LOAN FORBEARANCE AGREEMENTS MUST BE IN WRITING

From CAR Newsline, email dated October 29, 2008:


A lender's agreement to forbear or refrain from foreclosing on a home must be in writing and signed by the lender, even if the borrower has performed on the agreement by making a payment. This was the ruling of the recent appellate court case of Secrest v. Security National Mortgage Loan Trust (2008 WL 4516413). This case serves as a good reminder for REALTORS® and their clients to get loan forbearances, loan modifications, and other agreements with mortgage lenders in writing and signed.

In this case, the borrowers of a home loan defaulted in 2002. In a phone conversation, the bank's loan resolution consultant agreed to enter into a forbearance agreement to refrain from foreclosing if the borrowers paid the arrearage by making an initial payment of $13,422 followed by monthly installments. The loan officer then faxed an unsigned written forbearance agreement to the borrowers. The borrowers noticed errors on the proposed agreement, and at the loan consultant's instructions, they corrected those errors on the document itself, signed it, and returned it to the loan officer along with the $13,422 initial payment. The lender, however, never signed the forbearance agreement. Instead, the lender sold the note and deed of trust, and two years later, the new lender filed a notice of default.

The borrowers in this case filed a lawsuit to stop the foreclosure claiming that, because of the forbearance agreement, the notice of default overstated the amount of the default. The court disagreed. The court noted that, under the statute of frauds, a mortgage loan must be in writing and signed by the party against whom enforcement is sought. Similarly, if an agreement is subject to the statute of frauds, an amendment to that agreement also is subject to the statute of frauds. The court held that, in this case, the forbearance agreement at issue was not enforceable because it was not signed by the lender.

The borrower nevertheless argued that a signed agreement was not required because they partly performed by making the $13,422 initial payment. Again, the court disagreed. The court ruled that the payment of money is not "sufficient part performance to take an oral agreement out of the statute of frauds," because the borrowers paying money under an invalid contract "have legal means to recover that money if they are entitled to its return or have not received credit for it."