Ocwen May Issue Warning That It Is Not a “Going Concern”

Dan Edstrom, senior forensic analyst for LivingLies has issued the following message that I think is worth reading. Perhaps the biggest point is that the interests of the servicer are opposite to the interests of the alleged creditor. It seems increasingly obvious that these servicers have no legal authority to collect any payments much less enforce them. Further, it is increasingly apparent that the “creditor” (frequently named as plaintiff in foreclosure lawsuits or beneficiary in non-judicial sales) actually has no loss and no default on the books of the creditor.

The trick here is that the servicer comes to court with the borrower’s payment records. But they don’t come to court with the records of the creditor because those would show receipt of payments. And when challenged to produce their own records as to what they did with borrower’s payments, they continue to stonewall. Every borrower has a right to know whether his payments were turned over to an alleged creditor. So the servicer ought to be compelled to produce those records of the servicer. If payments continued to the creditor after the borrower stopped making payments, then the real lawsuit should be by the servicer against the borrower for unjust enrichment — a lawsuit in equity that creates an unsecured claim unrelated to the mortgage or deed of trust.

My conclusion is that these foreclosures are actions by and for the benefit of the servicer and NOT for the benefit of the alleged creditor (Trust). And the fact that a GSE (Fannie, Freddie) has purchased the loan at some point does not make the loan documents correct.

The chain frequently starts with an originator who never funded the loan. In my opinion this means that no loan contract was consummated — having vast implications for enforcement, ownership and balance. It is highly probable that most of what the GSEs have “purchased” has been empty paper in which fictional sham characters were involved. The loans might just as well have named Donald Duck as the lender. Such paper should never have been released by the closing agent, much less recorded.

There is no substitute for 8 years of experience with these issues, which while convoluted are not impenetrable to people like Dan.

From Dan Edstrom —

Note that there are numerous reasons for selling non-performing loans back to the GSE’s:
  1. Improve operating margins
  2. improve liquidity
  3. Reduce [current] servicing advances [that cannot be financed]
  4. Recover more than $150 million in [past] servicing advances
Note that in all of these Ocwen is referencing (1) nonperforming loans and (2) advances related to nonperforming loans.
Ocwen is attempting to rid themselves of their own undertakings and obligations related to nonperforming loans, which is, among other things, to provide the “creditor” with the payments of principal and/or interest in order that the loans PERFORM for the creditor.
The loans are only nonperforming based on Ocwen’s side of the transaction.  To the creditor these loans are performing loans. (e.s.)
Once the GSE’s purchase the loans, they repay Ocwen the servicing advances.  But note that the GSE’s are not the actual creditors.  The GSE’s are acting in multiple capacities:
  1. Trustee for the “trust” that sold securities to investors
  2. Master Servicer (essentially they farmed out the servicing responsibilities to Ocwen)
  3. Guarantor (the GSE’s offer a guarantee of principal and/or interest to investors who purchased securities). This guaranty is a corporate guarantee from Freddie and Fannie.
Is Ocwen considered a creditor to the homeowners?  I don’t think so as Ocwen is a non-contract party.  Any payments advanced by Ocwen are not from the creditor.
Thx,
Office: 916.207.6706

26 Responses

  1. Only comment: Ocwen is using REMIC Trust info to file court action. IMHO, it is all bogus. As far as it being a “running concern”….tell that to the judge. They still look at the debt.

    IMO, the entire play is: no trust, no summary judgment on behalf of the trust. And debt collectors cannot collect a debt on behalf of the trust….entirely different action, procedure AND jurisdiction.

    No lawyer here, just another Ocwen victim….

  2. elex – I need to make a correction. A poa doesn’t make one an agent. It makes one an attorney in fact. Most poa’s are limited, that is, they expressly limit what one may do for another as att in fact. If I give you my power of att to do X for me, you’re not auth’d to do Y. Just X. It’ss thus important to actually see the (alleged) poa. WHAT was being authorized to be done?

    All agency, as you say, regarding real property must be in writing to satisfy the sof. Agents may not convey the interests of their principals – only an auth’d att in fact (by poa) may. There may or may not be agency agreements among these players, but it hardly matters* – because so and so will just execute whatever is needed (poa, agency agreement) as the such and such of whomever. imo. In order for mers to convey the interest of its principal, it would need to be its att in fact, not an agent. Mers is thee ben and executes in its own right as evidenced by the manner of execution of the assignments (at least the coll instruments. the note is something else entirely).
    TU is right. In fact, someone linked a case here last week (Johnson v WF, think it was) wherein the judge imo was just plain punative toward the borrower because he hadn’t made payments in a year. This made the bankster the proper party to holler about it. The bankster had only an alleged cert’d copy of the note (no nothing else to stand on) and that was good enough for the judge whom I’m going to call out fwiw when i have time. I don’t know if the borrower had an attorney. Didn’t look but thought not. But courts aren’t imo supposed to stand on procedure with pro se’s as they do with attorneys. When they do, they close the doors of the courthouse to those without counsel.

