Arthur Delaney, Huffington Post
Lawyers for homeowners who have been denied mortgage modifications under the Obama administration’s Home Affordable Modification Program make a straightforward argument when they sue banks.
As a class-action complaint in Massachusetts puts it, “when a large financial institution promises to modify an eligible loan to prevent foreclosure, homeowners who live up to their end of the bargain expect that promise to be kept. This is especially true when the financial institution is acting under the aegis of a federal program specifically targeted at preventing foreclosure.”
Under HAMP, a program funded with $50 billion from the Wall Street bailout, eligible homeowners at risk of falling behind on their mortgages can ask their mortgage servicers for a modification that reduces monthly payments to 31 percent of their monthly income. If they make their monthly payments during a “Trial Period Plan” that’s supposed to last for three or four months, then the modification is supposed to be made “permanent” for five years. Most trial periods drag on for longer than three months, however, and more homeowners have been bounced from the program than have been granted permanent mods.
The banks’ broadest legal counterargument against unhappy HAMPers’ lawsuits has been that homeowners can’t sue to enforce the Servicer Participation Agreements between mortgage servicers and the Treasury Department, which administers HAMP. It’s an argument to which judges have been receptive. But servicers are now also responding to legal arguments that they’ve acted in bad faith. When homeowners argue that they should be granted permanent modifications because they’ve successfully made their trial payments, banks say homeowners actually don’t know what they’re talking about.
In motions to dismiss suits seeking class-action status in Massachusetts and Arizona, for instance, JPMorgan Chase and Bank of America first point out that the Treasury Department has made a lot of changes to HAMP, which Bank of America calls “a constantly evolving new federal program” with near-monthly supplemental directives from the government.
The most important change to the program has been the Treasury Department’s late-January requirement that as of June 2010, borrowers would be required to provide documentation before being put in a trial plan. Before June, servicers could put borrowers into trial plans with a mere phone conversation.
“Although reliance on the applicant’s initial, verbal representations allowed servicers to
expedite the [Trial Period Plan] process, it also resulted in some borrowers, who were originally extended TPPs, being ultimately found ineligible for permanent modifications, once their information was later verified,” Chase argued in July.
