HousingWire - Modification rates picked up over December and January as servicers converted more trials into permanent modifications under the Home Affordable Modification Program (HAMP), according to a report from Barclays Capital.

The US Treasury Department launched HAMP in March 2009 to allocate capped incentives to servicers for the modification of loans on the verge of foreclosure. According to the latest HAMP progress report from the Treasury, servicers provided more than 66,000 permanent modifications through December. Participating servicers receive more than $35bn in total capped incentives, but the program could reach as high as $50bn.

Modification rates “turned a corner” in October 2009, according to BarCap analysts, congruent with the rise in HAMP permanent conversion rates. The Treasury recently changed document guidelines for the servicers that go into effect June 1, 2010. After that date, borrowers seeking help through the program must provide certain documentation to enter into a trial modification. At the start of the program, servicers collected the documents during the three-month trial plan, creating a lag time in the permanent conversion rate.

Out of the more than 1m borrowers in HAMP trials, 34% have been on private-label securitized loans – meaning the loans are not held by Fannie Mae (FNM: 0.97 0.00%), Freddie Mac (FRE: 1.16 0.00%) or Ginnie Mae. After assuming a similar conversion rate for non-agency loans, analysts found 22,600 non-agency permanent modifications under HAMP.

“This ties in closely with the 25,000 loans modified in past two months that we see using our custom logic on Loan Performance. A higher number based on our logic also makes sense to us as some servicers have non-HAMP modification programs,” according to the report.

Barclays confirmed the numbers by looking at the independent servicer Ocwen Financial Corp., which has a large portion of its portfolio in non-agency deals. Ocwen provided 5,332 permanent modifications through December, or 71.7% of the more than 7,000 loans in HAMP trials, according to the Treasury report.

Servicers are modifying more modifications for delinquent borrowers, according to the report. In the past, modifications went to more current borrowers. Under HAMP, current borrowers in imminent default are not eligible for the program, but servicers might be migrating toward those loans as pressure intensifies to reach the 3-to-4m borrowers targeted for HAMP, according to the report. Fannie Mae recently released new guidelines to servicers to begin gauging imminent default risk for HAMP.

“The rise in modification rates due to HAMP trial-to-permanent conversions has been restricted to a few smaller servicers so far. We expect mod rates to further increase in the coming months as the bigger servicers start converting the large chunk of loans in trial mods,” according to the report.

NYTimes - In 2006, Benjamin Koellmann bought a condominium in Miami Beach. By his calculation, it will be about the year 2025 before he can sell his modest home for what he paid. Or maybe 2040.

“People like me are beginning to feel like suckers,” Mr. Koellmann said. “Why not let it go in default and rent a better place for less?”

After three years of plunging real estate values, after the bailouts of the bankers and the revival of their million-dollar bonuses, after the Obama administration’s loan modification plan raised the expectations of many but satisfied only a few, a large group of distressed homeowners is wondering the same thing.

New research suggests that when a home’s value falls below 75 percent of the amount owed on the mortgage, the owner starts to think hard about walking away, even if he or she has the money to keep paying.

In a situation without precedent in the modern era, millions of Americans are in this bleak position. Whether, or how, to help them is one of the biggest questions the Obama administration confronts as it seeks a housing policy that would contribute to the economic recovery.

“We haven’t yet found a way of dealing with this that would, we think, be practical on a large scale,” the assistant Treasury secretary for financial stability, Herbert M. Allison Jr., said in a recent briefing.

The number of Americans who owed more than their homes were worth was virtually nil when the real estate collapse began in mid-2006, but by the third quarter of 2009, an estimated 4.5 million homeowners had reached the critical threshold, with their home’s value dropping below 75 percent of the mortgage balance.

They are stretched, aggrieved and restless. With figures released last week showing that the real estate market was stalling again, their numbers are now projected to climb to a peak of 5.1 million by June — about 10 percent of all Americans with mortgages.

“We’re now at the point of maximum vulnerability,” said Sam Khater, a senior economist with First American CoreLogic, the firm that conducted the recent research. “People’s emotional attachment to their property is melting into the air.”

Suggestions that people would be wise to renege on their home loans are at least a couple of years old, but they are turning into a full-throated barrage. Bloggers were quick to note recently that landlords of an 11,000-unit residential complex in Manhattan showed no hesitation, or shame, in walking away from their deeply underwater investment.

“Since the beginning of December, I’ve advised 60 people to walk away,” said Steve Walsh, a mortgage broker in Scottsdale, Ariz. “Everyone has lost hope. They don’t qualify for modifications, and being on the hamster wheel of paying for a property that is not worth it gets so old.”

Mr. Walsh is taking his own advice, recently defaulting on a rental property he owns. “The sun will come up tomorrow,” he said.

The difference between letting your house go to foreclosure because you are out of money and purposefully defaulting on a mortgage to save money can be murky. But a growing body of research indicates that significant numbers of borrowers are declining to live under what some waggishly call “house arrest.”

Using credit bureau data, consultants at Oliver Wyman calculated how many borrowers went straight from being current on their mortgage to default, rather than making spotty payments. They also weeded out owners having trouble paying other bills. Their estimate was that about 17 percent of owners defaulting in 2008, or 588,000 people, chose that option as a strategic calculation.

Some experts argue that walking away from mortgages is more discussed than done. People hate moving; their children attend the neighborhood school; they do not want to think of themselves as skipping out on a debt. Doubters cite a Federal Reserve study using historical data from Massachusetts that concludes there were relatively few walk-aways during the 1991 bust.

The United States Treasury falls into the skeptical camp.

“The overwhelming bulk of people who have negative equity stay in their homes and keep paying,” said Michael S. Barr, assistant Treasury secretary for financial institutions.

It would cost about $745 billion, slightly more than the size of the original 2008 bank bailout, to restore all underwater borrowers to the point where they were breaking even, according to First American.

