Federal Trade Commission v. Wealth Educators, Inc. et al
Filing
24
PRELIMINARY INJUNCTION WITH ASSET FREEZE AND OTHER RELIEF against Defendants Wealth Educators, Inc., also d/b/a Family 1st Preservations, Family 1st Home Loans, Legal Affiliates & Associates, Legal Educators, & Co., Family 1st Home Preservation, Legal Educators USA & Co., Stargate Mutual &Associates, Providence Financial Advocates, and Providence Financial Audits, and Veronica Sesma, also d/b/a Sesma Consulting. (SEE DOCUMENT FOR DETAILED SPECIFICS THEREIN) by Judge S. James Otero (lc)
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JONATHAN E. NUECHTERLEIN
General Counsel
CHARLES A. HARWOOD
Regional Director
ELEANOR DURHAM, MD Bar
edurham@ftc.gov
MAXINE R. STANSELL, WA Bar # 9418
mstansell@ftc.gov
Federal Trade Commission
915 2nd Ave., Suite 2896, Seattle, WA 98174
(206) 220-4476 (Durham); (206) 220-4474 (Stansell)
(206) 220-6366 (fax)
BARBARA CHUN, CA Bar # 186907 (Local counsel)
bchun@ftc.gov
10877 Wilshire Blvd., Suite 700, Los Angeles, CA 90024
(310) 824-4312 (Chun); (310) 824-4330 (fax)
ATTORNEYS FOR PLAINTIFF FEDERAL TRADE COMMISSION
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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)
)
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Plaintiff,
)
)
)
vs.
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)
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WEALTH EDUCATORS, INC., also )
d/b/a Family 1st Preservations; Family )
)
1st Home Loans; Legal Affiliates &
)
Associates; Legal Educators & Co.;
)
st
)
Family 1 Home Preservation; Legal
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Educators USA & Co.; Stargate Mutual )
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& Associates; Providence Financial
Advocates; and Providence Financial )
)
Audits; and VERONICA SESMA, also )
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d/b/a Sesma Consulting,
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)
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Defendants.
)
FEDERAL TRADE COMMISSION,
[Proposed] Preliminary Injunction – Page 1
No. CV-15-2357 SJO (JEMx)
PRELIMINARY INJUNCTION WITH
ASSET FREEZE AND OTHER
RELIEF
Date: May 4, 2015
Time: 10:00 a.m.
Place: Courtroom 1, the Honorable
Judge S. James Otero
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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Plaintiff, Federal Trade Commission (“FTC” or “Commission”), filed its
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Complaint for Permanent Injunction and Other Equitable Relief and Ex Parte
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Application for Temporary Restraining Order with Asset Freeze and Other Relief
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and Order to Show Cause Why Preliminary Injunction Should Not Issue (“Order”)
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on March 31, 2015. The Court entered the requested Order on April 6, 2015.
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Defendants were served with the Order and other related papers on April 8, 2015.
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Returns of Service have been filed by Plaintiff via ECF (Dkt. 19 and 20).
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Having considered the parties’ pleadings, papers, and argument, the Court
hereby GRANTS the Preliminary Injunction against Defendants Wealth
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Educators, Inc., also d/b/a Family 1st Preservations, Family 1st Home Loans, Legal
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Affiliates & Associates, Legal Educators, & Co., Family 1st Home Preservation,
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Legal Educators USA & Co., Stargate Mutual &Associates, Providence Financial
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Advocates, and Providence Financial Audits, and Veronica Sesma, also d/b/a
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Sesma Consulting.
FINDINGS
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1.
This Court has jurisdiction over the subject matter of this case.
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2.
Venue is proper in this District.
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3.
The Court finds that the extensive evidence provided by the FTC is
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sufficient to demonstrate a likelihood of success on the merits with respect to its
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Complaint allegations that Wealth Educators, Inc., and Veronica Sesma violated
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Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), by making false claims to induce
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consumers to purchase mortgage assistance relief services (“MARS”) and failing
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to provide consumers with promised refunds when they were unable to secure the
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promised MARS.
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4.
The Court finds that the extensive evidence provided by the FTC is
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sufficient to demonstrate a likelihood of success on the merits with respect to its
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Complaint allegations that Wealth Educators, Inc., and Veronica Sesma violated
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Regulation O, 12 C.F.R. §§ 1015.3 – 1015.5, by collecting illegal advance fees, by
[Proposed] Preliminary Injunction – Page 2
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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misrepresenting the time it will take to obtain a loan modification, and by failing to
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make required disclosures.
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5.
There is good cause to believe that immediate and irreparable harm
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will result from Defendants’ ongoing violations of Section 5(a) of the FTC Act, 15
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U.S.C. § 45(a), and Regulation O, 12 C.F.R. §§1015.3 – 1015.5, unless Defendants
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are restrained and enjoined by Order of this Court.
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6.
There is good cause to believe that immediate and irreparable harm to
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the Court’s ability to grant effective final relief for consumers in the form of
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monetary restitution and disgorgement of ill-gotten gains will occur from the
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transfer, dissipation, or concealment by Defendants of their assets or business
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records unless Defendants are restrained and enjoined by Order of this Court.
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7.
Because the injunction will preclude only harmful, illegal behavior,
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the public equities supporting injunctive relief outweigh any burden imposed by
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such relief on Defendants and the requested relief is in the public interest.
