Homeowner Disputes Foreclosure, Cites Institutional Incompetence


Banking Expert WitnessThe plaintiff in this case is the owner of the property located in Montana where the plaintiff has lived with her family for many years. The defendant seeks to foreclose on the property allegedly without legitimate basis. It is alleged that the default that triggered the notice of the trustee’s sale and the sale date came as the result of defendant’s intentional misconduct or institutional incompetence. The plaintiff claims that she has paid her mortgage in full, and has submitted all the paperwork requested by defendant throughout the course of the loan repayment period. Plaintiff paid her mortgage in full every month until, for reasons that remain unexplained, the defendant refused to accept plaintiff’s payments. It is this refusal to accept plaintiff’s payments which placed plaintiff in the alleged default. The plaintiff and her family now face the prospect of losing their home to foreclosure.

Question(s) For Expert Witness

  • 1. Please explain your qualifications to review this case.
  • 2. Are you familiar with the protocols major banks have in place to ensure transparency and proper documentation of all transactions with customers? Please explain

Expert Witness Response E-013466

There is likely some piece of information missing. The problem with borrower cases is that they will say they made all of their payments in full and on time, but often when a full review is done, that was not the case. My initial questions would include the following: who was responsible for the escrows – i.e., hazard insurance and property taxes – and were they up to date? Were the borrower’s payments returned to sender or were they put in a suspense account? Has a Qualified Written Request per RESPA section 6 been made to obtain all servicing records including origination documents, payment histories, and escrow account balances? Banks are not generally in the business of refusing payments made in full and on time, so unless the bank has made a rare and egregious error, the borrower is not disclosing everything.

Expert Witness Response E-009316

Expert-ID: E-009316

I have a banking regulatory background, including time with the OCC, during which time I have looked at hundreds, if not thousands, of loan files to ensure the proper documentation has been maintained by the bank and submitted by the borrower. I have been involved as a conservator in thousands of foreclosure processes/dealings. I am highly qualified to review this case. I have served as an OCC National Bank Examiner, a Federally Appointed Conservator for in excess of 30 billion in troubled assets, which consisted mostly of loans secured by real estate. I have also served as a court appointed Special Deputy Receiver for the Texas Department of Insurance to oversee the liquidation of 7 insolvent insurance companies, which had numerous real estate assets that needed to be foreclosed and liquidated. I am also a Certified Fraud Examiner (CFE) that has looked at many fraudulent transactions involving financial institutions.

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