Using government money to do that would be seen as unfair by many taxpayers, Mr. Barr said. On the other hand, doing nothing about underwater mortgages could encourage more walk-aways, dealing another blow to a fragile economy.

“It’s not an easy area,” he said.

Walking away — also called “jingle mail,” because of the notion that homeowners just mail their keys to the bank, setting off foreclosure proceedings — began in the Southwest during the 1980s oil collapse, though it has never been clear how widespread it was.

In the current bust, lenders first noticed something strange after real estate prices had fallen about 10 percent.

An executive with Wachovia, one of the country’s biggest and most aggressive lenders, said during a conference call in January 2008 that the bank was bewildered by customers who had “the capacity to pay, but have basically just decided not to.” (Wachovia failed nine months later and was bought by Wells Fargo. )

With prices now down by about 30 percent, underwater borrowers fall into two groups. Some have owned their homes for many years and got in trouble because they used the house as a cash machine. Others, like Mr. Koellmann in Miami Beach, made only one mistake: they bought as the boom was cresting.

It was April 2006, a moment when the perpetual rise of real estate was considered practically a law of physics. Mr. Koellmann was 23, a management consultant new to Miami.

Financially cautious by nature, he bought a small, plain one-bedroom apartment for $215,000, much less than his agent told him he could afford. He put down 20 percent and received a fixed-rate loan from Countrywide Financial.

Not quite four years later, apartments in the building are selling in foreclosure for $90,000.

“There is no financial sense in staying,” Mr. Koellmann said. With the $1,500 he is paying each month for his mortgage, taxes and insurance, he could rent a nicer place on the beach, one with a gym, security and valet parking.

Walking away, he knows, is not without peril. At minimum, it would ruin his credit score. Mr. Koellmann would like to attend graduate school. If an admission dean sees a dismal credit record, would that count against him? How about a new employer?

Most of all, though, he struggles with the ethical question.

“I took a loan on an asset that I didn’t see was overvalued,” he said. “As much as I would like my bank to pay for that mistake, why should it?”

That is an attitude Wall Street would like to encourage. David Rosenberg, the chief economist of the investment firm Gluskin Sheff, wrote recently that borrowers were not victims. They “signed contracts, and as adults should also be held accountable,” he wrote.

Of course, this is not necessarily how Wall Street itself behaves, as demonstrated by the case of Stuyvesant Town and Peter Cooper Village. An investment group led by the real estate giant Tishman Speyer recently defaulted on $4.4 billion in debt that it had used to buy the two apartment developments in Manhattan, handing the properties back to the lenders.

Moreover, during the boom, it was the banks that helped drive prices to unrealistic levels by lowering credit standards and unleashing a wave of speculative housing demand.

Mr. Koellmann applied last fall to Bank of America for a modification, noting that his income had slipped. But the lender came back a few weeks ago with a plan that added more restrictive terms while keeping the payments about the same.

“That may have been the last straw,” Mr. Koellmann said.

Guy D. Cecala, publisher of Inside Mortgage Finance magazine, says he does not hear much sympathy from lenders for their underwater customers.

“The banks tell me that a lot of people who are complaining were the ones who refinanced and took all the equity out any time there was any appreciation,” he said. “The banks are damned if they will help.”

Joe Figliola has heard that message. He bought his house in Elgin, Ill., in 2004, then refinanced twice to get better terms. He pulled out a little money both times to cover the closing costs and other expenses. Now his place is underwater while his salary as circulation manager for the local newspaper has been cut.

“It doesn’t seem right that I can rent a place somewhere for half of what I’m paying,” he said. “I told my bank, ‘Just take a little bite out of what I owe. That would ease me up. Isn’t that why the president gave you all this money?’ ”

Bank of America did not agree, so Mr. Figliola, who is 48, sees no recourse other than walking away. “I don’t believe this is the right thing to do,” he said, “but I’ve got to survive.”

Bloomberg - When John King stopped making payments on his home in Coral Gables, Florida, two years ago, he assumed the foreclosure ended his mortgage contract, he said. Last month, a Miami-Dade County court gave collectors permission to pursue him for $44,000 stemming from the default.

King is among a rising number of borrowers who are learning that they can be on the hook for years after losing their homes. Amid a crisis that stripped $6.4 trillion, or 28 percent, from the value of U.S. residential real estate since the 2006 peak, lenders are exercising their rights to pursue unpaid mortgage balances. To get their money, they can seize wages, tap bank accounts and put liens on other assets held by debtors.

“The big dogs get a bailout, and the little man gets no mercy,” said King, 39, referring to the U.S. government’s rescue of banks and other financial institutions.

While there are no statistics on the number of deficiency judgments approved by courts, the Federal Deposit Insurance Corp. tracks the amount banks collect after defaulted loans were written off.

These mortgage recoveries rose 48 percent to a record $1.01 billion in the first nine months of last year compared with the year-earlier period, according to the Washington-based regulator. Recoveries on defaulted home-equity loans almost doubled to $392 million, the FDIC data shows.

The figures don’t include money retrieved by trusts overseeing mortgage-backed securities, such as the one that holds the loan on King’s former home, or efforts by distressed- asset funds and companies that buy bad loans to profit from collection rights. Judgments such as the one levied against King usually tack on court fees, fines and interest.

‘Next Big Crisis’

Deficiency judgments were rare in the 15 years since the last real estate slump, said Ben Hillard, a former investment banker who now is a real estate and corporate attorney at Hillard & Rogers in Largo, Florida.

“The banks have been too underwater with foreclosures to spend much time on deficiency judgments, but that’s beginning to change,” Hillard said in an interview. “This is going to be the next big crisis.”

Almost 4.5 percent of mortgaged U.S. homes were in foreclosure during the third quarter, the highest rate in the 37 years of tracking the data, the Mortgage Bankers Association said Nov. 19. A record one in every 10 mortgages was at least one payment overdue in the same period, the Washington-based trade group reported.

