"Coercive", "Unethical" Banks Hold Mortgages Hostage Over Non-Disparagement 'Gag' Order

Tyler Durden's picture

"They are without a doubt the worst organization I have ever dealt with. Keep suing them America! They deserve it!!" is the way one Bank of America client described the bank and the current actions that many of the mortgage banking business are undertaking will not improve the situation.

As Reuters reports, many of the 20 million homeowners in America are being held hostage on their mortgage modification process by an extra clause being added to the docs: they could not say or print or post anything negative about the provider, ever. These "gag orders" are becoming more frequent and Consumer law defenders are concerned, ""If your servicer screws up, you can't say anything about it... the homeowner has no defense."

The non-disparagement clauses are meant to protect banks from public insults from borrowers but the CFPB said the practice was "unfair," and has already required two servicers to cease the practice... "The banks are attempting to hold our clients hostage with a provision they know we cannot agree to... it is coercive and unethical."


Mortgage modifications continue...

During the past few years, loan servicers have been renegotiating mortgage terms with borrowers who have fallen behind on their payments. Since the housing crash, there have been about 1.3 million loan modifications done under the government's Home Affordable Modification Program, according to the U.S. Department of Treasury. Servicers have done an additional 5.6 million modifications in-house.


Companies like Ocwen say that modifying mortgages is cheaper than foreclosing. Servicers modify mortgages through some combination of changing monthly payments or interest rates, lengthening the terms of loans, and changing the principal owed, either by forgiving some of the loan or by adding on penalties and fees to make it bigger.

But, as Reuters explains, servicers and providers have added a little extra...

Gag orders and bans on suing are appearing when borrowers use litigation to settle foreclosure and loan modification cases. But they are also popping up when servicers modify loan terms outside of the courts, known as "ordinary loan modifications," according to consumer lawyers.


... they found that Ocwen Financial Corp, the company that collected and processed their mortgage payments, had added an extra clause: they could not say or print or post anything negative about Ocwen, ever.


The... experience was not unusual. Mortgage payment collectors at companies including Ocwen, Bank of America Corp and PNC Financial Services Group are agreeing to ease the terms of borrowers' underwater mortgages, but they are increasingly demanding that homeowners promise not to insult them publicly, consumer lawyers say. In many cases, they are demanding that homeowners' lawyers agree to the same terms. Sometimes, they even require borrowers to agree not to sue them again.




Clauses preventing future disparagement and lawsuits first started appearing after the housing crash, but they have grown more widespread in the last six months, said Ira Rheingold, executive director of the National Association of Consumer Advocates in Washington.

Which as the following law professor notes, is not 'reasonable'...

"The banks are attempting to hold our clients hostage with a provision they know we cannot agree to," said University of Notre Dame law professor Judith Fox, who runs a clinic for troubled homeowners and who has also petitioned the Indiana Bar Association over attempts to muzzle attorneys. "It is coercive and unethical."

And regulators are starting to pay attention...

On Wednesday, New York's Lawsky said he too was alarmed by servicers' using the clauses.

"Reports that Ocwen is imposing a gag rule for certain struggling homeowners - preventing them from criticizing the company - are troubling and deeply offensive," said Lawsky in an emailed statement to Reuters. "We will investigate this issue immediately."

Homeowner attorneys say they advise their clients not to sign non-disparagement agreements. But some of them do so just end the ordeal.


Source: Reuters - read more here

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NoWayJose's picture

Freedom of speech is a barbaric relic from the past.

BrosephStiglitz's picture

Someone needs to get that golden-haired wunderkind Bart Chilton on the case.

Edit:  This article though seriously.. "Regulators drool at the potential commissions which can be made as they ride the wave of political dissent against an onerous banking sector."  The entire system needs a reset.

JLee2027's picture

The pen is mightier than the sword. 

True only until you face a sword.

RabbitChow's picture

Never bring a pen to a sword fight.

CPL's picture

Depends how you write about them doesn't it?  Can't say anything bad...but you can always overplay the positives until it's ridiculous.


