Facing Foreclosure: Introducing the Servicing Scam

[JacMac]

What You Should Know



• These are not "predatory lenders."

These companies do not loan money. They operate in the lending industry after-the-fact. They take on a function that a lender doesn’t want - the backroom functions of handling payments, escrow accounts, annual statements, dealing with borrowers, collections, etc. The perpetrators of the loan servicing scam acquire the servicing rights to loans that other companies have
already made. (Loans that were deliberately constructed by predatory lenders are ideal for processing through servicers that specialize in aggressive collections or rapid foreclosure processing, but the loan servicing scam can be operated against any mortgage loan if the servicer acquires the rights from the lender.)

• These scams are designed and deliberately operated.

These situations are not errors, mistakes or situations where a servicer’s managers or employees failed to do their job. Their systems are well-designed and state-of-the-art in terms of analytical technology that helps them choose and process their victims. These scams generate enormous profits from a business that is difficult to run, people and litigation intensive and normally only marginally profitable. Many have failed and been acquired (Fairbanks bought several).

• You, the borrower are not their customer. Lending companies and investors are their customers. As a borrower being "serviced" in the scam, you are simply one of millions in an ever-growing pool of what the financial services industry deliberately labels as "sub-prime" borrowers waiting to be taken advantage of.
• They have almost unlimited legal resources.

If you had the financial resources to have effective legal representation and the documentation to challenge them, they would turn their attention to easier targets. Of course, because most sub-prime borrowers are not well off and don’t have an attorney, you’re a likely target.

• They have leverage and information and will prey on your fears. The fear of possibly losing your home is the key that unlocks your bank account for them. They know almost everything about you financially and even from an employment and income basis. They are made aware of your inquiries into other lenders about refinancing even without a request for a payoff and that shopping may lead them to
target you before you can get out of the loan you’re in.


• They are experts with millions of successful cases behind them.

The loan servicing industry, including those who founded and are running the servicing scam companies, helped craft the "standard" loan documents in widespread use. They are written entirely for the protection of the lending industry, not the consumer. That situation allows them to manipulate their processes and procedures to push you into a position where they can take funds from you or ultimately take your home, often within the terms and conditions of the loan. Some do go beyond the terms or even break the law and aren’t stopped because the borrower does not actually understand the agreement they signed or the laws and regulations.


The path toward losing your home to this scam is actually quite simple. The first phase is designed to fabricate the default, and typically begins with one, or a combination of ways to arm the servicer's records with false data:

• The servicer decides to manipulate the date the payment is received in order to artificially create a late payment.

• Then the servicer applies part of the payment to something other than principal and interest and creates a partial late payment or deficiency.

• The servicer decides to "force place" an insurance policy on the property by claiming the homeowner has not provided proof of insurance.

• The servicer pays your property taxes late, then adds their late penalty to your account without your knowledge.

Any or all of those processes result in at least one month of the account being past due and a negative note is made in the credit report (which effectively prevents the borrower from refinancing).

It also helps the Private Mortgage Insurance carrier keep the policy in effect on the loan, which is why these insurance companies have investments in servicing companies in the first place – a late payment or two allows the lender to keep the insurance in force.


THIS IS IMPORTANT FOR BORROWERS IN THIS MARKET TO KNOW

IF the borrower has anything more than about 10-15% equity in the property, it is to the servicer’s advantage at this point to not aggressively attempt to collect. In fact, if the borrower makes contact, the servicer will engage in delay tactics to avoid resolving the problem in time to prevent default. If the equity position is considerably less than 10%, the servicer does not have as much leverage, nor is the opportunity as great and they will typically be more aggressive in collection efforts and more willing to keep the loan in
force. ****THIS IS WHY IT'S A GOOD TIME TO TRY AND GET YOUR LOAN MODIFIED




In the case of force-placed insurance, it is to the servicer’s advantage to ignore the borrower and any proof of insurance as long as possible, again to keep the borrower’s credit status in a negative light and to maintain their relationship with the insurer they contract with. These policies are extremely profitable because they provide absolutely no coverage for the homeowner. They protect ONLY the value of the loan if the property is destroyed.




If the servicer has analyzed the opportunity and marked the property for default and recovery, the next payment received will be rejected as being insufficient. If it is accepted, the application of the funds leaves the loan sixty days past due. Typically, the scam now moves toward formal legal notice of acceleration in order to coerce the borrower into signing a highly-profitable forbearance agreement to somehow "save the home."

