Strategic Default Monitor – How To Strategically Default

Friday, August 5, 2011

Got Questions? Get Answers... KO Wants A Plan To KO Bank of America For Not Responding To A RESPA Request

Got Questions?

I recently ordered and read your book and I have a few questions particular to my situation. I hired a loan modification company about six months before I ran out of credit to juggle, in order to make my mortgage payments. The loan modification company has done a good job working for me and they are not what this email is about, I just mention it to explain my current circumstances. I now have not made a payment for almost a year. The loan modification company has been consistently working with the bank's loss mitigation department, which is why the bank has not begun the foreclosure process. It's been the bank's lack of action to come forward with a loan mod offer that has taken so long.


Then in May of this year I worked with a guy who's house in Reno has lost over half of it's value since his purchase in 2006. He used to be an accountant and had been reading about the derivative and MERS mess with mortgages. He was very angry in the fact that the banks had sold off loans once to Wall Street, continued to collect mortgage payments after the derivatives had crashed and then received bail outs from us tax payers on top of it.  Now his house is worth less than half of what he paid all because of the bubble the banks and politicians created.

In December of 2009 he saw an article in the paper about a Law Firm in Reno who was helping homeowners fight back against the banks. He hired the Law Firm who immediately had him stop making his mortgage payments. Over a year later they finally went to court with the bank, who at the hearing could not show that they either owned the Note or who was the actual owner of the Note for which they were servicing the loan. The Judge stopped the hearing until the bank could prove that they had the legal right to collect or foreclose on the house. He and his family are still living in the house today, rent free, and saving their mortgage payments in case some day someone does come forward with the note.

I explained my underwater and default situation to him and he told me to just start searching online and get educated on all that has gone on with the banks, derivatives and MERS. Since I bought my home in early 2007 my mortgage was probably also securitized and sold off.

In my research I came across your website and ordered your book on Strategic Default. Through your advice as well as many other web sites on the subject, I decided to send off a RESPA letter. I added to my request that if Bank of America claimed to still own the Note on my house that I would like to set up a viewing of the original 'wet ink' Note for verification. This concept came from a few sites, in particular www.consumerdefenseprograms.com

While Bank of America did respond and sent copies of all of the original documents of which I already had copies, their response to the viewing of the original note was, "You cite no legal authority that supports your claim that you are entitled to view the original Note, and we are not aware of the existence of any such authority.  Accordingly, Bank of America, N.A. respectfully declines this request.  If you wish to pursue this matter further, please provide such legal authority."

Do you have any advice in this situation? 

Is "Show me the Note" something you recommend pursuing?

If so, what is the best way to find a lawyer in Washington State to assist me in this pursuit?

Thanks for any help. KO



Get Answers...


Dear KO:

Thank you for your recent question.

I must commend you on your diligence in this matter. It takes quite a bit of emotional effort and time to deal with your situation. Especially when you have a lender that is unwilling to enter into a good faith loan modification. Stick to your guns. You will achieve your goals.

A resounding YES to your question “Is Show me the Note” worth pursuing. It has become a well know fact that if a lender does not have the proper paperwork, including a note (or a good explanation for not having a note), the lender may not be able to foreclose at all.

Remember, you have an objective in mind. Your objective is to secure your financial future for you, your family, or your business. So you must employ any legal method to achieve it. Especially right now when it appears that our economy is getting worse.

At first glance one would think that Bank of America would not have a problem allowing you the opportunity to view the original note. It is well publicized that lender’s are having real issues regarding the accuracy of its paperwork. “Lost notes” and “robo-signing” are the lexicon for lender’s improper loan collection practices.

Yet it seems you have opened a door. Bank of America is telling you that you do not have the legal right to view your original note, unless you can cite some legal authority.  In a nutshell, Bank of America is telling you that your RESPA request letter is not legally sufficient to allow for a viewing of your original note and mortgage.

The Real Estate Settlement Procedures Act (RESPA) is a Federal consumer protection statute. The U.S. Department of Housing and Urban Development (HUD) website discusses the purpose of RESPA and the use of a RESPA request complaint letter. HUD states “Sections 6 and 10 of RESPA provide you with certain rights regarding the servicing of your mortgage and escrow account.” Go to this link to learn about your consumer rights under RESPA. The HUD website provides a sample RESPA Request Complaint letter


So the question for you is: Prior to starting a court case, is Bank of America required to give you the opportunity to view your original note based upon a RESPA request letter? It seems Bank of America says NO. Is there any other law or regulation that allows you to view the original note and mortgage before you go to court?  You need the answer to this question. If you were in court you almost certainly have the legal right to ensure Bank of America has the original note. Every individual in a court proceeding has the legal right to request testimony or view documents in order to defend or prove a case.  

This is when a good attorney can help you. You need to know if you have the right to view the original note under RESPA. If you do not have the right according to RESPA then how can you view the original note. In other words, how do you determine if Bank of America has the original note in its possession.

The best way to find an attorney in your state is to meet with several attorneys that are skilled in debt and foreclosure defense. You can perform an internet search in order to read their website or reviews. You can contact the local bar association. You can seek a referral from a trusted source. Your bottom line is to find an attorney that can positively help you achieve your goals. As you know the internet provides a wealth of free information on strategic default and foreclosure defense. You can use this information to determine the competency of an attorney by discussing all of your issues in detail.

You should ask the attorney how many foreclosures cases he or she has defended. You can ask for a one time consultation with respect to your legal right to view the original note. In fact, you can ask for a written opinion.  You can choose an attorney solely for consultation purposes or you can retain the attorney to represent you. It depends on your budget and motivation.

You want to work with someone who understands your position. You want an attorney who will provide you with “Real Talk”. Real Talk means you are not promised a certain outcome. Instead you are given the real pros and cons. You are given the true risks and rewards in order to make an educated decision. A good attorney will be your guide and representative along the way. You mentioned that you read my book. As you know, the book stated that a strategic default is measured in years not months, thus you want an attorney for the long haul.

In the meantime I recommend you forward the following letter as a RESPA request to Bank of America.

“I have received your response to my RESPA request letter dated…. I am surprised to learn that Bank of America requires legal authority to allow me the right to view my note and mortgage. I am not an attorney. In any event, please send me a notarized letter, signed by a person with actual knowledge and authority, that states ‘As of the date of this letter, Mr. KO, Bank of America is in possession of your original note and mortgage’ ”

Also, did Bank of America tell you if it is the owner of your note and mortgage. If you do not know I recommend that you ask who owns your note and mortgage.

I am not trying to imply that Bank of America must respond to this additional letter. However it may bring you one step closer to your goal of determining if Bank of America actually has your original note in its possession.

You can continue your research and take your findings to an attorney.  
Please continue to move forward.

Thank you.


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