KRAMER & KASLOW “MASS ACTION” FAQS
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1. How do I know if litigation against my lender is right for me?
A. The following criteria are fundamental for a client inclusion in the mass joinder case:
a. Any Purchase Money (original) or Re-Fi mortgage loan made between 2003 and 2007*
i. Loans made outside this time window may also “fit,” but 2003 to the end of 2007 are the years that all five causes of action directly apply to
b. Loans were made by the included list of lenders (mortagors):
i. Named lender Defendants so far are Bank Of America (including Countrywide, Merrill Lynch, First Franklin), Wells Fargo (and Wachovia), JP Morgan Chase (and WAMu, OptionOne), Citibank, OneWest (and IndyMac), and (coming soon) GAMC (and Ally Bank).
ii. Other lenders may be added in the future, including US Bank, Sovereign Bank, EverBank, HSBC, MetLife Bank, Ocwen, and SunTrust Banks.
c. Loan transaction handled by MERS
d. Loan was securitized (bundled and sold in the secondary market)
e. Client may or may not still live in the subject property
f. Client may or may not be in foreclosure, or have been in foreclosure at any time
2. Can we help a client who has already lost their home due to foreclosure?
A. YES! Although we cannot guarantee the return of the property to the homeowner
we will seek additional damages.
3. Does a client stop paying their mortgage when involved in the litigation process?
A. NO! Clients should use best efforts to continue making their mortgage payments
unless instructed specifically by counsel. Clients should be advised that failure to make their mortgage payments will likely have negative implications. It is not true that a foreclosure will automatically be halted merely by suing the lender.
4. What are the case merits that have propelled MLA attorneys forward in filing these cases?
A. The following claims are being asserted in the mass action cases:
a. Claims include:
i. Fraudulent Concealment
ii. Intentional Misrepresentation
iii. Negligent Misrepresentation
iv. Statutory Violations
v. Unfair Business Practices
b. The following are added foundational elements for the additional suits pending:
i. MERS (Beneficiary processes, rights to foreclose, robo-signing of documents)
ii. Proof of Note (security instrument, chain of title)
iii. Proof of Funds (Patriot Act Violations)
iv. Phantom Investors and Beneficiaries
c. Both monetary damages and injunctive relief are sought
5. What were the reasons behind choosing the specific banks?
A. The specific lenders were identified by counsel as having utilized MERS within
the course of their loan transactions, failing to comply with various statutes and violating the law when making the loans (“predatory lending practices”) and/or subsequent servicing of them.
6. What are the potential outcomes of a case like this?
A. The following represent potential outcomes for each of the mass litigation lawsuits filed:
1. Pre-trial settlement: As each client joins the mass joinder action the lender will receive a pre-trial settlement demand. Either through the form 998, or any time thereafter, the litigator may negotiate a viable settlement.
2. Amnesty Program: It is foreseeable that the government may become involved in this crisis. If so, counsel will work with legislature to create an potential amnesty program. The results of which will likely be a universal modification approach. If successful, this process will likely indemnify the lending institutions from multi trillion dollar litigation while providing homeowners universal term reductions. Counsel anticipates our clients "having a seat at the table" may afford increased settlement options.
3. Judgment: Counsel's ultimate goal will be to seek a complete dismissal of the lien by jury trial final verdict.
7. What is the time frame for a case like this?
A. The actual time frame for the new suits is undetermined at this time. There are many factors that could expedite or extend the litigation process. As a result, the plaintiff borrower should prepare for a lawsuit that remains pending for 1 – 3 years, perhaps longer. While it is understood most homeowners would seek a quick resolution it is often in the homeowners’ best interest to extend the time frame allowing the larger aggregation of plaintiffs, as the more plaintiffs the more pressure applied to the defendants. In addition these cases are commonly placed within the complex litigation division of the Superior Court.
8. What is a Mass Joinder case and how does this differ from a class action or
individual lawsuit?
A. Here are some of the fundamental differences between a mass joinder suit and a class action suit and individual lawsuits.
1. In a class action suit plaintiffs are not identified as individual clients. They are one collective group. Additionally their individual causes of action are not identified therefore they must accept the same a uniform class action settlement. The vast majority of class action settlements result in attorneys collecting the bulk of the award.
2. In an individual lawsuit the client bears the burden of the entire litigation expense.
3. Mass Joinder allows individual plaintiffs to aggregate together to share the cost of litigation. In addition each client maintains the autonomy to accept or reject pretrial settlement terms as well as their respective case results according to their individual award/damages.
9. How does this differ from some of the battles borrowers faced with the "Loss
Mitigation" (loan modification) process?
A. Here are some of the major differences separating a litigation approach verses the
traditional loss mitigation process:
1. Your litigator is not submitting documentation with the hopes the lender acts in good faith, your litigator is issuing pre-trial demand settlements at terms that tremendously benefit the homeowner and will continue to sue the banks until judgment or until the bank agrees to a viable solution. For a nominal fee, our attorneys can also file a notice with the county recorder where the property is located which places a notice of pending litigation on the property title which may discourage the lender from putting the property up for foreclosure sale.
2. Attorneys directly overseeing case management with attorney updates provided directly from counsel to plaintiffs, and case updates will be posted on our website.
3. Rather than being subject to lender choice guidelines, litigation notifies lenders that they are in potential violation of lending laws, settlement demand letters will be sent to the defendant lenders, and mandatory settlement hearings will take place.
10. If a client is already in the Loss Mitigation process or has already been offered a
modification are they still eligible for the litigation process?
A. YES (subject to attorney review on an individual basis)
11. What documentation is needed to sign a client up for the Litigation?
1. Executed Litigation retainer agreement (accompanied with payment in full to Kramer & Kaslow)
2. Copy of the Trust Deed
3. Copy of the Mortgage Note
12. What is the process once clients sign up for the Mass Joinder Litigation?
A. Litigation of this size is a complex time consuming process. The following is a very brief outline of the litigation process:
1. Attorney Retainer Agreement Executed and payment in full received
2. Copy of the Deed of Trust and Copy of Note submitted with file
3. Attorney consultation and enrollment into case
4. Clients will officially become listed plaintiffs when the complaint is amended, which will occur every 30-90 days – we will then post the new Amended Complaints on our website
5. 998 Offer and Compromise (demand letter sent to defendant)
6. Seek foreclosure injunction / moratorium
7. Discovery (statutory exchange of documents, evidence, support of allegation’s, etc)
8. Settlement Hearings/Discussions/Negotiations
9. vii. If no settlement is reach, trial by jury
10. viii.Judgment - best case scenario is jury finds defendants guilty on all claims and mortgage at issue is voided; also punitive damages of up to $75,000 per plaintiff are being sought
13. I know hiring an attorney for a case like this could cost me tens of thousands of
dollars in costs and legal fees. How can I afford an attorney for a drawn out lawsuit like this?
A. This is the benefit of the MLA Mass Joinder suit. Normally attorneys in a case like this would charge tens of thousands of dollars as a retainer, with many more thousands owed in legal fees and costs over the course of litigation. In a Mass Joinder case Plaintiffs join together to help share the costs of a case like this. Instead of paying high legal costs individually all plaintiffs share a significantly reduced price while benefiting from "strength in numbers".
There is no definitive timetable regarding your opportunity to join, however these cases may be available only on a limited basis.
Unlike a class action, only people who take proactive steps to join the lawsuit as plaintiffs will be included.
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