Supporting, Informing & Connecting People in Foreclosure
I just got a notice in the mail from Bank of America stating that the servicing of home loans by their subsidiary BAC Home loans Servicing, LP are being transferred to Bank of America, N.A.
What should I do? Should I respond in any way? I am behind on my mortgage and tried many times to get help to no avail. If anyone could help, I'd greatly appreciate it.
I just received a notice about my loan from Bank of America, which had been serviced by BAC Home Loans. They are now transferring the servicing to Bank of America N.A.
Most of you who have Bank of America loans will have received this notice. Many of you probably think nothing of this. DON’T MAKE THIS MISTAKE!
This could be one of the most important documents ever in your foreclosure defense.
You see, BAC Home Loans were told to stop their foreclosures under a Bank Consent Order with the FDIC. So, in order for them to continue to steal your house, they had to move their entire portfolio over to someone else…so they can continue to foreclose on your home. In other words, following the letter of the law, but not the spirit of the law. Very dirty.
Before we go further, take a look at my notice below:
Here are a few things you need to pay close attention to with this notice.
a) Governed under the Fair Debt Collections Practices Act as a Debt Collector.
We’ve said all along that these servicers were not the original creditors. They are a third party debt collector. Sadly, when you file a claim against these guys, their usual response is “we are not governed under the FDCPA”. It is funny how they can pick and choose when the law applies to them…only when it is convenient. In our forms, letters and civil actions against these guys, we name specific violations and requirements under the Fair Debt Collections Practices Act. They typically respond with a form letter that says “you quote no authority that gives you the right to this information” or some junk like this.
Here is an open admission that they ARE GOVERNED under the FDCPA as a third party debt collector. This is very important.
b) The name of the creditor who actually (supposedly) owns the debt/promissory note.
These banks have done their darnest to hide the identity of the real creditor of the debt and present to the world that they are the owner of the debt…including recording documents at the County Recorder’s office to this effect. Essentially, they want the protection given by the law for a “creditor” without actually being one. They are using what’s called “a presumption of fact”. A presumption is a fact that unless rebutted is fully admitted. Another word for this is “the house advantage”. They have the benefit of the doubt in the eyes of the court.
You must hold them to this. If they are not the real creditor of your loan, then they do not have the authority to foreclose on your house under Federal Rules of Civil Procedure Rule 17 “an action must be taken in the name of a real party of interest”.
c) “Unless you dispute the debt within 30 days of receipt of this letter, we will assume the debt to be valid.”
Most people read this notice would just skip this and say “so what”. To be honest, I did too until a friend pointed this out to me this morning. Please learn from my mistake. You have nothing to lose. If you don’t dispute the debt…then they can go after you and your house. Remember…they are a debt collector. They don’t own the debt. They are collecting on the debt using this assumption. If you don’t dispute the debt, then shame on you!
To make it easier for you, I’ve already created a sample letter to help you dispute the debt. You can find it here It is called the NOD Rebuttal Letter. USE IT! DISPUTE THIS DEBT. If in the future you want to fight this fraud, you can always come back and say you disputed the debt. If you did not, then “oh well. So sad, too bad.”
Please forward this link to all your friends. <- This is very important. While this applies specifically to Bank of America, chances are, the other servicers/pretender lenders are also doing the same.
If you haven’t read the Foreclosure Defense Handbook, you can download a free copy here: http://www.consumerdefenseprograms.com/
Just enter your name and email address in the box provided.
Good question and thanks so much for this info.
They have told us they are the owner one day, the creditor the next, a debt collector the next, then back to the owner, etc.
They dropped their first foreclosure case rather than produce their first robosigner.
Then, they fabricated a new mortgage assignment so we filed a federal fraud, etc. action. They responded to our injunction request saying that since the foreclosure had been dismissed we were in no imminent danger of losing our home. A week later, they filed a second foreclosure now under their new name. We just filed a motion for stay in the new foreclosure case.
Read every word, highlight for later quick reference and date every correspondence you receive.
