I've written in a previous blog about the role and utility of mediation in foreclosure matters. Here are a couple of additional tips and pointers raised in a recent teleconference devoted to foreclosure mediation, including encouraging the parties to discuss how numbers were crunched, locating the Pooling Service Agreement, and identifying the agent responsible for maintaining the file in the future.
In the multi-state mediation foreclosure discussion group, like in my prior blog post, we regularly discuss the effectiveness and value of mediation at all. One practitioner has weighed in with the view that even though such "mediation" is really more like facilitation of the loan modification, short sale etc., real value can still be provided to the parties.
For instance, if a loan modification application is pending or has already been denied, the mediator can provide value by walking the parties through "the numbers" or the financials; and explore the rational for the numbers requested or provided. During this process, you can also help the parties develop their communications and relationship. Then, you can help to determine if all the necessary documentation or information has been provided.
Where an unrepresented party is struggling to understand and assimilate the investor parameters or criteria for evaluating applications, it may also help to request a copy of the section and page of the "Pooling and Servicing Agreement" (PSA). The PSA is the legal document that contains the responsibilities and rights of the servicer, the trustee, and others over all of the mortgage loans with which the loan you are dealing is pooled and securitized. It also contains the checklist of modification criteria that are being used.
When trying to obtain copies of the PSA, note, that some banks will assert that the PSA is protected, confidential work product. If the securitization is public, these documents will be filed with the Securities and Exchange Commission (SEC), either as a stand-alone document or part of another document, usually called a "prospectus." For instructions and information on how to find a public PSA, see http://mattweidnerlaw.com/blog/2010/05/finding-pooling-and-servicing-agreements-is-key-to-killing-your-foreclosure-case/, where Matt Weidner lays out a 5-step process. A simpler but more time consuming way to find PSA may be to go to the SEC EDGAR search index page, http://www.sec.gov/?edgar/searchedgar/webusers.htm, and open each filing until you find the right documents..
Sometimes, referral to the specific PSA and/or checklists will jump start discussion. In some ways and cases, the checklists can be treated something like a "Chinese menu" of items, and the bank or loan servicing agent may have more discretion than immediately apparent, in balancing the particular facts of a given case against the various checklist factors. If the facilitation is completely stymied, and the homeowner is getting frustrated by what seem to be over reliance by the bank on vague references to unsubstantiated investor guidelines, it may also be helpful to ask to speak with a "shareholder liaison."
During facilitation it is also helpful to identify who will be keeping the file after the facilitation conference call, since the property owner will usually need to supplement the file or follow up after facilitation.
If you are interested in mediation services for a foreclosure matter (residential or commercial), please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
*Adapted from another of the author's blogs, On Being a Neutral.