The Obama administration is seeking to modify as many as 4 million loans by 2012 to prevent foreclosures through the Home Affordable Modification Program, which cuts monthly payments to about a third of borrowers’ income. By the end of December, the program was responsible for more than 850,000 modifications, the Treasury Department said in a Jan. 15 report.

20-Year Window

The federal government spent $230 billion in the year ended in September to support homeowners, according to the Congressional Budget Office in Washington. Those efforts didn’t help people who had already walked away from their houses.

In states such as Florida, courts give mortgage holders as long as five years to seek a deficiency judgment and, if granted, up to 20 years to collect. Usually, they have the option of renewing the judgment if it’s not paid off within 20 years.

About a third of U.S. states, including California and Arizona, prohibit collection efforts on primary residences after foreclosure. In some cases, homeowners waive that protection if they refinance. Most states allow collection on unpaid home equity loans.

Depression-Era Protections

The laws in states that protect some borrowers stem from the Great Depression in the 1930s, when a lack of bidders at foreclosure auctions caused deficiencies that, with added fees and interest, sometimes were bigger than the original loan amount, according to a 1934 Virginia Law Review article by Sol Phillips Perlman. Today, many courts measure the shortfall using a property’s market value at the time of foreclosure rather than auction results.

The likeliest candidates for deficiency judgments are so- called rational defaults, said Larry Tolchinsky, a real estate attorney in Hallandale Beach, Florida. In those cases, people who are current on their mortgages decide to walk away from a property because its value has sunk so far below their loan balance they have no hope of recouping the loss.

About 21 percent of American homeowners owe more on their mortgages than their properties are worth, according to Zillow.com, a Seattle-based real estate data firm.

“Walking away from a property comes with a cost, especially for people who otherwise have good credit,” Tolchinsky said in an interview. “The bank is going to pull your credit report, and if you’re current on your other bills they are going to come after you and potentially ruin you.”

Fine Print

It’s not just foreclosures that can trigger debt collections. Short sales also may lead to deficiency judgments years after former homeowners have moved on, according to Hillard, the attorney in Largo. In a short sale, lenders agree to let borrowers sell a home for less than the mortgage balance.

“Banks are being very careful to preserve their rights, either outright in the short sale agreement or by using vague language that leaves that door open,” Hillard said. About 90 percent of people who do a short sale think they are “off the hook.”

That was the case when two of his clients, Brigitte and John Howard, sold their home in New Port Richey, Florida, almost two years ago without using a lawyer to check the bank’s short- sale agreement.

$20,000 Shock

“We got a call out of the blue saying we owed $20,000,” said Brigitte Howard, 45. “It was a shock. There was no mention in the short-sale contract that the bank might come after us for the difference.”

The money King owes to the Soundview Home Loan asset-backed security that holds the mortgage on his former Coral Gables condominium consists of $38,000 for unpaid principal and almost $6,000 in legal fees and interest accrued prior to the ruling. According to the judgment, the security can charge 8 percent interest until he pays off the debt.

King, who said his default was caused by a reduction in his income, now rents near Fort Lauderdale, Florida, where he teaches ballroom dancing.

“I thought the foreclosure was the worst of a bad situation, but it’s not,” said King. “The people who got sucked into the real estate bubble are still paying for it, even after they’ve taken our homes.”

Dallas Observer - Unlike his neighbors’ homes, Craig Cunningham’s house in Northeast Dallas looks abandoned. The grass is dried out. The concrete slab under the front door is lopsided and cracked. The green exterior has faded to a toxic-looking shade. Yellow Pages pile up near the front door, and the black mailbox is stuffed full. Maybe the home has been foreclosed on. That wouldn’t be a surprise in this economy.

But no, that’s not the case. Inside, the 29-year-old Cunningham hunkers his 6-foot-2-inch frame on a dumpy couch. His heavy arms extend from his sides, palms up, so two Chihuahuas, Angel and Chuay, can curl under them. Although it’s 10 a.m. on a weekday, he’s wearing slippers.

He leans forward to lift some paperwork out of a plastic tub on the coffee table. The phone rings, and he answers with a soft voice. It’s just a friend, and soon he hangs up. He’s waiting for a particular type of phone call—one from a representative of a debt collection agency or a credit card company, whom he’ll try to ensnare like a Venus fly trap. It’s not unlikely that Cunningham’s next call will be from a bill collector, since he’s between jobs—except for being in the Army Reserve—and owes $100,000 in debts.

While most Americans with unpaid bills dread the collector’s call, Cunningham sees them as lucrative opportunities. Many collection and credit card companies, intentionally or not, violate little-known consumer rights laws, and Cunningham’s favorite pastime is catching them doing so and then suing them. In fact, it’s a profitable side job.

Call it ironic, but the only house on the block that appears to be the foreclosed end to some sad financial story is in fact the home of one of the debt collection industry’s emerging and persistent threats. Cunningham calls himself a private attorney general—someone who files private lawsuits in the public interest. Debt collectors call him a credit terrorist.

Patrick Lunsford, who edits InsideARM, a trade magazine for the debt collection industry, knows the term. “There is a sub-group out there that does actually advise people on how to bait [collectors],” he says. “That’s something that really gets under the skin of, well, obviously, collectors.”

Cunningham beats the debt collectors at their own game. He turns their money-making practice into a financial liability. He is a regular guy who has become a radical enemy of the banking system.

In 2005, two foreclosures pushed Cunningham near financial ruin. Like many Americans, he fell enchanted by the siren’s song of easy credit and borrowed more than $100,000 to bet on risky, high-yielding investments, such as stock in the now vilified sub-prime mortgage industry. Then, while stationed with the Army in El Paso, he attempted to become an absentee landlord and got zero-percent-down sub-prime mortgages to buy low-income four-plexes in Houston and Dallas. With the interest earned on his high-yielding stocks he was paying back his low-interest credit card debt; now, he was using the mortgages to borrow even more.