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8.
No security is required of any agency of the United States for the
issuance of a temporary restraining order. Fed. R. Civ. P. 65(c).
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ORDER
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DEFINITIONS
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1.
“Asset” or “Assets” means any legal or equitable interest in, right to,
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or claim to, any real, personal, or intellectual property of any Defendant, or held
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for the benefit of any Defendant, wherever located, whether in the United States or
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abroad, including, but not limited to, chattel, goods, instruments, equipment,
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fixtures, general intangibles, effects, leaseholds, contracts, mail or other deliveries,
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shares of stock, commodities, futures, inventory, checks, notes, accounts, credits,
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receivables (as those terms are defined in the Uniform Commercial Code), cash,
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and trusts, including, but not limited to, any trust held for the benefit of any
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Defendant, any of the Individual Defendant’s minor children, or any of the
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[Proposed] Preliminary Injunction – Page 3
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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Individual Defendant’s spouses, and shall include both existing assets and assets
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acquired after the date of entry of this Order.
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2.
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“Assisting others” includes:
a.
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performing customer service functions, including receiving or
responding to consumer complaints;
b.
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formulating or providing, or arranging for the formulation or
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provision of, any advertising or marketing material, including
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any telephone script, direct mail solicitation, or the design, text,
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or use of images of any Internet website, email, or other
electronic communication;
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c.
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formulating or providing, or arranging for the formulation or
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provision of, any marketing support material or service,
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including web or Internet Protocol addresses or domain name
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registration for any Internet websites, affiliate marketing
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services, or media placement services;
d.
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customers;
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e.
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performing marketing, billing, or payment services of any kind;
or
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f.
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acting or serving as an owner, officer, director, manager, or
principal of any entity.
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providing names of, or assisting in the generation of, potential
3.
“Commercial communication” means any written or oral statement,
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illustration, or depiction, whether in English or any other language, that is designed
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to effect a sale or create interest in purchasing any service, plan, or program,
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whether it appears on or in a label, package, package insert, radio, television, cable
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television, brochure, newspaper, magazine, pamphlet, leaflet, circular, mailer, book
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insert, free standing insert, letter, catalogue, poster, chart, billboard, public transit
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card, point of purchase display, film, slide, audio program transmitted over a
[Proposed] Preliminary Injunction – Page 4
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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telephone system, telemarketing script, onhold script, upsell script, training
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materials provided to telemarketing firms, program-length commercial
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(“infomercial”), the internet, cellular network, or any other medium. Promotional
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materials and items and Web pages are included in the term “commercial
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communication.”
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4.
“Consumer-specific commercial communication” means a
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commercial communication that occurs prior to the consumer agreeing to permit
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the provider to seek offers of mortgage assistance relief on behalf of the consumer,
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or otherwise agreeing to use the mortgage assistance relief service, and that is
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directed at a specific consumer.
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“General commercial communication” means a commercial
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communication that occurs prior to the consumer agreeing to permit the provider to
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seek offers of mortgage assistance relief on behalf of the consumer, or otherwise
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agreeing to use the mortgage assistance relief service, and that is not directed at a
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specific consumer.
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6.
“Defendants” means the Individual Defendant and the Corporate
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Defendant, individually, collectively, or in any combination, and each of them by
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whatever names each might be known.
a.
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“Corporate Defendant” means Wealth Educators, Inc., and its
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successors, assigns, affiliates, or subsidiaries, and each of them
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by whatever names each might be known.
b.
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names by which she might be known.
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“Individual Defendant” means Veronica Sesma and any other
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“Document” and “electronically stored information” are
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synonymous in meaning and equal in scope to the usage of the terms in Rule 34(a)
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of the Federal Rules of Civil Procedure and include, but are not limited to:
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a.
The original or a true copy of any written, typed, printed,
electronically stored, transcribed, taped, recorded, filmed,
[Proposed] Preliminary Injunction – Page 5
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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punched, or graphic matter or other data compilations of any
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kind, including, but not limited to, letters, email or other
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correspondence, messages, memoranda, interoffice
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communications, notes, reports, summaries, manuals, magnetic
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tapes or discs, tabulations, books, records, checks, invoices,
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work papers, journals, ledgers, statements, returns, reports,
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schedules, or files; and
b.
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Any electronically stored information stored on any
Blackberrys, flash drives, personal digital assistants (“PDAs”),
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desktop personal computer and workstations, laptops,
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notebooks, and other portable computers, or other electronic
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storage media, whether assigned to individuals or in pools of
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computers available for shared use, or personally owned but
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used for work-related purposes; backup disks and tapes, archive
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disks and tapes, and other forms of offline storage, whether
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stored onsite with the computer used to generate them, stored
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offsite in another company facility, or stored, hosted, or
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otherwise maintained offsite by a third party; and computers
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and related offline storage used by Defendants or Defendants’
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participating associates, which may include persons who are not
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employees of the company or who do not work on company
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premises.
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8.
“Electronic data host” means any person or entity that stores, hosts,
or otherwise maintains electronically stored information.
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“Financial institution” means any bank, savings and loan institution,
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credit union, or any financial depository of any kind, including, but not limited to,
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any brokerage house, trustee, broker-dealer, escrow agent, title company,
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commodity trading company, or precious metal dealer.
