No Retainer Agreements or Engagement Letters? No Fiduciary Relationship Between Bank Lawyers And Alleged Creditor? The Secret Veil that’s been Pierced Confirms Banks and Debt Collection Lawyers are Stealing Homes.
The following excerpts come from two recent rulings handed down in U.S. Bankruptcy Court for the Eastern District of California by Judge Ronald H. Sargis. Judge Sargis has scrutinized the evidence and come to the same conclusion as most embattled homeowners in courts nationwide have been saying all along; that the real parties pulling the strings behind the curtains are not being disclosed, and the trustees for the REMIC trusts have no knowledge of anything. Yet Proof of Claims and defaults continue to be filed and declared in their names by attorneys who work for someone else.
Raposo et al v. Ocwen – Case No. 15-2095
Beginning at pg. 37:
EVIDENCE PRESENTED FOR ONEWEST BANK
Declaration of Rebecca Marks
OneWest Bank concurrently submitted the Declaration of Rebecca Marks in response to the court’s Order to Appear on October 15, 2015. Dckt. 51.
Rebecca Marks is the Assistant Vice President for Defendant, CIT Bank, N.A. formerly known as and sued herein as OneWest Bank, FSB. Ms. Marks declares that IMB Holdco, LLC, the parent company of OneWest, recently merged with CIT Group, Inc. As a part of this merger, CIT Bank, a subsidiary of CIT Group,Inc., merged with and into OneWest, which was renamed CIT Bank, N.A. Ms. Marks provides a brief description regarding the filing of the Chapter 13 by Gil Mariano Raposo and Joanne Carol Raposo on April 16, 2009. Ms. Marks states that as of the date of the filing, OneWest acted as the servicer of the Subject Loan – in the amount of $51,000.00 – made to IndyMac Bank, F.S.B. by Plaintiffs-Debtors, which was secured by a Deed of Trust recorded on the subject property located at 9090 Locust Street, Elk Grove, CA 95624,on October 5, 2006. Ms. Marks further states that OneWest serviced the loan on behalf of Deutsche Bank National Trust Company, as Indentured Trustee for IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4.
On or about June 13, 2013, OneWest entered into an agreement to sell, transfer, and assign its servicing rights regarding several loans, including the Subject Loan to Defendant, Ocwen Loan Servicing, LLC (“Ocwen”) effective December 13, 2013. Ms. Marks states that pursuant to the agreement, Ocwen was authorized to retain counsel to defend OneWest in any litigation concerning the Subject Loan, including the adversary proceeding at issue. That in accordance to the agreement, Ocwen retained the Law Offices of Wright, Finlay and Zak, LLP (“WFZ”) to defend Ocwen and OneWest in the adversary action.
Ms. Marks attached the following two documents as Exhibits 1 and 2 to her declaration: 1) a document described as “Docket for Bankruptcy Case 09-27153,” which appears to list the interested parties in this matter, as well as a list of dates related to the Bankruptcy Case; and 2) a Deed of Trust. Exhibits With Rebecca Marks’ Declaration Exhibit 2, in support of Ms. Marks’ Declaration, is the Deed of Trust.
The Deed of Trust was recorded October 5, 2006, having been executed by Gil H. Raposo and Joanne C. Raposo, for the subject property located at 9090 Locust Street, Elk Grove, CA 95624. The Lender appears as IndyMac Bank, F.S.B., a federally chartered savings bank. The total principal amount secured is in the amount of $51,000.00, to be paid in full by November 15, 2026.
The court first addresses the responses to the supplemental order filed on September 22, 2015. Dckt. 40. As to the issue of Ms. Glowin’s September 17, 2015 Declaration being filed under “information and belief,” Ms. Glowin states that she understands that a declaration under such does not meet the Rule 602, Federal Rule of Evidence, standard. Ms. Glowin filed the September 17th Declaration “under information and belief as OneWest and Ocwen were and are the best parties to address the issues raised by the Court. Dckt. 54. The only explanation provided by Ms. Glowin as to why such declaration was filed was that there would be a supplemental declaration from the client and that Ms. Glowin was unable to provide the court with the requested documentation at the time of the September Declaration.
