One aspect of the entire home foreclosure issue that needs more attention is the deception of the monthly home mortgage payment amount never changing even as the TERMS within the mortgage note were changing WITHOUT THE HOMEOWNER'S EXPRESSED, WRITTEN, CONSENT.
When a home buyer's mortgage note was being batted around like a floating beach ball at a baseball game from one banking entity to another, the monthly mortgage payment amount usually never changed. The act of not changing the monthly mortgage payment amount while changing other aspects of the mortgage agreement without expressed, written consent from the home buyer can be construed as deceptive since it deceived the homeowner into thinking that none of their mortgage terms had changed..
Example: Securitization Investors that gained control over the home buyers ability to apply for HAMP, or HAFA, or perhaps other home mortgage re-fi programs, while the actual monthly mortgage payment amount never changed, can be construed as an act of deception.
If a homeowner's monthly mortgage payment amount never changes, it is FAIR and REASONABLE for that homeowner to assume that there have been no changes in the homeowner's mortgage terms even as the securitized mortgage note changed hands several times.
It seems to me that when a home mortgage is securitized, resold but then actually does change the home buyers ability to refi their home, mortgage fraud has occurred.
If any of the following eight terms below (and there could be more than eight) were altered as a securitized home mortgage dances its way from one mortgage servicer to another, such as....
- the homeowner's ability to refi their home,
- the way penalties and fines were assessed,
- the late payment policy,
- the time it takes for the payment to reach its destination,
- the time it takes for the check to clear,
- the level of customer service to what it was in the past,
- the monthly mortgage amount,
- arrears policy.
.........then in my opinion the home owner has had their property rights abrogated.
If any of those 8 mortgage related responsibilities changed (and there could be more that I missed) at any time during the transfer and retransfer of the securitized mortgage note, it is my opinion the home buyer has a LEGITIMATE cause of action to contest a foreclosure action.
The moment any change in terms occurs to a home mortgage note that the home buyer is unaware of and did not give their expressed written consent to have happen, then that home buyer may have a legitimate cause to contest any action that leads to a foreclosure action.
If a judge is trying to avoid home buyers taking advantage of the foreclosure situation by trying to stay in their home for "free", in my opinion the judge could ask that the terms of the mortgage note revert back to the ORIGINAL status with the original owner of the note.
If the paper trail could be reversed, and everything went back to the way it was, and all penalties and fees were waived, and all credit dings on the credit report of the homeowner were reversed, then the homeowner would get another opportunity to move forward with a HAMP (without parallel foreclosure kicking in) or whatever other re-fi they would want to try, unencumbered by the possibly illegal limits placed on them by the "investor" who allegedly now owns their mortgage note.
While the media pushes the term "foreclosure" as a way to paint the homeowner as the bad guy, I feel this article just adds additional fuel to what Dylan Ratigan of MSNBC calls, Fraudclosure, They say foreclosure, WE SAY, FRAUDCLOSURE.
Edit update Dec. 13, 2010 11:46 am, Paul Jackson of Housing Wire has written a piece redefending securitization. However, I see no mention in Mr. Jackson's article about the sanctity of "change in terms without the expressed written consent of the homeowner".