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Over the last few years I have been enormously gratified by the support and advice my wife and I have received from the users on this wonderful Blog.

You can read about the fight we have had in these two Diaries.

Well the fight is almost over and we need help. Don't worry, I have no intention of asking anyone for money :)

I'll spell it out below.

Those two previous Diaries show the position as of the last court appearance. The District Judge allowed the bank standing to bring the action, but sent the case to trial on the counter allegation of "unclean hands".

As is common in these many cases, the very idea that Bank of America might have hands that come anywhere close to resembling "clean", is farcical. Even their apparent win on the argument of standing to bring the case is open to appeal. Partly this is because they have still to produce the original Note, or show that any note was transferred legally in Oklahoma.

The problem was that the judge gave us a win on the second part of the action, had she done so on the first part too then there would be no trial as the action brought by the bank would have been dismissed. In Oklahoma, District Court judges are quite loathe to send banks packing and rule for homeowners.

Here is the problem .... We cannot fight this any further in the District Court. We have evidence that the bank committed felonies, in that we have proof that they used a robo-signing outfit to process the paperwork. We could show that they acted in bad faith throughout, that they offered the prospect of a modification but only were we to default, then they failed to come good on the offer but strung us along while they filed foreclosure.

What we cannot do is pay an attorney to gather this evidence, depose witnesses and prepare for a major trial on the facts. Nor do I have the knowledge or ability to manage this pro se ... Would that I had.

In any event, we went into this four years ago wanting nothing more than a modification. We did not seek to wrest the house from the mortgagors, not advantage ourselves in any manner that the bank felt uncomfortable with. All along we followed their directions, and here we are.

So we have to settle this action prior to the next court hearing scheduled for the 4th of February.

What I need before meeting with the attorneys for the bank is some idea of the kind of settlements that people have reached in similar circumstances. What interests rates have been negotiated, which bullshit fees should I hope to have removed from the outstanding balance, and what reduction in the capital amount outstanding has been negotiated by others.

About a year ago we asked our attorney to negotiate such a settlement, which he agreed to do. He didn't do it despite reminders, so now I have to manage this aspect myself. I'm okay with that. This has been ongoing for nearly five years, and I'm tired.

Tired of the bullshit, tired of the lies and quite prepared to be forced out leaving BoA to clear up the mess they created. Because we defaulted, at the bank's suggestion, so long ago, in another 18 months this mortgage will disappear from our credit reports and we would be free and clear.

That is not what we want. This is our home, where we are raising our children and tolerating three cats. We want to stay, but we will only stay on terms that are equitable. The house is not worth anything even close to the outstanding principal, let alone that plus the accrued interest and charges, and we are not coming out of this as the only losers.

If we have to leave, then so be it, but we want to stay if a reasonable deal can be negotiated.

I am simply asking ... What is reasonable?

If you have such an arrangement but are not allowed to say publicly, please use KosMail or ask for my email address.

If you want to tell me that we are "deadbeats", who don't deserve a home any grander than a hole in the road, or maybe a cardboard box, then please don't bother. We have heard it all before.

Thanks guys ... You have come up trumps in the past and offered us a great deal of support.

We will remain eternally grateful regardless of the outcome.


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Comment Preferences

  •  I have no advice... (10+ / 0-)

    but I wish you well.  Hope it comes out ok in the end.


    "Hate speech is a form of vandalism. It defaces the environment, and like a broken window, if left untended, signals to other hoodlums that the coast is clear to do more damage." -- Gregory Rodriguez

    by Naniboujou on Tue Jan 21, 2014 at 05:46:13 PM PST

  •  The Consumer Financial Protection Bureaud (8+ / 0-)

    is in place, is it not? Why not call them and see what they come up with?

    “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

    by Phoebe Loosinhouse on Tue Jan 21, 2014 at 06:09:49 PM PST

  •  Are you represented by an attorney? n/t (4+ / 0-)

    "I swear it to you on my common woman's head, the common woman is as common as a common loaf of bread ... and will rise."

    by Expat Okie on Tue Jan 21, 2014 at 06:18:41 PM PST

    •  Not any more we aren't. (6+ / 0-)

      The attorney we had did a decent job up to about a year ago.