  3. Ill tell you all how i function – day by day
    This stuff eats at your soul if you let it
    christine i say this to you particulatly anf no judgement on my part we sre all our own keepers ” know thyself”

  4. @TU – with regards to the POA, by itself it is not sufficient. Most lenders are agents under the GSEs by powers of attorney. Many lenders are agents of each other by powers of attorney as well. This is where the STATUTE OF FRAUDS comes in. With mortgages, the lender and loan trustee can affect the chain of title with foreclosure; hence assignments and loan trustee substitutions are subject to SOF. As such, a written specific instruction is necessary, at the loan level, to comply. The courts (particularly in CA) purposefully blind-side the borrow by denying discovery of the loan-specific instructions from the (alleged) lender to the agent (to foreclose).

    In my case, in CA, the appalling court presented a ruling that agents aren’t subject to the SOF, and the suckpreme court denied review.

  5. Pay attn Christine i do not have the 1099c not issued five yrs out from foreclosure in 2010
    Im in court im disputing the authorized capacities ANd i rescinded before forecclosure before liquidation if the servicer ( emphasis added)
    Sure its an uphill battle in the snow on a bike with no breaks- but remember im a Brit and once we make up our minds to do something that, is that.

  6. SC
    Think about fdic and “steps into the shoes of”

  7. Deb..I understand the 1099a and the lack of a 1099c.
    Do you understand that there is no exit door at MERS?

  8. Deb,

    You have a 1099c, why is your entire life on hold? I’m not criticizing or judging. I want to understand how people function. I’m at a loss. I truly want to understand what was done to people here to be so helpless and hopeless. I’m puzzled. I’m puzzled by this entire crowd on LL.

  9. It goes with jesinoski

  10. I learned a new catch phrase recently which i really like
    ” will be held to the strict proof thereof” isnt that refreshing.

  11. Ok Christine
    Dont take this the wrong way but the huge deal re 1099a is not just the fact that the servicer issued it- only the lender can, which is fundamental and a very huge deal with regards to its context in my cases(s) and also against the postures taken in court by Parties devoid of authority but for a chain of ” under the penalty of perjury” one or two retroactive signatures claim thereto, not to digress too much- my docket sheets are as long as your arm , hence i also make a huge deal out of ” each case is inique and different ” because of the court pricess it was dragged through.
    we look to support one another on here and share a few ideas fur research to see if it actually may help anyone into their OWN research and how it may apply to their unique case.

  12. Dan, claiming that Ocwen is becoming a going concern is absurd. They may have some leverage issues, but it appears the investors were posturing to grab more of the kitty, which they have.

    Ocwen is up 75% since January. I am pretty sure if they were on the way out of business many folks – that are far smarter – would be sitting on the stock to hold it down while waiting for the payday.

    Get it together and stay focused.

  13. Deb,

    You’ve made a huge deal forever about a non reportable 1099a. What am I missing?

  14. So do you get where im going with the 1099a
    The servicer is not the lender ans btw where is the 1099c

  15. Does it look like Ocwen is going to declare bankruptcy? They are one of the worst servicers out there. Back dated letters, no responses to homeowners they are supposed to be servicing, wrongful foreclosures, illegal fees, etc. Look forward to them going belly up.

  16. Ok. If no one wants to talk….I shall ride.

  17. Now.does anyone want to talk about who is foreclosing on you?
    Or what the sellers estate has to do with it?
    Apparently they have issues with POA for Trustee without trustee of said estate aauthorization to.

  18. They need me to admit (Or not deny) I am a borrower …….
    WHY?

  19. Yep! They have POA for borrower only .
    I have alwAys been the kind of “Just say No” kinda gal myself.

  20. Great Analysis TU!
    Its like beating yourself up.

  21. The points Dan and Neil make are interesting. Servicers usually have a right to collect [file a lawsuit] under the agency doctrine and legal theory. It allows an actor to act in place of the “principal” for all or limited purposes. Courts don’t have a problem with this ordinarily.

    However, as we continue to press into the minds of the readers and borrowers, litigation is the only means of sufficiently testing the veracity of any document, whether offered in a court filing by the servicer of the owner of the note rights, PERIOD.

