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Ely
Ely, Counselor at Law
Category: Legal
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I have been trying since January 2009 to get some assistance

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I have been trying since January 2009 to get some assistance thru my bank (BoA) to modify my mortgage. In the last 3 years I have had 2 lay offs, divorce, illness, etc. yet I seem to not be able to get a modification that will help me get back on my feet. I have gone to the attorney general in my State who has been trying to assist me with contactin g the appropriate people to move this along however Bank of America is so huge and so compartmentalized that I never speak to the same person twice and I have literally faxed 100's of documents to them only to find they were not received, or they are out of date and the process starts again. I was forced to declare bankrutpcy in 2010 to sytop the auction of my home and then began the process of modification all over again in February of 2011 and still have not seen any sign of assistance. My health is failing due to this stress, I have 3 children who will become homeless and I have lived in this home for 18 yrs 15 years I paid my mortgage faithfully. What can I do? I am behind again waiting for them to supposedly complete my application.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other customers or taking a break.

I am very sorry for your situation. Please tell me - have they been encouraging you to fall behind on payment so you can "qualify" for their modification?
Customer: replied 5 years ago.
The reps at the "Foreclosure dept" told me to wait on the payment until the modification has gone through. I am paying a bankruptcy payment which is the arrears from the last time I tried to get the modification. Of course this is the down and dirty that you are getting believe me when I tell you that I have every piece of paper and logs of who I have spoken with and faxed documents to - about 8 inches of paper - from the last 3 years. ALL I want is to get back on track and trying to pay out 2000. per month is heavy.
Does this have to do something with the divorce, or is this different?
My apologies, I seem to have typed that in the wrong window. I am working on your question now.
Okay, the problem here is that sometimes one department tells you to "wait" so that the modification department would believe that you really must be in trouble if you are not making payment, so that you do not need to make payment and make them think that you do not have any money...

This is false. The foreclosure department and the modification department are the same mortgage company. It is inconceivable that they would not know what each is thinking. I have seen this done a lot. In reality, the financial company wants you to miss payments if they believe that you likely will be fighting them on foreclosure. Once you miss even one payment, they can foreclose by contract. So what happens often is that individuals are actually encouraged to miss payments "to convince the modification department" and then once they do, they are foreclosed upon.

Some parties have sued banks over this with mixed results - it is very hard to prove that this was a set up since everything is subjective and many negotiations are verbal.

Try not to miss payments. You generally have the following options:

Foreclosure
An foreclosure may mean that they can go after you for deficiency - you know this already. This is not a good option.

Foreclosure - Uncontested
A voluntary foreclosure means that you agree to walk away. Typically, the debtor then requests a written waiver against the mortgagor filing for deficiency before the foreclosure is executed - therefore ensuring that they are safe from further litigation. Also known as deed in lieu of foreclosure.

Short Sale
The debtor sells the property with the mortgagor's permission to a third party for below cost, but remains liable for any amount outstanding. Typically less damaging to one's credit than foreclosure, but still not very favorable.

Bankruptcy
Originally seen as the last resort option, this is becoming increasingly a choice for many Americans. A Chapter 13 proceeding will allow the debtor to force a reinstatement of the mortgage by catching up on delinquent payments over time.

Negotiation
What you are doing now. Continue to negotiate and try for a modification, but try not to miss payments and if you do, get them to agree in writing not to foreclose for missed payments within the time that they are considering modification.

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Customer: replied 5 years ago.
Do you think I could sue them for misrepresentation or for undue hardship to me?
Hello,

Misrepresentation is another word for fraud. Elements of claim for fraud. The basic elements of a claim sounding in fraud or deceit are set forth in International Totalizing Sys. v. PepsiCo, Inc., 29 Mass. App. Ct. 424, 431 (1990):

"[T]o recover in an action for deceit, the plaintiff must prove "that the defendant [or its agent], made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to [its] damage."

Undue hardship is not a recognized cause of action in Massachusetts.

Can you prove it? I cannot say. The results in these types of matters has been mixed. It falls into the general accusation of "mortgage fraud." If you can show that they deliberately were asking you to miss payments so as to foreclose on you earlier, then you'd be successful, but it is very hard to prove someone's intent...

I just have been told the the Massachusetts Attorney General has filed lawsuit against five major banks for mortgage fraud regarding modification. Just now - breaking news. How about that? Contact the Attorney General and perhaps they can advise/add you to the matter.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction – really – don’t be shy! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
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