As of April 2011, I have been specifically involved in the analysis and litigation of issues, claims and disputes pertaining to home loan modifications, and those arising under or pertaining to the Federal Home Affordable Modification or Making Home(s) Affordable Program ("HAMP"), particularly with respect to homeowners who are experiencing problems, such as when a lender/bank/servicer alleges it did not receive the Application, or did not timely receive it, or did not receive a completed or otherwise (in)adequate Application, or allegedly did not receive the necessary supporting documents or information. Likewise, lenders and servicers may not comply in good faith with regulations or contractual obligations as set out by entities such as the FHA, Fannie Mae, Freddie Mac, etc. insofar as, for example, their failure to timely and effectively communicate with consumers, failing to properly/promptly evaluate homeowners despite inquiries/requests, erroneously or wrongfully initiating or continuing foreclosures when a HAMP Application has been submitted, wrongfully refusing consideration of, or wrongfully denying, Applications of individuals who are in bankruptcy proceedings, etc.

Perhaps most egregiously and potentially damaging of all, many lenders/servicers are failing to accurately disclose terms and conditions pertaining to Credit Reporting and are wrongfully holding or segregating payments received from homeowners, which may cause them to not only internally misreport and improperly account for payments received, but also reporting and publishing erroneous and inaccurate derogatory/negative payment/account information to Credit Reporting Agencies (CRAs) in violation of the Fair Credit Reporting Act (FCRA).

For example, I am counsel for the plaintiff in a case, currently pending against Bank of America (BOA/BAC) in the District Court for the Northern District of Georgia, involving a client who sought and was granted a permanent Modification by BOA. She had NEVER missed a payment during the entire history of her loan, but for reasons related to employment hardship, sought a HAMP Modification. However, once the client initiated the Modification process, BOA began placing, without consent, the client's TIMELY and FULL monthly payments into a "holding" account, and simultaneously reported completely inaccurate derogatory payment related information to the CRAs. As a result, my client's credit score was substantially lowered, both BOA and other lenders lowered her credit card limits and interest rates on student loans were increased - all as a result of BOA's wrongful and unlawful credit reporting. As you might expect, despite numerous letters to both the CRAs and BOA from my client and me, and notwithstanding written promises by BOA to ensure the correction of such erroneous information, the situation remained unchanged for over a year!

If you are considering contacting me about a mortgage or foreclosure related matter, please carefully view the document link below entitled "GA Licensing of Mortgage Lenders, Mortgage Brokers, and Mortgage Loan Originators (GRMA Code)", and in particular, subsection (5) of 7-1-1001, regarding "Exemption for certain persons and entities; registration requirements", which provides as follows with respect to those who are exempt from the licensure requirement:

"A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney's representation of the client, unless the attorney is compensated by a lender, a mortgage broker, or other mortgage loan originator or by any agent of such lender, mortgage broker, or other mortgage loan originator…" (emphasis supplied)

In other words, as the language suggests, the GRMA does not require attorneys licensed to practice law in Georgia to also be licensed under the Act if the attorney is negotiating the terms of a residential mortgage loan as an "ancillary matter" to the [overall] representation of the client. Obviously there is some subjectivity in this language, and since it is relatively new, it has not yet been analyzed to my knowledge in any depth by a Georgia Court. Thus, while I take the position that the statute is unconstitutional as written - as it infringes upon the rights of Georgia attorney's to practice their trade - and is generally inconsistent with the public policy purpose of the Act (which is to assist homeowners in need, and attorneys are among the most qualified persons to do so), I do not wish to become the "example case".

To that end, therefore, it has been and is my practice and policy to limit my acceptance of engagement by clients on matters related to mortgages and modifications of same to those cases in which there is another primary purpose or goal to be obtained - whether it is related to credit reporting, breach of contract, debt collection defense, foreclosure defense, etc. See, e.g., HAMP case noted above.

In addition, it is important to note that many courts that have addressed claims brought by homeowners in conjunction with a bank's/lender's alleged failure to offer or approve a home loan modification - at least under HAMP - have ruled in favor of the banks, holding that there is no standing and or that the homeowner is not an intended "third party beneficiary" of the HAMP program/contract. There have also been concerns about damages. Also, please be aware that under HAMP, a bank is not obligated to grant a modification request. It is only required to consider it - and even then such circumstances are limited. Accordingly, before contacting me about mortgage modification related problems - i.e. BOA has "lost" your paperwork and or asked you to re-submit it numerous times, etc. - please be aware that without more, these admittedly frustrating problems most likely do not give rise to a "private right of action" (colorable claim).