Methuss

Letter to your mortgage servicer.

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Unfortunately, I didn't get a chance to answer sik before the court date, but maybe this will help others who come along and read it.

This letter is part of the Real Estate Settlement Procedures Act (RESPA)

the Qualified Written Request (QWR) is allowable under 12 U.S.C. 2605e

The servicer has 20 days to acknowledge the request, and 60 days to respond.

There's also an interesting tie-in to the FCRA here:

(3) Protection of credit rating

During the 60-day period beginning on the date of the servicer’s receipt from any borrower of a qualified written request relating to a dispute regarding the borrower’s payments, a servicer may not provide information regarding any overdue payment, owed by such borrower and relating to such period or qualified written request, to any consumer reporting agency (as such term is defined under section 1681a of title 15).

I'm of the impression that in the megabanks, the QWR probably doesn't halt the credit reporting, though it's supposed to.

I've been following Neil Garfield's blog about the securitization mess in the mortgage market and came across two interesting points.

One being the "Holder in due course" argument about the promissory note.

It simply states that if the servicer can't produce the note, or rights to service the account of said note, then there is no case. A prominent florida lawyer has been teaching on this subject after successful quiet title actions on mortgages.

There's also the issue of MERS, and it's role in the whole mess.

Landmark Nat'l Bank v Kessler, a Kansas Supreme court decision goes into more detail on this.

And then we have the good old UCC.

Presentment:

http://www.law.cornell.edu/ucc/3/3-501.html

* (a) "Presentment" means a demand made by or on behalf of a person entitled to enforce an instrument (i) to pay the instrument made to the drawee or a party obliged to pay the instrument or, in the case of a note or accepted draft payable at a bank, to the bank, or (ii) to accept a draft made to the drawee.

* (B) The following rules are subject to Article 4, agreement of the parties, and clearing-house rules and the like:

o (1) Presentment may be made at the place of payment of the instrument and must be made at the place of payment if the instrument is payable at a bank in the United States; may be made by any commercially reasonable means, including an oral, written, or electronic communication; is effective when the demand for payment or acceptance is received by the person to whom presentment is made; and is effective if made to any one of two or more makers, acceptors, drawees, or other payors.

o (2) Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made.

o (3) Without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of a necessary indorsement, or (ii) refuse payment or acceptance for failure of the presentment to comply with the terms of the instrument, an agreement of the parties, or other applicable law or rule.

o (4) The party to whom presentment is made may treat presentment as occurring on the next business day after the day of presentment if the party to whom presentment is made has established a cut-off hour not earlier than 2 p.m. for the receipt and processing of instruments presented for payment or acceptance and presentment is made after the cut-off hour.

There is a lawyer in TN using his state's implementation of the UCC arguing against the "waiver of presentment" clause that is on many deeds of trust that secure a note. The argument is essentially that, while the consumer may have waived right of presentment, but company is making presentment by demanding payment.

As such UCC comes into play again. See section (B)(2) above.

In the case of lost or destroyed notes.

See UCC 3-309, 3-604, 3-204.

604 and 204 are the prerequisites for 309 and enforceability.

Federal UCC section 3 can be found here.

http://www.law.cornell.edu/ucc/3/overview.html#3-420

And each state is supposed to have adopted the UCC into its statutes.

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In regards to my above post, things have changed quite dramatically. I believe 19 states require foreclosure to go through legal channels. These are considered judicial foreclosure states.

In non-judicial foreclosure states, one needs to file a lis pendens against the property, and drag the foreclosure process into court through filing suit against a party who claims interest in the property. Of course BK 13 can also accomplish this, and currently has been more successful in non-judicial states, unless there is a strong case against the servicer already.

The problem with this method is that it's hard to locate the person who actually has an interest in the property.

As it stands, the flowchart goes like this.

Stand in Lender "originates" loan.

This stand in Lender has a revolving line of credit with a warehouse lender (the real issuer of the funds).

This lender lends money to the homeowner to pay the seller and a debt is created.

However, at this point, the warehouse lender (also known as the table funder)

Sells the loan to an investment bank.

Now the paths split.

The investment bank packages the loan into a trust or pool of mortgage backed securites and either sells it on the tertiary mortgage market as an asset for other investors or to Freddie or Fannie. A trustee is created to maintain the trust, and usually the trustee is the one who forecloses in the name of the trust.

As this happens, another bank is given servicing rights. This, the servicer, is who you're paying your monthly payments to. There's a high chance they have no real interest in the property and are merely servicing the loan by contract for the actual lender.

