In my opinion, Bank of America has admitted the truth of all my contentions regarding (1) the legality of mortgages and (2) the illegality of the “lenders'” positions in this business. BAC has done so by inserting the following paragraph in the “Loan Modification Agreement” being circulated to “borrowers” as of August 29, 2009, at least in California:
“In consideration of this Modification, Borrower agrees that if any document related to the Security Instrument, Note, and/or Modification is lost, misplaced, misstated, inaccurately reflects the true and correct terms and conditions of the loan as modified, or is otherwise missing, Borrower(s) will comply with Lender’s request to execute, acknowledge, initial, and deliver to Lender any documentation Lender deems necessary. If the original promissory note is replaced the Lender hereby indemnifies the Borrower(s) against any loss associated with a demand on the original note. All documents Lender requests of Borrower(s) shall be referred to as “Documents.” Borrower agrees to deliver the documents within ten (10) days after receipt by Borrower(s) of a written request for such replacement.”
So now, what does all this mean? Let’s start with the line “If the original promissory note is replaced the lender hereby indemnifies the Borrower(s) against any loss associated with a demand on the original note.” To my ears and eyes, this constitutes a clear admission that (1) the original promissory note is necessary to the collection of the debt as a negotiable instrument under Federal Law, 100% of the time, (2) any “Borrower” who pays a penny on a note where the original note has been “lost, misplaced….or is otherwise missing” is paying on a debt s/he no longer owes or has any legal obligation to pay.
“In consideration of this Modification”—“Lender” is asking “Borrower” to give up certain VERY valuable rights, including (1) the right to sue for Fraud, (2) the right to assert privity of contract, (3) the right to assert Holder-in-Due Course Defense, (4) some if not all rights under RESPA and TILA, especially to the degree that the “modified” agreement permits the “Lender” UNILATERALLY to (a) determine “the true and correct terms and conditions of the loan as modified,” (b) not only require the Borrower unquestioningly to accept “the true and correct terms and conditions of the loan as modified”, but also [and equally unquestioningly] “to execute, acknowledge, initial and deliver to Lender any documentation Lender deems necessary.” This is a “contract of adhesion” on top of a “contract of adhesion”—a unilateral and wholly oppressive domination of and manipulation by the “lender” against the “borrower”. I BEG OF YOU—DO NOT SIGN ANY MODIFICATION WHICH CONTAINS THE LANGUAGE OF “PARAGRAPH 5” AS QUOTED ABOVE, NOR OF ANYTHING SIMILAR. IT IS A TRAP. You are being asked to give up ALL of your most valuable contractual rights! But please, tell me all about your modification if it has this or any similar language—you may report all such incidents to my assistant Robert Joseph Ponte at 860-599-5557.
Charles Edward Lincoln, III
May God be with you, and with thy Spirit!