      We thought he was going to figure out an equitable settlement with the attorneys for the bank, but it didn't happen, and when I meet with them I will find out if he even tried.

      Honestly ... we only ever wanted a modification, and we qualified for one. When we originally approached the bank, our mortgage was "never late".

      We still want only what we were originally told we could have, and I can do that without an attorney ... well I could do no worse.

      The bank will deal, or they will not. It's up to them now.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      Who is twigg?

      by twigg on Tue Jan 21, 2014 at 06:25:31 PM PST

      [ Parent ]

      •  You are not a deadbeat. (4+ / 0-)

        I may have some info for you about this BoA modification scam, but I don't have it at home.  I will contact you tomorrow. Have you checked with the law school at the University of Tulsa to see if they can help with legal aid?

        "I swear it to you on my common woman's head, the common woman is as common as a common loaf of bread ... and will rise."

        by Expat Okie on Tue Jan 21, 2014 at 06:49:35 PM PST

        [ Parent ]

        •  The info would be great. (2+ / 0-)
          Recommended by:
          limeyswife, Dragon5616

          I think we are past the legal help at this point.

          I could probably get a continuance, but without a legal team actually proving the "unclean hands" would be very difficult.

          We just want what we always wanted ... to stay here and pay our way. But after so many years of living with the stress of this, either we get a settlement or we rent for 18 months.

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Tue Jan 21, 2014 at 06:56:59 PM PST

          [ Parent ]

      •  yup, you can (0+ / 0-)

        negotiate on your own behalf as well as or better than an attorney.  Unfortunately attorneys working on at an hourly rate on such matters have a conflict of interest as the longer it drags out the more they get paid.

  •  I hope you get some useful answers to your (7+ / 0-)

    questions, twigg. I know you did not deserve to be treated the way you've been treated just because the bank is BIG and you are not. I'm sure they believe they can get away with it because they have gotten away with it so many times. Thanks for standing up to them. A lot of people benefit every time someone does what you've done. On top of that, I hope you win!

    "Portion of the adolescent prisoners in solitary on Rikers Island who have been diagnosed with a mental illness: 7/10." Tell someone.

    by RJDixon74135 on Tue Jan 21, 2014 at 06:21:01 PM PST

  •  did your attorney default? do you have a (4+ / 0-)

    cause of action for inadequate representation? The rules in OK may not be the same as in TX but here, if you paid a lawyer and the lawyer didn't finish the job, you'd be entitled to further work, or a refund, if not both.

    LBJ, Van Cliburn, Ike, Wendy Davis, Lady Bird, Ann Richards, Barbara Jordan, Molly Ivins, Sully Sullenburger, Drew Brees: Texas is NO Bush League!

    by BlackSheep1 on Tue Jan 21, 2014 at 06:24:21 PM PST

  •  Hope you get some great advice here. (3+ / 0-)
    Recommended by:
    twigg, limeyswife, kurt

    Now all I can think of is just make sure you go into your negotiation with a very clear idea of what you want to settle for and have the printed real estate comps to prove it.
    Like poker,there is going to be both luck and skill involved here. I know you have one and I am sending much virtual mojo to augment your luck.

    "George RR Martin is not your bitch" ~~ Neil Gaiman

    by tardis10 on Tue Jan 21, 2014 at 06:38:58 PM PST

    •  The house is a little unusual for the area. (2+ / 0-)
      Recommended by:
      limeyswife, yoduuuh do or do not

      Comps won't help much, although I'll look at them.

      However, I am perfectly happy for any appraisal to be done, and I have a fair idea what the place would sell for as a bank-owned property.

      There is quite a lot about the house that needs repair and renovation, work I would be happy to do but mortgaging it for the full, repaired value would be nuts.