This response seems to be lacking. Ms. Glowin does not provide explanation as to why such documentation was not available at the time of the initial filing. The court issued the first order on September 4, 2015, in response to OneWest and Ocwen’s failure to reconvey the deed of trust, failure to respond to the complaint, and failure to file any opposition to the request for entry of default judgment. As the alleged counsel for both entities (discussed further infra), Ms. Glowin does not state why such documentation was not available in the client file or, as the attorney for the parties, why such information was readily available.
As to why WFZ was not able to provide engagement letters or power of attorney by the September 15th deadline, Ms. Glowin (instructing the court to reference the declaration filed on behalf of Ocwen) states that there are no retainer agreements or engagement letters between Ocwen, OneWest, and WFZ, as Ocwen employs a “Managing Counsel” program. The effect of this program, as alleged by Ms. Glowin and Mr. Flannigan on behalf of Ocwen, that no specific retainer agreement is executed to each individual case referral. Instead, “matters are referred to Managing Counsel through referrals that are uploaded into Ocwen’s CounselLink case management system.” Dckt. 56, ¶ 10.
Mr. Flannigan then refers to the same e-mail sent from “Hema Dhapola, Litigation Analyst, Law Dept, Ocwen Financial Solutions” as the basis for the authority. Dckt. 57,Exhibit 5. Mr. Flannigan’s declaration states:
Ocwen’s business records reflect that on August 5, 2015, Ocwen’s Legal Department retained WFZ to defend Ocwen and OWB in the Adversary Action by providing access to the referral via CounselLink case management system and by uploading an email notification directly into the CounselLink case management system. The e-mail was not sent directly to WFZ; rather it was uploaded into the CounselLink case management system when WEZ was assigned this matter. Dckt. 56, ¶ 11.
However, instead of providing the court with information as to how CounselLink creates a fiduciary relationship between attorney and client, Ocwen and Ms. Glowin seem to rely solely on the fact that CounselLink assigns it and, even without any retainer or employment agreement, WFZ is the attorney of record as to the instant matter. This is once again insufficient.
In response to the reason why the signature block of Ms. Dhapola’s email states the entity is “Ocwen Financial Services,” Ms. Glowin states that “Ocwen Financial Solutions is an authorized agent of Ocwen Loan Servicing, LLC.” Mr. Flannigan merely states that “Ocwen’s business records reflect that WFZ is the designated authorized counsel for Ocwen and OWB in the Adversary Action. Ocwen specifically consents to and authorized WFZ’s representation of OWB and Ocwen in the Adversary Action.” Dckt. 56, ¶ 12. However, Ms. Glowin nor Mr. Flannigan provides any actual authorization of such.
Ms. Marks’ response on behalf of CIT Bank, N.A. formerly known as OneWest Bank, FSB does not fair any better. In regards to representation, it appears that CIT Bank, retroactively, is attempting to authorize the employment of WFZ. Specifically, Ms. Marks’ response states:
7. On or about June 13, 2013, ONEWEST entered into an agreement (“Agreement”) to sell, transfer and assign its servicing rights regarding several loans, including the Subject Loan herein, to Defendant, OCWEN LOAN SERVICING, LLC (“OCWEN”) effective December 1, 2013. Pursuant to the Agreement, OCWEN was and is authorized to retain counsel to defend ONEWEST in any litigation concerning the Subject Loan, including the above referenced adversary proceeding filed May 14, 2015.
8. Pursuant to the above-referenced Agreement, OCWEN retained the Law Offices of Wright, Finlay and Zak, LLP (“WFZ”) to defend OCWEN and ONEWEST in the Adversary Action. ONEWEST specifically consents to and authorizes WFZ’s representation of ONEWEST in the Adversary Action. Dckt. 51. However, no such “Agreement” is attached to Ms. Marks’ response.
