Loan Modifications

SALT LAKE CITY AND OGDEN LOAN MODIFICATION LAWYERS

Attorneys at Arnold & Wadsworth have litigated more loan modification cases in Utah than any other law firm.  Attorney Brian Arnold practiced in the areas of loan modifications a few years ago when loan modifications were common.  Attorney Matt Wadsworth worked for lenders doing foreclosures where issues often arose due to loan modifications, work-outs and other foreclosure alternatives.  The experience and insight from the consumer side and creditor side make Arnold & Wadsworth formidable in these types of case.

DID YOU HAVE A VALID AND ENFORCEABLE LOAN MODIFICATION?

What makes a loan modification enforceable in court?

If you have recently heard the bad news from your lender concerning a loan modification and that your lender is now demanding a large sum of money you may want to consult with an attorney at Arnold & Wadsworth to see what your rights are.

The main issue you will need to consider is whether your modification has teeth and can be enforced in court like any other contract. Utah courts have been slow, to say the least, concerning the active misrepresentation and blatant lying loan servicers are engaged in regarding loan modification terms with consumers.  This is not surprising considering most judges worked for banks and lenders during the majority or some part of their practice and many judges just don’t believe their old clients would engage in such behavior-kind of a self-censorship by the judiciary that refuses to acknowledge such malfeasance.

You will need to consider a principle in the law referred to as the “statute of frauds.”  Utah has its own statute of frauds codified in the Utah Code and it applies to all alleged alterations of terms with national banks.  The way you overcome the statute of frauds is by having a writing memorializing the terms of the loan modification.   The other issue presented here is that the “offeror” is the master of the acceptance process, so under the normal wording of a loan modification document it can be seen as an offer to make an offer so to speak.  With Utah Courts positive bias in favor of creditors and lenders, for some judges this is enough to make any documentation of the loan modification, if unsigned, unenforceable.

Consumer protection attorneys realize the obvious issue here because no lender has ever “signed” a loan modification document, ever. The paperwork sent to the consumer merely contains the terms and that the modification is accepted by the lender after the consumer signs it and the lender signs it.  This is ridiculous for a number of reasons.   First, the lender is perfectly willing to perform under the loan modification until some unforeseen time in the future when it will unilaterally terminate the loan modification.  Second, the lender purposefully never signs the loan modification document for the first reason.  Third, the consumer often changes his or her position in reliance on the loan modification to his or her detriment.

In order to win in court you will need to find a way to make the loan modification enforceable.  If you only got an oral modification, your argument will be tough and you almost always lose.  The only way to win in this case is if you were current on your loan before entering into the loan modification.  This is necessary for the third reason outlined in the paragraph above.

If you do have some documentation your path will be easier.  Even though the lender does not sign the document, you can still succeed if you can show performance by both parties.  This presents an issue that must be litigated and you should consult an attorney at Arnold & Wadsworth.

Other Options?

If you really want to keep your house even though the lender is demanding a large sum of money lest foreclosure ensue, your options are to either come up with the money or file for bankruptcy.  You will need to file a Chapter 13 bankruptcy, which will allow you to pay the unpaid arrears over a number of years, and you will automatically get caught up on your payments and brought into current status.

Attorney Matt Wadsworth is a partner at Arnold & Wadsworth and practices in Ogden, Utah and Salt Lake City, Utah in the areas of general civil litigation concerning loan modifications, loan fraud and bankruptcy.