Then, the bottom fell out. Investors like Cunningham fell the fastest. He sold his Houston homes, but his Dallas properties were foreclosed on. The collection calls started. He was running scared.

Desperation took him online in a search of anything that could save him from his own $100,000 in bad choices. One afternoon while sitting on his couch in his El Paso home, he found a way to fight back. He stumbled across hundreds of other distraught consumers like himself on credit message boards, each with some different version of the same story of bad choices and greed. And, he found a new way to deal with his debt: He could hide behind the law.

His new online friends pointed him to a number of federal and state statutes protecting consumers like him against overly aggressive and abusive debt collectors and a credit system stacked against the little guy. If you knew your rights, he learned on the message boards, you were very likely to catch a collector violating them. Then you could sue.

Cunningham armed himself with this knowledge, and the next time a debt collector called, the trap was set.

It didn’t take long. Cunningham had canceled a home alarm service with ADT Security after two months, and the company had billed him a $450 early termination fee, which he disputed. ADT sent his account to Equinox Financial Management Solutions, a third-party debt collector. The collection agency sent him a letter asking that he call back immediately. He dialed, armed with a voice recorder.

“Can you garnish my wages if I don’t pay?” he asked.

“Yes,” the voice on the other end of the line said.

“Can you put a lien on my house?”

“Yes.”

Wrong answers. Turns out, Texas consumer rights laws are some of the most consumer-friendly in the country. And according to a federal consumer protection law, the Fair Debt Collection Practices Act (FDCPA), debt collectors are prohibited from threatening legal action that would violate state laws. In this case, garnishing wages or putting a lien on Cunningham’s house would violate the Texas Debt Collection Act.

Cunningham knew he had a good enough case to file a lawsuit against the debt collection agency, and for his first lawsuit, he decided to enlist the help of a lawyer. Two months later, he had a check in his hand for $1,000.

“It’s like discovering fire,” says Cunningham, thumbing through the stack of lawsuit papers on his table.

He immediately started devouring as much information as he could about the three chief federal laws that protect consumers from collectors: the Fair Debt Collection Practices Act, the Fair Credit Reporting Act (FCRA) and the Telephone Consumer Protection Act (TCPA). In the next four years, Cunningham accused debt collectors of misrepresenting the amount he owed (an FDCPA violation that entitles a consumer to collect up to $1,000). He sued over prerecorded and auto-dialed calls to his cellular phone (a TCPA violation worth up to $1,500 per call). He also filed complaints that agencies failed to investigate his claims that his credit file contains inaccurate information, a breach of the Fair Credit Reporting Act worth up to $1,000 per violation. All told, he filed 15 other lawsuits in federal court without the help of a lawyer, earning himself settlements totaling more than $20,000.

“Most people hear about the abuses that debt collectors do, but you just didn’t hear about the second part of it, where people sue the collectors,” he says.

Cunningham is one of thousands of hounded debtors who are trading in their paralyzing fears and learning to stand up for themselves. Americans as a whole owe some $2.5 trillion in consumer debt, according to the Federal Reserve, a figure that doesn’t include home mortgages. Nearly four in five Americans have credit cards and half carry a balance, according to the Obama administration.

In 2008, the Federal Trade Commission, the nation’s consumer protection agency, received more than 78,000 complaints against third-party debt collectors, 8,000 more than in 2007, and early numbers for 2009 indicate the growth will double. While the FTC gets the bulk of consumer complaints, today more consumers are fighting back with their own lawsuits than ever before. In 2009, nearly 10,000 cases under FDCPA, FCRA or TCPA statutes were filed around the country, mostly in federal courts. That’s a 50 percent increase from 2008, and an 83 percent growth from 2007.

A cottage industry has sprung up to counter the flood of cases. Two new companies now offer the credit and collection industries databases of repeat plaintiffs filing under the FDCPA. The companies, FDCPA Case Listing Service LLC and WebRecon, offer something akin to a background check for collection agencies. For example, if an agency received a delinquent account belonging to Cunningham, it could run his name through a database and learn he’s a repeat litigant; then the agency could either close his account or sue him first.

Back in his dim living room, Cunningham returns to the pile of paperwork on the table. His soft voice gets bolder when he recounts his war stories with the collection industry. His 15 lawsuits include one filed in federal court against Alliance One, a third-party agency collecting on behalf of Verizon. Alliance One added a $50 collection fee and misrepresented the debt he owed Verizon, he says, which is an unfair practice under FDCPA. Another lawsuit was over the collection of an outstanding bill from Time Warner. The collection agency, Advantage Cable Services, failed to post a surety bond required by the state of Texas in order to collect debts here. Plus, after telling them to stop calling his cellular phone with automated calls, they continued, so he sued and won around $3,500, the industry standard for many consumer rights violations. (Collection agencies frequently settle such lawsuits because that’s cheaper than taking them to trial.)

His debt with Time Warner hasn’t gone away, and he’s in the middle of his biggest FDCPA violation lawsuit ever, demanding upward of $200,000 from the current collection agency.

Debtors, either because they feel morally obligated or because they don’t know their options, get backed into a corner by their creditors and believe they have to repay their debts, he says. Not so with Cunningham. “I don’t have to do anything but stay black and die,” he says, a small, smug smile on his lips.

Cunningham wasn’t always such a stickler.

As a kid growing up in Detroit, family time meant gathering around the living room table to play stock market board games. His mother was a registered nurse, and his father worked for 25 years as a computer engineer for Ford. When he was 15, Cunningham met his “first millionaire,” as he tells it, still wide-eyed. This high school teacher grew wealthy off the then-booming real estate market of the mid-’90s. “He accomplished it through business and not sports,” he says. “For me, that was where the light first went on.”

