Mistaken debt and the new rules of committment.

“If mortgage delinquencies are not yet clearly improving, it also appears they are not getting worse. However, a bad situation that is not getting worse is still bad” according to Jay Brinkmann, chief economist for the Mortgage Bankers Association. A Newsday article  by Emi Endo offers additional statistics as it reports that “nearly one in seven US homeowners fell behind on mortgages or were in foreclosure from January through March and roughly one in 10 borrowers nationwide, a record high, missed at least one payment in the first quarter of 2010.”

We are living in a homeowner’s house of cards. Our clients have no margin of error in their family’s financial planning. Some kitchen tables, essentially reserved for family gatherings and mealtime sharing for school reports, job talk and daily exchanges are now resting places for unpaid credit card statements, demand letters from creditors and other evidence of mistaken debts taken during times of plenty. Suffolk and Nassau counties sadly share rankings by the Federal Reserve Bank in the top 50 for distressed mortgage ratios.

Success stories amidst the statistics

Yet despite such seemingly oppressive and disturbing statistics, I witness success stories while working with clients who have received summons and complaints from their lenders seeking to foreclose upon their homes and families. These are not missteps of judgment made while blind to the risks and consequences of unforeseen dangers. These were purchases of homes made by fathers and mothers and people of all persuasion who committed to many of the American dreams and ideals that are almost inborn and inbred from coast to coast.

I like what I see and hear when a new client calls and relive their experience and hope. These clients are the people who listened to our political leaders, our Presidents and Governors and bought homes, bought appliances, bought new cars and created jobs, new schools and new neighborhoods. Our clients waited patiently until they could hardly wait another instant and entered the board of real estate. We have now learned that the foreclosure crisis has invaded not only the subprime market but reaches into the nonprime loans and conventional marketplace. In our law firm, we focus in discussing these issues, not as potential bankruptcy matters and insolvencies, but as a platform to advocate and represent our clients who have received notices of delinquencies and foreclosure summons. Our purpose is to save these homes and investments from foreclosure..

New legislation encouraging

Our legislature has adopted laws, and our courts have enforced these laws. These are effective avenues that encourage homeownership retention but require new commitments on the part of our clients. You can keep your home your own, even in the face of months and months of non-payment. Many solutions and settlements depend upon your new commitment to maintain the stability of your desire to keep your home. Our judges have much less tolerance for the one sided and heavy handed position of yesterday’s lender’s demands to auction off your home.

HAMP and Treasury Guidelines, with servicer agreements, favor so many homeowners who partner their wishes with well placed actions and monthly submissions of income, residency and hardship evidence. Foreclosure settlement parts provide a steady hand and experienced leadership to afford the homeowner the necessary confidence and increased support to keep their homes.

This hopeful message leads to the predictable conclusion that our clients’ closings, their dreams of backyard barbecues and gatherings were not errors of our past. The lending criteria were piled with errors of judgment made by financial giants, many of whom have faded away. But each client who visits with us is a reminder of the strength of our dream of American homeownership. Our homes, shopping areas and office buildings remain as a constant reminder that yesterday’s goals are not to be forgotten.

Our lending and borrowing patterns and programs over the past eight years have saddled our neighborhoods and communities with an enormous sea of debt. In the face of this crisis, new rules have emerged. It is much more than wishful thinking when we say that these new commitments which are offered to save your home can reveal solutions and opportunities to keep home your own.


 

Unlikely Endings: Government struggles to slay the mortgage foreclosure dragon.

Two days ago, after tireless efforts to reach an amicable resolution to a homeowners’ mortgage default, the borrowers transferred title to their home to their lender in a process commonly referred to as a Deed In Lieu of Foreclosure. Many of our clients who have received default letters and correspondence from their servicers have read or have heard that this too, qualifies as a successful modification alternative.

Even a careless examination of this definition would lead many to share a similar conclusion with me that this is not a noble outcome. Were there other key issues to explore that went unanswered before entering into this settlement? We spent months and months discussing alternative options: submitting modification and financial statements, hardship letters, medical opinions concerning the clients, tax returns and pension statements. All this was intended to cause a program and allow this family to recover.

