The loan modification offer was hard to turn down, in more ways than one. It was July 2008. IndyMac Bank was failing and Fannie Mae and Freddie Mac were in a death spiral.

Ballooning monthly payments were still a big worry for homeowners who had taken out adjustable-rate mortgages a few years earlier. Lenders and regulators worried about the risk of ARM defaults, too.

In that environment, Aurora Loan Services, a unit of the not-yet-bankrupt Lehman Brothers, approached some of its ARM borrowers with what must have sounded like a sweet deal. The servicer offered to lock in the teaser rates for five years from the date they were scheduled to start adjusting. A signature wasn't needed. One only had to make two consecutive payments at the current rate and the loan would automatically be modified. But the offer letter did not spell out how one could opt out of the modification offer, apart from failing to make the two mortgage payments (which would mean defaulting and potentially losing the home). And one borrower now said he didn't receive the letter at the time, and learned his loan had been modified only after the fact.

Why would a borrower want to opt out? Someone who was prescient about economic trends might have guessed rates would drop dramatically. In hindsight, freezing the rate meant the borrower ended up owing thousands of dollars more the last few years. Rather than preventing defaults, did the mods precipitate them? That's the claim of Andrew WeissMalik, the borrower who says he didn't get his offer letter and who now is suing Aurora.

"Aurora's target audience was not a high-level savvy borrower but rather a stated-income borrower," he said. "How many of those borrowers have gone into default and would not have if their rate had adjusted down? They would have been able to make that payment."

Despite his use of the word "predatory" to describe Aurora's actions, WeissMalik is not a typical borrower plaintiff. He's a mortgage banker by trade. And he's using his industry knowledge to make a case challenging Aurora's authority to change the terms of his loan — and potentially those of other borrowers' loans.

WeissMalik, who works as a vice president at 360 Mortgage Group, a wholesale lender, sued Aurora in U.S. District Court in Utah late last year for breach of contract, fraudulent nondisclosure, and violations of the Real Estate Settlement Protection Act and Truth in Lending Act.

He seeks to recoup from Aurora the $20,000 he says he was overcharged over a roughly two-year period because Aurora failed to lower his interest rate under the loan's original terms. The suit also seeks class-action status. Attorneys and a spokeswoman for Aurora did not respond to requests for comment.

According Fitch Ratings, as of July 31 last year Aurora serviced nearly 373,000 loans with an unpaid principal balance of more than $87.1 billion. It's unclear how many of the loans were ARMs, let alone how many Aurora might have solicited for mods two and a half years ago.
Melyssa Davidson, a lawyer with Parsons Kinghorn Harris who represents WeissMalik, said Aurora did not give borrowers a chance to reject the new terms.

WeissMalik's rate was scheduled to adjust for the first time in September 2008. When he received his statement and saw the amount hadn't changed, he called Aurora. He said he was told the rate had been frozen by a federal mandate issued by then-President George W. Bush. (September 2008 was when Lehman filed for bankruptcy protection and Fannie and Freddie were placed into conservatorship.)

WeissMalik was skeptical — there was no such federal freeze — but falling rates also kept him busy as a mortgage originator. In late 2008 he moved to Texas to take the 360 Mortgage job, and put his Utah home-loan problem "on the back-burner," he said, and didn't contact Aurora again until November 2009. A month after that, Aurora told him he had consented to the terms of the July 2008 modification letter (the one he says he didn't get) by continuing to pay his mortgage. Indeed, the form letter says that "we will assume that you have accepted this offer if you make two on-time payments following your adjustment date at your current, unadjusted monthly payment amount."

The letter describes only one way to decline the offer: it told borrowers that if they did not make the two required mortgage payments, the servicer "would assume that you declined our offer and we will adjust the interest rate and monthly payment as provided in your mortgage note."

"To reject Aurora's 'offer' for modification," Davidson said, "WeissMalik would have to be required to default on his mortgage loan … thereby damaging his credit score and putting himself at risk of other adverse risks of nonpayment."

Adam Levitin, an associate law professor at Georgetown University, said that without a borrower's consent, "not defaulting on your mortgage can hardly be interpreted as an assent for giving up what could have been a very advantageous adjustable rate." He also questioned the timing of Aurora's mod offer. "If you think the Fed is going to be bailing out banks" — as some were correctly predicting in mid-2008 — "it's a pretty easy guess that rates would drop to zero," Levitin said.

Despite the threat of legal action, Aurora refused to adjust his rate. In December 2009, WeissMalik received a letter from Aurora offering to convert the loan back to its original terms beginning in February. He rejected the offer because Aurora wouldn't restore the original terms retroactively. In the letter, Julie Richtel, an Aurora senior vice president, reiterated the position that Aurora had "neither adjusted the interest rate of your mortgage loan or your monthly mortgage loan account payment … because you met the terms of the offer letter."

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