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loan mod2
We are still doing loan mods for our clients – three alone this week – one in a Chapter 13 bankruptcy and two outside of bankruptcy.  One has the docs to sign, another was presented with options including a principal reduction, and the other should be finished with underwriting and accepted in less than 30 days.

The June 2015 MHA Handbook Ver.4.5, revised on January 6, 2015 to Ver. 5.0, covers some of the procedures to be followed for borrowers who have filed bankruptcy and are seeking a loan mod to keep their home:

8.5 Borrower in Bankruptcy Borrowers who are currently in a TPP and subsequently file for bankruptcy may not be denied a permanent modification on the basis of the bankruptcy filing. The servicer and its counsel must work with the borrower or borrower’s counsel to obtain any court and/or trustee approvals required in accordance with local court rules and procedures. Servicers should extend the TPP as necessary to accommodate delays in obtaining court approvals or receiving a full remittance of the borrower’s trial period payments when they are made to a trustee, but they are not required to extend the trial period beyond two months, resulting in a total five-month trial period. In the event of a trial period extension, the borrower shall make a trial period payment for each month of the trial period including any extension month.

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past due

Bankruptcy is supposed to provide a fresh start.  A reprieve from debt collector letters, calls, statements, threatening legal correspondence etc.  A do over.

Many mortgage servicers have believed they were exempt from this – after all they are merely servicing and protecting a mortgage lien they argue.  They’ve argued that federal laws require they send you all this stuff.  And call you multiple times in one day, every day.  This is not true.  Due to recent federal and state court rulings in Florida, mortgage servicers must stop mailing and calling you when you’ve told them not to, or filed bankruptcy and given up the home.  One local federal case brought in the Tampa Division, Florida, Elissa Diane LaPointe v. Bank of America, N.A., Case No.: 8:15-cv-1402-T-26EAJ (August 26, 2015) even ruled that the disclaimers often found in the small print in footnotes would not be enough to insulate mortgage servicers from liability.  The Court particularly noted the inconspicuous tiny print disclaimers are contradicted by the much more obvious demands for payment or statements of a past due amount.  The Court ruled that the consumer stated a claim under the FCCPA in three respects:  1) the bank’s communications could reasonably be expected to harass the consumer; 2) that they were an attempt to collect a debt that was no longer owed due to the bankruptcy; and 3) the consumers were contacted when they were represented by an attorney.

We’d like to pursue these contacts for what they are:  debt collection violations.  If you’ve ever told a mortgage company to stop calling you, we’d like to know about it.  If you are continuing to receive all kinds of correspondence or statements from mortgage companies after you’ve given up a home in bankruptcy, we’d like to know about it (particularly when those notices contain requests or demands for payment).  Most likely, their continued calls and the sending of statements are unlawful and you are entitled to statutory damages.  We have no fees or costs unless there is a recovery.   Contact Arkovich Law for further information.

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Tax breaks
We’ve had some of Tampa Bay Florida clients ask us what the forgiveness act means to them and if it applies to them and I thought the following summary may help others as well:

This legislation that was just signed into law and good through the end of 2016 now applies to cancellation of debt on the borrower’s  principal residence –

Some brief info from the IRS website:

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christie_d._arkovich_p.a_1_smallWith the Education Department’s new regulation last month on its Revised Pay As You Earn Plan, or REPAYE, all Direct Loan borrowers can access an income-based repayment plan that caps payments at 10 percent of their income, according to Undersecretary Ted Mitchell.

“This is a quilt – that had one piece missing – made up of the various income driven repayment plans,” Mitchell said. “We’ve now stitched that last piece of the quilt in and the quilt now covers all Direct Loan borrowers.”

Five million additional borrowers, including those who weren’t previously eligible because their debts were older, can now enroll starting in December.

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credit rating arrows
Did you ever wonder why certain items appear on your credit report?  The answer lies in a federal statute, 15 U.S.C. 1681c.  A consumer reporting agency may not make a report that includes the following items.  I’ve bolded some of the more pertinent items that affect our Tampa Bay area Florida clients.  Not all creditors report, but when they do, they are supposed to provide an accurate report.  Remember whenever settling debt, there are ways to get the debt removed from your credit.