    Read our recent article in which a New York sitting Judge in a Congressional hearing criticized the means and methods that state allows in proving up foreclosures. He criticized bank attorneys who did not “know who owned the Note.” States that allow “attorney vouching” as CRD has identified the practice, must be challenged, including NY, NJ, MD and others. NOTE: Attorneys for suing banks are NEVER percipient witnesses of anything done years before. To allow this practice in the pleading stages as too many states allow, defeats the purpose of the evidence code protections against using witness to substitute their views for the actual witnesses who saw the documents created, signed, etc. All such suits by banks based on this fabrication of evidence should be challenged by demurrer, motions to strike, etc.

    For litigation assistance, call Consumer Rights Defenders – 818.453.3585 today and ask for Sara or Steve.

  22. If someone attorns, they shift and twist information, if they are licensed to attorn, they do it regularly, one of those anything you say can and WILL be used against you.

    If you step back, many of us expect due process, but we get administrative process.

    Like a teacher admonishing you for misspelled words, without dealing with the content of the paper.
    (I even spelled misspelled as mispelled)

    The court admonishes the answers to a suit because of procedure without dealing with the intent of the paper.
    If you hit me, and I sue me for hitting you and I say I didn’t hit you, and you say, I did and I didn’t object, I’d be considered the loser for not doing another objection and for not stating a cause of action on a suit you brought against me and I didn’t do anything to you. No thing.

    That’s the problem I have with the system, it’s not article three constitutional courts, and anyone can bring a suit and if you don’t prove your negative according to the rules, you will be considered the loser.

    According to some here, you attack first, you sue the one who hit you first, and make them prove they did not, and if they are good at what they do, you’d still be considered the loser because they hit all the time and they know the procedure and can state a cause of action and provide the elements and you still will not know to object in a timely manner to their lies and will still be the loser.

    What is judicial and due process about that?

    We are not dealing with law, it’s a business, and businesses do not get audited unless and until they are caught doing something they have no business doing.

    They are bound by the business code. Their people are not exempt for what they do, if you see the criminal aspects of it, and so many see them as a ‘law’, ‘legal’, ‘justice’ venue that they’ll never see them as a business.

    I know there is no statute of limitation on fraud. So anyone saying I lost my home when it was stolen, there is no statute of limitation of fraud I don’t care what a business called a court has in their records.

    I know that no law impairing the obligations of contracts shall be made.

    I know I can enforce my own contracts, and no one can force a contract upon me.

    I know if someone is going to do a thing for another, there is a power of attorney to do it.

    I know the law firms have been supposedly given (I haven’t heard anyone seek this info in discovery) power of attorney to act for a bank or a servicer.

    If a law firm was given power of attorney it was not business to law firm, it was employee to employee. Someone working for business, completed the power of attorney information and handed it, full or limited to someone working for a law firm. Real name to real name, but did the one working for the business have the authority to issue the power of attorney, and did the one who works for the law firm and received it have authority to delegate that power to anyone else?

    So, Bank of DontCare has an employee, I opinion, the employee work in mortgage settlement department, who issues a power of attorney for Bank of DontCare, but I opinion that employee, Jane Doe did not have authority to do it, I opinion, the CEO probably has to have authority from the Board of Directors to give Jane Doe power of authority to act for Bank of DontCare in the mortgage settlement department and I opinion, “no Board of Directors is going to give a CEO power of attorney to delegate that authority to any employee to do anything on behalf of the bank”.

    I also opinion, that if such employee, Jane Doe had been given this authority to do things on behalf of Bank of DontCare, she’d have to pass that authority to someone outside of the bank to act on its behalf, which means Bank of DontCare has a contract with specific law firm to act in a limited capacity for their interest. Now Jane Doe doesn’t give LawFirm the power of attorney, she doesn’t have that power to delegate power, so back up to the CEO or Board of Directors, someone hired this law firm to represent this Bank of DontCare, and whoever hired them, there is a contract that the law firm represents either the entire bank or the mortgage settlement department.

    Someone had to give the LawFirm employee power of attorney to act. Was that given to one attorney or many attorneys at the same time?
    Now outside of that, someone is going to step over the line and do things on my behalf.

    Yes, for me. They are going to go to the county, and transfer my property from me to Bank of DontCare, and that’s where I claim issue.
    I don’t care about their contracts with each other, which I opinion do not exist, and I opinion they don’t even have the authority to do what they do when they claim the bank in their client, but when I purchased the property I didn’t give Power of Attorney to anyone, not even the trustee, so the trustee cannot give power of attorney to anyone to transfer my property in the county records from me to another.

    As for the judge who sends a hired hand to make me leave the property, that’s official oppression in my opinion because why would they do that unless they want to make me enter into their jurisdiction to stop them from doing the thing.

    If I don’t want to enter into your world, I opinion it’s criminal to force me to contract with you to stop you from doing something against me.

