Consumer complaint received 2018-07-24
Company: Ocwen Financial Corporation
State: IL
Product: Mortgage
Sub-product: Conventional home mortgage
Issue: Struggling to pay mortgage

Complaint:
We, XXXX XXXX XXXX and XXXX XXXX XXXX, signed a Mortgage and a Promissory Note with XXXX XXXX XXXX. The purported loan closing date was XX/XX/XXXX with a XXXX # of XXXX. APN/Parcel/PIN : XXXX. The Subservicer of the Loan was XXXX XXXX XXXX XXXX and the Master Servicer was XXXX XXXX XXXX, XXXX. The alleged Loan Originator was XXXX XXXX XXXX. It has come to our attention that the named Payee on our Note was neither a source nor a conduit for funds. The naming of a Payee who is not the source of funding prevents merger of the debt with the note, which can only occur when the Payee and creditor are the same.

In most cases, the named Payee is different from the creditor ( s ) who funded the loan, intentionally or otherwise, and in our case, the recorded Mortgage names XXXX XXXX XXXX as the purported Lender who is different from the creditor who actually funded the loan - whoever that might be. The named Payee on the note and mortgage were never in privity with the actual funding source. 

Subsequently, on XX/XX/XXXX the Mortgage was purportedly assigned by Mortgage Electronic Registration Systems ( MERS ) to XXXX XXXX XXXX , XXXX XXXX, as Trustee for XXXX XXXX XXXX XXXX XXXX Mortgage Backed Certificates, Series XXXX, as nominee for Lender and Lenders successors and assigns, although XXXX XXXX XXXX had already gone bankrupt in XXXX. The mere presence of MERS is indicative of the flaws and defects that exist in the chain of title in regard to purported transfers of the Mortgage pertaining to our family home. 

The claims by MERS are false claims. MERS claims an agency relationship based upon a series of relationships. MERS has never pled or proven such relationship. There is no agency relationship. MERS has no members. MERS makes the False Claim that they are a Mortgagee. MERS has not shown any prima facie evidence or proven that the person who signed the Assignment of Mortgage for MERS was an Assistant Secretary of MERS. We have never been shown any prima facie evidence that the owner of our alleged debt is held by a member of MERS. We have never been shown that the records of MERS are accurate. 

In Illinois, a mortgage is considered real property. In order to have a valid and enforceable title to the mortgage contract there must be a complete WRITTEN chain of assignments from the lender to satisfy the Statute of Frauds. 

The initials XXXX XXXX for XXXX XXXX XXXX XXXX XXXX and their principal place of business is in the city/state of XXXX, which is the most unregulated financial District in the world. XXXX has been prosecuted by the Department of Justice for money laundering of billions of dollars of XXXX drug cartel money and has also been prosecuted for establishing illegal tax havens for wealthy individuals in attempts to avoid paying their fair share of federal income taxes. 

Evidently, our loan was purportedly securitized and that is consistent with the language in the first paragraph of the Promissory Note wherein it states that the Promissory Note was for the loan that I received. So, the Note that we signed pertained to loan documents ( contracts ) that had already been entered into by undisclosed 3rd parties that we have never been made aware of and that involved loan terms that have never been disclosed to us. 

Therefore, it is evident that our Note is only evidence of a loan and was not the actual loan. Despite our numerous requests, it has never been disclosed to us what the terms of this loan contract were/are, who the parties were/are, or who/are the actual Lenders. This was a table funded loan and in violation of the Truth in Lending Act ( TILA ) and Regulation Z and involved parties with whom we never had any privity of contract.

The term TILA means the Truth in Lending Act, 15 U.S.C. Sections 1601-1666j, as amended. TILA, which took effect on XX/XX/XXXX, is intended to promote the informed use of consumer credit by requiring creditors to disclose credit terms and costs, requiring additional disclosures for loans secured by consumers homes and permitting consumers to rescind certain transactions that involve their principal dwelling. 

