Home Loans and Support

Possibly the only case of it's kind

Discussion in 'Loan Modification' started by cuegis, Sep 24, 2012.

  1. cuegis

    cuegis LoanSafe Member

    I suffered a financial hardship in 2009 and lost my business. Prior to that I had a very good credit rating.

    I purchased my NYC coop in 1992.
    My coop is worth $1.2 million.
    Both of my mortgages are with CitiMortgage.

    The 1st Mortgage is $331,000
    The HELOC is $485,000

    I applied, and was approved for a Modification at the end of 2009.
    My 3 month trial began in January 2010 and was to last for 3 months at which time, if I successfully made each of
    the 3 payments Citi would let me know right at the end of that 3 month trial period whether I was approved or denied for a permanent Mod.

    I made all 3 trial payments on time and when the 3 month period was over I never heard from Citi again.
    So, for the next 4-5 months I kept calling to find out what was going on and was continually told that they were still in the process of deciding.

    I asked the obvious question which was, I fulfilled my end of the trial, you have all of my info, you were supposed to give me answer at the end of the 3rd month, why do you need to continue to review me for another 5 months?

    Then, out of nowhere, around August I recieved a letter telling me that I was declined for the permanent Mod because of either a lost or missing document.

    I immediately called and the representitive that I spoke to looked at my file and said "this looks strange, as far as I can see everything required is in your file".

    So, after speaking to his supervisor he got the case reopened.

    Well I kept waiting for an answer and called regularly and was told that m yes, the case had been reopened but no decision had been made yet.

    Now we are into the last quarter of 2010 and I am recieving default notices and when I call they tell me not to worry, the case is still reopened and these default notices are just computor generated and I should ignore them.

    Then, in December I recieve a foreclosure notice telling me that an auction has been scheduled for Jan 12, 2011 at the county courthouse.

    First I panicked then went into overdrive because NOBODY is auctioning off my home of 34 years.

    So, acting "Pro Se" I got a "request for judicial intervention" and filed a "complaint" against Citi and was lucky to get a "left-leaning" judge who sided with me and issued a stay of the foreclosure that is still in effect today while I have pursued the lawsuit.

    What makes my case so unusual is that...
    1- I was foreclosed upon and I am the Plaintiff in the case and
    2- I am FAR from being "underwater" as I still have plenty of equity in my home despite the 2 mortgages.

    So, the judge ordered Citi to review me once again for a Mod in February 2012 which I was denied for due to
    "excessive forbearance".

    Just a word about the arrears...
    I started of with about $3000 in arrears but because Citi did the usual bag of tricks (losing/misplacing documents etc) and dragged it on and on for over 2 years, I have now accumulated over $50,000 in arrears.

    When I went back to court in June 2012 for a status conference to tell the judge that I was declined the Mod, I had just learned that the new HAMP 2 took effect on June 1 , 2012

    So the judge ordered Citi to now review me under HAMP Tier 2.
    I was denied the HAMP 2 after only one week despite the fact that I had enough verified income to pay their proposed Mod which was to add all of my arrears on top of the $331,000 that I owed and make it a 40 year fixed
    Mortgage at 2%.

    The monthly payment came out to $1219 per month.
    My coop monthly dues are $1300 per month so the totoal of the 2 would be about $2500 per month.

    Here is where the problem lies....
    I recieve my income through doing short term rentals (7-10 days on average).

    My monthly gross income is $4100.

    The formula used under the HAMP 2 guidelines takes that $4100 and subtracts 25% from it which now makes it $3075.

    Then, the next thing they do is take 42% of that $3075 which comes out to $1291.50 and this number has to be enough to cover the combined monthly new mortgage plus maintainence of $2500 which it does not come close to.

    The tragedy here is that my REAL income of $4100 is way more than enough to cover that expense.

    Also, nowhere in this process has the HELOC ever been mentioned. I was told that everything, as far as the Mod goes, is totally based on being approved for only the 1st mortgage Mod. then the HELOC follows automatically.

