UNDERSTANDING THE RESPA QUALIFIED WRITTEN REQUEST

The following is general legal information only and not intended to serve as legal advice or a substitute for legal advice.  This is only the opinion of the author.  For specific advice please contact an attorney.

Every time your loan is sold the new loan servicer is required under the Real Estate Settlement Procedures Act ("RESPA") to provide you the following notice: 

"Section 6 of RESPA provides borrowers with consumer protections relating to the servicing of their loans. If a borrower sends a "qualified written request" to his loan servicer concerning the servicing of the loan, the servicer must provide a written acknowledgment within 20 business days of receipt of the request. Not later than 60 business days after receiving the request, the servicer must make any appropriate corrections to the borrower's account, and must provide a written clarification regarding any dispute. During this 60-day period, the servicer may not provide information to a consumer reporting agency concerning any overdue payment related to such period or qualified written request.

The notice will go on to state the address you should send the request to.

As noted above, a few things are supposed to happen when you make a Qualified Written Request (QWR):

(1) They (the loan servicer) are required to halt negative credit reporting on your account

(2) They (the loan servicer) are required to "acknowledge" your request within 20 days

(3) The servicer is required to investigate and respond and provide the requested documentation in most cases

If your lender fails to comply in regard to any of the above, they have violated RESPA and a Cause of Action may be brought against the Loan Servicer.  Keep in mind, this is the entity that normally holds your fate in regards to getting a loan modification and preventing foreclosure of your property.  So if they fail to comply fully, which is a great possibility in my experience, then you have a right to sue them and bring them to the table.

Section 6 of RESPA also provides for damages and costs for individuals or classes of individuals in circumstances where servicers are shown to have violated the requirement of that Section."  Courts have held that emotional damages are recoverable under this section and your failure to comply may raise a cause of action for personal injury damages intentionally inflicted upon my Client(s).

 What?  Are you telling me a RESPA violation may be turned into a personal injury case of sorts?  Yes, that is what one court has held.  So, if as a result of the lenders failure to comply with this section you can sue them for your serious suffering and emotional damages?  That is truly amazing. 

What kinds of things can you ask for in a RESPA QWR?

I would argue that anything that relates to the servicing of your loan is worthy of discovery (payments made, interest rate changes, index and change dates used on ARM loans, late fees charged and applied etc.).  If the loan servicer keeps shoddy books and fails to comply with your RESPA Qualified Written Request, they should be held accountable. 

Here is a list of some of the loan documents you should ask for when making a RESPA Qualified Written Request (they may or may not have some or all of these):

Copies of all loan documents pertaining to the origination of the above-referenced mortgage(s)/loans maintained by your company (including both the first and second mortgage files) including; producing the original promissory note and any note addendums or riders, any notice of assignments, all loan applications (initial and final signed 1003's), TWO COMPLETED copies for EACH borrower or person with an ownership or security interest in the above referenced property, of their required Notice of Right to Cancel, copy of the notarized deed of trust and any and all riders and addendums to such, and all adjustable rate ARM disclosures, CHARM disclosures, HUD required disclosures, Other Disclosures, all Truth in Lending statements (including both preliminary and final TIL's), all Truth in Lending "Itemization of Amount Financed" documents, all Good Faith Estimate(s) (GFE), all final HUD-1 or HUD1A closing statements, Escrow Closing Instructions, Escrow/Impound documents, all Buy-down agreements, a complete copy of the appraisal on the subject property, all rate lock and rate sheets, and loan float sheets associated with this transaction, and any PMI/MIP information or certificate for the above-referenced loan. The copies should be legible and all documents shall be copied in their entirety.

But don't stop there.  Ask for other items related to their servicing of your loan and billing practices of the loan servicer in regard to your account:

Life of Loan Accounting (including both the first and second mortgage files): Due to serious questions over the servicing of this loan by your company - and potentially previous loan servicer(s) - we are hereby requesting a copy of the entire loan history for the above referenced loan accounts ("life of loan" accounting) which shall include each of the following;

     (a) an accounting of all payments made to date on this account (from the close of escrow to the date you respond to this demand) in an easy to read and understandable format, please include a description of how all principal and/or interest payments were made and applied;

      (b) an itemization and description of all late fees, late charges, appraisal fees, property inspection fees, forced placed insurance charges, legal fees, and recoverable corporate advances charged to this account and an explanation as to why such fees were charged;

      (c) Explanation and proof of the ARM Index used (ex. Libor, etc.) for any ARM interest rate calculations, change date calculations or other calculations relating to my Client's monthly payments claimed owed your company;

      (d) Include all dates when rate changes were calculated and the resulting payment claimed due (corresponding adjustment amount);  

      (e) Please document and provide evidence of any other payment and/or interest rate adjustments made by your company in servicing this loan;

      (f) Provide an accounting for any fees and all amounts paid in relation to the Servicing of my Clients escrow account, (if applicable).

