A curious piece of text is appearing in some homeowner's loan modification agreements—by accepting a modification from the bank or non-bank servicer, the homeowner agrees to never publicly say, write, or post anything negative about the company doing the modification.
As originally reported by Reuters, Ocwen, Bank of America, and PNC Financial Services Group are adding new terms to their modification contracts to prevent homeowners from publicly disparaging the companies as part of a mortgage modification agreement.
Essentially, the gag orders are being used when distressed homeowners use litigation to resolve foreclosure and loan modification cases, making the modification contingent upon a homeowner's silence. The deal often extends to lawyers handling litigious cases on behalf of the injured parties.
Reuters cited, "A 2013 report by the National Consumer Law Center found that servicers routinely lost borrowers' paperwork, inaccurately input information, failed to send important letters to the correct address—or sometimes just didn't send them at all."
"These clauses can hurt borrowers who later have problems with their mortgage collector by preventing them from complaining publicly about their difficulties or suing, lawyers said. If a collector, known as a servicer, makes an error, getting everything fixed can be a nightmare without litigation or public outcry," Reuters noted.
According to the original report, the restrictive text is also now showing up when servicers grant regular modifications outside of the courtroom.
These new requirements are creating problems for homeowners—and ire from regulators. New York's Superintendent of Financial Services Benjamin Lawsky said he is investigating Ocwen's use of these 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."
PNC's vice president of external communications, Marcey Zwiebel, told Reuters that "these clauses are part of the consideration we receive for agreeing to settle the case. This helps to ensure that the discussion is not re-opened in public after the case has been settled."
Modifications still play an important role in the ongoing housing recovery. According to the U.S. Department of the Treasury, 1.3 million loan modifications have been completed under the Home Affordable Modification Program (HAMP). Servicers have completed an additional 5.6 million modifications.
"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 to Reuters, 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."
Correction: The piece incorrectly over-generalized the use of non-disparagement clauses. Bank of America said, "We do not include non-disparagement clauses or releases of claims in normal modification agreements. Only when a customer is part of a negotiated settlement that provide additional consideration to the customer is a non-disparagement and related confidentiality clause considered, and in those cases it does not preclude the customer from filing suits on post-settlement issues."