MORTGAGE LOANS
3.
Borrowers who had a
contract to sell their home by way
of a short sale, the servicer failed to
make a decision within 30 business
days from submission of application
and the buyer withdrew.
4.
Borrowers
with
loan
modifications where the loan
modification has not been honored
by a loan servicer or successor loan
servicer.
5.
Borrowers who have trial
loan modifications that last beyond
three months.
6.
Borrowers with Lender
Placed or Forced Placed Insurance.
7.
Borrowers with excessive
escrow deficiencies.
8.
Borrowers with a loan
modification that is not recognized
by a new servicer.
Practitioners should be on the look
out for the following fact patterns
that form the basis of a RESPA
claim:
1.
When
Homeowner/
Borrowers have submitted a
facially complete loan modification
application and loan servicer
moves forward in any way to
foreclose. (This includes referral
to foreclosure counsel, Filing of
a Foreclosure Complaint in a
Judicial Foreclosure state, Filing or
recording a foreclosure notice in an
non judicial state, Filing a motion for
relief from stay in Bankruptcy, filing
a Dispositive motion in a judicial
foreclosure, setting a date for a
sheriff’s sale or failing to avoid a
judgment or withdraw a sale.
2.
When a mortgage loan
servicer fails to honor an agreed to
Loan Modification.
3.
When a mortgage loan
Servicer fails to make a decision
on a Short Sale within 30 Business
Days.
4.
When a mortgage loan
servicer refers for foreclosure
before a borrower is 120 days past
due.
5.
When a mortgage loan
servicer ails to properly calculate
escrow or an escrow shortage and
overcharges to amortize escrow
shortages. Note that a servicer
may only hold a two month cushion
for taxes, homeowner’s insurance
and private mortgage insurance in
escrow.
currently exempt) This happens
more often than one might think.
3.
When a mortgage loan
servicer fails to apply payments on
the same day as they receive them.
4.
When a mortgage loan
servicer applies payment to fees or
corporate advances before principal
interest taxes and insurance are
brought current.
5.
When a mortgage loan
servicer fails to provide the name of
owner, master servicer and servicer
within 10 business days of the date
of receipt of written request, payoff
or reinstatement figures within 7
business days of receipt of written
request.
6.
Charging for unnecessary
appraisals, legal fees, property
inspections and other corporate
advances.
Practitioners should also be aware
of potential claims under TILA:
1.
When a mortgage loan
servicer fails to provide correct
information on Monthly Statements
to
Borrower
(Borrowers
in
Bankruptcy are currently exempted)
For example, for someone who is
45 days behind, each statement is
required to show a 6 month history.
2.
When a mortgage loan
servicer fails to send statements
at all (Borrowers in Bankruptcy or
Discharged from Bankruptcy are
National Association of Consumer Bankruptcy Attorneys
Winter 2015
CONSUMER BANKRUPTCY JOURNAL
17