An exporatory group to collect inforamtion and formulate a platform for class action against the banks for failure to meet the obligation of "mitigating damages" for the borrowers. I envision data collection repositories that are servicer-specific

Members: 17
Latest Activity: Dec 30, 2011

Concept and Purpose of this Group

The intention of this group is not to "file" or be a party to any class-action law suits, although we may be asked to testify, should actions be brought against a bank, lender, servicer or investor.

While we all have experiences that are somewhat to extremely positive, these remain few and very far between. Most loss mitigation departments, treat our clients like dirt and us as agents of Satin.

I would like to begin collecting records of gross violations and depraved indiferences to the banks' legal obligation to "mitigate damages." ( they do have one under Uniform Commercial Code [UCC]) And I would like to start that process here, with the best and most experienced foreclosure avoidance agents in the country.

We have all had "solid," deals at "market value" that were turned down and went to foreclosure sale, leaving the seller(s) injuired (credit wise) and vulnerable to future claims and deficiency judgements, well above the potentially settled short sale trasactions.

The investors and servicers are legally entitled to do as they please . . . "unless" they injure another party and/or impose a future obligation in excess of the "mitigated loss" they refused to accept. When they cross that boundry, it seems to me that they should be held "financially responsible" for irresponsible acts.

Today's news statistics were that there are 6.4 MILLION homeowners CURRENTLY in delinquency or default. Foreclosures are at an all time record high in nearly every area of the country.

While we are daily abused in our efforts to stop foreclosures, we do need to fight back . . . for our sellers. This kind of bullying by the banks should not be allowed to continue.

Will we see court judgements againt the lenders? Perhaps, and hopefully yes. Can we evoke public and political pressure from exposure of bad behavior by the banks . . . I think and hope so!

Please help,

Don Quixote (aka Clay)

Discussion Forum

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Comment by Angela Alfe on September 21, 2010 at 3:16pm
They are using the MI company because that is who is insuring the loan. The MI company doesn't care if the home goes to foreclosure...either way (short sale or foreclosure) they are going to be paying out.

When a lender gets MI (mortgage insurance--note that this is different than PMI), the MI company has to sign off on the deal/loss. In this case, the MI company refuses to do so. The property will, most likely, go to foreclosure. The only other thing you can do is play hardball. If they force the property into foreclosure, the seller will file for bankruptcy protection and they will not only lose their rights to the property via foreclosure, but they will also lose their rights to attempt to collect any deficiency via the seller's BK filing.

Sorry...wish I had a better answer for you.
Comment by Craig McCall on August 3, 2010 at 12:27pm
We have a short sale with 3 liens, Bank of America is in 3rd position. The 1st and 2nd liens have signed off on the short sale, with the 2nd recieving $3000.00. The 1st has said the 3rd will recieve $0, BofA has refused the offer and is requesting $10,000, they have said the mortgage insurance company has negotiated this for them and is not budging, they have refused all offers and refuse to change their offer. Why are they using mortgage insurance companies to negotiate 2nd and 3rd position liens. They will cause this property to go into foreclosure.

Anybody have any suggestions to get around this???


Comment by Clay Kime on July 24, 2010 at 12:04pm
Thanks Pam.

Mike, I agree with you about the MI companies, this info should be included also. I guess there are two aspects of MI. One is where the borrower is actually paying for the MI premiums and the other (which I see very frequently) is where the lender, unbeknkownst to the borrower, took out an MI policy (usually on the 2nd trust) and the MI company is allowed to dictate whether the Short Sale can move forward without either a Note or a cash contribution. It is certainly coercion and it does seem to defy the entire purporse of having an MI policy at all.

Tim, from a legislative perspective, I agree. But that's not the intent here. We are looking stricly at contract law and "tort" law. Congress can only legislate, not sue in court. We don't need new legisaltion, the Uniform Commercial Code on this subject already exists as well as solid case-law.