The term Regulation Z means the regulation that the FRB promulgated to implement TILA, 12 C.F.R. 226, as amended. The term also includes the FRB Official Staff Commentary on Regulation Z, 12 C.F.R. 226 Supp.1, as amended.

In the course and conduct of offering and making mortgage loans, XXXX, in numerous instances, has violated and continues to violate, the requirements of TILA and Regulation Z in the following and other respects by : ( a ) failing to disclose, or accurately disclose : ( i ) the annual percentage rate, in violation of Section 129 ( a ) ( 2 ) of TILA, 15 U.S.C. section 1639 ( a ) ( 2 ), and Section 226.32 ( c ) ( 2 ) of Regulation Z, 12 C.F.R. Section 226.32 ( c ) ( 2 ) ; ( ii ) the regular payment amount, in violation of Section 129 ( a ) ( 2 ) of TILA, 15 U.S.C. Section 1639 ( a ) ( 2 ), and Section 226.32 ( c ) ( 2 ) of Regulation Z, 12 C.F.R. Section 226.32 ( c ) ( 3 ) ; ( iii ) failing to make the disclosures described above clearly and conspicuously in writing at least three business days prior to consummation of a mortgage loan transaction, in violation of Section 129 ( b ) ( 1 ) of TILA, 15 U.S.C. Section 1639 ( b ) ( 1 ) and Section 226.31 ( b ) and ( c ) ( 1 ) of Regulation Z, 12 C.F.R. Section 226.31 ( b ) and ( c ) ( 1 ).

In the course and conduct of offering and making mortgage loans and/or extending other consumer credit, XXXX, in numerous instances, has violated, and continues to violate, the requirements of TILA and Regulation Z, in the following and other respects by : ( a ) failing to make TILA disclosures in writing before consummation of a consumer credit transaction, in violation of Sections 121 ( a ) and 128 ( b ) ( 1 ) of TILA, 15 U.S.C. Sections 1631 ( a ) and 1638 ( b ) ( 1 ) and Sections 226.17 ( a ) and ( b ) and Section 226.18 ( a ) of Regulation Z ; ( b ) failing to disclose, or accurately disclose, the following information : ( i ) the identity of the creditor making the disclosures, in violation of Section 128 ( a ) ( 1 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 1 ) and Section 226.18 ( a ) of Regulation Z, C.F.R. Section 226.18 ( a ) ; ( ii ) the amount financed, in violation of Section 128 ( a ) ( 2 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 2 ) and Section 226.18 ( b ) of Regulation Z, C.F.R. Section 2
26.18 ( b ) ; ( iii ) the finance charge, in violation of Sections 106 and 128 ( a ) ( 3 ) of TILA, 15 U.S.C. Sections 1605 and 1638 ( a ) ( 3 ) and Sections 226.4 and 226.18 ( d ) of Regulation Z, C.F.R. Sections 226.4 and 226.18 ( d ) ; ( iv ) the annual percentage rate, in violation of Sections 107 and 128 ( a ) ( 4 ) of TILA, 15 U.S.C. Sections 1606 and 1638 ( a ) ( 4 ) and Sections 226.18 ( e ) and 226.22 of Regulation Z, C.F.R. Sections 226.18 ( e ) and 226.22 ; ( v ) the payment schedule, in violation of Section 128 ( a ) ( 6 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 6 ) and Section 226.18 ( g ) of Regulation Z, C.F.R. Sections 226.18 ( g ) ; ( vi ) the total of payments, in violation of Section 128 ( a ) ( 5 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 5 ) and Section 226.18 ( h ) of Regulation Z, C.F.R. Section 226.18 ( h ) ; ( vii ) whether or not a penalty may be imposed if the obligation is prepaid in full, in violation of Section 128 ( a ) ( 11 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 11 ) and Section 226.18 ( k ) ( 1 ) of Regulation Z, C.F.R. Section 226.18 ( k ) ( 1 ) ; ( viii ) any dollar percentage charge that may be imposed before maturity due to a late payment, other than a deferral or extension charge, in violation of Section 128 ( a ) ( 10 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 10 ) and Section 226.18 ( l ) of Regulation Z, C.F.R. Section 226.18 ( l ) ; and, ( ix ) the fact that the creditor has or will acquire a security in the consumers principal dwelling, in violation of Section 128 ( a ) ( 9 ) of TILA, 15 U.S.C. Section 1638 ( a ) ( 9 ) and Section 226.18 ( m ) of Regulation Z, C.F.R. Section 226.18 ( m ) ; and, ( c ) making consumer credit disclosures that do not reflect the terms of the legal obligation between the parties, in violation of Section 226.17 ( c ) ( 1 ) of Regulation Z, 12 C.F.R. Section 226.17 ( c ) ( 1 ).

