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Why modify

California Loan Modification Lawyer

(Effective October 11, 2009  The McCandless Firm complies with SB 94)

By now, you may have made your own attempts at loan modification. You now know what we have known: Despite all the government and media hype, the voluntary loan modifications are not the silver bullet to the foreclosure crisis. Even after President Obama introduced the HAMP program, only about 8% of the anticipated 9 million loan modification applications have been considered. Never forget that lenders and loan servicers are in the business of making money for their shareholders, not solving people’s financial problems. Despite the incentives created by the government, loan servicers remain inconsistent, negligent, understaffed, arrogant and just plain indifferent to the financial plight of most folks. If you’ve ever wondered why the bank doesn’t seem to care? Consider that it is the investor, not loan servicer, takes the financial hit when a property is foreclosed. Loan servicers make more money when a borrower falls into foreclosure. Servicers have an incentive to drag out the foreclosure and loan modification process. Despite what the government and the lenders may say, the loan modification or short sale process is not as quick and easy as has been portrayed.

VIOLATIONS CAN GIVE YOU LEVERAGE to secure a “SETTLEMENT”, not a LOAN MODIFICATION.

Whether hiring a lawyer will increase your chances for success a little or a lot depends on whether the lender has done something wrong. This is why Attorney Roberts encourages every client to commission an audit of the original loan documents, review the appraisal and take measure of any agency relationships between the broker, the lender, the appraiser, the escrow and the title companies. Anecdotally, Attorney Roberts believes that your chances of success increase fourfold if there is litigation or bankruptcy. Hiring a lawyer to review your options and handle the process makes sense. Your chances of obtaining a substantial loan modification will be greatly improved if the lender has violated the law…but how will you ever know? A lawyer can help you gain negotiating leverage on your behalf by finding violations of the law or capitalizing on provisions of the bankruptcy code.

FRONT DOOR LOAN MODIFICATIONS

A loan modification can still be secured even where violations do not exist or the borrower chooses to ignore them. In California, SB94 was recently signed into law effectively banning advance fee loan modification services by even lawyers. Attorney Roberts operates in full compliance of the new law. If you hire a lawyer to provide loan modification services rather than to pursue a violation of your rights, special rules now apply and specific disclosures must be made letting you know that you can do the loan modification yourself and avoid fees.

It’s true; you can pursue a loan modification yourself, just as you have the right to represent yourself in court. And to be honest, even with a lawyer, unless a violation has occurred, you are at the mercy of the loan servicer’s interpretation and analysis of your situation. If the servicer loses your paperwork, berates you, keeps you on hold for hours, ignores you, or simply denies the loan modification without explanation…you have NO RECOURSE. You are not entitled to a loan modification and you have no right to sue if denied. Even if the lender ignores the guidelines of the government’s HAMP program, you can’t sue. When you apply for a front door loan modification, you are asking for a break. It is you and not the lender, who seeks to break the mortgage contract. You have no leverage. You cannot force the lender to give you any consideration, whatsoever. Even if you clearly qualify for a loan modification under the printed guidelines of the government HAMP program, if the lender believes that it would make more money in the long run by foreclosing, you can legitimately be denied.

Why pay a lawyer to work on your loan modification? A lawyer adds attention to detail and diligence to the process, as well as a better idea of the location of each loan servicers’ “sweet spot”. Experience and daily contact with the loan servicers provides some advantage as well. The law firm may act as a force to counter act the incompetence built into the lender’s process. Attorney Roberts and his staff simply assume that the loan mod process will be screwed up by the lender, repeatedly. The firm expects that the lenders will lose paperwork, fail to respond and provide conflicting information. The firm is not shocked when a home is improperly sold despite an approval of a loan modification as it happens all the time. The Law Office of The McCandless Firm is there to respond to these constant lender screw ups and bear the brunt of your frustration.

The The McCandless Firm is always prepared to react to the latest bank screw-up or client crisis. One of the favorite tricks of the lenders is to wait to the very last minute before the sale to approve or deny a postponement or a loan modification. This game of chicken may happen every month as the loan modification process drones on. The firm is always ready with a PLAN B if the lender, in its sole discretion, denies the modification. Having the ability to plan and execute a contingency plan, whether it be Chapter 7, 11, 13, a short sale or a federal lawsuit, is truly the firm’s core strength.

A foreclosure relief company or real estate agent is unqualified to provide you with any of this legal insight – but a California loan modification lawyer at the The McCandless Firm has the knowledge and experience to help. California attorney Joseph Arthur “Joe” Roberts can act as your legal counselor and help you get out of the financial situation that you find yourself in. With offices located in Newport Beach, attorney Roberts helps clients throughout California, including Los Angeles, Orange, Riverside County and the surrounding areas.

