Word on the bricks is that Aspen Grove Solutions, the provider of the ABC# tracking background checks in the Mortgage Field Services Industry, may be losing the luster it has had with respect to charming the Industry. In fact, firms such as ServiceLink no longer use Aspen Grove and rely upon their own background check suite. Above and beyond the fact that the US Government provides, free of charge, all of the services Aspen Grove charges over one hundred and fifty dollars — in the case of the State of New York — through their SAM Program, NAMFS with the apparent backing by Wells Fargo and Aspen Grove have continued their for profit venture. Aspen Grove, a foreign national firm based out of Ireland, first came on the scene in 2012 partnering with Jim Taylor whom then worked with Wells Fargo. In fact, when the National Association of Mortgage Field Services (NAMFS) first began rolling out this money grab, Foreclosurepedia reached out to Aspen Grove,
Yes, Aspen Grove is working with NAMFS to create an industry solution to the growing challenge of background checks. The formal announcement will be made at NAMFS’ September Conference in Chicago. Pricing details are planned to be announced then. Wells Fargo will be one of the first lenders benefiting from this solution. As you may already know, Jim Taylor from Wells Fargo, representatives from First Advantage, and Aspen Grove Inc. all participated in a NAMFS Leadership Conference in Dallas on July 31st. You may wish to consider attending the NAMFS Chicago Conference to learn more.
The most interesting thing that surrounds what we are going to discuss is the simple and salient fact that NAMFS administrative personnel, whom have access to everything pertaining to the homeowner including all manner of Personally Identifiable Information (PII), are NOT required to get ABC numbers. Foreclosurepedia documented an Operations Manager at a NAMFS member firm convicted of cocaine possession and multiple tax liens as well as a NAMFS Bronze Level supporter member firm owner whom had multiple tax liens and defrauded dozens of contractors including a volunteer firefighter. Both are apparently acceptable to Eric Miller, NAMFS Executive Director. The most heinous example, though, of turning the blind eye was when Eric Miller turned a blind eye as NAMFS Secretary Heather Berghorst got her second bankruptcy to the tune of nearly One Million Dollars even as Fifth Third Bank filed a Willful and Malicious Injury claim against her.
Double standards appear to be what powers the Industry. Spearheading that effort was the misguided belief that Wells Fargo required background checks to begin with. Senior Vice President for Contracts and Technology, Sue Bunnell, informed Foreclosurepedia that there were no requirements for background checks of Field Service Technicians.
The steady march of collecting PII, much of which is not necessary, has continued at an alarming rate. Within months of launching, Aspen Grove began demands for wet signatures upon Social Security forms — the SSA 89 — concerns began to be voiced due to the ability of those signatures, if servers were hacked, could be used for loans, passports, and a myriad of other illegal activities. Here is Aspen Grove’s specific demand which is unseen anywhere else in the modern background check community,
Get wet signature from contact (Electronic signatures are NOT acceptable, even those done through a signature verification application.)
The plot thickened, though, as demands for more and more information and a complete refusal for transparency — including the blacklisting of Foreclosurepedia’s email address — began to concern many about the storage of the information and precisely where and how the information was stored. Even more recently, it appears that in addition to driver’s license photos, selfies of applicants are now being required.
So, what is the legal opinion on obtaining all or some of the information? Well, the Fair Credit Reporting Act (FCRA) appears to control everything. And, in fact, applicants are required to execute signatures upon FCRA forms. Moreover, the FCRA has no statutory language preventing a lifetime — other than juvenile records — of historical criminal record searches.
To the point of requiring FCRA compliance, that is the rub as the bard would say. What I mean is that FCRA, generally speaking, pertains to employment. In fact, there are several federal cases which states as much. Probably the most seminal case is from 2012, Lamson v. EMS Energy Mktg. Serv. Inc.. Additionally, multiple district courts have ruled that the FCRA defines employment purposes as used for the purpose of evaluating consumers for employment … as an employee. In the aforementioned case in Georgia the court ruled that [U]ltimately, because employee or employment is not otherwise defined in FCRA, this court is required to apply the common law meaning of employment, which does not include independent contractors.
So, this begs the question, especially in light of the millions of dollars in settlements NAMFS members have made with respect to employee misclassification, does the demand to execute an FCRA application implicitly create a statutory employee?
For years, the demands of NAMFS members that Field Service Technicians are only paid by their price sheets — including all bids for overallowable items such as roofs, etc. — and that all bids must conform to NAMFS member internal guidelines obviously debunks any shred of credibility that Field Service Technicians and Inspectors are independent contractors. Moreover, though, these misclassified employees are provided the work by the NAMFS member; given specific guidance and instruction on how to perform the work for the NAMFS member; and it is mandatory that the NAMFS member software is used, makes this a classic case of employee misclassification.
Now, the FRCA gets very interesting in addressing a decision out of the Southern District of Iowa in Smith v. Mutual of Omaha Insurance Company. The case is extremely interesting in the alternate theory amendment. The Littler Law firm had this to say,
The plaintiff alleged in the amended complaint that the company had certified to the CRA that it would obtain consumer reports only for “employment purposes.” The plaintiff thus claimed that if the company now asserted that his consumer report was not obtained for “employment purposes” via its independent contractor defense, then the company had violated Section 1681b(f) by obtaining a report for some other purpose that it had not certified to. The company moved to dismiss this alternative theory of relief, but the court held that the plaintiff could proceed to litigate the theory.
The argument here is not whether or not NAMFS members have the right to background check, but rather how they do it and what process they use. In the instant case, NAMFS members are circumventing FCRA by cherry picking what part of the law they want to use and what part they want not used against them.
Data pre-populated on the Aspen Grove SSA-89 Forms explicitly state they are for EMPLOYMENT PURPOSES. That could be changed to state INDEPENDENT CONTRACTOR, but then Social Security would refuse the forms. the very FCRA forms themselves state the same. It becomes even more obvious that the legal process is being subverted when one starts to look at how First Advantage submits the forms.
‘Tis the season for litigation. And during COVID, the question begs how many people will continue to perform $3 inspections with zero protection from the disease or violence which will inevitably come down the pike. I mean with all of the new social welfare programs coming down the pike from the Biden Administration, why would anyone want to risk life and limb to simply enrich NAMFS members? And in light of the recent SolarWinds hack which breached virtually every US Government agency, many are asking how wise it is to allow a foreign national, like Aspen Grove Solutions, to maintain the inordinate amount of data that they do with zero oversight from Labor.