Here's the kicker. MERS if involved in the whole process. This circumvents state law for recordation of negotiable instruments. Namely, the transfers that MERS makes are never recorded and this the transfer of interest, (i.e. the holder in due course) isn't recorded as a party in interest with the county the property is located in. As such, they have an imperfect chain of title, and invariably have clouded the title to the property.

So how does this tie into the servicer? Well, if the servicer doesn't have any fiduciary interest in the property, then the servicer is collecting a debt for another entity and guess what that puts the servicer under the purview of? That's right, the FDCPA.

(See the Stark v. EMC).

As far as the QWR letter, it's used when the borrower suspects that unlawful fees have been charged and/or payments have not been correctly applied. It's just one of many tools to fight an unscrupulous mortgage servicer. Other TILA provisions can be helpful as well. The real meat goes after the unnamed lender.

I'm sure many of you have read the "Produce the Note" argument. And while it has it's merits, it's hard to pull off without out making the judge weary that you're simply trying to get a free house. The addendum to the produce the note is: produce it, and then produce the perfected chain of assignment.

"Yes your honor, I know I owe someone money for this home, and I don't mind paying. I just want to make sure I'm paying the right person, and I have reason to believe that (servicer bank) isn't the right party."

As far as WAMU now being Chase, I'm not sure. Try this

http://lmgtfy.com/?q=chase+takes+over+wamu

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Yes it can. Fannie and Freddie never service loans. And usually the number swapping, if it occurs, is done by the servicer. That would be people such as BAC home loans, Chase's mortgage servicing department, EMC or example and others. So you can send this letter to whoever is sending you the bill on the mortgage.

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Yes it can. Fannie and Freddie never service loans. And usually the number swapping, if it occurs, is done by the servicer. That would be people such as BAC home loans, Chase's mortgage servicing department, EMC or example and others. So you can send this letter to whoever is sending you the bill on the mortgage.

Thanks 42, do you know if there is a more updated validation of debt letter because of the recent issues with people's home being taken away because of fraudulent documents.

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Here's a letter my attorney gave which is what you use to derail mortgage servicers. You send this letter certified to your servicer and then wait. As he told me 90% of the time the servicer will not reply because if they do it will show all the hidden fees, charges and interest they have illegally applied to your account and which get hidden in your payoff amount or simply get overlooked with time.

This letter, if they fail to reply and later try to foreclose on you, creates a defense and countersuit for RESPA violations. You don't go after them for failing to respond...well you could...but its really something you keep in your back pocket for when you need it.

This letter is a “qualified written request” under the Federal Servicer Act, which is a part of the Real Estate Settlement Procedures Act, 12 U.S.C. 2605(e). This request is made on the above referenced account. Specifically, I am requesting the following information:

1. A complete and itemized statement of the loan history from the date of the loan to the date of this letter including, but not limited to, all receipts by way of payment or otherwise and all charges to the loan in whatever form. This history should include the date of each and every debit and credit to any account related to this loan, the nature and purpose of each such debit and credit, and the name and address of the payee of any type of disbursement related to this account.

2. A complete and itemized statement of all advances or charges against this loan for any purpose that are not reflected on the loan history transaction statement provided in answer to question #1.

3. A complete and itemized statement of the escrow account of the loan, if any, from the date of the loan to the date of this letter, including, but not limited to, any receipts or disbursements with respect to real estate property taxes, fire or hazard insurance, flood insurance, mortgage insurance, credit insurance, or any other insurance product.

4. Have you purchased and charged to the account any Vendor’s Single Interest Insurance?

5. A complete and itemized statement from the date of the loan to the date of this letter of any forced-placed insurance and expenses related thereto, related in any way to this loan.

6. A complete and itemized statement from the date of the loan to the date of this letter of any suspense account entries and/or any corporate advance entries related in any way to this loan.

7. A complete and itemized statement from the date of the loan to the date of this letter of any property inspection fees, property preservation fees, broker opinion fees, appraisal fees, bankruptcy monitoring fees, or other similar fees or expenses related in any way to this loan.

8. Identify the provision under the Deed of Trust and/or note that authorizes charging each and every such fee against the loan.

9. Please attach copies of all property inspection reports and appraisals.

10. A complete and itemized statement of any and all post-petition arrears including each month in which the default occurred, and the amount of each monthly default.

