Josh about to pass his grandpa

Josh about to pass his grandpa
Here, at age three, Josh regularly runs a mile or two with me--and I have to work hard to keep up!

Tuesday, December 16, 2014

The Real Nature of Endurance

     I've been caught up in something that has given me a whole new perspective on the nature of human endurance.  Although I have run 50-mile and 100-mile races with some success, what I've encountered now is a thing that has tested my endurance as nothing before.  The challenge here has not been a physical one (though there's been plenty of adrenaline and fatigue), but mainly a mental and psychological one.  And suddenly, I realize that with this, I have far more company than I have ever had in long distance running.  There are at most a few hundred thousand Americans who have completed events like the Ironman Triathlon, or Western States 100, or Tour de California.  There may be tens of millions who've been beaten down by incompetent bureaucracies or corrupt corporations.  And for many of the victims, there's no finish line.  If you ever get pulled into a nightmare of the kind I'm about to describe, it can be life-saving to have spent years building your endurance on mountains or trails.
     My current struggle is with Quicken Loans, a mortgage company I approached for a refinance of my home as innocently as a fish swimming into the mouth of an alligator. When the mouth closed, my wife and I discovered our entire net life savings had been wiped out--and our mortgage debt had been suddenly increased by $28,000 more than the refinance contract had specified.  I should note, since it's critical, that my wife and I are in our 70s, living on a very small fixed income (we can't afford to go out to movies, or even have lunch at Chipotle), and what Quicken did to us has caused us over a year (so far) of stress that is wearing me down in a way I never experienced in 100-mile races or even in the 135-mile Badwater race across Death Valley (photo above).  And my wife is now so traumatized that I'm afraid she may not survive this.
     But please understand, I'm not writing this to solicit sympathy.  I know other people are in far worse straits than we are--millions of others who've been snared by predatory organizations.  And the disturbing thing is, these are not what we'd normally call "criminal" organizations, like organized crime syndicates, or drug cartels, or the shadow groups that steal IDs and empty out bank accounts.  The outfit my wife and I are dealing with just happens to be Quicken Loans.  We could quite as easily have been screwed by Bank of America, or Enron, or Duke Energy.  Hundreds of American corporations have been convicted of crimes in recent years, and few have been prosecuted.  As for corruption in government, don't even ask.
     In Quicken's case, was the means by which it has taken our money a crime?  My first thought was that it was a bait-and-switch.  But I may never know, because I have no way of untangling the web of obfuscation and intimidation it has put up to block me.  More recently, I've concluded that it may not have been actual bait-and-switch, but simply a case of such amazing negligence or incompetence that it would be a huge embarrassment to Quicken if it became widely known.  Either way, it looks very much like a crime,, as I'll explain. 
     When my wife and I originally purchased our property, it consisted of six adjoining lots--one big enough for a house, but landlocked in a forest adjoining the Pacific Crest Trail (where I could go for fantastic runs), and five very small ones to provide road access to the house.  In order to get a building permit, we were required by our county to have the lots legally joined as a single indivisible parcel.  Once that was done, we got a construction loan from Wells Fargo Bank, and when the house was built the construction loan was converted to a mortgage.  A few years later, with interest rates falling, we got a refinance from--yes--Quicken Loans. Later, the loan was acquired by Chase Bank.  None of these giant banks had any problem with our mortgage.  In the case of Quicken, which handled it smoothly, I later found myself reminded of the fundamental technique of a con-game: to first gain the mark's confidence.
     So, a few years later when I went for a second refinance, I had confidence in Quicken.  They had already financed this same property once before. What could go wrong?  And indeed, all seemed to go well.  The contract looked flawless.
     Eight months later, my wife and I received two letters from Quicken informing us that the refinanced mortgage was for only one of the six lots that form our property.  There had been a mistake, they told us, and now they'd be increasing our tax escrow by an amount that would add about $28,000 to our debt over the term of the loan.  When I objected, a man in their Legal department told me curtly, "You signed the Compliance Agreement!"  We had indeed, and it wasn't until nearly a year later that we realized what a sleight-of-hand comment that had been.  He'd said it with such self-righteous assurance that I assumed it looked bad for us.  I knew it said something about the lender having a right to collect money that had inadvertently not been collected at closing.  But I regarded that Agreement as a technicality, far outweighed by the fact that the mortgage they'd refinanced wasn't even the one we'd brought to them.  How could a mortgage company that advertises its competence make such a stupid blunder on what should have been a very simple transaction?  How could it have divided up a parcel that was by law indivisible?  (The "mistake" appeared only in the Deed of Trust, on a page that was missing from the closing documents, so we  never saw it.  On all the other documents signed at closing, our property was simply identified by the correct street address, which has never changed and for which the 6-lot legal description had never changed.)
     Having suddenly seen our life savings wiped out, we asked Quicken for a make-good.  In a letter, we said we were aware that elderly people who dare to challenge the wrongdoing of large corporations often end up in protracted litigation that is never resolved in their lifetimes.  We didn't want that kind of stress, and suggested that in exchange for having a quick resolution and peace of mind for our remaining years, we would accept a reimbursement of one-third of the amount they had added to our mortgage debt with their little "mistake."  Boy, was I suckered.  Not only did they refuse, but when I sued for the one-third in Small Claims court, they counter-sued us.  By California court rules, they had to give us a five-day advance notice, but instead they waited until 4:30 p.m. the afternoon before our case was to be heard, and the next morning the judge said he'd have to send the combined cases to Civil Court, where we'd have to have a lawyer.  Quicken had evidently deduced from our letter that our wish not to get entangled in litigation was our weakness, and that by immediately taking us into litigation, they could scare us into backing off. 
     Maybe this was where my lifetime of endurance training helped. Instead of backing off, I wrote a letter to the Civil Court judge who had been assigned to the escalated case, saying that the Quicken suit was a sham (my wife and I had already met its demands that we sign off on a corrected Deed of Trust), and the judge apparently agreed.  He dismissed Quicken's case and sent our case against them back to Small Claims.
     In preparing for the Small Claims trial, which by now had been kicked down the road eight more months, I suddenly discovered the sleight-of-hand that the Quicken lawyer had suckered me with, in his righteous "You signed the Compliance Agreement!"  Now, looking at that agreement once again, I saw that while it does allow the lender to collect money that was due but inadvertently not collected at closing, it also states:

          Lender agrees that any request for such money will not.change the previously agreed
          upon points, closing costs, or escrow payments [except due to changes in insurance or
          tax assessments] that you were approved for as set forth in the Loan Pricing Disclosure,
          Good Faith Estimate . . . and/or mortgage.

But what Quicken was claiming in additional escrow (and not just "requesting" it but taking it from our bank account) changed the terms of all those documents hugely.  In short, the Agreement was that if a mistake at closing resulted in their not getting money that if paid then would have resulted in the correct bottom line indicated by the Good Faith Estimate and Mortgage, it could be collect later.  But not if it changed the bottom-line terms of the contract!
     At this point, I figured I had a slam-dunk.  I say "slam dunk" with ironic awareness that the owner of Quicken Loans, a guy named Dan Gilbert, is also the majority owner of the Cleveland Cavaliers basketball franchise, employer of the NBA slam-dunk king LeBron James.
     At the Small Claims trial, the judge heard several cases before mine, and I noticed that he seemed repeatedly impatient and condescending to the litigants.  When my turn came, he allowed me three minutes to make my case.  When he heard that Quicken had made a mistake, he said scornfully, "It's just a mistake!"  A moment later, when I got to the key argument about the Compliance Agreement, he glanced at the part that said a lender can collect for money inadvertently not collected at closing, and apparently without reading further, said loudly, "Rule for Defendant!"
     I was devastated, but I'm not a guy who quits a 100-mile race at mile 90 (well, except once at the Vermont 100 when I foolishly ran with bronchitis).  I filed a Request for Correction or Cancellation."  I do not know why the judge suddenly ruled against me just as I was about to make the slam-dunk argument.  I admit that I went home that afternoon wondering, Was he paid off?  Or did he just have to pee so badly that he couldn't let the trial go on one more minute?  Or was he one of those millions of boob-tube watchers who (evidently) think a company big enough to advertise on national TV can't possibly be that bad?
    Court rules allowed Quicken to make its own response to my Request for Correction, and the response was a doozy: 400 words of obfuscation and assertion that "Mr. Ayres is just rehashing arguments already properly ruled on."  And then, in the next-to-last paragraph of the second page, a quotation of the very text I'd been about to bring to the judge's attention--an audacious repeat of the same sleight-of-hand, this time addressed to the Court. (He signed the Compliance Agreement!  He owes!)  It was clearly a calculated bet (Dan Gilbert also owns a casino) that the Court would be duly persuaded by the con long before reading that paragraph and would react just as the impatient judge had.
     As I said, one of the hardest things about "real-life" tests of endurance, as distinguished from athletic events, is that you may never get the relief of having crossed a finish line.  This story has not yet ended, and I don't know whether it will be in my lifetime.  But I can look back at what I've done in the past (top-ten finishes in the New York Marathon, JFK 50-mile, and Badwater 135, among others), and I can tell myself with confidence, I'm too far down this road to quit now.  If Dan Gilbert can pay a guy $20.6 million to throw a ball through a hoop, he can damn well pay one 20th of 1-percent of that amount to make good on a wrong his company has done to an elderly couple.  We may have a country where flash and glitz and big money rule for now, but in the long run it is perseverance that will prevail.

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