following fact patterns that form the basis of a RESPA claim:

1. When homeowner/borrowers have submitted a facially complete loan modification application and loan servicer moves forward in any way to foreclose. This includes referral to foreclosure counsel, filing of a foreclo­sure complaint in a judicial foreclo­sure state, filing or recording a fore­closure notice in a non-judicial state, filing a motion for relief from stay in bankruptcy, filing a dispositive mo­tion in a judicial foreclosure, setting a date for a sheriff 's sale or failing to avoid a judgment or withdraw a sale.
2. When a mortgage loan servicer fails to honor an agreed to loan modification.
3. When a mortgage loan servicer fails to make a decision on a short sale within 30 business days.
4. When a mortgage loan servicer refers for foreclosure before a borrower is 120 days past due.
5. When a mortgage loan servicer fails to properly calculate escrow or an escrow shortage and overcharges to amortize escrow shortages. Note that a servicer may only hold a two-month cushion for taxes, homeowner's insur­ance and private mortgage insurance in escrow.
6. Charging for unnecessary appraisals, legal fees, property inspections and other corporate advances.

Practitioners and Borrowers should also be aware of po­tential claims under TILA:

1. When a mortgage loan servicer fails to provide correct information on monthly statements to borrower (bor­rowers in bankruptcy are currently exempted) For example, for someone who is 45 days behind, each statement is required to show a six-month his­tory.
2. When a mortgage loan servicer fails to send statements at all (borrowers in bankruptcy or discharged from bank­ruptcy are currently exempt). This happens more often than one might think.
3. When a mortgage loan servicer fails to apply payments on the same day as they receive them.
4. When a mortgage loan servicer ap­plies payment to fees or corporate ad­vances before principal interest taxes and insurance are brought current.
5. When a mortgage loan servicer fails to provide the name of owner, master servicer and servicer within 10 busi­ness days of the date of receipt of writ­ten request, payoff or reinstatement figures within seven business days of receipt of written request.

Former Ohio Attorney General Marc Dann has been fighting for homeowners, consumers and small businesses since he began his private practice in 1990. Upon leaving office in May 2008, Dann volunteered to represent homeowners facing foreclosure and became even more concerned about the standing of certain servicers to foreclose on his clients. Recognizing that the problem of fraudulent foreclosure practices was epidemic in Ohio, Marc Dann established the Dann Law Firm representing more than 500 homeowners in foreclosure in more than 65 different counties in Ohio.

By: Marc Dann
Used with permission