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Posted by kevin on March 30, 2018 under Foreclosure Blog | Comments are off for this article

I have not posted in a few months because there was little happening of any interest to borrowers. I continue to read the “advance sheets” which have a few, what are referred to as, “unpublished” appellate decisions in New Jersey over the last couple of months. All borrower appeals were rejected.

A war story. I appeared in court in January to stay a sheriff sale. The background: Loan in 2007, foreclosure by BAC in 2009. Client was offered a modification in 2010, but the offer was withdrawn by BAC because they claimed the modification acceptance arrived late. Perhaps, the fact that the borrower does not speak, read or write English had something to do with that. The robo-signing stay in NJ put the case on hold for 8 months; however, after the stay was lifted, BAC did nothing for two years. The Clerk moved to dismiss but BAC got the case reinstated in 2014. After reinstatement, BAC once again did nothing and the case was dismissed in 2016. All the while, interest and fees are piling up. In late 2016, Bank of America filed a second foreclosure.

I became involved in 2017 just about the time that final judgment was entered. We applied for a loan modification under a so-called proprietary modification plan. That means that it is the lender’s (or servicer’s) in house mod plan. The problem was that the BOA never made public what the guidelines were for obtaining their proprietary plans. The servicer notified me that my client did not have sufficient income to obtain a modification under the investment property modification plan. I called the “point of contact” person and requested information about the plan guidelines so that I could confirm whether, in fact, my client did to qualify, and how much more income he would need to qualify. The reason was that the borrower’s son, who had substantial income, was willing to sign on the loan (which was disclosed to the servicer). Neither the point of contact person nor her supervisor, could tell me how much income was needed to qualify for the investment property mod plan. They could not (or would not) give me a copy of the plan guidelines. At BOA’s suggestion, we appealed the decision but were again rejected.

I served a QWR (qualified written request) to ascertain the plan terms and received a reply that borrower did not have sufficient income to qualify. I served a Notice of Error and the response from BOA is that they did not have to tell us the plan guidelines since it was proprietary. WTF? I once again told the servicer that the son was willing to sign on the loan and provided his income documentation. BOA refused to consider any amendment and refused to put off the sale.

The Judge heard the case, listened to my arguments and said that BOA was under no obligation to offer my client a modification. That is true, but was not the point. The point was that once a servicer or lender publicizes that it has a modification program and invites the borrowing public to apply for such a modification, it should be compelled to make public the terms for qualifying for such a program. Otherwise, we are dealing with an Alice in Wonderland situation. The Judge did not see it that way and my client lost the property.

Draw your own conclusions.