Fake Notices from Fraudulent Mortgage Loan Servicers

Notices To and From Servicer Might Mean Nothing at All

by Neil Garfield

In homeowner finance, ALL claims start with notices from third parties with whom the homeowner has previously had no communication. My suggestion is that homeowners start challenging those letters, statements, and notices as soon as they arrive. Such challenges make “tracks in the sand” for later use in litigation.

But the real issue arises repeatedly because the condition precedent to foreclosure about which there is no dispute is that first there must be a declaration of default. And in the world of securitization, there is no creditor, loan account, or any loss or ven risk of loss arising from a homeowner failing or refusing to make a scheduled payment.

A declaration of default usually comes from a disinterested third party who does not represent an existing creditor who maintains an unpaid loan account receivable on its accounting ledgers reflecting real-world transactions in which it paid value. The equivalent legal value of that is you sending a notice of default to your neighbor when you figure out he or she did not make a payment to the utility company. The notice was sent but it has no legal effect. it is called a legal nullity.

So the question arises about what happens when you send a QWRT or DIVL to the company that was named as a servicer. the first thing that comes to mind for me, is that merely sending the QWR or DVL might be construed as a tacit admission that the company really is a servicer.

This logically leads to the presupposition that since it is a servicer it is really performing real servicing duties. And that logically leads to the factual conclusion that it is legally and rightfully acting on behalf of a true creditor. And since a true creditor obviously loses money when a homeowner does not make a scheduled payment, it follows that the default can and should be issued.

The problem with this analysis is that it leads inexorably to the conclusion that you should not respond to fakers. But since the players are claiming rights of administration, collection, and enforcement, they DO appear to fall under protections for consumers relating to those activities. But that still leaves open the issue of whether the named “servicer” is the only one who should receive the DVL and QWR.

That is the question I answered as follows:

Theoretically notice to the servicer is a notice to all under the regulations. The problem is that the company named as a servicer does not do the servicing. That is one of the subjects that is never discussed.

The company named as servicer probably does have some apparent agency or other authority to present the named Trustee of the REMIC trust. But since that trustee never has the right, power, justification or excuse to administer any affairs regarding the alleged loan account (which does not exist) giving them notice arguably is a failure to give notice to anyone who is real party interest. But it IS notice to everyone who is engaged in apparent debt collection activity even if there is no debt.

So sending the QWR to all who are “interested” (in a conspiracy to defraud) is probably a good way to go. The real problem is that the laws do not cover this scenario. A legal question is whether the extensive protections for consumers even apply to a company whose name is being used (with consent) to simply put a face on a scheme in which money is illegally collected without any right, justification or excuse? Anyone receiving the QWR is basically put on notice that they may be part of a future lawsuit.

The countervailing argument is that some of the proceeds are eventually used to pay off some of the money due to investors (the rest coming from sales of new certificates). But that argument fails because the investors who became “holders” of certificates are merely the payee on an IOU issued by an investment bank in a transaction wherein the investors waive any right, title, or interest to any homeowner payment, debt, note, or mortgage.

The bottom line for all this is whether there can be any legal collection activity without a creditor, a loan account or any risk of loss. Even the investors get paid the debt from the investment banker regardless of whether or not a homeowner misses a scheduled payment.

Foreclosure Daily News Update ⋅ April 18, 2022

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Facts About Bad Mortgage Loans

How significant a risk is noncompliance with consumer protection laws?

The mortgage industry is struggling to comply with consumer protection laws. A remarkable report published by the FDIC Office of the Inspector General reveals that during 2005 (which was the peak year of the mortgage boom measured by number of loans originated), 83% of federally supervised banks that made loans were cited for patterns of "significant compliance violations." The percentage was presumably higher for state-licensed, non-depository lenders who were responsible for originating 52% of subprime mortgages and are subject to a much broader patchwork of state regulation. Violations of consumer protection laws can result in rescission (effectively canceling the loan), defense against foreclosure, fines, penalties and (both civil and criminal) damages that can exceed the original principal balance of the loan.

You may download the report (Report Number 06-024) from the FDIC website. There are also additional reputational risks associated with charges of predatory and discriminatory lending. Investors - including anyone in the chain of title for whole loans and the securitization trust for securities - can be liable, even though the violator waste broker or originating lender. In other words, the investor can be held liable and suffer damages for actions outside its control and for which had no knowledge. What consumer protection laws does FRAUD STOPPERS PMA cover and how are these compliance requirements applied to a mortgage loan?

