Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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I read some where that if you entered into a modification agreement there is no way to fight a foreclosure is that true?

I did one two years ago in NY

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Angelo
Geno

That is absolutely not true, I just had a foreclosure case dismissed for lack of personal jurisdiction, after a modification was done.  All a modification does is modify the terms of your note, the actual note is still the most important piece of paper for their case.  If they cannot prove ownership, then they cannot foreclose.  Also, you are in NY and they used MERS to assign the mortgage, you must read Bank of NY v. Silverburg, it's an appeallate desicion and binding on NY courts.

http://www.nycourts.gov/reporter/3dseries/2011/2011_05002.htm
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ka

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I read some where that if you entered into a modification agreement there is no way to fight a foreclosure is that true?

I did one two years ago in NY

 

Geno:

 

Angelo is correct that you may stil have robust defenses.  But it is also true that modification agreements often contain many onerous provisions which involve waiver of rights or various confessions.

It would not be at all unusual for a lender to demand that the borrower waive any assertion of fraud in the origination or servicing of the loan, to confess that the loan had been made and valuable consideration tendered, to confirm the amounts of the indebtedness (including many inflated and patently invalid fees and assessments tacked onto the balance), to confess default, etc.

In short, if you previously had a valid fraud defense, your chances of asserting this defense after the modification tends to be eviscerated.

 

By contrast, Angelo points out that other valid defenses may still remain.  This is particularly true where the loan is originated in the name of one entity, the modification done in the name of another, and the foreclosure brought by yet a third entity.  It is also not at all unusual for the lender to get a borrower to sign the modification and then to hold the borrower to its terms, while the lender NEVER actually signs.  This preserves the option by the lender to repudiate the modification.

 

This can be an effective trick, but it can also backfire.  There have been a number of cases where the lender is seeking to enforce some waiver or confession in respect of a modification, presenting to the court a purported agreement signed ONLY by the borrower.  Unless both parties sign, the agreement isn't complete.  Foreclosure mills are often careless.  Most would simply forge the missing signature if they noticed that it was missing. 

 

But note that an invalid modification agreement isn't always going to help either, because the borrower probably relied on this agreement, possibly in respect of some alteration of interest rates, etc.  If the agreement is totally oppressive and gives no real benefit to the borrower, the borrower should explore repudiating it for lack of signature, etc.  If the agreement contains some provisions beneficial to the borrower, greater care must be taken.

 

READ THE MODIFICATION AGREEMENT CAREFULLY AND DISCUSS THE SITUATION WITH AN EXPERIENCED FORECLOSURE DEFENSE LAWYER. 

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Thomas
I have to agree with ka's post. I recently went to trial and the pretender lender tried to use a prior modification to say I had waived my rights. Fortunately for me it was only signed by me and the fact that it was not a ratified contract contributed to my ability to fight on and the dismissal of the case.

I can not stress the importance of thoroughly reading and understanding a modification contract enough. It is well worth the couple hundred dollars to have an attorney look at it and explain it to you before you sign one.

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Interesting, I just looked at the copy they sent me for my records.

It is not signed by the Servicer?? or anyone just me.

I don't see the banks name anyplace??

the added costs
$500 mod fee
$100 price opinion by broker (which was not provided)
$400 late charges???
$30,485 amount capitalized (this was missed payments and unpaid taxes)

The mod modifies mortgage/note dated Sept 10 '05
But the mortgage was dated Sept 5 '05

Does the incorrect date cause an issue for the bank?



G


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Thomas
I can't comment on the significance of the date issue. But the fact that you have a mod agreement only signed by yourself is good. First and most important is that you do not want to let them know you have that unless you have to. You haven't said that you were in an active case but if you are, ask for a copy of the mod agreement through discovery.

Getting it through discovery serves as a means to preclude them from slapping a signature on it later and calling it done. If you can get them to send you a copy without any signatures but your own that can be used as evidence that the contract was not ratified, or completed, and is invalid. That ruins their claims that you waived your rights in the mod agreement.

