OUR STORY Part 51: NO OVERSIGHT, NO ACCOUNTABILITY, NO CONSEQUENCES

In a recent telephone conversation with our local U.S. Senator's office, we discussed the issues surrounding the numerous erroneous flood determinations that were done on our property during the escrow process; again, non of which were ever provided to us by any of the parties involved. As mentioned in a previous blog, the Seller's Disclosure stated "Not in 100 Year Flood Plain" and our HUD documents presented for signature at closing included page 60; a "Flood Certification" which stated that the property was not located in any Special Flood~Hazard area.

We discussed with the representative the fact that FEMA lists flood determination companies on their website; and that these mortgage lenders, realtors and appraisers use these same companies via cheap online determinations which make reference to FEMA Firm Map Panels.

I went on to explain to him that our concern is the fact that by using a zoom in/out feature and leaving the process of the flood determinations in the hands of those who ultimately make a financial profit upon the successful close of the real estate transaction (as in our case) leaves the buyer's subject to potential deception and fraud through inaccurate determinations. An example is the difference between the determination obtained by Chase Home Finance  in 2008, a year after escrow closed; and the determination obtained by the Appraisal Company picked by our mortgage broker during escrow.

All of the sudden the lights went on and the representative said "Well that sounds like fraud!" With a sigh of relief my husband and I finally felt that someone was "getting it."

We were asked if we would send over the flood designation timeline scenario and supporting documentation for the Senator's office to present to FEMA, and within about 24 hours it was done! The contents of our email is noted below with some personal redaction and/or abbreviations made.

Nonetheless, as has been the case over the past three years; we would once again find yet another entity respond with a brush off. The reality here is simply that the federal government mandates flood insurance from homeowners while failing to implement any oversight or accountability to those agencies that are making the determinations; even though ALL of these agencies reference a FEMA Firm Map panel to support and justify their determinations.

So how can that be? As a flood determination company they have the liberty to reference a FEMA Firm Map panel as authentication and/or "proof" of their designation and nobody, NOBODY is ensuring to see that their procedures and findings are accurate? Is it possible for a 10 year old house and 5 acres with 80 plus pecan trees to slip in and out of a flood zone? Perhaps heavy winds are responsible?

Here is the bureaucratic response we received from FEMA. I don't have the ability to scan this right now so I will type, verbatim (excluding header logo):

August 22, 2011

The Honorable John Cornyn
United States Senator
Providence Towers
5001 Spring Valley Road, Suite 1125E

Dear Senator Cornyn:

Thank you for your August 4, 2011 inquiry on behalf of your constituents, Michael and Annette Daniel. In correspondence to you, Mr. and Mrs. Daniel asked if the Federal Emergency Management Agency (FEMA) had any jurisdiction over flood determinations and flood determination companies.

The Federal Emergency Management Agency (FEMA), according to federal law and regulation, has no regulatory authority or any jurisdiction over private flood determination companies. The growth of flood determination companies and the service that they provide grew from the requirement that lenders are to determine if a structure/collateral is located within a Special Flood Hazard Area (SFHA.) If the determination places the structure in the SFHA, then flood insurance is required as a part of the loan requirements. The burden to accomplish the determination was placed on the lender. Many lenders today contract with flood determination companies to provide this service. FEMA has placed the list of flood determinations companies strictly as an informational source to citizens, lenders, insurance agents and realtors.
We hope that this information is helpful to you in addressing Mr. and Mrs. Daniel's question.

Sincerely,

Philip Beasley, Director
External Affairs

I guess it's kind of like telling us that they aren't legally married, just having an affair. You know..."Your links can sleep in our bed and our Firm maps can sleep in yours; we just don't want any real commitment."

I have a new question for FEMA; 

What happens to those unsuspecting victims of mortgage / real estate fraud, such as us; who unknowingly purchase a home in a flood zone? Those who have a flood determination stating "IS BUILDING / MOBILE HOME IN A SPECIAL FLOOD HAZARD AREA(ZONES CONTAINING THE LETTERS "A" OR "V")?... NO"; and have a formal HUD "Flood Certification" asserting that the house is "Not in any Special~Hazard Flood Area."

