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Mortgage Modifications

For a good overview of mortgage servicer complaints, mortgage modifications, foreclosure, etc., please see the Georgia Attorney General’s website.

For the last few years, 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).

However, it is important to note that as of November 2014, the vast majority of courts - esp. in the Eleventh Circuit - 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).

If you are considering contacting me about a mortgage or foreclosure related matter, please note certain information in "Georgia Licensing of Mortgage Lenders, Mortgage Brokers, and Mortgage Loan Originators (GRMA Code)"

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.


PLEASE NOTE: Neither I nor my firm engage in or assist persons with obtaining a mortgage modification per se. My involvement with mortgage modifications is generally limited to litigation (lawsuits) or otherwise assisting consumers/homeowners in demanding and efforts to enforce banks/lenders to comply with the applicable law(s) pertaining to certain federal programs [or private contracts] that involve mortgage modifications - i.e. the HAMP program referenced below. But in addition to the other legal challenges that already exist with respect to these issues (i.e. the majority of courts declining to allow individuals to bring claims for breaches of the program terms as discussed in more detail below), my knowledge, experience and scope of engagement for mortgage modification matters does not include - due to both legal constraints and choice - things such as forcing or attempting to force a lender to grant a modification or assisting individuals who are merely seeking to obtain a modification. The Stroman case opinion posted elsewhere on my website gives a good overview of the kind of situations and cases involving mortgages and modifications that I DO get involved with.

Neither I nor my office is a "mortgage loan originator" or lender as defined by either the GA Residential Mortgage Act ("GRMA")[e.g. O.C.G.A. § 7-1-1000 et seq.] and or the Federal S.A.F.E. Act [Mortgage Licensing Act of 2008] and any mortgage or loan related services provided by me or my firm are or would be ancillary to the representation of the client and or otherwise exempt from the purview of same.

If applicable, you understand and agree that neither I nor my firm perform, nor have or do we hold ourselves out as performing, "credit repair" services as such term is defined under the Credit Repair Organizations Act (15 U.S.C. § 1679 et seq.)[or any other related state or federal law or rule]. Thus, while the end result of certain of my legal services may result in the improvement of one's credit or credit score, to the extent I am engaged by a client to help him or her with any matter that involves the FCRA or other aspects of consumer credit, my services are limited to assisting with legitimate problems or disputes about erroneous or inaccurate information [i.e. reported with "less than maximum accuracy" as defined by the FCRA and caselaw] and, as with all other aspects of my practice, I do not and cannot promise a particular or favorable outcome. Furthermore, if and when I am retained to represent a client in conjunction with a disputed/inaccurate credit related matter [whether exclusively or along with other legal issues], the scope of my representation is not limited solely to or with a view towards "credit improvement". Rather, such matters comprise only a part of the overall scope of my representation. In addition, neither I nor my office is a "mortgage loan originator" or lender as defined by either the GA Residential Mortgage Act [e.g. O.C.G.A. § 7-1-1000 et seq.] and or the Federal S.A.F.E. Act [Mortgage Licensing Act of 2008] and any mortgage or loan related services provided by me or my firm are or would be ancillary to the representation of the client and or otherwise exempt from the purview of same. Finally, neither I, my office nor the facsimile or telephone number(s) listed herein - or contained in any documents or links included or posted on this website - accept any commercial or advertising communications of any kind, which is strictly prohibited, and any provision or inclusion thereof; is not intended as a waiver of any protections granted by the TCPA, JFPA, CAN-SPAM Act(s) or any other applicable laws & and shall not create or give rise to a "business relationship".