My notice is nowhere dated, and the thing says "as of June 30" for the balance. But I got it just about a month ago, so it has to get mailed today/Monday-8/8 certified, plus copies to Freddie Mac, OCC (they have lots of these responses to BofA from me), the HAMP Escalations people, KY Atty. General, a few others, mostly by email, including to the head of the now-split-off Legacy Servicing group for BofA. (found out about the split-off on Scribd.)
I notice that the "creditor to whom the debt is owed" on your notice is the same as the one on my notice. Probably on all the notices. Guess what? BofA made that supposed "creditor" name/number up!
I spent some time searching on the Freddie Mac (FHLMB) securities section of its website; there didn't appear to be any numbers like that on any of the many different types of securities they sell/have sold, and it is not a CUSIP number which is a required number for Mortgage Backed Securities (MBSs). So I called Freddie Mac, talked to someone in the Investor Relations section and asked about the number. Said it didn't match any of their numbers but switched me to another section to try there. That person said it was definitely not one of their numbers, asked for my property address, brought up both the BofA loan number and the Freddie Mac internal number (they have a standardized number system to use with interactions between themselves and whatever servicer, since each servicer has a different system for numbering loan docs) and it did not match that. Said I should contact BofA to see what the number is!
I asked if the record showed if my loan was securitized. She said Freddie Mac was the Investor. I asked what that meant (I know what it means, I wanted to hear it!), if it meant Freddie Mac had invested in a security that contained my loan or what. She said Freddie Mac owned the loan.
So...my response to the change of servicer/FDCPA Notice is going in the mail in a bit - my letter is long because I wanted to list various fraudulent or illegal things they have done to my loan account over the past 2.5 years (and a dismissed foreclosure included) as part of my disputing the debt, and I have added something about Countrywide (originator of the loan, note that BofA was using" BofA Home Loan Servicing FKA Countrywide Home Loan Servicing" [FKA=Formerly Known as] in legal documents for a couple years) and possible kickbacks to the realtor plus the probable appraisal fraud (definite appraisal fraud! especially when you consider they also didn't give an updated TIL disclosure on an attempted REFI and the appraisal came out higher than before plus they wanted a couple thousand at closing without warning - so I canceled).
I started with again telling them I want an audit (which I have asked for many times over the past couple years, and they say they don't do them on individual accounts, just send Transaction History), saying that is the only way they could even start to validate the debt because of the many things I list following; most recently, blatant illegal action in going back into the account history and changing when some fees were credited back, as well as deleting all the notes in both systems from all the Executive Customer Advocates (4 or 5 of them) since early 2010, and the Negotiators, and some regular CSRs on the general queue. The most recent Exec. Cust. Advocate & Negotiator both said there were no notes back to early 2010, and one noted in the system that they file showed one thing for the credited fees and I have documentation that they weren't credited back for several months later. (It has to do with them kicking me out of HAMP after a year because I rejected the first final mod "offer" because they capitalized a bunch of foreclosure-related fees from a foreclosure I got dismissed before court "each side to bear its own costs" and then asked for a corrected version, blah blah...)
I will now demand an explanation for the made-up "Freddie Mac" whatever it's supposed to be, along with original documentation of each step of the way between the Countrywide closing and Freddie Mac being the owner. I've seen 4 or 5 copies of the Note and Mortgage, and they all were copies of a copy, same copy with an "I certify this is original" line and a couple rounded scribbles for initials and no date. Will be fun to see them skip this one - they have skipped the qualified RESPA request for an audit on my account by a Legal Aid lawyer, and several RESPA letters with multiple issues that I sent, and when they finally got around to responding to something, they were responding to stuff from mid to late 2009 - in 2011 - and said they considered that resolution to the issues and the matters now closed! Since I live in a stupid thinks-its-a-city sorta-big-town in western KY, they will not want to present them here, even though they have one little retail lending center here.
And they hire nearly all the lawyers in the area who know this stuff to handle their foreclosures, leaving the few who don't work for BofA so booked up they can't take new cases for now, or they want $10,000 retainer to take them on. Restraint of due process, like not allowing an appeal after being kicked out of HAMP, followed by secret re-reviews based on the notes by the same people who kicked me out of the program. I really need a lawyer, Legal Aid can't do this stuff for its clients, can't go to court on it.