First if they report, we can ask in the negotiations for a trade line deletion. Then all the late pays and the fact the debt was settled for less than what is owed will not be reported any longer.  Second, if the debt buyer we are trying to settle with does not report, then we can obtain proof of payment/settlement and our client can then dispute the item.  The credit bureaus will return to the original reporting creditor for validation and they will not be able to validate that the debt remains unpaid.  Both options will clear the debt from our client’s credit which can help them qualify for a home or a better interest rate on a car for instance.

“(1) Cases under title 11 or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years.

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fireworks  The year-end spending bill agreed to by House and Senate leaders last night includes a provision that restores tax forgiveness for principal reduction or short sales on mortgages.  The provision is retroactive to the beginning of 2015 and runs through 2016.  Assuming it is signed by President Obama our clients are in the clear once again for this year and for all of 2016!  YAY!

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The Washington Post reported yesterday that the latest congressional budget deal includes a provision to let companies collecting federal student loans (or other debts guaranteed by the government) call cellphones using auto-dialers.

The purpose of the bill is to increase communications in an attempt to keep more student loan borrowers current in their debt.  However, the unintended consequences are likely to be increased harassment about payments not made, robo calls to relatives, references and co-borrowers and reassigned cell phone numbers.  Calls which would no longer be under the protection of the Telephone Consumer Protection Act (“TCPA”).

The proposed amendment is to Section 227(b) of the Communications Act of 1934(47 U.S.C. 227(b), Restrictions on the Use of Telephone Equipment):

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cell phone in hand
The Southern District of Florida just ruled on a Motion to Dismiss on October 13, 2015 in a TCPA case that more is necessary to properly allege a TCPA case.  The Court stated:  the Plaintiff cannot plead, in blanket terms, that she is entitled to statutory damages for each and every violation”, yet not plead the number of calls, when the calls occurred, and/or the content of the calls received.  The Court ruled that blanket non-specific allegations do not place the Defendant on notice as to the claims that are being brought against it.  Case dismissed unless the consumer has more information and can amend their complaint to state some specifics.

Don’t count on relying upon getting records at some later date from your cell phone provider.  Cell phone records from a cell phone provider are sometimes only retained for a few months, often do not record unanswered calls, and lastly are not available unless you can subpoena them (but you first have to survive a motion to dismiss by having specifics of some calls).  So keep a handwritten log.  Take screen shots.  Save voice messages.

While we do not need the date and time of every call, it is clear that we need to allege some dates, some times and the content of the calls whenever possible.  We ask our clients to log date and time of as many calls as possible and make a written record or note of any calls where the request to stop calling the cell phone are made.  We ask our clients to revoke consent multiple times and multiple ways (phone, fax, U.S. mail).

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christie_d._arkovich_p.a_1_smallNew signs of trouble for student loan borrowers

BY SETH FROTMAN

Earlier this year, we asked you to share your stories about student debt stress. More than 30,000 of you responded, telling us that student loan servicers (the companies that send you a bill each month) can make it harder to manage your loans and may contribute to our nation’s growing student loan default problem.

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house and keys
Do you want to buy a house now but your finances aren’t quite there yet?  Underwriting requirements are some of the strictest we’ve ever seen even for those with good credit.  Don’t give up!  We have put together information on a variety of private lenders who will finance a home with scores as little as 600 or 620 and in as little as one day after foreclosure, short sale, deed in lieu and even bankruptcy!

Many of our clients who are past their financial problems of the past few years (short sale, deed in lieu, foreclosure, bankruptcy, debt settlement etc.) are now wanting to get into a house, particularly while prices are rising and interest rates are expected to start going up in late 2015 and almost certainly 2016.  Also tenant demand is very strong and it’s hard to find the right place to rent.  Rents are often higher than a new mortgage payment would be for an affordable house bought at today’s prices.

We have many ways we can help such as:

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1520 W Cleveland St
Tampa, FL 33606
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