"I found the mortgage services provided by bank XYZ excelled at their pamphlet design and firm, sweaty handshakes.  The frisking of my pockets by the loan officer was very gentle and hardly disruptive to the paper signing process.  I did find the dry leg humping to refocus my attention during the ownership discussion of the loan.  

I understand and find it completely fair all the ownness is on myself on an over leveraged market artificially held together by the very people that hold the loans, this is personally and deeply reassuring.  Nothing could possibly go wrong with this system. 

Yes I would like mortgage insurance, it's so sensible.  Because if I'm dead, I'll really care if my death is insured by the bank that holds my loan to a home I won't actually own for 30 years.  Just makes total sense as a business relationship helping a bank bet on me being dead to cover their business loss.

In the near future, I hope to give 6% on a half million dollar loan to complete strangers over 30 years with 5% down.  At this moment though I am currently unmarried and should first find an ex-wife to share that magic feeling mortgage company XYZ has freely provided me. 

After reviewing my biweekly payments, YES, I would be interested in any type of insurance additionally offered at a premium as long as the total amortized cost of the entire 30 year insurance term at 6%.  Only as long as it's rolled directly into the mortgage and not offered as a side service with the title holder. 

Paying extra is what defines me as a mortgage customer in the one sided relationship that is much like being a puppet.  After years of being a bank consumer a bus could be parked up there without much effort.

Thanks for your time and consideration.  Feel free to phone my personal cellphone any time with unwarranted offers and use my minutes.  I love knowing the new and interesting ways my loan provider can increase its profitability.  This helps me continue the relationship of renting my selected domicile on a 30 year term from the bank in perpetuity because I signed up for the secure line of credit and spent my home, twice."

The_Prisoner's picture

CPL gets the comment of the day award!

"Just makes total sense as a business relationship helping a bank bet on me being dead to cover their business loss." classic!

pods's picture

If people ever realized where the "money" comes from for their mortgage banks would be burning.


fonzannoon's picture

Pods it goes deeper than that. I made the case that "banks actually create money" to a friend of mine. He did not believe him so I methodically walked him through it. I sent him this as a reference,


He still thinks the banks are right to be compensated because they are taking a risk by lending money. I stopped trying to wake him up because it has occurred to me that the only reason I was shocking his balls with truth was because I was envious at how successfully clueless he was.

BrosephStiglitz's picture

There are a lot of enormously intelligent people who still choose to believe that this is conspiracy theory.  Even after pointing them to the BoE paper.

Once you take the red pill, you can't plug back into the matrix.  As my lady stated: "We are just too damn busy trying to make ends meet to concern ourselves with this stuff." (Naturally I beg to differ.)

caShOnlY's picture

it's a system that has a life span.  The retiring boomers will bring this system down as the largest segment of spenders become savers first, followed by the dreaded "fixed income".   The boomers are about to go through a morphing from "ants" to "grasshoppers".   This monetary system is built on growth through lending and once the boomer generation tilts the arrow toward saving rather than spending, which we are seeing now, it is game over.   When the borrowing by gov come with great cost that is when pensions and 401(k)s get confiscated and social security will be trimmed.

kchrisc's picture

They steal the people's deposits, then counterfeit money, currency, on top of that stealing more of the people's wealth. They then "loan" this lucre to you. This "loan" gives them interest in real property, the collateral for the "loan," that they then leverage up for their benefit. When, not if, the charade crashes, and you are unable to pay, they take ownership of the underlying real property while still hounding you for "payment" on their counterfeit "loan."

Did that cover it?!


"A bankster in the guillotine is worth two in a bank."

stormsailor's picture

there is always the "fuck you asshole" clause.  bank of america has always been disreputable. they are the bottom feeders of the tbtf.

TheFourthStooge-ing's picture

Funny how the name "Bank of America" keeps popping up like this. Of course, I don't mean "funny, ha ha".

On the other hand, a recent Montana Supreme Court decision could hopefully lead to "funny ha ha" at Bank of America's expense:


Features a guest appearance by "Brian" of Hyderabad, and this wonderful skewering of BoA's cobbled together defense:

“the rule requiring written contracts in certain cases … exists to prevent fraud and should not be used as a defense by those who have allegedly committed fraud.”

