Upload
rodclassteam
View
239
Download
0
Embed Size (px)
Citation preview
8/7/2019 012011Hemric4836 Forensic Audit
1/47
Forensic Audit Report
Prepared For
Rachel L Hemric4836 Collins Rd
Hamptonville NC, 27020
"I have reviewed the foregoing contents and affirm the resultscontained herein to be true and correct according to my knowledge."
LAKISHA MORRIS, J.D., ESQ.. WSBA# 41365
Lead InvestigatorFEDERAL TRUSTEE SERVICESPO BOX 11098TACOMA, WA 984111-800-552-9313
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 1
8/7/2019 012011Hemric4836 Forensic Audit
2/47
Re: Forensic Audit
Dear
The loan transaction for the above-referenced borrower/property has been audited forviolations of Truth in Lending Act [16 U.S.C. 1601] (TILA), Home Ownership
Equity Protection Act [12 C.F.R. 226.32 et seq.] (HOEPA), California Financial Code
4907 et seq., the Real Estate Settlement Procedures Act [12 U.S.C. 2601], and to the
extent applicable, violations of other state and federal laws discussed below.
This report was based exclusively on the documentation provided. It also required that we
make reasonable assumptions respecting disclosures and certain loan terms that, iferroneous, may result in material differences between our findings and the loan's actual
compliance with applicable regulatory requirements. While we believe that our
assumptions provide a reasonable basis for the review results, we make no
representations or warranties respecting the appropriateness of our assumptions, thecompleteness of the information considered, or the accuracy of the findings.
The contents of this report are being provided with the understanding that we are not
providing legal advice, nor do we have any relationship, contractual or otherwise, with
anyone other than the recipient. We do not, in providing this report, accept or assume re-
sponsibility for any other purpose.
Sincerely,
John Northrup
Senior Auditor
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 2
01/31/11
Rachel L Hemric4836 Collins RdHamptonville NC, 27020
Rachel L Hemric,Rachel L Hemric,Rachel L Hemric,Rachel L Hemric,
8/7/2019 012011Hemric4836 Forensic Audit
3/47
Borrower: Rachel L HemricSubject Property: 4836 Collins Rd
Hamptonville, NC 27020OriginationLender:
Regions Bank dba Regions MortgagePO Box 11026Orange CA 92856
Origination Loan#:
0-896438959
MIN #: ALoan Amount: $194,480.00Application Date: 11/29/2005 see assumptionClosing Date: 12/29/2005
Funding Date: 12/29/2005Sales Price: /A = refinanceAppraised Value: $213,100.00 per loan applicationSeller: /A = refinanceMortgageBroker:
First Carolina Mortgage Inc102 Dolly Madison RdGreensboro, NC 27407
Interviewer: John Passnore 800-986-2462Appraiser: Unknown = missing appraisalClosing Agent: unknown missing final HUD-1Escrow Officer: unknown missing final HUD-1Escrow Number: unknown missing final HUD-1Title Insurance: unknown missing final HUD-1Cash OutProceeds:
$14,337.38 per loan application
Loan Summary: 87%LTV/CLTV cash out refinancePrimary Residence, Single family homeStated income / stated assets
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 3
8/7/2019 012011Hemric4836 Forensic Audit
4/47
Summary of Violations
Below are a summary of violations found in the audit. Full details are listed on the correspondingpage after the violation.
1. Underwriting Violation: Incorrect PITI used to qualify borrower. PG 5
2. Underwriting Violation: Predatory Lending Practices. PG 7
3. Compliance Violations: Missing Documents. PG 7
4. Compliance Violations: Missing Underwriting Documents. PG 7
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 4
8/7/2019 012011Hemric4836 Forensic Audit
5/47
Examiner Notes for File:
Loan Auditor is missing the HUD-1 and therefore cannot determine the following: TILA Rescission period for the loan. Fees for HEOPA test TILA Finance Charge test. GSE Predatory guidance, allowable fees and points and higher points and fees test.
Zillow shows no historical information on the subject property.
Loan Application shows the value at the time of closing at $213,100.00
The borrowers occupation on the loan application is Retired and Owner /self employed.
Forensic Examination Assumption:
The application is signed by the Attorney in factfor the borrower, but is not signed by the
interviewer with a date of 12/29/2005. This represents the final loan application therefore we
made the following assumption.
The application date is one of the Compliance Analyzer system required data fields. Therefore,
we have made an assumption that the application date is 11/29/2005 (Assuming 30 days before
the date of the Note of 12/29/2005). The closing/settlement date in the Compliance Analyzer
(CA) system web form is the loan document signing date; therefore, we have made an
assumption that the document signing date is the same as the date of the note.
UNDERWRITING VIOLATION: INCORRECT PITI USED TO QUALIFY BORROWER
The lenders underwriter failed to follow generally accepted underwriting practices by
miscalculating the borrowers total housing expenses. The underwriter used an incorrect monthly
payment amount on the borrowers first mortgage financing of $1265.73 PITI when the correct
payment amount was $2130.18 PITI. The underwriter used the initial interest rate prior to the
adjustment period. Since the borrower is listed as retired they are on a fixed income and
unable to compensate for future adjustments.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 5
8/7/2019 012011Hemric4836 Forensic Audit
6/47
DTI RATIO AS FOLLOWS TO QUALIFY FOR THE SUBJECT LOAN
Loan Auditor listed the below information used to qualify the borrower as well below this
showing the minimum ratios to qualify:
$1154.75 Initial P&I payment per loan application
$49.00 hazard insurance
$62.00 real estate taxes
$1265.73 PITI divided by borrowers stated income of $12173 = 10.40% housing ratio
$1265.73 PITI
$1099.00 consumer debt listed on loan application1
$2364.73 divided by borrower stated income of $12173= 19.43% total debt burden ratio
Using the adjusted payment since borrower is on a fixed income:$2130.18
$1099.00 consumer debt listed on loan application2
$3229.18 divided by borrower stated income of $12173= 26.53% total debt burden ratio
Both of these ratios are above the 28/36 ratio guidelines.
1The auditor would like to make the reader aware that on the same date the loan applicationfor the Meadowbrook property the loan application stated consumer debt of $1943.00
2The auditor would like to make the reader aware that on the same date the loan applicationfor the Meadowbrook property the loan application stated consumer debt of $1943.00
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 6
8/7/2019 012011Hemric4836 Forensic Audit
7/47
UNDERWRITING VIOLATION: PREDATORY LENDING PRACTICES
Practices widely identified as predatory include:
fraudulent practices that conceal the facts of the borrower's obligation and/orincome;
steering a borrower to a high-cost loan when they could qualify for a lower-costloan;
making a loan that the borrower cannot afford to repay;
making a loan to a borrower that provides no actual benefit for the borrower;
flipping loans by inducing repeated refinancing, without benefit to the borrower,
in order to generate fees.
The lender processed and approved this loan under a Stated Income program that requiresemployment verification but does not require income verification. However, the lender has aresponsibility to determine the reasonableness of the stated income.
COMPLIANCE VIOLATIONS: MISSING DOCUMENTS
As noted below, this file did not include various initial disclosures that are mandated
under both State and Federal laws. If a broker does not deliver the initial disclosures to
the borrower, it becomes incumbent for the lender to ensure that these disclosures were
delivered to the borrower. If the borrower was not provided with these disclosures within
three business days from the date of the original loan application, the borrower will need
to complete a sworn statement testifying to that effect.
COMPLIANCE VIOLATIONS: MISSING DOCUMENTS
File is missing ALL initial disclosure documents and MOST final disclosures, including but not
limited to:
Per RESPA (Real Estate Settlement Procedures Act 12 USC 2601 et seq.)
Good Faith Estimate
Affiliated Business Arrangement Disclosure
Servicing Disclosure StatementEscrow Account Disclosure
Final HUD-1
Per ECOA (Equal Credit Opportunity Act Reg B 12 CFR 202):
Initial signed & dated Uniform Residential Loan Application (1003)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 7
8/7/2019 012011Hemric4836 Forensic Audit
8/47
8/7/2019 012011Hemric4836 Forensic Audit
9/47
Supporting Case Law Am. Bankers Ins. Co. v. Wells, 819 So. 2d 1196 (Miss. 2001) Barrett v. Bank of Am. 229 Cal. Rptr. 16 (Ct. App. 1986)
Charleswell v. Chase Manhattan Bank, N.A., 308 F. Supp. 2d 545 D. V.I.2004)
Chedick v. Nash, 151 F. 3d 1077 (D.C. Cir. 1998)Hilgeman v. Am. Mortg.
Securities, Inc., 994 P. 2d 1030 (2000) Choi v. Chase Manhatten Mortg. Co., 63 F. Supp. 2d 874 (N.D. Ill. 1999) Citicorp. Mortg. Inc., v. Upton, 42 Conn. Supp. 302 (Conn. Super. 1992) Farm Credit Servs. Of America v. Dougan, 2005 S.D. 94 (2005) Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988) In re Hart, 246 B.R. 709 (Bankr. D. Mass. 2000) Whittingham v. Mortg. Elec. Registration Servs., 2007 WL 1362669
(D.N.J. May 4, 2007)
Also, please see the Alternative Causes of Action at the end of this report. Additional or
missing documents may be provided with in 14 days of receipt of this audit report and the
audit report will be updated and sent that reflects any changes.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 9
8/7/2019 012011Hemric4836 Forensic Audit
10/47
We have researched the subject of TILA violation from the lender to the borrower
on stated loans to the best of our ability. If there is any further related case law or other
support that you can share with us, please feel free to let us know and we will incorporate
it.
We are continually striving to bring the best and most up to date audit to our
customers.