Is FEMA going to deny them assistance in a natural disaster flood?

The bottom line here is that FEMA did not directly address our concern of abuse of FEMA Firms being used to endorse the determination companies findings. Our concern includes the fact that these flood determinations have a section which makes reference to a FEMA Firm Map Panel number specific to a property/area. The use of such infers that FEMA's data is "supporting" and/or "authenticating" the results of the determination. If you are going to allow the use of a FEMA reference then shouldn't you be overseeing the ethics and validity of those using such to determine whether there is a misuse in their findings? Does FEMA make any money off of these flood determinations i.e. registration fees paid for listing them on their website?

Our HUD statement notes that we were charged $25 for a flood determination that lied. A determination process that is subject to human error; and apparently in our case to the unethical manipulation of misinformation used in order to move our house out of a flood zone. Of course, that would only last for approximately one year until the next flood determination was initiated by those who weren't trying to make commission on the "sell" of a house.


DATA PROVIDED TO FEMA:

HISTORY OF FEMA FIRMS

FLOOD DETERMINATIONS DURING ESCROW

09/27/91 - FEMA Firm Map Panel #4805201050-B
Property Located in “100 Year Flood Plain” 
Special Flood Hazard Zone (Zone A)
Parker County requires “Flood Permit” and issues one for $50.00 without required flood study done and Base Flood Elevations (BFE) determined. To date, there is still no legal and/or completed elevation certificate issued on this property.

See attachments:

·      001 – 1997 FEMA Firm

·      002 – DKB Surveyor recorded plat for Reata Estates

o       See note on “Flood Plain Restrictions”

·      003 – Parker County “Food Permit” and incomplete elevation certificate.

·      004 – Email correspondence with Parker County Flood Plain Administrator, KF. Mr. F testified in trial. Mr. F was the first person to bring to our attention the issue of the elevations not being correct and the certificate incomplete. He provided us with the attached. Original engineer has nothing to provide to us from files per surveyor. County turned a blind eye with a house built on a designated drainage easement in a flood zone!

08/21/1998 – Original survey of property

·      021 – Survey showing “proposed easement” going around house.

·      According to surveyor, DKB Associates; the proposed easement was denied by Parker County Commissioner.  Still, sellers’ Realtors provide unrecorded “Release of Easement” during escrow.

·      KF, Parker County Flood Plain Administrator whose signature appears on this document testified during trial that the “release of easement” was not recorded, nor was it related to our property or the drainage easement under our house.

04/28/2003 – 2^nd Survey done on property during sellers’ refinancing in 2003.

·      Notes drainage easement was never moved.

·      Not provided to us by Realtor. Only the 1998 survey was sent with proposed easement and unrecorded “release of easement.”

·      We were asked to go with a “recent” survey in lieu of procuring a new survey which may have impacted escrow timelines. We were told newer survey was recent enough and no changes to property (i.e. fence/property lines, improvements/buildings, etc.)

9/05/2007 - Email of warning from potential buyer’s Realtor to sellers’ Realtors regarding “non-disclosure” and potential lawsuit by next buyers.

See attachments:

·      020 – Email dated September 5, 2007

o       Potential buyer just happened to be a local “engineer”.

o       Email was sent to sellers’ Realtors just days before we put an offer on the property, September 11, 2007.

o       Author of the email was deposed.

9/13/2007 – LANDSAFE FLOOD DETERMINATION

IN A FLOOD; IN FLOOD ZONE A

WRS Mortgage does first flood determination on property which comes back “in flood zone A” and apparently notifies buyers’ Realtor, who in turn goes to sellers’ Realtors looking for something that will show house is not in flood zone.

