October 3, 2013

Several of our clients have recently received letters from Ocwen Loan Servicing in response to inquiries as to who owns the homeowner’s loan. The response from Ocwen is a form letter, which states: “There is no single investor of the loan. The loan is one of many in a securitized investment trust (with name of the trust). Ocwen is the servicer of the loan, and not necessarily the owner of the loan. Although the ownership of the loan may change, the ownership has no bearing on the servicing of the loan.”

Look at that series of admissions very carefully. We know that Ocwen is a servicer, and is never an “owner” of a loan. A servicer is (allegedly) working to service the loan on behalf of some owner. Who is that owner? Ocwen does not know, and admits that the ownership may change.

Servicing rights are conveyed by a servicing contract. Who is Ocwen working for? It does not say. What rights have been conferred upon Ocwen by whoever owns the loan? Ocwen does not say. What amount is the owner claiming is owed and under what facts? Ocwen does not say.

Ocwen does admit that the loan was securitized. This admission implicates all of the securitization issues, including authority of the servicer, whether the loan was properly transferred to the trust, whether there were any paydowns or payoffs of the note through insurances, credit default swaps, reserve pools, etc. depending on the current state of the law in whatever jurisdiction a foreclosure is pending. As you know, some states have case law which permits inquiry into the issues; some do not; and some are undecided.

This letter alone warrants intensive discovery in any foreclosure case in view of the admissions of Ocwen, which admissions generate a wealth of issues of fact for discovery and trial as well.

Thank you, Ocwen!

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com


October 1, 2013

As our readers know, we are heading into our 6th straight year of fighting foreclosures. Our legal network has grown to 42 law Firms nationally, and continues to grow.

We get literally hundreds of e-mails each week from homeowners who need assistance. However, more and more of these are from people who try to do the foreclosure challenge or defense on their own, wind up getting an adverse ruling or having their home sold, then coming to us asking us to fix the problem. We reviewed more than 25 inquiries today alone, and more than half were from homeowners had put themselves in exactly this difficult position. When a homeowner who is not an attorney who has either (a) done things improperly, or (b) not taken the proper steps by proper procedures, or (c) not filed papers on time, this makes our job more than difficult, more expensive, and with a more uncertain result.

At this point in history, foreclosure defense is rocket science. Notwithstanding the wealth of law as to substance on the internet, the rules of procedure are not, and one cannot learn all of the proper rules of procedure without both going to law school and routinely practicing in court. There is just no substitute, just the way I would never, ever, try to practice medicine, engage in engineering endeavors, pretend to be an architect, or engage in any other profession which requires intensive schooling, a professional license, and on-the-job training for years on end.

The other problem is that homeowners who are not attorneys have taken many cases up on appeal which have resulted in many homeowner-unfriendly decisions, which then makes it even more difficult to advance a credible position which is not accepted by a Judge because of a decision from a non-lawyer appeal which was not properly briefed or argued before the appeals court.

That said, it is unfortunate that we are not able to help certain homeowners who present us with a situation where they have tried to defend the foreclosure themselves, and have placed the case in such a bad posture that we are not able to assist. The proper thing to do, as we have said over and over again since 2008, is to retain an attorney early on, at the first sign of a foreclosure threat. The attorney can then structure the defense properly, instead of trying to dig the homeowner out from a litigation grave from which, sometimes, it is impossible to escape.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com