    So, I am now at the point where I have until Oct 5th to decide whether to enter into the "Discovery" process regarding my original complaint about being wrongfully denied the original permanent Mod as a result of "incompetence" and "bad faith" on their part which will cost me more money that I can pull together.

    I did hire an attorney since June 2012 who, when I had my initial consultation, told me that I had a good case.

    But, now that we are facing the deadline to go ahead with discovery, he is all of sudden telling me that my original complaint is weak and I probably will not win the case if I pursue it..Quite a change in his opinion from the time when he wanted me to sign on as a client.

    It just seems too unbelievable to me that someone with a $1.2 million home and a $330,000 mortgage with $50,000 in arrears is now on the path to foreclosure.

    Just another point...my $330,000 loan is a 30 year fixed at 6.25%

    I attempted to see if I could just get a simple refinance given the huge amount of equity but was told in no uncertain terms.. "noway, nohow" because of the damage to my credit over the arrears.

    I deeply apologize for making this SO long but this is my story and there just wasnt any part of it that I could leave out.

    Can someone please help me? There has to be someway to keep my home.

    Thank you
  2. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    who is the investor on your loan. Fannie? Freddie? or Private?
  3. cuegis

    cuegis LoanSafe Member

    I only know from the inputs which were on the HAMP results that it was originally Citi but is now a "Private" investor so it was transferred somewhere along the way.
    Citi is still the servicer.
    By the way, the loan originated in 2007
  4. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    Tell them they must modify as they are in contempt of US DISTRICT COURT CASE 1:12-CV-00361-RMC CITI CONSENT TO JUDGMENT ORDER
  5. cuegis

    cuegis LoanSafe Member

    Thank you for your comment. I tried googling it and I am having a hard time both understanding it and figuring out how it fits
    into my specific situation.
  6. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    If your loan has a private investor or any of the documents for foreclosure do not conform to your state law this case applies. I would get an attorney as you will need one.
  7. cuegis

    cuegis LoanSafe Member

    Thank you for your comment. I tried googling it and I am having a hard time both understanding it and figuring out how it fits
    into my specific situation.
    When I first applied for a Mod, as I mention in my story, I passed all of the requirements and was given the 3 month trial which I fulfilled.

    That was in January 2010 and they ultimately wiggled out of making that Mod permanent by saying that they losy , or were missing, a needed document (this was an outright lie)

    But, more recently, after the long court process where the Judge ordered Citi to review me under the new HAMP Tier 2, I was
    denied because, as of now, I do not meet the current requirements.
    I am wondering through what process can I basically force them to modify my loan at this point.

    Like I mentioned in my post, even though in real absolute numbers I do have more than enough income to pay the new expenses...

    it is the HAMP 2 math (reducing income by 25% then taking 42% of that reduced number) that has me wrongfully failing to meet
    their requirements.

    I cannot force them to change or bend their own rules just for me. They would never do that. So how would I go about
    putting them in a position where they HAVE TO modify my loan?

    I do have the advantage of not having to be at the mercy of some representitive at Citi because I am actually in the middle
    of a real court case before a Judge so they can be ordered to do things like review me under HAMP 2 and they also have to follow
    all of the rules and can no longer make up things like "missing documents etc" as the Judge gives Citi specific dates to

    But they did follow the time frame and dates that were layed out by the court and found that I was not qualified for the HAMP 2
    mod based on their own requirements.

    All the Judge can do is order them to follow the rules and meet the required dates involved.

    What a Judge cannot do, as far as I know, is to "force" or "order" Citi to modify my loan.

    If you know of something I can do to make this happen I will forever be in your debt if yoiu can guide me through it.

    Thank you
  8. cuegis

    cuegis LoanSafe Member

    I do have an attorney and he never came up with this idea. But he seems to reject any ideas that I come up with.

    Maybe my ideas are legally naive. For example I suggested to him that we see if Citi would be willing to reinstate my
    mortgage and workout a separate repayment plan for the arrears that have accumulated over the past 2+ years as a result
    of their delaying tactics.