Stated Loans and Lending Misconduct
The use of the stated loan has been the seed that led to a great deal of broker
misconduct in the lending industry. The broker would find a borrower who had already
found a home and would tell them that with their actual income they could not qualify for
the loan needed to finance the purchase of the home. The broker would then tell the
borrower that if they use a stated loan and fudge the numbers then the borrowers could
qualify for a loan large enough to purchase the home they want. The broker knew two
things about the borrower. First, the broker knew that the borrower was not making as
much as had been put on the stated income. Secondly, the broker knew that the
borrowers debt to income ratio was well over the limits allowed by lending regulations.
The broker knowingly put the borrower into a loan that they could in no way afford, and
there was a large indication that the borrower would never be able to keep up with the
payments. This raises a number of legal issues.
In terms of our forensic loan audits, we look at the borrowers actual W-2 and tax returns
to determine their true debt to income (DTI) ratio at the time the loan was originated. We
then compare that figure to what the stated income was put on the actual loan application.
If the two numbers do not match up then the borrower can bring the following causes of
action against the lender.
Breach of Fiduciary Duty
Traditionally, a credit transaction has been considered an arms length transaction in
which there has been no special duty read into the creditor-debtor relationship. Most
courts, however, have held that the presence of certain factors in the creditor-debtor
relationship may give rise to a fiduciary duty.
For example, a fiduciary relationship can arise when a party, generally a weaker party in
the sense of the ability to protect itself, places trust and confidence in another. Such a
duty of confidence arguably can arise if a lender acts in the role of advisor and knows
or should have known the borrower trusted him. When such a relationship exists itcreates a duty to disclose.
This duty of confidence arises in most creditor lender relationships, but it occurs
exponentially more in situations where the loan is a stated loan. The borrower is the
weaker party in the transaction due to their inability to negotiate many of the primary
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 10
8/7/2019 012011Hemric4836 Forensic Audit
11/47
terms of the loan. The loan is being offered to the borrower in a take-it-or-leave-it
fashion where they have no ability to negotiate major terms such as APR or payment
schedule. Also in terms of legal strength the lender will have an entire legal department
at their disposal, where some borrowers will not even be able to afford an attorney. Due
to these disparities in negotiating power, the borrower puts their trust in the lender to
advise them as to the best course of action. This creates a fiduciary relationship which
requires the lender to disclose all material information.
If established, the existence of a fiduciary duty gives rise to a duty of fair and honest
disclosure of all facts which might be presumed to influence the consumer to act. Barrett
v. Bank of Am. 229 Cal. Rptr. 16 (Ct. App. 1986). The lender must adhere to their duty
to be fair and honest in their disclosures of all facts which might be presumed to
influence the borrowers decision to accept the loan. In most cases the lender will beusing the stated loan to get the borrower into a loan that they otherwise could not
afford. The lender knows the reason the borrower could not qualify for the needed loan
based on their actual income is because there is a high probability that they will default
on the loan. Thus the borrower cannot afford the loan without the lenders help in fudging
the numbers. The lender has disclosed the fact that he is fudging the number to enable
the borrowers to get into the home they want, however what he does not disclose is the
fact that there is an extreme likelihood that the borrower will default on the loan. Thus
the lender has breached their fiduciary duty to disclose those facts that would presumably
influence the borrower.
When there is a duty to disclose, failure to do so should give rise to a tort cause of action for
nondisclosure, or the silence may be deemed a misrepresentation. Such claims can be used to
invalidate the underlying mortgage transaction or to recover money damages to offset any
delinquency.
Unconscionability
The common law contract defense of unconscionability may be applicable, when either
the mortgage terms are unreasonable favorable to the lender or certain aspects of the
transaction render it unconscionable. In re Maxwell, 281 B.R. 101 (Bankr. D. Mass.
2002); Hager v. American Gen. Fin. Inc., 37 F.Supp. 2d 778 (1999). For example, a
Connecticut court found a second mortgage contract to be unconscionable based on the facts
that: The defendants financial situation made it apparent she could not reasonably
expect to repay the mortgage At the closing, the defendant was not represented by an attorney and was rushed
by plaintiffs attorney to sign the loan document And there was an absence of meaningful choice on the part of the defendant.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 11
8/7/2019 012011Hemric4836 Forensic Audit
12/47
8/7/2019 012011Hemric4836 Forensic Audit
13/47
records and to discharge and fulfill the other incidents attendant to the maintenance,
accounting and servicing of loan records. Islam v. Option One Mortgage Corp., 432 F.
Supp. 2d 181 (D. Mass. 2006).
More recently courts have begun to allow borrowers to bring claims of negligent lending,
when the lender engages in a pattern of willful and negligent failure to perform even a
rudimentary verification of the information submitted by borrowers. However these
cases are still being resolved. Boykin v. CFS Enterprise, Inc., 2008 WL 4534400
(D.Kan.2008)
A second significant challenge for homeowners is demonstrating that the servicers
conduct was the proximate cause of their injuries. See Hutchinson. Proximate cause is
the act that sets off a natural chain of events that produces the injury. However, an
unforeseeable intervening cause may break the causal relationship. For example, at
least one court has stated that numerous other negative credit items on the homeowners credit
report, precluded a finding that the servicers incorrect reporting of her account status caused her
to be denied later refinancing.
The borrower will have to prove that they would not have been injured but for the lenders
negligent lending practices, and that the harm the borrower incurred was foreseeable by the
lender at the time the loan was made. The borrower has the difficult task of proving that had the
lender put them into a loan they could have afforded then they would still have made all the
payments and successfully paid off the loan.
Negligent lending is a difficult claim to make by the borrower. Historically the courts
have not been willing to allow claims of negligence against lenders. However in the
wake of the recent lending industry collapse courts are beginning to allow these claims on a more
frequent basis. A number of cases have been brought in the last 6 months that have yet to be
resolved. The mere fact that borrowers are being allowed to bring these negligence cases to court
shows that there is a willingness by judges to dig deeper into the lending practices of the banks to
find violations.
Enforcement of Lost or Destroyed Instruments
The lending and real estate industry relies heavily upon paperwork and documentation. It is the
nature of the industry to have stacks of paperwork and disclosures related to every loan and
every piece of property. This is beneficial for everyone because in theory there is a record of
every transaction that occurs and the specifics related to that transaction. However, the flip side
to that is that when a document does go missing it creates quite a legal headache. One such pieceof paperwork is the Deed of Trust or Mortgage.
A Deed of Trust is the actual legal document that creates a financial interest in the title to real
property, held by a trustee, who holds it as security for a loan. Without the Deed of Trust there is
no record that the borrower or lender has any financial interest in the real property, or that there
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 13
8/7/2019 012011Hemric4836 Forensic Audit
14/47
was any security for the loan. Attorneys have begun to request that lender produce the Deed of
Trust in conjunction with litigation. The thinking is that if the lender cannot produce the note
then the agreement between lender and borrower is invalid and cannot be enforced. This is only
partially true.
General law in the area of lost instruments is well settled for the most part. States vary in their
exact wording and standard of proof, but overall the area of law is fairly static.
The party seeking to recover upon a lost instrument, in most cases, is the lender since
they are seeking to enforce the loan and exercise their right to foreclose. The lender then has the
burden of proving the former existence, delivery, execution, theft or loss, and
contents of the instrument. Thus, in proving up a lost or destroyed deed, the party
seeking to do so carries a very high burden in setting forth the description of the property, the
nature and extent of his or her interest therein, a description of his or her evidence of title, the
date and contents of that evidence of title, and the name of person who executed the same. While
some courts state that one seeking enforcement of a lost promissory note must by clear and
convincing evidence establish ownership of the instrument, an explanation for absence or loss of
the instrument, and the terms of the instrument, others require entitlement to payment under a
lost promissory note be proved by only a preponderance of the evidence.
It has also been said that the proof must be such as to leave no doubt, or no reasonable
doubt. Further, it has been held that parole evidence should show by a preponderance of the
evidence that a lost deed was properly executed with the formalities required by law; that proof
must be more than a mere preponderance of the evidence; and, on the contrary, that proof that
defendant executed a lost note need not be by a preponderance of the evidence.
The lender who wishes to enforce the missing instrument must prove that it once existed in order
to enforce it. If the lender cannot sufficiently prove the existence and terms of the missing
instrument, then it is like the instrument did not exist. However, this is highly unlikely. In most
cases the lender will be able to prove to the court through
circumstantial evidence the terms, execution, delivery, and consideration after showing
that proper but futile search has been made for deed where it would most likely be found.
When a borrower or borrowers attorney is met with such a position, several defenses
should be considered. These affirmative defenses may take the form of or be asserted
along the following lines, provided they are asserted in good faith:
1. Upon information and belief, the mortgage note has been paid in whole or in part by
one or more undisclosed third party(ies) who, prior to or contemporaneously with theclosing on the loan, paid the originating lender in exchange for certain unrecorded
rights to the revenues arising out of the loan documents.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 14
8/7/2019 012011Hemric4836 Forensic Audit
15/47
2. Upon information and belief and in connection with the matters the subject of
paragraph 1 above, Plaintiff (foreclosing party) has no financial interest in the note or
mortgage.
3. Upon information and belief, the original note was destroyed or was transferred to a
structured investment vehicle which may be located offshore, which also has no interest
in the note or mortgage or revenue thereunder.
4. Upon information and belief, the revenue stream deriving from the note and mortgage
was eviscerated upon one or more assignments of the note and mortgage to third parties and
parsing of obligations as part of the securitization process, some of whom were joined as co-
obligors and co-obligees in connection with the closing.