See attachments:

·      005 – Landsafe Flood Determination dated 9/13/2007

9/17/2007 – Email correspondence from sellers’ Realtor to Title Escrow Officer

See attachments:

·      015 – Email dated 9/17/2007

o       Email acknowledges property is in flood zone

o       Email acknowledges drainage easement concern

o       Email is copied to Realtor’s partner who is the actual listing agent.

o       Neither produce email during litigation discovery. Email shows up approximately 9 months after their depositions are taken in a subpoena to title company.

9/17/2007 – FIS FLOOD DETERMINATION

NOT IN A FLOOD ZONE, IN ZONE X

RM (son-in-law of seller brokerage firm owners [names redacted]) is asked to do a favor by sellers’ Realtors who are the #1 top producing agents C21 and in Parker County for several years. RM is asked to acquire a “fix it” flood determination; and does so using the sellers’ old mortgage account information without the sellers’ knowledge and/or permission per sellers’ deposition. According to FIS attorney (now LPS National Flood) FIS determination was done “manually.’

See attachments:

·      006 – FIS Flood Determination dated 9/17/2007

9/18/2007 – FIRST AMERICAN FLOOD DETERMINATION

NOT IN A FLOOD ZONE, IN ZONE X

WRS obtains this second flood determination after being provided with a copy of the FIS Determination using our mortgage information in order to satisfy escrow process using our loan information. FIS has sellers’ loan information on it.

See attachments:

·      007 – First American Flood Data determination dated 9/18/2007

o       This was provided to us for the first time via Chase Legal Dept. in February 2009.

o       According to Rod Reuscher, Chase Home Finance; the file included HUD Flood Certification and copy of First American Flood Data determination, both stating “NOT” in a flood zone. Chase was never provided or made privy of the Landsafe Flood Determination dated 9/13/2007 which truthfully determined the house and property in Flood Zone A.

·      008 - Note that the HUD documents statement notes the Landsafe Flood Determination when that determination was tossed and replaced with the First American Flood Data

·      009 – HUD Document “Flood Certification”; Not in a flood zone.

9/26/2007 – Fax from Title Escrow Officer to Surveyor

See attachments:

·      016 & 017 – Fax requesting surveyor to “order a legal on drainage easement” per Sellers’ Realtor. However, the sellers’ Realtors had already produced an alleged “Release of Easement” to satisfy mortgage lending process.

·      018 – Title officer’s fax requesting a legal on the drainage easement is dated and sent 13 days after the unrecorded “Release of Easement” has already passed through our Realtor to the mortgage broker.

o       KF, Parker County Flood Plain Administrator whose signature appears on this document testified during trial that the easement was not recorded, nor was it related to our property or the drainage easement under our house. KF was not the flood plain administrator at that time, PTN was.

10/16/2007 – INTRA FLOOD SERVICES

NOT IN A FLOOD ZONE, IN ZONE X

Part of the “Performance Appraisals” appraisal of the house done on behalf of WRS. Appraisal done not using comps of homes built on designated drainage easement and in flood zone A.

See attachments:

·      010 – Appraisal dated 10/16/2007

05/06/2008 – DE Engineering Flood Study of Devon Well-site
DE was requested to do a flood study on the well pad site behind us as a result of flash flooding on our property during a storm on April 17, 2008.

See attachments:

·      011 – DE flood study report dated 05/20/2008

·      012 – DE overlay of FEMA Firm maps showing flood characteristics of 127 Rodeo Drive.

09/26/08 - FEMA Firm Map panel number 48367C0325E
Property Located in “100 Year Flood Plain”
Special Flood Hazard Zone (Zone A)

See attachments:

·      013 – FEMA Firm panel dated 09-26-2008 (Note second panel has a red square where property sits.

09/26/2008 – QUANTRIX, LLC

IN A FLOOD; IN FLOOD ZONE A

Quant Appraisals (On behalf of Chase Home Finance)

See attachments:

·      013 – FEMA Firm panel dated 09-26-2008

o       Note second panel has a red square where property is located.

IN CLOSING:

FEMA has a page on their website where they list these determination companies with link or contact information. (Click here.) Although they state they do not endorse them, they refer to them and do mandate that determinations be done in order to enforce the “National Flood Insurance Program” or NFIP. (Click here for info on the NFIP.)

