Why Mortgage Modifications Are So Discouraging

Everyone has the same question in the back of their minds. The loans should be worked out rather than foreclosed. That is what is done with commercial loans, that is what was done in residential loans and it is still done with credit cards and other consumer loans. So why are we having problems with workouts and modifications?

The answer is simple: we are not dealing with the creditor. We are dealing with an intermediary whose instructions are to get the loan into foreclosure. So they tell borrowers that they can’t qualify for a redo of their loan unless they stop paying, they say and do a lot of things that encourage the borrowers to do things that make them look like deadbeats when the case goes to foreclosure judgments. The borrowers are not deadbeats. They are victims just as the investors are victims. But we never hear from the investors because they don’t know that anything is wrong with their investments — because they are getting paid regardless of whether the “borrower” pays or not.

Many judges have been asking two questions for years even as they give the banks the benefit of the doubt:

(1) why is the modification process so enigmatic and random (and why are there not more workouts like it used to be in civil courts and bankruptcy courts) and

(2) why are we seeing this shell game with first some bank or other entity claiming it is the owner of the loan, denying even the existence of the REMIC Trust, then they admit the existence of the Trust and claim the loan is owned by the Trusts, then they say the servicers have the right to foreclose and not the trusts or the investors, and then they keep switching servicers and trustees? To the Judges that ask these questions, it looks like a shell game but without appropriate pleading and evidence they can’t rule on it — or get the answers to their questions.