The servicer rolls thousands of dollars in penalties and an incomprehensible combination of legitimate and illegitimate fees into the agreement and the homeowner is left with no choice but to sign it or lose their home. The amount demanded will be calculated to take as much of the homeowner’s equity as possible.




If the homeowner decides to sell the property to get out of the situation and take their equity, they will find the payoff amount (which in the last month of the scam will take longer to get than the amount of time left before foreclosure) strips them of their equity. That combined with their artificially-damaged credit rating helps keep the victim trapped.




If the borrower cannot pay the amounts demanded in the forbearance agreement, the servicer will have one of their network of specialized attorney firms foreclose and the property will be sold, typically at a county
auction or through their real-estate network.




If the borrower signs the agreement, they will soon be recycled through the process with yet more late payments and fees. But in the terms of the forbearance agreement, they may find they have signed away any legal protections they may have already had, including the right to sue the servicer for fraud or misrepresentation.

In the end, if the homeowner cannot afford competent legal representation to stop this fraud, they lose their equity and in many cases, their home.

[JacMac]

Posted by Nick on December 18, 2007, 11:15 am

"Over the past years working with foreclosure victims, it is always amazing to see the complete incompetence of mortgage lenders. When working with these homeowners, foreclosure case workers or loss mitigation representatives go to nearly any lengths to avoid helping their clients. It seems they do anything possible in order to delay a resolution, instead allowing the home to get dangerously close to the sheriff sale before turning down the workout program entirely.


"In cases where the homeowners are facing the loss of their homes due to negligence or fraud on the part of the lender, the incompetence is especially frustrating. Our observations over years have alerted us to a few of the various ways that banks push paying customers into foreclosure in order to steal the home and extract the largest profit possible at the expense of the homeowners. This type of scam is mostly perpetrated by servicing companies and operates in several ways, all of which we have witnessed numerous times.

"Homeowners in these and similar situations may feel as if they are the only ones caught up in some kind of Kafkaesque debacle. The lenders play the part very well through their own genuine incompetence at the customer service level. Remaining on hold for three hours a day just to confirm that a fax has been received (when it had not been received any of the previous three times it was sent) is a simple tactic resulting from understaffed loss mitigation departments and increasing foreclosures. But more and more experience and research shows us that these are not isolated events, but carefully planned manipulations of mortgages, resulting in forced foreclosures.

"Possibly the most common scam that we have witnessed is when the lender places a forced insurance policy on a property. They claim they have not received proof of insurance and then force the owners to pay extra every month for the policy. Often, they place the insurance without informing the homeowners, who make their regular monthly payment, which is first applied to the policy and then to interest and principal. This makes them late on the bill even though they are paying on time every month. Faxes to the lender of proof of insurance will not convince them, if they confirm receiving the documents at all. Homeowners may only learn of the insurance policy when they are being sued for foreclosure, and assume that a horrible mistake had been made.

"Another way that mortgage servicing companies push properties into foreclosure is by paying the property taxes late and charging the late fees to the homeowners' account. The next payment the homeowners make will be applied to the taxes and late fees, while the principal and interest will be partially late. Again, the foreclosure victims may not realize the scam until they are being sued and their home is scheduled to be sold at a county auction. Even then, they may have little idea of how to defend themselves in court against a company with thousands of successful foreclosures behind it who has hired local attorneys that specialize in such cases. The loss of the home may be all but guaranteed at this point.

"These are the two most common ways, in our experience, that servicing companies have been known to force homeowners into foreclosure. The deviousness of the scam, combined with the bureaucratic inefficiency of many of these companies, often create the impression that errors have been made that can be corrected, as long as the homeowners can talk to someone, explain what happened, and straighten out the mess.


"Unfortunately, customer service centers may be specifically designed to delay the homeowners as long as possible, leading them to believe they are working out a solution, while the attorneys proceed ever more quickly to the foreclosure auction.

"Even more unfortunate is the fact that homeowners have little alternative when they become a victim of this scam. Once they are behind in payments or in foreclosure, the servicing company will make absolutely sure that the balance due on the loan strips the property of its equity. This also dramatically decreases the chance of qualifying for a foreclosure loan or other solution, and increases the amount necessary to begin a repayment plan with the company. A house with little equity can not even be sold quickly enough to ensure that there will be any equity by the closing. The servicing fraud scam is one of the most disturbing in the industry, and one every homeowner should be aware of, because the power of the perpetrators so outweigh the victims in terms of money, legal expertise, and previous successful cases."