Although our best efforts may have been put forth, my clients gave up. We explored issues of short sale programs, the pros and cons of loan renegotiation, the tax consequences of this process because we were not yet in litigation with the bank. Notwithstanding, the end result was that the course of history was changed for this family, as well as dozens of families in the neighborhood as the stark reality of a deed in lieu of foreclosure challenges their property value when it is recorded.

Staggering Statistics
The trend in our neighboring communities of foreclosures and defaults increases despite reported Federal and State programs allegedly initiated to protect against the loss of our homes. Long island alone witnessed an increase of 3.5% in repossessions by the banks and a double digit increase from the March statistics. Experts can argue whether the servicers and lenders are loosening the requirements, but the numbers  remain staggering and even more urgent when considered in light of the current depressing job opportunities and lay-offs.

Under the Home Affordable Unemployment Program  effective July, 2010, the Treasury Department has enacted an entirely new payment relief program for homeowners who have lost their jobs. Under this program, an eligible homeowner can request a forbearance plan to temporarily suspend their monthly mortgage payments for a minimum of 3 months. These borrowers must meet the HAMP eligibility criteria, have lost their job, receive unemployment benefits and request this forbearance plan before they miss 3 monthly mortgage payments. The publications emphasize the non eligibility factors apply to those in a permanent HAMP modification and it similarly does not apply to FNMA, FreddieMac or FHA serviced loans.

An outraged judge acts

The warm sounding initials of this new Federal effort may soon become another largely ineffective tool that will produce little impact on an ever increasing, struggling American family destined to face the hardships of mortgage default. Our New York State Laws offer considerable protection for these families and friends who have received a foreclosure summons and complaint. In the recently reported opinion by the Hon. Jeffrey Arlen Spinner in a case entitled Emigrant v Corcione,
the Court squarely denied summary judgment to the bank and rejected its request to appoint a Referee to sell the home and awarded $100,000 in damages to the homeowners. Problem solved?? Hardly! We will be unable to entertain the decisions which will be reached in the underwriting offices of our mortgage lenders after debating the outcome of such a decision.

Nevertheless, we are certain that as more and more homeowners become aware of the potential to keep their homes, even when faced with mortgage arrears, loss of jobs and other hardships, and as the protections afforded in our Courts become more widely accepted in the mandatory foreclosure settlement parts, we can make our mark and take aim at the rising tide of foreclosure sales and repossessions which are destroying our American dream. We can turn the negative into a positive despite the service of a foreclosure summons and complaint. We can witness the constantly changing environment which allows for good faith discussions to settle monthly mortgage arrears. On your calls to our office, we can emphasize that the broad possibilities of this complex problem are truly containable and we can work through this ordeal together.
 

Mortgage Foreclosure: A Family Affair

In  the course of many client conversations, new phrases and areas of pointed discussion focus on the grim topics at hand for family life. Many face great struggles and contemplate their survival after the early dawn and late evening arrivals of strange faces delivering thick booklets with colored construction papers. These publications appear to be offering a seemingly transparent hint at a glimpse of “Help for the Homeowner,” only to be found concealing their true object and intention: to take away your house.

Their circumstances are much like those of many others. The mortgage has not been paid this month, nor the last month. More than likely, the mortgage has not been paid in months and months. Hundreds of agonizing days, thousands of hours spent worrying about finances, mounting credit card bills, job security (or more precisely, insecurity) and otherwise few bright spots in our economic forecasts. The Federal Reserve Bank of New York published recent statistics papers  showing nearly 40% of the sub prime loans in our communities are in some form of default, with thousands more on the brink. Many more are yet to be included in these records as our property values receive mixed views of stability and equity during these challenged times.

The Treasury Department’s HAMP makinghomeaffordable.gov/  rescue plan has apparently failed, leaving millions of American families without a solution, and leaving us with the latest program, referred to as HAFA, the Home Affordable Foreclosure Alternative Program. Clutching at thick files of loan closing documents and more often, only scattered pieces that might have represented a mortgage application, clients and those in trouble call and visit in our offices asking “Where do we go from here? My spouse or partner doesn’t know about the summons; must we take our children out of their schools soon; how much time do we have left in our house and what can we do to keep our home our own?”

Many read last week that the semi-governmental agencies, Freddie Mac and Fannie Mae, reported some of the worst mortgage losses in their histories of operation. Delinquencies in the sub-prime and conventional loan markets reach into the trillions of dollars with little hope that this gushing well of adversity is readily capable of a lid to cap the substantial woes we face.

