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Lawsuits Highlight Troubles With Government's Loan-Modification Program

A recent decision to consolidate several class-action suits accusing Bank of America of unfairly denying mortgage modifications could cover over 100,000 homeowners and raise more questions about the government’s loan mod program.

A crop of federal lawsuits are moving forward alleging Bank of America was unfair to homeowners who sought assistance through the government’s main loan modification program.

In a little-noticed decision earlier this month, a federal judicial panel rolledtogetherseveralclass-actionlawsuits (PDF) from U.S. district courts across the country and assigned them to a federal judge in Massachusetts, who will decide whether to dismiss the suits, or allow them to proceed.

The decisions she makes could affect more than 100,000 homeowners, and further highlights questions about the performance of the government’s Making Home Affordable program, also called HAMP.

Under the program, banks and other companies that service mortgages are paid by the government for each loan they modify. Homeowners are generally placed in trial periods meant to last three months — but which often dragonmuchlonger. During the trial period, homeowners pay the reduced amount they would be paying with a permanent modification. The trial is a chance for homeowners, many of whom are suffering serious financial hardship, to show they can afford to keep their homes under modified terms.

Plaintiffs in the class were in trial mortgage modifications for Bank of America, and then subsequently denied permanent modifications by BofA. The homeowners argue that the trial agreement was a binding contract stating that if they fulfilled their obligations during the trial they were guaranteed a permanent modification.

The plaintiffs “thought they had saved their homes by qualifying for temporary loan modifications, then the rug was pulled out from under them,” said Stuart Rossman, director of litigation at the National Consumer Law Center, who is representing a group of Massachusetts homeowners. “Homeowners fulfilled their part of the deal, but the bank didn’t do their part.”

If the homeowners’ lawsuits are successful, Rossman said, they are asking only that they be granted the permanent modifications they sought in the first place.

In motions to dismiss filed in several of the cases, however, Bank of America argues that a homeowner’s “Trial Period Plan” is not a binding agreement “because it fails to specify the key terms of the permanent modification.”

Therefore, BofA’s motion continues, it is “nothing more than an agreement to agree at some future date.”

More broadly, the bank argues that individuals are not allowed to sue under Making Home Affordable.

Bank of America spokeswoman Shirley Norton told us that BofA supported the consolidation of cases — since it streamlines the litigation — and said the bank “intends to continue to defend against them aggressively.”

If the cases are not dismissed, it could impact a significant number of homeowners since Bank of America and its subsidiaries have kicked about 160,000 homeowners out of trial modifications so far. Similar litigation is under way against other large mortgage servicers.

They could also serve as a bellwether for many cases in state courts that are not included in this federal class action.

But simply having been through a canceled trial modification is not enough to qualify for the class action. The same panel of judges chose not to include several individual suits against Bank of America because they involved details particular to each case. One man, for example, had his trial canceled because he had sent in payments that were $70 too low, a detail that is not shared by other plaintiffs.

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