      If they will come down close to its current realistic value, and settle an interest rate around 1 1/2 to 2 1/2 percent, then we can do business.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      Who is twigg?

      by twigg on Tue Jan 21, 2014 at 06:43:34 PM PST

      [ Parent ]

  •  twigg - I wish I had some real advice for you (4+ / 0-)

    regarding what others have negotiated, but I don't have any facts. The only thing I would encourage you to do is to not forget the tax impact of debt forgiveness. I don't know if Congress passed any legislation to mitigate this issue, although I know it was under discussion. Typically any debt forgiveness is treated as income for tax purposes. My guess is that something like waving interest and fees may have a different tax consequence than reducing principle, but you should check with a tax expert. My guess is that even H&R Block could give you the answer.

    Sorry to hear about your travails with BofA, and best of luck in your negotiations. I hope you are able to keep your home.

    "let's talk about that"

    by VClib on Tue Jan 21, 2014 at 06:51:09 PM PST

    •  I'm pretty sure (1+ / 0-)
      Recommended by:

      "debt forgiveness" applies only to debt forgiven that gives the individual a real increase in value ...

      ... that is ... If the house is worth 200 000 and 50k is forgiven, then you have increased your net worth by 50k, and it's taxable.

      That isn't actually the case here. We would get no beneficial interest in having the mortgage amount lowered, because we are underwater.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      Who is twigg?

      by twigg on Tue Jan 21, 2014 at 07:00:15 PM PST

      [ Parent ]

      •  No, effective Jan 1 any debt forgiven (4+ / 0-)

        on recourse loans (which means a mortgage) is taxable. You will get a 1099 for the difference between your indebtedness and the fair market value of the home. There are two things you can do to avoid this tax.
        1) Declare bankruptcy.
        2) Declare insolvency. This is easier to do, but you must truly be insolvent (have liabilities in excess of your assets). There is an IRS form you yourself can fill out and submit with your tax return which will allow you to avoid the debt forgiveness tax.

        See a tax advisor.

        •  I'll have to look at that (1+ / 0-)
          Recommended by:

          It doesn't make much sense, taxing people on an imagined gain that they don't actually have ... On paper we suffer a loss because we lose a property worth far less than the loan.

          Insolvency wouldn't be a problem :)

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Tue Jan 21, 2014 at 07:14:38 PM PST

          [ Parent ]

          •  ps ... (1+ / 0-)
            Recommended by:

            Currently our liabilities vastly outweigh our assets because of the accrued interest on the mortgage.

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Tue Jan 21, 2014 at 07:16:01 PM PST

            [ Parent ]

          •  It's not an imagined gain (4+ / 0-)

            It's a real gain.

            One day you owed $200,000, the next day you owed $150,000.

            That's a real financial gain.

            It doesn't matter how the value of the security fluctuates.

            •  Only if I had any benefit (1+ / 0-)
              Recommended by:

              It's all paper .. profit and loss.

              There is no profit for us whatever the bank offers. We borrowed 100% of the value of the house. If the loan is reduced to 100% of the current value of the house, then we have made zero gain.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Tue Jan 21, 2014 at 07:25:32 PM PST

              [ Parent ]

              •  You are probably wrong about this (2+ / 0-)
                Recommended by:
                twigg, BPARTR

                You need to get some serious tax advice here. You can argue your own theories about this, but BoA will send you a 1099 over the forgiven debt and if you do the wrong thing when you file your taxes you'll be in a world of hurt here, and with .gov instead of your friendly neighborhood BoA.

                (-5.50,-6.67): Left Libertarian
                Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                by Sparhawk on Wed Jan 22, 2014 at 05:20:57 AM PST

                [ Parent ]

          •  When thinking about taxation, you (5+ / 0-)
            Recommended by:
            limeyswife, twigg, northsylvania, kurt, BPARTR

            must put aside logic. Logically, there should be no tax in these circumstances. But the law says there is. This is a fact (which is why the debt foregiveness act has been rolled for several years -it was important). But it expired on Dec 31.

            •  I'll do the math. (1+ / 0-)
              Recommended by:

              The actual amounts here are quite low, so maybe we could still do it.

              Insolvency might be worth looking into though.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Tue Jan 21, 2014 at 08:10:26 PM PST

              [ Parent ]

            •  How about this ... (0+ / 0-)

              We do not ask for debt to be forgiven, unless and until Congress re-ups the exemption.