FRAUD STOPPERS PMA provides a comprehensive analyzes of electronic loan data to determine whether a mortgage transaction complies with over 300 federal and state consumer protection laws related to mortgage lending. Specifically, FRAUD STOPPERS PMA automated mortgage compliance audits reviews mortgage loans for compliance with the following consumer credit issues: truth-in-lending disclosures, usury, predatory lending, impermissible fees, interest rate accrual restrictions (such as negative amortization and balloons payments) and prepayment penalty enforceability.

It is important to understand that any number of laws may apply to a particular mortgage transaction. Knowing which laws apply is not a simple task, since it depends on how the lender is licensed or chartered. Licensed lenders operate under the licensing authorities of the various states with which they do business. Most states have multiple licenses granting lenders the authority to make loans. Each such license imposes different substantive requirements governing loan terms. For instance, certain licenses allow subordinate lien loans while others govern loans with higher interest rates.

In some states, more than one license may authorize lenders to make the same loan, although subtle differences in the consumer protection requirements apply to the loan terms. FRAUD STOPPERS PMA determines if lenders and brokers are properly licensed (and in good standing) or exempt, and then applies the correct laws based on that licensing status. It does this by leveraging its proprietary nationwide licensing database, described in the License Verification and Monitoring section of this site.

Chartered financial institutions—such as state and national banks and federal savings banks—are subject to different regulatory requirements. For instance, most chartered institutions “export” interest rates from their home state to the target state in which the loan is made. This results in a complex synthesis of both the home state’s and target state’s consumer protection laws —an analysis that is difficult to perform efficiently without automation. Likewise, chartered institutions may in certain cases preempt states laws and in other instances must observe them. Again, FRAUD STOPPERS PMA bases its reviews on how an institution is chartered and what permissible regulatory elections it is making.

Once the lender’s license or charter authority is known, as well as its elections, the review must consider the specific transaction terms—such as the APR, interest rate, loan balance, lien position, occupancy type, etc.—to determine which out of the several laws that might apply to the lender govern a particular mortgage loan. No other automated compliance solution provides this degree of detail and precision to its analysis, and this is the reason no other provider equals FRAUD STOPPERS PMA in quality.

 

 

Scope of the FRAUD STOPPERS Bloomberg Securitization Audit

FRAUD STOPPERS Evaluation for Violations of “RESPA” The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute, first passed in 1974. It requires lenders to give a good faith estimate (GFE) of all closing costs that borrowers must pay. It was designed to help borrowers from being forced to pay “hidden fees” at closing. Typical violations of RESPA include (1) Statutory Damages, (2) Attorney’s fees, and in many cases (3) Treble Damages [i.e., 3 times the amount.]

FRAUD STOPPERS Evaluation for Violations of “TILA” The Truth in Lending Act (TILA) requires lenders to disclose the terms of a loan, including the total amount of the loan, the annual interest rate, and the number, amount, and due dates of all payments necessary to repay the loan. The TILA also requires additional disclosures and places many restrictions on mortgages. The most often sought remedy under TILA is rescission of the loan.

FRAUD STOPPERS Evaluation for Violations of “FCRA” The Fair Credit Reporting Act (FCRA) was designed to prevent inaccurate or obsolete information from entering or remaining on a credit report. The law requires credit bureaus to adopt reasonable procedures for gathering, maintaining, and disseminating information. Commons remedies for violating FCRA are (1) statutory damages and (2) Attorney fees

FRAUD STOPPERS Evaluation for Violations of “ECOA” The Equal Credit Opportunity Act (ECOA) was designed to ensure that all qualified people have access to credit and prohibits discrimination based on sex, marital status, age, race, national origin, or public assistance benefits received.

FRAUD STOPPERS Evaluation for Violations of “HOEPA” Home Ownership Equity Protection Act state and local high costs. Federal (HOEPA), state and local high-cost thresholds.

FRAUD STOPPERS compares the loan data collected during a forensic loan audit to the calculated high-cost thresholds as defined by the Home Ownership and Equity Protection Act (HOEPA) and applicable state and local jurisdictions.

FRAUD STOPPERS Evaluation for Violations of “Underwriting Standards” The purpose of an underwriter is to determine whether the borrowers can qualify for a loan and if the borrowers can repay the loan. This determination of the ability to repay a loan is based upon employment and income in large measure, which is proved by getting pay stubs, 1040’s, W-2’s and a Verification of Employment and Income on the borrowers.

If an underwriter has evaluated the loan properly, then there should be no question of the ability of the borrower to repay the loan. Debt ratios will have been evaluated, credit reviewed, and a proper determination of risk made in relation to the loan amount. Approvals and denials would be made based upon a realistic likelihood of repayment.

