Ecf 01 - Wf2 Complaint With Exhs A-E

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Joseph MOQUIN; for himself and on behalf of
all others similarly situated;
)
)
) CASE NO.: ____________
Plaintiff; )
)
v. ) VERIFIED COMPLAINT
Class Action )
WELLS FARGO BANK, NA d/b/a
AMERICAS SERVICING COMPANY;

)
)
)

Defendant. )
)
INTRODUCTION
1. Plaintiff Joseph Moquin, through this statewide class action, seeks redress for
defendants practice of collecting defaulted mortgage debt by ignoring federal guidelines and
regulations applicable to their loans and instead offering them the opportunity to retain [their]
homes by signing up for inappropriate short-term forbearance agreements requiring oppressive
payments, under the guise that if they made the payments they would receive loan modifications.
2. After the plaintiff and class members fell behind on their payments, Wells Fargo
discussed their situation with them over the phone and requested current financial information.
It then sent each of them a forbearance-to-modification offer package based on its assessment.
3. The packages were designed to give them the false impression that Wells Fargo,
having assessed their situation, was willing to modify their loans provided they made several
large payments first and that its subsequent review showed their income and financial situation
had not changed in the meantime.
4. Defendants method of servicing defaulted mortgage loans was a creative way to
generate maximum servicing profits. But it was also a deceptive and unlawful way to do so.
Case 1:12-cv-00016 Document 1 Filed 01/12/12 Page 1 of 49
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CLAIMS ASSERTED
5. Plaintiff asserts the following claims arising out of defendants conduct:
a. Count I. Violation of the federal Fair Debt Collection Practices Act.
b. Count II. Violation of NHs Unfair Debt Collection Act.
c. Count III. Breach of Implied Covenant of Good Faith and Fair Dealing.
d. Count IV. Promissory Estoppel.
PARTIES
6. Plaintiff Joseph Moquin resides at 8 Draycoach Lane, Merrimack, NH 03054.
7. Defendant Wells Fargo Bank, NA is a national bank with its main office at 420
Montgomery Street, San Francisco, CA 94104. Americas Servicing Company (ASC) is a
division of Wells Fargo Home Mortgage Company, which itself is a division of Wells Fargo
Bank, NA. ASC does not service loans made or held by Wells Fargo. Instead, ASC is paid by
other creditors, to service their loans. Wells Fargo describes ASC thusly:
1

1
See https://www.wellsfargo.com!mortgage/manage-accountlamericas-servicing-company. For instance,
ASC services plaintiffs loan for HSBC Bank USA, NA, as Trustee for Citigroup Mortgage Loan Trust,
Inc. Asset-Backed Pass Through Certificates Series 2005-SHL1 (Citigroup).
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JURISDICTION AND VENUE
8. The Court has:
a. Diversity jurisdiction under 28 U.S.C. 1332, as the action is between
parties that are citizens of different states and the amount in controversy exceeds $75,000;
2
b. Federal question jurisdiction under 28 U.S.C. 1331, as it presents a claim
under the Fair Debt Collection Practices Act (15 U.S.C. 1692, et seq.- the FDCPA); and

c. Supplemental jurisdiction under to 28 U.S.C. 1367.
9. Moreover, this court has jurisdiction over this action pursuant to 28 U.S.C.
1332(d), in that it is brought as a putative class action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of interest and costs, and at least one member
of the class of plaintiff is a citizen of a State different from any defendant.
10. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) inasmuch as the
unlawful practices are alleged to have been committed in this district, defendants regularly
conduct business in this district, and the named plaintiff resides in this district.
BACKGROUND
I. The Nations Mortgage Mess
11. Most home loans are no longer made and held by our local, trusted banks.
Instead, most are made by large national banks and their countless affiliates, and then graded,
batched, collateralized, pooled, securitized and swapped, by and between faceless funds and
trusts with names that sound more like serial numbers. These Wall Street creations then
outsource the loan servicing function to a division of one large national bank or another.
But the servicer of the loan is rarely a division of the same national bank that made the loan in

2
For diversity jurisdiction purposes, a national bank is a citizen of the state designated as its main office
on its organization certificate. Wachovia Bank, NA v. Schmidt, 546 U.S. 303, 306 (2006).
4

the first place. So, through these divisionswhich have been created mainly so that state
consumer credit laws will not apply to their conductthe biggest national banks service each
others mortgage loans.
12. These national banks have also managed to free themselves from longstanding
barriers prohibiting their participation in the high-stakes, hardly-supervised financial services
industry. It is not news that, once freed, they swiftly pushed the envelope much further than any
of them would have dreamed possibleor considered righta generation ago.
13. As a result of their cavalier risk-taking and their sharp lending practices, we are
living through a period of historic levels of foreclosures. The foreclosure rate in 2010 was more
than three times what it was in 1933, at the height of the Great Depression. The crisis has
impacted our entire country and most of the world. As the Chairman of the Federal Reserve
Board has noted, the crisis has threatened our national economy. Nor is the foreclosure crisis
anywhere near over.
3
14. The conduct of these national banks led to an economic crisis, which led to an
unemployment crisis, which led to a loan default crisis. We are in the midst of this loan default
crisis now. Massive numbers of homeowners are having problems with their mortgage servicers.
Sadly (for them), deregulation of the financial services industry, court decisions preempting the
applicability of state consumer credit laws to the transactions engaged in by the big banks and
related entities, the strident repeal of various state consumer protection laws and the gutting of
others by the extraction of any express or implied private right of action, the downsizing of state

3
See Eric Tymoigne, Securitization, Deregulation, Economic Stability, and Financial Crisis, Working
Paper No. 573.2 at 9, Figure 30 available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1458413 (citing a Credit Suisse study showing
monthly mortgage rate resets).
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regulatory agencies all of this has left these financially-strapped homeowners without an
effective means of protecting themselves from the rampant servicing abuses they now suffer at
the hands of these once-reputable national banks and their servicing divisions. It is a mess.
II. New Hampshires Mortgage Mess
15. We have a big mortgage mess here. The number of New Hampshire properties
with foreclosure filings in 2008 was 100% higher than in 2007 and 200% higher than in 2006 a
doubling in only two years. More recently, 3,467 New Hampshire families received foreclosure
notices in 2009nearly ten families a dayand in 2010 more than ten families received
foreclosure notices each day. NH Business Review, December 1, 2010.
16. Thousands of New Hampshire homeowners are behind in their monthly payments
and cannot locate a contact person at all, or on a consistent enough basis to engage in any
constructive loss mitigation discussions. Even those who can afford regular payments again
continue to live in constant dread of foreclosure, due to the servicers impenetrable maze.
4
17. These borrowers have no legal recourse for their servicers unfair and deceptive
conduct through the courts. This is because a few years ago, our Legislature, under heavy
lobbying pressure from the banking industry, amended our states Consumer Protection Act
(RSA 358A- the CPA) such that borrowers who are being subjected to unfair and deceptive
conduct by these servicer divisions cannot seek legal redress for themselves. The Legislature
handed over exclusive authority to act under the CPA to the Banking Department.

4
In an October 13, 2010, the Banking Department issued a statement reading, in part, Errors in the
foreclosure process of major mortgage servicers have been identified, said Deputy Commissioner
Fleury. I am deeply concerned about these allegations and how they may impact borrowers in New
Hampshire. . . . At least 100 or more such homeowners are within the Subclass defined below.
6

18. Thus, the Banking Department now has the exclusive authority to assert CPA
claims on behalf of borrowers victimized by the lenders and servicers that it regulates.
19. The Legislature reasoned that borrowers exposed to servicing abuses would
simply notify the Banking Department, and then it, apparently through the Attorney Generals
Office, would then assert the CPA claims on behalf of either the individual complainant, or on
behalf of him or her and also on behalf of all of the other New Hampshire borrowers who had
been subjected to the complained-of conduct. However, the Legislature neglected to give these
agencies the funding necessary to even begin to meet this mandate. As a result, all the Banking
Department can do to address this mortgage mess, given its untenable budget constraints, is to
advocate on behalf of just those few homeowners who actually knew to file a complaint with it.
But this is just a small portion of the states affected borrowers.
20. Moreover, the Banking Department only has the authority to assert CPA claims
for residents who have complain to it about the unfair and deceptive conduct of the banks that it
regulates i.e., our state banks. The Legislatureperhaps unintentionallystripped the Banking
Department of the authority to assert CPA claims for residents who have complained to it about
conduct engaged in by any of the large, out-of-state national banks through their servicing
divisions. Instead, the Banking Department can refer the New Hampshire residents complaint
to the OCC in Washington, DC. Upon information and belief, the OCC has yet to obtain redress
for any New Hampshire resident whose complaint was forwarded to it.
21. Of course, it is these large servicing divisions, and not our local banks, that are
causing nearly all of the trouble here. Thus, when it comes to mortgage servicing, New
Hampshire has gone and made itself the Wild West. And disarmed its sheriff, to boot.
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22. Caught in this pickle, perhaps the best the Banking Department can do is to sit
back and hope that New Hampshire borrowers stuck in this mortgage mess will eventually obtain
benefits from any deal that a group of out-of-state Attorneys General are trying to put together
with the voluntary cooperation of some of these large servicers. The problem is that this sort
of deal might release the meritorious civil claims of the states most vulnerable homeowners for
inadequate consideration.
5
23. In any event, in the meantime, a substantial number of New Hampshire families
most of whom are unknown to the Banking Department because they have not filed formal
complaintsare living each day under the continual specter of losing their homes.

III. The Governments Efforts To Mitigate Losses Arising Out Of The Mortgage Mess
A. The Home Affordable Modification Program (HAMP)
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24. Congress passed the Emergency Economic Stabilization Act of 2008 on October
3, 2008 and amended it with the American Recovery and Reinvestment Act of 2009 on February
17, 2009 (together, the Act). 12 U.S.C.A. 5201 et. seq. (2009). The purpose of the Act is to
grant the Secretary of the Treasury the authority to restore liquidity and stability to the financial
system, and ensure that such authority is used in a manner that protects home values and
preserves homeownership.12 U.S.C.A. 5201.

5
See, Top Law Enforcement Officials in Calif., Nevada to Share Info in Mortgage Fraud
Investigations, available at http://www.washingtonpost.com/business/top-law-enforcement-officials-
in-calif-nevada-to-share-info-in-mortgage-fraud-investigations/2011/12/06/gIQARJhHaO_story.html,
last visited 12/10/11 (noting that talks between the major banks and the states have been dragging on
for more than a year and that the Attorneys General for New York, Delaware, Nevada and
Massachusetts have each sued five major banks earlier this month [December, 2011] over deceptive
foreclosure practices). As of January, 2012, seven states had abandoned these widely-criticized
mortgage settlement discussions. Whether a fair and reasonable nationwide settlementor indeed any
nationwide settlementis still possible, is unclear. Powerful multinational financial corporations are
generally reluctant to volunteer meaningful concessions unless they perceive their position as
particularly perilous. These servicers dont.
6
All of the class members loans are subject to the HARP policies and procedures.
8

25. The Act grants the Secretary of the Treasury the authority to establish the
Troubled Asset Relief Program, or TARP. 12 U.S.C. 5211. Under TARP, the Secretary may
purchase or make commitments to purchase troubled assets from financial institutions. Id.
Congress allocated up to $700 billion to the United States Department of the Treasury for TARP.
12 U.S.C. 5225. In exercising its authority to administer TARP, the Act mandates that the
Secretary shall take into consideration the need to help families keep their homes and to
stabilize communities. 12 U.S.C. 5213(3).
26. The Act further mandates, with regard to any assets acquired by the Secretary that
are backed by residential real estate, that the Secretary shall implement a plan that seeks to
maximize assistance for homeowners and use the Secretarys authority over servicers to
encourage them to take advantage of programs to minimize foreclosures. 12 U.S.C.A. 5219.
27. The Act grants authority to the Secretary of the Treasury to use credit
enhancement and loan guarantees to facilitate loan modifications to prevent avoidable
foreclosures, id. [emphasis added], and imposes parallel mandates to implement plans to
maximize assistance to homeowners and to minimize foreclosures. 12 U.S.C.A. 5220.
28. On February 18, 2009, pursuant to their authority under the Act, the Treasury
Secretary and the Director of the Federal Housing Finance Agency announced the Making Home
Affordable program. The Making Home Affordable program consists of two subprograms. The
first subprogram relates to the creation of refinancing products for individuals with minimal or
negative equity in their home, and is now known as the Home Affordable Refinance Program, or
HARP. The second subprogram relates to the creation and implementation of a uniform loan
modification protocol, and is now know as the Home Affordable Modification Program, or
HAMP. It is this subprogram that is at issue in this case. HAMP is funded by the federal
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government, primarily with TARP funds. The Treasury Department has allocated at least $75
billion to HAMP, of which at least $50 billion is TARP money.
29. Under HAMP, the federal government incentivizes participating servicers to enter
into agreements with struggling homeowners that will make adjustments to existing mortgage
obligations in order to make the monthly payments more affordable. Servicers receive $1000
for each HAMP modification.
30. The industry entities that perform the actual interface with borrowers including
such tasks as payment processing, escrow maintenance, loss mitigation and foreclosure are
known as servicers. Servicers typically act as the agents of the entities that hold mortgage
loans. Americas Servicing Company is a servicer operated by Wells Fargo Bank, NA and its
actions described herein were undertaken as agents for the entities that hold mortgage loans.
31. Should a servicer elect to participate in HAMP, it executes a Servicer
Participation Agreement (SPA) with the federal government.
32. On April 13, 2009, Michael J. Heid of Wells Fargo executed an SPA, thereby
making Wells Fargo a participating servicer in HAMP. A copy of this SPA is attached and
incorporated as Exh . ibit A
33. The SPA executed by Mr. Heid incorporates all guidelines, procedures, and
supplemental documentation, instructions, bulletins, frequently asked questions, letters,
directives, or other communications issued by the Treasury, Fannie Mae or Freddie Mac in
connection with the duties of Participating Servicers. These documents together are known as
the Program Documentation (SPA 1.B.), and are incorporated by reference herein.
34. The SPA mandates that a Participating Servicer shall perform the activities
described in the Program Documentation for all mortgage loans it services. (SPA 1.A., 2.A.)
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35. The Program Documentation requires Participating Servicers to evaluate all loans,
which are 60 or more days delinquent, for HAMP modifications. (SD 09-01 p. 4.) In addition, if
a borrower contacts a Participating Servicer regarding a HAMP modification, the Participating
Servicer must collect income and hardship information to determine if HAMP is appropriate for
the borrower.
36. A HAMP Modification consists of two stages. First, a Participating Servicer is
required to gather information and, if appropriate, offer the homeowner a Trial Period Plan
(TPP). The TPP consists of a three-month period in which the homeowner makes mortgage
payments based on a formula that uses the initial financial information provided.
37. Wells Fargo offers TPPs to eligible homeowners by way of a TPP Agreement,
which describes the homeowners duties and obligations under the plan and promises a
permanent HAMP modification for those homeowners that execute the agreement and fulfill the
documentation and payment requirements. If the homeowner executes the TPP Agreement,
complies with all documentation requirements and makes all three TPP monthly payments, the
second stage of the HAMP process is triggered, in which the homeowner is offered a permanent
modification.
38. Wells Fargo has routinely failed to live up to its end of the TPP Agreement and
offer permanent modifications to borrowers. In January 2010, the U.S. Treasury reported that
Wells Fargos parent company had 350,169 HAMP-eligible loans in its portfolio. Of these
loans, just 8,424 resulted in permanent modifications (approximately 2%) even though many
more homeowners had made the payments and submitted the documentation required by the TPP
Agreement. The Treasury Report is attached hereto as Exh . [See p. 5 for these numbers.] ibit B
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39. By failing to live up to the TPP Agreement and convert TPPs into permanent
modifications, Wells Fargo is not only leaving borrowers in limbo, wondering if their homes can
be saved; it is also preventing them from pursuing other avenues of resolution, including using
the money they are putting toward TPP payments to fund bankruptcy plans, relocation costs,
short sales or other means of curing their default.
B. The FHAs Loss Mitigation Program
7
40. In 1934, Congress created the Federal Housing Administration (FHA), which is
now the largest mortgage insurer in the world. In 1965, FHA became a part of the Department of
Housing and Urban Development (HUD)s Office of Housing. FHA administers the Single
Family Housing Program, which provides mortgage insurance on loans to purchase new homes
or refinance existing homes.

41. The purpose of the FHAs single family homeowner mortgage program is to make
it possible for many American families of modest means to own their own homes. The statutory
and regulatory scheme provides mortgage insurance and other incentives to lenders to finance
homeowner loans. In exchange for these valuable incentives, FHA lenders are required to make
numerous efforts to help borrowers who experience a default avoid foreclosure.
42. The FHA Insured Mortgage Program provides insurance to cover losses incurred
by the mortgagee in the event of default and foreclosure. A mortgagee which has a loss due to a
foreclosure can make a claim to HUD and become whole from insurance proceeds. Because of
these incentives and insurance, only mortgagees approved by HUD as responsible and able to
service the mortgage properly may originate or hold HUD-FHA mortgages. 12 U.S.C.
1709(b). Wells Fargo is an FHA-approved mortgagee/servicer.

7
Some of the class members loans are subject to the FHAs policies and procedures.
12

43. The National Housing Act provides that [up]on default or imminent default
. . . of any mortgage insured under this subchapter, mortgagees shall engage in loss mitigation
actions for the purpose of providing an alternative to foreclosure . . .. 12 U.S.C. 1715u.
Pursuant to its authority under the National Housing Act, HUD has issued regulations,
handbooks, mortgagee letters, and other guidance in regard to servicing and foreclosing on
mortgages that the agency insures.
44. The comprehensive loss mitigation program to avoid foreclosure is called FHAs
Loss Mitigation Program. HUD has issued regulations to ensure that the mortgagee takes steps
to avoid unnecessary foreclosures of HUD-FHA loans and loss to the government. 24 CFR
203.500 - 681. Under 24 CFR 203.501, a lender must consider the comparative effects of
their elective servicing actions, and must take those appropriate actions which can reasonably be
expected to generate the smallest financial loss to the [Housing] Department. The regulation
then lists the specific options that the lender must consider to minimize loss, which include, but
are not limited to, deeds in lieu of foreclosure, pre-foreclosure sales, partial claims, assumptions,
special forbearance, and recasting of mortgages.
45. 24 CFR 203.602 specifies the notices that a borrower must receive from the
lender if the borrower becomes delinquent on the mortgage loan. 24 CFR 203.604 provides
that, [t]he mortgagee must have a face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three full monthly installments due on the
mortgage are unpaid. The regulation describes actions that amount to a reasonable effort.
These actions include a certified letter to the borrower and one trip to the borrowers home.
46. CFR 203.605 requires lenders to review the loss mitigation techniques listed in
24 CFR 203.501 on a periodic basis before the loan falls four months behind. 203.606 further
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provides that before initiating foreclosure, the lender must ensure that all servicing requirements
have been met. In addition to the regulations, HUD has promulgated handbooks on loss
mitigation, including HUD Handbook 4330.1, Administration of Insured Home Mortgages.
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47. Moreover, HUD issues mortgagee letters that address specific loan servicing
topics. Mortgagee Letter 2000-05 provides further details for servicers considering borrower
eligibility for loss mitigation. HUD described its rules for loan modifications in Mortgagee
Letter 2009-35, which amended its previous policy. The policy allows for reduction of interest
rate, and it does not exclude certain borrowers based on the number of months that they are
behind. Finally, through Mortgagee Letter 2009-23, HUD released its version of the Home
Affordable Modification Program (FHA-HAMP).