    His response was that you caannot make them do anything and they have no incentive to do anything that they don't have to...

    especially in my case because there is still alot of equity on the home.

    I don't know if I have a problem going down this path as a result of my home being a "coop" which, as you know, represents ownership of shares of stock in a corporation that are attributed to ones apartment within the building.
    On the other hand, what I do have, and what is being fought over here, is an actual home mortgage.
  9. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    This link is the National Mortgage Settlement. http://nationalmortgagesettlement.com/ Within the Consent Order Judgment it shows what happened to you, me and many others is wrongful. This order is signed by a US DISTRICT COURT Judge. I would print out the entire order of many pages and introduce it into evidence in your case. Read through it and highlight the things pertinent to your case. This is substantive law and is relevant in your case.
  10. cuegis

    cuegis LoanSafe Member

    Yes...I did download the PDF of the case that you have mentioned. I think it is the same one you are referring to.

    It is 315 pages and is called "case_1_12_cv_00361_RMC".

    It is quite a bit to digest and will also cost me quite alot of money in legal fees if I ask my lawyer to review it as a possible document that we can use if we go ahead with the "Discovery" phase of my trial.

    Remember, even though I had a foreclosure action taken against me, it was me who was granted a "stay" of the foreclosure by filing a lawsuit against Citi so I am in the odd position of being the "Plaintiff" in a foreclosure action against me.

    I have until October 5 the excercise my right to proceed with the lawsuit by following the court deadline to begin the "Discovery" process.

    So I have just a very short time to decide whether or not it is worth the huge legal costs to go through with this case.

    Obviously if I have a decent chance of winning and saving my home then it is definately worth it .

    But, now that I have been denied the HAMP 2, even if I were to win the case, what would a win look like?

    What would I be winning?

    Could I win a modification if I do not currently qualify for one even though I was wrongfully denied one 2 years ago at a time
    when I was approved for the trial mod because I did qualify for one at that time?

    It is a complicated situation.

    But, in any event, I do believe in the worst case scenario, because I have so much equity in my home, at the very least, the Judge would continue the "Stay" and allow me time to sell my home rather than be foreclosed upon....

    But that is not what I want...I have lived in this home for 34 years and my only goal is to simply keep my home.
  11. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    First step is call the bank and cite the DOJ settlement of which you downloaded. Ask them if you are elegible. Keep in mind the regular citizen is battling a corporate citizen that is part of the system. The key is irreparable damage and proof of that. The OCC consent order to Cease and Desist shows that and so does this Settlement. This is very complicated and if you go to Discovery you must ask the appropriate questions.
    In my case I show evidence of an erroneous Trustee's Deed and show pursuant to my state law, the home should go back under the Trust Deed of which I was the owner under the Warranty Deed. I have sued three times and this time they have got a MTD approved from the bench with me paying their attorneys fees, Even though I show they violated the law. So you have an uphill battle.
    If it is your goal to keep your home then that should be your focus.
  12. cuegis

    cuegis LoanSafe Member

    Hi Again,
    I very much appreciate your advice.
    I need some other information and since this is the "Attornies" section I thought it might be the correct place to find out.

    As I have mentioned I already am in litigation and have an attorney representing me.
    The next step in my case is "Discovery" and the deadline for us to make our demands is Oct 7 but my lawyer
    needs some time to prepare for that.

    After reading through much of the LoanSafe threads as well as hearing your advice I am feeling unsatisfied with my lawyer.

    I don't feel that he is very "current" on his knowledge as well as being specific to my situation.

    When I read through many of these posts I find people, possibly some who are lawyers, who have the wealth of knowledge that
    I need right now.

    What I wanted to know is if you could suggest a lawyer in the New York City area who specializes in this kind of thing or could
    direct me to a way to find a more appropriate lawyer.