Cunningham, a high school athlete, dreamed of making millions playing pro football, but he was accepted to U.S. Military Academy at West Point, where a degree would give him a more grounded back-up plan. The economics major also sought out an additional perk unique to West Point: stipends and absurdly low-interest loans. In his junior year, in 2002, Cunningham took out the maximum amount for a loan and dumped the $25,000 into the booming stock market.

“Everybody was making easy money,” he recalls, and the young cadet wanted a shot at making even more. He spent hours on his dial-up Internet connection learning money-making strategies that capitalized on the cheap and easy credit of the times. By Googling “credit help” or “increase credit score,” he landed on message boards on which posters shared how-to tips to boost his credit score and dupe major banks and credit card companies into giving him cards with credit limits around $10,000 and $20,000 at low interest rates. He’d borrow from the cards, invest the money in stocks with payouts higher than his interest rate and pay back the debt with the profits.

Cunningham learned on these boards that the credit card companies, banks and the credit bureaus worked together to determine not only your credit score but how much credit to extend you and at what interest rate.

Cunningham had no problem spending all the money anyone would loan him, but he needed to pay off some of the accrued debt to maintain his credit score. He knew his military loan did not get reported to any of the three major credit bureaus, Equifax, Experian and TransUnion. So, by paying off his credit card debt with money from that loan, he artificially maintained his credit score and continued to be approved for high credit. Sounds fishy, but Cunningham didn’t feel that he was taking advantage of the system, at least not anymore than the next guy or the brokers and bankers at the time.

“It’s their system,” says Cunningham. “I didn’t make the rules. I’m just learning what the rules are.”

Cunningham now had more than $100,000 in credit card debt, but he had a lot of money coming in as well. He was a big-time shareholder in one sub-prime lending company, Nova Star Financial, and for three years in a row he saw dividends as high as 20 percent for his investment.

Any money he was making went right back into the system. Those good times, of course, wouldn’t last.

Not wanting to miss out on the easy money in real estate buying and selling, he bought two low-income four-plexes in Dallas in 2005, using a mortgage company for the loan. He put no money down, but the interest rate was high.

Then he got burned. The four-plex’s seller wasn’t completely honest about the occupancy of the properties. Cunningham’s scheme disintegrated within six months. He was scrambling to make the mortgage payments at the high interest rate without any tenants. He knew it wouldn’t be long until he couldn’t make the payments and he would be foreclosed on. Somehow, he didn’t despair.

“I remember one day I just got pissed,” Cunningham says. “I’m running around trying to keep the ship afloat, and the banks don’t care.”

Cunningham had called the bank as well as the FBI to report the mortgage fraud committed by the seller, but nobody pursued his case.

“The regulators, the FBI, they don’t care. So, why should I care?” he says.

The Dallas properties were foreclosed, and his obsessively maintained credit score seemed wrecked. Cunningham returned to the online credit board for help. This time, however, he wasn’t looking to add an artificial shine to his credit score, he was looking for a way out of the ashes. Cunningham discovered a whole other world of consumer-generated knowledge. This was a rogue group of disgruntled consumers who were trying to save themselves and their credit by filing lawsuits when the collection industry screwed up the mechanics of debt reporting and collection. What he found was an instrument not of repair or reconciliation, but of vengeance.

“All the conventional wisdom, all the right people say, ‘Pay your bills on time and work with your creditors,’” Cunningham says, recalling his thoughts at the time. Yet he had discovered a new set of people who posted their credit reports on line and their successful lawsuits, showing how much money they won in settlements that simultaneously removed a bad debt from their credit report. “I said, ‘Maybe there’s another way.’ Again, just revolution. I never even thought about it.”

The knowledge on these boards originated from consumers testing the boundaries of the credit system through their own experiences. The nature of this information, from the beginning, was a mixture of anarchistic tendencies, vengeance and greed. Now the wisdom of the boards has been distilled into an e-book published in January. Debtsmanship was written by Steven Katz, a former New York debt collector turned consumer advocate, who now lives in Phoenix. In 2005, Katz founded a message board called “Debtorboards,” with the slogan “Sue your creditor and win!”

Katz doesn’t believe that people are morally obligated to pay back their debts. That notion was invented by debt collectors as a way to beat people into submission, he says. “Bill collectors would love for you to send them a check and then explain to your kids because you have the moral obligation to pay your debt they’re not eating this week,” he says. “But they don’t see the moral obligation to feed your children or yourself.

“People are brainwashed to think that paying a credit card is more important than paying for the necessities of life,” Katz says. “If you’re in a position where you have to make a choice, my argument is food, clothing and shelter come first… Nobody ever went to hell for not paying a debt.”

“Fight back” is the take-away message from a visit to Debtorboards, which is intended to help consumers who wish to file lawsuits without the help of lawyers. Debtorboards outlines steps consumers can take to deal with bothersome debt collectors. For example, if a debt collector is only bothering you, you could send them a letter or sue them. However, if you’re so far in debt that you see no way out but bankruptcy, then you can check out the board’s “frustrating the skip tracer” technique. There, you’ll find tips on how to run and hide from a collector.

Another Debtorboards user is 29-year-old Daniel Smith, who lives with his fiancé outside of Seattle, Washington. Early in 2009, he tried to obtain financing for a home, but was turned down by Bank of America. He soon discovered that an old girlfriend had put his name on her bank account before she fell into massive debt. He wrote angry letters to the bank, but nothing changed. He sat down at his computer and typed in “Bank of America” and “Fair Debt Collection Act” and soon landed on Debtorboards. “I spent hours upon hours upon hours on there,” Smith says. “The big epiphany is I’m a little guy but I’ve got a voice and I’m going to use it.”

