Durbin Bill S.61 Does Not Go Far Enough To Protect Homeowners

07 Jan Durbin Bill S.61 Does Not Go Far Enough To Protect Homeowners

We, consumers and consumer protectionists, are getting hosed. In case anyone forgot, we won the last presidential election. No more Bush, no more Cheney, no more Rove. They are outta here. Gone also are Dole, Coleman, Sununu and Smith.

Washington has been fumigated against anti-consumerism and the new tenants are moving in.

Welcome to Washington Mr. Al Franken.

So why does S.61, the Helping Families Save Their Homes in Bankruptcy Act of 2009 make me angry?

It excludes the majority of homeowners who struggle with adjustable rate mortgages, predatory lending loans, and unaffordable upside-down-the-property-is-not-worth-as-much-as-the-loan loans. It excludes people who are already in foreclosure or have been in foreclosure and had their case dismissed by a scrupulous judge who demanded to see proper loan documentation or have had default judgments entered against them but have not been removed from the property.

S. 61 only protects those people who have a claim for a loan secured by a security interest in the debtor’s principal residence that is the subject of a notice that a foreclosure may be commenced.

“May be commenced” does not cover has been commenced. “The subject of a notice” does not cover those who are not the subject of a notice, those who have not been threatened with foreclosure but have been subjected to every other type of collection harassment, including work out scams, and phony loan modifications that add unnecessary fees, but do little to lower the monthly payment or interest rates.

This bill only serves those people who receive a notice that they might be sued for foreclosure. Arguably, Congress knows that foreclosures are a problem and if Congress wanted to apply this bill to existing foreclosure cases she could have stated so in clear and unambiguous words. There, I just wrote the sentence some judges will cite to deny modification relief to people with cases already in foreclosure.

Congress, old girl, you need to sharpen the pencil and clearly write what you mean and mean what you say.

Eliminate from 1322(b)(2) the language that says”, other than a claim secured only by a security interest in real property that is the debtor’s principal residence,”.

Then you do not need new paragraph 1322 (b) (11). But have it if you must and after the words “that a foreclosure may be commenced” insert “, or has been commenced, or has been defended through hours of litigation over whether the mortgage owner or securitized trust really owns the loan, or has gone to default judgment like 999 out of 1000 cases, or where a Court such as Ohio has thrown the foreclosure cases out of court for lack of proper documentation, or just because someone has a bad mortgage loan that they cannot afford to pay,”.

Remember, we won the last election.

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Andy Miofsky, Esq.

Andy Miofsky holds the highest AV PREEMINENT rating from Martindale Hubbell Law Directory and a perfect 10.0 from AVVO. Andy is an Illinois consumer rights lawyer with offices in Granite City Illinois. Andy represents people with bankruptcy and student loan debt problems throughout the Southern District of Illinois since 1979.
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