    As always, I appreciate any advice you can give.
  13. Straightshooter

    Straightshooter LoanSafe Member


    I am a single woman trying to hold onto my home. I am so weary from trying to get something worked out. I feel I have been taken advantage of. Can someone please look at the below and tell me if my servicer did anything illegal and/or can they be held accountable in anyway. Thank you greatly for anything you can offer.

    Purchased my home in 1992.
    Current principal $28,000,
    past due $9400 (includes fees & late chgs).
    Home value $$77,000
    Current pymt $475
    About 8-9 months into negotiations for mod, Bank of Am had all of my paperwork and verbally agreed to mod upon receipt of $5000 cash payment via Federal Tribal Grant (I'm Native American). It would have left a very small balance still past due.

    They received the money,cashed the check and renegged. So instead of that small balance it has now grown and grown again to nearly $9400.

    I had become unemployed in Feb 2011 and started receiving unemployment. I immediately began working with Bank of Am to get mod. They have turned me down at every turn for one reason or other. Usually for erroneous reasons. (we didn't receive this doc or that). Then I appeal and have to wait to have it re-opened. That takes months. Merry go round. This has been going on for 18 mos.

    I currently am part time employed and have gone back to school. I have $600 in part time income and my father supplements with $900 a month until I finish (6 more months). They know all of this. I have given the information to them over and over and over. I could have afforded to be caught up a long time ago and certainly can afford a pyment now.

    I tried my hardest to condense this. I would very much appreciate someone letting me know if that $5000 they took and then renegged was wrong. Thank you again.
    Last edited: Sep 27, 2012
  14. cuegis

    cuegis LoanSafe Member

    I dont think I would be informed enough to give you advice about the $5000 even though, of course, it sounds like
    outright theft. But in LEGAL terms they would call it "Bad Faith" and "Misrepresentation".

    As far as , at the very least, getting the bank to do what they really should be doing which is to review your application in a
    very timely manner for which there are now laws to protect you...for example,,, with regard to missing/lost documents...
    after recieving your application they have a specific timeframe ( maybe 30 days, possibly less) to inform you of any further documents that they require to be able to make a decision on your mod.

    Once you supply them with the specific documents that they are required to ask for (legal term..."Demand for Documents") they then have 30 days to inform you whether or not you were approved for the mod.

    THEN, after being informed, they have 10 days to provide you with the documentation, including all 44 inputs that were used, to make their decision.

    If you read my initial post here, I mention how I was able to get them to be legally ordered, with specific deadlines from the court that they HAVE TO follow by filing a lawsuit against them...a "Complaint" as well as a "RJI- Request for Judicial Intervention".

    Although I initially by myself ("Pro Se")...you really would need a lawyer to do this properly.

    The basis of your complaint against them would be "wronfully denied a permanent modification".. "you were misrepresented by the bank"...they acted in "Bad Faith"...there was "mismanagement and incompetence" on thier part in handling your application.

    Basically, if you bring a suit against them, at the very least, they can no longer jerk you around for an extended period of time.

    They will be "legally ordered" to comply with the rules and dates and timelines laid out by the court and can no longer play their old games.

    I hope this helps.
  15. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    I do not know of any lawyers and I am also a prose and I have kept Freddie from selling my house to a third party in the courts and recording instruments with powerful laws. You said you are prose and have been in the modification program before. I just got through constructing an argument and you may be able to use it so here is a partial concerning mods. Feel free to use it.

    1. The plaintiff did contact Wells Fargo Bank and was approved vial telephone for
    HAMP trial payments on or about October 28, 2009. He was told to skip the November
    payment by Wells Fargo to be eligible for the program. The Plaintiff was told he would
    be modified after the trial period was done. He never was modified after being told to
    continue making the agreed payment. The payment was made 7 times while the bank
    started foreclosure proceedings. Showing a “deficiency in performing a loan
    modification” and “dual tracking foreclosure and loan modification activities“. (1:12-cv-
    00361-RMC Wells Fargo Consent Judgment, United States of America v Bank of
    America et al, US DISTRICT COURT District Of Columbia) citing exhibit F (1) and