              In the meantime, we ask for part of our current loan to be charged at 1/8th of 1%, with the balance at 2.5%.

              That way, nothing has been forgiven .... and we could make that part "interest only" with no term limit, or for 50 years.

              I'll be 104 by then :)

              Just thinking out loud.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Tue Jan 21, 2014 at 09:06:40 PM PST

              [ Parent ]

          •  Went through something similar with Citi (4+ / 0-)
            Recommended by:
            twigg, northsylvania, kurt, BPARTR

            Ultimately (a week ago!) we managed to close a short sale just ahead of foreclosure proceedings, thanks to our very awesome RE agent, so the situations might not be strictly comparable. However in the course of trying to figure out what to do, we spoke with an accountant who said the tax consequences of forgiven debt could be spread out over a number of years, lessening the hit. Aside from that I have nothing to offer, except sympathy.
            We went through about a year and a half of Kafkaesque torture by Citi, telling us we needed to submit documents we'd already submitted MULTIPLE times, assuring us we'd been approved pending some final document (which we'd already provided multiple times), which we'd re-submit only to be told other documents had in the interim expired, meaning we had to re-submit -- over and over and over for more than a year. The conflicting/threatening paperwork arriving in the mail several times a week, the daily calls at home and at work, the two modification agents we'd been assigned leaving mid-process, meaning we had to start over...argh. It very blatantly was an attempt to wear us down so that foreclosure could proceed. I'd intended to write a detailed letter of complaint to the appropriate regulatory agency when it was all over, but after being tortured by the bureaucracy, the dishonesty, the gaslighting, or possibly just the enormous incompetence -- I'm just exhausted. I'm killing a bottle of Kammer Obstler and trying to put it behind me.
            This "modification" process is a giant crock, an illusion. If (whatever) bank thinks it's in their interest to string you along, that's what they'll do. It was quite an eye-opener to talk to actual human beings who were lying with every word they spoke. I'm not quite ready to bury my money in the back yard, but I'll for sure never deal with Citi again. (Or Wells Fargo, but that's another rant.)

            Now now...perfectly symmetrical violence never solved anything.

            by aunttora on Tue Jan 21, 2014 at 08:58:04 PM PST

            [ Parent ]

          •  there are lots of instances when this happens (0+ / 0-)


            doesn't make much sense, taxing people on an imagined gain that they don't actually have ...
            It is often called Phantom gain, and it still results in a taxable event.  There are many cases where you can get your own money back and be taxed as a gain, or where money going to principle reduction is taxable as income, and you have to find the money elsewhere to pay the tax.

            On the bright side, it sounds as though you have saved the money you otherwise would have paid in interest for a period of severalyears.  The savings may well exceed your original downpayment, and compared to if you had been renting the whole time you may actuallybe ahead,even if you lose the house..
            Personal bankruptcy may be your best option.

            As my father used to say,"We have the best government money can buy."

            by BPARTR on Wed Jan 22, 2014 at 08:13:27 AM PST

            [ Parent ]

        •  Looking again at that ... (1+ / 0-)
          Recommended by:

          The difference between our indebtedness and the fair market value would be zero.

          We are not looking to profit here, merely reduce the mortgage to 100% of the fair market value.

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Tue Jan 21, 2014 at 07:31:26 PM PST

          [ Parent ]

        •  doc 2 is correct (0+ / 0-)

          From 2007 to 2013, home mortgge debt relief was forgiven.  NO longer.  Still, the relief only results in a 1099 if the debt was recourse.  First home mortgages (depending on the state) are usually non-recourse.  What the banks usually don't tell you is that a re-finance turns a home acquisition, non-recourse loan into a recourse loan.  In a recouse loan, loan forgiveness constitutes income to the borrower.

          You need competent tax advice.  As someone posted below, do not expect logic to be any help when dealing with the IRS.