[Proposed] Preliminary Injunction – Page 6
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
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10.
“Material fact” means any fact that is likely to affect a person’s
choice of, or conduct regarding, goods, or services.
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“Mortgage assistance relief service” means any product, service,
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plan, or program, offered or provided to the consumer in exchange for
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consideration, that is represented, expressly or by implication, to assist or attempt
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to assist the consumer with any of the following:
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a.
stopping, preventing, or postponing any mortgage or deed of
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trust foreclosure sale for the consumer’s dwelling, any
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repossession of the consumer’s dwelling, or otherwise saving
the consumer’s dwelling from foreclosure or repossession;
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b.
negotiating, obtaining, or arranging a modification of any term
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of a dwelling loan, including a reduction in the amount of
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interest, principal balance, monthly payments, or fees;
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c.
obtaining any forbearance or modification in the timing of
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payments from any dwelling loan holder or servicer on any
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dwelling loan;
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d.
negotiating, obtaining, or arranging any extension of the period
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of time within which the consumer may (i) cure his or her
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default on a dwelling loan, (ii) reinstate his or her dwelling
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loan, (iii) redeem a dwelling, or (iv) exercise any right to
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reinstate a dwelling loan or redeem a dwelling;
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e.
obtaining any waiver of an acceleration clause or balloon
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payment contained in any promissory note or contract secured
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by any dwelling; or
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f.
negotiating, obtaining, or arranging (i) a short sale of a
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dwelling, (ii) a deed-in-lieu of foreclosure, or (iii) any other
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disposition of a dwelling other than a sale to a third party who
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is not the dwelling loan holder.
[Proposed] Preliminary Injunction – Page 7
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
The foregoing shall include any manner of claimed assistance, including, but not
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limited to, auditing or examining a consumer’s mortgage or home loan application
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and offering to provide or providing legal services.
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12.
“Person” means a natural person, organization, or other legal entity,
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including a corporation, partnership, proprietorship, association, cooperative, or
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any other group or combination acting as an entity.
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I.
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PROHIBITION ON COLLECTION OF ADVANCE FEES
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IT IS THEREFORE ORDERED that Defendants and their officers,
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agents, servants, employees, and attorneys, and those persons or entities in active
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concert or participation with any of them who receive actual notice of this Order
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by personal service, facsimile transmission, email, or otherwise, whether acting
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directly or through any corporation, subsidiary, division, or other device, in
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connection with providing, offering to provide, or arranging for others to provide
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any mortgage assistance relief service, are hereby preliminarily restrained and
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enjoined from requesting or receiving payment of any fee or other consideration
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before the consumer has executed a written agreement between the consumer and
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the consumer’s dwelling loan holder or servicer incorporating the offer of
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mortgage assistance relief that a Defendant obtained from the consumer’s dwelling
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loan holder or servicer on the consumer’s behalf, in violation of Section 1015.5(a)
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of Regulation O, 12 C.F.R. § 1015.5(a).
II.
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REPRESENTATIONS PROHIBITED BY SECTION 5 OF THE FTC ACT
IT IS FURTHER ORDERED that Defendants and their officers, agents,
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servants, employees, and attorneys, and those persons or entities in active concert
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or participation with any of them who receive actual notice of this Order by
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personal service, facsimile transmission, email, or otherwise, whether acting
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directly or through any corporation, subsidiary, division, or other device, in
[Proposed] Preliminary Injunction – Page 8
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
connection with the advertising, marketing, promotion, offering for sale, or sale of
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any mortgage assistance relief service, are hereby preliminarily restrained and
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enjoined from engaging in, or assisting others in engaging in, the following
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conduct:
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A.
Misrepresenting, directly or indirectly, expressly or by implication,
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that Defendants typically will obtain mortgage loan modifications for
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consumers that will make consumers’ payments substantially more
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affordable, substantially lower their interest rates, or help them avoid
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foreclosure;
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B.
Misrepresenting, directly or indirectly, expressly or by implication,
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that Defendants will provide legal services, including forensic audits;
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and
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C.
Misrepresenting, directly or indirectly, expressly or by implication,
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that Defendants will refund the consumer’s fee if Defendants fail to
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obtain the promised mortgage loan modification.
III.
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REPRESENTATIONS PROHIBITED AND DISCLOSURES REQUIRED
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BY REGULATION O
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IT IS FURTHER ORDERED that Defendants and their officers, agents,
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servants, employees, and attorneys, and those persons or entities in active concert
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or participation with any of them who receive actual notice of this Order by
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personal service, facsimile transmission, email, or otherwise, whether acting
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directly or through any corporation, subsidiary, division, or other device, in
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connection with providing, offering to provide, or arranging for others to provide
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any mortgage assistance relief service, are hereby preliminarily restrained and
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enjoined from engaging in the following conduct:
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A.
Representing, expressly or by implication, in connection with the
advertising, marketing, promotion, offering for sale, sale, or
[Proposed] Preliminary Injunction – Page 9
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
performance of any mortgage assistance relief service, that a
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consumer cannot or should not contact or communicate with his or her
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lender or servicer, in violation of Section 1015.3(a) of Regulation O,
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12 C.F.R. § 1015.3(a);
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B.
Misrepresenting, expressly or by implication, any material aspect of
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any mortgage assistance relief service, including, but not limited to:
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1.