9
48. HUD issued its FHA-HAMP guidelines pursuant to the Helping Families Save
Their Homes Act of 2009. P.L. 111-22 (May 20, 2009). The goal of the program is to provide
homeowners with a greater opportunity to reduce their mortgage payments to a sustainable level.

49. For homeowners who qualify, FHA-HAMP results in a monthly house payment
of 31% of the familys gross income. According to the mortgagee letter, FHA-HAMP became a
mandatory loss mitigation tool for review on August 15, 2009.
50. In addition to their place in the relevant regulatory scheme, the regulations
promulgated by HUD are specifically acknowledged as affecting the construction and
interpretation of the FHA-insured Note and Mortgage uniform instruments, such as those signed
by the plaintiff. 6 of the FHA Note states that [i]n many circumstances regulations issued by
the Secretary [of HUD] will limit Lenders rights to require immediate payment in full in the

8
Available at http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/hsgh/4330.1.
9
HUDs mortgage letters are available at http://www.hud.gov/offices/adm/hudclips/letters/mortgagee.
14

case of payment defaults. This Note does not authorize acceleration when not permitted by HUD
regulations. Exh is a copy of Mr. Moquins FHA Note. 9 of the FHA Mortgage states
that [i]n many circumstances regulations issued by the Secretary [of HUD] will limit Lenders
rights, in the case of payment defaults, to require immediate payment in full and foreclose if not
paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by
regulations of the Secretary.
ibit C
Exh is a copy of Mr. Moquins FHA Mortgage. ibit D
51. The purpose of the above described regulatory scheme is to give financially
distressed homeowners with HUD-FHA loans an opportunity to avoid foreclosure and retain
their homes through loss mitigation initiatives.
52. HUD delegates to its approved mortgagee/servicers the authority for determining
whether a borrower is eligible for foreclosure alternatives. The servicers ascertain the
homeowners financial situation and collect the relevant documents, and then perform the
analysis pursuant to HUDs rules and regulations.
53. Each year, HUD-approved mortgagee/servicers must affirm that they are
following the rules and regulations described above. They must state: I certify that the lender
complied with and agreed to continue to comply with HUD-FHA regulations, handbooks,
Mortgagee Letters, Title I Letters, policies, and terms of any agreements entered into with the
Department. See, Mortgagee Letter 2009-25 (at attachment).
54. Wells Fargo is a HUD-approved FHA mortgagee/servicer. By failing to comply
with its FHA obligations to assess and take appropriate action(s) most likely to mitigate losses
and avoid foreclosures, including offering loan modifications where most appropriate, Wells
Fargo is both a) leaving homeowners in limbo, wondering if their home can be saved; and b)
preventing homeowners from pursuing other avenues of resolution, including using the money
15

they are sending in to comply with defendants misleading special forbearance plan (SFA
below) to fund bankruptcy plans, relocation costs, short sales or other means of curing their
default.
IV. Servicers Prefer Not To Provide Permanent Loan Modifications
55. As outlined above, the federal governments response to these high rates of
default and foreclosure was to require these large servicer divisions to fully consider whether
they can modify, or restructure, the loans, to create a sustainable plan that allows the homeowner
to avoid foreclosure. However, its efforts have failed to promote modifications in sufficient
numbers to ease the crisis, and recent government data suggests that the number of loan
modifications in the country is declining, while serious delinquencies remain near all-time highs.
56. Indeed, when a borrower makes continued payments under a sustainable loan
modification, the lender can save money. However, it is the loan servicer, not the lender itself,
that decides what action to take when a borrower falls behind in payments. Because of the
servicers incentive structure, both foreclosures, as well as short-term forbearance plans like the
ones in issue here, continue to outpace sustainable loan modifications. This is because the
servicer will make much more money by either foreclosing or providing a short-term forbearance
plan that requires large monthly payments, than it will make by providing the borrower a
permanent loan modification.
57. A servicer who is blindly committed to its bottom line will string along the
distressed borrower for as long as possible, before ultimately deciding upon whether to foreclose
or provide a permanent modification. As one commentator recently explained:
For servicers, the true sweet spot lies in stretching out a
delinquency without either a modification or a foreclosure. . . .
[D]efault-related fees can add significantly to a servicers bottom line,
and the longer a homeowner is in default, the larger those fees can be.
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The netherworld status between a foreclosure and a modification also
boosts the monthly servicing fee . . . [and] foreclosure or modification,
[but] not delinquency by itself, usually triggers loss recognition in the
pool under the accounting rules. Waiting to foreclose or modify
postpones the day of reckoning for a servicer. How long a delay in the
foreclosure will be profitable depends on the interplay of the servicers
ability to charge additional fees during the foreclosure, the servicers
financing costs for advances, and the time limits for proceeding through
foreclosure imposed by the investor contracts and credit rating
agencies. If the servicer can juggle the time limitsperhaps by offering
short-term workout agreementsthe prospect of increased fees may
outweigh interim interest costs. Once the servicers financing costs
outweigh the incremental fees that can be extracted by maintaining a
borrower in delinquency, the servicer will then choose the faster
option either a foreclosure or a modification.
10

10
Diane E. Thompson, Foreclosing Modifications: How Servicer Incentives Discourage Loan
Modifications, 86 Wash. L. Rev. 755, 772 (2011) (footnotes omitted). Much of this section is derived
from her article.

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FACTS CONCERNING THE PLAINTIFF AND HIS TRANSACTION
Plaintiffs Loan
58. On June 16, 2001, Plaintiff Joseph Moquin borrowed $228,933 from
Homeowners Assistance Corp. (Homeowners below). The loan was used to purchase a single
family home in Merrimack, for he and his wife to reside in. The loan is evidenced by a 30-year
fixed rate note at 7% interest, with monthly payments of $702.48. Repayment of the note is
secured by a mortgage of even date which he and his wife gave to Homeowners.
59. Homeowners later assigned the loan to Wells Fargo Home Mortgage, Inc., which
in 2003 assigned it to HUD, which immediately assigned it to a Wall Street venture titled SFJV-
2002-1, LLC, which, in October, 2009 assigned it to Citigroup. ASC has been the loan servicer
at all times relevant to this action.
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Plaintiffs Default

60. Mr. Moquin is capable, industrious and resourceful. Moreover, Mr. Moquin is
conservative when it comes to his familys finances. Unlike many homeowners, he is not
underwater on his mortgage. Through the years, he never refinanced his original mortgage to
tap the equity he had built up in his home over the years.
61. Employment-wise, Mr. Moquin is a self-starter who prefers to be busy and
productive. In 2001, after many years in his chosen field, he and a partner started their own
technical consulting/staff augmentation company, which they operated successfully for several
years. In 2007, he had the opportunity to start a similar company. Although his new company
got off to a great start, the slowly-unfolding economic crisisand the related falloff in hiring

11
Wells Fargo, through its ASC division, likewise services all of the other class members loans for
Citigroup and various other mortgagees whose loan portfolios are nominally held by various trusts and
other securitization-related entities and vehicles.
18

managed to effectively suffocate his hiring-dependent company by the middle of 2008. His
income dropped all the way down from an average of over $100k in each of the several previous
years, to $0 in 2009. Though he continued to work tirelessly to ignite his business, the economy
was dead during that period.
62. Mr. Moquin acted diligently to find new employment. Toward the end of 2009,
Mr. Moquin began scrambling to land a paying job- any paying job. In around December,
2009, he gratefully accepted a job offer paying just $29k annually. Unfortunately, his new
employer was likewise affected by the economic crisis. In January, 2010, the company had to
ask Mr. Moquin to forego his modest salary altogether, and to work on the prospect of
commissions alone. Mr. Moquin, desirous of providing food and shelter to his family, again
scrambled to find employment.
63. Mr. Moquin is fully employed again. In February, 2010, he secured his current
position. He has been there for nearly two years now, and he earns enough to meet all of his
current obligations. There is absolutely no reason why Mr. Moquin should still be in danger of
losing his homethe home that he and his family have resided in, and that he has made the vast
majority of payments onfor more than ten years.
Defendant St rings The Pl ai nti ff Al ong
64. As a borrower with a mortgage insured by the FHA, plaintiff Joseph Moquin is
intended to receive the benefits of federal regulations comprising FHA Loss Mitigation
Program. Among other things, this program sets out the foreclosure alternatives available to
borrowers, how often a lender must consider these options, and even the manner in which the
lender must contact the borrowers. These regulations are relevant in assessing the defendants
contractual performance under the FHAs uniform documents (its note and mortgage forms).
19

65. Mr. Moquin is eligible for foreclosure alternatives under the FHA Loss Mitigation
Program and would be able to avoid foreclosure with appropriate assistance. However, Wells
Fargo did not and does not comply with federal regulations and contractual terms regarding
foreclosure alternatives. Wells Fargo has made and continues to make adverse and erroneous
decisions on these foreclosure alternatives, and as a result of its conduct Mr. Moquin has been
in a constant state of distress over whether he will be able to save his familys home from
foreclosure and, if so, how.
66. As explained above, Mr. Moquin had no income during 2009. Nonetheless, he
made mortgage payments whenever he could, by withdrawing funds from the familys savings
account, and by borrowing from relatives. However, by October he was behind by four months.
67. Mr. Moquin had heard about the Making Home Affordable Program, so in the fall
of 2009 he contacted the program. The specialist assigned to him told him that he qualified for
assistance and that he should let his lender know this. He promptly contacted defendant,
explained his situation and provided all of the financial information and documents it requested,
so that it could consider loss mitigation strategies.
Defendant s fi rst l oss mi t i gat i on act i on
68. In about October, 2009, defendant sent Mr. Moquin a temporary loan
modification plan for him to sign, which provided for a lower interest rate and a lower monthly
payment. This plan is designed to show that the borrower is able to make somewhat reduced
monthly mortgage payment. If the borrower makes three of the new monthly payments on time,
he has successfully completed the temporary modification plan and he or she qualifies for a
permanent loan modification. This plan is appropriate for borrowers who have fallen behind
because, for example, they simply do not have enough income to make the regular monthly
20

payment, or because an unanticipated, non-recurring expense such as a large medical bill has
thrown off their monthly budget. But because it does require the borrower to make a monthly
payment for three consecutive months, a temporary modification plan is not appropriate for a
borrower who has fallen behind because he has become unemployed. This borrower cannot be
expected to make three consecutive monthly payments, even if the amount of the payment has
been somewhat reduced, until he obtains regular employment again.
69. Defendant sent plaintiff the temporary modification plan without first reviewing
his situation and choosing the appropriate action to take. Prior to taking any action, defendant
should have taken into account plaintiffs temporary unemployment status. It should have
ascertained the circumstances and then chosen an appropriate loss mitigation tool. For example,
it could have simply suspended his regular monthly payment for a brief period of time while he
continued to actively pursue employment opportunities. This is the sort of action that the
regulators had in mind in crafting their loss mitigation programs. At bottom, its review and
evaluation for loss mitigation purposes was inadequate and incompetent.
70. Unsurprisingly, plaintiff did not successfully complete this initial temporary
modification plan. Moreover, because the plan called for a first payment date three months out,
by the time the plan had run its course it had the net result of causing plaintiff to be several
additional months behind on his monthly payments.
Defendant s second l oss mi t i gat i on act i on
71. In phone discussions during the early months of 2010, Mr. Moquin let defendant
know that he had obtained employment again, and that therefore a loan modification would be an
appropriate action to resolve his default and thus avoid foreclosure. Though he was ideally
suited for this action, defendant instead promised Mr. Moquin that if he successfully completed a
21

temporary forbearance agreement, then at that point his loan would be reviewed for permanent
modification. The agreement called for four consecutive monthly payments commencing in
June, 2010, with each such payment being more than three times the amount of his regular
monthly payment (i.e., $2,132 per month, compared to $702 per month).
72. He was employed again and he wanted to get his loan back on track with the help
of a permanent loan modification. Relying upon defendants promise to review his loan for
modification if he successfully completed the agreement by making the four oversized payments,
he worked hard and sacrificed much to get it done. Mr. Moquin made each scheduled payment
on time. He fully believed he had shown his ability to make regular mortgage payments and that
he would soon receive the loan modification.
73. Having successfully performed his part of the agreement, he contacted defendant
to learn what would happen next. He was told that everything was all set and that his file was in
review for loan modification. He called back regular to see whether the review had occurred yet.
He also asked repeatedly whether he should continue making the regular monthly payments or
wait until the modified terms were in place. Defendant told him that any payments he made in
the interim would not be applied to the loan but would instead be held in suspense. Just the
same, he made the November and December payments.
74. In December, he phoned defendant and learned from a female employee that his
file had not been reviewed for modification. He explained that he had called at least half a dozen
times during the past couple of months and had always been told that his file was waiting to be
reviewed for the modification. She stated that she would send an internal email to the point of
contact and that he should then hear something.
22

75. In mid-January, 2011, he received a call from another woman at ASC. To his
surprise, she identified several kinds of information and documents that defendant needed from
him to complete its review. Defendant told to send her certain tax forms, historical bank
statements, pay stubs, and the like. He did so. After a few communications back and forth, and
after he had complied with all of her additional requests for information and materials, she told
him that she had everything she needed and that he would hear back from her soon.
76. In the following monthFebruary, 2011he received a phone message from a
male employee at ASC seeking clarification on a couple of minor points in his file. Mr. Moquin
promptly phoned him back and answered his various questions. At the end of their conversation,
the man assured him he now had everything he needed.
Defendant s t hi rd l oss mi t i gat i on act i on
77. A couple of more weeks passed, and then he received a call from yet another ASC
employee, who wished to speak with him about his modification. But the employee did not
speak with him about a loan modification. Instead, much to Mr. Moquins surprise, the
employee spoke to him about another forbearance agreement.
78. Mr. Moquin explained that he had already successfully completed his forbearance
agreement and that his loan was supposed to be in review for permanent loan modification. The
employee wished to transfer the call to another employee. Mr. Moquin patiently recounted his
loan situation with this person as well. She reviewed his file over the phone with him and
confirmed that his understanding of the file status was correct. She said his file seemed to
contain all the explanations, financial information and documents necessary, and that she could
discern no error or problem with the earlier forbearance agreement which might explain why
ASC had not already approved the loan modification but was instead seeking yet another
23

forbearance agreement with him. She seemed informed and she was helpful; she concluded the
call by promising that she would refer his file to the office of the president.
79. Sometime later, Mr. Moquin received a call from an ASC employee named
Latasha Ferrell. He explained the situation, and she told him the reason ASC had dropped the
ball was that his file was not being tracked by the right department. She promised that now,
she would be responsible for seeing the loan modification process through to the end and now
there would be no confusion or black holes. He explained that he had already shown his ability
to afford the loan (which is the showing required for a permanent loan modification), and that his
loan file was already ready for its loan modification review. He shared his concern that this
seemingly botched procedure was taking so long that it was adversely affecting his credit rating.
80. Ms. Ferrell promised him that if he went along with her and completed this new
forbearance agreement, she herself would see his file all the way through to assure the review
occurred promptly so the loan modification could be signed off on. Exh is a copy of the
offer letter and the Special Forbearance Agreement.
ibit E
81. He received it in the mail. The offer letter read, in part:
Our goal is simple. We want to ensure that you
have every opportunity to retain your home.
Based on our telephone conversation and the
financial information you provided, we would
like to offer you a Special Forbearance Plan.
82. Enclosed with this offer letter was the Special Forbearance Agreement that he was
supposed to sign and return to ASC. It read, in part:
This plan is an agreement to temporarily accept
reduced payments or maintain regular monthly payments
during the plan specified below. Upon successful
completion of the payments outlined in this plan,
your loan will be reviewed for a Loan Modification.
24

83. Having read it, he believed it was consistent with HAMP guidelines and that if he
made the plan payments he would receive a loan modification so long as his income and
financial situation had not changed in the meantime. So he signed and returned it, and then he
made each scheduled payment on time even though the plan required him to make three monthly
mortgage payments that were each in amount that was double his regular mortgage payment.
84. Mr. Moquin then contacted Ms. Ferrell again. Understandably, she asked him
whether his income or financial situation had changed since he signed the agreement, and he was
glad to be able to assure her that everything continued to be fine. He felt confident he had passed
the test and that his loan modification was a certainty. She told him to sit tight and he would
hear back shortly. Believing his monthly payment obligation would recommence shortly upon
the modified terms, he sat back and waited for the final decision.
85. After a few more weeks, he attempted to reach Ms. Ferrell for a status update.
Unable to reach her, he called the defendants main number. The operator told him his point of
contact was not Ms. Ferrell, but was instead Tawanda Alexander. He was able to contact Ms.
Alexander, who assured him that she was his new point of contact and that she would see it
through to the end. She proceeded to identify several kinds of information and documents that
ASC still needed to complete the review. She told him to send heryesthe very same tax
forms, historical bank statements, pay stubs, and the like that he had already been asked for and
had already sent in to the former point of contact.
86. Disillusioned and exhausted, he nonetheless complied with the request. For the
next several weeks, he repeatedly complied with additional requests for various sorts of
information and for additional documentation. He wanted to do all he could to help his lender
make his loan modification process a success.
25

Defendant s fourt h l oss mi t i gat i on act i on
87. But now, he has just received another letter from defendant, which is to introduce
him to yet another home preservation specialist. It begins:

88. Shortly after receiving this letter, Mr. Moquin decided that he himself could do no
more to move the loan modification process along. Fearful, again, of losing his home to
foreclosure for no good reason, he sought out legal representation.
26

FACTS COMMON TO ALL TRANSACTIONS
89. Defendant engaged in deceptive and unlawful conduct, and breached its
contractual covenant of good faith and fair dealing, in its default loan servicing transactions with
the plaintiff and class members, by a) sending them debt collection communications that, given
the circumstances, had a tendency to deceive them into believing that if they made the required
payments they would receive loan modifications provided their income and financial situation
had not changed; and by b) abusing its considerable discretion in addressing their loan defaults
by ignoring federal policies, procedures, guidelines and regulations applicable to their loans
under their specific circumstances and instead providing them with unsustainable and oppressive
short-term forbearance agreements, by making misleading statements to induce them to sign
these agreements (including its incorporation into the agreement of a contingency to its own
performance known only to it, namely, that the scope of its subsequent review might extend
well beyond a confirmation that their income and financial situation had not changed in the
meantime), and by c) its failure to perform in that it did not provide them with permanent loan
modifications after they had successfully completed their part of the deal and a review had
shown (or would have shown, had it been done) that their income and financial situation had not
changed in the meantime.
90. The plaintiff and all of the class members:
a. Have or had residential mortgage loans that are or were serviced by ASC.
b. Fell behind on their monthly payments by at least four months.
c. Federal policies, procedures, guidelines and regulations pertaining to the
servicing of defaulted residential mortgage loans, such as HAMP and/or FHAs Loss Mitigation
Program imposed servicing obligations upon the defendant.
27

d. They received defendants cover letter and the enclosed forbearance
agreement, in a form substantially similar to that received by the plaintiff. [Exh , supra.] ibit E
91. Defendants offer letter and agreement contained statements that, both
individually and taken together, had a capacity to deceive the vulnerable borrowers who received
them into falsely believing that a) it was sent out consistent with federal policy under HAMP
aimed at achieving foreclosure avoidance through sustainable loan modification; and that b)
defendant, based upon its telephone conversation with them as well as its assessment of the
financial information they had sent in at its request, had decided to offer them a bona fide
opportunity to save their homes by enrolling in a standard plan that was designed to result in a
permanent loan modification for those who successfully completed it by making the required
payments and whose income and financial situation had not changed in the meantime according
to its subsequent review.
92. At the time it sent out the offer letter and agreement, defendant:
a. Intended the communication to mislead the recipients into believing:
i. That it had been sent to them under and/or consistent with the
well-publicized federal policies under HAMP including those aimed at foreclosure avoidance
through loan modification; and
ii. That defendant had decided, based upon its personal telephone
conversation with them as well as its assessment of the financial information that it had
requested of and received from them, to offer them an opportunity to save their homes by
enrolling in a plan designed to result in a permanent loan modification, and that those who took
the opportunity and successfully completed the plan by making the required payments would
28

receive loan modifications, provided that a subsequent review showed their income and financial
situation had not changed in the meantime.
b. Knew that its statement that:
Upon successful completion of the
payments outlined in this plan, your loan
will be reviewed for a Loan Modification.
i. Was ambiguous, as to the scope of its review.
ii. Would likely be read by the borrowers as inferring that if they
made all of the required payments under the plan, they would receive a Loan Modification so
long as the review afterwards showed that their income and financial situation had not changed
in the meantime, inasmuch as each also had been told that he or she was being offered the plan:
Based on our telephone conversation and
the financial information you provided
. . .
iii. Constituted a contingency to its own performance of the agreement
that was known to it alone, in that it alone knew that it might not provide a Loan Modification to
some or all of the recipients who successfully completed the plan even if its review showed
that their income and financial situation had not changed in the meantime.
29

Facts common to the Subclass members transactions
12
93. Defendant failed to make good faith efforts to provide the loan servicing functions
owed to plaintiff and the Subclass members in connection with its review and retention of
documentation, including their loan modification applications; and, more specifically, by failing
to hire sufficient staff, by losing documents, repeatedly requesting documents it has already
received, giving conflicting and confusing instructions to borrowers, not responding to borrowers
inquiries, and making mistakes in processing documents.

94. Defendant failed to comply with the required federal HAMP and FHA loss
mitigation policies, procedures, guidelines and regulations applicable to the plaintiffs and
Subclass members defaulted loans.
95. The defendant misled led the plaintiff and the Subclass members to:
a. Falsely believe that it had sent the offer package to them consistent with
federal policy under HAMP and/or FHA guidelines aimed at achieving foreclosure avoidance
through sustainable loan modification when, in fact, it sent it to them merely in an attempt to
collect debt that it otherwise might not have been able to collect from them.
b. Falsely believe, and justifiably expect, that if they successfully completed
the proffered plan by making all of the payments, they would be offered loan modifications
provided the subsequent review showed their income and financial situation had not changed

12
The plaintiff and all of the class members received the forbearance-to-modification package, consisting
of the cover letter and the enclosed agreement, so they were all subjected to defendants unlawful debt
collection conduct. Accordingly, plaintiff asserts the federal and state unfair debt collection claims
(Counts I and II, respectively) for himself and all of the other Class members as defined below.
However, since only the Subclass members successfully completed the payments required by the
agreement (yet did not receive loan modifications), plaintiff only asserts the claims for breach of the
implied covenant of good faith and fair dealing, and for promissory estoppel (Counts III and IV,
respectively), for himself and the other Subclass members as defined below.
30

(inasmuch as this is the most sensible interpretation of its review term, and the interpretation
most in accord with the federal governments much-publicized loan modification and foreclosure
avoidance policies, procedures, guidelines and regulations).
96. Laboring under these false beliefs, plaintiff and the Subclass members signed the
agreements and successfully completed the onerous payments required by them.
97. Though the plaintiff and Subclass members successfully completed the plan, and
though nothing in defendants files indicates that a subsequent review had shown that their
income or financial situation had changed in the meantime, defendant failed to offer them loan
modifications.
98. In the case of the plaintiff and Subclass members, the most appropriate action,
and the action that defendant should have taken, at the times these borrowers successfully
completed their plan payments, was to provide them with permanent loan modifications. All of
them could have made the sustainable monthly payments that would be required of them in the
sort of loan modification agreement envisioned in the applicable federal guidelines, yet they have
yet to be offered the same. This is not right. For the servicer, Inertia is not an option.
DAMAGES
99. Plaintiffs have suffered actual and statutory damages as a result of defendants
conduct in disregarding applicable loss mitigation and foreclosure avoidance guidelines and
regulations and in making deceptive and misleading statements to induce them to enter into
agreements and make large payments on their defaulted debt.
100. Defendant has deprived the Subclass members of the benefit of the full set of
tools and strategies that the defendant was supposed to consider and use when borrowers like
them fell behind on their monthly payments; it has also deprived them of the opportunity to
31

pursue other strategies to save their homes, such as restructuring their debt under the bankruptcy
code; and of pursuing other strategies to deal with their default, such as selling their home.
101. All of the Subclass members have had to live with the daily trauma of the
imminent foreclosure and loss of ones home, along with the consequent result of compromised
credit. All of them were also deprived of the money that they were falsely induced to send to
defendant, as well as of the opportunity to use this money instead to fund bankruptcy plans,
relocation costs, short sales or other means of curing their default. Finally, some have suffered
additional harm in the form of foreclosure activity against their homes.
CLASS ALLEGATIONS
102. Plaintiff brings this action on his own behalf and on behalf of a class, and a
subclass, of persons similarly situated, under Rules 23(a) and (b)(2) and (3) of the Federal Rules
of Civil Procedure. The class (Class) and subclass (Subclass) consist of:
The Class consists of all New Hampshire residential mortgage
customers who have or had a residential mortgage that is
currently being serviced or was previously serviced by
defendant through its ASC division during the applicable
statute of limitations (the Class Period); and received the
above-described forbearance-to-modification package from
ASC, consisting of the offer letter and special forbearance
agreement in substantially the same form as is depicted in
Exh , supra. ibit E
A Subclass exists, comprised of all Class members who then
signed it and made all of its required payments on time, but
were not thereafter offered a loan modification even though
nothing in defendants loan files shows that they were not
offered a loan modification because its review had shown that
their income or financial situation had changed since it had
sent them the offer letter and special forbearance agreement.
103. The Class is ascertainable, as the names and addresses of all Class and Subclass
members can be identified in business records maintained by defendant.
32

104. Plaintiff does not know the exact size or identities of the proposed Class and
Subclass, since such information is in the control of defendant. Plaintiff believes and alleges,
however, that the Class encompasses at least several hundred, and the Subclass encompasses
more than one hundred, homeowners geographically dispersed throughout New Hampshire.
Therefore, the proposed Class and Subclass members are each so numerous that joinder of all
members is impracticable.
105. Common questions of fact and law predominate over any questions affecting only
individual members including, but not limited to, the following:
a. Whether the offer letter and its enclosed agreement contained misleading
statements communicated in violation of:
b. The federal Fair Debt Collection Practices Act; and/or
c. The state Unfair Debt Collection Act;
d. Whether defendants practice of denying loan modifications, or offering
illusory modifications, on bases other than those set forth in the modification proposal and/or
defendants conduct with respect to offering these forbearance-to-modification agreements
and/or otherwise collecting debt constituted unlawful debt collection practices under the federal
FDCPA and/or New Hampshires Unfair Debt Collection Practices Act;
e. Whether defendant failed to comply with HAMP and FHA policies,
procedures, guidelines and regulations applicable to the loans and, if so, whether its failure to do
so constituted a breach of the implied covenant of good faith and fair dealing in that the plaintiff
and class members justifiably expected that it would do so and in that its failure to do so offends
community standards of decency, honesty and reasonableness;
33

f. Whether the special forbearance agreements were valid and binding
agreements;
g. Whether defendant had programs in place that constituted material
performance of the agreements;
h. Whether defendant had practices and procedures in place to reasonably
ensure it was prepared to perform all of its obligations under the agreements;
i. Whether defendant reviewed the loans of borrowers who successfully
completed the agreement for loan modification and, if so, how and why it did so;
j. Whether defendant applied criteria or conditions for loan modifications
other than those set forth in the agreements offered to homeowners who were behind in their
payments;
k. Whether defendants purported review of the loan after the borrower had
successfully completed the agreement:
i. Was subject to written or unwritten guidelines and/or involved the
assessment or application of written or unwritten criteria or conditions; and/or
ii. Was intended to assess or ascertain anything other than whether
the borrowers income or financial situation had changed;
l. Whether defendant had actual criteria for mortgage loan modifications
and, if so, what those criteria were;
m. Whether defendant had a practice of offering these agreements:
34

i. Without being prepared or committed to review the loans for
modification afterwards; and/or
ii. Without the intention of necessarily providing loan modifications
to the borrowers who successfully completed the agreements even if its subsequent review
showed their income and financial situation had not changed in the meantime;
n. Whether the parties agreement gave defendant the discretion to determine
the components, structure, nature, purpose, scope, parameters, guidelines, assessments, criteria,
conditions and/or qualifications of the review referred to in the agreement;
o. Whether defendants conduct in designing its review constituted an
abuse of its discretion due to its components, structure, nature, purpose, scope, parameters,
guidelines, assessments, criteria, conditions and/or qualifications, because it exceeded the
reasonable limits of its discretion in that it was inconsistent with the plaintiff and class
members justified expectations as well as community standards of decency, honesty and
reasonableness;
p. Whether defendants conduct in implementing its review constituted an
abuse of its discretion due to its components, structure, nature, purpose, scope, parameters,
guidelines, assessments, criteria, conditions and/or qualifications, because it exceeded the
reasonable limits of its discretion in that it was inconsistent with the plaintiff and class
members justified expectations as well as community standards of decency, honesty and
reasonableness;
q. Whether defendants conduct in denying loan modifications to borrowers
who successfully completed the agreement based upon its review constituted an abuse of its
35

discretion due to the reviews components, structure, nature, purpose, scope, parameters,
guidelines, assessments, criteria, conditions, qualifications, design, implementation, or manner of
application, because it exceeded the reasonable limits of its discretion in that it was inconsistent
with the plaintiff and class members justified expectations as well as community standards of
decency, honesty and reasonableness;
r. Whether the Court can order defendant to pay damages and what the
proper measure of damages is; and
s. Whether the Court can enter injunctive relief.
106. Plaintiff is a member of both the Class and the Subclass, and his claims are typical
of the claims of all of the other Class and Subclass members, and they do not conflict with the
interests of any other members of the Class or Subclass.
107. Plaintiff will fairly and adequately represent the interests of the Class. He is
committed to the vigorous prosecution of the Class claims and has retained attorneys who are
qualified to pursue this litigation and have substantial experience in consumer credit class action
claims.
108. A class action is superior to other methods for the fast and efficient adjudication
of this controversy and to avoid the risk of disparate and inconsistent rulings throughout the
state. A class action regarding the issues in this case does not create any problems of
manageability.
36

CAUSES OF ACTION
FDCPA
109. Plaintiff repeats and re-alleges every allegation above as if set forth herein in full.
110. Plaintiff brings this claim on his own behalf and on behalf of each member of the
Class described above.
111. Plaintiff and the Class members incurred a financial obligation (the Debt) to an
original creditor. The Debt arose from services provided by the original creditor which were
primarily for family, personal or household purposes and which meets the definition of a Debt
under 15 U.S.C. 1692a(5). The Debt was owned by either the original creditor, or by its
successors or assigns (the Creditor), and not by the defendant, during all times in which
defendant engaged in the conduct alleged herein.
112. Defendant, through its ASC division, was employed by the Creditor to collect the
Debt.
113. Defendant attempted to collect the Debt and, as such, engaged in
Communications as defined in 15 U.S.C. 1692a(2).
114. Defendants conduct violated 15 U.S.C. 1692d in that it engaged in behavior the
natural consequence of which was to harass, oppress, or abuse the plaintiff and Class members in
connection with the collection of a debt.
115. Defendants conduct violated 15 U.S.C. 1692e(10) in that defendant employed
false and deceptive means to collect a debt from the plaintiff and Class members.
116. Defendant has violated and continues to violate the FDCPA by its conduct in
collecting or attempting to collect a debt in an unfair, deceptive or unreasonable manner as
37

defined within the FDCPA. Its conduct is unfair, deceptive, oppressive, unconscionable, and
contrary to public policy and generally recognized standards applicable to the consumer lending
business. Its conduct in violation of the FDCPA includes, but is not limited to:
a. Collecting debt through a common scheme of inducing plaintiff and the
Class members to make a number of large monthly payments on their defaulted loans under the
false promise that if they did so they would be offered a loan modification provided a review
showed their income and financial situation had not changed.
b. Making material false representations or implications as to:
i. The character, extent or amount of the debt.
ii. The actions it would take upon the debtors successful completion
of a plan requiring it to make several payments on the debt.
c. Failing to offer plaintiff and the members of the Subclass loan
modifications based on its assessment of the phone calls it had with them together with the
financial information it requested and received from them (meaning the assessment upon which
it had purportedly offered them its forbearance-to-modification plan), their demonstration of a
willingness and ability to make consecutive monthly payments as evidenced by their successful
completion of the agreement, and the absence of any showing that their income and financial
situation had changed since then;
117. Failing to otherwise provide them with a bona fide opportunity to retain their
homes despite its unequivocal promise to do so contained in its offer letter and despite its
contractual duty to do so arising out of the federal guidelines specifying its mortgage servicing
obligations applicable to their defaulted loans. The foreclosure-to-modification agreement
38

neither represented in itself, nor otherwise provided, the plaintiff and the class members with a
meaningful opportunity to retain their homes.
d. Failing to perform loan servicing functions consistent with its
responsibilities to plaintiff and the class members;
e. Failing to properly hire, train and supervise agents and employees, and
enough of them, including, without limitation, its loss mitigation and collection personnel;
f. Routinely demanding information already in its files; and
g. Making inaccurate calculations and determinations of plaintiffs and the
Class members eligibility for loan modifications.
payments and whose income and financial situation had not changed in the meantime.
119. Defendant violated the FDCPA in multiple ways and on numerous occasions.
120. The plaintiff and Class members have been injured by virtue of defendants
violations of the FDCPA. Said injuries include, but are not limited to:
a. Wrongful foreclosures.
39

b. Otherwise avoidable losses of homes to foreclosure.
c. Less favorable loan modifications.
d. Increased fees and other costs incurred to avoid or attempt to avoid later
foreclosure.
e. Loss of savings in fruitless attempts to secure loan modifications.
f. Loss of opportunities to secure other refinancing or loss mitigation
strategies.
g. Significant stress and emotional distress.
121. The plaintiff and class members are entitled to actual and statutory damages as a
result of its violations.
COUNT II
RSA 358C UNFAIR DEBT COLLECTION ACT
Class described above.
124. RSA 358C (the Unfair Debt Collection Act) prohibits the collection of debt in
an unfair, deceptive or unreasonable manner. RSA 338C:2.
125. As the terms are defined in RSA 358C:1:
a. Plaintiff and class members are Consumers.
b. Each of their loans is a Consumer Credit Transaction.
40

c. In the transactions between the defendants, on the one hand, and the
plaintiff and each of the class members, on the other hand:
i. The note and the mortgage constitute the Credit, and evidence
the Debt.
ii. The plaintiff and each class member is a Debtor.
iii. Defendant is the Debt Collector.
126. Defendant has violated and continues to violate the Unfair Debt Collection Act by
its conduct in collecting or attempting to collect a debt in an unfair, deceptive or unreasonable
manner as defined within the Unfair Debt Collection Act. Its conduct is unfair, deceptive,
oppressive, unconscionable, and contrary to public policy and generally recognized standards
applicable to the consumer lending business. Moreover, the foreclosure-to-modification
agreement neither represented in itself, nor otherwise provided, the plaintiff and the class
members with a meaningful opportunity to retain their homes.
41

payments and whose income and financial situation had not changed in the meantime according
to its subsequent review.
128. Defendant has violated New Hampshires Unfair Debt Collection Act by its
conduct in:
a. Collecting debt through a common scheme of inducing plaintiff and the
Class members to make a number of large monthly payments on their defaulted loans under the
false promise that if they did so they would be offered a loan modification provided a review
showed their income and financial situation had not changed.
b. Making material false representations or implications as to:
i. The character, extent or amount of the debt.
ii. The actions it would take upon the debtors successful completion
of a plan requiring it to make several payments on the debt.
c. Failing to offer plaintiff and the members of the Subclass loan
modifications based on its assessment of the phone calls it had with them together with the
financial information it requested and received from them (meaning the assessment upon which
it had purportedly offered them its forbearance-to-modification plan), their demonstration of a
willingness and ability to make consecutive monthly payments as evidenced by their successful
completion of the agreement, and the absence of any showing that their income and financial
situation had changed since then;
d. Failing to otherwise provide them the opportunity to retain their home
based on information previously provided to defendant and the plaintiffs and Subclass
42

members demonstration of a willingness and ability to make consecutive monthly payments as
evidenced by their successful completion of the agreement.
e. Failing to perform loan servicing functions consistent with its
responsibilities to plaintiff and the class members;
f. Failing to properly hire, train and supervise agents and employees, and
enough of them, including, without limitation, its loss mitigation and collection personnel;
g. Routinely demanding information already in its files; and
h. Making inaccurate calculations and determinations of plaintiffs and the
Subclass members eligibility for loan modifications.
129. The plaintiff and class members have been injured by virtue of defendants
violations of the Unfair Debt Collection Act. Said injuries include, but are not limited to:
a. Wrongful foreclosures.
b. Otherwise avoidable losses of homes to foreclosure.
c. Less favorable loan modifications.
d. Fees and costs incurred to avoid or attempt to avoid later foreclosure.
e. Loss of savings in fruitless attempts to secure loan modifications.
f. Loss of opportunities to secure other refinancing or loss mitigation
strategies.
g. Significant stress and emotional distress.
130. The plaintiff and class members are entitled to actual and statutory damages as a
result of defendants violations of New Hampshires Unfair Debt Collection Act.
43

COUNT III
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Subclass described above.
133. Plaintiff and class members entered into an agreement with defendant whereby, in
exchange for the specified monthly payments, defendant agreed to put them into a forbearance-
to-modification program that would give them the opportunity to retain their home based on
information previously provided to defendant and the plaintiffs and class members
demonstration of a willingness and ability to make consecutive monthly payments.
134. In every contract or agreement, including those at issue here, there is an implied
promise of good faith and fair dealing, which means that each party will not do anything to
unfairly interfere with the right of any other party to receive the benefits of the contract. This
covenant of good faith applies in particular here, as defendant drafted an adhesive agreement
under which it ostensibly retained for itself the unfettered discretion to avoid its obligations
under the agreement by purportedly conditioning its performance on a purported review of the
loan. In this situation, the law reads a duty of good faith into defendants exercise of discretion
in order that the agreement should not be rendered illusory.
135. The parties agreement gave defendant full discretion to determine the structure,
nature, purpose, scope, parameters, guidelines, assessments, criteria, conditions, requirements
and/or qualifications of the review it would perform before offering loan modifications to
borrowers who had successfully completed the agreement by making the required payments.
44

136. Defendant abused its discretion in connection with its design, implementation,
completion, and/or assessment of its post-agreement review. The plaintiff and class members
had a) successfully completed the forbearance-to-modification plan, and b) a review would show
that their income and financial situation had not changed since defendant had offered them the
plan [b]ased on our telephone conversation and the financial information you provided, yet
defendant failed to offer them loan modifications. Therefore, defendants subsequent failure to
offer them loan modifications constitutes a breach of the implied covenant of good faith and fair
dealing, in that:
a. Plaintiff and the class members had the justifiable expectation that:
i. The offer letter and forbearance agreement that defendant mailed
to them based upon their telephone conversation and the financial information they had provided
at its request was consistent with and would reflect HAMP and/or FHA loan modification and
foreclosure avoidance guidelines;
ii. If they successfully completed the forbearance agreement by
making all of the required payments, they would be offered loan modifications provided its
subsequent review confirmed that their income and financial situation had not changed; and
b. To the extent that the defendant intended that its post-completion review
would go beyond simply confirming that the plaintiffs and class members income and financial
situation had not changed, its intentions arose out of contingencies known only to it.
137. Defendant also violated its duty of good faith and fair dealing by failing to make
good faith efforts to provide the loan servicing functions owed to plaintiff and the class in
connection with their review and retention of documentation, including loan modification
45

applications and, more specifically, by failing to hire sufficient staff, by losing documents,
repeatedly requesting documents it has already received, giving conflicting and confusing
instructions to borrowers, not responding to borrowers inquiries, and making mistakes in
processing documents.
138. Defendant also violated its duty of good faith and fair dealing by failing to
comply with the federal HAMP and FHA policies, procedures, guidelines and regulations it was
obligated to comply with in connection with servicing the plaintiffs and Subclass members
defaulted loans, because the plaintiff and Subclass members were justified in expecting that it
would service their loans in manner that conformed with its federal obligations and its failure to
do so offended community standards of decency, honesty and reasonableness. Whereas these
borrowers could have continued, month after month, making the relatively-modest payments
required under a sustainable modification plan, defendants inappropriate and oppressive short-
term forbearance plans required them to make several very large, unsustainable payments. Some
of them who made all of the payments only to be told that there will be no loan modification for
them after all, have been completely demoralized and exhausted by this defendant; some who
relied upon the defendants forbearance-to-modification promise, but were not given a loan
modification afterwards, can only watch, dumbfounded, if and when their home is auctioned off
instead.
139. As a result of these failures to act in good faith and this absence of fair dealing,
defendant caused plaintiff and the Subclass members to suffer harm. By entering into and
making payments under the forbearance-to-modification agreement, plaintiff and the class
members forewent other remedies that might be pursued to save their homes, such as
restructuring their debt under the bankruptcy code, or pursuing other strategies to deal with their
46

defaults, such as selling their homes. In addition to the lost opportunity cost of pursuing other
means of dealing with their default, when a permanent modification is not offered at the close of
the three-month forbearance-to-modification agreement, the borrowers eventual permanent
modification terms may be adversely affected and additional fees and charges may be applied.
Some members of the putative class also suffered additional harm in the form of foreclosure
and/or collection activity against their homes. Last, they have had to live with the daily trauma
of the imminent foreclosure and loss of ones home, along with the consequent result of
compromised credit, which circumstances come well within the ambit of financial damage.
COUNT IV
PROMISSORY ESTOPPEL
141. Plaintiff brings this claim on his own behalf and on behalf of the Subclass
members.
142. Defendant, by way of its forbearance-to-modification agreements, made a
representation to plaintiff and the Subclass members that if they successfully completed making
the payments required by the agreements, they would be offered loan modifications provided
their income and financial situation had not changed in the meantime.
143. Defendants agreement was intended to induce plaintiff and the Subclass
members to rely on it by entering into the agreements and making the required payments.
144. Plaintiff and the members of the Subclass did rely on defendants representations,
by entering into the agreements and making the required payments.
145. Given the language in the forbearance-to-modification agreement, plaintiffs and
class members reliance was reasonable.
47

146. Their reliance was to their detriment. Plaintiff and the Subclass members have
yet to receive the promised loan modifications. By entering into the agreements and making the
required payments, plaintiff and the Subclass members forewent other remedies that might be
pursued to save their homes, such as restructuring their debt under the bankruptcy code, or
pursuing other strategies to deal with their defaults, such as selling their homes. In addition to
the lost opportunity cost of pursuing other means of dealing with their default, when a permanent
modification is not offered at the close of the forbearance-to-modification agreement, the
borrowers eventual loan modification terms may be adversely affected and additional fees and
charges may be incurred or applied. Plaintiff and Subclass members also suffered additional
harm in the form of improper fees and costs on their accounts and/or foreclosure/collection
activity against their homes. Last, they have had to live with the daily trauma of the imminent
foreclosure and loss of ones home, along with the consequent result of compromised credit,
which circumstances come well within the ambit of financial damage.
REQUEST FOR INJUNCTIVE RELIEF
147. The injuries suffered by the plaintiff and the members of the class are capable of
repetition, yet may evade review, thereby making classwide injunctive relief appropriate.
148. Given its widespread failure to comply with HAMP and FHA rules and
regulations including those pertaining to loss mitigation, and given its misleading statements
intended to lure the plaintiff and class members into signing illusory forbearance-to-modification
plans so that it could collect large amounts of debt from them that it might not have collected
from them absent its ruse, defendant should be barred from conducting foreclosure sales and
from filing FHA insurance claims to recover any resultant losses.
48

PRAYER FOR RELIEF
WHEREFORE, the plaintiff respectfully requests the following relief for himself and the
Class and Subclass members:
A. Certify this case as a class action and appoint the named plaintiff to be class
representative and his counsel to be class counsel.
B. Award the requested injunctive relief.
C. Award actual and/or statutory damages to the plaintiff and class members, for
defendants violations of the respective federal and state unfair debt collection practices acts.
D. Award attorneys fees and costs for defendants violations of the respective
federal and state unfair debt collection practices acts; or, alternatively, award attorneys fees and
costs pursuant to RSA 361C:2.
E. Find that an equitable obligation arose on the part of the defendant, to offer
sustainable loan modifications to the plaintiff and Subclass members, and order specific
performance of defendants equitable obligation to each of them, together with such other relief
as is required by equity.
JURY TRIAL DEMAND
Plaintiff Joseph Moquin demands a trial by jury on all issues so triable.

49

VERIFICATION
I certify under the penalties of perjury that I have read the Verified Complaint, that the
facts stated therein are true, and that no material facts have been omitted from it.
Signed under the penalties of perjury.

.
s/ Joseph Moquin .
Joseph Moquin
Dated: January 12, 2012

Respectfully submitted,

s/ Edward K. OBrien ..
Edward K. OBrien
NH Bar No. 2866
OBRIEN LAW FIRM, PC
One Sundial Avenue, 5
th
Fl
Manchester, NH 03103
(603) 672-3800
eobrien@ekoblaw.com
Dated: January 12, 2012

EXHIBIT A
Case 1:12-cv-00016 Document 1-1 Filed 01/12/12 Page 1 of 28
Case 4:10-cv-10311-FDS Document 10-1 Filed 06/25/10 Page 2 of 28 Case 1:12-cv-00016 Document 1-1 Filed 01/12/12 Page 2 of 28
COMMITMENT TO PURCHASE FINANCIAL INSTRUMENT
and
SERVICER PARTICIPATION AGREEMENT
for the
HOME AFFORDABLE MODIFICATION PROGRAM
under the
EMERGENCY ECONOMIC STABILIZATION ACT OF 2008
This Commitment to Purchase Financial Instrument and Servicer Participation Agreement (the "Commitment") is entered into as of
the Effective Date, by and between Federal National Mortgage Association, a federally chartered corporation, as fmancial agent of
the United States ("Fannie Mae"), and the undersigned party ("Servicer"). Capitalized tenus used, but not defined contextually,
shall have the meanings ascribed to them in Section 12 below.
Recitals
WHEREAS, the U.S. Department oflhe Treasury (the "TreasUlY") has established a Home AffordableModificationProgram(the
"Program") pursuant to section 101 and 109 of the Emergency Economic Stabilization Act of2008 (the "Act"), as section 109 of
the Act has been amended by section 7002 of the American RecovelY and Reinvestment Act of2009;
WHEREAS, the Program includes loan modification and other foreclosure prevention scrvices;
WHEREAS, Fannie Mae has been designated by the TreasUlY as a financial agent of the United States in connection with the
implementation of the Program;
WHEREAS, Fannie Mae will, in its capacity as a financial agent of the United States, fulfill the roles of administrator, record
keeper and paying agent for the Program, and in conjunction therewith must standardize certain mortgage modification and
foreclosure prevention practices and procedw'es as they relate to the Program, consistent with the Act and in accordance with the
directives of, and guidance provided by, the Treasury;
WHEREAS, Federal Home Loan Mortgage Corporation ("Freddie Mac") has been designated by the Treaswy as a fmancial agent
of the United States and will, in its capacity as a financial agent of the United States, fulfill a compliance role in connection with the
Program; all references to Freddie Mac in the Agreement shall be in its capacity as compliance agent of the Program;
WHEREAS, all Fannie Mae and Freddie Mac approved servicers are being directed tlu'ough their respective servicing guides and
bulletins to implement the Program with respect to mortgage loans owned, securitized, or guaranteed by Fannie Mae or Freddie
Mae (the " GSE Loans"); accordingly, this Agreement does not apply to the GSE Loans;
WHEREAS, all other servicers, as well as Fannie Mae and Freddie Mac approved servicers, that wish to patticipate in the Program
with respect to loans that are not GSE Loans (collectively, "Participating Servicers") must agree to certain terms and conditions
relating to the respective roles and responsibilities of Program participants and other financial agents of the govemment; and
WHEREAS, ServiceI' wishes to participate in the Program as a Participating Servicer on the terms and subject to the conditions set
forth herein.
Accordingly, in consideration of the representations, warranties, and mutual agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Fannie Mae and ServiceI' agree as follows.
Agreement
1. Services
A. Subject to Section IO.C., Servicer shall perform the loan modification and other foreclosme prevention services
(collectively, the "Selvices") described in (i) the Financial Instrument attached hereto as Exhibit A (the "Financial Instrument"); (ii)
the Program guidelines and procedures issued by the Treasmy, including, without limitation, the net present value assessment
requirements of the Program (the "Program Guidelines"); and (iii) any supplemental documentation, instructions, bulletins,letters,
directives, or other communications, including, but not limited to, business, continuity requirements, compliance requirements,
perfOlmance requirements and related remedies, issued by the Treasury, Fannie Mae, or Freddie Mac in order to change, or further
describe or clarify the scope of, the rights and duties of the Participating Servicers in connection with the Program (the
"Supplemental Directives" and, together with the Program Guidelines, the "Program Documentation"). The Program
Docwnentation will be available to all Participating Servicers at www.financialstability.gov. The Program Documentation, as the
same may be modified or amended from time to time in accordance with Section 10 below, is hereby incorporated into the
Commitment by this reference.
B. Servicer's representations and walTanlies, and acknowledgement of and agreement to fulfill or satisry certain duties and
obligations, with respect to its p!Uticipation in the Program and under the Agreement are set forth in the Financial Instrument.
Servicer's certification as to its continuing compliance with, and the truth and accuracy of, the representations and warranlies set
forth in the Financial Instrument will be provided annually in theform attached hereto as Exhibit B (the "Armual Certification"),
beginning on June I, 20 10 and again on June I of eacb year thereafter during the Term (as defined below).
C. The recitals set forth above are hereby incorporated herein by this reference.
2. Authority and Agreement to Participate In Program
A. Servicer shall perfonn the Services for all mortgage loans its selvices, whether it services such mortgage loans for its own
account or for the account of anotber party, including any bolders of mortgage-backed securities (each such other party, an
"Investor"). Servicer shall use reasonable effOlis to removc all prohibitions or impediments to its authority, and use reasonable
effOlis to obtain all third party consents and waivers that arc required, by contract or law, in order to effcctuate any modification of
a mortgage loan under tbe Program.
B. Notwithstanding subsection A., if (x) Servieer is unable to obtain all neeessmy consents and waivers for modifying a
mortgage loan, or (y) the pooling and servicing agreement or other similar servicing contract governing Servicer's servicing of a
mortgage loan prohibits Servicer from performing the Services for that mortgage loan, Servicer shall not be required to perfOlm tbe
Services with respect to that mortgage loan and shall not receive all or any portion of the Purchase Price (as defined below)
otherwise payable with respect to such loan.
C. Notwithstanding anything to the contrary contained herein, the Agreement docs not apply to GSE Loans. Servicers are
directed to the servicing guides and bulletins issued by Farmie Mae and Freddie Mac, respectively, concerning the Program as
applied to GSE Loans.
D. Servicer's perfonnance ofthe Selvices and implementation ofthe Program shall be subject to review by Freddie Mac and
its agents and designees as more fully set forth in tbe Agreement.
3. Set Up; Prerequisite to Paymeut
Servicer will provide to Farmie Mae: (a) the set up information required by the Program Docwnentation and any ancillalY or
administrative information requested by Fannie Mae in order to process Servicer's participation in the Program as a Participating
Servicer 00 or before the Effective Date of the Commitmcnt; and (b) the data elements for each mortgage eligible for the Program
- 2 -
as and when described in the Program Documentation and the Financial Instrument. Purchase Price payments will nbt be remitted
pursuant to Section 4 with respect to any modified mortgage for which the required data elements have not been provided.
4. Agreement to Purchase Financial Instrument; Payment of Purchase Price
A. Fannie Mae, in its capacity as a financial agent of the United States, agrees to purchase, and Servicer agrees to sell to Fannie
Mae, in such capacity, the Financial Instrument that is executed and delivered by ServiceI' to Fannie Mae in the form attached
hereto as Exhibit A, in consideration for the payment by Fannie Mae, as agent, of the Purchase Price (defined below). The
conditions precedent to the payment by Fannie Mae of the Purchase Price are: (a) the execution and delivery of the Commitment
and the Financial Instrument by SClvicer to Fannie Mae; (b) the execution and delivery by Fannie Mae of the Commitment to
Servicer; (c) the delivery of copies ofthe fully executed Commitment and Financial Iostrument to TreasUlY on the Effective Date;
(d) the performance by Servicer ofthe Services described in the Agreement, in accordance with the terms and conditions thereof, to
the reasonable satisfaction of Fannie Mae and Freddie Mac; and (e) the satisfaction by Servicer of such other obligations as are set
forth in the Agreement.
B. Solely in its capacity as the financial agent ofthe United States, and subject to subsection C. below, Fannie Mae shall: (i) remit
compensation payments to Servicer; (ii) remit incentive payments to ServiceI' for the account of ServiceI' and for the credit of
b011'0wers under their respective mortgage loan obligations; and (iii) remit payments to Servicer for the account ofInvestors, in
each case in accordance with the Program Documentation (all such payments, collectively, the "Purchase Price"); all payments
remitted to Servicer for the credit of borrowers or for the account ofInvestors under the Program Documentation shall be applied
by ServiceI' to the borrowcrs' respectivc mortgage loan obligations, or rcmitted by Scrvicer to Iovestors, as required by the Program
Documentation. Fannie Mae shall have no liability to ServiceI' with respect to the payment ofthe Purchase Price, unless and until:
(a) Servicer and all other interested parties have satisfied all pre-requisites set forth herein and in the Program Documentation
relating to the Program payment structure, including, but not limited to, the delivery of all data elements required by Section 3 of
this Commitment; and (b) the Treasury has provided funds to Fannie Mae for remittance to Servicer, together with written direction
to remit the funds to Servicer in accordance with the Program Documentation.
C. The Purchase Price will be paid to Selvicer by Fannie Mae as the financial agent of the United States as and when described
herein and in the Program Documentation in consideration for the execution and delivelY oftheFinanciai Iostrument by ServiceI' on
or before the Effective Date of the Agreement, upon the satisfaction of the conditions precedent to payment described in
subsections A. and B. above.
D. The valuc of the Agreement is limited to $2,873,000,000 (the "Program Participation Cap"). Accordingly, the aggregate
Purchase Price payable to Servicer under the Agreement may not exceed the amount of the Program Palticipation Cap. For each
loan modification that becomes effective, the aggregate remaining Purchase Price available to be paid to Servicer under the
Agreement will be reduced by the maximum Purchase Price potentially payable with respect to that loan modification. Io the event
the Purchase Price actually paid with respect to that loan modification is less than the maximum Purchase Price potentially payable,
the aggregate remaining Purchase Price available to be paid to Servicer under the Agreement will be increased by the difference
betwecn such amounts. Notwithstanding the forcgoing, no agreements with b011'0wers intended to result in ncw loan modifications
will be effected under the Agreement, and no payments will be made with respect to any new loan modifications from and after the
date on which the aggregate Purchase Price paid or payable to ServiceI' under the Agreement cquals the Program Participation Cap.
Treasury may, from time to time in its sole discretion, adjust the amount of the Program Participation Cap. ServiceI' will be
notified of all adjustments to the Program Participation Cap in writing by Fannie Mae.
E. Servicer shall maintain complete and accurate records of, and supporting documentation for, the borrower payment, including,
but not limited to, PITIA (principal, interest, taxes, insurance (including homeowner's insurance and hazard and flood insurance)
and homeowner's association and/or condo fees), and delinquency info11'llation and data provided to Fannie Mae regarding each
agreement relating to a trial modification period and each loan modification agreement executed under the Progrmn, which will be
relied upon by Fannie Mae when calculating, as financial agent for the United States, the Purchase Price to be paid by the Treasmy
through Fannie Mae or any other financial agent. Servicer agrees to provide Fannie Mae and Freddie Mac with documentation and
- 3 -
other informalion wilb respect to any amounls paid by the Treasury as may bc reasonably requested by such pruties. In Ihecvent of '
a discrepancy or error in tbe amount ofthc Purchasc Price paid bereunder, at Frumie Mae's election, (x) ServiceI' sball remit to
Fannie Mae the amOUllt of any overpaymcnt within thirty (30) days of receiving a refund request from Fannie Mae, or (y) Fannie
Mae may immediately offset tbe amount ofthe overpaymcnt against other amounts due and payable to Servicer by Fannie Mae, as
financial agent of the United States, upon written notice 10 Servicer. Servicer shall still be obligated 10 credit to the respective
mortgage loan obligations of borrowers, and to the respective accounts ofInvestors, any portion of the Purchase Price to which tbey
are entitled (if any) notwithstanding such offset unless otherwise directed by Fannie Mae.
F. At the election and upon the direction of the Treasury and with prior written notice to Servicer, Fannie Mae may deduct from
any amount to bc paid to Servicer any amount that Servicer, Investor, or bon-ower is obligated to reimburse or pay to the United
States government, provided, however, that any amount withheld under this subsection F. will be witWleld only from the amounts
payable to, or for the account or credit of, the pruty which is liable for the obligation to the United States government.
G. In the event that the Agreement expires or is terminated pursuant to Section 5 01' Section 6, and subject to Fannie Mae's rights
under Section 6, Fannie Mae shall, solely in its capacity as the financial agent of the United States, continue to remit all amounts
that are properly payable pursuant to subsection A. above to Servicer in accordance with the Program Documentation until paid in
full, provided, however, that Purchase Price payments will be made only with respect to qualifying mortgage loan modifications
that were submitted by Selviccr and accepted by Fannie Mae for inclusion in the Program in accordance with the Program
Documentation prior to the date of expiration or termination and that do not exceed the Program Participation Cap.
H. Notwithstanding anything to the contralY contained in subsection G. above, in the event that the Agreement is tenninated
pursuant to Section 6 B. in connection with an Event of Default by Selvicer under Section 6 A., no compensation with respect to
any loan will be paid to Serviccr for the account ofthe Servicer subsequent to ternrination; subject to Fannie Mae's rights under
Section 6, Fannie Mae's only continuing obligations as financial agent of the United States subsequent to termination will be to
remit payments to Servicer (or, at Fannie Mae's discretion, an alternative provider) for the account of borrowers and as
provided in the Agreement.
I. Notwithstanding anything to the contrary contained in subsection F. above, in the event that the Agreement is terminated
pursuant to Section 6 C. in connection with an Event of Default by an Investor 01' a bOl1'ower under Section 6 A., no compensation
with respect to any loan will be paid to Servicer for the credit or aecount of the defaulting party subsequent to termination; subject
to Fannie Mae's rights under Section 6, Fannie Mae's only continuing obligations as financial agent of the United States
subsequent to te.mination will be to remit payments to Servicer for the credit or account of non-defaulting parties as described in
the Program DoclUncntation.
J. Notwithstanding anything to the contrary contained herein, Fannie Mae, in its capacity as the financial agent ofthe United States,
may reduce the amounts payable to Servicer under Section 4.B., 01' obtain repayment of prior payments made under Section 4.B., in
connection with an Event of Default by Servicer or in cOlmection with an evaluation of performance that includes any specific
findings by Freddic Mac that Selvicer's performance under any peliol1'Oa1lce criteria established pursuant to the Program
Documentation is materially insufficient; provided, however, Fannie Mae will seek to obtain repaymcnt of prior payments made
under Scction 4.B. only with respect to loan modifications that are determined by Fannie Mae or Freddic Mac to have been impacted
by, or that Fannie Mae or Freddie Mac believes may have been, or may be, impacted, by the Evcnt of Default or fmdings giving rise
to this remedy. These remedies are not exclusive; they are available in addition to, and not in lieu of, any other remedies availablc to
Fannie Mae at law or in equity.
K. Notwithstanding anything to tbe contrary contained herein, Fannie Mae, in its capacity as the fmancial agent oftbe United States,
may reduce the amounts payable to ServiceI' for the credit 01' account of an Investor or a borrower under Section 4.B., or obtain
repayment of prior payments made for the credit or account of such parties under Section 4.B., in cOOllcction with an Event of
Default by an Investor or a borrower. Selvicer will reasonably cooperate with, and provide reasonable support and assistance to,
Fannie Mae and Freddie Mac in conncction with their respective roles and, in Fannie Mae's case, in cOlmection with its efforts to
obtain repayment of prior payments madc to and borrowers as provided in this subsection. These remedies are not
- 4 -
exclusive; 'they are available in addition to, and not in lieu of, any other remeUies available to Fannie Mae at law or in equity.
5. Term
A. Qualifying mOltgage loans may be submitted by Servicer and accepted by Fannie Mae as described in tbe Financial InSl1um .. ,t
and the Program Documentation from and after the Effective Date until December 31, 2012 (the "Initial Term"), subjcct to
Program extensions by the Treasury or earlier termination of the Agreement by Fannie Mae pursuant to the provisions hereof or
suspension or termination oflhe Program by the Treasury, provided, however, no newqualirying mortgage loans may be submitted
by Servicer or accepted by Fannie Mac from and after the date on which the Program Participation Cap is reached.
B. Servicer shall perfonn the Services described in the Program Documentation in accordance with the terms and conditions ofthe
Agreement during the Initial Telm and any extensions thereof (the Initial Term, together with all extensions thereof, if any, the
"Term"), and during such additional period as may be necessary to: (i) comply with all data collection, retention and reporting
requirements specified in the Program Documentation during and for the periods set forth therein; and (ii) complete all Services
that were initiated by Servicer, including, but not limited to, mortgage modifications and the completion of all documentation
relating thereto, during the Term. Servicer agrees that it will work diligently to complete all Services as soon as reasonably
possible after the end of the Telm or earlier termination.
'c. The Agreement may be terminatcd by Fannie Mae or Servicer prior to the end of the Term pursuant to Scction 6 below.
6. Defaults and Early Termination
A. The following constitute events of default under the Agreement (each, an "Event of Default" and, collectively, "Events of
Default"):
(I) Serviccr fails to perform or comply with any of its material obligations under the Agreement,
including, but not linuted to, circumstances in which Servicer fails to ensure that all eligibility
criteria and other conditions precedent to modification specified in tbe Program Documentation are
satisfied prior to effectuating modifications under the Program.
(2) Servicer: (a) ceases to do business as a going concem; (b) makes a general assignment for the
benefit of, or enters into any arrangement witb creditors in lieu thereof; (c) admits in writing its
inability to pay its debts as they become due; (d) files a voluntary petition under any bankruptcy or
insolvency law or files a voluntary petition under the reorganization or arrangement provisions oflbe
laws of lhe United States or any other jurisdiction; (e) authorizes, applies for or consents to the
appointment of a trustee or liquidator of all or substantially all of its assets; (I) has any substantial
part of its property subjected to a levy, seizure, assignment or sale for or by any creditor or
govemmental agency; or (g) enters into an agreement or resolution to take any of the foregoing
actions.
(3) ServiceI', any employee or contractor of Servicer, or any employee or contractor of Servicers'
contractors, or any Investor or bOlTOwer, commits a grossly negligent, willful or intentional, or
reckless act (including, but not limited to, fraud) in connection with the Program or lhe Agreement.
(4) Any representation, wan'anty, or covenant made by Servicer in the Agreement or any Annual
Certification is or becomes materially false, misleading, incorrect, or incomplete.
(5) An evaluation of perfOlmance that includes any specific fmdings by Freddie Mac, in its sole
discretion, that Servieer's performancc under any performance critcria established pursuant to the
Program Documentation is materially insufficient, or any failure by Servicer to comply with any
- 5 -
directive issued by Fannie Mac or Freddie Mac with respect to documehts or data requested, [mdings
made, or remedies established, by Fannie Mae and/or Freddic Mac in conjunction with such
performancc criteria or other Program requirements.
B. Fannie Mae may take any, all, or none of the following actions upon an Event of Default by Servicer under the Agreement:
(I) Fannie Mae may: (i) withhold some 01' all of the Servicer's portion of the Purchasc Price until, in
Fannie Mae's determination, Service!' has cured the default; and (ii) choose to utilize altemative
means of paying any portion of the Purchase Price f01' the credit or account of borrowers and
Invcstors and delay paying such pOition pending adoption of such altemative means.
(2) Fannie Mae may: (i) reduce the amounts payable to Servicer under Section4.B; and/or (ii) require
repayment of prior payments made to Servicer under Section 4.B, provided, however, Fannie Mae
will seek to obtain repayment of prior payments made under Section 4.B. only with respect to loan
modifications that are determined by Fannie Mae or Freddie Mac to have been impacted, or that
Fannie Mae or Freddie Mac believes may have been, 01' may be, impacted, by the Event of Default
giving rise to the remedy.
(3) Fannie Mae may require Servicer to submit to additional Program administrator oversight,
including, but not limited to, additional compliance controls and quality control reviews.
(4) Fannie Mae may terminatc the Agreement and cease its performance hereunder as to some 01' all
of the mortgage loans subject to the Agreement.
(5) Fannie Mae may require ServiceI' to submit to information and reporting with respect to its
financial condition and ability to continue to meet its obligations under the Agreement.
C. Fannie Mae may take any, all, or none of the following actions upon an Event of Default involving an Investor or a bOll'Ower in
connection with the Program:
(1) Fannie Mae may withhold all or any portion ofthe Purchase Price payable to, or for the credit or
account of, the defaulting party until, in Fannie Mae's determination, the default has been cured or
otherwise remedied to Fannie Mae's satisfaction.
(2) Fannie Mae may: (i) reduce the amounts payable to ServiceI' for the credit, or account of, the
defaulting party under Section 4.B; and/or (ii) require repayment of prior payments made to the
defaulting party under Section 4.B. ServiceI' will reasonably cooperate with, and provide reasonable
support and assistance to, Fannie Mae and Freddie Mae in connection with their respective roles and,
in Fannie Mae's case, in connection with its efforts to obtain repayment of prior payments made to
Investors and borrowers as provided in this subsection.
(3) Fannie Mae may require Servicer to submit to additional Program administrator oversight,
including, but not limited to, additional compliance controls and quality control reviews.
(4) Fannie Mae may cease its performance hereunder as to some or all of the mortgage loans subject
to the Agreement that relate to the defaulting Investor or borrower.
D. In addition to the telruination rights set forth above, Fannie Mae may terminate the Agreement immediately upon written notice
to Servicer:
- 6 -
(I) at the direction of the Treasury;
(2) in the event of a merger, acquisition, or other change of control of Servicer;
(3) in the event that a receiver, liquidator, trustee, or other custodian is appointed for the Servicer; or
(4) in the event that a material term of thc Agreement is determined to be prohibited 01' unenforceable as
referred to in Section II.C.
E. The Agreement will terminate automatically:
(1) in the event that the Financial Agency Agrcement, dated Februmy 18, 2009, by and between
Fannie Mae and the Treasury is terminated; or
(2) upon the expiration or termination of the Program.
F. The remedies available to Falmie Mae upon an Event of Default under tbis Section are cumulative and not exclusive; further,
these remedies are in addition to, and not in lieu of, any other remedies available to Fannie Mae at law or in equity.
G. If the event of termination of the Agreement under any circumstances, ServiceI' and Fannie Mae agree to cooperate with one
another on an ongoing basis to ensure an effective and orderly transition or resolution of the Services, including the provision of
any information, reporting, rccords and data required by Fannie Mae and Freddie Mac.
H. If an Event of Default under Section 6.A.1., Section 6.A.4., or Section 6.A.5. occurs and Fannie Mae determines, in its sole
discretion, that the Event of Default is curable and elects to exercise its right to terminate the Agreement, Fannie Mae will provide
written notice of the Event of Default to Servicer and the Agreement will terminate automatically thirty (30) days after Servicer's
receipt of such notice, if the Event of Default is not cured by Servicer to the reasonable satisfaction of Fannie Mae prior to the end
of such thirty (30) day period. If Fannie Mae determines, in its sole discretion, that an Event of Default under Section 6.A.I. ,
Section 6.AA, or Section 6.A. 5. is not curable, or if an Event of Default under Section 6.A.2. or Section 6.A.3. occurs, and Fannie
Mae elects to exercise its right to tenninate the Agreement under Section 6.BA., Fannie Mae will provide written notice of
termination to the Selvicer on or hefore the effective date of the tcnnination.
7. Disputes
Fannie Mae and Servicer agree that it is in their mutual interest to resolve disputes by agreement. If a dispute arises under the
Agreement, the parties will use all reasonable efforts to promptly resolve the dispute by mutual agreement. If a dispute cannot be
resolved informally by mutual agreement at the lowest possible level, the dispute shall be referred up the respective chain of
command of each party in an attempt to resolve the matter. This will be done in an expeditious manner. Servicer shall continue
diligent performance of the Services pending resolution of any dispute. Fannie Mae and Servicer reserve the right to pursue other
legal or equitable rights they may have concerning any dispute. However, the parties agree to take all reasonable steps to resolve
disputes internally before commencing legal proceedings.
8. Transfer or Assignment
A. Selvicer must provide written notice to Fannie Mae and Freddie Mac pursuant to Section 9 below of: (i) any transfers or
assignments of mOltgage loans subject to this Agreement; and (ii) any other transfers or assignments of Servicer's rights and
obligations under this Agrcement. Such notice must include payment instructions for payments to be made to the transferee or
assignee ofthc mortgage loans subject to the notice (if applicable), and evidence ofthe assumption by such transferee or assignee
of the mortgage loans 01' other rights and obligations that are transfcncd, in the form of Exhibit C (the "Assignment and
- 7 -
Assumption Agrcement"). Servicer acknowledges that Fannie Mae will continue to remit payments to Servicer in accordance with
Section 4.B. with respect to mortgage loans that have been assigned or transferred, and that Servicer will be liable for
underpayments, overpayments and misdirected payments, unless and until such notice and an executed Assigmnent and
Assumption Agreement are provided to Fannie Mae and Freddie Mac. Any purported transfer or assignment of mOitgage loans or
other rights or obligations under the Agreement in violation of this Section is void.
B. Servicer shall notify Fannie Mae as soon as legally possible of any proposed merger, acquisition, or other change of control of
Servicer, and of any financial and operational circumstances which may impair Servicer's ability to pClfOlTI1 its obligations under
the Agreement.
9. Notices
All legal notices under the Agreement shall be in writing and referred to each party's point of contact identified below at the
address listed below, or to such other point of contact at such other address as may be designated in writing by such patty. All such
notices under the Agreement shall be considered received: (a) when personally delivered; (b) when delivered by commercial over-
night courier with verification receipt; (c) when sent by confirmed facsimile; or (d) three (3) days after having been sent, postage
prepaid, via certified mail, return receipt requested. Notices shall not be made or delivered in electronic fonn, except as provided in
Section 12 B. below, provided, however, that the party giving the notice may send an e-mail to the party receiving the notice
advising that party that a notice has bcen sent by means pelmitted under this Section.
To Servicer:
Wells Fargo Bank, N.A.
I Home Campus
Des Iowa 50328-000 I
Attention:
With a copy to:
Wells Fargo Bank, N.A.
I Home Campus
Des Moines, Iowa
Attention :
Telephone:
Facsimile:
- 8 -
To FalUne Mac:
Fannie Mae
3900 Wisconsin Avenue, NW
Washington, DC 20016
Attention: General Counsel
Facsimile:
email:
To Treasury:
Chief
Office of Homeowners hip Preservation
Office of Financial Stability
Department of the Treasury
1500 Pennsylvania Avcnue, NW
Washington, DC 20220
Facsimile: (202) 622-9219
To Freddie Mac:
FreddicMac
8100 Jones Branch Drive
McLean, VA 22102
Attention: Vice President, Making Home Affordable -- Compliance
Facsimile: (703) 903-2544
Email to:MHA_Compliance@freddiemac.com
10. Modifications
A. Subject to Sections IO.B. and I O.C., modifications to the Agreement shall bc in writing and signed by Faonie Mae and Servicer.
B. Fannie Mae and the Treasury each reserve the right to unilaterally modify or supplement the terms and provisions of the
Program Documentation that relate (as determined by Fannie Mae or the Treasmy, in their reasonable discretion) to the compliance
and performance requirements of the Program, and related remedies established by Freddie Mac, andlor to technical,
administrative, or procedural matters or compliance and reporting requirements that may impact the administration oftheProgram
C. Notwithstanding Sections I O.A. and 1O.B., any modification to the Program Documentation that materially impact the borrowcr
eligibility requirements, the amount of payments of the Purchase Plice to be made to Participating Servicers, Investors and
borrowers under the Program, or the rights, duties, or obligations ofPalticipating Servicers, Investors or borrowers in connection
with the Program (each, a "Program Modification" and, collectively, the "Program Modifications") shall be effective only on a
prospective basis; Participating Servicers will be afforded the opportunity to opt-out of the Program when Program Modifications
at'e published with respect to some or all of the mortgage loans sougbt to be modified under the Program on or after the effective
date of the Program Modification, at Servicer's discretion. Opt-out procedures, including, but not limited to, the time and process
for notification of election to opt-out and the window for such election, will be set f0l1h in the Program Documentation describing
the Program Modification, provided, however, that Servicer will be given at least thirty (30) days to elect to opt-out ofa Program
Modification. For the avoidancc of doubt, during the period during which Servicer may elect to opt-out ofa Program Modification
- 9 -
and after any such opt-out is elected by ServiceI', ServiceI' will continue to perform the Services described in the Financial
Instrument and the Program Documentation (as the Program Documentation existed immediately prior to the publication of the
Program modification prompting the opt-out) with respect to qualifying mortgage loan modifications that were submitted by
ServiceI' and accepted by Fannie Mae prior to the opt-out.
11. Miscellaneous
A. The Agreement shall be govemed by and construed under Federal law and not the law of any state or locality, without referenee
to or application of the conflicts of law principles. Any and all disputes between the parties that cannot be settled by mutual
agreement shall be resolved solely and exclusively in the United States Federal courts located within the District of Columbia. Both
parties consent to thc jurisdiction and venue of such courts and irrevocably waive any objections thereto.
B. The Agreement is not a Federal procuremcnt contract and is thcrefore not subject to the provisions ofthe Federal Property and
Administrative Services Act (41 U.S.C. 251-260), the Federal Acquisition Regulations (48 CFR Chapter I), or any other
Federal procurement law.
C. Any provision of the Agreement that is determined to be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffcctive to the extent of such prohibition or unenforceabilily without invalidating the remaining provisions ofthe
Agreement, and no such prohibition or unenforceability in any jurisdiction shall invalidate such provision in any other jurisdiction.
D. Failure on the part of Fannie Mae to insist upon strict compliance with any of the terms hereof shall not be deemed a waiver,
nor will any waiver hereunder at any time be deemed a waiver at any other time. No waiver will be valid unless in writing and
signed by an authorized officer of Fannie Mae. No failure by Fannie Mae to exercise any right, remedy, or power hereunder will
operate as a waiver thereof. The rights, remedies, and powers provided herein are cumulative and not exhaustive of any rights,
remedies, and powers provided by law.
E. The Agreement shall inure to the benefit of and be binding upon the parties to the Agreement and their pelmitted successors-in-
intercst.
F. The Commitment and the Assignment and Assumption Agreement (if applicable) may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one
and thc same instrument.
G. The Commitment, together with the Financial Insl1llment, the Annual Certifications, the Assigrunent and Assumption
Agreement (if applicable) and the Program Documentation, constitutes the entire agreement of the parties with respect to the
subject matter hereof. In the event of a conflict between any of the foregoing documents and the Program Documentation, the
Program Documentation shall prevail. In the event of a conflict between the Program Guidelines and the Supplemental Directives,
the Program Guidelines shall prevail.
H. Any provisions ofthe Agreement (including all documents incorporated by reference thereto) that contemplate their continuing
effectiveness, including, but not limited to, Sections 4, 5 B., 6 F., 6 G., 9, II and 12 ofthe Commitment, and Sections 2, 3, 5, 7, 8,
9 and 10 of the Financial Instrument, and any other provisions (or portions thcreof) in the Agreement that relate to, or may impact,
the ability of Fannie Mae and Freddie Mac to fulfill their responsibilities as agents of the United States in connection with the
Program, shall survive the expiration or termination of the Agreement.
12. Defined Terms; Incorporation by Reference
A. All references to the "Agreement" necessarily include, in all instances, the Commitment and all documents incolporated into the
Commitment by reference, whcther or not so noted contextually, and all amendments and modifications thereto. Specific references
- 10
throughout the Agreement to itldividual documents that are incorporated by reference into the Con'unitment are not inclusive of any
other documents that are incorporated by reference, unless so notcd contextually.
B. The term "Effective Date" means the date on which Fannie Mae transmits a copy of the fully executed Commitment and
Financial Instrument to Treasury and Selvicer with a completed cover sheet, in the form attached hereto as Exhibit D (the "Cover
Sheet"). The Commitment and Financial Insllllment and accompanying Cover Sheet will be faxed, emailed, or made available
through other electronic means to TreaslllY and Servicer in accordance with Section 9.
C. The Program Documentation and Exhibit A - Form of Financial Instrument, Exhibit B - Form of Annual Certification, Exhibit
C - Form of Assigument and Assumption Agreement and Exhibit D - Form of Cover Sheet (in each casc, in form and, upon
completion, in substance), including all amendments and modifications thereto, arc incorporated into this Commitment by this
reference and given the same force and effect as though fully set forth herein.
[SIGNATURE PAGE FOLWWS; REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-11
I
In Wltnes8 Whereof, Servicer and Fannie Mae by their duly authorized officials hereby execute and deliver this Commitment to
Purchase Financial Instrument and Servicer Participation Agreement as of the Effective Date.
SERVICER: Wells Fargo Home Mortgage, a division of Wells
Fargo Bank, N.A.

Name: Michael J. Reid
Title: CD-President
Date: q. n -ott
EXHIBITS
Exhibit A Form of Financial Instrument
Exhibit B Form of Annual Certification

Name: U S t!eW-
Title: 'V ic.e proti (kk
Date: l:\- 11 -Q,\
Exhibit C Form of Assignment and Assumption Agreement
Exhibit 0 Form of Cover Sheet
- 12
EXHIBIT A
FORM OF FINANCIAL INSTRUMENT
FINANCIAL INSTRUMENT
This Financial Instrument is delivered as provided in Section I of the Commitment to Purchase Financial Instrument and
Servicer Partieipation Agreement (the "Commitment"), entered into as of the Effective Date, by and between Federal
National Mortgage Association ("Fannie Mae"), a federally chartered corporation, acting as fmancial agent of the United
States, and the lmdersigned party ("Servicer"). This Financial Instrument is effective as ofthe Effective Date. All of the
capitalized terms that are used but not defined herein shall have the meanings ascr ibed to them in the Commitment.
For good and valuabl e consideration, the receipt and sufficiency of which is hereby acknowledged, Servicer agrees as
follows:
1. Purchase Price Consideration: Services. This Financial Instrument is being purchased by Fannie Mae pursuantto
Section 4 of the Commitment in consideration for the payment by Fannie Mae, in its capacity as a fmancial agent
ofthe United States, of various payments detailed in the Program Documentation and refen'ed to collectively in
the Commitment as the "Pw'chase Price." The conditions precedent to the payment by Fannie Mae of the
Purchase Pri ce are: (a) the execution and delivery ofthis Financial Instrument and the Commitment by Servicerto
Fannie Mae; (b) the execution and delivery by Fannie Mae of the Commitment to Servicer; (c) the delivery of
copies of the fully executed Commitment and Financial [nsh'ument to TreasUlY on the Effective Date; (d) the
performance by Servicer of the Services described in the Agreement; and (e) the satisfaction by Servicer of such
other obligations as are set forth in the Agreement. Scrvicer shall perfOlm all Services in consideration for the
Purchase Price in accordance with the terms and conditions of the Agreement, 10 the reasonable satisfaction of
Fannie Mae and Freddie Mac.
2. Authority and Agreement to Palticipate in Program. Subject 10 the limitations set forth in Section 2 of the
Agreement, Servicer shall use reasonable efforts to remove all prohibitions or impediments 10 its authority and to
obtain all third patty consents and waivers that at'e required, by contract or law, in order to effectuate any loan
modification under the Program.
3. Audits, Reporting and Data Retention.
(a) Freddie Mac, the Federal Housing Finance Agency and other patties designated by the TreasUlY or
applicable law shall have the right during normal business hours to conduct unannounced, infolTIlll1
onsite visits and to conduct formal onsile and offsite physical, p e l ~ o n n e l and infOlmation technology
testing, security reviews, and audits ofServicer and to examine all books, records and data related to
the Services provided and Purchase Price received in connection with the Program on thir ty (30)
days ' prior written notice.
(b) Servicer will collect, record, retain and provide to Treasury, Fannie Mae and Freddie Mac all data,
information and docUlllentation relating to the Program and bOlTOwers, loans and loan modifications
implemented, or potentially eligible for modification, under the Program and any trials conducted in
connection with the Program, as required by the Program Documentation. All such data,
infOlmation and documentation must be provided to thc Treasury, Fannie Mae and Freddie Mac as,
when and in the manner specified in the Program Documentation. In addition, Servicer shall provide
copies of executed contracts and tapes of loan pools related to thc Program for review upon request.
(c) Servicer shall promptly take corrective and remedial actions associated with reporting and reviews as
directed by Fannie Mae or Freddie Mac and provide to Fannie Mae and Freddie Mac such evidence
of the effective implementation of corrective and remedial actions as Fannie Mae and Freddie Mac
shall reasonably require. Freddie Mac may conduct additional reviews based on its findings and the
conective actions taken by Selvicer.
- 1 -
(d) In addition to any other ollligation to retain financial and accounting records that may be impoSed by
Federal or state law, Servicer shall retain all infannation described in Section 3(b), and all data,
books, reports, documents, audit logs and records, including electronic records, related to the
performance of Services in connection with the Program. In addition, Serviccr shall maintain a copy
of all computer systems and application software necessary to review and analyze these electronic
records. Unless otherwiSe directed by Fannie Mae or Freddie Mac, Servicer shall retain these
records for at least 7 years from the date the data or record was created, or for such longer period as
may be required pursuant to applicable law. Fannie Mac or Freddie Mac may also notify Servicer
from time to time of any additional record retention requirements resulting from litigation and
regulatory investigations in which the Treasury or any agents of the United States may have an
interest, and Servicer agrees to comply with these litigation and regulatOlY investigations
requirements.
4. Internal Control Program.
(a) Servicer shall develop, enforce and review on a quarterly basis for effectiveness an internal control
program designed to: (i) ensure effective deliveJy of Services in connection with the Program and
compliance with the Program Documentation; (ii) effectively monitor and detect loan modification
fraud; and (iii) effectively monitor compliance with applicable consumer protection and fair lending
laws. The internal control program must include documentation ofthecontrol objectives for Program
activities, the associated control techniques, and mechanisms for testing and validating the controls.
(b) Servicer shall provide Freddie Mac with access to all internal control reviews and reports that relate
to Services under the Program performed by Servicer and its independent auditing film to enable
Freddie Mac to fulfill its duties as a compliance agent ofthe United States; a copy ofthe reviews and
reports will be provided to Fannie Mae for record keeping and other administrative plllpOSes.
5. Representations. WalTanties and Covenants. ServiceI' makes the following representations, wananties and
covenants to Fannie Mae, Freddie Mac and the Treasury, the truth and accuracy of which aTe continuing
obligations ofServicer. In the evenlthat any of the representations, warranties, or covenants made herein cease to
be true and correct, Servicer agrees to notify Fannie Mae and Freddie Mac immediately.
(a) ServiceI' is established under the laws of the United States or any state, territory, orpassession of the
United States or the District of Columbia, and has significant operations in the United States.
ServiceI' has full corporate power and authority to enter into, execute, and deliver the Agreement and
to perfOlm its obligations hereunder and has all licenses necessary to carry on its business as now
being conducted and as contemplated by the Agreement.
(b) ServiceI' is in compliance with, and covenants that all Services will be pelfonned in compliance with,
all applicable Federal, state and local laws, regulations, regulatOlY guidance, statutes, ordinances,
codes and requirements, including, but not limited to, the Truth in Lending Act, 15 USC 160 I et
seq., the Home Ownership and Equity Protection Act, 15 USC 1639, the Federal Trade
Commission Act, 15 USC 41 et seq., the Equal Credit Opportunity Act, 15 USC 701 et seq., the
Fair Credit Reporting Act, 15 USC 1681 et seq., the Fair Housing Act and other Federal and state
laws designed to prevent unfair, discriminatory or predatory lending practices and all applicable laws
governing tenant rights. Subject to the following sentence, Servicer has obtained or made, or will
obtain 01' make, all governmental approvals or registrations required under law and has obtained 01'
will obtain all consents necessary to authorize the perfolTllance of its obligations under the Program
and the Agreement. The performance of Services under the Agreement will not conflict with, 01' be
prohibited in any way by, any other agreement 01' statutory restriction by which Servicer is bound,
- 2 -
provided, however, tbat Fannie Mae acRnowledges and agrccs tbat tbis representation and wananty
is qualified solely by and to the extent of any contractual limitations established under applicable
servicing contracts to which Servicer is subject. ServiceI' is not aware of any otber legal or fUlancial
impediments to perfOiroing its obligations under the Program or the Agreement and shall promptly
. notify Fannie Mae of any fmancial and/or operational impediments which may impair its ability to
perform its obligatiOlis under the Program or the Agreement. Servicer is not delinquent on any
Federal tax obligation or any other debt owed to tbe United States or collected by tbe United States
for the bcnefit of others, excluding any debt or obligation that is being contested in good faith.
(c) Servicer covenants that: (i) it will perform its obligations in accordance with theAgrcement and will
promptly provide sucb perfolroance repOiting as Fannie Mae may rcasonably require; (ii) all
mortgage modifications and all trial period modifications will be offercd to borrowers, fully
documented and serviced in accordance with the Program Documentation; and (iii) all data,
collection infonnation and other information reported by Servicer to Fannie Mae and Freddie Mac
under the Agreement, including, but not limited to, information that is relied upon by Fannie Mae or
Freddie Mac in calculating the Purchase Price or in performing any compliance review will be true,
complete and accurate in all material respects, and consistent with all relevant servicing records, as
and when provided.
(d) Servicer covenants that it will: (i) perform the Services required under the Program Documcntation
and tbe Agreement in accordance with the practices, higb professional standards of care, and degrce
of attention used in a well-managed operation, and no less than that which the Servicer exercises for
itself under similar circumstances; and (ii) use qualified individuals with suitable training, education,
experience and skills to perform the Services. Servicer acknowledges that Program palticipation may
require changes to, or the augmentation of, its systems, staiTmg and procedures, and covenants and
agrees to take all actions necessary to ensure it bas the capacity to implement the Program in
accordance with the Agreement.
(e) Servicer covenants that it will comply witb all regulations on conflicts of interest that arc applicable
to Scrvicer in connection with the conduct of its business and all conflicts of interest and non-
disclosure obligations and restrictions and related mitigation procedures set fortb in tbe Program
Documentation (if any).
(I) ServiceI' acknowledges that the provision of false or misleading infonnation to Fannie Mae or
Freddie Mac in connection with the Program or pursuant to the Agreement may constitute a violation
of: (a) Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found
in Title 18 of the United States Code; or (b) the civil False Claims Act (31 U.S.C. 3729-3733).
Servicer covenants to disclose to Fannie Mae and Freddie Mac any credible evidence, in connection
with the Services, that a management official, employee, or contractor of ServiceI' has committed, or
may have committed, a violation of the referenced statutes.
(g) Serviccr covenants to disclose to Fannie Mae and Freddie Mac any other facts or infonnation tbat
the Treasury, Fannie Mae or Freddie Mac should reasonably expect to know about Servicer and its
contractors to help protect the reputational interests of the Treasury, Fannie Mae and Freddie Mac in
managing and monitoring the Program.
(h) Servicer covenants tbat it will timely inform Fannie Mae and Freddie Mac of any anticipated Event
of Default.
- 3 -
(i) Servicer acknowledges that Fannie Mae or Freddie Mac may be required to assist tlte Treasury with
responses to the Privacy Act of 1974 (the "Privacy Act"), 5 USC 552a, inquiries from borrowers
and Freedom of Information Act, 5 USC 552, inquiries from other parties, as well as fOimal
inquiries from Congressional committees and members, the Goverrunent Accounting Office,
Inspectors General and other government entities, as well as media and consumer advocacy group
inquides about the Program and its effectiveness. Servicer covenants that it will respond promptly
and accurately to all search requests made by Fannie Mae or Freddie Mac, comply with any related
procedures which Fannie Mae or Freddie Mac may establish, and provide related training to
employees and contractors. In connection with Privacy Act inquiries, Servicer covenants that it will
provide updated and cOlTected infolTOation as appropriate about borrowers' records to ensure that
any system of record maintained by Fannie Mae on behalf ofthe TreasUlY is accurate and complete.
(j) Set'vicer acknowledges that FaJUlie Mae is required to develop and implement customer service call
centers to respond to borrowers' and other patties' inquiries regarding the Program, which may
require additional support from Selvicer. Servicer covenants that it will provide such additional
customer service call support as Fannie Mae reasonably determines is necess",y to support the
Program.
(k) Servicer acknowledges that Fannie Mae and/or Freddie Mac are required to develop and implement
practices to monitor and detect loan modification fraud and to monitor compliance with applicable
consumer protection and fair lending laws. Servicer covenants that it will fully and promptly
cooperate with Fannie Mae's inquides about loan modification fraud and legal compliance and
comply with any anti-fraud and legal compliance procedures which Fannie Mae and/or Freddie Mac
may require. Servicer covenants that it will develop and implement an internal control program to
monitor and detect loan modification fraud and to monitor compliance with applicable consutner
protection and fair lending laws, among other things, as provided in Section 4 of this Financial
Instrument and acknowledges that the internal control program will be monitored, as provided in
such Section.
(I) Servicer shall sign and deliver an Almual Celtification to Fannie Mae and Freddie Mac beginning on
June I, 20 I 0 and again on June I of each year thereafter during the TelTO, in the foml attached as
Exhibit B to the Agreement.
6. Use of Contractors. Servicer is responsible for the supervision and management of any contractor that assists in
the performance of Services in connection with the Program. Servicer shall remove and replace any contractor
that fails to perform. Servicer shall ensure that all of its contractors comply with the terms and provisions ofthe
Agreement. Servicer shall be responsible for the acts or omissions of its contractors as if the acts or omissions
were by the Servicer.
7. Data Rights.
(a) For purposes of this Section, the following definitions apply:
(i) "Data" means any recorded information, regardless ofform or the media on which it
may be recorded, regarding any of the Services provided in connection with the Program.
(ii) "Limited Rights" means non-exclusive rights to, without limitation, use, copy,
maintain, modify, enhance, disclose, reproduce, prepare derivative works, and dishibute, in any
manner, for any purpose related to the administration, activities, review, or audit of, or public
reporting regarding, the Program and to pelTOit others to do so in connection therewith.
- 4 -
(iii) "NPI" means nonpublic pcrsonal infonnation, as defined nnder the GLB.
(iv) "GLB" means the Gramm-Leach-Bliley Act, 15 U.S.C. 6801-6809.
(b) Subject to below, Treasury, Fannie Mae and Freddie Mac shall have Limited Rights,
with respect to all Data pl'Oduced, developed, or obtained by Servicer or a contractor ofServicer in
connection with the Program, pl'Ovided, however, that NPI will not be transferred by Fannie Mae in
violation ofthe GLB and, provided, further, that Servicer acknowledges and agrees that any use of
NPI by, the distribution ofNPI to, or the transfer ofNPI among, Federal, state and local goverument
organizations and agencies docs not constitute a violation of the GLB for purposes of the
Agreement. Ifrequested, such Data shall be made available to the Treasury, Fannie Mae, or Freddie
Mac upon request, 01' as and when directed by the Program Documentation, in industry standard
useable fOlmat.
(c) Servicer expressly consents to the publication of its name as a participant in the Program, and the
use and publication of Servicer's Data, subject to applicable state and federal laws regarding
confidentiality, in any form and on any media utilized by Treasury, Fannie Mae or Freddie Mac,
including, but not limited to, on any website or web page hosted by Treasury, Fannie Mae, or Freddie
Mac, in connection with the Program, provided that no Data placed in the public domain will: (i)
contain the name, social security number, or street address of any borrower or other information that
would allow the bon'ower to be identified; or, (ii) if presentcd in a form that links the Servicer with
the Data, include infonnation othcr than program performance and participation related statistics
such as the number of modifications, performance of modifications, characteristics of the modified
loans, or program compensation or fees, with any information about any borrower limited to
creditwOlthiness characteristics such as debt, income, and credit score. In any Data provided to an
enforcement or supervisory agency with jurisdiction over the ServiceI', these limitations on boITower
information do not apply.
8. Publicity and Disclosure.
(a) Servicer shall not make use of any Treasury name, symbol, emblem, program name, or product
name, in any advertising, signage, promotional material, press release, Web page, publication, or
media intelview, without the prior written consent of the Treasury.
(b) Servicer shall not publish, or cause to have published, or make public use of Fannie Mae's name,
logos, trademarks, or any information about its relationship with Fannie Mae without the prior
written pennission of Fannie Mae, which permission may be withdrawn at any time in Fannie Mae's
sole discretion.
(c) Servicer shall not publish, or cause to have published, or make public use of Freddie Mae's name
(Le., "Freddie Mac" or "Federal Home Loan Mortgage Corporation"), logos, trademarks, or any in-
fonnation about its relationship with Freddie Mac without the prior written permission of Freddie
Mae, which pennission may be withdrawn at any time in Freddie Mac's sole discretion.
9. Limitation of Liability. IN NO EVENT SHALL FANNIE MAE, THE TREASURY, OR FREDDIE MAC,
OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE
LIABLE TO SERVICER WITH RESPECT TO THE PROGRAM OR THE AGREEMENT, OR FOR ANY
- 5 -
ACT OR OMISSION OCCURRING IN CONNECTION WITH THE FOREGOING, FOR ANY
DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO DIRECT DAMAGES, INDIRECT
DAMAGES, LOST PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR PUNITNE DAMAGES OF ANY NATURE OR UNDER ANY LEGAL THEORY
WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
REGARDLESS OF WHETHER OR NOT THE DAMAGES WERE REASONABLY FORESEEABLE;
PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT FANNIE MAE'S
OBLIGATION TO REMIT PURCHASE PRICE PAYMENTS TO SERVICER IN ITS CAPACITY AS
FINANCIAL AGENT OF THE UNITED STATES IN ACCORDANCE WITH THE AGREEMENT.
10. Indemnification. Servicer shall indemnity, hold hanniess, and pay for the defense of Fannie Mae, the
Treasury and Freddie Mac, and their respective officers, directors, employees, agents and affiliates against all
claims, liabilities, costs, damages, judgments, suits, actions, losses and expenses, including reasonable
attorneys' fees and costs of suit, arising out of or resulting from: (a) Servicer's breach of Section 5
(Representations, Warranties and Covenants) of this Financial Instrument; (b) Servicer's negligence, willful
mIsconduct or failure to perfonn its obligations under the Agreement; or (c) anyinjuries to persons (including
death) ordarnages to property caused by the negligent or willful acts or omissions ofServicer or its contrac-
tors. Servicer shall not settle any suit or claim regarding any of the foregoing without Fannie Mae's prior
written consent if such settlement would be adverse to Fannie Mae's interest, or the interests of the Treasury
or Freddie Mac. Servicer agrces to payor reimburse all costs that may be incuned by Fannie Mae and Freddie
Mac in enforcing this indemnity, including attorneys' fees.
IN WITNESS WHEREOF, Servicer ~ e r e b y executcs this Financial Instrument on the date set f0l1h below.
Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A.
Date
Co-President
Wells Fargo Home Mortgage
- 6-
EXHIBITB
FORM OF ANNUAL CERTIFICATION
ANNUAL CERTIFICATION
This Annual Certification is delivered as provided, in S e ~ t i o n t .B. of the Commitment to Purchase Financial Instrument and Servicer Participation
Agreement (the "Commitment"), effective as or'[lN$ERTj, by and between Federal National Mortgage Association ("Fannie Mac"), a rederally
chartered corporation, acting as financial agent of the United States, and the undersigned party ("Servicer"). All terms used, but not defined herein, shall
have the meanings ascribed to them in the Comnlitment.
Servicer hereby certifies, as oftl1\lSER'I'DATE ONwmCHc'IlRTIFICATiO'N IS GNtlNj, that:
1. Servicer is established under the laws of the United States or any state, territory, or possession of the United States or the
District of Columbia, and has significant operations in the United Statcs. ServiceI' had full corporate power and authority to enter into,
execute, and deliver the Agreement and to perform its obligations hereunder and has all licenses necessary to carryon its business as
now being conducted and as contemplated by the Agn:emcnt.
2. ServiceI' is in compliance with, and certifies that all Services have been performcd in compliance with, all applicable Federal,
state and local laws. regulations, regulatory guidance, statutes, ordinances. codes and requirements, including, but not limited to, the
Truth in Lending Act, 15 USC 1601 et seq., the Home Ownership and Equity Protection Act, J 5 USC 1639, the Federal Trade
Conunission Act, 15 USC 41 et seq., the Equal Credit Opportunity Act, 15 USC 70 J et seq., the Fair Credit Reporting Act, J 5
USC 1681 et seq., the Fair Housing Act and other Federal and state laws designed to prevent unfuir, discriminatOl), or predatory
lending practices nnd all applicable laws governing tcnant rights. Subject to the following sentence, Servicer has obtained 01' made all
govcl'runental approvals 01' registrations required undcr law and has obtained all consents necessary to authorize the perfOimanceofits
obligations under the Program and thc Agreement. The performance of Services under the Agreement has not conflicted with, or been
prohibited in any way by, any other agreement or statutory restriction by which Servicer is bound, except to the extent of any
contractual limitations undcr applicable scrvicing contracts to which Servicer is subject. Servicer is not aware of any other Icgal or
financial impediments to performing its obligations under thc Program or thc Agreement and has promptly notified Fannie Mac of any
financial and/or operational impediments which may impair its ability to perform its obligations under the Program or the Agreement.
ServiceI' is not delinquent on any Federal tax obligation or any other debt owed to the United States or collected by the United States
for the benefit of others, excluding any debts or obligations that are being contested in good fuith.
3. (i) Servicer has performed its obligations in accordance with the Agreement and has promptly provided such performance
reporting as Fannie Mac and Freddie ,Mac have reasonabtyrequired; (ii) all mortgage modifications and all trial period modifications
have been offered by Servicer to borrowers, fully documented and serviced by SClvicer in accordance with the Program
Documentation; and (iii) all data, collcction infonnatioll and other information reported by Servicer to Fannie Mae and Freddie Mac
under the Agreement. including, but not limited to, information that was relied upon by Fannie Mae and Freddie Mac in calcuJating the
Purchase Price and in performing any compliance review, was true, complete and accuratc in all material respects, andconsistcntwith
alt relevant servicing records. as and when provided.
4. Servicer has: (i) perfonned the Services required under the Agreement in accordance with the practices, high professional
standards of care, and degree of attention used in a well-managed operation, and no less than that which the Servicerexel'cises for itself
under similar circumstances; and (ii) used qualified individuals with suitable training, education, experience and skills to perfoml the
Services. Servicer acknowledges that Program participation required changes to, or the augmentation of, its systems, staffing and
procedures; Servicer took all actions neccssary to ensurc that it had the capacity to implement the Program in accordance with the
Agreement.
5. ServiceI' has complied with all regulations on conflicts of interest that are applicable to Servieer in connection with the
conduct o fits business and all conflicts ofinterest and non-disclosure obligations and restrictions and related mitigation procedures set
forth in the Program Documentation (if any).
6. ServiceI' acknowledges that the provision offalse or misleading information to Fannie Mae or Freddie Mac in connection with
the Program or pursuant to the Agreement may constitute a violation of. (a) Federal criminal law involving fraud. conflict of inter est,
bribery, 01' gratuity violations found in Title 18 ofthe United States Code; or (b) the civil False Claims Act (3 J U.S.c. 3729-3733).
Servicer has disclosed to Fannie Mae and Freddie Mac any credible evidence, in connection with the Services, that a management
official, employee, 01' contractor ofServicer has committed, or may have committed, a violation of the referenced statutes.
- 2 -
7. Servicer has disclosed to Fannie Mae and Freddie Mac any other facts or information that the Treasury, Fannie Mae or
Freddie Mac should reasonably expect to know about ServiceI' and its contractors to help protect the reputational interests of the
Treasury, Fannie Mae and Freddie Mac in managing and monitoring the Program.
8. Servieer acknowledges that Fannie Mae and Freddie Mac may be required to assist the Treasury with responses to the
Privacy Act of 1974 (the "Privacy Act"), 5 USC 552a, inquiries from borrowers and Freedom oflnformation Act, 5 USC 552,
inquiries from other parties, as well as formal inquiries from Congressional committees and members, the Government Accounting
Office, Inspectors General and other government entities, as well as media and consumer advocacy group inquiries about the Program
and its effectiveness. Servicer has responded promptly and accurately to all search requests made by Fannie Mae and Freddie Mac,
complied with any related procedures which Fannie Mae and Freddie Mac have established, and provided related training to
employees and contractors. In connection with Privacy Act inquiries, Servicer has provided updated and corrected information as
appropriate about borrowers' records to ensure that any system of record maintained by Fannie Mae on behalf ofthe Treasury is
accurate and complete.
9. Servicer acknowledges that Fannie Mae is required to develop and implement customer service call centers to respond to
borrowers' and other parties' inquiries regarding the Program, which may require additional support from Servicer. Servicer has
provided such additional customer service call support as Fannie Mae has reasonably requested to support the Program.
10. Servicer acknowledges that Fannie Mae and/or Freddie Mac are required to develop and implement practices to monitol' and
detect loan modification fiaud and to monitor compliance with applicable consumer protection and fair lending laws. ServiceI' has
fully and promptly cooperated with Fannie Mae's inquiries about loan modification fiaud and legal compliance and has complied with
any anti-fraud and legal compliance procedures which Fannie Mae and/or Freddie Mac have required. Servicer has developed and
implemented an internal control program to monitor and detect loan modification fraud and to monitor compliance with applicable
consumer protection and fair lending laws, among other things, as provided in Section 4 ofthe Financial Instrument.
In the event that any of the certifications made herein are discovered not to be true and correct, Servicer agrees to notifY Fannie Mae and Freddie Mac
immediately.
tINSERT FUll LEGAL NAME OF SERVICERj:
[Name of Authorized Official]
[Title of Authorized Official]
Date
- 3 -
EXHIBITC
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
1' ... h ... i .. S .. _ ...... A .... SS. igmnent and ASS.U .. m ... I'lion. A ... g. r .. ee . .. C .. .. "A.SSig.JU.n . e.nta ... n d .. Assumption e .. .. to.a.s O.f .. :l . 11 .,...1'
BATEl by and between [INSERt .f'ULLLEGA"(:, NAMEOF.ASSIGNQRj (" Assignor") and (INSERT F.UJ;,LLEGAL
I\&SlONEEJ (" Assignee"). All terms used, but not defined, herein shall have the meanings ascribed to them in the Underlying
Agreement (defmed below).
WHEREAS, Assignor and Federal National Mortgage Association, a federally cbru1ered corporation, as fmaneial agent of the
United States ("Fannie Mae"), are pal1ies to a Commitment to Purchase Financial Instrument and Servicer Participation
Agreement, a complete copy of which (including all exhibits, amendments and modifications thereto) is attached hereto and
incorporated herein by this reference (the "Underlying Agreement");
WHEREAS, Assignor has agreed to assign to Assignee: (i) all of its rights and obligations under the Underlying Agreement with
respect to the mortgage loans identified on the schedule attached hereto as Schedule I ("Schedule I") andlor(ii) acrtain otber rights
and obligations under the Underlying Agreement that are identified on Schedule I; and
WHEREAS, Assignee has agreed to assume the mortgage loans and other rights and obligations under the Underlying Agreement
identified on Schedule I.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
pal1ies hereto agree as follows:
I. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations under the Underlying Agreement with
respect to the mortgage 10alls identified on Schedule I and such other rights and obligations under the Underlying Agreement that
are identified on Schedule I .
2. Assumption. Assignee hereby accepts the foregoing assignment and assumes all of the rights and obligations of Assignor under
the Underlying Agreement with respect to the mortgage loans identified on Schedule 1 aIld such other rights and obligations under
the Underlying Agreement tbat are identified on Scbedule I.
3. Effective Date. The date ",hich tbe assignment and of rights aIld obligations under the Underlying AgreCDlent is
effective is [INSERl'BFFECTIVE DA'rEOF ASSIGNMENT/A-SSUMPTIONj.
4. Successors. All futme transfers aIld assignments of the mortgage loans, rights and obligations transferred and assigned hereby
are subject to the transfer and assignment provisions ofthe Underlying Agreement This Assignment and Assumption Agreement
shall inure to the benefit of, aIld be binding upon, the permitted successors and assigns of the parties hereto.
5. Counterparts. This Assignment and Assumption Agreement may be executed in counterparts, each of which shall be an
original, but all of which together constitute one and the same instrument.
- I -
IN WITNESS WHEREOF, Assignor and ASsignee, by their duly authorized officials, hereby execute and deliver this Assignment
and Assumption Agreement, together with Schedule I, effective as of the date set forth in Section 3 above.
By:
-----------------------------------
Namc: ______ _______ ___ _ _
Titlc: _______ _ _ ____ ___ __ _
Date: ____ _ _ _________ _ __ _
- 2 -
ASSIGNEE:

By: _____ _ ________ _
Name: ____ _________ _ _
Title: ____ _________ __ _
Date: _ ____ ___ ___ ____ _
SCHEDULEl
To
ASSIGNMENT AND ASSUMPTION AGREEMENT
- 3 -
EXHIBITD .
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EXHIBIT C

File No: 01011054
Multistate NOTE
June 15, 2001
8 Draycoach Lane I Merrimack , NH 03054
[property Address]
1. PARTIES
FHA Case No.
341-0723384
"Borrower" means each person signing at the end of this Note, and the person's successors and assigns. "Lender" means
Homeowners Assistance Corp.
and its successors, and assigns.
2. BORROWER'S PROMISE TO PAY; INTEREST
In return for a loan received from Lender, Borrower promises to pay the principal sum of TWO HUNDRED
TWENTY-EIGHT THOUSAND NINE HUNDRED THIRTY-THREE & 00/100
Dollars (U .S. $ 228 I 933 . 00 ), plus interest, to the order of Lender. Interest will be charged on unpaid principal
from the date of disbursement of the loan proceeds by Lender, at the rate of SEVEN & 00/100
per cent ( 7;.000 %) per year until the full amount of principal has been paid.
3. PROMISY;: TO PAY SECURED
Borrower's promise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated the same date
as this Note and called the "Security Instrument." That Security Instrument protects the Lender from losses which might result
if Borrower defaults under this Note.
4. MANNER OF PAYMENT
(A) Time
Borrower shall make a payment of principal and interest to Lender on the first day of each month beginning on
Augus tOl, 2001 . Any principal and interest remaining on the first day of July I 2031
will be due on that date, which is called the maturity date.
(B) Place
Payment shall be made at
165 South River Road Bedford, NH 03110
or at such other place as Lender may designate in writing.
(C) Amount
Each monthly payment of principal and interest will be in the amount of $ 702. 4 8 . This amount will
be part of a larger monthly payment required by the Security Instrument, that shall be applied to principal, interest and other
items in the order described in the Security Instrument.
(D) Allonge to this note for payment adjustments
If an allonge providing for payment adjustments is executed by Borrower together with this Note, the covenants of
the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge were a part
of this Note. [Check applicable box]
o Graduated Payment Allonge o Growing Equity Allonge
o Other
5. BORROWER'S RIGHT TO PREPAY
Borrower has the right to pay the debt evidenced by this Note, in whole or in part, without charge or penalty, on the first
day of any month. Lender shall accept prepayment on other dates provided that borrower pays interest on' the amount prepaid for
the remainder of the month to the extent required by Lender and permitted by regulations of the Secretary. If Borrower makes a
partial payment there will be no changes in the due date or in the amount of the monthly payment unless lender agrees in writing
to those changes. ",
Page 1 0/2 FHA Multistatc Fixed Rate Note-lO/95
6. BORROWER'S FAILURE TO PAY
(A) Late Charge for Overdue Payments
If Lender has not received the full monthly payment required by the Security Instrument, as described in Paragraph
4(C) of this Note by the end of fifteen calender days after the payment is due, Lender may collect a late charge in the amount
of four per cent ( 4 %) of the overdue amount of each payment.
(B) Default
If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by
regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal remaining due
and all accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any
subsequent In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate
payment in full in the case of payment of defaults. This Note does not authorize acceleration when not permitted by HUD
regulations. As used in this Note, "Secretary" means the Secretary of Housing and Urban Development or his or her designee.
(C) Payment of Costs and Expenses
If Lender has required immediate payment in full, as described above, Lender may require Borrower to pay costs and
expenses including reasonable and customary attorneys' fees for enforcing this Note. Such fees and costs shall bear interest
from the date of disbursement at the same rate as the principal of this Note.
7. WAIVERS
Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor.
I
"Presentment" means the right to require Lender to demand payment of amounts due. "Notice of dishonor" means the right to
require Lender to give notice to other persons that amounts due have not been paid.
8. GIVING OF NOTICES
Unless applicable law requires a different method, any qotice that must be given to Borrower under this Note will be given
by delivering it or by mailing it by first class mail to Bo'rrower at the property address above or at a different address if
Borrower has given Lender a notice of Borrower's different address.
Any notice that must be given to Lender under this Note will be given by first class mail to Lender at the address stated in
Paragraph 4(B) or at a different address if Borrower is given notice that different address.
9. OBLIGATIONS OF PERSON UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in
. this Note, including the promise to pay the full amoWit owed. Any person who is a guarantor, surety or endorser of this Note
is also obligated to do these things. Any person who takes over these obligations, including the obligations of guarantor,
surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. Lender may enforce its rights
under this Note against each person individually or against all signatories together. Anyone person signing this Note may be
required to pay all of the amounts under this Note.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note.
=--_-.---=----::-::-----...,-_____ =-,(Seal)
Joseph E. Moquin -Borrower
(Seal)
---------------'-B..-orrower
Pay to the Order of
Without Recourse
By: _________ __

Page 20/2
____________ (Seal)
-=l3orrower

Witness

EXHIBIT D

Return To:
Homeowners Assistance Corp.
165 South River Road
Bedford, NH 03110
01011054
_____________ [Space Above This Line For Recording Data] ______ ...,....-_____ _
State of New Hampshire
MORTGAGE
FHA Case No: 341-0723384
THIS MORTGAGE ("Security Instrument") is given on June 15, 2001
The mortgagor is Joseph E. Moquin, and Joan M. Moquin, husband and wife
,
("Borrower" ). This Security Instrument is given to Homeowners Assistance Corp.
which is organized and existing under the laws of New Hampshire
and whose address is 165 South River Road, Bedford, NH 03110
(" Lender"). Borrower owes Lender the principal sum of
TWO HUNDRED TWENTY-EIGHT THOUSAND NINE HUNDRED THIRTY-THREE &00/100
i Dollars (U. S. $ 22 8 , 933 . 0 0 ).
I
This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for
monthly payments, with the full debt, if not paid earlier, due and payable on July 01, 2031 .This
Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals,
extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to
protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this
Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender, with
mortgage covenants, and with power of sale, the following described property located in Merrimack,
Hillsborough CountY, New Hampshire:
SEE ATTACHED EXHIBIT A FOR COMPLETE LEGAL DESCRIPTION MADE A
PART HEREOF.
which has the address of 8 Draycoach Lane, Merrimack, NH 03054
("Property Address");
NEW HAMPSHIRE-Single Family-FNMAIFHLNC UNIFORM INSTRUMENT
New Hampshire FHA Mortgage Form - 04/96 ~ . Page 1 of 6
TOGETHER WITH all the improvements now or hereafter erected on the property and all easements, rights, appurtenances, rents,
royalties, mineral, oil and gas rights and profits, water rights and stock and all fixtures now or hereafter a part of the property. All
replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as
the "Property."
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and
convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend
generally the title to the Property against all claims and demands, subject to any encumbrances of record.
1. Payment of Principal, Interest and Late Charge. Borrower shall pay when due the principal of, end interest on, the debt
evidenced by the Note and late charges due under the Note.
,
2. Monthly Payments of Taxes, Insurance and Other Charges. Borrower shall include in each monthly payment together with the
principal and interest as set forth in the Note and any late charges, an installment of any (a) taxes and special assessments levied or to be
levied against the Property, (b) leasehold payments or ground rents on the Property and (c), premiums for insurance required by paragraph
4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary (or any year in which such premium would have
been required if the Lender still held the Security Instrument), each monthly payment shall also include either: (i) an installment of the annual
mortgage insurance premium to be paid by Lender to the Secretary, or (ii) a monthly charge instead of a mortgage insurance premium if this
Security Instrument is held by the Secretary, in a reasonable amount to be determined by the Secretary. Except for the monthly charge by the
Secretary, t h e s ~ items are called "Escrow Items" and the sums paid to Lender are called "Escrow Funds."
,
Lender may, at any time, collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that
may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. Section 2601 et seq.
and implementing regulations, 24 CPR Part 3500, as they may be amended from time to time ("RESPA H), except that the cushion or reserve
permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available in the account may not
be based on amounts due for the mortgage insurance premium. i
If the amounts held by Lender for Escrow Items exceed the amount permitted to be held by RESPA, Lender shall deal with the excess funds
as required by RESPA if the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may
notify the Borrower and require Borrower to make up the shortage or deficiency as permitted by RESPA
The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender
the full payment of all sums secured by this Security Instrument, Borrower's account shall be credited with the balance remaining for all
installments for items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the
Secretary, and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale of the Property or its
acquisition by Lender, Borrower's account shall be credited with any balance remaining for all installments for items (a), (by and (c).
3. Application of Payments. All payments under paragraphs 1 and 2 shall be applied by Lender as follows:
First, to the mortgage insurance premium to .be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of
the monthly mortgage insurance premiuin;
Second, to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums,
as required;
Third. to interest due under the Note;
Fourth, to amortization of the principal of the Note;
Fifth, to late charges due under the Note.
4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property whether now in existence or
subsequently erected, against any hazards, casualties. and contingencies. including fire, for which Lender requires insurance. This insurance
shall be maintained in the amounts and for the periods that Lender requires. Borrower shall also
New Hampshire FHA Mortgage Form - 04/96 Page 2 of6
t ~ .
insure all improvements on the Property whether now in existence or subsequently erected, against loss by floods to the extent, required by
the Secretary. All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by
Lender and shall include loss payable clauses in favor of, and in a form acceptlble to, Lender.
In the event of loss, Borrower shall give Lender immediate notice by mail. Lender may make proof of loss if not made promptly by
Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender, instead of
to Borrower and to Lender jointly All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the
reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order in paragraph
3, and then to prepayment of principal, or (b) to the restoration or repair of the damaged Property. Any application of the proceeds to the
principal shall not extend or postpone the due date of the monthly payments which are referred to in paragraph 2, or change the amount of
such payments. Any excess insurance proceeds over an amount required to pay all outstlnding indebtedness under the Note and this Security
Instrument shall be paid to the entity legally entitled thereto.
In the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the indebtedness, all
right, title and interest of Borrower in and to insurance policies in force shall pass to the purchaser.
5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application;Leaseholds. Borrower
shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security
Instrument and' shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy,
unless the Secretary determines this requirement will cause undue hardship for Borrower, or unless extenuating circumstances exist which
are beyond BOI'rower's control. Borrower shall notify Lenders of any extenuating circumstances. Borrower shall not commit waste or destroy
damage or substantially change the Property or allow, the Property to deteriorate, reasonable wear and tear excepted. Lender may inspect the
Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such
vacant or abandoned Property. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or
inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan
evidenced by the Note, including, but not limited to, represeJtations concerning Borrower's occupancy of the Property as a principal
residence. If this Security Instrument is on a leasehold, Borrower shall comply with the provisions of the lease. If Borrower acquires fee title
to the Property, the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing.
6. Charges to Borrower and Protection of Lender's Rights in the Property. Borrower shall pay all governmentll or municipal
charges, fines and impositions that are not included in paragraph 2. Borrower shall pay these obligations on time directly to the entity which
is owed the payment. If failure to pay would adversely affect Lender's interest in the Property, upon Lender's request Borrower shall
promptly furnish to Lender receipts evidencing these payments.
If Borrower fails to make these payments or the payments required by paragraph 2, or fails to perform any other covenants and
agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property
(such as a proceeding in bankruptcy, for condemnation or to enforce laws or regulations), then Lender may do and pay whatever is necessary
to protect the value of the Property and Lender's rights in the Property, including payment of taxes, hazard insurance and otller items
mentioned in paragraph 2.
Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security
Instrument. These amounts shall bear interest from the date of disbursement, at the Note rate, and at the option of Lender, shall be
immediately due and payable.
7. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or
other taking of any part of the Property or for conveyance in place of condemnation, are hereby aSSigned and, shall be paid to Lender to the
extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument. Lender shall apply such
proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the
order provided in paragraph 3, and then to prepayment of principal. Any application of the proceeds to the principal shall not extend or
postpone the due date of the monthly payments, which are
New Hampshire FHA Mortgage Form - 04/96
' ~ ,
Page 3 of6
referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding
indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto.
8. Fees. Lender may collect fees and charges authorized by the Secretary.
9. Grounds for Acceleration of Debt.
a) Default. Lender may, except as limited by regulations issued by the Secretary in the case of payment defaults, require immediate payment in
full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next
monthly payment, or
(ii) Borrower defa,ults by failing, for a period of thirty days, to perform any other obligations contained in this Security Instrument.
(b) Sale Without Credit Approval. Lender shall, if permitted by applicable law and with the prior approval of the Secretary, require immediate
payment in full of-all sums secured by this Security Instrument if:
(i) All or part of the Property, or a beneficial interest in a trust owning all or part of the Property, is sold or otherwise transferred (other than by
devise or descent) by the Borrower, and
(ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the
Property but his or her credit has not been approved in accordance with the requirements of the Secretary.
(c) No Waiver. lr circumstances occur that would permit Lender to require immediate payment in full, but Lender does not require such
payments, Lender' does not waive its rights with respect to subsequent events.
(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights in the case of payment
defaults to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if
not permitted by regulations of the Secretary
(e) Mortgage Not Insured. Borrower agrees that should this Security Instrument and the Note secured thereby not be eligible for insurance
under the National Housing Act within 60 days from the date hereof, Lender may, at its option and notwithstanding anything in paragraph 9,
require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary
dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note secured thereby, shall be deemed
conclusive proof of such ineligibility. Notwithstanding the foregoing, this option may not be exercised by Lender when the unavailability of
insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary.
10. Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure
to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings are instituted. To reinstate
the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extent
they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary atto'rneys' fees and expenses
properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures
shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i)
Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the
commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii)
reinstatement will adversely affect the priority of the lien created by this Security Instrument.
11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time of payment or modification of amortization of
the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability
of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceedings against any successor in
interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any
demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall
not be a waiver of or preclude the exercise of any right or remedy.
12. Successors and Assigns Bound; Joint and Several Liability; Co-Signers. The covenants and agreements of this Security
Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 9.b. Borrower's
covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a} is
co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security
Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other
Borrower may agree to extend, modify forbear or make any accommodations with regard to the terms of this Security Instrument or the Note
without that Borrower's consent.
13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class
mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower
designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender
designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender
when given as provided in this paragraph.
14. Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the
Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict
shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end
the provisions of this Security Instrument and the Note are declared to be severable.
15. Borrower's Copy. Borrower shall be given one conformed copy of this Security Instrument.
I
16. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous
Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage one the Property of small quantities of
Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property.
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or
regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If learns, or is notified by any governmental or regulatory authority, that nay removal or other remediation of any
Hazardous Substapces affecting the Property is necessary,. Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
As used in this Paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental
Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile
solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this Paragraph 16, "Environmental Law" means
federal laws and laws of the jurisdiction where the Property is that relate to health, safety, or environmental protection.
17. Assignment of Rents. Borrower unconditionally assigns ' and transfers to Lender all the rents and revenues of the Property. Borrower
authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender
or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security
Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This
assignment of rents constitutes an absolute assignment and not an assignment for additional security only.
If Lender gives notice of breach to Borrower: {a} all rents received by Borrower shall be held by Borrower as trustee for benefit of
Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be entitled to collect and receive all of the rents of the
Property; and (c) each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written d; mand to the
tenant.
Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from
exercising its rights under this paragraph 16.
Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower.
However, Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any
default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the
Security Instrument is paid in full.
NONUNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
18. Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may invoke the STATUTORY
POWER OF SALE and any other remedies permitted by applicable law Lender shall be entitled to collect all expenses incurred in pursuing the
remedies provided in this paragraph 17, including, but not limited to, reasonable attorneys' fees and costs of title evidence.
If Lender invokes the STATUTORY POWER OF SALE, Lender shall mail copies of a notice of sale in .the manner provided by
applicable law to Borrower and other persons prescribed by applicable law Lender shall publish the notice. Of sale, and the Property shall be
sold in the manner prescribed by applicable law. Lender shall deliver to the purchaser Lender's deed conveying indefeasible title to the Property,
discharged of all rights of redemption by Borrower. Lender or its designee may purchase the Property at any sale. The proceeds of the sale shall
be applied in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable attorneys' fees; {b} to all sums secured
by this Security Instrument; and (c) any excess to the person or persons legally entitled to it.
New Hampshire FHA Mortgage Fonn 04/96 Page 5 of6
referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding
indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto.
8. Fees. Lender may collect fees and charges authorized by the Secretary.
9. Grounds for Acceleration of Debt.
a) Default. Lender may, except as limited by regulations issued by the Secretary in the case of payment defaults, require immediate payment in
full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next
monthly payment. or
(ii) Borrower d e ~ u l t s by failing. for a period of thirty days, to perform any other obligations contained in this Security Instrument.
(b) Sale Without Credit Approval. Lender shall, if permitted by applicable law and with the prior approval of the Secretary, require immediate
payment in full of all sums secured by this Security Instrument if:
(i) All or part of the Property, or a beneficial interest in a trust owning all or part of the Property, is sold or otherwise transferred (other than by
devise or descent) by the Borrower, and
(ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the
Property but his dr her credit has not been approved in accordance with the requirements of the Secretary.
(c) No Waiver. If circumstances occur that would permit Lender to require immediate payment in full, but Lender does not require such
payments, Lender does not waive its rights with respect to subsequent events.
(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights in the case of payment
defaults to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if
not permitted by regulations of the Secretary
(e) Mortgage Not Insured. Borrower agrees that should this Security Instrument and the Note secured thereby not be eligible for insurance
under the National Housing Act within 60 days from the date hereof, Lender may, at its option and notwithstanding anything in paragraph 9.
require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary
dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note secured thereby, shall be deemed
conclusive proof of such ineligibility. Notwithstanding the foregoing, this option may not be exercised by Lender when the unavailability of
insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary.
10. Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure
to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings are instituted. To reinstate
the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extent
they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys' fees and expenses
properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures
shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i)
Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the
commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii)
reinstatement will adversely affect the priority of the lien created by this Security Instrument.
11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time of payment or modification of amortization of
the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability
of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceedings against any successor in
interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any
demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall
not be a waiver of or preclude the exercise of any right or remedy.
12. Successors and Assigns Bound; Joint and Several Liability; Co-Signers. The covenants and agreements of this Security
Instrument shall bind and benefit the successors and assigns of Lender and Borrower. subject to the provisions of paragraph 9.b. Borrower's
covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a} is
co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under 'the terms of this Security
Instrument; (b) is not personally obligated to pay the sums secur.ed by this Security Instrument; and (c) agrees that Lender and any other
Borrower may agree to extend, modify forbear or make any accommodations with regard to the terms of this Security Instrument or the Note
without that Borrower's consent.
New Hampshire FHA Mortgage Form - 04196 Page 4 of6
13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class
mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower
designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender
designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender
when given as provided in this paragraph.
14. Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the
Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict
shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end
the provisions of this Security Instrument and the Note are declared to be severable.
15. Copy. Borrower shall be given one conformed copy of this Security Instrument.
16. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous
Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental ulW. The preceding two sentences shall not apply to the presence, use, or storage one the Property of small quantities of
Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property.
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or
regulatory agency' or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that nay removal or other remediation of any
Hazardous Substances affecting the Property is necessary,. Borrower shall promptly take all necessary remedial actions in accordance with
Environmental
As used in this Paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental
Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile
solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this Paragraph 16, "Environmental Law" means
federal laws and laws of the jurisdiction where the Property is that relate to health, safety, or environmental protection.
17. Assignment of Rents. Borrower unconditionally assigns I and transfers to Lender all the rents and revenues of the Property. Borrower
authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender
or Lender'S agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security
Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This
assignment of rents constitutes an absolute assignment and not an assignment for additional security only.
If Lender gives notice of breach to Borrower: {a} all rents received by Borrower shall be held by Borrower as trustee for benefit of
Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be entitled to collect and receive all of the rents of the
Property; and (c) each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the
tenant.
Borrower has not executed any prior assignment of tile rents and has not and will not perform any act that would prevent Lender from
exercising its rights under this paragraph 16.
Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower.
However, Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any
default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the
Security Instrument is paid in full.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
18. Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may invoke the STATUTORY
POWER OF SALE and any other remedies permitted by applicable law Lender shall be entitled to collect all expenses incurred in pursuing the
remedies provided in this paragraph 17, including, but not limited to, reasonable attorneys' fees and costs of title evidence.
If Lender invokes the STATUTORY POWER OF SALE, Lender shall mail copies of a notice of sale in the manner provided by
applicable law to Borrower and other persons prescribed by applicable law Lender shall publish the notice. Of sale, and the Property shall be
sold in the manner prescribed by applicable Lender shall deliver to the purchaser Lender's deed conveying indefeasible title to the Property,
discharged of all rights of redemption by Borrower. Lender or its designee may purchase the Property at any sale. The proceeds of the sale shall
be applied in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable attorneys' fees; {b} to all sums secured
by this Security Instrument; and (c) any excess to the person or persons legally entitled to it.
If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in
full under paragraph 9, the Secretary may invoke the nonjudicial power of sale provided in the Single Family Mortgage
Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 et seq.) by requesting a foreclosure commissioner designated under the Act
to commence foreclosure and to sell the Property as provided in the Act. Nothing in the preceding sentence shall deprive the
Secretary of any rights otherwise available to a Lender under this paragraph 18 or applicable law.
19. Release. Upon payment of all sums secured by this Security Instrument, this Security Instrument shall become null and
void. Lender shall discharge this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs.
20. Waivers. Borrower waive.s all rights of homestead exemption in the Property and relinquishes all rights of curtesy and
dower in the Property.
I
21. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security
Instrument, the covenants and agreements of each such rider shall be
incorporated into and shall amend and supplement
the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument.
[Check applicable box(es)]
o
D
Condonllnium Rider
I
Planned Unit Development Rider
o
o
Graduated Payment Rider
Growing Equity Rider
o Others [Specify]
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and
in any rider(s) executed by Borrower and recorded with it. i
I
Signed, sealed and delivered in the presence of:
Witness to AD
STATE OF NEW HAMPSHIRE
_____________ ____ __ (Seal)
Joseph E. Moquin
Borrower
___________________ (Seal)
Joan M Moquin Borrower
____________________ (Seal)
Borrower
____________________ (Seal)
Borrower
County ss: Hi 11 sborough
The foregoing instrument was acknowledged before me this
June 15, 2001
(date)
by Joseph E. Moquin and Joan M Moquin
(person acknowledging)
My Commission Expires:
Notary Public/Justice of the Peace
New Hampshire FHA Mortgage Form - 04/96 Page 6 of 6
File No: 01011054
Exhibit A - Mortgage
That certain parcel of land with the buildings thereon situated
on Dray Coach Lane, Merrimack, Hillsborough County, New
Hampshire, being shown on Lot 32 on a plan entitled
"Subdivision ' Plan of Land Woodward Estates Merrimack, New
Hampshire" dated January 31, 1979, by Thomas F. Moran, Inc . ,
recorded with Hillsborough County Registry of Deeds as Plan
Number 12339, Drawer No. 23, and Contain 86,275 square feet of
land according to said plan, being bounded and described as
follows:
NORTHERLY by Draycoach Lane in three courses totaling 338.44
feet;
EASTERLY by Lot 33 on said plan 294.49 feet;
SOUTHERLY by land now or formerly of Robert A. Truman and
William L. Parker in two courses 174.37 feet and 175.63 feet;
WESTERLY by land now or formerly of the Merrimack School
District 271.80 feet;
Dennis P. Stevens and Judith Stevens retain a temporary
construction easement for the completion of all roads or ways
abutting the premises, said easement being for slopes, swales,
or other work required by the Town of Merrimack, and shall be
in existence until the roads or way are accepted by the Town.
Said premises are subject to an easement to New England
Telephone and Telegraph Company of New Hampshire for the
installation of utilities in the streets as set forth in an
instrument dated August 10, 1981, recorded with said Deeds, Book
2865, Page 490.
Said premises are also subject to a Building Setback Line as
shown on said plan.
Meaning and intending to describe and mortgage the same
premises conveyed to the mortgagor(s) by deed of near or even
date to be recorded herewith.
".

EXHIBIT E

A S C ~ _
Rdmn Mail Opcnlions
P.O. 80. 103811
Del Moines. lA 30306-0]88
February 22, 2011
Joseph E Moquin
8 Draycoach CT
Merrimack NH 03054
Loan Number 106-1170006612
Due Date: 02- 01-10
Thank you for contacting us regarding your financial hardship on the
loan mentioned above. Our goal is simple. We want to ensure that you
have every opportunity to retain your home. Based on our telephone
conversation and the financial information you provide d, \"e would like
to offer you a Special Forbearance Plan.
Cur rently, your loan is due for 13 installments, f r om February 01, 2010
through February 01, 2011. As agreed, you have promised to pay the
amounts shown below by the dates indicated. Also enclosed are the
terms and conditions of this forbearance. Please sign the enclosed
agreeme nt and ret u-rn it wi t h t he f irst ins t a l lment . This is not a
waiver of the accrued or future payments that become due, but a period
for you to determine how you will be able to resolve your financial
hardship. Any payments received will be applied to the delinquent
payments on the loan. During this Special Forbearance Agreement,
payment s a re to b e mai l e d to :
America's Servicing Company
MAC X7801-01H
3476 Stateview Blvd
Fort Mill SC 29715
During this period, we are requesting that you maintain contact with our
office in order to establish acceptable arrangements for bringing your
loan current. If you need additional assistance, please call us at
(800) 662- 3806, Monday through Thursday, 8 AM to 11 PM; Friday, 8 AM to
10 PM; or Saturday, 9 AM to 3 PM, Eastern Time.
LC00 4 00 8 F56
We a r e r e qui red by t he Fai r De bt Collection Prac ti ces Ac t to inform
you that if your loan is currently delinquent or in default, as your
loan servicer, we will be attempting to collect a debt, and any
information obtained will be used for that purpose. However, if you
have received a discharge, and the loan was not reaffirmed in the
bankruptcy case, we will only exercise our right as against the
property and are not attempting any act to collect the discharge
debt f r om you personally.
SPECIAL FORBEARANCE AGREEMENT - TERMS AND CONDITIONS
1. Currently, your loan is due for 13 installments, from
February 01, 2010 through February 01, 2011. The indebtedness of
the referenced loan is in default and in consideration of extending
forbearance for a period of time, it is necessary that you indicate
your understanding and acceptance of the terms of the forbearance
agreement by immediately signing and returning this agreement.
~ . Payments must be made strictly in accordance with the enclosed
payment schedule and forbearance agreement conditions. This plan
is an agreement to temporarily accept reduced payments or maintain
r egular monthly payments during the plan specifi ed b e low. Upon
suc cessful completion of the payments outlined in this plan, your
loan will be reviewed for a Loan Modification. Based on investor
approval, this may satisfy the remaining past due amount on your
loan.
3. The lender is under no obligation to enter into any further agree-
ment, and this forbearance shall not constitute a waiver of the
lender's right to insist upon strict performance in the future.
4. All of the provisions of the note and security instrument, except
as herein provided, shall remain in full force and effect. Any
breach of any provision of this agreement or non- compliance with
this agreement, shall render the forbearance null and void, and
at the option of the lender without further notice to you may
terminate this agreement. The lender, at its option, may
institute foreclosure proceedings according to the terms of the
note and security instrument without regard to this agreement.
In the event of foreclosure, you may incur additional expenses
of attorney's fees and foreclosure costs.
5. Each payment must be remitted according to the schedule below.
PLAN DATE AMT PLAN DATE AMT
01 04/01/11 858.43 02 05/01/11 2,014.05
03 06/01/11 2,014.05 04 07/01/11 2,014.05
6. There is no "grace period" allowance in this agreement. All
payments must be received on or before the agreed due date.
If any payment is not received on or before the due date,
the agreement will be void and the total delinquency, including
fees, will be due immediately.
7. The total amount indicated on each payment of the payment schedule
must be remitted. In the event the total amount due of each
payment is not received, the Special Forbearance agreement will
b e rendered null and void.
By signing this agreement I hereby consent to being contacte d concerning
this loan at any cellular or mobile telephone number I may have. This
includes text messages, at no cost to me, and telephone calls including
the use of automated dialing systems to contact my cellular or mobile
telephone.
Co- mortgagor Date
Loan Number 106/1170006612

Ecf 01 - Wf2 Complaint With Exhs A-E

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

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