Sean7k's picture

Think about what the lawyer is thinking when he makes that statement. Went to law school all those years, studied all the brillaint rhetoric, envisioned himself before the bench, positing one riposte after another, stunning the plantiff, only to shoot out that stream of verbal diarrhea. That has to leave a fine taste in the mouth...

Dr Benway's picture

But after being sewn into the Human Centipede, do you really want to open your mouth anyway?

JustObserving's picture

They hate us for our freedoms.

nmewn's picture

Well, at least the feelings mutual ;-)

grunk's picture

I let my nail gun do the talking.

Freedumb's picture

If it's part of a boiler plate contract and insufficient attention was drawn to the clause (e.g., no initialing required, it was not in BOLD RED CAPITAL LETTERS, etc.) I think this should be pretty challengable. But then again, these people are seeking mortgage modifications and could almost certainly never afford the lawyers they would need to litigate this against a deep pocketed financial institution.

swmnguy's picture

 These clauses aren't meant to be litigated.  Sure, it couldn't stand up in court.  If it ever got to court.  That's the whole point.  To get any lawsuit thrown out before the fact, as would probably happen as corporate control over the judiciary tightens.  And then, of course, if it ever did get to court, then you face the bankrupting tactics of squadrons of staff attorneys demanding imaginary documents, etc.

Freedumb's picture

Yep, and even if the mortgagors/debtors did litigate, once the mortgage issuing company's lawyers thought things were getting dangerously close to trial, they would almost certainly propose a big fat settlement to keep it out of court before any precedent could be set. So the only viable option of attack would probably be trying to file a class action suit which would be better financed but will take forever, and even that might likely settle.

In the meantime they spare some of their marketing budget that they otherwise might need to spend to rehabilitate the damage to their reputation which would be caused if none of these people perceived themselves to essentially be under a "gag order".

fonzannoon's picture



I'm a law abiding citizen. I'm a conservative. I love my country. I'm a Vietnam veteran, but I'll be damned," Lavoro said. "This is illogical. I'm really upset, and I'm frightened, I'm frightened for my son."


BrosephStiglitz's picture

Pause for thought on who is the criminal.  Can buy a kilo of pot brownies in a store here and the world isn't ending and society isn't coming apart at the seams.  In fact, people are generally happier.

Sean7k's picture

Well, perhaps it's time to stop being law abiding citizens...this is how you enable tyrants. People actually think the law protects THEM, it doesn't. It protects those in power. Eliminate law and you eliminate the problem. This thread is a testament to the abuse of law for corporate benefit. Why must people hang on to their demons as if it were life or death? 

Rules are voluntary and non-coercive. Societies can operate on rules only. 

Manthong's picture

Fiat Money.. it's a contrived and ephemeral thing.. once you come to grips with it you won't take it or the  larcenous kleptocrats that promote it seriously.

10mm's picture

Home owner, right. Maggot fucks.

sysin3's picture

Just because it exists on paper does not necessarily mean that you have to abide by it. Many times, clauses in contracts are held to be "unenforceable". The way to test it is to try it. This is slow and expensive and requires lawyers (syn. assholes) but you never know until you try.

swmnguy's picture

Every day I read something new that makes me thank my lucky stars my mortgage is with a local credit union who doesn't sell their loans.

Seasmoke's picture

Bank of America ...... Blows....bubbles......beautiful bubbles....awesome bubbles......wonderful bubbles...


(I have a modification)

swmnguy's picture

By "Bubbles," you're referring to Michael Jackson's chimp, right?

dexter_morgan's picture

Or is it Bubbles of Trailer Park Boys fame?

waterhorse's picture

Actually its those bubbles that form in a sewage treatment facility.

are we there yet's picture

What happen when 100's of thousands of desperate people are badly treated by banks and the courts with no legal avenue to release their vitrol. Year after year.

BrosephStiglitz's picture

Bound to happen at some point.  If the economy genuinely turns down again, you get more dumbass monetary policy to protect paper wealth (and liquid financial asset values).  At that point people will probably throw their hands up and just lose confidence entirely in the dollar.