The likelihood of negotiating, obtaining, or arranging any
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represented service or result, including, but not limited to, the
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likelihood of negotiating, obtaining, or arranging a modification
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of any term of a dwelling loan, including a reduction in the
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amount of interest, principal balance, monthly payments, or
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fees, in violation of Section § 1015.3(b)(1) of Regulation O,
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12 C.F.R. § 1015.3(b)(1);
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2.
The amount of time it will take the mortgage assistance relief
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service provider to accomplish any represented service or
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result, in violation of Section 1015.3(b)(2) of Regulation O,
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12 C.F.R. § 1015.3(b)(2);
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3.
That a mortgage assistance relief service is affiliated with,
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endorsed or approved by, or otherwise associated with the
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government or the maker, holder, or servicer of the consumer’s
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dwelling loan, in violation of Section 1015.3(b)(3) of
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Regulation O, 12 C.F.R. § 1015.3(b)(3);
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4.
The terms or conditions of any refund, cancellation, exchange,
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or repurchase policy for a mortgage assistance relief service,
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including, but not limited to, the likelihood of obtaining a full
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or partial refund, or the circumstances in which a full or partial
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refund will be granted, for a mortgage assistance relief service,
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[Proposed] Preliminary Injunction – Page 10
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
in violation of Section 1015.3(b)(6) of Regulation O, 12 C.F.R.
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§ 1015.3(b)(6); or
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5.
That the consumer will receive legal representation, in violation
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of Section 1015.3(b)(8) of Regulation O, 12 C.F.R.
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§ 1015.3(b)(8);
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C.
Failing to disclose the following information in all general
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commercial communications and all consumer-specific commercial
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communications:
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1.
“[Name of Company] is not associated with the government,
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and our service is not approved by the government or your
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lender,” in violation of Section 1015.4(a)(1) and (b)(2) of
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Regulation O, 12 C.F.R. § 1015.4(a)(1) and (b)(2); and
2.
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In cases where the mortgage assistance relief service provider
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has represented, expressly or by implication, that consumers
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will receive any service or result set forth in paragraphs (2)
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through (6) of the definition of “Mortgage Assistance Relief
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Service,” Section 1015.2 of Regulation O, 12 C.F.R. § 1015.2,
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“Even if you accept this offer and use our service, your lender
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may not agree to change your loan,” in violation of Section
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1015.4(a)(2) and (b)(3) of Regulation O, 12 C.F.R.
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§ 1015.4(a)(2) and (b)(3).
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D.
Failing to disclose the following information in all consumer-specific
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commercial communications: “You may stop doing business with us
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at any time. You may accept or reject the offer of mortgage assistance
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we obtain from your lender [or servicer]. If you reject the offer, you
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do not have to pay us. If you accept the offer, you will have to pay us
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[insert amount or method for calculating the amount] for our
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services,” in violation of Section 1015.4(b)(1) of Regulation O,
[Proposed] Preliminary Injunction – Page 11
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
12 C.F.R. § 1015.4(b)(1). For the purposes of this section, the amount
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“you will have to pay” shall consist of the total amount the consumer
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must pay to purchase, receive, and use all of the mortgage assistance
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relief services that are the subject of the sales offer, including but not
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limited to, all fees and charges.
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IV.
PRESERVATION OF RECORDS AND TANGIBLE THINGS
IT IS FURTHER ORDERED that Defendants and their officers, agents,
servants, employees, and attorneys, and those persons or entities in active concert
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or participation with any of them who receive actual notice of this Order by
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personal service, facsimile transmission, email, or otherwise, whether acting
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directly or through any corporation, subsidiary, division, or other device, are
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hereby preliminarily enjoined from destroying, erasing, mutilating, concealing,
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altering, transferring, or otherwise disposing of, in any manner, directly or
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indirectly, any documents or records that relate to the business practices, or
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business or personal finances, of Defendants, or other entity directly or indirectly
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under the control of Defendants.
V.
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DISABLEMENT OF WEBSITES
IT IS FURTHER ORDERED that immediately upon service of the Order
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upon them and pending determination of the FTC’s request for a preliminary
22
injunction, (1) any person hosting any Internet website for, or on behalf of, any
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Defendant, and (2) Defendants and their officers, agents, servants, employees, and
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attorneys, and those persons or entities in active concert or participation with any
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of them who receive actual notice of this Order by personal service, facsimile
26
transmission, email, or otherwise, whether acting directly or through any
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corporation, subsidiary, division, or other device, shall:
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[Proposed] Preliminary Injunction – Page 12
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
A.
Immediately do whatever is necessary to ensure that any Internet
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website used by Defendants for the advertising, marketing, promotion,
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offering for sale, or sale of any mortgage assistance relief service,
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including, but not limited to family1sthps.com; legaleducatorsco.org;
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legaleducatorsusa.org; thelegaleducators.com; smassociates.org;
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pfadvocates.com; and pfaudits.com, and containing statements or
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representations prohibited by Sections I, II, and III of this Order,
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cannot be accessed by the public;
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B.
Prevent the destruction or erasure of any Internet website used by
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Defendants for the advertising, marketing, promotion, offering for
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sale, or sale of any mortgage assistance relief service, by preserving
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such website in the format in which it is maintained currently; and
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C.
Immediately notify in writing counsel for the FTC of any other
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Internet website operated or controlled by any Defendant not listed in
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Subsection V.A above.
VI.
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SUSPENSION OF INTERNET DOMAIN NAME REGISTRATIONS
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IT IS FURTHER ORDERED that, pending determination of the FTC’s
19
request for a preliminary injunction, any domain name registrar shall suspend the
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registration of any Internet website used by Defendants for the advertising,
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marketing, promotion, offering for sale, or sale of any mortgage assistance relief
22
service, and containing statements or representations prohibited by Sections I, II,
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and III of this Order, including, but not limited to, family1sthps.com;
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legaleducatorsco.org; legaleducatorsusa.org; thelegaleducators.com;
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smassociates.org; pfadvocates.com; and pfaudits.com, and provide immediate
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notice to counsel for the FTC of any other Internet domain names registered or
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controlled by any Defendants.
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[Proposed] Preliminary Injunction – Page 13
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
VII.
2
3
ASSET FREEZE
IT IS FURTHER ORDERED that the Corporate Defendant, and its
4
officers, agents, servants, employees, and attorneys, and all persons or entities
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directly or indirectly under the control of any of them, including any financial
6
institution, and all other persons or entities in active concert or participation with
7
any of them who receive actual notice of this Order by personal service, facsimile
8
transmission, email, or otherwise, are hereby preliminarily restrained and enjoined
9
from directly or indirectly:
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A.
Selling, liquidating, assigning, transferring, converting, loaning,
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hypothecating, disbursing, gifting, conveying, encumbering, pledging,
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concealing, dissipating, spending, withdrawing, or otherwise
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disposing of any funds, real or personal property, or other assets or
14
any interest therein, wherever located, including any assets outside the
15
territorial United States, that are:
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1.
in the actual or constructive possession of the Corporate
Defendant; or
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2.
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owned or controlled by, or held, in whole or in part for the
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benefit of, or subject to access by, or belonging to, the
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Corporate Defendant; or in the actual or constructive possession
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of, or owned or controlled by, or subject to access by, or belong
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to, any corporation, partnership, trust, or other entity directly or
23
indirectly owned, managed, or under the control of the
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Corporate Defendant;
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B.
Opening, or causing to be opened, any safe deposit boxes titled in the
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name of the Corporate Defendant, or subject to access by the
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Corporate Defendant;
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[Proposed] Preliminary Injunction – Page 14
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
C.
Incurring charges on any credit card, stored value card, debit card, or
2
charge card issued in the name, singly or jointly, of the Corporate
3
Defendant or any other entity directly or indirectly owned, managed,
4
or controlled by the Corporate Defendant;
5
D.
Defendant; or
6
7
E.
Cashing any checks from consumers, clients, or customers of the
Corporate Defendant; and
8
9
Obtaining a personal or secured loan for or on behalf of the Corporate
F.
The funds, property, and assets affected by this Section shall include:
10
(a) all assets of the Corporate Defendant as of the time this Order is
11
entered, including, without limitation, accounts held by Wealth
12
Educators, Inc., also d/b/a Family 1st Preservations; Family 1st Home
13
Loans; Legal Affiliates & Associates; Legal Educators & Co.; Family
14
1st Home Preservation; Legal Educators USA & Co.; Stargate Mutual
15
& Associates; Providence Financial Advocates; and Providence
16
Financial Audits; to the extent it may hold corporate accounts on
17
which Veronica Sesma is a signatory, and (b) those corporate assets
18
obtained or received after entry of this Order that are derived from the
19
actions alleged in Plaintiff’s Complaint. This Section does not
20
prohibit the Repatriation of Foreign Assets, as specifically required in
21
Section XI of this Order.
22
23
24
25
26
27
28
[Proposed] Preliminary Injunction – Page 15
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
VIII.
2
RETENTION OF ASSETS AND DOCUMENTS BY THIRD PARTIES
3
IT IS FURTHER ORDERED that, pending determination of the FTC’s
4
request for a preliminary injunction, any financial or brokerage institution,
5
business entity, electronic data host, or person served with a copy of this Order that
6
holds, controls, or maintains custody of any account, document, electronically
7
stored information, or asset of, on behalf of, in the name of, for the benefit of,
8
subject to withdrawal by, subject to access or use by, or under the signatory power
9
of any Defendant or other party subject to Section VII above, or has held,
10
controlled, or maintained any such account, document, electronically stored
11
information, or asset at any time since January 1, 2012, shall:
12
A.
Hold, preserve, and retain within such entity’s or person’s control, and
13
prohibit the withdrawal, removal, alteration, assignment, transfer,
14
pledge, hypothecation, encumbrance, disbursement, dissipation,
15
conversion, sale, liquidation, or other disposal of such account,
16
document, electronically stored information, or asset held by or under
17
such entity’s or person’s control, except as directed by further order of
18
the Court or as directed in writing by the Plaintiff regarding accounts,
19
documents, or assets held in the name of or benefit of any Defendant;
20
B.
Deny access to any safe deposit boxes that are either titled in the
21
name, individually or jointly, or subject to access by, any Defendant
22
or other party subject to Section VII above;
23
C.
Provide to counsel for the FTC, within one (1) business day, a sworn
24
statement setting forth:
25
1.
the identification of each account or asset titled in the name,
26
individually or jointly, or held on behalf of or for the benefit of,
27
subject to withdrawal by, subject to access or use by, or under
28
[Proposed] Preliminary Injunction – Page 16
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
the signatory power of any Defendant or other party subject to
2
Section VII above, whether in whole or in part;
3
2.
the balance of each such account, or a description of the nature
4
and value of such asset, as of the close of business on the day
5
on which this Order is served;
3.
6
the identification of any safe deposit box that is either titled in
7
the name of, individually or jointly, or is otherwise subject to
8
access or control by, any Defendant or other party subject to
9
Section VII above, whether in whole or in part; and
4.
10
if the account, safe deposit box, or other asset has been closed
11
or removed, the date closed or removed, the balance on said
12
date, and the name or the person or entity to whom such
13
account or other asset was remitted;
14
D.
Provide to counsel for the FTC within three (3) business days after
15
being served with a request, copies of all documents pertaining to
16
such account or asset, including, but not limited to, originals or copies
17
of account applications, account statements, signature cards, checks,
18
drafts, deposit tickets, transfers to and from the accounts, all other
19
debit and credit instruments or slips, currency transaction reports,
20
1099 forms, and safe deposit box logs; provided that such institution
21
or custodian may charge a reasonable fee; and
22
E.
Order’s implementation;
23
24
Cooperate with all reasonable requests of the Plaintiff relating to this
F.
The accounts subject to this provision include: (a) all assets of each
25
Defendant deposited as of the time this Order is entered, and (b) those
26
assets deposited after entry of this Order that are derived from the
27
actions alleged in Plaintiff’s Complaint. This Section does not
28
[Proposed] Preliminary Injunction – Page 17
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
prohibit the Repatriation of Foreign Assets, as specifically required in
2
Section XI of this Order; and
3
G.
The FTC is granted leave, pursuant to Fed. R. Civ. P. 45, to subpoena
4
documents immediately from any financial or brokerage institution,
5
business entity, electronic data host, or person served with a copy of
6
this Order that holds, controls, or maintains custody of any account,
7
document, electronically stored information, or asset of, on behalf of,
8
in the name of, for the benefit of, subject to withdrawal by, subject to
9
access or use by, or under the signatory power of any Defendant or
10
other party subject to Section VII above, or has held, controlled, or
11
maintained any such account, document, electronically stored
12
information, or asset at any time since January 1, 2012, and such
13
financial or brokerage institution, business entity, electronic data host,
14
or person shall respond to such subpoena within three (3) business
15
days after service.
IX.
16
FINANCIAL STATEMENTS AND ACCOUNTING
17
18
IT IS FURTHER ORDERED that each Defendant, within three (3)
19
business days of service of this Order, shall prepare and deliver to counsel for the
20
FTC:
21
A.
For the Individual Defendant, a completed financial statement
22
accurate as of the date of service of this Order upon such Defendant
23
on the form of Attachment A to this Order captioned “Financial
24
Statement of Individual Defendant”;
25
B.
For the Corporate Defendant, a completed financial statement
26
accurate as of the date of service of this Order upon such Defendant
27
(unless otherwise agreed upon with FTC counsel) in the form of
28
[Proposed] Preliminary Injunction – Page 18
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
Attachment B to this Order captioned “Financial Statement of
2
Corporate Defendant”; and
3
C.
For all Defendants, a list of all officers and directors of the Corporate
4
Defendant and all other individuals or entities with authority to direct
5
the operations of the Corporate Defendant or withdraw money from
6
the account of the Corporate Defendant.
7
X.
CONSUMER CREDIT REPORTS
8
9
IT IS FURTHER ORDERED that pursuant to Section 604(1) of the Fair
10
Credit Reporting Act, 15 U.S.C. § 1681b(1), any consumer reporting agency may
11
furnish to the FTC a consumer report concerning any Defendant.
XI.
12
REPATRIATION OF FOREIGN ASSETS
13
14
15
16
IT IS FURTHER ORDERED that, within five (5) business days following
the service of this Order, each Defendant shall:
a.
Provide counsel for the FTC with a full accounting of all assets,
17
accounts, funds, and documents outside of the territory of the
18
United States that are held either: (1) by Defendants; (2) for
19
their benefit; (3) in trust by or for them, individually or jointly;
20
or (4) under their direct or indirect control, individually or
21
jointly
22
b.
Provide counsel for the FTC with a full accounting of all assets,
23
accounts, funds, and documents outside of the territory of the
24
United States that are held either: (1) by Defendants; (2) for
25
their benefit; (3) in trust by or for them, individually or jointly;
26
or (4) under their direct or indirect control, individually or
27
jointly;
28
[Proposed] Preliminary Injunction – Page 19
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
c.
Transfer to the territory of the United States all assets, accounts,
2
funds, and documents in foreign countries held either: (1) by
3
Defendants; (2) for their benefit; (3) in trust by or for them,
4
individually or jointly; or (4) under their direct or indirect
5
control, individually or jointly; and
d.
6
Provide the FTC access to all records of accounts or assets of
7
the Corporate Defendant and Individual Defendant held by
8
financial institutions located outside the territorial United States
9
by signing the Consent to Release of Financial Records
attached to this Order as Attachment C.
10
e.
11
All repatriated assets, accounts, funds, and documents are
subject to Section VII of this Order.