Furthermore, the court’s reading of the email, as indicated in the court’s subsequent order on September 22, 2015, the email alone from Ms. Dhapola does not provide any indication of the retention of WFZ.
As to the powers of attorney between Ocwen Loan Servicing, LLP and Wright Finlay & Zak, LLP and OneWest Bank, FSB and Wright Finlay & Zak, LLP, the court is once again left lacking sufficient information.
A review of all the documentation filed by responding parties, there is only one exhibit titled “Limited Power of Attorney.” Dckt. 57, Exhibit 4.
This Limited Power of Attorney is between “Deutsche Bank National Trust Company. . . as Indentured Trustee. . . by and between Indentured Trustee and OCWEN LOAN SERVICING, LLC.” Id.
This appears to be the first time that Deutsche Bank National Trust Company has been indicated as a party in the transaction at all.
Ash et al v. Ocwen et al. Case No. 09-32061-E-13
Beginning at pg.23:
DECLARATION OF CHRISTOPHER SCHMIDT
Christopher Schmidt, a partner at Bryan Cave LLP, filed a declaration on October 22, 2015. Dckt. 149. Mr. Schmidt states that in his capacity as the relationship partner for Ocwen Loan Servicing, LLC, he has “access to [his] law firm’s business records, including the business records for and relating to Ocwen’s retention of Bryan Cave in this contested matter.”
Mr. Schmidt states that Ocwen Loan Servicing, LLC is the servicer of the loan, without providing the basis for such knowledge. Mr. Schmidt continues and states that “Ocwen” utilizes a “certain group of law firms to handle litigated matter throughout the country” and that Bryan Cave is one of those firms.
Mr. Schmidt states that when Ocwen retains the firm, the matter is opened on CounselLink, in which Bryan Cave is sent an email notifying the firm that a case has been referred. Upon notification, Bryan Cave accepts the referral via the CounselLink website.
Mr. Schmidt states that on September 1, 2015, the firm was retained as counsel for Ocwen to defend the instant Motion. On September 2, 2015, Mr. Schmidt states that the firm received an email notice indicating the instant matter had been opened and referred to Bryan Cave in CounselLink. Once accepted, the matter is referred to the office closest geographically to the court where the matter is being heard, here the Bryan Cave San Francisco Office.
Mr. Schmidt attached the redacted email that notified the firm of the referral. Dckt. 149, Exhibit A. The email indicates that “Ocwen Financial” referred “In Re: Robert C. Ash” on September 1, 2015.
The court notes that the “Email” provided is so redacted that it fails to provide any useful information for the court. The best the court can tell from it is:
A. It was sent from someone at “firstname.lastname@example.org.”
B. It was sent to some unidentified person at an unidentified email address. (That information having been redacted.)
C. It relates to a matter relating to “Ocwen Financial,” not Ocwen Loan Servicing, LLC.
D. Under matter title it states “In Re: Robert C. Ash.”
Everything else is redacted out. From this, it appears that some entity named “Ocwen Financial” was involved, not Ocwen Loan Servicing, LLC.
It appears to be evidence that either no counsel was retained for Ocwen Loan Servicing, LLC or that Ocwen Loan Servicing, LLC is part of and the alter-ego of “Ocwen Financial.”
This email conflicts with the testimony under penalty of perjury provided by Christopher Schmidt, who states that his law firm was retained to represent “Ocwen Loan Servicing, LLC.” Declaration, p. 2:2-3, 22-23.
The court is concerned that this highly redacted document has not been provided in good faith or to substantiate the contention that the law firm has actually be engaged to represent Ocwen Loan Servicing, LLC.
The court has, and is, addressing the “Ocwen Entities” and other counsel they have hired filing redacted documents which fail to provide any meaningful information in support of what an attorney tells the court the document would say if it was not redacted.