Foreclosure and Loan Modification Blog

Loan modifications, which involve a permanent change to one or more of the terms of a mortgage, are often the only means homeowners who've fallen behind on their mortgage have to save their home. But they are quite difficult to get, and sometimes the bank denies that they've received a complete loan modification application, depriving the homeowner of vital protections against foreclosure.

To be eligible for a loan modification, a package called a Request for Mortgage Assistance, or RMA, must be submitted to the mortgage servicer. The RMA includes tax and income documents as well as an affidavit explaining the hardship that caused the default. 

Your mortgage company is not supposed to move forward with foreclosure when you have a complete loan modification application accepted and under review. Doing so would be engaging in something called dual-tracking, which is prohibited by mortgage servicing rules from the Consumer Financial Protection Bureau (CFPB).

Our firm recently received a question from a homeowner in Pennsylvania who wanted to know if he could use an unclean hands defense to avoid foreclosure, and if he could he sue his bank?

Unclean Hands

First, what is an unclean hands defense?

An unclean hands defense is when one party in a lawsuit didn't wash their hands before coming into court and gets dirt all over the legal documents and the judge throws the case out. Precedent for the unclean hands defense was established in 1975 with the landmark Pigpen v. Wells Fargo case, which went all the way to the supreme court.

When you're at risk of foreclosure, you can't make good decisions about what to do without good information. And sometimes the people you trust most to give you accurate information can't be counted on to provide it.

It's unfortunate, but the banks and companies offering to help homeowners with foreclosure defense and loan modifications have been known to lie and/or omit important facts in a way that benefits them and harms the homeowner.

The consequences of acting on bad advice related to your mortgage can have a huge impact on your financial well-being. It can harm your credit and cause you to unnecessarily lose your home to foreclosure. Foreclosure has even been shown to cause health problems. It's a big deal.

Dealing with your lender on your own when you're behind on your mortgage payments is like going to war against an opponent who has nuclear weapons and all you've got is a rusty pocket knife. Things aren't likely to go well for you.

Why is that? Your lender has a lot of resources, including loads of money and experienced attorneys working for them. But beyond that, some mortgage lenders and servicers have repeatedly shown a willingness to bend or break rules, laws, and standards of ethics in order to foreclose.

In judicial foreclosure states (such as Illinois, Florida, Pennsylvania, New York, and New Jersey), your lender is required to go through the courts to foreclose on your property. They become the plaintiff and you become the defendant in a foreclosure lawsuit.

The plaintiff must prove to the court that they are the party in interest that's legally entitled to foreclose on your home. That, in legal terminology, is called standing.

Standing is very important, and the plaintiff must have it at the time they file a foreclosure action against you. If they don't, your attorney may file a motion to dismiss the action because of it.

Let's say you fell behind on your mortgage, but haven't lost your home to foreclosure yet, and one day you come home to find that the bank has changed the locks on your doors and you can't get inside your home. How could this be? Are they allowed to do that?

If you're still living in your house, no, your bank isn't allowed to change the locks on your house. Even if you fell behind on your mortgage payments or are in foreclosure.

You're allowed to live in your home during the entire foreclosure process. If you're still living in the house after the home is sold in a foreclosure sale, the bank has to evict you before they can change the locks and take over the property.

But there is one exception that allows the bank to change the locks on your property even if you still legally own your home: when the property is abandoned and sitting vacant. Then it doesn't matter if foreclosure isn't complete yet or not.

Not that many years ago, it seemed like you heard something about robosigning, foreclosure, and foreclosure fraud in the news all the time. These days, not so much. But it's not because foreclosure isn't a problem or banks aren't foreclosing on homeowners with fraudulent documents anymore.

According to a recent article on theintercept.com by journalist David Dayen “Every day in America, people continue to be kicked out of their homes based on false documents.”

Dayen is promoting his new book called Chain of Title: How Three Ordinary Americans Uncovered Wall Street's Great Foreclosure Fraud, which is about victims of foreclosure who “exposed the mass production of false mortgage documents in courthouses and county records offices across the country.”

It's the latest in a long line of articles from the author telling the stories of homeowners who are being kicked out of their homes with fraudulent documents.

Why Banks Need to Fabricate Documents to Foreclose

During the housing bubble mortgages were bundled together, carved up, and sold to investors (which is called securitization) so carelessly that it became hard to tell who the real owner of a mortgage was.