      (g) A breakdown of the current escrow charges showing how it is calculated and the reasons for any increase within the last 24 months and a breakdown of any shortage, deficiency or surplus in our escrow account over the past three years.

NOTE TO LOAN SERVICER: All information requested herein must cover the entire life of the loan, including all periods of accounting by previous loan servicers/lenders, if any.

Since the loan servicer is making money servicing your account and by charging you late fees, shouldn't they have to accurately account for what they are doing behind closed doors?  We think so.  If they cannot show accurate and detailed records why should they be allowed to foreclose on your property?  A suit for wrongful foreclosure should be examined by a competent attorney.

Of course there are other items we demand when making a RESPA qualified written request but we cannot go over all the items on this blog.

If you want our firm to file a Qualified Written request on your behalf, and/or help you obtain a loan modification, please contact us at (877) 276-5084.  We would be happy to discuss your situation.

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(877) 276-5084

We are licensed to Practice Law in California and Arizona California Clients Address: 620 Newport Center Drive, Suite 1100, Newport Beach, Ca. 92660 Phone: (877) 276-5084 Fax: (949) 209-0358 Email: steve@vondranlaw.com    Arizona Clients   Address: 2415 E. Camelback Road, Suite 700, Phoenix, Arizona 85016 Phone: (877) 276-5084 Fax: (602) 358-8013 Email: steve@vondranlaw.com

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Notice/Disclaimer /Contact Information:  The preceeding information is general information only and not intended to serve as legal advice or a substitute for legal advice.  For specific legal questions please contact a qualified attorney licensed in your state to assist you.  There are no warranites or representations made that the following information is accurate, complete or up to date.  In addition, any emails sent to us are not confidential and do not create an attorney client relationship.  Please use your discretion before sending confidential information.  The Law Offices of Steven C. Vondran is operated by Attorney Steve Vondran.  Mr. Vondran is licensed to practice law in the States of Arizona and California and only seeks to solicit and serve Clients in these states.  This is an advertisement and communication pursuant to state bar rules.  There are no guarantees a loan audit will reveal any legal errors of compliance violations.  There are likewise no guarantees any lender or loan servicer will modifiy any loan.  Each loan, property, borrower, investor and servicer are different.  In addition, there are no representations made that Mr. Vondran will accept any litigation case following a loan audit and/or a demand letter to the lender. 

For more information about Mr. Vondran's law firm please visit www.VondranLaw.com the Attorney Loan Audit program can be reviewed at www.AttorneyMods.com  If you are a California Real Estate Broker looking for a DRE Approved Advance Fee Agreeement please visit www.AdvanceFeeContract.com   We have over 20 approved DRE companies as of this writing and have several advance fee agreement options available including an advance fee agreement that allows for outsourced Attorney Loan Audits and/or a letter to the Lender.  We also have spanish advance fee agreements available.

If you are a homeowner and are looking for an attorney or law firm to handle your loan modification request, please visit www.loanmodsolutions,net   Fill out the form and a representative of our firm will contact you promptly to discuss your situation.  We also have loan modification information available at www.AttorneyLoanAudit.com

For Brokers interested in loan modification seminars, please visit www.loanmodseminar.com .  The next seminar is scheduled for March 20th, 2009 in Long Beach, California.  There is also another  event scheduled in San Jose, California for March 27th, 2009.

Homeowners who believe they may have been a victim of loan modification fraud should visit www.ModScams.com or www.LoanModificationScams.net to learn more about what you can do to fight foreclosure rescue scams.

Our Offices:   California: 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660

                        Arizona: 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016

                        Phone (877) 276-5084  Email:  Steve@VondranLaw.com

 

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