11. A complete and itemized statement of any late charges to this loan from the date of this loan to the date of this letter.

12. The amount, if applicable, of any “satisfaction fees.”

13. A complete and itemized statement from the date of the loan to the date of this letter of any fees incurred to modify, extend, or amend the loan or to defer any payment due under the terms of the loan.

14. The current amount needed to pay-off the loan in full.

15. A full and complete comprehensible definitional dictionary of all transaction codes and other similar terms used in the statements requested above.

16. A complete and itemized statement of any funds deposited in any post-petition suspension account(s) or corporate advance account(s), including, but not limited to, the balance in any such account or accounts and the nature, source and date of any and all funds deposited in such account or accounts.

17. A complete and itemized statement from the date of this loan to the date of this letter of the amount, payment date, purpose and recipient of all foreclosure expenses, NSF check charges, legal fees, attorney fees, professional fees and other expenses and costs that have been charged against or assessed to this mortgage.

18. A complete and itemized statement of the amount, payment date, purpose and recipient of all fees for the preparation and filing of the original proof of claim, any amended proofs of claim, or any supplemental proofs of claim related to this mortgage.

19. The full name, address and phone number of the current holder of this debt including the name, address and phone number of any trustee or other fiduciary. This request is being made pursuant to Section 1641(f)(2) of the Truth In Lending Act, which requires the servicer to identify the holder of the debt.

20. The name, address and phone number of any master servicers, servicers, sub-servicers, contingency servicers, back-up servicers or special servicers for the underlying mortgage debt.

21. A copy of any mortgage Pooling and Servicing Agreement and all Disclosure Statements provided to any Investors with respect to any mortgage-backed security trust or other special purpose vehicle related to the said Agreement and any and all Amendments and Supplements thereto.

22. If a copy of the Pooling and Servicing Agreement has been filed with the SEC, provide a copy of SEC Form 8k and the Prospectus Supplement, SEC Form 424b5.

23. The name, address and phone number of any Trustee under any pooling or servicing agreement related to this loan.

24. A copy of the Prospectus offered to investors in the trust.

25. Copies of all servicing, master servicing, sub-servicing, contingency servicing, special servicing, or back-up servicing agreements with respect to this account.

26. All written loss-mitigation rules and work-out procedures related to any defaults regarding this loan and similar loans.

27. The procedural manual used with respect to the servicing or sub-servicing of this loan.

28. A summary of all fixed or standard legal fees approved for any form of legal services rendered in connection with this account.

29. Is this loan subject to any Electronic Tracking Agreement? If the answer is yes, then state the full name and address of the Electronic Agent and the full name and address of the Mortgage Electronic Registration System.

30. Is the servicing of this loan provided pursuant to any type of mortgage electronic registration system? If the answer is yes, then attach a copy of the mortgage electronic registration system procedures manual.

31. A copy of the LSAMS Transaction History Report for the mortgage loan account, with a detailed description of all fee codes.

32. Is this a MERS Designated Mortgage Loan? If the answer is yes, then identify the electronic agent and the type of mortgage electronic system used by the agent.

33. Is this mortgage part of a Mortgage Warehouse Loan? If so, then state the full name and address of the Lender and attach a copy of the Warehouse Loan Agreement.

34. Upon any default or notice of default, state whether or not the Mortgage Warehouse Lender has the right to override any servicers or sub-servicers and provide instructions directly to the Electronic Agent? If the answer is yes, then specifically identify the legal basis for such authority.

35. Is this mortgage part of a Whole Loan Sale Agreement? If the answer is yes, then state the name and address of the Purchaser, the Custodian, the Trustee, the Electronic Agent and any Servicer or Sub-Servicers.

You should be advised that you must acknowledge receipt of this qualified written request within 20 business days, pursuant to 12 U.S.C. Section 2605(e)(1)(A) and Reg. X Section 3500.21(e)(1).

You should also be advised that I will seek the recovery of damages, costs, and reasonable legal fees for each failure to comply with the questions and requests herein. I also reserve the right to seek statutory damages for each violation of any part of Section 2605 of Title 12 of the United States Code.

*Also note that mortgage servicers are required to fully answer all these questions within 60 days from the date they receive this letter in addition to acknowleding receipt of your request in the first 20 days. During that time they are forbidden to report late-pays to the bureaus as well.