Like Cunningham, Smith now armed himself with voice recorders and began keeping meticulous financial files. His file cabinet grew quickly. “I mean there’s nothing I don’t document now and that’s probably the best thing a consumer can do.”

Smith is an Army vet, an EMT, and a project manager for a construction company. He doesn’t advocate stiffing the original creditor on the bill. In fact, Smith will often pay the original creditor, but still go after the violating collection agency.

“The standard line from collection agencies is always, ‘Oh, gosh, no, we never violate.’…For the most part, the reality of it is you can sit down and find violation in almost every collection attempt made in America.”

Cunningham insists that the court system ignores lawsuits over frivolous violations. His cases, he claims, are built on true screw-ups. Cunningham won his first lawsuit, after all, after a collection company threatened to garnish his wages and put a lien on his house, both violations of Texas law.

Although that first lawsuit was filed with the help of a consumer rights lawyer, Cunningham has been filing on his own since then. Once he saw that the entire amount of the original settlement was upward of $3,500, and he only got $1,000, while his lawyer pocketed the rest as payment, Cunningham was motivated to go pro se.

“I remember seeing the $3,500 and thinking shoot that’s a lot of money, and I’m only getting a grand, so maybe I can do a little better than that if there is a next time.”

Cunningham made sure there’d be a next time. A company was trying to collect on an outstanding utility bill. They threatened to send this debt to the credit bureaus and wreck his credit score. He ended up paying the utility company the money he owed, but sued the collection company because of how they threatened and harassed him for the debt. The case earned him close to $3,500.

He was fast becoming one of the most hated debtors in Dallas, and part of an especially loathed minority of debtors in the country.

Cunningham returned to Texas from a year of active duty with the Army in late 2007, and moved to Dallas. He continued filing lawsuits against debt collection agencies, and he became ever more active on the message boards, holding long conversations about the state of the country with his online pals. In the meantime, he noticed that Debtorboards founder Steven Katz had created a new thread titled “The list you want to be on.” Here, Katz reported that a new company had appeared that was dedicated to aiding collection companies scrub their database against repeat FDCPA litigants, like Cunningham.

Cunningham toyed with the idea of suing them. After all, he thought, if they were working with the collection industry and the credit bureaus (FDCPA Case Listing Service partnered with TransUnion in 2009), then the companies sounded like credit reporting agencies to Cunningham, which would mean they would have to abide by certain credit reporting laws. Cunningham wrote to FDCPA Case Listing Service asking for a copy of his credit report (by law, a credit reporting agency must provide a consumer report if asked for one). Instead of a report, however, Cunningham found a lawsuit against him in his mailbox filed in May 2008 in Atlanta federal court. It alleged: “The defendant subscribes to and makes postings to a Web site in which consumers share information and promote litigation against the collection industry…The defendant has now conspired with others on the internet to incite civil litigation against plaintiff for the exclusive purpose of extorting money from the plaintiff.”

FDCPA Case Listing Service asked the court to declare that they are not a consumer reporting agency and not subject to the Fair Credit Reporting Act. To Cunningham, this was a clear attempt to silence him. Cunningham filed a motion to dismiss the case. For one thing, filing the suit in Atlanta was improper venue, Cunningham wrote. They should have sued him in Texas. Furthermore, since Cunningham hadn’t actually sued the company, the company had no valid reason to sue him. The court sided with Cunningham.

WebRecon offers a similar but expanded service to FDCPA Case Listing Service. Rather than only track FDCPA cases, WebRecon makes an effort to track FCRA, TCPA, and state and local cases, as well. WebRecon is headed by Jack Gordon out of Michigan. Gordon ran his own third-party collection agency for years until a spate of FDCPA lawsuits in 2008 forced him out of business. He is familiar with Cunningham’s type.

“This is definitely, if I can use a really strong word, a cesspool,” Gordon says. “The overwhelming majority of these suits are not pro se. Now when you’re focusing exclusively on pro se, I think you’re getting into a little bit of a different area. I’ve spent time personally on some of the Web sites that a lot of pro se litigants frequent…I would have to say they are far more radicalized element of society, and there’s certainly I think reason for concern.

“You’re dealing with somebody who’s looking for an opportunity. They revel in either getting opportunities or making opportunities to try out everything they’re learning online. That’s hardly an exaggeration,” he says, laughing. “It’s really an experience spending time there!”

Gordon may have a personal vendetta against Cunningham types, but so do others who represent the collection industry.

ACA International is the largest trade group representing third-party debt collection agencies. Tom Morgan is the Texas executive director for ACA International and he believes that FDCPA lawsuits will continue to rise as more and more people in this economy can’t pay their debts. He views the agencies as a kind of indirect victim in the rising tide of consumer fury and desperation.

“While our members do get filed on from time to time, the FDCPA is so highly technical there are quote, technical, violations that can occur,” Morgan says. “You know, somebody makes a mistake. But there’s no intent, OK, to defraud people or to violate the law.

“Usually it’s settled because the agency says, Uh, we didn’t intend to do that. Our collector said the wrong thing and we fess up and say, ‘I didn’t mean to do it but I did it…

“And this is where some of our members feel aggrieved in that because there’s a hyper-technical opportunity for a plaintiff’s attorney to come in, it is cheaper to settle than to fight it. And sometimes they’d really like to fight it because they don’t believe they are guilty, but it’s so costly, so they settle it.”

Thomas Stockton is on the executive committee of ACA International and also the founder and chief executive of a local collection agency, CMI. (Cunningham is in the midst of an ongoing legal dispute with CMI, which picked up his outstanding Time Warner debt.)

“In my opinion there are two reasons why there are more suits being filed today,” Stockton says. “You’ve got the Internet sites…And, it’s easy to file suit. You can do it on your own. You don’t have to have an attorney.”

Stockton says, however, that the better question is how many of the suits are successful.

