1. Nov 2005 Refinanced a property through American Home Mortgage Acceptance
2. Closing Attorney mistakes: Deed of Gift was not signed by Guarantor
3. Date referenced on Note is 10NOV2005 which is not the Date on the Deed of Trust.
4. Deed of Trust: the recorded copy has a date of 12NOV2005, but the one I signed at closing has a date of 11NOV2005.
5. AHM files CH6 in AUG2007 and force places insurance and property taxes along with fees which causes monthly payment to triple (basically manufactures a default)
6. JAN2008 servicing rights sold to CountryWide (they begin foreclosing)
7. JUN2008 CW sends a "Modification" agreement to me while processing a Foreclosure sale (I sign it)
8. CW hires local Foreclosure firm that files a Quiet Title action before I sign the Modification....(the Firm realizes the Guarantor never signed the Deed of Gift/Warranty Deed)
9. BAC Home Loans/BOA now claims they own the Loan and the Servicing rights and want to Foreclose/Short Sale
Question:
1. Negotiated Solution: could BOA be put back into the position it paid off at the time of the Refinance? equitable subbrogation?
2. Does BOA have to prove that they own the Note? holder in due course etc...in order to be allowed a seat at the table?
3. Should a Counter Claim be filed to put AHM/CW/BOA on the defensive to have the "True" Chain of Title" proved prior to any negotiations?
would like to post on your blog....
thanks...Brian
Hi, Brian:
First, if I were in your position, I'd want an attorney giving me a hand. That said, there's much in your email that I cannot address, but perhaps we have a reader who will.
I can speak to a few items.
Bank of America is the owner of the mortgage by succession. They would not need to file an assignment of mortgage or prove ownership of the note. When Countrywide was failing, Bank of America stepped up to the plate. It was a well publicized event and a matter of public record. You can use a search engine to pull information if you'd like to read more about it.
I am curious about the quiet title action. These procedures require notice to the property owner giving you an opportunity to respond. I don't see this step as an end run around you but a matter of perfecting the lien position and it should not impact a pending modofication.
If Countrywide offered modification and you accepted and signed a document, I don't understand why it hasn't been filed of record or why BOA wouldn't honor it. Someone dropped the ball. You may get help on this item by contacting the Consumer Financial Protection Bureau. Go to their web site and submit a complaint concerning the modification.
I think it is important to keep the complaint simple. Too much information - at least at the beginning - could confuse someone at the mortgage servicing department of BOA and also at the CFPB. Focus on the pending modification.
So, to wrap up. This is a serious matter and so having legal advice is a good idea. If the modification is the answer to your problem, I'd concentrate on finding out where the ball was dropped and seek assistance to rectify that matter.
One more thing, certified mail is a good tool to get attention. It shows people you are serious and keeping a good record. Be sure to follow up all phone calls with a certified letter reviewing the status and moving the case forward. When sending such a letter to BOA, be certain you use the address for "qualified written requests". It's a special address and you can probably verify it with the state banking regulator or get it in writing from BOA.
Good luck!
Diane
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