I am not an attorney and this is not legal advice by the way.

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ka

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It is not signed by the Servicer?? or anyone just me.


Typical!

But you need to be very deliberate about choosing what to do in respect of this.  You do NOT want to prematurely take the lender to school.

Be aware that contracts can become binding on the parties without the signatures of both.  The key question is usually whether each manifested assent to the contract.  That is, agreement can take many forms, as at an auction where someone can bid by tugging on their ear.  If a bidder tells the auctioneer, "If I tug on my ear, I am making a bid" OR "If I touch the brim of my hat I am making a bid", then using this signal would probably be a manifestation of assent!  A bidder might buy a million dollar painting by tugging on his ear lobe.

On the other hand, the statute of frauds for your state may make an alteration/modification of the note and/or mortgage something that must be done in writing, signed by the person against whom enforcement is sought.  The wording of the statute of frauds may be critical. 

But in most jurisdictions, IF the contract expressly states that it does not take effect unless executed by both parties, then the courts will usually enforce that express provision.

Also, take a look at the express language of the original note and mortgage.  Some instruments contain language which require any modification to be in writing, etc.

So the question as to whether you have a binding contract in respect of the modifcation agreement depends upon (a) the fact of signature, (b) whether the agreement expressly REQUIRES the signatures of both parties, (c) any covenants of the original instruments setting forth the means by which the written agreement can be altered and (d) the law of the jurisdiction.

Also, note that the fact that YOUR copy of the agreement has no signature of the lender does NOT necessarily mean that the original agreement is UNSIGNED.  But it probably DOES mean that, because failing to sign is NOT AN ACCIDENT, but is rather by design.  Since the lender has the original, they are retaining the option of repudiating or enforcing the agreement later.

Contracts are formed by offer and acceptance.  You made an offer by signing.  The accept by countersigning.  The can probably countersign ANY TIME, as long as you have NOT revoked your offer.  Revocation would probably have to be in writing.

DO NOT SEEK TO REVOKE LIGHTLY.  DEPENDING UPON THE TERMS OF THE MODIFICATION, IT MAY BE MORE IN YOUR INTEREST TO PRESERVE THE AGREEMENT.

CONSULT A GOOD LAWYER!

The Lender can also always sign LATER and pretend that the instrument was signed all along.  There are a few possible strategies.  One is to simply hope that they fail to notice the lack of signature and tender an unsigned copy as an exhibit to their pleadings.  This might be too passive.  Another approach is to ask for a copy of the agreement within a request for production.  They may produce an unsigned copy.

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Thomas
Yeah, what ka said... Sometimes I tend to lay things out a little too layman like because I am just that. But well said ka!
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ka
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Yeah, what ka said... Sometimes I tend to lay things out a little too layman like because I am just that. But well said ka!


Thomas, our posts crossed.  That is yours apparently appeared while I was composing mine, but didn't see it until afterwards.  Your post has both clarity and the directness of someone who has been on the receiving end of this mischief.

I have persistently found that when I suggest that someone check THEIR COPY of the modification agreement for a signature by the lender, the borrower almost never has a signed copy.

There have been a number of cases where the lender pleads an unsigned copy and very often the borrower neglects to object and waives the issues.

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Angelo
I dont think the homeowner will ever get a signed copy unless its specifically asked for in discovery or a QWR.  When you sign and notorize the papers and send them back, you will never receive a copy back! 

My question is, if the mod was signed by the servicer, not a person from the lender on the the mod, is this legal?  are they going to claim that the servicer has power of attorney to sign on their behalf?
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A close friend of mine just received a Loan Mod proposition.

I dont know any good lawyer here. I was thinking that she can send a copy of the Loan Mod proposition to the OCC, but the servicer only gave her around 10 days to respond.

Or do you know any good lawer, here, location: Long Island, NY

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