The answer depends on how you define success. Debt collectors point to all the settlements they are forced to make because it’s cheaper than fighting a frivolous suit. To Cunningham and other pro se litigants, any payment is a victory.

“Does if make sense to spend $10,000 to win this suit or pay the litigant $500 to settle?” says Stockton. “Depending on the situation, it becomes a business decision at some point.”

Cunningham filed his lawsuit against Credit Management, L.P. (CMI) in August 2009, claiming violations in the amount of around $200,000—by far his gutsiest lawsuit yet. The original bill for Time Warner was for $79.84 back while he was living in El Paso. Cunningham admits he may have missed the last payment for the Time Warner bill. Time Warner, rather than validate the bill, sent his account to a collection agency. That was ACS, which Cunningham sued for violating his Texas rights, as well as federal law. ACS closed his account, but the debt wasn’t forgiven. Instead, CMI picked it up.

CMI started calling Cunningham’s cell phone with an auto-dialer, leaving prerecorded messages to please call them immediately regarding an outstanding bill. Cunningham told them to stop calling his cell phone on the auto-dialer, but they continued, each call a violation of TCPA. As Cunningham disputed the bill, CMI by law is also expected to cease collection efforts. So every call was another violation of FDCPA. Plus, to this day, CMI has not provided Cunningham with anything from Time Warner, he says, either a bill or a letter, verifying that he in fact owes anything, another violation of the law. “I don’t really know if I owe it,” Cunningham says. “If I do, send me a bill. If they don’t want to send me a bill, I don’t think I need to pay ‘em.”

CMI has countersued Cunningham, and even asked the court for a protective order from Cunningham: “Plaintiff Craig Cunningham (herein “Plaintiff”) has filed suit against a business, Credit Management, LP (herein “CMI”), and twenty-seven (27) of its employees in their individual capacities,” reads the motion for a protective order filed in Northern District of Texas in December 2009. “Defendants move for a protective order to protect Defendants from the annoyance, oppression, undue burden and expense of objecting and responding to improper, repetitive and irrelevant discovery requests.”

In December, Cunningham was called in for a six-hour deposition, the longest he’s ever sat through, at which the lawyers printed out pages of his online comments to accuse him of acting like a lawyer. Plus, CMI insists that they didn’t violate any laws and that Cunningham is acting in bad faith. Although the company already offered Cunningham money to settle the case, Cunningham refused, asking for much more than the “industry standard,” as Cunningham calls it, of $3,500.

“If they don’t pay a bunch of money, if they don’t feel pain, they will not change,” he says.

A big win in his case against CMI could go a long way toward clearing Cunningham’s debts—if he ever chose to pay them, that is.

“I took outsize risks, and I got burned,” he says. “When myself and some other fellow small investors were losing their assets, nobody cared.”

Up until now, everything was about making easy money for Cunningham. Now, it’s about justice—or at least what he sees as justice.

“When you or I make a mistake, they say, ‘Hey, tough nuts, be smarter next time, you know, bad luck, didn’t work out for ya,” he says. “When the fat cats on Wall Street make a mistake, they say, ‘Oh, national emergency! We’ve got to bail these guys out.”

Since nobody has showed up to bail Cunningham out, he’s decided some of the $100,000 debt he once amassed will never get paid back.

“I already paid them off,” he says. “The government took my money without asking me and gave it to the banks. And since I owe the banks money, but they already got my money from the government, I say we’re even.”

Attorney General Darrell McGraw has sued Capital One Bank (USA), N.A. and four other companies in the Circuit Court of Mason County for unfair and deceptive acts and practices, unlawful debt collection practices, and unconscionable conduct in connection with their credit card lending and collection practices.

Capital One Bank (USA) is a national bank headquartered in Glen Allen, Virginia. It has about 500,000 credit card accounts with West Virginia consumers. Capital One Services, LLC, Capital One Services II, LLC, Capital One Services III, LLC, and COSI Receivables Management, LLC are Delaware corporations that service and collect on the credit cards issued by Capital One Bank.

The complaint filed in Mason County is based on numerous violations of West Virginia’s consumer protection laws. The complaint alleges that Capital One solicited consumers to enter into debt repayment plans by sending them solicitations that were disguised as offers of new credit. The offer was sent to consumers who had charged-off accounts with Capital One or other creditors. Under the terms of the offer, Capital One agreed to provide the consumer $1.00 of new credit in exchange for the consumer’s agreeing to transfer the entire account balance of a charged-off account to the new credit card account. The consumer was required to make payments on the old debt in order to receive any further increases in the credit limit on their new credit card.

By transferring the old debt onto a new credit card, Capital One was able to charge interest, late fees, and over-the-limit fees on debt that otherwise would not have been subject to those fees. It also allowed Capital One to re-age the debts so that the applicable statute of limitations period started new.

The complaint also alleges that Capital One: issued multiple low-limit credit cards, each charging exorbitant fees, rather than raising credit limits on consumers’ existing accounts; unconscionably imposed over-the-limit fees on consumers’ accounts; sold services to consumers who could not benefit from the services; and, billed and attempted to collect for credit card accounts that were never activated.

Attorney General McGraw stated, “Capital One’s practice of offering nominal extension of credit, if and only if, the consumer agreed to pay off a debt too old to be sued on is tantamount to loan sharking.” Until recently, the Attorney General was under a federal court injunction that prohibited him from suing the bank for its credit card practices; however, on January 4, 2010 United States District Court Judge Robert Goodwin granted the Attorney General’s motion to modify the injunction. Under the new order, the Attorney General is not prohibited from suing the bank to enforce non-preempted substantive state laws.

For more information or to file a complaint, please contact the Attorney General’s Consumer Protection Division. Call 1-800-368-8808, write to P.O. Box 1789, Charleston, WV 25326-1789, or visit his website at wvago.gov.