5. To the extent that Plaintiff has been paid on the underlying obligation or has no legal
interest therein or in the note or mortgage, or does not have lawful possession of the note or
mortgage, Plaintiffs allegations of possession and capacity to institute foreclosure constitute a
fraud upon the court.
6. Based upon one or more of the affirmative defenses set forth above, Defendant
(borrowers name) is entitled to a release and satisfaction of the note and mortgage and
dismissal of the foreclosure claim with prejudice.
These argument may still be somewhat beneficial to the borrowers because if the deed of trust is
not produced and circumstantial evidence is then used by the lender to prove the existence and
terms of the Deed of Trust, then the borrower can also introduce their own circumstantial
evidence as to terms. This could allow the borrower to focus on the terms that are most beneficial
to them.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 15
8/7/2019 012011Hemric4836 Forensic Audit
16/47
CURRENT STRATEGIES
1. Verify the Violation
It is important to make sure that the attorney has an accurate file from the borrower and
nothing is lost or being intentionally held back. A forensic loan audit from us will
highlight any violations made in the origination of the loan. The first thing that should be
done is that the violations should be verified. The forensic loan audit relies on the
documents given to the auditors. This means that the auditors only have the
documentation that has been given to them by the client when performing their audit.
While we do our best to make sure all documents have been received from the clients,
sometimes clients have lost documents. If a page was not provided, then it will not be
consider as part of the audit. This could cause our auditors to find a violation when in
reality the page is just missing.
The attorney for the borrower should see what the lender has in their files to see if the
lenders files and the borrowers file match. To do this the attorney should send a qualified written
request to the lender upon signing a new client, notifying them of the violation and request any
documentation they have relating to the loan to be sent back to the attorney. This will allow the
attorney to verify that there was a violation. For example, if the audit finds a HOEPA violation
because the loan was a high cost loan and no HOEPA disclosures were made, then the attorney
should send the qualified written request to the lender to determine if the lender has any
documentation that the HOEPA disclosures were in fact made.
2. Making it Cost Effective for the Lender to Give the Borrower a Loan
Modification
During the negotiations for the workout agreement, the attorney needs to seriously
evaluate the strength of the case. Some violations are more severe than others. For
example, a TILA violation will allow the borrower to rescind the loan, however, a minor
RESPA violation may only grant the borrower $2,000 to $3,000 in statutory damages.
This is important because it will determine what type of modifications the attorney and
the borrower (client) are willing to accept. The forensic loan audit will greatly assist you
in this evaluation by alerting attorney and their borrower(s) (client) to the frequency and
severity violations.
Bottom line the attorney needs to show the lender that it will be more cost effective to
give the borrower(s) a loan modification than to foreclose on the property or to fight it incourt and risk the loan ultimately being rescinded. This should be approached by
showing the lender all the costs that it will incur by holding onto the loan.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 16
8/7/2019 012011Hemric4836 Forensic Audit
17/47
Some of these considerations are;
the cost of foreclosure on the home when the borrower(s) ultimately defaults on the
loan, carrying cost to maintain the home while the bank holds it awaiting auction
(marketing, taxes, insurance, repairs, security),
attorney fees to defend the cause of action should the case go to court,
true overhead cost of the man hours the lender will dedicate to this case,
lender or Bank required reserves that may have to be met,
cost of defending against possible attack on foreclosure claim,
cost of negative impact on other holdings in the surrounding area (if bank has loaned in a
concentrated area). Each foreclosure could result in an additional 4% drop in value on
surrounding homes.
If the borrower raises all the different costs associated with the lender holding onto the
house and the lender is still unwilling to give the borrower a modification, then the
attorney and the borrower(s) (client) can then bring a lawsuit, enforcing their rights. The
most significant right that the borrower has is the right to rescind the transaction.
3. Bringing a Cause of Action to the Courts
The right to rescission is powerful because it means that the borrower can tender the
amount borrowed to the lender less any closing costs, fees, interest, payments made, or
any other costs associated with the loan. This usually results in an amount much less
than what was initially borrowed, and the borrower essentially got the loan for free.
The attorney has the option of enforcing Truth in Lending Act and other rescission rights
in federal district, state, or bankruptcy court. Of course, the relative advantages and
disadvantages of federal court, state court, and bankruptcy court vary from jurisdiction to
jurisdiction. The attorney will want to choose the court that fits his/her specific situation best.
For example, an attorney will not want to file in bankruptcy court unless he/she is planning on
including a bankruptcy factor into the workout agreement in same way.
Regardless of which court the attorney may choose to file in, the general approach will be the
same. The attorney needs to present their case showing that the lender violated
applicable lending regulations allowing the borrower to rescind the loan. The forensic
loan audit can be used throughout the trial process to highlight and emphasize violations made in
the originating loan documents. Also we provide access to expert witnesses who are able to
interpret the audit and testify in court as to the validity and accuracy of the audit.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 17
8/7/2019 012011Hemric4836 Forensic Audit
18/47
If the attorney successfully brings a cause of action to the court, the attorney will be able
to recover significant damages depending on the actual violation made in the loan. The
ultimate remedy is rescission, for reasons stated above. Other damages can include
actual damages, statutory damages, attorney fees, and in some cases punitive damages. Recentlysome courts have also begun to award loan modifications in cases that equity is required for the
loan to be enforceable, such as HELOCs, and fixed rate Seconds.
Audit Detail
The following portion of the audit file checks the detail of the
borrowers file against Federal, State & Local laws.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 18
8/7/2019 012011Hemric4836 Forensic Audit
19/47
MORTGAGE COMPLIANCE ANALYSIS REPORT
CE ID: 57203CZVMB
User Name: John Northrup Lender Loan Number: 0896438959
Product Name: ComplianceAnalyzer
Report Type: Post-Close Mortgage Loan Borrower Name: Rachel L Hemric
Report Date/Time: 01/31/2011 08:56 AM (PST) Property Address: 4836 Collins Rd
Report Version: 1 Hamptonville, NC 27020
RiskIndicator HOEPA TILA RESPAState & Local
Predatory
State
RegsExceptions
Policies /
Custom
FINDINGS SUMMARY
Federal HOEPA (Sections 32, 35)
Result Loan Data Comparison Data Variance
This loan is not covered by Federal HOEPA (Sections 32,35).
NOT COVERED
Federal TILA
Result Loan Data Comparison Data Variance
TILA Finance Charge Test: NOT TESTED
TILA Rescission Finance Charge Test: N/A
TILA Foreclosure Rescission Finance Charge Test: NOT TESTED
TILA APR Test: PASS 7.125% 7.125% 0.000%
TILA Right of Rescission Test: N/A
Initial TIL Disclosure Date Test: N/A
Federal RESPA
Result Loan Data Comparison Data Variance
This loan is not covered by Federal RESPA. NOT COVERED
GSE (Based on Fannie Mae Lender Announcements and Lender Letters)
Result Loan Data Comparison Data Variance
GSE (Fannie Mae public guidelines) Predatory LendingGuidance:
PASS
GSE (Fannie Mae public guidelines) Allowable Points andFees Test:
PASS $0.00 $9,724.00 -$9,724.00
GSE (Fannie Mae public guidelines) HOEPA APR Test: N/A
GSE (Fannie Mae public guidelines) HOEPA Points and
Fees Test:
N/A
GSE (Fannie Mae public guidelines) Seller Paid Pointsand Fees Exception Test:
PASS
GSE (Fannie Mae public guidelines) Prepayment PenaltyTerm Test:
PASS
GSE (Fannie Mae public guidelines) Interest OnlyMortgage Test:
NOT TESTED
GSE (Fannie Mae public guidelines) Points and FeesAlert:
ALERT
GSE (Fannie Mae public guidelines) Alert: ALERT
NC Restrictions and Limitations on High-Cost Home Loans (NC SB 1149)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 19
8/7/2019 012011Hemric4836 Forensic Audit
20/47
8/7/2019 012011Hemric4836 Forensic Audit
21/47
In connection with credit secured by a consumer's principal dwelling that does not meet the definition of open-end credit in 226.2(a)(20), a creditor shall not structure a home-secured loan as an open-end plan to evade therequirements of 226.32 or 226.35.
Federal TILA
This loan was not tested against the TILA finance charge test. (12 CFR 226.18(d)(1))The disclosed finance charge was not provided.
NOT TESTED
The TILA rescission finance charge test does not apply to this loan due to one or more of the followingfindings: (12 CFR 226.23(a)(1),(f)(1))
The loan is a "residential mortgage transaction," meaning a transaction in which a mortgage, deed of trust,
purchase money security interest arising under an installment sales contract, or equivalent consensualsecurity interest is created or retained in the consumer's principal dwelling to finance the acquisition or initialconstruction of that dwelling; orThe loan is not a credit transaction in which a security interest is or will be retained or acquired in aconsumer's principal dwelling; orThe loan is a refinancing or consolidation by the same creditor of an extension of credit already secured bythe consumer's principal dwelling where the right of rescission shall apply only to the extent the new amountfinanced exceeds the unpaid principal balance, any earned unpaid finance charge on the existing debt, andamounts attributed solely to the costs of the refinancing or consolidation; orThe loan is not a closed-end credit transaction.
N/A
This loan was not tested against the TILA foreclosure rescission finance charge test due to one or more ofthe following findings: (12 CFR 226.23(h))
A disclosed finance charge was not provided; or
Your company settings are not configured to run the TILA foreclosure rescission finance charge test as partof an audit report.