          As my father used to say,"We have the best government money can buy."

          by BPARTR on Wed Jan 22, 2014 at 08:07:12 AM PST

          [ Parent ]

      •  No, because you obligated (4+ / 0-)

        yourself for a debt, which unfortunately is only loosely tied to the current value of you home.

        In some states you can surrender the property for the full value of the loan.  In some other states, you would be on the hook for the difference.

        But technically, you agreed to borrow the money to buy the property.  That was the deal you made.

        It doesn't matter what the property is worth now.

        If I had lent you the money to buy the place, I would not be concerned about how much you could sell it for today.

        You knew what the mortgage payment would be.  

        Your debt forgiveness is a real increase in value.  Not tied to the value of your property.  You owed x amount one day.  You were given XX amount off that amount the next.  That is a gift.  You owe taxes on that.

        •  That is utter bollocks ... pardon :) (2+ / 0-)
          Recommended by:
          limeyswife, yoduuuh do or do not

          I'm not disagreeing with you, simply pointing out that there is no gain that gives me either money, or an increased value of an asset.

          How that translates to income is a bit beyond me.

          What is the government saying? Not only do you get foreclosed on, because you are poor, but here is a fucking great tax bill to go with it?

          Would you like fries with that?

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Tue Jan 21, 2014 at 07:22:05 PM PST

          [ Parent ]

          •  twigg - I know enough about tax law to know that (3+ / 0-)
            Recommended by:
            twigg, limeyswife, kurt

            it's common for it to have no logic. Tax law is all code specific. There may be some phantom income to you and waiving fees may be different than reducing principle. I would encourage you to seek a tax professional so that you know what the tax impact will be if a deal is struck, or if you walk away.

            "let's talk about that"

            by VClib on Tue Jan 21, 2014 at 07:36:40 PM PST

            [ Parent ]

            •  We'll do that (1+ / 0-)
              Recommended by:

              because it could break a deal.

              Here is what I understand, and makes sense ...

              If we bought for 250k, on a 100% loan and that loan was reduced to 200k but the house value remained the same, then I see the profit and understand the tax.

              However, if the house is now worth 200k, what the tax man is saying is that we have an additional 50k income that simply doesn't exist ... so there must be a balancing loss that we have to correct the funny math.

              Nothing else works ... If it gets that complicated we will look to our options, but if we don't have the money, and lose the house, the IRS can't get it ... because it doesn't exist and it never did.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Tue Jan 21, 2014 at 07:41:59 PM PST

              [ Parent ]

          •  Re (2+ / 0-)
            Recommended by:
            twigg, nextstep
            What is the government saying? Not only do you get foreclosed on, because you are poor, but here is a fucking great tax bill to go with it?
            Middle class and even some upper income people take it on the chin as well from these consequences and in some cases even more than lower income people, because they tend to have assets that can be seized either in BK or forcibly by either the IRS or mortgage holder civil lawsuits.

            Low income people tend not to have a lot of assets so they "merely" declare BK. But when you lose $60k in other savings from a housing deal gone bad, that is extremely painful.

            This situation is even more reason why IRAs and 401ks are very important and should be contributed to. People with IRAs should avoid borrowing or taking money from them, especially to save an underwater house. IRA money is completely immune to BK.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Wed Jan 22, 2014 at 05:40:20 AM PST

            [ Parent ]

  •  Check with your local Bar Association (6+ / 0-)

    about finding a pro bono attorney.

    Dunno why your previous attorney quit, but you need an attorney with you at the next encounter with the bank's lawyers or they will eat you for lunch.

    Seriously.  You must have a lawyer.

    "Everybody wants to go to Heaven but nobody wants to die" --- Albert King

    by HarpboyAK on Tue Jan 21, 2014 at 07:18:08 PM PST

    •  The banks lawyers will make a deal (2+ / 0-)
      Recommended by:
      yoduuuh do or do not, limeyswife

      or they will not.

      If the terms offered are terms we feel that we cannot meet, then we will allow the foreclosure.