Or, you let the economy just take a natural course and deflate, causing real debt burdens to increase and risk of bankruptcy to follow.  Or you raise interest rates out of political necessity, further exacerbating the recession causing real debt burdens to increase and risk of bankruptcy to follow.

The only realistic option (probably) is to try and stealth-inflate the hell out of everything and hope that people don't wise up and start dumping paper.  This could theoretically go on for years, but in practical terms the cost of living will increase in nominal terms (without wages following) and there will be pandemonium in the streets.

The last option is debt forgiveness.  I think the powers that be will fight that to the bitter end. 

Singelguy's picture

Regardless of which scenario plays out, at the end of the day, the debt has to be forgiven or written off. The debt is already so huge that it can never be paid back. The politicians and the banksters can fight against it all they want, but it is inevitable. The key question is, how long will it take before the debt (and interest rates) reach a point where income and tax revenue is insufficient to even service all the debt? That is the point when it all collapses.

GeneH3's picture

When there is no remedy in the courts, the remedy is in the streets.

p00k1e's picture

Wal-Mart will only take silver eagles at face.  What are we supposed to use as a cash substitute ? 

BrosephStiglitz's picture

You're being sarcastic right?

Dadburnitpa's picture

Don't worry about that yet.  Just stop going to walmart for now.  That would be a good start.

BrosephStiglitz's picture

I know right?  How about giving some patronage to a small, local business.  You probably will pay a few more notes, but whatever.

(Incidentally, now might actually be a good time to do this.  Get to know the local guy, support him with patronage, culture business ties.  Will go a long way when Wal-mart gets torched and/or looted by peasants with pitchforks and barter becomes a necessity.  You want to be at the front of that queue and in good standing, not the other guy.)

Dre4dwolf's picture

In the long run ? Lead.

Bastiat's picture

It keeps its mouth shut or it gets the hose again.

Bill of Rights's picture

Obama picks another NWO Globalist for HHS Secretary
Bilderberger Kansas Gov. Kathleen Sebelius



But look closer......Eric Shinsekei - Secretary of Veterans Affairs  (Council on Foreign Relations)


Shinsekei is  going nowhere, its all an act.

WTF_247's picture

Do not see much written about the "other" provisions that many insert into modifications.

They take a non-recourse loan and turn it into a full recourse loan. Often they also try to insert a balloon payment at the end of the loan.  The lower payments are a myth, the balance is made up at the end.  It can be buried/hidden so its not obvious to those that do not understand what a lot of the terms mean.

The provisions of the new non-recourse often also prohibit discharge at bankruptcy, lawsuits, modifications, short sales and all other normal courses of action someone might take in the future.

You sign the modification and you are basically taking out a student loan.  If the value of your house never recovers, you always owe that money. You cannot short sell, you cannot get out of it.  Think Detroit, Las Vegas (still down but not out).  Other areas are likely to be added to the list in the coming years.  You get a population shift like Detroit (more common that in seems) and you are done for life.  Your house is worth 50k but you owe a mortgate of 250k and cannot get out of the payments ever because of the documents you signed.  You lose your job, you cannot get out of it.  You declare BK, you cannot get out of it.

I know for a fact Bank of America uses these "other" tactics, at least they did in the past few years.

Dre4dwolf's picture

When the banks got a bailout, everyones mortgage should of been decreased equally to the sum of the bailout funds recieved.

The American people owe the banks, the American people bailout out the banks, the banks foreclose on the American People and stiff them with inflation caused from the bailout.



That's the only excuse.


intric8's picture

Hear! Extra special guillotines should be built for boa execs and other mortgage providers specifically for those unfairities. The blades should be dull, not sharp, so a couple of drops are needed, bringing them to a most uncomfortable end. Might as well make the process fun for newbie spectators http://www.flipkik.com/uploads/pics/guillotine-bowling.png

Real Estate Geek's picture

You're also affirming the loan, flawed MERS title, lack of original wet-ink documents, etc.   "Just sign here and we'll slip those shackles back on."