MOTION TO COMPEL BONDHOLDERS COMMITTEE TO MEDIATE
Comes now, Defendants, ********* and moves this Court to Order a Bondholders' committee pursuant to Florida Statutes section 69.021 to facilitate mediation, and states:
1. The ******* have always been able to pay their mortgage on time, and did pay on time pursuant to the original agreement. They got behind on their payments due to the fault of the bank as the bank had miscalculated their monthly payment so that unbeknownst to the *******, each payment they were making several hundred dollars less than it was supposed to be. When the bank realized the error, it sent them a demand for several thousand dollars. The ******** did not have that lump sum available, but could make payments on it over a short period of months, but the bank refused and foreclosed on them. They tried Y times to modify their loan but were rejected without reason. (Exhibit 1, Affidavit of *********)
2. On May 28, 2010, Plaintiff's counsel, Kimberly Matot emailed Defendants' counsel and advised that Brevard County Administrative Order 10-09-B required mediation and stated that the ******** “qualify for this”. (Exhibit 2, email transmission from Kimberly Matot)
3. The ******* mortgage loan has been securitized, meaning that the Note was pooled with other notes and sold into a trust. On April 9, 2010, Plaintiff had filed the Pooling and Servicing Agreement with the clerk as document number 59.
4. The Mortgage indicates no remedy of foreclosure for Lender error in miscalculating escrow sums; instead, it states that those sums, if not paid by the Borrower, are to be advanced by the Lender and become principal and subject to interest payments, thus amortized over the life of the loan.
5. Paragraph 3 of the Mortgage states in pertinent part:
Borrower shall pay to Lender on the day Periodic Payments are due under the Note is paid in full, a sum (the “funds”) to provide for payment of amounts due (a) for taxes and assessments. . . . These items are called Escrow Items. . . . (Complaint, Composite Exhibit A)
6. Paragraph 9 of the Mortgage states in pertinent part:
Any amounts disbursed by Lender under this Section 9 shall become additional debt of borrower secured by this security instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable with such interest upon notice by Lender to Borrower requesting payment. (Complaint, Composite Exhibit A)
7. There is a trust document that this loan is subject to and which was not executed by the Defendants, but which purportedly prevents any modification of the subject mortgage loan if not materially adverse to the interests of the Certificateholders and the Certificate Insurer. On April 30, 2010, Plaintiff filed the Pooling and Servicing Agreement relating to the subject Mortgage Loan. (Document 59 in Clerks file) Paragraph 3.01(c) of this trust document provides:
Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a Mortgage Loan (except as provided in Section 4.01 and except for Servicing Advances) and the Servicer shall not (i) permit any modification with respect to any mortgage loan terms that would change the mortgage rate, reduce or increase the principal balance or change the final maturity date; or permit any modification, waiver or amendment of any term of any mortgage loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC provisions, (iii) except as provided in Section 3.07(a), waive any Prepayment Charges, or (iv) accept payment from the related Mortgagor of an amount less than the unpaid principal balance of such mortgage loan in final satisfaction thereof; provided, however, that the Servicer may take any action set forth in clauses (i) through (iv) with respect to any mortgage loan in default or, which in the judgment of the Servicer, a default is reasonably foreseeable, and only to the extent the Servicer determines that such action is not materially adverse to the interests of the Certificateholders and the Certificate Insurer (taking into account any estimated Realized Loss that might result absent such action).
8. The Defendants mortgage loan is subject to Florida Statutes section 69.021, which provides in part:
(1) SELECTION.--In any action to foreclose the lien of any mortgage or deed of trust given to secure any issue of bonds or other obligations and encumbering real or personal property or both when the owners of the bonds or beneficiaries of the trust exceed ten in number, on motion of a party or on its own initiative, the court may appoint three persons, two of whom shall constitute a quorum for all purposes, as a committee for the protection of the holders of bonds or units or certificates of beneficial interest. The committee is vested with such powers and authority and shall discharge such duties in connection with the litigation and its subject matter as is necessary and proper in the court's discretion to protect the interest of the holders of the bonds and beneficiaries of the trust involved in, or affected by, the litigation. During the pendency of such litigation, the court may prescribe, modify, abrogate or nullify the powers and authority of the committee.
9. The foreclosure is not only illegal, it is inequitable. The lender has not stated the reason for the Defendants to be initially denied modification to make the additional escrow payments over time. This mortgage loan should be modified and the Lender is incapable of rising to that challenge.
10. WHEREFORE, the Defendants request the Court appoint a bondholders committee to address modification of said mortgage loan.
This is funny, they do not have the authority to modify due to the constraints of there own documents. So why would they offer a modification? Anyway, my attorney states this is the only way to get a true modification and he filed this motion with the court.