      It's a simple enough position.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      Who is twigg?

      by twigg on Tue Jan 21, 2014 at 07:23:20 PM PST

      [ Parent ]

      •  I have just been through something similar in (5+ / 0-)
        Recommended by:
        twigg, limeyswife, northsylvania, kurt, maggid

        Texas without a lawyer.  My deceased husband was a lawyer and I worked in his office on and off for 18 years.  I also did first year law twice--1968 and 1982.

        The other side hired a notorious lawyer known for arguing all day over every figure to run up legal bills.  Knowing this, I went in pro per to see what they had and saved all the money for appeal.

        I was surprised to find out the judge was not a lawyer and did not need to be one.  I had pages of evidence and they had none.  Mine was all ruled inadmissible.  In the papers for appeal, they added evidence.  I am still mulling all this.

        But the one thing I know for sure, is that without a lawyer they will rule against you no matter what or offer you a very bad deal.

        This is because in these rural areas for a lawyer to loose against the uneducated for any reason and in any way would end his career and they will not do that to one another.

        You either need a lawyer for a day to negotiate for you and you need to type up simple instructions and figures listed in order of at least three ways you will accept.

        If you do not do this, you will loose all away around,  I am still mulling my choices on this and maybe will write about it.  I may need a change of venue but I have been granted a total new trial which I have already paid the fees for and t he jury fees.

        I tell you this because I always read you and I like you and I hate to see any more bad things happen to you.  If you cannot do the lawyer thing take you time with the  choices remaining.  They will kick you out because you are just a statistic to them and they hope your screwing will prevent others from fighting them.

        •  Thank you. (2+ / 0-)
          Recommended by:
          yoduuuh do or do not, limeyswife

          Honestly we are torn.

          I am happy to meet with the attorneys in the first instance, because at this point we really have nothing much to lose.

          As far as they are concerned we either deal, or I hire a lawyer who will attend the feb 4th hearing to get a continuance long enough for him/er to prepare a response.

          I will say nothing that will indicate that we are going any other way that deal, or trial.

          We would prefer to deal, the bank would prefer to deal ... let's see if the terms work for both sides.

          These comments are great, they are reminding me that I am a fighter :)

          I have a very clear idea just how far we can go in negotiations. We won't be steam-rollered and if we lose the house, then so be it.

          The stress of this situation has been awful, I wouldn't miss it if it went away!

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Tue Jan 21, 2014 at 07:52:24 PM PST

          [ Parent ]

  •  General negotiation advice: (6+ / 0-)
    Recommended by:
    twigg, limeyswife, tardis10, kurt, arlene, Sparhawk

    Successful negotiation (i.e. getting what you want) depends largely on two things: 1) leverage; 2) a solid "plan B".  These two things often dovetail together--if you have a good plan B, your leverage is likely stronger (actually, your adversary's leverage is much weaker).  

    It's good negotiating strategy to try to find out as much as you can about your adversary's position and try to evaluate their leverage and their plan B.  In this case, it seems the plan B for both of you is the same--proceeding to trial.  You indicate that this is something you wish to avoid; but you should also consider how BOA views this plan B.  Avoiding trial may be something that they are quite keen on also.  As a strategy, you should not make it known that you are averse to trial--the strength of your plan B is very often dependent upon your adversary's image of how strong it is.  If you portray a strong desire to "get your case in front of a jury (or judge)" and "allow the truth to come out", etc., then BOA may perceive your plan B to be much better than theirs and maximize your leverage while minimizing theirs.  They will probably be counting on the fact that their army of high-priced lawyers give them stronger leverage.  By appearing to be a wild card without fear of the courtroom, you can negate some of that.

    You need to seriously evaluate what you want, what are the issues that are not negotiable for you, where you are flexible and what is of little importance to you and go into the negotiation prepared with that information.  You should also try to evaluate where BOA stands on certain issues and rank them in order of priority so you don't accidentally give away something that turns out to be a major point for them during the negotiation.  One thing I will tell you is that any settlement agreement you negotiate will necessarily include a confidentiality clause.  DO NOT AGREE TO THAT TERM WITHOUT GETTING SOMETHING LARGE IN RETURN.  I promise you that confidentiality is a MAJOR issue for them in any settlement agreement.  One of the only reasons they will settle with you is to avoid the potential negative press that comes with widespread exposure of some of the actions they've taken.