Our clients, in their phone calls and files, are the heart and soul of these statistics. These folks are in foreclosure actions and have taken action to keep their homes. The focus and notions of initiating legal defense to the receipt of a court summons are much more than fascinating ideas in scholastic circles. They are real live people, in all works of life who have no room for academic debate. Our clients are bus drivers, office workers, lawyers, doctors, wall street financiers, all of whom have decided to engage the courtrooms, judges and personnel in New York State Supreme Courts, and request enforcement of their rights to keep their homes their own.

To many, the process has worked, and they will eventually have witnessed and signed settlement and modification documents. We have challenged “sewer service” and asked our Judges to support these families in their quest to remain homeowners. Time after time, our judiciary has taken the lead and adamantly refused to allow foreclosure sales. Foreclosure Settlement Parts now preclude the auctions and mandate and require good faith attempts to utilize the HAMP and HAFA programs.

Servicers and investors cannot maintain a veil of secrecy as we look to uncover the true identities and discover who, what and where their alleged right to take away your homes are based. The loss of a home is not a certainty. Friends, family members and partnerships, all working together are able to engage the seemingly conflicted paths with their lenders and develop real changes in the foreclosure activity. Confidence in the defense of a foreclosure action is a family affair. A daily shift can be seen in the phone calls received in our office for once you make the decision to take action and save your home. Things can only get better. It’s a family affair.


 

"Home Free?"

In my efforts to remain current on all private and government trends and currents, I have come across some interesting, if not required, reading. The United States Department of Treasury, under Help for America’s Homeowners, Making Home Affordable Program, published on March 29, 2010, Home Affordable Foreclosure Alternatives - Short Sale and Deed in Lieu of Foreclosure Update says regarding short sales: “The options help preserve the condition and value of the property by minimizing the time a property is vacant and subject to vandalism and deterioration. In addition, these options generally provide a substantially better outcome than a foreclosure sale for borrowers, investors and communities.” U.S. Treasury Department building

Another interesting quote comes for the NY Times Sunday Opinion, April 11, 2010, but this time we read the published statements from a former Secretary of the Treasury and former director of Citigroup…”We all bear responsibility for not recognizing this (financial crisis), and I deeply regret that….” And his colleague, Charles O. Prince III, former chairman and chief executive officer, Citigroup…”I’m sorry that the financial crisis has had such a devastating impact on our country. I’m sorry for the millions of people, average Americans, who have lost their homes. And I’m sorry that our management team, starting with me, like so many others, could not see the unprecedented market collapse that lay before us.”

Apologies, short sales and lost homes, now we are literally “Home Free”. Circumstances being what they were, millions of Americans entered into the housing market during the years of the Bush Administration, with mortgage bankers creating “home free” opportunities- no income, no assets needed or required; no need to consider repayment or the consequences if the market collapsed. No need to pay heed to the model makers in the financial marketplace whose responsibility to oversee and render opinions would have laid bare the recklessness of the mortgage products being sold to our American families.

We now witness the results. Another reading requirement is to view the reports of the Financial Crisis Inquiry Commission. This commission has as one of its duties a direction of its process to enable the government to assist the reform and correction in our financial marketplace. Aside from these apologies, commission duties and recent supplemental directives to move forward with short sales and lost homes and titles, we must return to the solution.

For the past two years, we have made great strides to struggle against the banks’ foreclosure activities and have received tremendous benefits in our New York Courts. Our judges, court clerks and attorneys participate in daily foreclosure settlement parts, implementing the progressive HAMP programs which are evolving into solutions for many homeowners who have chosen to exercise their rights and remain in their homes. Those eligible borrowers have seen a slow and steady up-tick in the number of families destined to survive the unannounced visit by a process server with a foreclosure summons and complaint.

Foreclosure actions are now met with a rising tide of suspicion and investigation in our courts. These lawsuits are now required to proceed with a due recognition that our homeowners and families have a set of rights that cannot be routinely and cavalierly trampled upon by nameless and unaccountable lenders. Those families who entered the front door “home free” and have suffered the indignities and break ups caused by the errant judgment of lenders and financial leaders, now see that these dreams of homeownership will not make them “home free”.

