foreclosure defense

“Who could have predicted?”

Roland Arnall. Senator Barack Obama. Stern words. 2006 edition.

WASHINGTON — As head of the Justice Department’s civil rights division, Deval L. Patrick brought a case against Roland E. Arnall’s mortgage lending company for allegedly piling extra charges onto home loans for minorities, women and the elderly.

Fixed that first ‘problem’ by reaching a settlement.

Arnall’s firm ultimately agreed to settle a government lawsuit by paying $4 million to compensate borrowers and to teach consumers how to shop more smartly for loans.That was nearly a decade ago. Today, new allegations of unfair lending practices are dogging Arnall and his ACC Capital Holdings Corp., casting a shadow over his nomination as ambassador to the Netherlands.

Luckily this time at least on of Arnall’s board of directors were ready to step up for him.

But in a twist, Patrick has emerged as one of Arnall’s stalwart supporters. Patrick sits on the board of Ameriquest Capital Corp.’s parent company and recently wrote the Senate Foreign Relations Committee on Arnall’s behalf.

Other words and phrases may come to mind instead of the word twist.

“I don’t think it sends a good message that an ambassador to an important ally like the Netherlands has a cloud hanging over him,” said Sen. Barack Obama (D-Ill.), an African American member of the Senate Foreign Relations Committee.

So is the “cloud” the “problem” which has not ‘fixed‘ settled, or that the nominee might be subject to prosecution?

So as the nomination stalled pressure was put on Arnall and Ameriquest the DOJ to hurry up and get things fixed.

Behind the scenes, the lender is trying to nail down a $325-million settlement that would break the logjam and probably assure Arnall’s confirmation.

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The next event in the surprising chain of events was prosecution another settlement.

WASHINGTON — Monday’s settlement of predatory lending allegations against Ameriquest Mortgage Co. removes the major hurdle that blocked company founder Roland E. Arnall from becoming U.S. ambassador to the Netherlands….

Getting on board:

Senate Democrats, led by Paul S. Sarbanes of Maryland, opposed Arnall as long as Ameriquest remained under investigation by the attorneys general and terms of an accord had yet to be spelled out. Monday’s deal transforms the picture in his favor.

“Sen. Sarbanes has indicated that if Mr. Arnall would settle this matter with the attorneys general, he would not object to or seek to block moving forward on this nomination,” Jesse Jacobs, a spokesman for Sarbanes, said Monday.

A similar sentiment came from other Democrats on the Senate Foreign Relations Committee. “Because a settlement was reached, Sen. Obama will not seek to block Mr. Arnall’s nomination,” said Tommy Vietor, a spokesman for Sen. Barack Obama (D-Ill.), one of Arnall’s tougher questioners on the panel. link

In February 2006 the second settlement bought allowed Arnall to be confirmed.

The man who presided over those practices was by then already packing his bags. In February, the Senate Foreign Relations Committee unanimously confirmed Ameriquest’s founder, Roland Arnall, as ambassador to the Netherlands. Arnall and his wife, Dawn, have given more than $6 million to Republican candidates and organizations since 2000; the Arnalls were honorary finance chairs of the president’s second inauguration.

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You may know by now that American Banker has uncovered the 27-page term sheet that could form part of a global settlement between state and federal regulators and mortgage servicers. The term sheet describes a host of actions to which the servicers would have to conform, most of which reflect current law with a couple that go a little bit further.

I’m a slight bit late to discussing this term sheet, so I’ll refer you to some other worthy commentators and analysts for the details. Cheyenne Hopkins at American Banker has a nice synopsis of the terms, as does HuffPo’s Shahien Nasiripour. Georgetown Law Professor Adam Levitin finds the terms to be strong, while Felix Salmon finds any settlement of this type to be doomed, mainly because of the lack of strong enforcement for non-compliance.

Here’s what I can add to this. This morning, there just so happens to be a field hearing of the House Oversight Committee in Baltimore. In fact, it just started at 9am ET. Rep. Elijah Cummings, who represents the area, called the hearing, which will feature the mayor of Baltimore and the Governor of Maryland, among others, to examine the foreclosure crisis and the abuse carried out by mortgage servicers. I got a chance to talk with the star witness yesterday.

