Onewest Bank / Breach of Contract

Los Angeles, CA, United States

My wife and I originated 2 loans with IndyMac Bank, FSB in March of 2006 for a home purchase in Southern CA. Less than 2 months later these loans were pooled with thousands of other mortgage loans under a pooling and servicing agreement and DEUTSCHE BANK became the creditor, IndyMac Bank, FSB remained the servicer of our 2 loans. In September of 2006 we incurred significant financial hardship when I lost my job of over 10 years. We had a substantial amount of savings, 401K and a pension to draw upon and continued making our loan payments. Over the next 2 years our income did not recover and we had drained most of our savings, 401K and pension to stay current on our home loans.
On July 11th 2008 IndyMac Bank, FSB failed and was closed by the Office of Thrift Supervision. The FDIC was named Conservator under the newly formed IndyMac Federal Bank. In October of 2008 we began contacting IndyMac Federal Bank to explained our circumstances and made clear we would soon be unable to make payments under the current terms. We were informed that the only modification programs available at that time were for those already in default, thus we did not qualify. It is then that we stopped making payments on our 2 loans. Amazingly in January of 2009 we received a modification offer from IndyMac Federal Bank in regards to our first loan. We completed and submitted all requested documents including the signed modification agreement along with a check prior to the due date of 1/31/2009. In February of 2009 we received a modification offer in regards our second loan. We again completed and submitted all requested documents including the signed modification agreement and a check prior to the due date of 2/28/2009. Here is where it gets interesting…
On March 19th 2009 the FDIC sold the assets of IndyMac Federal Bank formerly IndyMac Bank to a brand new bank called OneWest Bank, FSB. This is less then three weeks after our paperwork on the second loan modification was received and the check deposited by IndyMac Federal Bank. We of course were unaware that OneWest had obtained the servicing rights to our loans as no written or oral confirmation of such was received. Also in March 2009 we received our April loan statements. The amount on our first loan statement reflected the modified amount however the statement for our second loan did not, it remained the original loan amount. We were not alarmed as we simply assumed that the paperwork had not made it through prior to the statements being mailed. Oh how we were wrong… My wife contacted the customer support number from the loan statement and proceeded to explain that the loan amount was incorrect as we had completed a loan modification in February. The representative informed my wife that the modification was not valid because I had not included my middle initial when the Loan Modification was signed. Remember at this time we were unaware that OneWest had taken over the servicing of our loans, we thought we were still dealing with IndyMac Federal Bank. A day after my wife’s call I spoke with another representative regarding the loan modification of our second loan. The representative stated to me that if I could sign another copy of the loan modification and FAX it to his attention that he would “push it through”. I did exactly that and FAXed it the same day, we never heard back from bank. Over the next several days many calls were initiated by us with believed to be IndyMac Federal Bank representatives in attempt to clear up the bogus claim that my signature was not valid. In all cases we were unsuccessful.
On April 10th, 2009 we received 2 letters on IndyMac Federal Bank letterhead giving notice that the servicing rights of our mortgage loans had been transferred to OneWest Bank, FSB effective March 19, 2009. Both letters were signed by J.K. Huey an employee of OneWest Bank, FSB. Why was OneWest using IndyMac Federal Bank letterhead? On April 10th, 2009 we received a letter again on IndyMac Federal Bank letterhead regarding our “recent request to modify the terms of your mortgage…” The letter stated:
…OneWest Bank, FSB is not able to modify your loan terms because we have not received all of the information and/or documentation requested from you, despite our having provided ample time for your submission of this material. Because we have not received the requested information and/or documentation, we must decline your request for a modification.
The letter did not state which loan modification is in question but we assume it was in regards to the second loan modification. The statements in the letter are fraudulent based on the fact that both modifications were completed and all documentation received prior to the respective due dates. The letter was intentionally misleading as it claims OneWest Bank was involved in the loan modification process. The loan modification was complete with IndyMac Federal Bank in February 2009 prior to OneWest Bank acquiring the servicing rights on March 19th 2009. As such OneWest had no authority to retract or deny the loan modification. And again, why was OneWest using IndyMac Federal Bank letterhead? I believe it was intentional to lead us into believing IndyMac Federal Bank had denied the loan.
After many weeks of contacting OneWest in attempt to have them adhere to the second loan modification, In July of 2009 PLAINTIFFS sought legal counsel regarding the fact that OneWest was in breach of contract. Our Attorney wrote a letter requesting a response within 10 days, OneWest did not respond to this letter. We continued to make payments on both loans through September of 2009 in the amounts per the modification agreements, on each occasion the checks were cashed by OneWest.
In February of 2010 in response to a Freedom of Information Act request we received an email that stated in part:
I have been advised by the FDIC’s Division of Resolutions and Receiverships (“DRR”) that at the time of the sale of the business of IndyMac Federal Bank, FSB (“IndyMac”) to OneWest Bank, FSB (“OneWest”), only the servicing rights on the subject loans where held by the FDIC as Receiver for IndyMac. Both of the loans were owned by Deutsche Bank. According to DRR, when the servicing rights were transferred to OneWest, both loans were current.
Since we were in default prior to the loan modifications, for the FDIC to state our loans were “current” the loan modifications had to have been completed. This is further proof against OneWest’s claim that the second modification was invalid.
In September of 2010 we filed a civil complaint in the Los Angeles Superior Court as Pro Per’s (we are representing ourselves). We have trudged through the seemingly endless pleadings and finally after our third amended complaint the court has seen the validity of our case and we have a trial date set in July of 2012 for Breach of Contract, Fraud, Breach of Implied Covenant of Good Faith and Fair Dealing and Violation of Business & Professions Code §17200
Now we need the help of others who have been wronged by IndyMac/OneWest. If your story is similar to ours or if you were offered a trial loan modification that was rejected after you completed all payments we could use your help at trial. Please contact us and Maybe we can help you fight back as well.

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