By failing to disclose, or accurately disclose, material credit information, as described above, XXXX has engaged, and continues to engage, in deceptive acts or practices in violation of Section XXXX ( a ) of the FTC Act 15, 15 U.S.C. Section 45 ( a ). 

In the course and conduct of offering mortgage loans and/or extending other consumer credit, XXXX in numerous instances has violated, and continues to violate, the requirements of TILA and Regulation Z in the following and other respects by : ( a ) failing to deliver the required notice of the right to rescind consumer credit transactions in which security interest are or will be retained or acquired in consumers principal dwelling, in violation of Section 125 ( a ) of TILA, 15 U.S.C. Section 1635 ( a ) and Section 226.23 ( b ) of Regulation Z, 12 C.F.R. Section 226.23 ( b ) ; ( b ) engaging in the practices described above, thereby depriving consumers of the right to rescind, in violation of Section 125 ( a ) of TILA, 15 U.S.C. Section 1635 ( a ) and Section 226.23 ( a ) of Regulation Z, 12 C.F.R. Section 226.23 ( a ) ; ( c ) by failing to disclose, or accurately disclose, material information relating to, or  making misrepresentations regarding the TILA right of rescission, as described above, XXXX has engaged, and continues to engage, in deceptive acts or practices in violation of Section 5 ( a ) of the FTC Act, 15 U.S.C. Section 45 ( a ).

Consumers have suffered, and will continue to suffer substantially as a result of XXXX violations of TILA and Section 5 ( a ) of the FTC Act, as set forth above.

Despite our numerous requests, it has never been shown to us who the real parties in interest are and/or the identiy ( ies ) of the true creditors in regard to our Promissory Note. Therefore, no true creditor has been brought before us who can state a cause of action,  provide proof of an injury and/or direct causation that can be redressed by a Court with jurisdiction. We can not be in default when we do not know who is owed and for how much, if any. 

There appears to be no evidence in any jurisdiction that the named trust exists, or was organized within any jurisdiction. We can find no evidence of an original document organizing the trust, nor that the trust document ( Pooling and Servicing Agreement ) was ever completed as a written instrument with exhibits. We can no find no evidence or even suggestion in any document that the named trust entity was utilized by anyone in any financial transaction ( one in which money exchanged hands ) or business activity. Specifically, other than self-serving and apparently self-generated documents, there has been no evidence presented to us that would corroborate a claim that the Trust ever conducted business and more specifically ever acquired the debt. 

In the absence of any evidence to the contrary, including evidence of an actual financial transaction in which the loan was originally funded or purchased, none of the parties named in any of the recorded instruments, including XXXX XXXX XXXX , XXXX XXXX, As Trustee for XXXX XXXX XXXX XXXX XXXX Mortgage Backed Certificates, XXXX XXXX, is either the obligee of the debt nor a person legally empowered to collect the debt on behalf of the obligee based upon long-standing guidelines published by the XXXX ( XXXX XXXX XXXX XXXX XXXX XXXX ), the XXXX, and statutory law ( UCC- Uniform Commercial Code ) enacted as law in all 50 states.

The authenticity and authority of all signatures on our note are denied specifically ( see UCC 3-308 ). We are not expert document examiners. We understood that we were receiving a loan from the lender named within the four corners of the document. The substance of the transaction, however, was that the money used to fund the transaction came from the  proceeds of the sale of unknown third parties. 