    Also most attorneys in realestate and some in foreclosure do not get it. Most here are like me they study every day.
  16. Jeffrey L. Shurtliff

    Jeffrey L. Shurtliff LoanSafe Member

    It is a wrongful act to take that money from you and then reneg on the agreement. Did you get an agreement in writing? If you did not they can get away with it. I do not know what to tell you now as you have a delequent balance and they can foreclose if they want to. I do not believe an attorney could help you unless you have an agreement they breached in writing.
  17. Straightshooter

    Straightshooter LoanSafe Member

    There was no agreement in writing other than the paper trail of documents from my tribe to Bank of Am (i have copies of check sent from tribe to bank of am). And then there is the recorded phone call i.e. 'this phone call may be recorded for quality assurance or training purposes,' etc. I'm sure if it was ever recorded it has long since been erased.

    Note: I know exactly what date and time and to whom I spoke. I have made a habit of writing down all of that info from the getgo.

    They seem to break their necks doing mods for all these big dollar mortgages. I have gotten nowhere and they took Federal monies to boot and broke their promise.

    I do thank you Mr. Shurtliff for taking the time to read my post and giving me a response.
  18. Straightshooter

    Straightshooter LoanSafe Member

    You have provided some helpful information. Thank you generously for replying to my post. I'm so afraid that if I now file some legal motions against them and then they are thrown out by some judge, The bank will then escalate foreclosure proceedings.

    I am scared to death of losing my home. I know I can afford a modification currently. And am holding on for dear life. In my little brain I guess I have decided to just keep working part time and complete school (6 more months) hoping they will offer me a mod on my current circumstances. And if they deny me again, I will just turn around and apply again, thus holding up the foreclosure process longer. As it is my understanding they cannot foreclose if you are in review for a modification.

    And if it goes another 6 months, I will be done with school and my circumstances will have changed yet again. Apply again.
    Groundhog day. God hear my voice.

    Thanks again for your help.
  19. cuegis

    cuegis LoanSafe Member

    Hi Again,
    Do you know whether you are being reviewed for a HAMP Tier 1 or the new Tier 2 that went into effect on June 1 2012?
    I was denied for the HAMP 1 and the Treasury's reason for coming out with HAMP 2 was to "make modifications available to many more homeowners than had been previously".

    If you get denied for HAMP1, then you can demand to be reviewed again under the less stringent rules of HAMP 2 which would also
    help you to keep the process going on and postponing, at least for more time, their ability to foreclose on you.

    I am also starting to get very nervous because, like I mention in my original post, based on the new modification they were prepared to give me which would be $1000 per month less than my original mortgage, even when adding on all of the arrears, I AM able to afford it based on the verified income that I provided.

    But, where the problem lies is with the specific HAMP guidelines which in the case of HAMP 2 only allows a maximum of 42% of your
    gross monthly income to be allowed to cover the new mortgage PLUS taxes.

    So, if for example, your gross monthly income is $5000 and the new mortgage plus taxes comes out to say $3000 per month, you certainly would be able to afford the new modification but since $3000 is more than 42% of $5000 you would be denied.

    This is whats killing me and it's just plain stupid.

    But, it is an improvement over the original HAMP 1 where it could not be more (or less) than 31% of your gross monthly income.
  20. cuegis

    cuegis LoanSafe Member

    Some good news in my case but it requires an answer to a question.
    As I mentioned in my previous post I was denied a Hamp Tier 2 on Sept 7 due to insufficient income.

    Well, over the past week I gained full-time employment that puts me well above the income level that I was told would be required to be approved for this HAMP 2 by my lender.

    My question is this...
    I recall having read somewhere that if you are denied a HAMP based on insufficient income and then there is a significant change in your income to the point where you now qualify that they must re-evaluate you.

    Although I do not think I will have a problem with them running the numbers again, my lawyer asked me to see if I could locate this requirement for them to have to re-evaluate that I am referring to in case he has to be in a position to bring it to their attention.

    Do you know where I can locate this rule or do you know anything about it?

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