CA court affirms $250K for dual tracking in Bergman v JPMCB
Read the opinion here:http://www.courts.ca.gov/opinions/nonpub/E060148.PDF
This California 4th District appellate opinion contains a treasure trove of virtual advice for borrowers whom the lender scammed with a fake loan mod while foreclosing on him at the same time ("dual tracking."
The panel fully supported the opinion of the trial court which awarded Bergman $250,000 in damages plus legal fees. The court would have awarded him much more had Bergman's attorney hired Law Partner On Call (http://lawpartneroncall.com) to manage the litigation, write the pleadings, and write the jury instructions.
Bergman got his payday for breach of contract by his creditor, but he made a bunch of mistakes.
For example, he did not include an attorney fees provision in his loan security instrument (that standard form only says the creditor can recover legal fees and costs) in the event the court finds that the creditor or servicer or other agent engaged in wrongdoing that injured the borrower. The court awarded Bergman fees anyway, but against great opposition by the creditor. Most borrowers make the same mistake.
And, Bergman failed to add to the security instrument that a special penalty attaches to dual tracking, a scam that virtually every lender has run on desperate borrowers who want a loan mod.
Furthermore, Bergman made the same mistake many do in loan mod negotiations - he failed to record the name and ID# of everyone he talked to at the bank, and he failed to get a signed writing saying he had to miss payments in order to qualify for the loan mod, and that if he missed them, then made proper trial payments, the lender would grant the loan mod. Everything was oral leading up to the actual mod. And oral agreements have no more value than the paper on which the parties wrote them. The lender's attorney blustered about it, but the court ruled that the parties had indeed make that agreement, then failed to give Bergman a loan mod. I believe many courts, faced with similar facts, have ruled that no agreement existed.
Bergman's most monumental mistake: he failed to hire a competent professional to examine his loan documents for evidence of torts, contract and regulatory breaches, and legal errors. Had he done that, and lodge those as claims in his complaint, he could have won gargantuan damages award because, almost certainly, fraud underlay his loan.
Bergman while in the right, found uncommon good luck in this litigation. Many borrowers have lost using his paper-thin arguments.
READ THE OPINION thoroughly, especially if you have a mortgage and consider a loan mod.
But if you really want to win, call me right now at 727 669 5511 and schedule a mortgage examination, whether or not you face foreclosure. Read all about what wins and what does not win at http://mortgageattack.com.
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