Because the law regards substance over form, we take it to mean that we were deceived ( by fraud ) into signing a document when we were unaware, by reason of such fraud, that we were executing a document of that nature. We intended to sign up for a loan, however, the substance of the document we actually executed was quite different. Our lender was a stand in and never loaned their capital at risk of loss. The money was advanced by an undisclosed third party. While other forms of fraud make a note voidable, fraud in the factum makes a note void ab initio. 

As evidence that the Trust is empty is the fact that New York Trust law prohibits a Trustee of a Trust from accepting a late assignment to the Trust because it could cause the Trust to lose all of its tax benefits and cause a great loss to the Trust beneficiaries. So did the Trust actually accept the late assignment which the PSA says is an ultra vires act? We think not. 

Further, Ocwen Loan Servicing, LLC claims to be the current servicer of our purported loan. Despite numerous inquiries, Ocwen has failed/refused to provide evidence that an initial power of attorney exists wherein the alleged named Trustee, XXXX XXXX XXXX , XXXX XXXX authorized Ocwen to act and sign for the loans allegedly held in the mortgage-backed securitized trust on behalf of said mortgage-backed securitized trust, to demonstrate manifestation of the principals intent to enter into a fiduciary relationship with Ocwen where Ocwen acts on the principals behalf and subject to the principals control. 

Despite our timely Notice of Rescission of the Loan in accordance with the United States Supreme Court decision of XXXX v. XXXX XXXX XXXX , XXXX, we attempted to obtain a Modification Agreement and made numerous and timely trial payments to Ocwen, who purported to be the Servicer, at the time, for XXXX as Trustee for XXXX XXXX XXXX XXXX XXXX. Despite our full compliance with the terms of the modification agreement, and Ocwen/XXXX acceptance of our timely loan modification payments, Ocwen/XXXX has failed/refused to honor the modification agreement. Again, despite our numerous and repeated efforts to amicably resolve these issues, XXXX XXXX XXXX , XXXX XXXX has wrongfully scheduled a foreclosure sale set for XX/XX/XXXX at XXXX XXXX ( 15 CH 12854, Calendar 57 ), Circuit Court of XXXX County, Illinois. 

It should be noted that XXXX has been fined billions of dollars for their egregious actions, many of which are very similar to our case, and have entered into numerous Deferred Prosecution Agreements ( DPAs ). The Justice Department, the Department of Housing and Urban Development ( HUD ) and the Consumer Financial Protection Bureau, along with 49 State Attorney Generals and the District of Columbias Attorney General, have reached a {$470.00} XXXX agreement with XXXX XXXX XXXX XXXX and its affiliates ( collectively XXXX ) to address mortgage origination, servicing and foreclosure abuses. Also, Ocwen has entered into a {$2.00} XXXX settlement with the Consumer Financial Protection Bureau to address allegations of robo-signing of foreclosure documents and other fraudulent practices while servicing loans for over XXXX struggling homeowners. In Illinois, alone, Ocwen is providing troubled borrowers with more than {$91.00} XXXX in first lien principal reductions and more that XXXX will be eligible for a direct cash payments. 

In conclusion, it is evident that the many egregious and fraudulent actions that XXXX and Ocwen have been fined and prosecuted for, are also prevalent in their handling of our Mortgage and wrongful pursuance of this foreclosure action regarding our family home. 

Therefore, we respectfully request that an investigation be conducted against XXXX and Ocwen pursuant to the issues raised in this Complaint as well as violations of TILA, Regulation Z, and/or Section 5 ( a ) of the FTC Act including, but not limited to, rescission or reformation of contracts, refund of monies paid, and/or disgorgement of ill-gotten gains. We also respectfully request that we be awarded such relief as this Honorable Office deems  reasonable as a result of XXXX and Ocwens illegal and egregious actions and to prevent unjust enrichment.

Company response to consumer: Closed with explanation