Bank of America mortgage forgiveness and bankruptcy
Recently we have written about Bank of America forgiving second mortgages and the National Mortgage Servicer Settlement. Many homeowners facing foreclosure are anxious to find out if their second mortgage will be forgiven by Bank of America.
Well, it appears that one pattern may have emerged. Many homeowners who have already filed bankruptcy are receiving letters stating that their 2nd mortgage will be forgiven. Great news, right? Maybe. Some of these debtors are in active bankruptcy (chapter 7 & chapter 13). Some debtors have already received a bankruptcy discharge and are no longer personally liable for their mortgages. Other debtors have “stripped” their 2nd mortgages and BOA will likely receive much less than 100% of what is owed on the 2nd mortgage.
Not So Good
- It appears that BOA may receive credit, against the amount it owes under the National Servicer Settlement Agreement, by forgiving mortgages they can could no longer collect or only collect a portion of. This may lead to fewer distressed homeowners actually benefiting from the Settlement.
- There may be tax issues (the advice of a tax professional may be necessary).
- Distressed homeowners who are not in bankruptcy are receiving letters from BOA stating that their 2nd mortgages are being forgiven. This will make it easier for some homeowners to avoid foreclosure.
- Debtors in bankruptcy who are paying back 100% of the arrears on their 2nd mortgages and their full 2nd mortgage payment have received notification that their loan is being forgiven. This could alleviate the need for a chapter 13 bankruptcy altogether.
- Some homeowners may find themselves with instant home equity.
If you have any questions about this or other legal issues, call The Law Firm of Vaughn and Weber PLLC, at 516-858-2620, for a free consultation!
+This is not tax or legal advice.
Rent your home from BOA under its “Mortgage to Lease Program.”
Bank of America (BOA) recently issued a Press Release outlining a “Limited Pilot Test” of their “Mortgage to Lease Program.” Under this program some BOA mortgage customers will be allowed to deed their homes to BOA and become renters instead of owners.
From the BOA Press Release:
Beginning this week in targeted hard-hit markets, Bank of America will offer a limited number of mortgage customers who are facing foreclosure an opportunity to remain in their homes, but transition to tenant status, through a pilot program called “Mortgage to Lease.”
“When homeowners are struggling to make payments, owe more on their mortgage than their home is worth and face certain foreclosure, one of their greatest anxieties is the transition process they face in moving from their home,” noted Ron Sturzenegger, Legacy Asset Servicing executive of Bank of America. “This pilot will help determine whether conversion from homeownership to rental is something our customers, the community and investors will support. This program may have the potential to further round out the broad set of solutions we offer our customers in need of assistance.”
To maintain test controls, the Mortgage to Lease pilot will be conducted strictly on a solicitation basis; there will not be any opportunity for customers to volunteer or apply for consideration. Fewer than 1,000 customers will be invited to participate in the first phase of the pilot. Initial outreach has begun to preselected customers in test markets in Arizona, Nevada and New York, three states hit hard in the housing downturn. The pilot population will include customers who meet all of these requirements:
· Have loans owned by Bank of America.
· Are delinquent for more than 60 days.
· Have exhausted modification solutions or have not responded to alternatives to foreclosure, including short sale and deed-in-lieu.
· Have high loan balances in relation to their current property value.
· Face considerable risk of ultimate foreclosure.
· Have no junior liens.
· Are still occupying the home.
· Have adequate income to make an affordable rent payment.
Pilot participants will transfer title to their properties to the bank and have their outstanding mortgage debt forgiven. In exchange, they may lease their home for up to three years at or below the current market rental rate. The rental payment will be less than the existing mortgage payment, and the customer will be relieved from certain other homeowner financial obligations, including property taxes and hazard insurance.
Initially, Bank of America will retain ownership of the properties, working with property management companies to oversee the rental properties. Properties in the pilot program will be transitioned to investor ownership. If the Mortgage to Lease program proves viable, it may lead to a broader program, potentially involving selected real estate investors who would purchase properties that meet their predetermined specifications and keep the previous homeowners in place as tenants.
In my opinion, this program will appeal to very few distressed homeowners. The majority of our Foreclosure Defense clients would actually like to keep their homes!
Therefore, it is unlikely that they would want to participate in such a program.
A couple of suggestions:
- Scrap this program and modify the loans of those who “Have adequate income to make an affordable rent payment.”
- Keep the program, but give homeowners a right of first refusal after the three year rental period or some other reasonable amount of time. Give the former homeowner an opportunity to repurchase “their” home instead of having the “Properties in the pilot program…transitioned to investor ownership.”
If you are facing foreclosure and need legal assistance, please call (516) 858-2620 to speak with a Foreclosure Defense Attorney!
Read the Press Release here.