NOT TESTED
This loan passed the TILA APR test due to one or more of the following findings: (12 CFR 226.22(a)(2),(4))The disclosed annual percentage rate (APR) of 7.125% is considered accurate because it is not more than1/8 of 1 percentage point above or below the APR of 7.125% as determined in accordance with the actuarialmethod; orThe disclosed APR results from the disclosed finance charge, and the disclosed finance charge isconsidered accurate under 226.18(d)(1) (the finance charge test), or for purposes of rescission thedisclosed finance charge is considered accurate under 226.23(g) or (h) (the rescission finance charge testor the foreclosure rescission finance charge test), whichever applies.
PASS
The TILA right of rescission test is not applicable to this loan due to one or more of the following findings:Closed-end (12 CFR 226.23(a), (f)) , Open-end (12 CFR 226.15(a), (f))
The loan is a "residential mortgage transaction," meaning a transaction in which a mortgage, deed of trust,purchase money security interest arising under an installment sales contract, or equivalent consensualsecurity interest is created or retained in the consumer's principal dwelling to finance the acquisition or initial
construction of that dwelling; orThe loan is not a credit transaction in which a security interest is or will be retained or acquired in aconsumer's principal dwelling; orThe loan is a refinancing or consolidation by the same creditor of an extension of credit already secured bythe consumer's principal dwelling where the right of rescission shall apply only to the extent the new amountfinanced exceeds the unpaid principal balance, any earned unpaid finance charge on the existing debt, andamounts attributed solely to the costs of the refinancing or consolidation.
N/A
The initial TIL disclosure date test does not apply to this loan due to one of the following:Closed-end (12 CFR 226.17(b) , as amended in 2009) ,Open-end (12 CFR 226.5b(1))
The date creditor received the application (formerly application date) is on or after July 30, 2009, and theloan is not a mortgage transaction subject to the Real Estate Settlement Procedures Act (12 U.S.C. 2601 etseq.) that is secured by the consumer's dwelling; orThe application date of the loan is before July 30, 2009, and the loan is not a "residential mortgagetransaction" subject to the Real Estate Settlement Procedures Act (RESPA).
N/A
Federal RESPA
This loan is not covered by the Real Estate Settlement Procedures Act (RESPA) due to one or more of thefollowing findings: ( 24 CFR 3500.2(b) , 3500.5 )
The loan is not considered a federally related mortgage loan, which the system interprets as any loan(other than temporary financing, such as a construction or bridge loan) secured by a structure or structuresdesigned principally for occupancy of from one to four families;The loan is an open-end credit plan; or
The loan has a business purpose.
NOT COVERED
GSE (Based on Fannie Mae Lender Announcements and Lender Letters)
This loan passed the predatory lending guidance test due to the following findings:The loan passed the allowable points and fees test.
PASS
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 21
8/7/2019 012011Hemric4836 Forensic Audit
22/47
The loan does not exceed the HOEPA APR threshold for primary residences.
The loan does not exceed the HOEPA points and fees threshold for primary residences.
This loan passed the total points and fees test. (Fannie Mae Lender Letter Ann. 06-04)The total points and fees charged to the borrower do not exceed the greater of 5% of the mortgage amount or$1,000.
PASS
The GSE HOEPA APR test is not applicable to this loan.
The GSE HOEPA APR test does not apply to investment properties or secondary residences.N/A
The GSE HOEPA points and fees test is not applicable to this loan.The GSE HOEPA points and fees test does not apply to investment properties or secondary residences.
N/A
This loan passed the seller-paid points and fees exception test due to one or more of the followingfindings:The loan is not covered by GSE guidance.
The loan is not a purchase loan.
The loan is a purchase loan covered by GSE guidance and a value was provided for "Seller-Paid Points andFees."
PASS
This loan passed the prepayment penalty term test. (Fannie Mae 2006 Selling Guide, Part IV, 201.02)The loan does not have a prepayment penalty with a term exceeding 3 years.
PASS
This loan is not tested against the interest only mortgage test. (Fannie Mae Announcement SEL-2010-06)The loan was not tested against the interest only mortgage test for one or more of the following findings:
The latest available closing date is before the effective date of June 19, 2010.
The loan provides an interest-only feature and may not be eligible for purchase by Fannie Mae.
NOT TESTED
GSE (Fannie Mae Public Guidelines) Points and Fees AlertExcludable Bona Fide Discount Points (Fannie Mae Lender Letter 04/11/2000)
Points and fees do not include "bona fide discount points," a term that is undefined by the GSE.Checking the "Bona Fide - GSE" box next to the Loan Discount Fee on the loan data entry form will indicate thatthe discount points are bond fide. Check the box only if you know that your institution's policies for discount pointsmeet the GSE's criteria and if they can be verified for the loan in question.
ALERT
DisclaimerThis set of lending policies tests have been prepared in accordance with information and guidance made publiclyavailable by the Government Sponsored Enterprises (GSEs). The results rendered do not constitute an actualapproval or decision of any type on the part of any GSE with regard to the subject loan. The results are merely anopinion from our decision engine, representing one interpretation of the criteria provided by the GSEs. In the eventthat an approval or decision is sought from any GSE, the GSE will engage in its own separate decision-makingprocess, and such process may produce a result that varies from the results set forth in these tests.
ALERT
NC Restrictions and Limitations on High-Cost Home Loans (NC SB 1149)
This loan is not covered by NC SB 1149 due to one or more of the following findings: (NC SB 1149 [G.S.
24-10.2(a), 24-1.1E(a)(4)]) (NC HB 1182 amendments to NC SB 1149 [G.S. 24-10.2(a), 24-1.1E(a)(4)]) (NCHB 1817 [G.S. 24-1.1E(a)(5), as amended Jan. 2008])
The loan is not a "consumer home loan". This means the loan is not one in which the borrower is a naturalperson, the debt is incurred by the borrower primarily for personal, family, or household purposes, and theloan is secured by a mortgage or deed of trust upon real estate upon which there is located a structure orstructures designed principally for occupancy of from one to four families occupied by the borrower as theborrower's principal dwelling.The loan was made or entered into before 10/1/1999.
NOT COVERED
NC Rate Spread Home Loan Article (Before October 1, 2009)
This loan is not covered by the rate spread home loan provisions of NC HB 1817. (NC HB 1817 Section 4(SL2007-0352))The closing date of the loan (or date creditor received application (formerly application date), if the closing date isunknown) occurs either:
Before the effective date of January 1, 2008; orAfter October 1, 2009.
NOT COVERED
NC Rate Spread Home Loan Article (October 1, 2009 and after)
This loan is not covered by the rate spread home loan provisions of NC HB 1222. ( NC GS 24-1.1F(a)(7) )The closing date of the loan (or the date creditor received application (formerly application date) , if the closing dateis unknown) occurs before the effective date of October 1, 2009.
NOT COVERED
State Regulations
This loan is not applicable to the interest rate test.The terms of the loan and/or the lender's license type in the state where the property is located do not imply anyinterest rate restrictions.
N/A
This loan is not applicable to the grace period test. N/A
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 22
8/7/2019 012011Hemric4836 Forensic Audit
23/47
The terms of the loan and/or the lender's license type in the state where the property is located do not imply anygrace period restrictions.
This loan is not applicable to the late fees test.
The terms of the loan and/or the lender's license type in the state where the property is located do not imply anyrestrictions on late fees.
N/A
This loan is not applicable to the prepayment term test.
The terms of the loan and/or the lender's license type in the state where the property is located do not imply anyrestrictions on prepayment term.
N/A
State Regulations Restricted Fees
The first lien lender fees test is not applicable to this loan due to one or more of the following findings: (NC24-1.1A(e))
The loan is for at least $300,000; or
The loan is for investment purposes.
N/A
The first lien broker fees test is not applicable to this loan due to one or more of the following findings:(NC 24-1.1A(e))
The loan is for at least $300,000; or
The loan is for investment purposes.
N/A
This loan is not tested against the second lien lender fees test.
