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TRO - DECLARATION OF BORROWER

IN SUPPORT OF PLAINTIFF’S MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plea to stop Foreclosure and instead Modify or Defer Loan

or

A Temporary Restraining Order might be my only recourse.

Response within 7 days is requested.

[plaintiff][PLAINTIFF]                                                                 Plaintiff,

Vs

defendant][Defendants 1–7]                                                        Defendants

 [action]Case No. __________

DECLARATION OF G---- S------ IN SUPPORT OF PLAINTIFF’S MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I, A---- S------, hereby declare as follows:

1. I am the plaintiff in this case. I have personal knowledge of the facts set forth in this Declaration. Since this all started in April 2020, I have provided every document and complied with every request from defendants.

2. I own the house located at 123 T------- Drive, San Rafael, California., which I bought in 1995. This is my home, and the only house I own. I am attempting to save my home, which I am at risk of losing to foreclosure because of the failure of Defendants to modify the loan, after a process where defendants violated California Homeowner’s Bill of Rights, Civil Code.

3. CA Civil Code 2923.6 (f) (California Homeowner’s Bill of Rights):-

Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following:

1. The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial.
2. If the denial was based on investor disallowance, the specific reasons for the investor disallowance.
    

4. 2923.6 says if investor disallowance is enacted, then specific reasons for the investor disallowance must be given. Then surely the law demands that valid reasons must be given too?

Instead the letter of denial(attached), January 27^th 2021, contained:-

•                    MODIFICATION IN GOOD STANDING denied because "account has recently been modified"

•                    and Denied TRIAL MODIFICATION and DEFERRAL  "because you were approved for another loss mitigation option based on investor and/or regulatory rules."

5.  The reason given, in the Jan 27^th letter and by telephone, for denial of MODIFICATION IN GOOD STANDING was because eleven years ago I got a HAMP modification. A HAMP modification 11 years ago is not "recent" and is not a valid reason for denial.

6. The reason given, in the Jan 27^th letter and by telephone, for denial of TRIAL MODIFICATION and DEFERRAL was because I had been offered a REPAYMENT PLAN ( in the same Jan 27^th letter). This is not a valid reason.

Offering one option (REPAYMENT PLAN)  is not a valid reason for not offering other options. ( TRIAL MODIFICATION and DEFERRAL)

The conclusion is that the lender merely by offering a REPAYMENT PLAN option obviates their requirement to offer 2 other options. ( TRIAL MODIFICATION or DEFERRAL).

7. In addition the Jan 27^th letter ( 4^th para) states: “Because we were unable to approve any other home retention options, a Repayment Plan is being offered” which contradicts the actual reason given for denial of the TRIAL MODIFICATION and DEFERRAL

If the actual reason were true then this should read as the inverse “Because a Repayment Plan is being offered we are not offering two other home retention options” !  

8. APPEAL the denials of Modifications and Deferral, February 9th 2021 (attached)

My appeal essentially constitutes a detailed explanation of how a LOAN MODIFICATION might not only make the borrower whole but the lender too ( by my recommendation that all interest, lost by the lender, to date, could be added to my  principal with my blessing). 

The appeal points out that as current interest rates are around 3% perhaps borrower's 4.625% is too high.

I'm 72 years old - for fear of possible death from contracting the virus -  I had to close my small business (of which I was Sole Proprietor).

The COVID loss of my business income of $7,846/yr jeopardized my ability to pay $2,650 monthly going forward. (this business income gave me the ability to pay the mortgage, just, over the last 10 years - along with SocSec + rent income)

All I was asking for, in the APPEAL, was a monthly reduction of $293 going forward. So that after a few years, I will be able to increase the rent of my 88 year-old tenant (who occupies half of my divided home) which would compensate enough for the loss of business income. ( I have never increased rent beyond CPI increase).

It would otherwise be very difficult to pay the REPAYMENT PLAN’s $3,831.09 per month over 2 years and continue on with the current mortgage+escrow of $2,651. It’s simply unaffordable.

9. APPEAL REJECTION, Mar 18 2021, letter from <Servicer>

The conclusion, ( in 6., above), is reinforced when the Mar 18 2021, APPEAL REJECTION(attached) states:

"<Servicer> was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice".

The "enclosed" pages that follow ( attributed to “Assistance Review Decision Notice" ) are simply a copy of the Jan 27th letter which offered the REPAYMENT PLAN .

Here is how the alleged APPEAL REJECTION letter, Mar 18 2021, starts:-

"<Servicer>.... received your inquiry on February 9th 2021.

 In your inquiry you raised questions regarding:

·         Loss Mitigation

 We have completed a full review of your inquiry and the account. Our response is below.

 Loss Mitigation

In your inquiry you requested loss mitigation assistance.

An Assistance Review Application was initiated on January 5, 2021.

We received a complete application and reviewed your account.

<Servicer> reviewed you for all available loss mitigation options. Unfortunately, <Servicer> was unable to grant approval for a modification for the reasons outlined in the enclosed Assistance Review Decision Notice.”