These newly published regulations are not in any way a set of solutions for our homeowners. It is a return to the past failures of our government, by allowing and encouraging another lost home. Washington tested the waters and compiled a series of rules and regulations for mortgage lenders and eligible borrowers to follow which have ultimately allowed hundreds and thousands of families to remain in their homes, communities, schools and neighborhoods. With these latest procedures, it has created a diversion for implementing the solution which is so very vital to the success of the HAMP program.

We are well aware of the current and ongoing tidal wave of defaults and foreclosures, and we are also well educated now to see that the current recovery allows for much optimism. By utilizing the efforts and programs now in place and defending against an unopposed foreclosure action, the current movement towards foreclosure and short sales can be avoided. We must keep your home your own and we can do so. Your visit to our office can provide the opportunities and solutions for success. You can finally be “home free”.

 

A Portfolio of Broomsticks

In a March 2010 publication from the Office of the Comptroller of the Currency, (Office of Thrift Supervision, Washington D.C., fourth quarter 2009) performance data confirms “the increase in seriously delinquent mortgages was most pronounced among prime borrowers, where the number of seriously delinquent mortgages increased by 16.5 percent.” More reading gives little hope for success with the manner in which loan modification and loss mitigation programs are handled when it is stated that “servicers reported that they expect new foreclosure actions to increase in the upcoming quarters as many of the mortgages that are seriously delinquent may eventually result in foreclosure as alternatives that prevent foreclosure are exhausted.”

Those who have seen limited success in trial payment modifications have not received permanent help. “Short sales continued to grow as an alternative to foreclosure... more than doubling from the same quarter a year ago.” We are not surprised. Neil Barofsky, the special inspector general for the Troubled Asset Relief Program(TARP) was quoted in the Associated Press article by Alan Zibel that the “lack of planning, has resulted in constant changes that have bewildered the more than 100 participating mortgage companies”.
 

Standing back and looking over our shoulders at these comments and summaries clearly evidences a series of salvage plans, almost doomed to failure from their inception. Millions of families, trillions of dollars, banks, servicers, homeowners and Obama Administration officials are taking aim at the mortgage and foreclosure crisis without any commitment to succeed. This week, many have seen new headlines, with new life boats launched to underwater mortgages and families struggling against the wave of foreclosure actions. The Federal Government publishes eligibility requirements for unemployed borrowers who have not missed more than three payments, are receiving unemployment insurance benefits, all with a mortgage loan of less than $729,750 and provides initiatives for a loan modification to these previously unattended folks.

Without spending much time on that program (are there really unemployed families in such categories??) we have yet another plan for homeowners whose principal residence has suffered the ravages of economic decline. Servicers now are charged with creating solutions which envision the write off of a portion of the borrower’s loan until it reaches a level where statistically, payment can be accomplished and rewards are provided to those who participate and complete three years of timely payments.

Other voices concur. David Streitfeld, writing in Saturday’s NY Times asks, "Will it work this time? Howard Glaser, a housing consultant says, “The housing market is the Vietnam War of the American financial system. The federal government is in so deep, they have to keep ramping up to find a way out.”

We have watched hree years of initialed programs, HAMP, HAFA,TARP,  during three years of Treasury Department. We have listened to FDIC officials and Administrators of National Banks. We have read three years of Mortgage Metric Reports, These all come from extremely educated and experienced federal officials, with well placed initials and highly valued post graduate degrees, all collaborating to provide and originate home retention programs, looking for eligible borrowers to participate in loan modification programs. Yet, the power, speed and intelligence of these plans is tantamount to placing bets on which witch has the fastest broomstick. There is no window at Aqueduct or Belmont or the jai-alai or dog tracks engaging in such wagers. The portfolio of salvage plans are not reaching the servicers and the lenders and the mortgage backed security trustees.

Simply stated, whatever is being done seeps through in mysterious and unaccountable manners and platforms. Calls to our lenders are overwhelmingly met with little success. Recent client visits to our offices have witnessed foreclosure actions that went unanswered for the past several years, with referees and foreclosure auctions on the horizon. Foreclosure defense litigation for these families is a current focus and feels uncomfortable at first.