3 years of this in late Oct. Ray LaMontagna's song, "I'm Tired" about sums it up. The house is falling apart, it's from 1897, I have no money left; I lost about $60k on a second lien I carried back and closing costs for the buyers and myself, on the house I sold in AZ when I moved here because the buyers abandoned and Litton/HSBC foreclosed, buyers had divorced/house still joint property, one bankruptcy, not given notice on the Motion for Relief from Automatic Stay this past March, sold on the courthouse steps, no time (or money) to get a lawyer 2000 miles away to stop it, blah blah blah...I pray for tornadoes and lightning strikes at this point because it's the only way I'll get my money back out of this house, and I am sick of fighting, sick of hidden problems with the house. Not underwater, put down half (and can't get at any of it). Plus added a bunch of repairs/renovations. And got bad work from people doing them - licensing here is a joke.
No way will I hand back the keys or do a short sale unless I get them to agree to a very large relocation settlement so they share the loss. Hahahahaha, they won't even write down past-due amounts in a HAMP. But since it was Countrywide, it was already paid off to start with!
you say " I pray for tornadoes & lightning strikes at this point"....I was praying for lightning to strike the 3 yr. old mold infested, abandoned hazzard next door to me. Then I was reminded
the House flooded-Bank took all FEMA Flood Damage payments of $85,000.00 and foreclosed anyway.
Banks are praying for floods, fires & other "natural" disasters to destroy these houses because BANKS TAKE ALL INSURANCE PAYMENTS !
Keep praying but be careful what you pray for.
Try this instead...
Pleasant View, UT 84414
June 12th 2011
TO: Banksters of Americas
Attn: Deb Validation
2380 Performance DR,
MS # TX2-984-04-07
Richardson, TX 75082
Re: Property Address: 123 ABC St Pleasant View UT 84414
Loan Number: 123456789
Dispute of Debt
Dear Banksters of Americas,
Under the Fair Debt Collections Practices Act (15 USC 1692g) I am hereby disputing the following facts stated in the debt servicing transfer notice dated June 18, 2011.
1) I am disputing the amount owed in its entirety. Please provide proof of the debt owed and full accounting of how this amount was calculated.
2) It is my understanding and belief that the debt may have already been paid in full due to the fact that my loan has been securitized when it got converted into a stock as traded under ABC Trust Series. The original creditor was paid in full. Therefore, the debt has been satisfied.
3) Under the original Deed of Trust/Mortgage [select either Deed of Trust if you are in a non-Judicial State, or a Mortgage in a Judicial State], the original lender is ABC Lender, there has been no valid assignment and chain of title from the original lender to ABC Trust Series as recorded in the county recorder’s office as required by Oregon’s recording laws. Therefore, I am disputing that ABC Trust Series is the actual owner of the obligation without further proof.
I am demanding that you provide proof of the chain of title from the original lender to ABC Trust Series through the production of a copy of a CURRENT certified copy of my promissory note through named indorsements as governed under UCC Article 3 § 3-205.
Please be advised that under the Massachusetts Supreme Court in re: U.S. Bank v. Ibanez that a blank assignment is an unacceptable proof of assignment in the event of a foreclosure/Trustee sale.
Please provide a written affidavit under penalty of perjury from someone who has first hand knowledge of the facts that stipulates the following:
a) The debt is valid and no discharge has occurred on this debt.
b) No tax credit was received for the discharge (if any) of the debt.
c) The debt has not been paid in full when the loan was securitized.
d) That your company has authority to collect the debt on behalf of ABC Trust Series.
Please also provide written proof from ABC Trust Series that includes my loan number that gives your company the authority to collect the debt on their behalf.
If you are unwilling or unable to provide proof and validation of the debt as I have requested within 30 days, then you admit that the loan has been paid in full, and the debt has been discharged and nothing is owed on this loan. This letter acts as a self executing confession that you are acting out of good faith and willingly providing false and misrepresentation under 15 USC 1692e.
In the event of a future litigation, this letter will be used as an admission to the above facts.