A fundamental aspect of contract law is that the injured party (Lender) is "obligated" to mitigate their losses and the "claim" against the defaulting party (Borrower). This is the violation that I see. The banks are mitigating their losses by inflicting greater losses on the borrowers . . . that's a pretty clear violation and a solid basis for a suit. The vast practice of this by most lenders creates thousands and thousands of potential claims, hence the concept of ammassing an entire class of claimants and filing a Class Action suit against the offending Banks AND MI COMPANIES (thanks Mike.)
Comment by Pam Gordon, ABR, CDPE, SFR on July 24, 2010 at 10:42am
The 2nd was receiving more than their requested $35,673.74 payoff also!
Comment by Pam Gordon, ABR, CDPE, SFR on July 24, 2010 at 10:41am
Ok Clay. Here is the info on my mess!
Lender/Servicer Name: 1st with Wells Fargo(being paid in full), 2nd with GMAC Mortgage
Investor Name: Sorry I don't know
Address of Property: 732 Scorpio Cir, Colo Spgs, CO 80906
1st Mortgage Payoff: $244,141.50
2nd Mortgage Payoff: $120,000
Date of NOD: Not yet Filed
Date of Listing Agreement:3/5/2010
Date of Contract "RECEIVED": 5/18/2010
Date of Contract sent to Lender: 5/24/2010 Uploaded to Equator as this was the 2nd offer as the 1st buyer decided not to wait.
Communications with Servicer: I will provide if needed.
Determination of Servicer: Written Short Sale Approved by GMAC on July 6, 2010 after a verbal counters.
Email from GMAC yesterday at 1:33pm stating they can not approve the short sale as "Service Released".
No Cash Contribution Demand
No Promissory Note Demand
They did reduce the comission to 5% Gross.
As for everything else we are trying to keep the buyer, who thought they were moving into their new home on monday and had already gave notice to vacate, on the hook, while we try and get info from Green Tree Services who apparently now owns the 2nd mortgage, and will see if we can negotiate the Short sale and still get this closed.
This has been a very bumpy ride, and I truly hope for a successful sale for the sake of my client!
We were notified by Wells Fargo this week that they have sent this to the foreclosure attorneys, we just have not received any paperwork yet. It is not even posted on the public trustees website yet.
It really just blows my mind that GMAC has the right to sell the loan out from under us after they have already agreed to a short sale, and we were to close at 2pm monday. Meeting all their requests for short sale approval!!! This could really screw my client, and the prospective Buyer!!!
Comment by Tim Sweeney on July 24, 2010 at 8:16am
I'm not an attorney, but it seems to me that this particular genie will never again fit back into this particular magic lamp, because the dynamics of the terror inflicted onto the newest American subclass, have now gotten so bad, so completely over the top, that even the likes of Pelosi and Reid, and yes even Charlie Rangel himself, even Charlie can sense himself blushing at the atrocities that are routinely being inflicted on the American taxpayer today in the name of Freedom, Liberty, and The American Way. Remember the French Revolution. Let them eat cake.
Comment by Mike Linkenauger on July 24, 2010 at 12:37am
One thing to consider also Clay is Mortgage Insurance companies. I've wondered how mortgage insurance companies can get away with charging borrowers an insurance premium for years, then when there is a "claim" against that policy demand that the borrower pay back part of the money. Can they do that?? I know it is a regular practice, but completely defeats the purpose of having insurance doesn't it??
Comment by Clay Kime on July 23, 2010 at 9:52pm
Here is what I think is needed to make this project work:

"Exact" Lender/Servicer Name (Very Important)
Investor Name (Very useful but not critical - Please check GSE's web sites for preliminary verification)
NO NAMES (for now)
NO SSNs (for now)
Address of the Property
Lender or Trustee stated Loan payoff amount
Date of NOD
Date of Listing Agreement
Date of Contract "RECEIVED"
Date of Contract sent to Lender (as part of the SS Proposal)
Chronology of communications with Servicer
Determination of Servicer: Approval/Denial of short sale
Demands for cash contributions from Servicer
Demands for "Promissory Notes" from Servicer
Final approval or denial letter or text of denial from Servicer.
Trustee Auction Sale bid amount
Trustee Auction Sale Price
Sold to Bank or Third Party?
Net of Trustee Sale from Land Records (this is a big effort, but critical)
REO listed sales price (if applicable)
REO settled sales price (if applicable)

I will protect and convert this info into a database to entice a Tort Law Firm to take the case(s) on a contingency basis (no cost to us or the injured client)

This is what I need to further this mission. Please copy/paste the list of information requested and return here or at

We will do the rest that needs to be done.

Thank you all for your participation. It is the right thing to do.

Robert Kennedy: "If not us, Who, if not now, When?"

It's us and it's now.

Please contiibute your cases.


Comment by Clay Kime on July 23, 2010 at 9:22pm
Thanks Pam and all.
Comment by Pam Gordon, ABR, CDPE, SFR on July 23, 2010 at 7:54pm
OK, So Today a get an email from the GMAC negotiator, who sent over Short sale Acceptance on July 6, 2010, That they(GMAC) have sold the loan, SO our closing monday is down the toilet!!! I truly do not understand how they can sell the loan when they have a contract with us to close by july 26, 2010.

Members (17)


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