But for these underwater homeowners, jumping into shark infested waters and hoping to stop the judicial sale of their homes is the only means of survival at this point. Judges, foreclosure settlement court appointed referees and attorneys and court clerks are now called upon to enter this new world of foreclosure defense litigation. It is possible that an imminent sale can be postponed and that your home can be saved.The only guarantee is that if you do nothing, nothing will happen to stop the foreclosure sale. This portfolio of broomsticks, some might argue, is perhaps our best hope in a system where modification files are handled by faceless and nameless, sometimes even foreign, servicer and bank representatives.

However, with the mandated New York State laws and foreclosure settlement conferences, and with committed court personnel, delays can be allowed and foreclosure sales can be halted, even if only on a temporary basis. This allows time for the banks to review our submissions and consider evidence of ability to repay. The fears and paralysis of a visit from a process server and delivery of the foreclosure summons and complaint are genuine, but ultimately can be tempered by a strong commitment for negotiation and investor review. Many mortgage holders have reacted to the federal programs and contracted to participate in reviewing eligibility for success. These plans and blueprints can be modeled to “Keep Home Your Own”.

 

When a tree falls, the monkeys scatter

Our Federal Government has already failed many American homeowners in its stated effort to halt the massive foreclosures on the books today. Its inability to mandate action has left American home owners scattering like monkeys from a fallen tree. Now, the federal government has enacted an extension of these disastrous programs. It now provides us with yet another initialed program, H.A.F.A., the Home Affordable Foreclosure Alternatives Program.

After enacting H.A.M.P, the generally ignored Home Affordable Modification Program, one would conclude that the Treasury Department, some thirteen months later would offer additional tools to help an already mortally wounded nation reeling in economic woes beyond its imagination. To the six million families and homeowners who are behind in their mortgage payments and at risk of losing their homes, HAFA should read that they now can be soothed and calmed as the easing of the short sale process will restore order to their lives.

Short sales to the rescue?
In the short sale process, we are told that these borrowers may receive pre-approval by their lenders to sell their devaluated homes at realistically stipulated prices below the amount owed on their mortgage loans. This would allow them to market their homes with a reasonable degree of certainty and with deadlines to keep these mortgages from creating new disasters in their lives on a timely basis.

Skeptical readers however, bear in mind that under HAFA, these families who lose their homes, dreams and credit ratings may be eligible to receive up to $1500 for moving expenses. Some might argue from this that the Treasury Department has changed its direction and its intentions of keeping Americans in their homes through the implementation of its guidelines and regulations that mandate home modification. Instead, it seems the government has reversed itself, by now seeking a no holds barred reimbursement to the lenders, banks and servicers.

These benefactors of the government’s largesse are the same financial wizards who miserably failed their customers by ignoring the existing mandates to modify loans and work out a troubled loan portfolio. The fall-out created by these lenders spreads even further and the screws turn even tighter as new listings enter the marketplace only to find the very same lenders declining mortgage loans because the comparative sales prices have decreased tremendously due to recent short sales.

This presidential initiative, announced only one year ago to encourage loan modifications and thereby making stability of our housing market a number one priority, now proves out to have fallen on the deaf ears of unreceptive lenders and servicers. These financiers seem completely unprepared to alter the delinquencies and foreclosures and the ragged remnants now beginning to unfold in programs like HAFA.

Unemployment still feeds the flames
Michael Winerip's New York Times, "Generation B" article tells how a group of New Yorkers interviewed a year ago after losing their jobs were doing one year later. It comes as no surprise that nothing good happened. An executive who has been unemployed for the last twelve months stated quite simply, "I did not get a job until this January and it's only temporary. I was just renewed for two more months, so that's a relief for now."

His situation might have turned out differently had the Obama directives for renewed hope in the loan modification programs been sustained. Homeownership drives our economy, creates jobs and supports consumer confidence. New washing machines, added dormers and carpenters actively swinging hammers are our ladders of hope.

These dreams have also been scattered by the fall of the loan modification program. FICO scores, credit ratings, and home values are plummeting while delinquencies, bank repossessions and job losses continue to convert new statistics in our lives. Ellen Yan, writing for Newsday,
said it best..."snow slows foreclosures. Not only did it delay traffic, it might have slowed foreclosure-related filings quicker than any loan modification program." Few of us would have ever considered such a radical idea as to employ weather as a national solution.

