Livinglies's Weblog

The recent forced CFPB rebranding of FINTECH as a “servicer” creates a problem for the foreclosure mills — but only if someone brings it up.

Otherwise, the company that is named as being a “servicer” is accepted as a servicer by the court, which also means, by implication, that it is servicing an existing unpaid loan account owned by the other company named in the action — the claimant who is either a Plaintiff in a judicial lawsuit or a beneficiary in the nonjudicial lawsuit.

But if you take the customary stance of an experienced trial practitioner, you accept nothing alleged, asserted, or implied. You test every bit of it to see if the truth of the matter being asserted bears any resemblance to the actual truth.

And what I am telling you is that your current belief about the truth of the matter asserted is as wrong as the people asserting it. More importantly, I am telling you that in 99% of all cases, the foreclosure mill will (a) not answer your questions and (b) come up with an excuse for not giving the response you are entitled by law to receive.

And what I am telling you is that pressing that point will result in either an outright win — Final Judgment for Homeowner — or a confidential settlement in which the claim is drastically reduced. BUT you need to be prepared to go the distance.

Nobody is going to settle with you or your lawyer until the last second of the 11th hour. They do that to outlast the homeowner because it works.

So here is the statute under which CFPB is currently investigating and prosecuting FINTECH companies and other companies claiming to be servicers.

If the company is not actually receiving, depositing, accounting for, and distributing money from homeowners, it appears that it could still be called a “servicer.” But that does not mean that what is proffered in court as a “report” is admissible evidence.

That is because those functions are actually performed by other companies whose identity is hidden from homeowners. Those other companies (often referred to as “third parties”) are now “servicers” by definition under the recent CFPB ruling in May, 2022.

And that means the reports produced by such third parties under the letterhead of well-known “servicers” like Ocwen, PHH, SPS, SLS, Bayview, Caliber et al. are actually reports about reports from other companies. That is classic hearsay. In fact, if you want to be technical about it, it is hearsay on hearsay.

Where pro se litigants and lawyers screw up is that when proffered (or named in the pretrial catalog), they fail to promptly, promptly, and properly object. In plain language, that is what loses the case.

All written documents are hearsay because they can not be cross-examined. But such documents become evidence when they are offered, and there is no objection.

From 12 USC 5481

(15) Financial product or service

(A) In general

The term “financial product or service” means-

(i) extending credit and servicing loans, including acquiring, purchasing, selling, brokering, or other extensions of credit (other than solely extending commercial credit to a person who originates consumer credit transactions);

(ii) extending or brokering leases of personal or real property that are the functional equivalent of purchase finance arrangements, if-

(I) the lease is on a non-operating basis;

(II) the initial term of the lease is at least 90 days; and

(III) in the case of a lease involving real property, at the inception of the initial lease, the transaction is intended to result in ownership of the leased property to be transferred to the lessee, subject to standards prescribed by the Bureau;

(iii) providing real estate settlement services, except such services excluded under subparagraph (C), or performing appraisals of real estate or personal property;

(iv) engaging in deposit-taking activities, transmitting or exchanging funds, or otherwise acting as a custodian of funds or any financial instrument for use by or on behalf of a consumer;

(v) selling, providing, or issuing stored value or payment instruments, except that, in the case of a sale of, or transaction to reload, stored value, only if the seller exercises substantial control over the terms or conditions of the stored value provided to the consumer where, for purposes of this clause-

(I) a seller shall not be found to exercise substantial control over the terms or conditions of the stored value if the seller is not a party to the contract with the consumer for the stored value product, and another person is principally responsible for establishing the terms or conditions of the stored value; and

(II) advertising the nonfinancial goods or services of the seller on the stored value card or device is not in itself an exercise of substantial control over the terms or conditions;

(vi) providing check cashing, check collection, or check guaranty services;

(vii) providing payments or other financial data processing products or services to a consumer by any technological means, including processing or storing financial or banking data for any payment instrument, or through any payments systems or network used for processing payments data, including payments made through an online banking system or mobile telecommunications network, except that a person shall not be deemed to be a covered person with respect to financial data processing solely because the person-

(I) is a merchant, retailer, or seller of any nonfinancial good or service who engages in financial data processing by transmitting or storing payments data about a consumer exclusively for purpose of initiating payments instructions by the consumer to pay such person for the purchase of, or to complete a commercial transaction for, such nonfinancial good or service sold directly by such person to the consumer; or

(II) provides access to a host server to a person for purposes of enabling that person to establish and maintain a website;

(viii) providing financial advisory services (other than services relating to securities provided by a person regulated by the Commission or a person regulated by a State securities Commission, but only to the extent that such person acts in a regulated capacity) to consumers on individual financial matters or relating to proprietary financial products or services (other than by publishing any bona fide newspaper, news magazine, or business or financial publication of general and regular circulation, including publishing market data, news, or data analytics or investment information or recommendations that are not tailored to the individual needs of a particular consumer), including-

(I) providing credit counseling to any consumer; and

(II) providing services to assist a consumer with debt management or debt settlement, modifying the terms of any extension of credit, or avoiding foreclosure;

(ix) collecting, analyzing, maintaining, or providing consumer report information or other account information, including information relating to the credit history of consumers, used or expected to be used in connection with any decision regarding the offering or provision of a consumer financial product or service, except to the extent that-

(I) a person-

(aa) collects, analyzes, or maintains information that relates solely to the transactions between a consumer and such person;

(bb) provides the information described in item (aa) to an affiliate of such person; or

(cc) provides information that is used or expected to be used solely in any decision regarding the offering or provision of a product or service that is not a consumer financial product or service, including a decision for employment, government licensing, or a residential lease or tenancy involving a consumer; and

(II) the information described in subclause (I)(aa) is not used by such person or affiliate in connection with any decision regarding the offering or provision of a consumer financial product or service to the consumer, other than credit described in section 5517(a)(2)(A) of this title;

(x) collecting debt related to any consumer financial product or service; and

(xi) such other financial product or service as may be defined by the Bureau, by regulation, for purposes of this title,¹if the Bureau finds that such financial product or service is-

(I)entered into or conducted as a subterfuge or with a purpose to evade any Federal consumer financial law; or

(II)permissible for a bank or for a financial holding company to offer or to provide under any provision of a Federal law or regulation applicable to a bank or a financial holding company, and has, or likely will have, a material impact on consumers.

(B) Rule of construction

(i) In general

For purposes of subparagraph (A)(xi)(II), and subject to clause (ii) of this subparagraph, the following activities provided to a covered person shall not, for purposes of this title,¹ be considered incidental or complementary to a financial activity permissible for a financial holding company to engage in under any provision of a Federal law or regulation applicable to a financial holding company:

(I) Providing information products or services to a covered person for identity authentication.

(II) Providing information products or services for fraud or identify theft detection, prevention, or investigation.

(III) Providing document retrieval or delivery services.

(IV) Providing public records information retrieval.

(V) Providing information products or services for anti-money laundering activities.

(ii) Limitation

Nothing in clause (i) may be construed as modifying or limiting the authority of the Bureau to exercise any-

(I) examination or enforcement powers authority under this title ¹ with respect to a covered person or service provider engaging in an activity described in subparagraph (A)(ix); or

(II) powers authorized by this title ¹ to prescribe rules, issue orders, or take other actions under any enumerated consumer law or law for which the authorities are transferred under subtitle F or H.

(C) Exclusions

The term “financial product or service” does not include-

(i) the business of insurance; or

(ii) electronic conduit services.

12 U.S.C. § 5481

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

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