Attached is item #015 which is a letter that was sent from “in-house” legal counsel for Landsafe Flood Determinations to our attorney. We non-suited Landsafe because their determination was finally produced and found to be the only one that accurately portrayed the flood determination of our property. I only share this because it may shed some light on the federal and state regulations.

OUR STORY Part 46: THE PARALYSIS OF STRESS OVERLOAD

Like a deer caught in the headlights, there's this internal mechanism that kicks in when you have so many overwhelming circumstances to deal with. Our human nature is to take control of our lives and to systematically prioritize. We are so used to being in control of our circumstances that trusting God and putting Him back in the driver's seat is often a very difficult task. Paris Reidhead once told a story where he was advising a young pastor: (Read full sermon here.)

"The great things Americans can accomplish without God." And he (the young preacher) accomplished a great deal, admittedly without God. Now he wanted something of power to accomplish his ends even further.
I said, "No..., no, you're sitting behind the wheel and you're saying to God give me power so I can go, You won't work, You've got to slide over."
But I knew that rascal, because I knew me. I said, "No, it will never do, you've got to get in the back seat." And I could see him leaning over and grabbing the wheel.
"No," I said, "it will never do in the back seat."
I said, "Before God will do anything for you, you know what you've go to do?"
So he said, "What?"
I said, "You've got to get out of the car, take the keys around, open up the trunk lid, hand the keys to the Lord Jesus, get inside the trunk, slam the lid down, whisper through the keyhole, 'Lord look, fill'r up with anything you want and you drive, it's up to you from now on.'"

That's where we are right now. We're in the trunk and we have NO CLUE where He is taking us. It's not for lack of trying to make things happen on our own. It's just been road block after road block and yet His grace has sustained us thus far.

http://www.cartoonstock.com

We send letters and make phone calls and most go unanswered or reply with the patented "not my job" response passing the buck on to some other entity. Right now we are waiting to see if Chase is going to budge so that we have enough time to sell our belongings in an effort to exist and to relocate. We send faxes, and make phone calls all day and have the Senator's office making their inquiry on our behalf, but these individuals are not motivated to respond with the same urgency that we are to have them respond so that we can effectively develop an exit plan.

Perhaps the customer service agents and decision makers at mortgage companies should be required to live on the streets for a week or even shack up with victims of foreclosure through the entire process in order to develop and refine their bedside manner attitudes and methods.

Well, that will never happen so we are back to what really matters; focusing on God's will for us and trusting in His grace to carry us over the seemingly improbable and impossible mountains ahead of us, or perhaps to just move them out of our way.

The last two days have been really difficult; emotionally and physically taxing on us. We feel a bit like the deer caught in the headlights, watching the foreclosure headlights headed for us at rapid speed, a bit paralyzed by the unknown of our tomorrows.

If you're looking for us, we're hiding in the trunk!

 

OUR STORY Part 34: HAVE A GOOD WEEKEND!

We are getting down to the wire on timelines for foreclosure sale. There appears to be a conflict between what we were told by Chase Home Finance on the telephone yesterday, and the date put in a letter sent to our attorney. The date is either June 7th or July 5th. Of course, that is a significant issue for us since we have no place to live, and really no means by which to move our belongings and/or store them.

Our attorney had faxed a letter to Chase Home Finance's corporate offices in Ohio and the law firm representing them in escrow, Barrett Daffin Frappier Turner & Engel, LLP to which they have not yet personally responded, aside from the letter he apparently received in the mail yesterday which was initiated prior to our fax.

In light of the fact that no one was responding, we initiated a fax of all of our documentation to Chase Home Finance on Thursday, May 12th, 2011; including the professional appraisal report by Kenneth Phillips noting the property has no marketable value; the Parker County Tax Appraisal statement that shows the county as noting the improvements (house/structure) as having Zero value ($0) and the land reduced from $75,000.00 to $25,000.00; the original letter from our attorney, and; a letter from U.S. Senator Cornyn's office.

Friday we received a call back from a representative at Chase, Lorenza, who finally gave us the name of the attorney at Barrett Daffin Frappier Turner & Engel, LLP who is handling our foreclosure, Ryan Bourgeois. According to Lorenza, Ryan stated that they had received our documents and were looking them over in order to advise Chase. Ryan also requested that our attorney contact him directly, providing his direct dial number. Our attorney called on Friday and received a voicemail, leaving a message for Ryan.

AMENDED PETITION: 

In light of the history of malicious delay tactics to drag out this case by defense, our attorney recommended that we remove the Deceptive Trade & Practices Act / Negligence claims and go with straight fraud in order to accomplish a couple of things.

Firstly, the significance of the above decision is to remove an appellate cause of action that defense would likely attempt to file against us regarding the the two year statute of limitation on the DTPA claim.

Secondly, make this a straight fraud cause of action is supposed to alleviate any cause they might have in filing a motion for something called collateral estoppel.

Next, the move to amend our petition to a straight fraud action also serves to expose the defendants since insurance carriers do not defend or pay damages on acts of fraud. Thus, the defendants are likely going to be forced to dig into their own pockets for legal representation which, according to our attorney, could reach an estimated $100,000 by the time we all reach trial.

Lastly, acts of fraud can not be shared. Thus, the damages can not be percentage out based on the measure of each individuals actions, but each individual now has to answer the claims of fraud against them and them alone, which may very well cause finger pointing and the pursuit of legal counsel independent of one another.

The amended petition was sent as an attachment in an email on Friday to the new defense firm. The body of the email read:

"C--------: 

I have attached a copy of the 3^rd Amended Original Petition I have mailed for filing today.  I have now non-suited by amendment the negligence and DTPA claims so that the only remaining claims are the fraud claims.  

Have a Good Weekend!"

I don't know, but I think the signature is attorney for "Checkmate!" Or perhaps, its simply saying "this is the end of your billing the heck out of your client's insurance carrier."

We don't get giddy over this stuff, for our trust and confidence is in our God. Whatever hope or confidence we had in the judicial system has been tested and burned away in the chaff. We believe the system is under the almighty hand of a Sovereign God, as noted in the book of Romans; but now we just await to see His will unfold for our lives.

OUR STORY Part 33: A CALL TO THE SENATOR

Today was a pivotal day for my husband and me. We have long anticipated that this thing would drag itself out until we had no options left but to begin to take this matter public. Today was that day.

We received a response from our attorney to some questions we had regarding status updates on a hearing and the threat by defense counsel to make things worse by filing against their clients, the sellers, along with our Realtor and her brokerage firm. One sentence clinched it for us.

"I have called some trusted attorneys about what happens to your damages if you lose the house.  The response is unanimous.  You have no viable damage claim.  I think we need to talk on Thursday."

Three years of the ongoing stress of the issues regarding this property and civil litigation have all but wiped us out physically, emotionally and financially. Now at the end of three years to be told that we could lose even our civil right to recover damages through the judicial system; and all because of senseless and malicious delays by the defense?

So, today my husband walked into the room and looked at me and . . .

Michael: "Honey, what about contacting our Senator?"
Me: "Our Senator?"
Michael: "Well, there's got to be someone like a Senator or some official that can help us."
Me: "Okay, let me see what I can find."

I remembered a Senator Cornyn who used to send automated emails to us. I googled to locate his website and find a local office. After a conversation with the initial contact in the office who felt they couldn't help us, our issues not falling under their jurisdiction of "federal"; the gentleman decided that the issue with our mortgage company wanting to foreclose on us "did" fall under their jurisdiction, and forwarded me on to their mortgage representative, Drew Clifton.

The call appeared to end on a positive note, Drew offering to jump right on the matter for us; contacting Chase Home Finance and/or the law firm representing them in the foreclosure, in an attempt to obtain a forbearance on our mortgage until our case has been tried.

We sent off numerous documents, including our lawyers letter to Chase. Now we wait and see.