12
XII.
13
NONINTERFERENCE WITH REPATRIATION
14
15
IT IS FURTHER ORDERED that Defendants are hereby preliminarily
16
restrained and enjoined from taking any action, directly or indirectly, that may
17
result in the encumbrance or dissipation of foreign assets, or in the hindrance of the
18
repatriation required by the preceding Section XI of this Order, including, but not
19
limited to:
20
A.
Sending any statement, letter, fax, email, or wire transmission, or
21
telephoning or engaging in any other act, directly or indirectly, that
22
results in a determination by a foreign trustee or other entity that a
23
“duress” event has occurred under the terms of a foreign trust
24
agreement until such time that all assets have been fully repatriated
25
pursuant to Section XI of this Order; or
26
B.
Notifying any trustee, protector, or other agent of any foreign trust or
27
other related entities of either the existence of this Order, or of the fact
28
that repatriation is required pursuant to a court order, until such time
[Proposed] Preliminary Injunction – Page 20
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
that all assets have been fully repatriated pursuant to Section XI of
2
this Order.
3
XIII.
4
PROHIBITION ON RELEASE OF CONSUMER INFORMATION
5
IT IS FURTHER ORDERED that, except as required by a law
6
enforcement agency, law, regulation, or court order, Defendants, and their officers,
7
agents, servants, employees, and attorneys, and all other persons in active concert
8
or participation with any of them who receive actual notice of this Order by
9
personal service, facsimile transmission, email, or otherwise, are preliminarily
10
restrained and enjoined from disclosing, using, or benefitting from consumer
11
information, including the name, address, telephone number, email address, social
12
security number, other identifying information, or any data that enables access to a
13
consumer’s account (including a credit card, bank account, or other financial
14
account), of any person which any Defendant obtained prior to entry of this Order
15
in connection with any mortgage assistance relief service.
16
XIV.
17
STAY OF ACTIONS
18
IT IS FURTHER ORDERED that:
19
A.
Except by leave of this Court, during pendency of the asset freeze
20
ordered herein, Defendants and all other persons and entities be and
21
hereby are stayed from taking any action to establish or enforce any
22
claim, right, or interest for, against, on behalf of, in, or in the name of,
23
the Corporate Defendant, or any of its subsidiaries, affiliates,
24
partnerships, or assets including, but not limited to, the following
25
actions:
26
1.
Commencing, prosecuting, continuing, entering, or enforcing
27
any suit or proceeding, except that such actions may be filed to
28
toll any applicable statute of limitations;
[Proposed] Preliminary Injunction – Page 21
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
2.
Accelerating the due date of any obligation or claimed
2
obligation; filing or enforcing any lien; taking or attempting to
3
take possession, custody, or control of any asset; attempting to
4
foreclose, forfeit, alter, or terminate any interest in any asset,
5
whether such acts are part of a judicial proceeding, are acts of
6
self-help, or otherwise; or
3.
7
Executing, issuing, serving, or causing the execution, issuance
8
or service of, any legal process, including, but not limited to,
9
attachments, garnishments, subpoenas, writs of replevin, writs
10
of execution, or any other form of process whether specified in
11
this Order or not.
12
13
B.
This Section does not stay:
1.
proceeding;
14
15
The commencement or continuation of a criminal action or
2.
The commencement or continuation of an action or proceeding
16
by the State Bar of California to enforce its police or regulatory
17
power;
18
3.
The commencement or continuation of an action or proceeding
19
by a governmental unit to enforce such governmental unit’s
20
police or regulatory power;
21
4.
The enforcement of a judgment, other than a money judgment,
22
obtained in an action or proceeding by a governmental unit to
23
enforce such governmental unit’s police or regulatory power; or
24
5.
The issuance to a Defendant of a notice of tax deficiency.
XV.
25
MONITORING
26
27
IT IS FURTHER ORDERED that agents or representatives of the FTC
28
may contact Defendants directly or anonymously for the purpose of monitoring
[Proposed] Preliminary Injunction – Page 22
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
compliance with this Order, and may tape-record any oral communications that
2
occur in the course of such contacts.
3
XVI.
4
DEFENDANTS’ DUTY TO DISTRIBUTE ORDER
5
IT IS FURTHER ORDERED that Defendants shall immediately provide a
6
copy of this Order to each affiliate, subsidiary, division, sales entity, successor,
7
assign, officer, director, employee, independent contractor, client company,
8
electronic data host, agent, attorney, spouse, and representative of Defendants and
9
shall, within three (3) calendar days from the date of entry of this Order, provide
10
counsel for the FTC with a sworn statement that: (a) confirms that Defendants
11
have provided copies of the Order as required by this Section, and (b) lists the
12
names and addresses of each entity or person to whom Defendants provided a copy
13
of the Order. Furthermore, Defendants shall not take any action that would
14
encourage officers, agents, directors, employees, salespersons, independent
15
contractors, attorneys, subsidiaries, affiliates, successors, assigns, or other persons
16
or entities in active concert or participation with Defendants to disregard this Order
17
or believe that they are not bound by its provisions.
18
XVII.
19
CORRESPONDENCE WITH PLAINTIFF
20
IT IS FURTHER ORDERED that, for the purposes of this Order, because
21
mail addressed to the FTC is subject to delay due to heightened security screening,
22
all correspondence and service of pleadings on Plaintiff shall be sent either via
23
electronic submission or via Federal Express to:
24
Eleanor Durham
Federal Trade Commission
915 Second Ave., Suite 2896
Seattle, WA 98174
edurham@ftc.gov
with a copy to:
25
26
27
28
Barbara Chun
[Proposed] Preliminary Injunction – Page 23
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
1
Federal Trade Commission
10877 Wilshire Blvd., Suite 700
Los Angeles, CA 90024
bchun@ftc.gov
XVIII.
2
3
4
SERVICE OF THIS ORDER
5
IT IS FURTHER ORDERED that copies of this Order may be served by
6
7
facsimile transmission, email, personal or overnight delivery, or U.S. Mail, by
8
agents and employees of the FTC or any state or federal law enforcement agency
9
or by private process server, upon any financial institution or other entity or person
10
that may have possession, custody, or control of any documents or assets of any
11
Defendant, or that may otherwise be subject to any provision of this Order.
12
Service upon any branch or office of any financial institution shall effect service
13
upon the entire financial institution.
14
XIX.
15
RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of
16
17
this matter for all purposes of construction, modification, and enforcement of this
18
Order.
19
IT IS SO ORDERED, this 29th day of April, 2015, at 9:00 a.m. (Pacific
20
21
time).
22
23
________________________________
24
UNITED STATES DISTRICT JUDGE
25
26
27
28
[Proposed] Preliminary Injunction – Page 24
Federal Trade Commission
915 2nd Ave., Ste. 2896
Seattle, Washington 98174
(206) 220-6350
FEDERAL TRADE COMMISSION
FINANCIAL STATEMENT OF INDIVIDUAL DEFENDANT
Instructions:
1.
Complete all items. Enter “None” or “N/A” (“Not Applicable”) where appropriate. If you cannot fully answer a
question, explain why.
2.
“Dependents” include your live-in companion, dependent children, or any other person, whom you or your spouse
(or your children’s other parent) claimed or could have claimed as a dependent for tax purposes at any time during
the past five years.
3.
“Assets” and “Liabilities” include ALL assets and liabilities, located within the United States or elsewhere,
whether held individually or jointly.
4.
Attach continuation pages as needed. On the financial statement, state next to the Item number that the Item is
being continued. On the continuation page(s), identify the Item number(s) being continued.
5.
Type or print legibly.
6.
Initial each page in the space provided in the lower right corner.
7.
Sign and date the completed financial statement on the last page.
Penalty for False Information:
Federal law provides that any person may be imprisoned for not more than five years, fined, or both, if such person:
(1) “in any matter within the jurisdiction of any department or agency of the United States knowingly and
willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false,
fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the
same to contain any false, fictitious or fraudulent statement or entry” (18 U.S.C. § 1001);
(2) “in any . . . statement under penalty of perjury as permitted under section 1746 of title 28, United States Code,
willfully subscribes as true any material matter which he does not believe to be true” (18 U.S.C. § 1621); or
(3) “in any (. . . statement under penalty of perjury as permitted under section 1746 of title 28, United States
Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any
false material declaration or makes or uses any other information . . . knowing the same to contain any false
material declaration” (18 U.S.C. § 1623).
For a felony conviction under the provisions cited above, federal law provides that the fine may be not more than the
greater of (i) $250,000 for an individual or $500,000 for a corporation, or (ii) if the felony results in pecuniary gain to any
person or pecuniary loss to any person other than the defendant, the greater of twice the gross gain or twice the gross loss.
18 U.S.C. § 3571.
Attachment A
BACKGROUND INFORMATION
Item 1.
Information About You
Your Full Name ______________________________________________ Social Security No. ___________________
Place of Birth _________________________ Date of Birth _______________ Drivers License No. _______________
Current Address ______________________________________________________ From (Date) _________________
Rent or Own? _________ Telephone No. _________________________ Facsimile No. _________________________
E-Mail Address _____________________________________ Internet Home Page ____________________________
Previous Addresses for past five years:
Address___________________________________________ Rent or Own?________ From/Until_________________
Address___________________________________________ Rent or Own?________ From/Until_________________
Identify any other name(s) and/or social security number(s) you have used, and the time period(s) during which they
were used________________________________________________________________________________________
Information About Your Spouse or Live-In Companion
Item 2.
Spouse/Companion's Name _____________________________________ Social Security No. ___________________
Place of Birth _________________________________________ Date of Birth _______________________________
Identify any other name(s) and/or social security number(s) your spouse/companion has used, and the time period(s)
during which they were used ________________________________________________________________________
Address (if different from yours) _____________________________________________________________________
From (Date) _________________________ Rent or Own?___________ Telephone No._________________________
Employer’s Name and Address ______________________________________________________________________
Job Title _______________________ Years in Present Job _________ Annual Gross Salary/Wages $______________
Information About Your Previous Spouse
Item 3.
Previous Spouse’s Name & Address __________________________________________________________________
___________________________________ Social Security No. _________________ Date of Birth _______________
Contact Information
Item 4.
Page 2
Attachment A
Initials __________
Name & Address of Nearest Living Relative or Friend ___________________________________________________
____________________________________________________________ Telephone No. ______________________
Item 5.
Information About Dependents Who Live With You
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