We acknowledge that excesses ran uncontrolled in our real estate investment models, in our culture, and in our society. These excesses supported many of these delinquent loans. Whether we care to admit it or not, there are few, if any, who can stand blameless today and hawk that the ends justify the means. But this express lane into foreclosure must be stopped and the federal and state laws should be employed because they can be an effective method to solve our homeownership crisis. We must advertise that the solutions are already in place to save our homes. A foreclosure summons is an invitation to participate in the recapture of our goals. We need not turn to wholesale short sales and temporary fixes. We have solutions and procedures which can be discussed and if utilized, can stop the scattering of Americans from the fallen tree of the American home mortgage disaster.
 

Beyond the Math: More Hardships, Rubbernecking & Kleenex Ahead


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The statistics are reported everywhere we turn - 3.3 million loans which may qualify for loan modification have actually resulted in an incredibly meager number of modifications, helping only some 31,000 families. You do the math on that one, and don't spend too long looking for a calculator that can handle 15 digits. Off the top of my head, it sounds like the White House HAMP program to date has failed miserably for the millions of families who qualify but remain underwater.

Under the Obama plan, borrowers who meet the standards, rules and regulations enacted by the United States Treasury Department in 2009 should be able to modify the loans which they refinanced and purchased in 2005 and thereafter, during the "boom times." You can do the math on that one too, but I would say that considering the declining property values, destroyed credit ratings and uncontrolled unemployment, the Obama process just doesn't seem like it is working.

Richard Wilner, in last Sunday’s NY Post's article "Options to Keep Home Yours" announced that a new, untouched, unexplored and unreported crisis is the multi-billions of dollars that banks are carrying on their books for second mortgages. "Bank of America is exposed to $154.2 billion dollars; Wells Fargo is exposed to $127billion; JP Morgan Chase $124.8 billion; Citigroup $59 billion.” If banks do give the mortgage a serious rate cut to keep a family in place, then the value of the second lien on the home - which the banks carry on their books- could be wiped out. And that could be enough to make several banks insolvent. Perhaps that is why B.Of A. has concluded just 98 permanent modifications. The same is true of every major bank." Do the math on that one and I don't even have to comment.

It gets even better. Open the financial pages, go do your shopping on the internet and call your mortgage brokers. You’ll hear that mortgage rates in the United States have dropped to their lowest rates in the past 70 years. It’s just another well intentioned plan with fantastic mathematical possibilities down the drain. Borrow at lowest ever levels, yet deny access to these historically low interest rates. Like the old, yet trusted expression, it’s like giving away ice in the winter.

For any of those of you who have looked into the possibilities of re-financing or purchasing, you have personally witnessed some of the most expansive and intrusive questioning into your personal and professional lives. Refinancing could save you hundreds and thousands of dollars but yet this traditional source of credit is scarce and difficult to find, even for the very best and elite, much less the first time homebuyers or middle class families.

Taking this another step, Mr. Wilner extends a well pointed finger.."In an ironic twist, the only thing worse than HAMP's failure would have been the absolute success of HAMP. Can you image saddling the banks with 2 percent 40 year mortgages should there be inflation? If you think the banks are bad at lending money now, they would never lend money under those circumstance."

The rumor mill is working overtime. Neighbors are sitting at their kitchen tables and wondering if the little signs of disrepair in their neighborhoods are signs of foreclosure and arrears. When our friends are unemployed and tales are told in our elementary schools and upper grades of their moms and dads unemployment, it's a sign of the times. The super growth of mortgage arrears have created huge rubbernecks and tie ups for our major lenders to handle, even during their unprecedented struggles to remain viable and productive.

Go past the math and statistical reports. Look around and witness the unparalleled demise of the American home ownership program as we know it. My advice for Realtors, bankers, buyers, sellers, landlords and tenants, or anyone with a keen interest in the economy and a sharply honed desire to strike it rich is-----buy Kleenex. Simply stated, until we get the math working and producing loan modifications, we will all see a steadily growing demand for tissues to wipe away the tears.

As a post closing note to those of you following Judge Spinner's "Horoski Dismissal Case,” Carl MacGowan in Saturday's Long Island Newsday, reports that OneWest, the parent company of IndyMac Mortgage Services, admitted that it erred in sending the family a demand letter even after the judge dismissed the case." This case will be followed closely as it winds it way thru post judgment and appellate practice. Keep this one right on your radar screen because it may prove to be our modern day version of David v. Goliath.