The loan is not a second lien loan.NOT TESTED
This loan is not applicable to the bona fide discount points test due to one of the following findings:The loan is for investment purposes (NC 24-9(a)(3)(c), 24-9(b)); or
The loan is a first lien mortgage and has a principal amount that is less than $10,000 (NC 24-1.1A(c), (c1));orThe loan is a first lien mortgage and has a principal amount that is greater than or equal to $300,000 (NCGS 24-9(b)); orThe loan is a second lien mortgage. (NC 24-1.1A(e))
N/A
This loan is not applicable to the assumption fee test. (NC 24-9(a)(3)(c), 24-9(b))
The loan either is for investment purposes or has a principal amount that is greater than or equal to $300,000.N/A
LOAN DETAIL
Client
CE ID: 57203CZVMB User Name: John Northrup
Report Type: Post-Close Mortgage Loan
Lender
Lender Name: Regions Bank dba Regions Mortgage :
Lender Loan Number: 0896438959 :
Originator: First Carolina Mortgage Inc. :
MIN: :
License Type: North Carolina Mortgage Lender License
DIDMCA Exempt: No
HUD Approved Lender: Yes
Policies
Default:
Lending Policy: GSE (Fannie Mae public guidelines)
Borrower
First Name: Rachel L Last Name: Hemric
Total Income: $12,173.00 / month DTI Ratio: 26.530%
Property
Address:Number Street Name Type (St, Ave, etc.) Direction Unit #
4836 Collins RdCity County State Zip
Hamptonville NC 27020
Type: Detached SFD Number of Units: 1
Occupancy: Investment Property
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 23
8/7/2019 012011Hemric4836 Forensic Audit
24/47
8/7/2019 012011Hemric4836 Forensic Audit
25/47
800: Items Payable in Connection with Loan
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
801 Loan Origination Fee $ Lender
802 Loan Discount Fee $ Bona Fide - GSEBona Fide - State
Lender
803 Appraisal Fee $ Other
804 Credit Report Fee $ Other
805 Lender Inspection Fee (performed prior toclosing)
$ Other
Lender Inspection Fee (performed postclosing)
$ Other
806 Mortgage Insurance Application Fee $ Other
807 Assumption Fee $ Other
Modification Fee $ Lender
Tie-in Fee $ Other
Mortgage Broker Fee (Direct) $
Mortgage Broker Fee (Indirect / POC) $
Yield Spread Premium (Indirect / POC) $
CLO Access Fee $ Other
Application Fee $ Lender
Rate Lock Fee $ OtherCommitment Fee $ Lender
Processing Fee $ Lender
Underwriting Fee $ Lender
Administration Fee $ Lender
Appraisal Review Fee $ Lender
Appraisal Re-Inspection Fee $ Lender
Flood Determination - Initial Fee $ Other
Flood Determination - Life of Loan Fee $ Other
Document Preparation Fee $ Lender
Document Signing Fee $ Lender
Courier / Messenger Fee $ Other
Tax Related Service Fee $ Other
Wire Transfer Fee $ Other
Warehousing Fee $ Other
Advance Mortgage Payments $ Other
Credit Life Insurance Premium $ Other
Accident Insurance Premium $ Other
Health Insurance Premium $ Other
Loss of Income Insurance Premium $ Other
Debt Cancellation Fee $ Other
Prepayment Penalty $ Other
Compliance Audit / Quality Control Fee $ Other
Seller-Paid Points and Fees $
$
$$
$
$
$
$
$
900: Items Required by Lender to be Paid in Advance
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
901 Interest $ for day(s) Lender
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 25
8/7/2019 012011Hemric4836 Forensic Audit
26/47
902 Mortgage Insurance Premium $ Other
903 Hazard Insurance Premium $ Other
County Property Taxes $ Other
Flood Insurance Premium $ Other
$
$$
$
1000: Reserves Deposited with Lender
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
1001 Hazard Insurance Reserve $ Other
1002 Mortgage Insurance Reserve $ Other
1003 City Property Taxes Reserve $ Other
1004 County Property Taxes Reserve $ Other
1005 Annual Assessments $ Other
$$
$
$
$
1100: Title Charges
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
1101 Settlement / Closing / Escrow Fee $ Other
1102 Abstract / Title Search Fee $ Other
1103 Title Examination Fee $ Other
1104 Title Insurance Binder Fee $ Other1105 Title Document Preparation Fee $ Other
1106 Notary Fee $ Other
1107 Attorney's Fee $ Excludable due to borrowerchoice
Other
Attorney's Fee (Other) $ Excludable due to borrowerchoice
Other
1108 Title Insurance $ Other
1109 Lender's Coverage $ Other
1110 Owner's Coverage $ Other
Assignment Endorsement Fee $ Other
Sub-Escrow Fee $ Other
Reconveyance Fee $ Other
Title Courier Fee $ OtherFunding, Wire, or Disbursement Fee $ Other
$
$
$
$
$
1200: Government Recording and Transfer Charges
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 26
8/7/2019 012011Hemric4836 Forensic Audit
27/47
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
1201 Recording Fee $ Other
1202 City / County / Tax / Stamps $ Other
1203 State Tax / Stamps $ Other
Subordination Recording Fee $ Other
Assignment Recording Fee $ Other
Recording Service Fee $ Other
Intangible Tax $ Other
$
$
$$
1300: Additional Settlement Charges
PrepaidFinanceCharges
FinancedBy Lender
CompensationTo
1301 Survey Fee $ Other
1302 Pest Inspection Fee $ Other
Architectural / Engineering Fee $ Other
Building Permit $ Other
$
$
$$
$
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 27
8/7/2019 012011Hemric4836 Forensic Audit
28/47
SummaryofApplicable
Laws
andOtherInformation
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 28
8/7/2019 012011Hemric4836 Forensic Audit
29/47
Lendertoprovidespecialinformationbooklet.Subjecttotheexceptionssetforthinthisparagraph,thelendershallprovideacopyofthespecialinformationbooklettoapersonfromwhomthelenderreceives,orforwhomthelenderpreparesawrittenapplicationforafederallyrelatedmortgageloan.Whentwoormorepersonsapplytogetherforaloan,thelenderisincomplianceifthelenderprovidesacopyofthebooklettooneofthepersonsapplying.
RESPALawSec.3500.6Specialinformationbookletattimeofloanapplication
(a)
Thelendershallprovidethespecialinformationbookletbydeliveringitorplacingitinthemailtotheapplicantnotlaterthanthreebusinessdays(asthattermisdefinedin3500.2)aftertheapplicationisreceivedorprepared.However,ifthelenderdeniestheborrower'sapplicationorcreditbeforetheendofthethreebusinessdayperiod,thenthelenderneednotprovidethebooklettotheborrower.Ifaborrowerusesamortgagebroker,themortgagebrokershalldistributethespecialinformationbookletandthelenderneednotdoso.
(1)
Inthecaseofafederallyrelatedmortgageloaninvolvinganopenendedcreditplan(asdefinedin226.2(a)(20)
of
Regulation
Z
(12
CFR))
a
lender
or
mortgage
broker
that
provides
the
borrower
with
a
copy
of
the
brochureentitled"WhenYourHomeisontheLine:WhatyoushouldknowaboutHomeEquitylinesofcredit",oranysuccessorbrochureissuedbytheBoardofGovernorsoftheFederalReserveSystem,isdeemedtobeincompliancewiththissection.
(2)
Inthecatagoriesoftransactionssetforthattheendofthisparagraph,thelenderormortgagebrokerdoesnothavetoprovidethebooklettotheborrower.Undertheauthorityofsection19(a)ofRESPA(12U.S.C.2617(a)),thesecretarymaychoosetoendorsetheformsorbookletsofotherFederalagencies.Insuchanevent,therequirementsfordeliverybylendersandtheavailabilityofthebookletoralternativematerialsforthesetransactionswillbesetforthinaNoticeintheFederalRegister.Thisparagraphshallapplytothefollowingtransactions:
(3)
Refinancingtransactions;(i)Closedendloansasdefinedin12CFR226.2(a)(10)ofRegulationZ,whenthelendertakesasubordinatelien;(ii)Reversemortgages;and(iii)Anyotherfederallyrelatedmortgageloanwhosepurposeisnotthepurchaseofa1to4familyresidence
(iv)
Revision.Thesecretarymay,fromtimetotime,revisethespecialinformationbookletbypublishinganoticeintheFederalRegister.(b)
Reproduction.Thespecialinformationbookletmaybereproduced,inanyform,providedthatnochangeismadeotherthanasprovidedunderparagraph(d)ofthissection.ThespecialinformationbookletmaynotbemadeapartofalargerdocumentforpurposesofdistributionunderRESPAandthissection.Anycolor,size,andqualityofpaper,typeofprint,andmethodofreproductionmaybeusedsolongasthebookletisclearlylegible.
(c)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 29
8/7/2019 012011Hemric4836 Forensic Audit
30/47
Permissiblechanges.(1)Nochangesto,deletionsfrom,oradditionstothespecialinformationbookletcurrentlyprescribedbhytheSecretaryshallbemadeotherthanthosespecifiedinthisparagraph(d)oranyothersapprovedinwritingbytheSecretary.ArequestoftheSecretaryforapprovalofanychangesshallbesubmittedinwritingtotheaddressindicatedin3500.3,statingthereasonswhytheapplicantbelievessuchchanges,deletions,oradditionsarenecessary.
(d)
Thecoverofthebookletmaybeinanyformandmaycontainanydrawings,pictures,orartwork,providedthewords"settlementcosts"areusedinthetitle.Names,addresses,andtelephonenumbersofthelender,orothersimilarinformation,mayappearonthecover,butnotdiscussionofthematterscoveredinthebookletshallappearonthecover.
(2)
ThespecialinformationbookletmaybetranslatedintolanguagesotherthanEnglish.(3)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 30
8/7/2019 012011Hemric4836 Forensic Audit
31/47
RegulationZ(12CFR226)implementstheTruthinLendingAct(TILA)(15USC1601etseq),whichwasenactedin
1968asTitleIoftheConsumerCreditProtectionAct.Sinceitsimplementation,theregulationhasbeenamended
manytimestoincorporatechangestotheTILAortoaddresschangesintheconsumercreditmarketplace.
TILALawRegulationZ
Inthe1990's,RegulationZwasamendedtoimplementtheHomeOwnershipandEquityProtectionActof1994,
whichimposednewdisclosurerequirementsandsubstantivelimitationsoncertainhighercostclosedendmortgage
loansandincludednewdisclosurerequirementsforreversemortgagetransactions.
TheTruthinLendingActisintendedtoensurethatcredittermsaredisclosedinameaningfulwaysothatconsumers
cancomparecredittermsmorereadilyandmoreknowledgeably.
Thefinancecharge(226.4)isameasureofthecostofconsumercreditrepresentedindollarsandcents.
AlongwiththeAPRdisclosures,thedisclosureofthefinancechargeiscentraltotheuniformcreditcost
disclosureenvisionedbytheTILA.OneofthemorecomplextasksunderRegulationZisdetermining
whetherachargeassociatedwithanextensionofcreditmustbeincludedinorexcludedfromthedisclosed
financecharge.Thefinancechargeinitiallyincludesanychargethatis,orwillbe,connectedwithaspecific
loan.Chargesimposedbythirdpartiesarefinancechargesiftheinstitutionrequiresuseofthethirdparty.
Chargesimposedbysettlementorclosingagentsarefinancechargesiftheinstitutionrequiresthespecific
servicethatgaverisetothechargeandthechargeisnototherwiseexcluded.