    That is in my opinion why RICO is alleged. So many of us are just not warriors and do not want to be pulled into conflict or forced to fight false witnesses.

    We are peaceful.

    The remedy is not in the court. It’s a business. When you enter, by gesture you have a contract, and now you are performing the obligations of a contract you created with them because someone else created a contract with them and forced you to be pulled in.

    Ibanez did not go, his home was taken, but no one could get clear title because Ibanez never contracted with the court to have them steal his home. So the recipient of stolen property could never get a clear paper claiming the property was theirs, cause they purchased stolen property.

    People were told they assume a risk purchasing forclosed property, and many want to quiet the title acting as if someone abandoned it.
    It is clear I did not abandon, it is also clear I do not know how to fight, and do not plan to learn. It is also clear that if robbed, there is no statue of limitations on fraud, and just as subject matter jurisdiction can be called at any time, these cases are open, they never close, and no lawyer will tell you that. I know a man that divorced, his wife died three years later, he ended up in jail for 10 years more, and his mother-in-law used his divorce case of her dead daughter to hire an attorney to deal with paternity of the children named in the divorce.

    These cases never close, it is never a constitutional court, it’s a business venture where people are passing assets. When someone determines they’ve been robbed or someone acted on their behalf without authority, they usually file complaints and state their remedy.
    If you rescind and need an answer, as a business they owe you one, and you use the other agencies put in place to monitor those business activities to make them give you an answer.

    If someone does something they should not do legally or lawfully, they are criminally liable.

    Do I know? Yes I do, but I can’t say how I know, this is not the place for it, but if someone does something criminal, you can usually get them to undo it and leave you back in proper standing.

    If I have you information, name, address, phone number, where you work, or whatever, and I don’t have power of attorney to act for you or conduct business for you or enter contracts for you, then I have your identity and I’m using it without your permission, we all know the word for that, and that is the proper word….you can’t use my identity to conduct business, enter contracts, etc, without my consent…ie we need to have a contract for you to do those things.
    (otherwise you might as well get credit in my name, too)

    No I didn’t file any taxes using your forms, but yes, someone used my name and transferred my property to another and didn’t have power of attorney.

    So yes, a man with a gun made me leave the property. I hardly call that abandonment. It’s a terroristic act to force someoen to leave a building The man or woman acting (yes acting as a constitutional judge but performing administrative procedures) has no legal power to make anyone leave their property for any reason, especially by threat of having a stranger put their hands on you to move you.

    I dare anyone to show me the authority that black dressed man or woman has legal/lawful authority to issue that command of harm.
    I dare you, and I’m not talking business procedure just because the business assumes you have a contract with them and within that contract they claim the power to act.

    Who has that kind of power and permission and authority, and how did they get it; I opinion, it wasn’t given by a governor, mayor, or any other state agency. Where did it come from? Of is it your belief that they have it, the only power they have to use it?

    You don’t hear me.

    I know nothing. I do not know legal things.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, In Jure Proprio, Jure Divino.

  23. I am with you Christine. 100%!
    See here and here and here ….
    How is a Judge or Homeowner to decide what set of records can be relied on. Easy enough… the homeowners records. Its not like they are smart enough to produce forgeries on bank letterhead. But when trapped the bankster will accuse them of just that and threaten them with a class X felony and prison.
    I never could be bought or blackmailed…that’s problematic for them.

    Attack the Contract!
    Take a Bite out of Crime.

  24. “The trick here is that the servicer comes to court with the borrower’s payment records.” False. Most of the time, the servicer is unable to come up with a correct accounting and even more unable to show how and where payments made by borrower and fully documented were applied.

    By now, and regardless whether in foreclosure or not and even long before defaulting, every mortgage holder in the country should have sued servicers to get the proper accounting. Once again, this editorial completely fails to address the most simple issue: was the contract adhered to? In over 90% of the cases, it wasn’t.

    It all boils down to contract.

  25. May be somebody can answer my question. How can the servicer what I have now proof that he has the right to collect , if the original lender/servicer is out of business.NO transfer letter from the original lender/servicer to the servicer now exist.

  26. Clearly Neil is singularly focus and if he only would take Ginnie Mae there is not guessing to the purchase of the loan Notes because it a fact that they cannot purchase. Yes the Holm case and re:Franklin case show the paperwork of Washington Mutual Bank loans did not have the correct documentation for Freddie Mac to be able to obtain a victory in court that the loan debt belonged to them as Wells Fargo was the servicer of the loans. However I don’t see legally how Wells Fargo could be the servicer after Sept 25, 2008.

    I believe the Federal Goovernment’s settlement of 952 servicemember SCRA violations in non-judicial States is away of trying not to expose the great illegal foreclosures of the government insure program.

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