In more than two years, none of our Home Save group have received a permanent modification from any lender anywhere.
The most we have been “granted” is a 3-month Forbearance Agreement, wherein the “agreement” clearly states that one must pay an agreed upon amount for three months after which time the lender may consider permanent modification. In the same letter, the lender states that the payment does not assume there will be a permanent modification, and in most letters, there is generally a statement that “the holder of the note does not want to negotiate a modification.”
In at least one instance, the home went into foreclosure DURING the “forbearance” period. (Because our group has become legally saavy, this foreclosure was put on hold and the lender in question is facing a lawsuit.)
When anyone questions the apparently contradictory statements in the letters, we are told that we “must” pay or foreclosure proceedings “may” begin.
So one of our members wrote to a Marin County Supervisor, who forwarded the inquiry on to the District Attorney. The response through the District Attorney’s office:
Sent: Thursday, March 04, 2010 3:03 PM
Subject: Banking and Loan Modification Concerns
The District Attorney asked me to review your e-mail messages involving constituent concerns about banking and loan modification practices by certain national banks.
Unfortunately, this office lacks the authority to investigate or enforce compliance with state or federal statutes against a nationally chartered bank. The United States Supreme Court has repeatedly held that the Office of the Comptroller of the Currency (OCC) has exclusive authority to examine, inspect and enforce the National Banking Act. Neither states nor other federal agencies may hinder or burden a national bank’s exercise of any power, incidental or enumerated under the National Banking Act. Absent Congressional authority no one other than the OCC may exercise such powers as:
- examination of a bank;
- inspection of a bank’s books and records;
- regulation and supervision of activities authorized or permitted pursuant to federal banking law; or
- enforcing compliance with any applicable federal or state laws concerning those activities. See, Watters v. Wachovia Bank, N.A. (2007) 127 S.Ct. 1559; Wells Fargo Bank, N.A. v. Boutris (9th Cir. 2005) 419 F.3d 949, 960-963; Wachovia Bank, N.A. v. Burke (2nd Cir. 2005) 414 F.3d 305, 311-12; Office of Comptroller of Currency v. Spitzer (SDNY 2005) 396 F. Supp. 2d 383, 399.
While states retain some power to regulate national banks in areas such as taxation, zoning, criminal and tort law, matters such as making, arranging, purchasing or selling loans or extensions of credit secured by liens on interests in real estate are exclusively within the OCC’s jurisdiction. Watters, supra.
Complaints and concerns may be forwarded to the OCC Consumer Assistance Group at 1301 McKinney Street, Suite 3450, Houston, TX 77010; Toll Free: 1-800-613-6743; TDD Number 713-658-0340; FAX: 713-336-4301.