(A)
Creditsecuredbyrealpropertyoradwelling,thedisclosedfinancechargeisconsidered
accurateifitdoesnotvaryfromtheactualfinancechargebymorethan$100.00.Also,
overstatmentsarenotviolations.
(1)
DeterminationoftheFinanceChargeandtheAPR
Aprepaidfinancecharge(226.18(b))isanyfinancechargethat(1)ispaidseparatelytothefinancial
institutionortoathirdparty,incashorbycheck,beforeoratclosing,settlement,orconsummationofa
transactionor(2)iswithheldfromtheproceedsofthecreditatanytime.Prepaidfinancecharges
effectivelyreducetheamountoffundsavailablefortheconsumer'suse,usuallybeforeoratthetimethe
transactionisconsummated.
(B)
ForcertaintransactionsconsummatedonorafterSeptember30,1995,thefinancechargetolerancesare
asnotedbelow:
(C)
Rescissionrightsafterthethreebusinessdayrescissionperiod,thedisclosedfinancechargeis
consideredaccurateifitdoesnotvaryfromtheactualfinancechargebymorethanonehalfof
1percentofthecreditextended.
(2)
Rescissionrightsinforeclosure,thedisclosedfinancechargeisconsideredaccurateifitdoes
notvaryfromtheactualfinancechargebymorethan$35.00.Also,overstatementsarenot
consideredviolationsandtheconsumerisentitledtorescindifamortgagebrokerfeeisnot
includedasafinancecharge.
(3)
Creditcostsmayvarydependingontheinterestrate,theamountoftheloanandothercharges,thetiming
andamountsofadvances,andtherepaymentschedule(226.22).TheAnnualPercentageRate(APR),which
mustbedisclosedinnearlyallconsumercredittransactions,isdesignedtotakeintoaccountallrelevant
factorsandtoprovideauniformmeasureforcomparingthecostsofvariouscredittransactions.
(D)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 31
8/7/2019 012011Hemric4836 Forensic Audit
32/47
TheAPRisameasureofthetotalcostofcredit,expressedasanominalyearlyrate.Itrelatestheamountand
timingofvaluereceivedbytheconsumertotheamountandtimingofpaymentsmadebytheconsumer.The
disclosureoftheAPRiscentraltotheuniformcreditcostdisclosureenvisionedbytheTILA.
(E)
Thedisclosedannualpercentagerate(APR)onaclosedendtransactionisconsideredaccurateifforregular
transactions(includinganysingleadvancetransactionwithequalpaymentsandequalpaymentperiodsor
transactionwithanirregularfirstorlastpaymentand/oranirregularfirstpaymentperiod),theAPRiswithin
oneeighthof1percentagepointoftheAPRcalculatedunderRegulationZ(section226.23(a)(2)).
(F)
Ifforirregulartransactions(includingmultipleadvancetransactionsandothertransactionsnotconsidered
regular),theAPRiswithinonequarterof1percentagepointoftheAPRcalculatedunderRegulationZ
(section226.22(a)(3)).
(G)
Ifformortgagetransactions,theAPRiswithinoneeighthof1percentagepointforregulartransactionsor
onequarterof1percentagepointforirregulartransactionsandtherateresultsfromthedisclosedfinance
chargewouldbeconsideredaccurateundersection226.18(d)(1)orsection226.23(g)or(h)ofRegulationZ
(section226.22(a)(4)).
(H)
VariableRateLoans(226.18(f))
Ifthetermsofthelegalobligationallowthefinancialinstitution,afterconsummationofthetransaction,toincrease
theAPR,thefinancialinstitutionmustfurnishtheconsumerwithcertaininformationonvariablerates.Someofthe
moretransactionspecificvariableratedisclosurerequirementsundersection226.18:
Disclosuresforthevariablerateloansmustcoverthefulltermofthetransactionandmustbebasedonthe
termsineffecatthetimeofconsummation.
(A)
IFthevariableratetransactionincludeseitherasellerbuydownthatisreflectedinacontractoraconsumer
buydown,thedisclosedAPRshouldbeacompositeratebasedonthelowerrateforthebuydownperiodand
theratethatisthebasisforthevariableratefeaturefortheremainderoftheterm.
(B)
Iftheinitialrateisnotdeterminedbytheindexorformulausedtomakelaterinterestrateadjustments,asin
adiscountedAPRmustreflectacompositeratebasedontheinitialrateforaslongasitisappliedand,for
theremainderoftheterm,theindexorformulaatthetimeofconsummation(thatis,thefullyindexedrate).
(C)
Ifaloancontainsarateorpaymentcapthatwouldpreventtheinitialrate,orpaymentatthetimeofthe
adjustment,fromchangingtothefullyindexedrate,theeffectofthatrateorpaymentcapneedstobe
reflectedinthedisclosure.
(D)
Theindexatconsummationneednotbeusedifthecontractprovidesforadelayinimplementationof
changesinanindexvalue.Forexample,thecontractindicatesthatfutureratechangesarebasedonthe
indexvalueineffectforsomespecifiedperiod,suchasfortyfivedaysbeforethechangedate.Instead,the
financialinstitutionmayuseanyratefromthedateofconsummationbacktothebeginningofthespecified
period(forexample,duringthepreviousfortyfivedayperiod).
(E)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 32
8/7/2019 012011Hemric4836 Forensic Audit
33/47
SpecialRulesforCertainHomeMortgageTransactions
Therequirementsofsection226.32applytoaconsumercredittransactionsecuredbytheconsumer'sprincipal
dwellinginwhicheither:
TheAPRatconsummationwillexceedbymorethan8percentagepointsforfirstlienmortgageloans,orby
morethan10percentagepointsforsubordinatelienmortgageloans,theyieldonTreasurysecuritieshaving
periodsofmaturitycomparabletotheloan'smaturity(asofthe15thdayofthemonthimmediately
preceedingthemonthinwhichtheapplicationoftheextensionofcreditisreceivedbythecreditor).
(A)
Thetotalpointsandfeespayablebytheconsumeratorbeforetheloanclosingwillexceedthegreaterof8
percentofthetotalloanamountoradollaramountthatisadjustedannuallyonthebasisofchangesinthe
consumerpriceindex.
(B)
Thefollowingareexemptfromsection226.32:
Residentialmortgagetransactions(generallypurchasemoneymortgages).(A)
Reversemortgagetransactionssubjecttosection226.33ofRegulationZ.(B)
OpenendcreditplanssubjecttosubpartBoftheregulation.(C)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 33
8/7/2019 012011Hemric4836 Forensic Audit
34/47
RegulationBTILALaw
Sec.202.9Notifications(g)DisclosureofCreditScoresbyCertainMortgageLenders(1)Ingeneral,anypersonwhomakesorarrangesloansandwhousesconsumercreditscore,asdefinedinsubsection(f),inconnectionwithanapplicationinitiatedorsoughtbyaconsumerforaclosedendloanortheestablishmentofanopenendloanforaconsumerpurposethatissecuredb1to4unitsofresidentialrealproperty(hearafterinthissubsectionreferredtoasthe"lender")shallprovidethefollowingtotheconsumerassoonasreasonablypracticable:(A)InformationRequiredunderSubsection(f)
Ingeneral,acopyoftheinformationindentifiedinsubsection(f)thatwasobtainedfromaconsumerreportingagencyorwasdevelopedandusedbytheuseroftheinformation.(i)
Noticeundersubparagraph(D).Inadditiontotheinformationprovidedtoitbyathirdpartythatprovidedthecreditscoreorscores,alenderisonlyrequiredtoprovidethenoticecontainedinsubparagraph(D).(ii)
(B)DisclosuresinCaseofAutomatedUnderwritingSystemIngeneral,ifapersonthatissubjecttothissubsectionusesanautomatedunderwritingsystemtounderwritealoan,thatpersonmaysatisfytheobligationtoprovideacreditscorebydisclosingacreditscoreandassociatedkeyfactorssuppliedbyaconsumerreportingagency.
(i)
Numericalcreditscore.However,ifanumericalcreditscoreisgeneratedbyanautomatedunderwritingsystemusedbyanenterprise,andthatscoreisdisclosedtotheperson,thescoreshallbedisclosedtotheconsumerconsistentwithsubparagraph(C).
(ii)
Enterprisedefined.Forpurposesofthissubparagraph,theterm"enterprise"hasthesamemeaningasinparagraph(6)ofsection1303iftheFederalHousingEnterprisesFinancialSafetyandSoundnessActof1992.
(iii)
(C)Disclosuresofcreditscoresnotobtainedfromaconsumerreportingagency.Apersonthatissubjecttotheprovisionsofthissubsectionandthatusesacreditscoreotherthanacreditscoreprovidedbyaconsumerreportingagency,maysatisfytheobligationtoprovideacreditscorebydisclosingacreditscoreandassociatedkeyfactorssuppliedbyaconsumerreportingagency.(D)Noticetohomeloanapplicants.Acopyofthefollowingnotice,whichshallincludethename,address,andtelephonenumberofeachconsumerreportingagencyprovidingacreditscorethatwasused:"NoticeToTheHomeLoanApplicant""Inconnectionwithyourapplicationforahomeloan,thelendermustdisclosedtoyouthescorethataconsumerreportingagencydistributedtousersandthelenderusedinconnectionwithyourhomeloan,andthekeyfactorsaffectingyourcreditscores."