    •  Thank you ... That is pretty much (1+ / 0-)
      Recommended by:

      how we have decided to approach it.

      The reason I asked the community was so as not to ask for something the bank can't give. I want our request to fall withing their common practise.

      Much as I dislike confidentiality clauses, we had actually planned on offering that as part of our side of the bargain.

      We know the bank would rather settle than go to trial. If they lost this one it would have enormous state-wide implications for them.

      We don't want the earth, we just want to stay here. That is all we ever wanted.

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      Who is twigg?

      by twigg on Tue Jan 21, 2014 at 07:46:16 PM PST

      [ Parent ]

    •  This is good advice. (4+ / 0-)
      Recommended by:
      twigg, limeyswife, ybruti, kurt

      I will add that I beat B of A with threats of taking my story to the press.  I played it so they knew I was serious and that I had all the paperwork in order to make it a big story with a sympathy inducing victim.

      They even reimbursed me for the time spent fighting them at my hourly rate.

      I want to live in a world where George Zimmerman offered Trayvon Martin a ride home to get him out of the rain that night. -Bishop G. Brewer

      by the dogs sockpuppet on Tue Jan 21, 2014 at 07:46:48 PM PST

      [ Parent ]

    •  Excellent advice and PLEASE get a lawyer!! (5+ / 0-)
      Recommended by:
      twigg, kurt, Sparhawk, blue91, worldlotus

      Without a lawyer and the very clear implication that you are willing to go to court, you will likely get nothing in negotiation.  I also live in Oklahoma and know a very good real estate attorney.  PM me if interested.

      Get a lawyer for God's sake.  I don't care if your last one was a dud.  Excuse them, and look to recover fees from them once this is over.  Without a lawyer there is no negotiation, because you will be signaling to them that you do not intend to take this to trial.

      Stop trying to figure out what is reasonable.
      When it comes to money and law reasonable does not matter, only the relative strength of each party's legal position, i.e. what would the judge rule if this came to court.

      If you've got them dead to rights then nail them for everything you can in settlement.  Save your reasonable for family and navigating traffic, not sharks.

  •  Get the consumer division of a TV station (3+ / 0-)
    Recommended by:
    twigg, limeyswife, tardis10

    interested in the story.  Sometimes when you turn the rock over, and the evil comes into the light, they want to settle just to make it go away.

    If love could have saved you, you would have lived forever. &

    by weck on Tue Jan 21, 2014 at 07:47:18 PM PST

  •  poking my head in just to say... (3+ / 0-)
    Recommended by:
    twigg, northsylvania, kurt

    (Mrs. twigg, here) much I appreciate this place :) You all are an amazing group. I usually just hang out in the cheap seats, occasionally popping my head in to update on twigg's progress in the latest motorcycle rally or to weigh in whenever I have a couple of coins to toss (which is seldom).

    I do know, however, that aside from being a wealth of information on just about anything, you all have been a major support for my dear hubby, filling that bit as only you can :)

    There are honestly no words to describe what this fight has been like for us. I won't even begin to attempt an explanation, I'm sure you all have sufficient imaginations ;)

    It's a helpless state, seeing and feeling the very defeat that you, yourself suffer with, in your partner... unable to offer much of anything of the positive persuasion. Thank you for picking up the pieces and being 'there' for him when I couldn't or simply didn't know how. I do, however, think there should be an award for The Couple Who Commiserates Best Together!!

    What a roller-coaster! I love a good loop-dee-loo as much as the next guy... but this is one ride that I can't wait to get off!!!