Awesome awesome awesome!!! I just modified my loan, well they judge made them do it, lol back in August and they just sent me a letter telling me I'm in default 68 days -627.42. That's right I'm in default for having a credit on my account. :shock: Well, I'm supposed to be in court next week because they filed a motion to vacate a judgment so my attorney and I will be there to ask that they judge intervene in helping them correct their records.

In the mean time, the modification states that the shortage/escrow will be put back into the loan. When I go to their website to check my account, it states I still have a shortage in the same amount and they refuse to correct it. These guys are clowns and I'm writing everyone, including the president of the US to get this mess resolved.

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What if I already lost an investment home due to foreclosure on the first back in May, 2008 and I just received a letter from GMAC (also the noteholder of the 1st that was foreclosed) syaing that my initial draw period on the HELOC would be ending at the end of June, 2011. What can I do to get out of this situation? Will this letter work?

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Will this do anything for someone who is already in foreclosure?

Well, it certainly cannot HURT you. The point is to prepare your QWR so that it represents YOUR situation and YOUR mortgage loan. Do not use the letter presented here word for word. Some of the items requested in that letter might not even apply to you.

I can assure you that your lender has probably added in some fees and charges (through the years) that are bogus. If for no other reason, you want to be certain they are only paid what is really owed.

I sent several QWRs. My lender responded and I found a host of instances of abusive servicing from 10 years earlier. I was amazed.

Frankly, I advise ANYONE who has a mortgage should request detailed financials about their account via a QWR at least every 5 years. My lender, Cenlar, is just a bunch of crooks. They don't even know the rules and regulations. They are so incompetent that they sent me a letter and quoted HUD guidelines that were flat out wrong - what they quoted had been revised 15 months before. I have a big pile of evidence like this. I'm going to hold onto it so I can bring it up in court or at any time when I need an ace in the hole.

What you get back from your QWR will boggle your mind - especially if the lender foreclosed.

So send it. Use certified mail with return receipt.

BY the way, the guidelines have changed effective July 21, 2010. Your lender must now acknowledge receipt of your QWR within 5 days. The Act also changes the substantive response deadline from 60 days to just 30 days. It does allow a 15-day extension, if the borrower is notified of the extension and the reasons for the delay.

Good luck.

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Well, it certainly cannot HURT you. The point is to prepare your QWR so that it represents YOUR situation and YOUR mortgage loan. Do not use the letter presented here word for word. Some of the items requested in that letter might not even apply to you.

I can assure you that your lender has probably added in some fees and charges (through the years) that are bogus. If for no other reason, you want to be certain they are only paid what is really owed.

I sent several QWRs. My lender responded and I found a host of instances of abusive servicing from 10 years earlier. I was amazed.

Frankly, I advise ANYONE who has a mortgage should request detailed financials about their account via a QWR at least every 5 years. My lender, Cenlar, is just a bunch of crooks. They don't even know the rules and regulations. They are so incompetent that they sent me a letter and quoted HUD guidelines that were flat out wrong - what they quoted had been revised 15 months before. I have a big pile of evidence like this. I'm going to hold onto it so I can bring it up in court or at any time when I need an ace in the hole.

What you get back from your QWR will boggle your mind - especially if the lender foreclosed.

So send it. Use certified mail with return receipt.

BY the way, the guidelines have changed effective July 21, 2010. Your lender must now acknowledge receipt of your QWR within 5 days. The Act also changes the substantive response deadline from 60 days to just 30 days. It does allow a 15-day extension, if the borrower is notified of the extension and the reasons for the delay.

Good luck.

I want to make a correction to my statement above about the change effective July 21, 2010.

This was a proposed change that was passed under the Dodd-Frank Act. However, it has yet to be implemented. The legal environment can be so confusing sometimes.

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I have been trying to get my loan modify with B of A for the last 2 yrs and have gone thru 4 account managers, with no luck. I am in what they call a "foreclosure hold". They will not accept my monthly payments, until a decision is made, I am sure I am increasing my default amount.

I feel as this letter seems to have come at the right time.

Thanks and will appreciate any additional advise.

Dipak

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As you said that they hold your foreclosure ,some lenders are keeping there foreclosures off the market for 6 moths or longer. They do not want to flood the market with excess foreclosures and push the price of market down . So keep everything in mind and go ahead .

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*Also note that mortgage servicers are required to fully answer all these questions within 60 days from the date they receive this letter in addition to acknowledging receipt of your request in the first 20 days. During that time they are forbidden to report late-pays to the bureaus as well.

Is there a law that can be cited here and included in the RESPA letter?:confused:

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