BofA Gets Nailed with a $45 Million Penalty……Wow!

After years of trying to help home owners it was nice to see that finally the borrower was vindicated in the modification requests. Following is an accounting of Bank of America recent attempt with the modification process.

By Jenny Park | Geraci Law Firm

A California bankruptcy judge handed down a $45 million penalty against Bank of America Corp. (“BofA” or “Bank of America”), decrying the manner in which the bank treated a California couple who attempted to save their property from foreclosure.

Judge Christopher Klein, a federal bankruptcy judge for the United States bankruptcy court, Eastern District, stated the financial institution’s mortgage modification protocol and errant foreclosure on Erik and Renee Sundquist’s home rendered them emotionally distressed. The case sheds light on how the mortgage industry’s inadequate loan servicing transactions negatively affect some borrowers. Judge Klein referenced internal procedural failures, claiming that Bank of America had scant incentive to change the loan terms in such a way that would preclude the 6% interest rate the bank was collecting from the Sundquists’ loan.

The couple’s problems started in 2008 when the couple’s construction firm went out of business because of the economic collapse, and they purchased a less expensive house outside of Sacramento. They borrowed approximately $590,000 from a financial firm, later acquired by Bank of America, with promises from a loan officer that they could request a reduction in their monthly payments.

The couple ceased making payments in March 2009 following Bank of America’s refusal to consider modifying loan terms for customers who were current on their payment schedules. According to the court’s ruling, the Sundquists’ “sole reason for defaulting was acquiescence in Bank of America’s demand that they default as a precondition for loan modification discussions with Bank of America.” Over the course of the next few years, the plaintiffs submitted around twenty separate requests to modify their loan terms, which Bank of America either lost, deemed inadequate, or denied without explanation all the while repeatedly scheduling foreclosures.

The Sundquists filed for bankruptcy in June 2010. Doing so precluded a foreclosure sale on their property because of the automatic stay, but Judge Klein’s ruling claimed the bank, while knowing of the bankruptcy, unjustly reclaimed the home and issued the couple a three-day eviction deadline. According to the ruling, Bank of America even “staked out the premises, tailed the Sundquists, knocked on doors, knocked on windows, and rang doorbells, all to the terror of the Sundquist family.” Eventually, the couple vacated the property, and Ms. Sundquist subsequently suffered stress-related heart attack symptoms that required hospitalization.

Bank of America representatives eventually reversed the sale and transferred title back into the Sundquists’ name without notifying the Sundquists or their attorney of the change. The couple eventually moved back in after several months only to discover that they were charged $20,000 during their absence by the homeowner association for neglected landscaping and maintenance.

Judge Klein’s 107-page ruling incorporated entries from Renee Sundquist’s personal journal that highlighted harassing encounters with Bank of America loan officers, and Mr. Sundquist’s suicide attempt following the couple’s frustrated discussion regarding their mortgage issues. Judge Klein awarded the Sundquists nearly $1.1 million, verified the remaining amount they owe on their loan, and fined Bank of America $45 million.

The $45 million penalty, which will be dispersed via grants to law schools and consumer advocacy groups, is intended to be substantial enough that it will deter future misconduct on behalf of Bank of America. Rick Simon, a spokesperson for Bank of America, claimed the Sundquists’ issues originated before the implementation of the new loan procedures and criticized Judge Klien’s ruling for being unsubstantiated and breaking established precedent. Mr. Simon refused to comment when asked if Bank of America will seek an appeal.

However, in April, Bank of America filed papers requesting Judge Klein to reconsider his $45 million fine calling the amount “unprecedented in its magnitude.” In court papers, bank officials asked Judge Klein to amend his 107-page ruling against the bank, arguing that his “excessive” fine amount violates guidance from Supreme Court justices in 2008 meant to prevent outsized awards. The fine stands as the largest punitive damages award for violations of bankruptcy law’s automatic stay rules.

Dennis Notes:

When we were doing loan modifications, “losing paper” was a common problem when we worked with borrowers. It was an persistent and constant problem. But, I would say in BofA favor, it probably was not a deliberate attempt to stop the modification, when you look back at the tremendous volume of paper work that was required for a modification, and the number of people requesting modifications it was easy to get the documents lost. We developed specific procedures to submit the application and eventually solved the paper work problem. Another problem with paper work, was it became out of date after 30 days and had to be resubmitted (that’s the story they told us). In the beginning BofA underestimated the amount of staff that was required for modifications, and the long process of modifications.

The second point, of BofA following the customer, as motioned above, is hard to understand. I’ve never encountered this situation directly from any bank/servicer. During this time there was an army of fix/flippers that wanted to purchase homes, and this is probably the people who were knocking on the windows and doors and following the borrowers. I did have one situation, where the servicer went in and physically took control of the properly by changing the locks and posting on the door. When we objected to this practice, the servicer referred us to the Promissory Note, which stated that the borrower gave the authority to do so. Which they borrower did.

The good part of all of this is that this horrible situation is over. At one time I counted over 1,000+ homes being sold at the court room steps in ONE DAY. Fortunately, now this has dropped to just a few per day. I do understand the pressure the borrowers had on them during this process, and personally I have experienced clients losing their savings, ending their life. It’s good that this bad time is behind us and things are improving. I just wish I had all of my teeth that I cracked and ground down dealing with the modification process. Overall during this time we were successful in obtaining about 10% of the modifications. Of those only about 2% still own their homes today.

Happy senior business man making his notes at workDennis Dahlberg Broker/RI/CEO/MLO
Level 4 Funding LLC 
Private Hard Money Lender

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About the Author:  Dennis has been working in the real estate industry in some capacity for the last 40 years. He purchased his first property when he was just 18 years old. He quickly learned about the amazing investment opportunities provided by trust deed investing and hard money loans. His desire to help others make money in real estate investing led him to specialize in alternative funding for real estate investors who may have trouble getting a traditional bank loan. Dennis is passionate about alternative funding sources and sharing his knowledge with others to help make their dreams come true. Dennis has been married to his wonderful wife for 42 years. They have 2 beautiful daughters 5 amazing grandchildren. Dennis has been an Arizona resident for the past 40 years.