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 34
8/7/2019 012011Hemric4836 Forensic Audit
35/47
"Thecreditscoreisacomputergeneratedsummarycalculatedatthetimeoftherequestandbasedoninformation
thataconsumerreportingagencyorlenderhasonfile.Thescoresarebasedondataaboutyourcredithistoryand
paymentpatterns.Creditscoresareimportantbecausetheyareusedtoassistthelenderindeterminingwhether
youwillobtainaloan.Theymayalsobeusedtodeterminewhatinterestrateyoumaybeofferedonthemortgage.
Creditscorescanchangeovertime,dependingonyourconduct,howyourcredithistoryandpaymentpatterns
change,andhowcreditscoringtechnologieschange.Becausethescoreisbasedoninformationinyourcredit
history,itisveryimportantthatyoureviewthecreditrelatedinformationthatisbeingfurnishedtomakesureitis
accurate.Creditrecordsmayvaryfromonecompanytoanother."
"Ifyouhavequesitonsaboutyourcreditscoreorthecreditinformationthatisfurnishedtoyou,contactthe
consumerreportingagencyattheaddressandtelephonenumberprovidedwiththisnotice,orcontactthelender,if
thelenderdevelopedorgeneratedthecreditscore."
Theconsumerreportingagencyplaysnopartinthedecisiontotakeanyactionontheloanapplicationandisunable
toprovideyouwithspecificreasonsforthedecisiononaloanapplication.
"Ifyouhavequesitonsconcerningthetermsoftheloan,contactthelender."
(E)Actionsnotrequiredunderthissubsection.Thissubsectionshallnotrequireanypersonto:
explaintheinformationprovidedpursuanttosubsection(f);(i)
discloseanyinformationotherthanacreditscoreorkeyfactors,asdefinedinsubsection(f);(ii)
discloseanycreditscoreorrelatedinformationobtainedbytheuserafteraloanhasclosed;(iii)
providemorethanonedisclosureperloantransaction;(iv)
orprovidethedisclosurerequiredbythissubsectionwhenanotherpersonhasmadethedisclosuretothe
consumerforthatloantransaction.
(v)
(F)NoObligationforContent
Ingeneral,theobligationofanypersonpursuanttothissubsectionshallbelimitedsoleytoprovidinga
copyoftheinformationthatwasreceivedfromtheconsumerreportingagency.(i)
Limitonliability.Nopersonhasliabilityunderthissubsectionforthecontentofthatinformationorforthe
omissionoranyinformationwithinthereportprovidedbytheconsumerreportingagency.
(ii)
(G)Persondefinedasexcludingenterprise.Asusedinthissubsection,theterm"person"doesnotincludean
enterprise(asdefinedinparagraph(6)ofsection1303oftheFederalHousingEnterprisesFinancialSafetyand
SoundnessActof1992).
(2)ProhibitiononDisclosureClausesNullandVoid
Ingeneral,anyprovisioninacontractthatprohibitsthedisclosureofacreditscorebyapersonwhomakes
orarrangesloansoraconsumerreportingagencyisvoid.
(A)
Noliabilityfordisclosureunderthissubsection,alendershallnothaveliabilityunderanycontractual
provisionfordisclosureofacreditscorepursuanttothissubsection.
(B)
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 35
8/7/2019 012011Hemric4836 Forensic Audit
36/47
Definition:A"consumer"isanindividualwhoobtainsorhasobtainedafinancialproductorservicefromafinancial
institutionthatistobeusedprimarilyforpersonal,family,orhouseholdpurposes,orthatindividual'slegal
representative.
GLBLaw(Gramm,Leach,BlileyAct)FederalTradeCommission
Provideaninitial(or"shortform")noticeabouttheavailabilityoftheprivacypolicyifthefinancialinstitutionshares
informationoutsidethepermittedexceptions.
BureauofConsumerProtection
DivisionofFinancialPractices
TheGrammLeachBlileyAct
PrivacyofConsumerFinancialInformation
IV.ConsumersandCustomers
A.Consumers
ExamplesofConsumerRelationships:
*Applyingforaloan
*ObtainingacashfromaforeignATM,evenifitocurrsonaregularbasis
*Cashingacheckwithacheckcashingcompany
*Arrangingforawiretransfer
GeneralObligationstoConsumers
Provideanoptoutnoticewitha"reasonableopportunity"tooptoutbeforedisclosingnonpublicpersonal
informationaboutthemotnonaffiliatedthirdparties,suchas30daysfromthedatethenoticeismailed.
Provideanoptoutnoticewiththeinitialnoticeorseparatelypriortothefinancialinstitutionsharingnonpublic
personalinformationaboutthemotnonaffiliatedthirdparties.
Ifaconsumerelectstooptoutofallorcertaindisclosures,afinancialinstitutionmusthonortheoptoutdirectionas
soonasisreasonablypracticableaftertheoptoutisreceived.
Ifyouchangeyourprivacypracticessuchthatthemostrecentprivacynoticeyouprovidedtoaconsumerisno
longeraccurate(e.g.youdiscloseanewcategoryofNPItoanewnonaffliatedthirdpartyoutsideofspecific
exceptionsandthosechangesarenotadequatelydescribedinyourpriornotice),youmustprovidenewrevisedand
optoutnotices.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 36
8/7/2019 012011Hemric4836 Forensic Audit
37/47
ALTERNATIVE CAUSES OF ACTION
Even if there may have not been any technical violations found in your loan through theaudit process, there may still be a cause of action against the lender. There are a numberof areas of law that address the predatory lending and unfair trade practices. Theavailability of these subsequent causes of action will depend greatly on the specific factsof your case.
Contractual Causes of Action
Breach of ContractBorrower may claim that the Lender breached its contractual obligations to Plaintiff,including, without limitation, those obligations created by the Note and SecurityAgreement and its oral agreement to make a residential mortgage loan as described on theLoan Application.
Breach of Oral Agreement - Campbell v. Machias, 865 F. Supp. 26 (D. Me. 1994).
Borrower may allege that when they applied for a loan, the lender's loan officer madecertain statements and representations about the nature and character of the loan. Forexample she would be required to make a five-percent downpayment and security on thehome but no security on her land. Borrowers can claim that, by accepting their loanapplication, the Lender offered her a loan in compliance with those representations.Borrower further contends that, when they accepted this offer, the parties entered into anoral agreement. Borrower argues that the Lender breached this oral agreement by failingto comply with the representations made but the loan officer.
It should be noted that an oral promise to enter into a home loan agreement, whichusually extends over a number of years, would very likely present problems under moststates Statute of Frauds.
Translation of Contracts negotiated in language other than English - CA Civil Code
1632(b)
CA Civil Code 1632(b) states that any person engaged in trade or business whonegotiates primarily in Spanish, Chinese, Tagalong, Vietnamese, or Korean, orally or inwriting, in the course of entering into any of the following, shall deliver to the other partyto the contract or agreement and prior to the execution thereof, a translation of thecontract or agreement in the language in which the contract or agreement was negotiated,
which includes a translation of every term and condition in that contract or agreement
A borrower, who negotiated the loan in a language other than English, must be providedwith a copy of the agreement in the language in which you negotiated. This applies to
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 37
8/7/2019 012011Hemric4836 Forensic Audit
38/47
disclosures required by Regulation M, Regulation Z, Truth in Lending Act, or any otherdisclosures promulgated by the Board of Governors of the Federal Reserve System
If the borrower is not provided a copy of the agreement in the language in which it wasnegotiated in then Cal. Civ. Code 1632(k) states upon a failure to comply with theprovision of this section, the person aggrieved may rescind the contract or agreement.
Tort Claims
Intentional Infliction of Emotional Distress - FDIC v. S. Prawer & Co., 829 F.Supp.
439, 449 (D.Me.1993)
Borrower may possibly make a claim of negligent and intentional infliction of emotionaldistress. This is only applicable in instances where the Lender has done something aboveand beyond the traditional notions of reasonableness. For example, a bank officerrefusing to provide information, berating the borrower and calling them names in a loudvoice in the middle of the bank office when a large number of people were present andcould hear him. Another example of this would be the bank attempting to disrupt theborrowers relationship with their attorney and to intimidate them into halting theirinvestigation by taking extreme actions, including filing false criminal charges against
her for stealing the bank's file on the burrowers loan.
To succeed on a claim for intentional infliction of emotional distress a plaintiff mustshow that:
The defendant acted intentionally, recklessly or was substantially certain thatsevere emotional distress would result from its conduct;
The defendant's conduct was so extreme and outrageous as to exceed all possiblebounds of decency and must be regarded as atrocious and utterly intolerable in acivilized community;
The defendant's conduct caused the plaintiff emotional distress; and Plaintiff's emotional distress was so severe that no person reasonably could be
expected to endure it.
Negligent Infliction of Emotional Distress - Prawer, 829 F.Supp. 451.
The borrower may bring a claim of negligent infliction of emotional. A claim ofnegligent infliction of emotional distress requires a plaintiff to prove:
The defendant acted negligently, That psychic injury was foreseeable given the nature of the defendant's conduct,
and
The plaintiff suffered severe emotional distress as a result of the defendant'snegligence.
Fraud/Misrepresentation
The traditional elements of fraud are frequently more difficult to establish than adeception claim under an Unfair Deceptive Acts and Practices (UDAP) statute.However, in some instances fraud causes of action can be used quite effectively.
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 38
8/7/2019 012011Hemric4836 Forensic Audit
39/47
People Trust & Saving Bank v. Humphrey, 451 N.E. 2d 1104 (Ind. Ct. App. 1983).