Loan Modification Attorney in Los Angeles, Orange and Riverside County, California

In California, voluntary loan modification programs of different companies vary. Most loans are owned in pools by “trusts” and not by the servicing agent with whom you deal. The contract between the trust and the servicing agent, called a PSA, limits the number of loans that can be modified in a given pool. Typically, the PSA limits the number of loans that can be modified in a given pool at 5%. However, that restriction is lifted in the event of a bankruptcy or litigation.

Most servicing agents are understaffed, overwhelmed and for the most part…simply don’t care about you. The servicing companies typically make more money off of late fees, costs and penalties when you remain in default. If the property gets foreclosed on, it becomes the trust’s problem, not necessarily the service agent’s. The application process can take months and usually involves rejection or a token change in the loan terms. Amid the flood of modification requests, mistakes frequently get made and the ball gets dropped. In the meantime, the countdown to foreclosure sale continues. Homeowners already under distress get left with little time to act if a modification is not granted. You need to have a backup plan in place in case the lender’s process fails.

Loan modification is driven by income and complicated when there is a second mortgage company involved. If you lack the income to fund whatever plan the lender is willing to give you, you will be denied. Even if the first mortgage company is willing to modify your loan, it doesn’t mean that the second mortgage company will play ball. In the absence of litigation or bankruptcy, the loan modifications have economic limits. A reduction in principal balance is rare. A mortgage holder will not reduce the principal balance below the value of the property. Interest rate adjustments and recapitalization of back payments are more common. However, don’t expect to get an interest only or negative amortization loan. The very best you can hope for is a fixed rate amortized over 30 years at a decent rate based on the current value of the house. Finally, if the lender “cancels” some of your debt, it may still be considered taxable income by the IRS, despite the passage of the limited Mortgage Forgiveness Debt Relief Act of 2007. Only debt from buying or improving the property is covered by the new law.

How a California Loan Modification Lawyer Can Help

loan modification process can be complex, and it is easy for a lender or servicing agent to take advantage of you. Using an experienced lawyer to assert your rights gets you to the front of the line in this process. The possibility of litigation or bankruptcy may increase your negotiating leverage with your lender. Lenders are forced to get their own lawyers involved in your case, not just an administrative person from the loss mitigation department. We welcome you to contact our firm to discuss your loan, your budget and the benefits of attorney negotiated loan modification.

Contact  loan modification attorney The McCandless Firm today! Northern California 925-957-9797and in Southern California 909-890-9192

Foreclosure Deed may be Voided by Mortgage Transfer or Servicing Problems

By Max Gardner

A Federal District Court, in a December 7 order, has denied a motion to
dismiss a homeowner’s lawsuit to set aside the nonjudicial Missouri
foreclosure sale based on a deed of trust, based on allegations that 1)
the homeowner was not in default and 2) the nonjudicial sale was baed on
an invalid transfer of the mortgage and note. This decision illustrates
the potentially broad ramifications that defective mortgage transfers
and wrongful foreclosures will have for any house titles derived from
foreclosure sales in nonjudicial foreclosure states.
More specifically, the homeowner alleges that she made all payments when
due, until instructed by the servicer to stop making payments in order
to qualify for a modification. She also submitted the mortgage transfer
documents that showed a significant break in the chain of ownership. In
a deed of trust state, instead of a mortgage the loan originator
typically files a deed of trust, which transfers a power of sale from
the homeowner to a trustee, usually a local lawyer, on behalf of the
trust deed beneficiary, who is the lender or investor. In order to
transfer the mortgage, there needs to be a transfer of the note and a
change in the beneficiary of the trust deed. This is routinely done by
filing a substitution of trustee with the local recorder of deeds. The
substitution of trustee names a new trustee with a power of sale, and a
new beneficial owner of the mortgage/deed of trust. In this case the
substitution of trustee form listed a grantor of the transfer, i.e. the
prior owner of the loan, that did not match the identified beneficial
owner of the original deed of trust. This break in the chain, according
to the court and basic logic, would render the subsequent trustee deed
invalid.
A second, independent basis for setting aside the foreclosure deed was
the alleged absence of a default. In a nonjudicial foreclosure, there
is no court judgment establishing that the homeonwer defaulted on the
loan. For that reason, a completed foreclosure sale can later be set
aside if there was in fact no default. The homeowner’s allegation in
this case was that she was current in payments until the servicer
instructed her to stop paying so that it could modify her loan. This
type of servicer-induced payment interruption can be characterized as
either nondefault based on a modification of the contract, a waiver of
the payment obligation by the servicer as agent for the mortgagee, or
perhaps a repudiation by the servicer. In any case, this scenario is
sufficiently common to raise serious questions about large numbers of
property titles in nonjudicial foreclosure states.