HousingWire - Fraudulent reductions in Home Equity Lines of Credit (HELOCs), revolving credit collateralized by one’s home, may become the focus of a forthcoming series of state-led hearings in Tallahassee, and the man behind the plan is setting big banks in his sights.

Florida State Senator Mike Haridopolos is calling for a round of investigations to explore claims that banks fraudulently or arbitrarily reduced HELOCs to improve their bottom lines, according to a press statement this weekend.

“I have heard the stories of this happening across our state and our country, and the courts are filled with lawsuits,” Haridopolos said. “This needs to be investigated because, if true, it’s outrageous.”

The Republican State Senator is also calling on Congress to conduct national hearings. Specifically, Haridopolos is urging the examination of this alleged practice within banks that received government funds through the Troubled Asset Relief Program (TARP).

“When Congress gave away the taxpayers’ money to the banks, they guaranteed the public that if the banks did not use it to lend money, they would immediately call for hearings and hold the banks accountable,” Haridopolos said.

He added: “Since then, we have seen the President sit down with the leaders of the big banks and refuse to meet with the average Americans who are being hurt by their practices… I can tell you, the banks may control [Washington] DC, but the people control Florida and we’re going to keep it that way.”

Haridopolos is calling for hearings to feature testimony not only from homeowners, but consumer groups and banks, “so that everyone has a chance…to weigh in,” according to the press statement.

Federal regulations allow HELOC suspensions under adverse financial circumstances and in situations where the underlying property experiences a significant decline in value. According to the statement from Haridopolos’ office, homeowners claim banks allegedly use false pretenses in order to freeze their family capital.

Florida is not immune to the substantial peak-to-trough house price declines. And a spokesperson for Haridopolos told HousingWire some borrowers claim banks order no appraisals and make no assessment of actual property value decline before freezing their HELOCs.

Similar claims by an Illinois homeowner recently resulted in a suit against JP Morgan Chase (JPM: 39.21 +0.13%). The suit alleged Chase froze a HELOC without disclosing its valuation methods or explaining to the borrower to what degree the house value fell.

Despite the allegedly fraudulent HELOC freezes and the scarcity of new HELOC lending, consumers in hard-hit areas like Florida are still buying in ways that aren’t measured against the backdrop of local foreclosures and price declines.

Time to get those Banksters.

For the eyes of the Lord [are] over the righteous, and his ears [are open] unto their prayers: but the face of the Lord [is] against them that do evil.

Sarah Bloom Raskin, Maryland Commissioner of Financial Regulation, announced that her office, a division of the Department of Labor, Licensing and Regulation, has summarily suspended the collections activities of Rockville-based Mann-Bracken, which describes itself as one of the nation’s largest debt collections law firms. This enforcement action follows an investigation which revealed that Mann-Bracken was ceasing business activities, such as failing to cash checks that had been sent to the firm in connection with collection related matters. Last week, the firm notified Maryland courts that it “will be closing at the end of the month” and was “working with clients to transfer cases.”

“We are determined to make sure that consumers receive the protections they deserve whether collections are done through the mail, on the phone or, increasingly, through our courts. When they do not, we will act and act quickly,” DLLR Secretary Alexander M. Sanchez said.

The State Collection Agency Licensing Board, a board within DLLR’s Office of the Commissioner of Financial Regulation, issued a summary order today that suspends all of the firm’s consumer debt collections activities, including collections actions in Maryland courts, and prohibits the filing of further collections-related cases.

“This is yet another in a string of problems we are uncovering as the collections industry has made a headlong rush for our state’s courtrooms,” Commissioner Raskin said.

Last month, the Commissioner of Financial Regulation reached an agreement with Encore Capital, Midland Credit Management and related parties to settle alleged violations of federal and state debt collection laws. That settlement included a civil penalty of $998,000 and an agreement to alter certain business practices to ensure that both their litigation-related collection activities and their non-litigation (or “traditional”) debt collection activities comply with all applicable state and federal laws. Mann-Bracken represented Encore-Midland, as well as various other businesses, in thousands of collections-related actions initiated in Maryland courts over recent years.

Measure to help bring stability to home values and accelerate sale of vacant properties

In an effort to stabilize home values and improve conditions in communities where foreclosure activity is high, HUD Secretary Shaun Donovan today announced a temporary policy that will expand access to FHA mortgage insurance and allow for the quick resale of foreclosed properties.  The announcement is part of the Obama administration commitment to addressing foreclosure. Just yesterday, Secretary Donovan announced $2 billion in Neighborhood Stabilization Program grants to local communities and nonprofit housing developers to combat the effects of vacant and abandoned homes.

The waiver will take effect on February 1, 2010 and is effective for one year, unless otherwise extended or withdrawn by the FHA Commissioner.  To protect FHA borrowers against predatory practices of “flipping” where properties are quickly resold at inflated prices to unsuspecting borrowers, this waiver is limited to those sales meeting the following general conditions:

• All transactions must be arms-length, with no identity of interest between the buyer and seller or other parties participating in the sales transaction.  
• In cases in which the sales price of the property is 20 percent or more above the seller’s acquisition cost, the waiver will only apply if the lender meets specific conditions.
• The waiver is limited to forward mortgages, and does not apply to the Home Equity Conversion Mortgage (HECM) for purchase program.

Specific conditions and other details of this new temporary policy are in the text of the waiver, available on: FHA 90 Day Waiver

My husband and I were one week from closing on a house when we got a denial call from the mortgage company. When they check his credit to prequalify they found that My husband has or had 0 credit. When they went back to check our credit before closing, they found a 2600.00 collection debt on my credit. upon some investigating it appears to be my husbands debt. It appears that they placed it on my credit report, instead of his is that legal?

he sublease [without having him sign any papers] his apartment to a friend who moved out oweing rent. I had nothing to do with that. wh and how can they go after me?

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