As a couple, Mrs Twigg and I are keen to take on only commitments we can manage, and thereafter meet those obligations. One such commitment was a mortgage to buy a family home back in early 2008. It was a modest loan on an equally inauspicious home, but a place where we hoped we might raise our family.
In early 2009 it became clear that we might qualify for a mortgage modification under the HAMP scheme. Being a family of limited means, and growing children who, rather unreasonably I thought, wanted feeding more than once a day, it seemed like an opportunity we should explore.
What happened next sent us spiraling into foreclosure hell, and a five year battle that ended last week.
Cliff Notes ... We won!
This Diary has antecedents, and the saga could one day have descendants too, but for those wanting the background you are free to read the story below:
Bank of America: You May Steal My Home But You Cannot Take My Will To See You Destroyed
Bank of America 0 Twigg 1
When we last visited this tale the District Judge had just allowed the bank motion on standing in the case (but signaled that she expected us to appeal), and denied the bank possession of our home in advance of a full trial on the disputed matters of "fact" in the case.
At the time this was a major success, and the first we knew of in Oklahoma. Prior to this no court had denied possession to the plaintiff, so we were already into virgin territory. It left us in a kind of limbo. We could remain in our home for at least the next eighteen months but might still lose in the end. There were three possible outcomes. Either we lost, and lost our home. Won, and won our home free of a mortgage, or thirdly reached a settlement before the trial.
The first consideration was that we were never going to be in a position to fund a trial, or any subsequent appeals. That meant we could sit and wait, then move out when we lost by default, or somehow force the bank to settle. While we would have dearly loved to have taken this all the way and set a precedent for so many others, our main concern was providing a home for our three kids. We went into this asking for, and being promised a modification, and have maintained throughout that is all we wanted.
In the meantime, our attorney turned out to be useless. Granted he had argued successfully against the default judgement application, but he was not keeping us informed, missing deadlines and demanding ever increasing sums of money. Upon investigation we discovered that we were not the only clients suffering this way, and we fired him. Absent the funds to appoint another lawyer, we were now on our own.
We finally heard that the judge was about to rule against us because the process hadn't been followed correctly. I had a massive fight with our attorney and decided to simply contact the attorneys for the bank. Things went a little better after that.
We went before the judge having agreed simply to "conference" while I got my head around the paperwork and the attorneys for the bank investigated where we were at with the modification, now four years overdue! When I attended that hearing I fully expected to be walking out homeless, but actually the attorney representing the bank was extremely gracious, very friendly and actually gave me the names of two firms that would love to have pursued my previous attorney for negligence.
She explained what needed to be done, then went and asked the judge to adjourn while we could do it.
It has taken a full year since that court hearing to resolve this matter. Finally we were sent paperwork to complete with the caveats that they were making no promises and that we might have to provided a whole raft of further information upon request. It took a year because Bank of America still doesn't have an effective modification department. I lost count of the number of times that they lost papers, asked repeatedly for information that was either not available or not relevant, and repeatedly asked for information we had already supplied.
At this stage, while I think the attorney for the bank was trying to be an honest broker, the bank was still wanting to repossess and had zero intention of doing anything other than wearing us down.
Then came the final hearing. It was scheduled by the judge who clearly wanted to see some progress in the case, or find out why none was apparent. I was again unhappy with the way the bank had been behaving, and in no mood to pussyfoot around. This judge seems to like it when folk give her straight answers, and what did we have to lose?
So I simply made it clear that I was beginning to suspect that the bank was again (attorney didn't like that word) acting in bad faith. That we had supplied everything, more than once, and we could do no more. That we still wanted an equitable settlement, but if we could not agree then we would simply ask the judge to set a date for trial on the original defense of "unclean hands".
I do not know what conversations went on between the bank and its attorney, but I did know that they were scared witless of the prospect of a trial with a defendant who had stuff like evidence, and attitude!
Then, a couple of weeks ago and quite out of the blue, FEDEX delivered a letter. I took it into the living room and, with my heart beating at about a million beats per minute, I opened it and read the contents.
The first thing to say is that nowhere in the enclosed agreement was anything like a confidentiality clause. It was an apparently straightforward offer of a mortgage modification on terms so favorable we had never even dreamed we could be offered.
Bank of America was offering to reduce the balance outstanding on our account by one hundred thousand dollars, and charge the rest at two percent over thirty years.
All we have to do to make the arrangement permanent, with a new loan, is make three consecutive timely payments at the new level. Yesterday the first of those payments cleared our checking account.
For the first time in over five years my wife and I are beginning to believe that we might have a home. It's very hard to convey the sense of ... dread proceedings like this can instill in a family. Living for so long never knowing when the Sheriff will knock on the door. Not wanting to go to the mailbox ... wondering what kind of future lies ahead, and what that will mean for the kids. It's a terrible experience.
There are still wrinkles to iron out. To start with there are the tax implications of the debt forgiveness. It's not quite as simple as a taxable amount of $100 000. That figure is a bit illusory. The original loan has actually been reduced by around $40 000. The other $60k is made up of what the bank claims as a mixture of unpaid interest and fees. That figure is highly arguable, even if the $40k isn't. Also there is still some confusion over whether or not Oklahoma actually is a "recourse" state, and if it is, does our particular debt fall within those rules. There is the Federal government that is still trying to extend the tax forgiveness on folk like us. It expired in December 2013, so we are buggered from that angle even though there is bi-partisan support for an extension. Finally, part of the recent massive settlement between the BoA and the Justice Department is substantial funding to pay the tax liability in these outstanding cases, so it may be covered anyway.
All that is still to be decided, and we would very much appreciated input from anyone who has knowledge of these matters. The comment section would be fine.
Although it has taken a very long time, caused us endless anguish, some tears and some sleepless nights, and no one has been punished for the clear and obvious felonies committed even in our case, we still feel good about this.
We are, by most metrics, representative of the little people. Yet even when Goliath pokes his gnarly head above the parapet, sometimes the little people are called David!