Response to QWR Response from Ocwen Re US Bank as Trustee of….hmmmm

So you have sent a QWR (hopefully a good one that qualifies as a Qualified Written Request or Debt Validation Letter) and Ocwen responds with a shotgun approach intended to intimidate the lawyer or homeowner who reads it. I recently did an anlysis and drafted a potential response for another lawyer representing a homeowner. I thought I would share it with you.

RESPONSE to QWR: Remember they are only required to answer questions not to debate you on your conclusions.

1. GMAC does not seem to have existed at the time (2013) they say it transferred servicing of your “loan” or “loan documents.” In 2012, during the mortgage crisis, Ally took its residential lending unit into bankruptcy in order to pay back the U.S. Treasury following its acceptance of bailout funds.[13] In November 2012, Ditech was formed from assets of Ally’s GMACRescap estate during the bankruptcy proceeding.[7]
2. Ocwen admits they know nothing about the origination of your “loan.” Yet they purport to know the balance, and have the right to service your account.
3. Their comment that assignments are not required as long as the MERS system is keeping track is absurd, not the law, and does not obviate the necessity of giving the homeowner the name of the creditor — if there is one.
4. They do not state the identity of the creditor anywhere in the letter. Thus they cannot state that they have been authorized by the creditor to administer or enforce any alleged loan contract. By what authority do they claim to have the right to service your alleged loan? What is the duration of their servicing commitment? Who is the Master Servicer, if there is one?
5. For reasons stated above it is possible that there could be an action for disgorgement of all money ever collected by Ocwen.
6. You must specify the reason that you think the accounting is in error. They are right about that. But you can say that you know that the “lenders” in the chain have received money from Federal bailouts, non-subrogated payoffs and hedge products that reduced the amount of the loan receivable on the books and records and financial statements of whoever is the actual creditor. If they don’t know how that was allocated to loans receivable then they don’t know the balance of the debt that is due. If they do know, then how do they know it and where is the evidence of how those payments were received and allocated. So you therefore want to challenge “when payments were received.”
7. They say that the “entity that currently owns the account and holds the note is” USB etc. series xyzzy. But that is not the same as saying that a Trust owns the debt or anything else relating to your loan. Further it doesn’t say that there is a trust specifically because they don’t name one. And perhaps most importantly taken as a whole “USB as trustee for … Certificates” is a statement that the USB is Trustee for the Certificates or the Certificate holders if you ant to broaden the inference” and NOT a REMIC Trust owning the loan. This is sleight of hand.
8. USB is appearing not on its own behalf but as Trustee for (a) a stack of certificates or (b) the holders of each certificate which means that the “Trust” is not the REMIC Trust but rather a separate Trust in which the Certificate Holders of another Trust (potentially the REMIC Trust issued those certificates) entrusted those certificates to USB. Such a trust does not exist. And it cannot be said that this is a reference to the REMIC Trust because that would mean that the beneficiaries of the trust gave authority to the Trustee to hold the certificates in Trust as part of the REMIC Trust PSA (which is the trust instrument). That is perfectly circular reasoning. [Issue the certificates to beneficiaries of the trust who then turn the cetificates back to the trust to be administed as trust assets in addition to the loans that were supposedly acquired. Nothing in the Trust Instrument (PSA) says anything of the sort. That would mean that USB is active as a trustee when in fact it has no role to play as trustee of any REMIC Trust mentioned or inferred.
9. So the question in the QWR is whether they are two trusts and if so would they please identify each of them.
10. Incidentally the person who supposedly has knowledge how the certificates are kept and possibly how they are issued is Janel Gray Parkman Vice President, Business Development Officer, U.S. Bank Global Corporate Trust Services Charlotte, NC Phone: 212.951.8549 Email:janel.gray@usbank.com. Note that the title is NOT VP of Trust services but rather VP of business development. This was taken from Googling the contact number they gave you for the “Trust” even though we don’t know which trust or even if they realize that the name of USB is being used in connection with two alleged trusts, neither one of which actually exist.
11. They say that Ocwen is the servicer. Where is the evidence of that? Are they named in the PSA? Did the Trust created by the PSA ever acquire the debt? Be specific that you are not asking for the “ownership” of the “account,” the “note” or the “mortgage.” You are asking for the document that says Ocwen is the servicer — perhaps a servicing agreement.
12. Notably they did not give you the link for the PSA. This enables them to say that you googled the wrong name (especially since no trust is actually identified although two are implied).
13. You should look at the PSA and see if
    1. It exists.
    2. It was signed by everyone who needed to sign it — i.e., are there blank signature lines with someone’s name underneath?
    3. All the exhibits to the PSA were filed along with the PSA? Especially the mortgage loan schedule.
    4. When was the PSA sent to the SEC?
14. If the PSA is incomplete then it is reasonable to conclude that the inferred or implied transaction never took place in which a trust acquired your loan (or any other loan for that matter).

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