Dec 20, 2008
The lenders are out in force trying to get you to sign something new. Most of the offers accomplish only two things: (1) ratification of a loan that was unenforceable and (2) a virtual guarntee that you will end up with worse problem than when you started in as little as 3 months;
QUESTION: I have been working with Wachovia, and they have granted me a three month deferment of my mortgage. I need to respond to them by Monday.
QUESTION 1: If I do accept this modification with them, would that mean we will be unable to continue to try to review and correct my loan?
ANSWER: Wachovia is attempting to get anything they can in the way of a signature on a new piece of paper — it will mean that the borrower is ratifying the mortgage and note. A three month deferment is in my view insufficient to give up all the rights the borrower has at the present time under Predatory Loan law (TILA, RESPA, HOEPA, Securities Law) and Securitization Law (SEC, UCC, Holder, Holder in due course, and defense of third party PAYMENT). The best way to deal with this is to say that you are willing to enter into an agreement if they answer a few questions. The main question is whether this loan, note, mortgage and/or obligation has been assigned, transferred and/or securitized and whether they can identify the real party “owning” or claiming to own the note, mortgage, and/or obligation. The way to put them up against the wall is by including a self serving statement that if they cannot answer this question, you must assume that they either cannot or will not answer the question — despite your right to know the identity of the party to whom you allegedly owe money. Your request MUST include a demand for copies of any applicable documents including Pooling and Service Agreement, Assignment and Assumption Agreement, the location of the actual original note, any allonge, and any assignment together with any documents specifying the duties of any Trustee or successor Trustee, including substitution of Trustee on Deed of Trust, appointment of Trustee for Pooled Assets, appointment of Trustee for any Structured Investment Vehicle, appointment of Trustee for owners of certificates of asset backed securities, and whether there is any record of transfer, sale, bailout, insurance payment etc to the investor.
QUESTION 2: Before I can fill out the form you sent me, it says I need two years previous to settlement of taxes. I have been remiss in filing, and am currently working on getting 2006 and 2007 filed. I do not owe money, but do not have records. WILL THIS KEEP US FROM BEING ABLE TO WORK THIS?
ANSWER: NO. The tax returns are only evidence of your ability to pay for the period of time that the tax returns cover. If you had no tax returns at the time that the loan was granted, you should add an addendum page describing what, if anything, they asked for to confirm or verify your income and who asked for it.
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