The terms “abusive lending” or “predatory lending” are most frequently defined by reference to a variety of lending practices. Although it is generally necessary to consider the totality of the circumstances to assess whether a loan is predatory, a fundamental characteristic of predatory lending is the aggressive marketing of credit to prospective borrowers who simply cannot afford the credit on the terms being offered. While such disregard of basic principles of loan underwriting lies at the heart of predatory lending, a variety of other practices may also accompany the marketing of such credit.

Targeting

Targeting inappropriate or excessively expensive credit products to older borrowers, or to persons who are not financially sophisticated or who may be otherwise vulnerable to abusive practices, and to persons who could qualify for mainstream credit products and terms

Loan Flipping & Equity Stripping

Repeated refinancing of borrowers into loans that have no tangible benefit to the borrower. Can be the same lender or different ones. Loans and refinances whereby equity is removed from the home through repeated refinances, consolidation of short-term debt into long term debt, negative amortization, or interest only loans whereby payments are not reducing principle, high fees and interest rates. Eventually, borrower cannot refinance due to lack of equity.

High Debt Ratios

This is the practice of approving loans with high debt ratios, usually50% or more, without determining the true ability of the borrower to repay the loan. Can often be seen with Prime borrowers approved through the Automated Underwriting Systems.

High Loan to Value loans

Loans offered to a borrower having little or no equity in the home. Usually, adjustable-rate mortgages that the borrower will not be able to refinance out of when the rate adjusts due to lack of equity.

Fraudulently Caused to Execute Loan Documents

Adjustable-rate mortgage loan was an inter-temporal transaction on which Plaintiffs had only qualified at the initial teaser fixed rate and could not qualify for the loan once the interest rate terms change.

Deception, Fraud, Unconscionable

Is marketed in a way that fails to fully disclose all material terms. Includes any terms or provisions which are unfair, fraudulent, or unconscionable. Is marketed in whole or in part based on fraud, exaggeration, misrepresentation, or the concealment of a material fact. Includes interest only loans, adjustable-rate loans, negative amortization and HOEPA loans.

Stated or No Income/No Assets

Is based on a loan application that is inappropriate for the borrower. For instance, the use of a stated-income loan application from an employed individual who has or can obtain pay stubs, W-2 forms and tax returns.

Lack of Due Diligence in Underwriting

Is underwritten without due diligence by the party originating the loan. No realistic means test for determining the ability to repay the loan. Lack of documentation of income or assets, job verification. Usually with Stated Income or No documentation loans but can apply to full documentation loans.

Inappropriate Loan Programs

Is materially more expensive in terms of fees, charges and/or interest rates than alternative financing for which the borrower qualifies. Can include prime borrowers who are placed into subprime loans, negative or interest only loans. Loan terms whereby the borrower can never realistically repay the loan.

All claims and defenses the borrower may have against the mortgage lender, mortgage broker, or other party involved in the loan transaction.

FRAUD STOPPERS Evaluates Each File for Violations of “Common Law Principles”

CONSTRUCTIVE FRAUD

Material facts include the terms of the loan, whether there is a prepayment penalty, or any other information which a reasonable borrower would want to know before accepting the loan. Did the broker or loan officer or anyone working for the broker or loan officer fail to disclose any material facts to the borrower?

FRAUD AND NEGLIGENT MISREPRESENTATION

Were any representations, statements, or comments, written or made by the loan officer, broker, notary or anyone else who contradicted the terms of the documents?

NEGLIGENT MISREPRESENTATION

When a mortgage professional makes errors which a reasonably diligent mortgage professional would not have made, he or she may have made a negligent misrepresentation.

BREACH OF CONTRACT

The note and its attachments are a contract. The broker must follow all the terms of the contract such as the way the interest is calculated, and the penalties it assesses. Were there any terms in the contract which the lender failed to follow?

BREACH OF FIDUCIARY DUTY

And many, many, more…….

This is a court ready trial evidence audit & expert witness affidavit that you and your attorney can use to win your case.

GET YOUR AUDIT NOW

Breaking News - What the Bank Does Not Want You to Know: CONFIDENTIAL SETTLEMENT AFTER ORDER ON JUDGMENT inFlorida - CFLA Client Gets Huge Damage Award against JPMCB and WellsFargo for multiple fraudulent misrepresentations in loan documents and bylender[s] to homeowner[s]. The following is an exert from the Court's Orderin Florida. This case has reached CONFIDENTIAL SETTLEMENT andtherefore some information is redacted: "Defendants JPMCB and Wells Fargo were involved in fraudulent recordeddocuments in violation of 15 USC §1611, and is entitled to damages forclouding title and to cure/Quiet Title. Plaintiffs are entitled to the reliefrequested herein to quiet title and for award of costs under FS §57.041" Homeowner Quiets Title to Real Property in Florida Court and Liable forDamages for Fraudulently Recording Documents, Fraud, Misrepresentation