In our connected world, social media is omnipresent and many people post frequent updates of their daily activities, family events, likes and dislikes on almost every possible topic. We can create a significant online biography by just posting regularly. Social media can be a wonderful platform to connect with friends, family, and new people through an almost endless number of topics. However, you have to remain aware that the posts and comments you make may remain on the internet indefinitely. The expression “the internet is forever” may seem silly but it may also prove factual on some level. Posts made in a moment of stress or annoyance, on what may at the moment seem only a passing comment on a personal situation, may have long-lasting ramifications.
Non-disclosure and Non-parity Clauses
For years, a common feature in settlement agreements reached in federal Court cases are provisions including non-disclosure and non-disparity clauses. These clauses often provide that the parties will not discuss the terms of the agreement reached and additionally, the clauses tend to include language that the parties will not disparage or make negative statements related to the other party. These clauses are generally made in general nonspecific language that do not lay out any specific forum that the provision may cover. In the last couple of years, we have begun to see that these provisions have been more and more utilized to also apply to the party’s online postings to social media accounts.
In this era of increased governmental and public scrutiny many banks, mortgage lenders, and even loan servicers have become increasingly aware of the potential harm to their reputations and their bottom lines due to negative statements made by parties that they are involved with. Internally, these organizations often deal with these concerns with the use of non-disclosure agreements and clauses in employment contracts. Externally, they are increasingly protecting themselves with non-disparagement clauses that keep parties external to these organizations from publicly disclosing and/or disparaging the actions taken by these organizations. They have realized that the sheer volume of dealings that consumers have had with their employees, if only statistically, could lead to a significant number of negative interactions that these entities would not desire to have openly related to the general public if possible to avoid.
Settlement Agreement Provisions
In the last year or so we have also begun to see these provisions appear in settlement agreements that are created to memorialize the terms of consent agreements reached in our state court foreclosure cases. Dealing with your lender/loan servicer can be a stressful experience on a normal day, but when you add the additional stress of defaulting on the loan, many of us could use an outlet for our frustrations. Venting your frustrations to your social media accounts may haunt you many years down the road when you are attempting to reach a resolution with that same lender. The danger of such a post is that it can act as a forgotten landmine laid in the middle of that dispute with your lender. The post can linger indefinitely in the “forever” of the internet only to go off unsuspectingly years later as you are attempting to resolve your foreclosure matter.
Initially, we had counsels representing the Plaintiffs in pending foreclosure matters bring up the idea of non-disparity provisions during settlement negotiations after the parties had already come to a basic settlement understanding. These initial provisions were limited in scope and mainly related to the borrowers not making any future adverse statements related to the Plaintiff. Initially, we had some success getting these provisions struck from the final settlement agreements due to the novel and unusual nature of the non-specific language utilized by the lenders. Over time we began to see these provisions become more sophisticated, broader in scope, and they also began to reach into the realm of social media. We also began to discuss these provisions with Plaintiff counsels earlier on in the settlement negotiations and they became less inclined to remove these provisions unless there was some particular argument that led to these provisions being unnecessary or not appropriate. More recently, many lender and loan servicers have made these non-disparagement provisions a key part of their settlement negotiations and they have become more generalized in language and nature and more encompassing in scope.
Recently during settlement negotiations, we had a lender’s counsel request a list of our client’s social media accounts so that his client could review them to determine if anything may have been said by our client in relation to that lender. We were able to push back on this demand because our client had already accepted the initial general settlement offer presented by the Plaintiff’s counsel and this condition had not been initially advanced or discussed prior to our client’s acceptance of the settlement offer. Had opposing counsel advanced this demand during the initial settlement discussions, we may not have succeeded in having this provision struck from the final settlement agreement. An additional concerning aspect to the demand was that the lender was not only looking to stop future disparaging statements made by our client, they were also contemplating looking back in time to see what if anything our client may have said in the past.
If lenders and loan servicers are now contemplating looking backward into online posts and social media accounts, borrowers need to be particularly guarded as to what commentary they choose to share about their lenders and loan servicers. Any negative commentaries may ultimately keep a borrower, who may desperately need the cooperation of his lender, from getting a settlement offer from that same entity. Remember that social media is a powerful means to connect with your friends, family, and contemporaries but it is also a public forum that banks, lenders and loan servicers are now wary of. Please don’t take to a public forum to express your displeasure with the servicing of your mortgage loan. Reach out to us here at Loan Lawyers and let us do that for you in the appropriate forum to get you the best result possible.
Contact Our Fort Lauderdale foreclosure defense lawyers to learn more.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 1,800 homes from foreclosure, eliminated $100,000,000 in mortgage principal and consumer debt, and have collected millions of dollars on behalf of our clients due to bank, loan servicer, and debt collector violations, negligence and fraud. Contact us for a free consultation to see how we may be able to help you. Call us at 1-888-Fight13 (344-4813).