NY Attorney General Eric T. Schneiderman recently announced an agreement with New York Foreclosure Law Firm Steven J. Baum P.C., and Pillar Processing, LLC, which requires that they pay $4 million to the State of New York. $2 million of which will be used to assist homeowners facing foreclosure, or victims of predatory lending practices.
Excerpts from the Attorney General’s Press release:
The Attorney General’s investigation found that the Baum Firm routinely brought foreclosure proceedings without taking appropriate steps to verify the accuracy of the allegations or the plaintiff’s right to foreclose. From at least 2007 through sometime in 2009, Baum Firm attorneys repeatedly verified complaints in foreclosure actions stating, among other things, that the plaintiff was “the owner and holder of the note and mortgage being foreclosed,” when, in many securitized loan cases, the Baum Firm did not have documentary proof that the plaintiff was the owner and holder of the note and mortgage.
Complaints were prepared in an assembly-line fashion by non-attorney Pillar employees with inadequate attorney supervision. Baum Firm attorneys also improperly verified and notarized these complaints. Attorneys routinely signed complaint verifications — which stated, among other things, that the attorneys had read the complaints and knew their contents — without reviewing the contents of the complaints or the underlying documents such as the original note or mortgage or any mortgage assignments.
During certain time periods, attorneys often did not see complaints after they were prepared by Pillar employees. Instead, attorneys pre-signed and notarized verification and certification pages that were subsequently attached to the complaints and filed with the county clerks. Even after the practice of attaching pre-signed and notarized verification and certification pages changed, attorneys continued to verify complaints without reading them. Until sometime in 2011, the Baum Firm also failed to properly notarize documents signed by its attorneys. Baum Firm attorneys routinely signed documents without being in the notaries’ presence, and when documents were signed prior to notarization, did so without the required oath being administered. Indeed, some notaries even notarized documents that were signed by an attorney who was not present in the state at the time the documents were notarized.
The Baum Firm also repeatedly failed to timely file the Request for Judicial Intervention (RJI) required to be filed in residential foreclosure actions and a court-required affirmation attesting to the accuracy of the foreclosure summons and complaint. New York Chief Judge Jonathan Lippman implemented the attorney affirmation requirement in October 2010 in response to revelations of widespread deficiencies in foreclosure filings nationwide, including the execution of affidavits without personal knowledge of the facts, a practice referred to as “robo-signing.” The filing of the RJI triggers the scheduling of a settlement conference where potential loan modification options are explored, and also leads to notice being sent to local housing counselors that a homeowner is at risk of foreclosure so that counselors can reach out to the homeowner to provide assistance. Many homeowners were denied this assistance as a result of the Baum Firm’s failure to file RJIs in a timely manner.
New York homeowners who believe their homes were foreclosed based upon false or inaccurate documents filed in court should seek representation from an attorney. They may also file a complaint with the New York Attorney General’s Bureau of Consumer Frauds & Protection by calling 800-771-7755 or visiting www.ag.ny.gov .
Read the full Press Release here.
The following Excerpts are from a recent Press Release by NY Attorney General Eric Schneiderman:
A.G. SCHNEIDERMAN SECURES $136 MILLION FOR STRUGGLING NEW YORK HOMEOWNERS IN MORTGAGE SERVICING SETTLEMENT
After Schneiderman’s Persistence, Narrow Settlement Preserves Sweeping Legal Claims For Housing Crisis Misconduct That Has Not Yet Been Investigated
New York To Receive More Per Underwater Borrower Than Any Other State, Plus Loan Modifications, Principal Reductions
Schneiderman: Civil & Criminal Investigations Will Continue As We Seek Accountability For Those Responsible For Crisis And Leverage Greater Relief For Homeowners
New York’s estimated share of the guaranteed cash payments in the settlement is $136 million, the fourth highest in the nation. New York will be able to distribute these funds to legal aid, homeowner assistance and advocacy organizations to help distressed individuals facing foreclosure or servicer abuse.
Because of the complexity of the mortgage market and this agreement, which will be performed over a three-year period, borrowers will not immediately know if they are eligible for relief. It will take between 30-60 days to appoint a settlement administrator, and banks will be conducting a vigorous search to identify eligible borrowers and this may take several months.
For loan modifications and refinance options, borrowers may be contacted directly by one of the five participating mortgage servicers.
For payments to foreclosure victims, a settlement administrator designated by the attorneys general will send claim forms to eligible persons (You may be eligible if you were foreclosed on between January 1, 2008 and Dec. 31, 2012)
Even if you are not contacted, if your loan is serviced by one of the five settling banks, you are encouraged to contact your servicer to see if you are eligible—keeping in mind that it will take anywhere from six to nine months to be contacted.
Bank of America: 877-488-7814
Wells Fargo: 1-800-288-3212
For more information on today’s agreement, visit: