I just received the following response from one of the lenders.  (See attached, this
forum would not let me post an image of the language here)


The highlighted language is a potential problem. The bank is being forced into this mediation
and the bank might be looking for a scapegoat.

Why do I suddenly feel like I have a target taped to my back?  Anyone elsedealing with this same issue?  

If you can, please respond as soon as you can, I need to decide soon.  




Views: 374


Replies to This Discussion



I don't have the details, but the first foreclosure mediation that was to be handled by the Kitsap DRC was also returned to Commerce because "the attorney" refused to sign the mediation agreement.  I assume the reference was to the lender's/servicer's attorney.

Alison Moss  

I just heard of this from a DRC. Maybe the same bank, maybe same counsel, or maybe they're comparing notes.

I'm not sure I disagree with the assertion that if it's not in the statute, they don't need to agree to it. I'm not using a mediation agreement in these cases myself. I do know Commerce and DRCs were talking about how the DRCs' mediation agreements were going to work.

Can someone from Commerce or a DRC describe what Commerce is allowing in those mediation agreements?

I also don't see that a party has any right to demand an alternate mediator. Sure they can ask. Might want to check with Commerce directly on what they're doing with these requests.

Whatever else happens, I'm now planning on adding to my scheduling letter that I won't mediate with recording devices!

(BTW, you posted this perfectly. There's no way to embed a pdf as an image.)

A uniform response to the servicers/lenders may be appropriate here.

Under the circs, w/ a lender citing w/ great specificity, it sounds like the "role of teacher*" as described in a previous letter from Dept of Commerce referring officer is not as necessary as the "enforcer of statute".

Routh Crabtree may have "won" a point on yours, but may lose the game, esp if they *really* like square corners.


FWIW, the same firm was one of my first referrals, however they never sent in the waiver form and only contacted me after the borrower filed BK.

The borrower completed and delivered the waiver form; the lender did not.


Sherman's concerns warrant a close following until the FFA statute is amended to include mediator immunity (something Dept Commerce says is coming).


All respect - David K. Hiscock

Ballard Law Office 206-789-9551



* "Our mediators have had three days of training to understand the FFA and

how it is implemented.  Now it is your turn to take the role of trainer

- for the benefit of both parties - who are less familiar with FFA than

you are.   It may be helpful to use the attached brochure as an overview

to help bring all parties up to speed." (sig - dept commerce rep, after they got my QQQ re: non-waiver signing banks...)


And this - from Wells Fargo's lawyer, who did not turn in a waiver either -

"It is our position that pursuant to 11 U.S.C. §362, the bankruptcy stay remains in place and Mr. M___ is not eligible for mediation at this time under Washington 2SHB 1362 (The Foreclosure Fairness Act). As it appears the mediation cannot occur at this time, I have not signed the waiver form required by the Department of Commerce.  Please accept this email as Wells Fargo’s intention to act in good faith." (sig - another lawyer from the same firm)

Don't quit.

I just got another exchange on the Wells Fargo mediation that is stalled temporarily in BK.

Borrower's counsel has already noted the obvious practical factor that, once through BK, the borrower will have *much* less debt, and be in a much better position to work out a deal.

With this particular firm, it may be helpful for all on the list to coordinate a very businesslike response and help them see the value of cooperation & collaboration.


All respect - David K. Hiscock

Ballard Law Office 206-789-9551


Many of us that attended the training seminar were VERY disappointed in the way several things occurred.

1. The cram down method of drafting and voting on the bill.
2. The lack of involvement of the various lenders.
3. The desire of commerce (or at least some of the speakers at the seminar) to turn the mediators into a type of enforcement agency.
4. The hidden agenda of commerce to mediate the lender into reducing principle.

These may be my own observations, but the observations concerned me. I voiced my concerns to several with commerce and some of the sponsors that if the lenders find out about how the program was presented to the mediators, the lenders would be resistant to participate.

So, I put myself in the shoes of the lenders and asked what would I do? Simple really, review the bill in detail and find all the unanticipated problems with it. Then use these issues to delay the smooth operation of the bill and use the delay to try to interject revisions to the bill.

Or, in the alternative, resist it simply because it was crammed down. The simplest form of resistance is simply to make the party who wrote the rules, play by their own rules.  (not any different than the advice we would give any of our own clients)

Now, if I was the bank, the simplest and quickest way to stop the program is to file suit against one of the mediators. Once that happens, without protection, I will refuse to accept any more mediations.

This is a simple problem with a simple fix. This bill needs modification quickly before the private mediators start opting out.

Sherman Knight

What did you decide on this case?  I just received the same letter from this attorney.  There was initial confusion in my case because it was first referred to me at the DRC,  but I am a private mediator. It shuffled around a bit because COM had to reassign it to me privately. I got a signed waiver from the borrower and the beneficiary representative within a few days of my referral letter. But when I scheduled the mediation I received the above letter.  Feels like a major target.







Welcome to our community of ADR professionals: mediators, arbitrators, and lawyers representing and advising clients.  We are active in the growth and development of ADR in Washington as well as the education of members of the bar and the public.

Latest Activity

Profile IconSheryl Ellis and Andrea Braeutigam joined WSBA Alternative Dispute Resolution
Sep 17
Jeannie L Barei updated their profile
Aug 16
Paula Emery updated their profile
Aug 13
Profile IconWilberforce Agyekum, Sarah Bove and Andrew Hay joined WSBA Alternative Dispute Resolution
Jun 30

© 2020   Created by WSBA ADR.   Powered by

Badges  |  Report an Issue  |  Terms of Service