    All that to say, "Thank You!"
    -Mrs. twigg    :: back to lurkdom ::

    "Shit got real when you started that!" ~ twigg
    July 27, 2013

    by limeyswife on Tue Jan 21, 2014 at 08:22:28 PM PST

  •  Crunch some numbers (4+ / 0-)
    Recommended by:
    twigg, Sparhawk, BPARTR, worldlotus

    Investigate these ideas. I am not 100% sure this is how it works, but I believe a spreadsheet will help your decision process:

    If you haven't made a payment in 40 months, at say $900/mo value as a comparable rental you might be otherwise living in, you have saved $36,000. If you owe $250k on the principal, plus fees and interest totaling $50k, you owe them $300k unless something changes. If the house is worth $200k on the market today, you have saved $86K as far as you are concerned, but assuming the bank buys the foreclosed property at county auction for $200K (I think that's how it goes), you'll get a phantom income tax bill for $100,000 - at which point you'll owe between $30-40K. (My guess, ask a tax accountant to be sure.)

    So at that point you are kind of coming out even. If you have to set up an installment plan, the IRS interest rates are relatively cheap compared to many other sources.

    If you are lucky, Congress will extend the mortgage forgiveness act again (it ended 12/31/14), and then the phantom income tax will be forgiven. There are still some 1.2 million foreclosures out there, so they still have reason to extend it. But then, Republicans.

    If for some crazy reason you can settle for below market, say $170K, and all fees and interest charges are waived, the 1099 tax bill = $80k or I'm guessing $24-32 K you'll owe. If you sold it right away at $200K (with no pre-pay penalties as part of your deal), after RE costs, you'd pocket around $18K... but still owe the taxman some $25K. In this scenario, you are $7k shy of paying your tax bill, but you got to live in the house for 45 months or so, at a value of about $40k, so you are still coming out ahead.

    You should be able to find a real estate agent or tax person or lawyer who has dealt with this and can help you craft a better understanding than my guesswork here.

    But it does seem like you'll need a strategy with a spreadsheet-driven sense of all of your costs and benefits. Assume Congress won't make the extension.

    If you push for a trial, will that buy you time? Can you be aggressive, go to trial, knowing you'll settle again if they give you a decent deal? If you go to trial and lose, do you simply lose the house, or will they slap you with court costs, etc?

    Ideally Congress will pass the extension. If they do, walking away is the simplest answer. Then you can feel satisfied that you got a chunk of living without monthly payments in exchange for the pain and suffering they put you through.

    I say, talk to a tax person and then bring a lawyer and a plan to your settlement negotiation.

    BTW, on any deal where you keep the house and they service the loan, I would expect they will want you to pay something like 6% or more. Maybe you can get them to 4.5% or so, but your lower number seems unlikely.

    Good luck.

    •  excellent analysis (1+ / 0-)
      Recommended by:

      For some reason, most people do not include the money they have saved compared to renting over the same period,.  In the case of a 100% loan, the owner had no skin int eh game to begin with.  That said, there is a lot of blame to share, since the banks knowingly loaned 100% on the assumption that values could never go down and that they wouldn't actually own the laon by the time that anything bad happened.

      As my father used to say,"We have the best government money can buy."

      by BPARTR on Wed Jan 22, 2014 at 08:22:12 AM PST

      [ Parent ]

  •  Ideally, a clean credit report would be a plus (2+ / 0-)
    Recommended by:
    twigg, worldlotus

    but very difficult to come by after a long default, regardless of the explanation. There may be things you can do in the settlement process that will help.

    I assume that any settlement would have to be signed off by the judge at this stage -- it should be, and should be entered into the court record. (The bank will undoubtedly demand confidentiality, which is a really bad idea.) That means you could put the settlement document into your credit file to explain the default.

    And that means that the settlement document should, at the very least, have a one-paragraph summary of your claims, even if the other side doesn't agree to have them in as "facts." Sometimes settlements have a list of the facts that the parties agree to, and then another list of their positions on contested issues. You don't want this to run on for pages and pages, so pick the key ones.

    For your purposes, I wouldn't keep saying robo-signing is a felony (I don't know whether it is, & may depend on state law) -- what matters is that (if proven) it likely invalidates the documents, as a matter of real estate law. Keep your focus on that, rather than accusing people of criminal behavior. In framing your proposed statement of facts that the parties might agree on, try something like "__, who signed the ____ on behalf of BoA, in fact had not reviewed the file and did not have actual knowledge of the facts attested to, notwithstanding any recitations accompanying his/her signature."

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