His name is Sgt. Kevin Matthews, and he served in Iraq in 2005-2006. He was wounded in the line of duty and returned to the US a disabled veteran. He bought his home in 2008 and then lost his job a year later. He exhausted all of his funds to keep up with the mortgage payments, but eventually went into default. In the second half of 2009 he sought a variety of modification packages with his mortgage servicer, USAA (GMAC Mortgage actually serviced the loan, but Matthews interfaced with USAA). “I basically got the runaround,” Matthews said.

In February of 2010, Matthews received the notice of intent to foreclose within 45 days, but by then he had been approved for disability from his injuries. He had a local housing agency put in for a modification for him, reflecting this new information, in April 2010.

The crucial piece of information here is that Matthews had a VA loan. “With a VA loan, foreclosure is supposed to be the last option,” Matthews explained. “By contract, they cannot foreclose until all options are exhausted: a modification, deed-in-lieu, or a short sale.”

But instead of reacting to the new information in the modification package received in April 2010, Matthews’ servicer simply ignored it, and made good on the foreclosure sale on May 21, 2010. Under the law governing federally-funded VA loans, the servicer was to rescind that sale date as they pursued a modification. “They got the package but never pushed back the sale date,” Matthews said.

Here’s where the story takes quite a turn. Matthews was away at school on June 8, 2010, and he returned home to find the locks changed on his house. The servicer had gone into the house and taken all of his belongings out, in preparation for the foreclosure sale. This violated Maryland law, because the servicer needed to file a writ of possession to remove Matthews from the home. “They stole my stuff, stole my kid’s stuff,” Matthews said. “They took everything in the house. They took my lawn mower.”

As it turned out, Matthews had a very unique situation. His legal defense, the Baltimore-based non-profit Civil Justice, discovered that his foreclosure affidavit was signed by none other than Jeffrey Stephan, GMAC’s infamous robo-signer. After months in court, GMAC dismissed the case against Matthews and rescinded the foreclosure sale. GMAC has the ability to re-file the case, but has yet to do so thus far.

Matthews has returned to the home, where he’s still trying to obtain a permanent loan modification. He’s also still trying to get his possessions back. His lawyer, Anthony DePastina, called the phone number made available to inquire about his belongings, but nobody ever answered. The servicer, in ransacking the house, also damaged it. They broke the hot water heater and cracked a drain pipe. They stuck Matthews with all the water bills, and he also wound up with a citation for overgrown weeds on the property. “In Maryland, if a citation is not remedied, it becomes a misdemeanor,” Matthews explained. “But how can I cut the grass, they stole my lawn mower!”

Now, why do I bring up this particular servicer horror story? Mainly because this was a VA loan. And therefore, a great many of the elements of the settlement term sheet are similar to how the servicer is required to deal with a VA loan. The VA Home Loan Program spells out specifically how their products are to be treated. And still, in this case, the servicer violated the guidelines. Not only that, but they stole everything in the borrowers’ home to boot. Additionally, in this case the legal system actually worked. Matthews got his home back because of faulty affidavits. But that has not helped him get back everything he owned.

The main point is this: you can make all the guidelines you want, and basically, the 27-page term sheet has most of them. You can demand a single point of contact for borrowers, an end to the dual track process of the servicer pursuing modifications and foreclosures simultaneously, specific mandates for modifications and all the rest. You can even set stricter guidelines for dealing with military families. All of those are in the term sheet, and many of those kinds of guidelines are in the VA Home Loan that Sgt. Kevin Matthews received. It didn’t matter. Neither did all the promises servicers have made to reform their systems going back to 2003. Servicers pretty much don’t follow the law. That’s why they were under investigation. A document that tells them to comply with the law, in language the banks are already using, doesn’t seem like it’ll make much of a difference.

Two more things. Without rigorous enforcement, the guidelines are approximately meaningless. State AGs and the Consumer Financial Protection Bureau would serve as the enforcement monitors under the terms of the agreement. And CFPB adds a new wrinkle to this. However, if servicers have been abusing their customers for this long, and the term sheet mostly reinforces the same laws that they broke all this time (with a couple additional strictures), who’s to say that they won’t simply treat the Kevin Matthewses of the world the same way again?

The final issue is this. The term sheet sets the basic standards for conduct in the servicing industry that servicers should have followed all along. But this is supposed to be a sanction, for violations of law. So now the penalty for failing to follow the law is having to sign an agreement saying you’ll really follow the law this time? We don’t know what monetary penalties or quotas for principal mods will come along with this yet. But we do know this. Kevin Matthews had all his possessions stolen from him, and nobody under this agreement will go to jail for that theft.

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