In this case, the consumers went to their own bank for a home construction loan. Thebank promised them a good loan at a 9.5% rate. That was merely the initial rate. Thepermanent financing was actually a variable rate loan and included a clause that allowedthe bank to demand full payment at their discretion. The court held that when parties toa contract have prior understanding about the contract terms, and the party responsible fordrafting the contract includes contrary terms and then allows the other party to sign it
without informing him of the changes, the drafters conduct is fraudulent. The court inHumphrey dismissed the lenders foreclosure, reformed the contract by deleting thedemand and variable rate clauses, and awarded $1000 actual and $40,000 punitivedamages.
Greene v. Gibraltar Mortgage Investment Corp, 488 F. Supp. 177 (D.D.C. 1980), 839F.2d 680 (D.C. Cir. 1980).
This was another misrepresentation case. The court found the failure to disclose anunconscionably high broker fee and the lenders charging of interest on that fee to be amisrepresentation. The lender also falsely represented the loan amount and claimed to
offer a market interest rate. Accordingly, the court voided the promissory note and deedof trust and permanently enjoined foreclosure proceedings.
Mahaffe v. Investors National Security, 747 P.2d 890 (Nev. 1987).
This case involved a common home improvement fraud. The borrowers were promisedhome insulation which would cut fuel consumption in half, the borrowers home wouldbe used for promotional purposes, and the total cost would be $5300. work was begunbefore the 3 day cooling off period, but never completed; what was done was doneimproperly. The contractors induced the borrowers to sign a completion certificatedespite the incomplete work by threatening them with skyrocketing interest rates and
troubles. The assignee tried to foreclose but the Nevada Supreme Court found thecontract to be null and void because of the fraudulent inducement and failure ofconsideration on the contractors part.
First Charter National Bank v. Ross, 29 Conn. App. 667, 617 A.2d 909 (1992).
Fraud may also be available as a defense when a borrower is tricked by a family memberinto signing mortgage documents. In this case a wife was allowed to assert fraud as aspecial defense to foreclosure action when her husband had given her loan documents tosign with the signature page on top, had discouraged her from looking at the documents,and had told her that the documents had nothing to do with their home. The court ruled
that the defense of fraud was not barred by the general rule that a person has a duty toread what they sign and that notice of the content of signed documents is imputed. Thecourt said the official rule does not apply when there is fraud and only applies if nothingis said to mislead the person signing. It should be noted, however, that some courts haverefused to invalidate a mortgage when the fraud was committed by a party other than the
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 39
8/7/2019 012011Hemric4836 Forensic Audit
40/47
lender and the lender was not involved in or aware of the fraud. Family First Fed. Sav.Bank v. De Vincentis, 284 N.J. Super. 503, 665 A.2d 1119 (1995).
Estoppel
When various and conflicting promises in the loan origination process were made by alender, a court may find that the effect of some of the promises is to estop the lender fromenforcing others. In First State Bank v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408(1984), the court held that a bank was estopped from enforcing a balloon payment clause
in a note and dismissed the foreclosure.
The consumer in Phillips had assumed a mortgage extended by the bank to the personfrom whom the consumer bought the house. The mortgage indicated it would be fullypaid with monthly payments. A separate promissory note provided that after a period ofregular monthly payments, the balance of the note would be due in a single lump-sumballoon payment. The mortgage which the consumer saw did not contain the balloonpayment. When the consumer talked to bank employees about assuming the mortgage,the balloon payment was not disclosed. In dismissing the foreclosure, the court foundthat the nondisclosure of the balloon payment forfeited the banks right to enforce it.
IncompetenceContracts entered into by persons who are deemed incompetent are generally voidable.Krasner v. Berk, 366 Mass. 464, 319 N.E.2d 897 (1974). This basic principle of contractlaw may be used to invalidate mortgage contracts made by persons who are too young toform a valid contract, or who suffer from temporary or permanent mental incapacity atthe time the mortgage was made. A bankruptcy court in Massachusetts, for example, hasallowed a debtor to put on evidence as to whether she was entitled to rescind a note andmortgage based on incompetence. In re Hall, 188 B.R. 476 (Bankr. D. Mass. 1995).
Unconscionability
The common law contract defense of unconscionability may be applied to stop a
foreclosure, when either the mortgage terms are unreasonable favorable to the lender orcertain aspects of the transaction render it unconscionable. In re Maxwell, 281 B.R. 101(Bankr. D. Mass. 2002); Hager v. American Gen. Fin. Inc., 37 F.Supp. 2d 778 (1999).For example, a Connecticut court found a second mortgage contract to be unconscionablebased on the facts that:
The defendant had limited knowledge of English, was uneducated and did notread very well
The defendants financial situation made it apparent she could not reasonablyexpect to repay the mortgage
At the closing, the defendant was not represented by an attorney and was rushedby plaintiffs attorney to sign the loan document
The defendant was not informed until the last minute that, as a condition of credit,she was required to pay one years interest in advance
And there was an absence of meaningful choice on the part of the defendant.In addition, the court found that the contract was substantively unconscionable, because itcontained a large balloon payment that the borrower had no means of paying, and that the
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 40
8/7/2019 012011Hemric4836 Forensic Audit
41/47
borrower had no reasonable opportunity to understand the terms of the contract. FamilyFin. Servc. V. Pencer, 677 A.2d 479, (Conn. Ct. App. 1996); Emigrant Mortg., Co., Inc.,v. DAngostino, 896 A.2d 814 (Conn. App. Ct. 2006).
Invalid Security Instruments
If the mortgage (or the deed of trust) is not a legally enforceable instrument then therecan be no valid foreclosure. In re Hudson, 642 S.E. 2d 485 (N.C. Ct. App. 2007). Adeed or mortgage that is forged is presumptively invalid. Ex Parte Floyd, 796 So. 2d 303
(Ala. 2001). As a result, forgery of a mortgage is generally an absolute defense toforeclosure. Similarly, where a deed has been forged and the new title holder thenencumbers the property, courts have held both the deed and the mortgages are null.Flagstar v. Gibbons, 367 Ark. 225 (2006).
The validity of security instruments in some community property states may require bothspouses to execute instruments encumbering a homestead. For example, underWisconsin law, a court found that a mortgage on a married couples homestead that wasnot signed by both spouses was void as to both spouses, regardless of their respectiveownership interests. In re Larson, 346 B.R. 486 (Bankr. E.D. Wis. 2006).
The failure to follow the formal requisites in acknowledging deeds and mortgages mayalso result in a void instrument. Many deed and mortgage fraud cases involve situationsin which the person whom the notary certified as having appeared did not, in fact, appear.In re Fisher, 320 B.R. 52 (E.D. Pa. 2005). In fraudulent mortgage cases, borrowers areoften instructed to sign a stack of documents that are then taken elsewhere fornotarization. Goldone Credit Corp. v. Hardy, 503 So. 2d 1227 (Ala. Civ. App. 1987).Alternatively, improper notarization may result from the taking of an actualacknowledgment from an imposter, incompetent person, or over the telephone.Regardless, of the reason for the defective acknowledgment, practitioners shouldinvestigate whether such defects may render the instrument invalid.
Breach of Fiduciary Duty - Reid v. Key Bank, 821 F.2d 9, 18 (1st Cir. 1987).Traditionally, a credit transaction has been considered an arms length transaction inwhich there has been no special duty read into the creditor-debtor relationship. Mostcourts, however, have held that the presence of certain factors in the creditor-debtorrelationship may give rise to a fiduciary duty.
Borrower can allege a cause of action for breach of fiduciary duty, if they can prove thatthey relied upon the lender's superior position and skills and placed their trust andconfidence in the lender to act in a fair and reasonable manner for their best interests. Forthis to be a valid cause of action borrower must also show that they had a confidentialrelationship with the lender.
The essential element of a confidential relationship is there be actual placing of trust orconfidence in fact, by one party in another and a great disparity of position and influencebetween the parties to the relation. Such a duty of confidence arguably can arise if alender acts in the role of advisor and knows or should have known the borrower tested
This document is Copyrighted property. Unauthorized use is not allowed. 2008-2011 Page 41
8/7/2019 012011Hemric4836 Forensic Audit
42/47
8/7/2019 012011Hemric4836 Forensic Audit
43/47
occurs. A number of states have also enacted laws designed to protect against abuse inreverse mortgages. These protections include:
Limits on Liability limitation of the burrowers or the estates liability to thelesser of the proceeds of the sale of the home or the amount of the debt, aswell as prohibition of prepayment penalties. Mont. Code Ann. 90-6-506(5);N.C. Gen. Stat. 53-257(6).
Disclosure Requirements Full disclosure of costs, fees, and terms of reversemortgages is required. Colo. Rev. Stat. 11-38-109; 205 Ill. Comp. Stat. 5.
Protection from Default Homeowners are protected from being consideredin default for temporary absences from the home, such as a temporary stay ina nursing home. 205 Ill. Comp. Stat. 5; Mont. Code Ann. 11-38-107(2).
Minimum Time Requirements Between Loan Maturity and Default After theloan matures, as a result of either the death of the borrower or the borrowersdefault of an obligation under the contract, a reasonable time must be allowedfor the borrower or the estate to arrange for repayment. N.C. Gen. Stat. 53-268.
Required Counseling Counseling by a third party is a precondition to receiptof a reverse mortgage under many reverse mortgage programs and some statelaws. Minn. Stat. 47.58(8); Mont. Code Ann. 90-5-503; N.C. Gen. Stat. 53-270(6).
Exploitation by Family Members
Exploitation by family members can take many forms. For example, an elder parenttrying to help younger son make a down payment on a new home, mortgages her home tolend the money to the son, which the son never repays and the mother is not able to pay,forcing a foreclosure. A child convinces elder parent to give the child ownership of thehome, the child then mortgages the property to pay their own debts and defaults on themortgage on the parents property. An elder parent cosigns a loan for a child with badcred