STRATEGY: STANDARD HAMP MODIFICATION LETTER FROM PRETENDER LENDER

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

EDITOR’S NOTE: THE ANSWER IS YES, THIS IS WHAT I HAVE SEEN FROM REPORTS ALL OVER THE COUNTRY. But the BIG LIE is that the writer had any authority to sign the letter, whether the company for whom he/she was signing had any right to consider HAMP or settlement or modification of any kind, and whether your action in “cooperating” with these people will be used as your admission that they are in fact the lender or that they do in fact have the authority to act for the lender.

HERE IS A SIMPLE TEST: If you offered to pay off the full balance due on the obligation, who would sign the satisfaction of mortgage? Whoever is offered by the pretender lender, take that information to an independent title agent and ask them if THAT party can execute a satisfaction of mortgage wherein THAT title agent would issue a title policy without exceptions regarding the securitization of the loan. And yes it IS that simple.

My take is that before you start HAMP or anything else, and particularly if you are in court, you make them PROVE their authority. You waive our COMBO analysis at them, give it to the Judge, if he’ll take it, get an expert opinion if necessary and say “Look, you say you are the servicer and that you have the authority to modify this loan. I have a report here that raises serious questions of fact as to whether you have any apparent or actual authority other than through your own self-serving statements. I want to see your authority and question the signators on any documents that you are using — and I want to see the originals. THEN after you have proven your authority to my satisfaction or the Court’s satisfaction, we can start the HAMP process or settle the case.”

STRATEGIC NOTE: IT ALWAYS COMES DOWN TO THE SAME THING. IF YOU GIVE IT UP, YOU WILL LOSE, IF YOU DON’T YOU HAVE AN INCREASING CHANCE OF WINNING OR SETTLING YOUR CASE. DON’T GET CAUGHT UP IN THEIR NARRATIVE AND DON’T TAKE THEIR WORD FOR ANYTHING. THE LAWYERS ARE FREQUENTLY LYING, THEIR CLIENTS ARE LYING AND THE ENTIRE PROCEDURE IS IN MY OPINION COMPLETELY FALSE, VOID AND FRAUDULENT. IF THE REAL CREDITOR HAD STEPPED FORWARD, THE MODIFICATIONS WOULD BE HAPPENING AT THE RATE OF  THOUSANDS PER DAY. BUT THE REAL CREDITORS ARE NOWHERE TO  BE FOUND IN MODERN FORECLOSURE ACTIONS.

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Neil,
I received the following e-mail after a case I recently filed. We are in receipt of your lawsuit alleging a failure to modify under and/or comply with HAMP. The law is clear: HAMP does not require a lender or servicer to modify any eligible loan, nor does it provide any private right of action to your clients. See below:

Simon v. Bank of America, N.A., 2010 WL 2609436, at *10 (D. Nev. June 23, 2010) (“…district courts have consistently held that the Home Affordable Modification Program does not provide borrowers with a private cause of action against lenders for failing to consider their application for loan modification, or even to modify an eligible loan.” See, e .g., Lucero v. Countrywide Bank N.A.,NO. 09-CV-1742, 2010 WL 1880649, at *3-4 (S.D.Cal. May 10, 2010); Villa v. Wells Fargo Bank, N.A., NO. 10-CV-0081, 2010 WL 935680, at *3 (S.D.Cal., March 15, 2010); Aleem v. Bank Of America, 09-CV-01812, 2010 WL 532330, at *4 (C.D.Cal. Feb. 09, 2010); Escobedo v. Countrywide Home Loans, Inc.,09-CV-1557, 2009 WL 4981618, at *2-3 (S.D.Cal. Dec. 15, 2009″); Dugger v. Bank of America, N.A./Countrywide Home Loans, 2010 WL 3258383, at *2 (E.D. Mo. August 16, 2010) (“.neither EESA, TARP, nor HAMP provides a private right of action to individual borrowers.”) Absent express statutory authorization, courts can only find a private right of action if there is affirmative evidence of Congress’s intent to create a private right of action. Erwin Chemerinsky, Federal Jurisdiction § 6.3 (5th ed.2007); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (refusing to create a private right of action under § 17(a) of the Securities Exchange Act of 1934 and stating that “our task is limited solely to determining whether Congress intended to create the private right of action asserted”).
Lenders are not even required to offer modifications under the HAMP. Marks v. Bank of America, N.A., 2010 WL 2572988, at *2-4 (D. Ariz., June 22, 2010) (“Under the HAMP, a qualified borrower would not be reasonable in relying on an agreement between a participating servicer and the U.S. Department of Treasury as manifesting an intention to confer a right on the borrower because the agreement does not require that the participating servicer modify eligible loans”); Simmons v. Countrywide Home Loans, Inc., 2010 WL 2635220, at *5 (S.D.Cal. June 29, 2010) (“.the [HAMP Servicer Participation] Agreement does not require that [the lender] modify all eligible loans.”).

Consequently, it is our opinion that your complaint fails to state a cause of action, is ripe for dismissal, and in fact may violate O.C.G.A. 9-15-14. Please dismiss it immediately. If this case is not dismissed and responsive pleadings are required to be filed, Saxon reserves all remedies available to it under O.C.G.A. 9-15-14 against both plaintiffs and their counsel, jointly and severally. Lastly, we are not the registered agent for Saxon, nor are we permitted to accept or acknowledge service of process for Saxon.

The font made it look like it was a form response. I was wondering if this is something you are seeing. If so, what are your thoughts? I responded that, since I am currently successfully handling around 40 of these cases, I am not too scared of their threats. Plus, my complaints allege that the homeowners are intended third party beneficiaries of the spa’s under HAMP, so I don’t think those cases would be on point anyway. Nevertheless, that was the most aggressive response I have had from a lender to date and I was wondering if this was a new trend.

Thank you, your thoughts would be appreciated.

Pete Ensign

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