The defendants, using a Jan 27th letter, which offered a REPAYMENT PLAN,  as "Assistance Review Decision Notice" and reason for being  'unable to grant approval' of the Appeal -- is invalid. The defendants cannot use the offer of a REPAYMENT PLAN to completely ignore modification and deferral. All that was asked for in the Appeal (against the sole offer of a REPAYMENT PLAN) was a request for modification.

There is no reference to the Appeal in the March 18th APPEAL REJECTION letter. The only word in the letter that can be attributed to “appeal” is "inquiry".

My Appeal, requesting reconsideration of a MODIFICATION, (instead of REPAYMENT PLAN), was denied with no reference made to what was in the appeal. In fact the appeal itself was never mentioned.

And the Lender is specifically offering – as reason for denying the “inquiry” -- the offer of a REPAYMENT PLAN ! This is invalid. This is the same reason for denying the TRIAL MODIFICATION and DEFERRAL. It is invalid and makes no sense.

10. California Homeowner’s Bill of Rights – spirit of the law

So what is the point of Government Legislation advocating an APPEAL PROCESS when the lender -- not only need not address any part of the Appeal but can in fact ignore that it even exists?

The offer of a REPAYMENT PLAN of $1,200 more than the current monthly payment, over 2 years , is a philosophy that if the borrower cannot pay $x then offer him payments of $x+$y as a solution. ! That is not "helping him stay in his home".

Offering this REPAYMENT PLAN, when I have demonstrated that I cannot afford to pay it, gives the appearance that the Lender knows otherwise. But if that is the case then surely the Lender needs to declare that (with evidence). But the Lender has not done that -- so what can I conclude from that? The Lender appears to be obstructing.

The lender has initially and repeatedly said they want to "help the borrower keep his home" but have done nothing to help the borrower keep his home.

The Lender has ignored California Homeowner’s Bill of Rights (“HBOR”) Civil Code 2923.6,f,1  which prescribes the process for an Appeal of a Modification and Deferral denial.

11. California Homeowner’s Bill of Rights -- the letter of the law

Defendants materially violated California Civil Code 2923.6,f,2 ( see 3., above) and CFR§1024.41(d) – where:

1.    No valid reason was given for denial of MODIFICATION IN GOOD STANDING

2.    no “specific reasons” were given for the “investor disallowance”  (Denial of TRIAL MODIFICATION and DEFERRAL by only offering an option of REPAYMENT PLAN)

3.    the required process of APPEAL was ignored

4.    APPEAL submitted February 9^th 2021 – responded March 18^th . CFR§1024.41(h)(4) states: “Appeal determination. Within 30 days of a borrower making an appeal, the servicer shall provide a notice to the borrower stating the servicer's determination of whether the servicer will offer the borrower a loss mitigation option based upon the appeal ….. “

5.    The REQUEST FOR INFORMATION was ignored.

12. It would be hard, not only on myself but my 88 year-old tenant (of 10 years) to lose our home.

Although the equity in my home exceeds the principle it is imperative for me to live close to a major hospital. There is one 4 miles away. I have had 2 heart attacks and 3 surgeries ( one double bypass and two stent insertions).

13 . I started paying monthly principal and interest, after the March 18^th letter.

14. I went through a process, requested by defendants, to make trial payments of $1,365.38 for 3 months in 2020 October, November, December. I made those payments. But prior to doing that I informed the Servicer that I could not, and had no intention, of paying the subsequent requested Balloon payment.

And although the payments were supposed to be followed by that Balloon Payment of $25,388.16 – when I informed them of the how unaffordable that was -- I was given optimism that it would progress to a MODIFICATION instead of the balloon payment. But I was subsequently disappointed.  More indication of how defendants have done nothing to help the borrower keep his home.

15. On March 29^th I submitted a REQUEST FOR INFORMATION(attached) to the SERVICER covering most of what is in this DECLARATION but in question form. It began with this:

1.    Is a previous HAMP modification 11 years ago grounds for denial of MODIFICATION in good standing ? Is 11 years “recent” ?

2.    What is the REAL reason for denying TRIAL MODIFICATION and DEFERRAL ?

3.    Was the APPEAL really denied because of an offer of REPAYMENT PLAN ?

4.    Why was the APPEAL ignored ( in all appearances) and referred to as “inquiry”?

16. On March 22^nd (24 days later) a Response(attached) to the REQUEST FOR INFORMATION (RFI) was sent. It simply parroted the letter of denial (January 27^th 2021). Repeating the same denials of the MODIFICATIONS and DEFERRAL.

It made no attempt at addressing nor answering the questions in the RFI.

(The Response was in 3 pages and followed by 21 pages of copies of previous letters from Servicer.)

17. April 28^th 2021: A copy of the Temporary Restraining Order was sent to the Servicer and given 7 days to respond. No response has been received.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.

Dated this [Date].

[Plaintiff]

Plaintiff