Paragraph 5 of the August 29 2009 Bank of America Modification


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

Deo Vindice

May God be with you, and with thy Spirit!

512-923-1889

6 responses to “Paragraph 5 of the August 29 2009 Bank of America Modification

  1. Spread the word on this loan modification language to anyone you know thinking about getting a loan modification. It is another huge deception by pretender lenders getting themselves off the hook and put the borrowers on an even bigger hook.

  2. We were so happy to get a modification from Bank of America in June, 2013 since we had not made a mortgage payment in 5 years. We did sign with this language. We did not know. The payment was still too high for us so, again, we have fallen behind. We have not made payment since January, 2014. Our loan has been sold again to Ocwen. They are not talking foreclosure. I have been looking through all of my paperwork and see that there is a Certificate of Satisfaction and Affidavit that seems to have been robo-signed. Is there anything I can do?

    • Charles Edward Lincoln III

      It all depends on what state you’re in. If you’re in a judicial foreclosure state, you might have a defense or two or three available to you. If you’re in a non-judicial foreclosure state (“Foreclosure by Trustee’s Sale” followed by eviction), you are probably in a lot of trouble, although even in Arizona, California, Nevada, Oregon, and Washington there have been a lot of good cases recently—but the homeowner has to sue before foreclosure starts to have any sort of real chance.

      • I am in Virginia which is a non-judicial state. My husband and I have decided to hire an attorney.

      • Charles Edward Lincoln III

        My good friend Bob Hurt has relatives in Virginia and he strongly recommends the services of Storm Bradford in all things relating to mortgage foreclosure.  You might want to look into that and if you do PLEASE tell me what you think of Storm.  I am very serious!!!!!

        From my Android phone on T-Mobile. The first nationwide 4G network.

      • Thank you so much for the connection. Will keep you posted.

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