California Penal Code 530.5
(a) Every person who willfully obtains personal identifying
information, as defined in subdivision (b) of Section 530.55, of
another person, and uses that information for any unlawful purpose,
including to obtain, or attempt to obtain, credit, goods, services,
real property, or medical information without the consent of that
person, is guilty of a public offense, and upon conviction therefor,
shall be punished by a fine, by imprisonment in a county jail not to
exceed one year, or by both a fine and imprisonment, or by
imprisonment in the state prison.
Note that the law was modified in 2001 to include with consent and also to make this violation a felony (important later).
In my opinion this law alone makes nearly every single unlawful act in the origination, servicing, securitization and foreclosure of a California homeowners loan a FELONY. This is because in almost all cases the homeowners personally identifiable information is used – such as on an ASSIGNMENT. This could also be applied directly to the FDCPA and the RFDCPA which usually involves a consumer, their address, their account information, etc.
For instance, after receiving the Notice of Default, we sent back a letter to NDEx West in which we disputed the validity the debt in a manner consistent with the requirements of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (“FDCPA”), and the
Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code 1788 et seq. (“RFDCPA”). By doing this, we imposed a duty on NDEx West to establish that the NDEx West was attempting to collect on a debt actually owed and that the amount demanded was proper before making further attempts to collect the alleged debt. NDEx West ignored this legal duty by never establishing that there a debt was owed, or that the amount of the demand was accurate, and instead chose to violate both federal and state law by continuing to attempt to collect on the alleged debt.
NDEx West used our personally identifiable information to violate federal and state law. NDEx West willfully obtained our personal identifying information, as defined in California Penal Code subdivision (b) of Section 530.55, and used that information for unlawful purposes (violation of FDCPA and RFDCPA), including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without our consent (or even with consent assuming it is determined that our initial consent at loan origination applies).
Think about it. If a debt collector violates the FDCPA, they are usually using the consumers personally identifiable information to commit the violation.
State of Washington
(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
What about Federal law?
The Department of Justice prosecutes cases of identity theft and fraud under a variety of federal statutes. In the fall of 1998, for example, Congress passed the Identity Theft and Assumption Deterrence Act. This legislation created a new offense of identity theft, which prohibits knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law. 18 U.S.C. § 1028(a)(7): This offense, in most circumstances, carries a maximum term of 15 years’ imprisonment, a fine, and criminal forfeiture of any personal property used or intended to be used to commit the offense.
What is a “means of identification”?
(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any-
(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as defined in section 1029 (e));
These are huge issues. If you are not in California, Arizona or Washington, consult the identity theft laws for your state!
From Beth Findsen, Attorney in Scottsdale, AZ, she comments that ID Theft may just be the heart of the matter in seeking damages. The logic is simple: they used every borrower’s signature for selling a pool of loans that included OTHER borrowers and a huge undisclosed profit was generated by using the borrower’s signature. Without that signature there would have been no deal. This is especially true if the person was one of the top tier tranche borrowers with 800 FICO scores etc. Without them making the pool look pretty there would have been no sale. Those people were neither compensated nor informed of the use of their very personal information.
The elements are pretty clear. Use of a person’s ID without their consent. Loss to another person. This is another connection between the interests of the borrower and interests of investors.
The essence of securitization of loans has been the unauthorized use of the borrower’s ID to create a collection of loans that were sold as more valuable than any single loan would have been priced, based upon the presence of multiple parties who had no idea that their name and identifying information was being passed around the world like a “whiskey bottle at a frat party” as reported by MSNBC.
Privacy is a commodity. It is constitutionally and statutorily protected. It can be waived or it can be bought, if the person is willing to sell it or waive it. But it cannot be taken by a “lender” (pretender or otherwise) to use for their own profit. That profit belongs to the person or persons whose identity and privacy have been violated — along with punitive damages if it can be applied.
Quoted from Beth:
is it “consent” if it’s based upon a fraudulent misrepresentation or failure to disclose?
13-2008. Taking identity of another person or entity; knowingly accepting identity of another person; classification
A. A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person’s or entity’s identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment.