Sign in to follow this  
BlackMetallic

using lender's declaration from bankruptcy court as a basis for a QWR request. Is that even possible?

Recommended Posts

I'm wondering if this is even possible due to jurisdiction issues, but here is the dilemma:

 

Lender has filed a motion for relief of stay in my bankruptcy case. The motion was supported by a declaration of one of  lender's employees, who is claiming to be a custodian of records/specialist, etc. etc. The declaration was signed under penalty of perjury and some of the information in it was incorrect.

 

Once the bankruptcy is over, is it even theoretically possible to use that declaration to launch a RESPA/QWR inquiry into how loan servicer made the oversights/errors that can be seen in the declaration? Or is this a waste on my end due to the fact that the declaration was filed in one venue (Bankruptcy court), while I am using it outside of scope, so to speak. But, if I am not mistaken, RESPA is federal Law, so I keep wondering...

 

I guess I am trying to fish out some loan servicer errors, so I am wondering if this could be used as an opportunity or if I am going down a blind alley with this idea.

 

Thanks.

Share this post


Link to post
Share on other sites

Filing bankruptcy is normally the “last Band-Aid” you can apply to stop debtors from coming after you. 

 

Through Chapter 13's the debt is paid over a 60 month period though a trustee. 

 

Typically a motion for "Relief of Stay" is granted only if you defaulted on your trustee payments.  

 

If you have been making your trustee payments on time you should be OK..

 

As for loan servicing errors - don't waste your time. 

 

I do not know your situation - talk with many people (before, discovery, set-up, currently in, and after) bankruptcy’s. 

 

Realize you don't want to hear this - not trying to sell you anything, just telling you the truth. 

 

An analogy of your current situation is looking for a bigger Band-Aid to cover up the last   You dug yourself deep into a hole, you’re looking for anything to prevent yourself from falling deeper. Right now you have tunnel vision which is normal after flying bankruptcy.  You are trying to focus on the wrong things that will not help you. 

 

My point is to suggest focusing on where you problem(s) is (are), by asking how did this happen?  That is where you should start changing. 

 

Strong question – where will you be in 10 years, 5 fives, next year?  Learn to set goals; little steps first, then larger steps later.  Do this now, because tomorrow it will be twice as hard to start turning things around.

 

Good Luck

 

 

 

 

 

 

 

 

Point you a wasting time looking at the wrong problem.

  • Like 1

Share this post


Link to post
Share on other sites

A QWR violation (assuming I was able to prove it in court by admissible evidence) is going to be small change compared to the theft of my home or the egregious fees that are likely to be extorted to be permitted to keep my home.

 

I would be reluctant to file a cause of action based on a QWR violation unless case law made it obvious I would prevail. Having such a winner I would hope to hand it off to a competent attorney to file, win, and add their fees to the suit.

 

I will fight to keep my home but a QWR violation (or two) seems to me to be a paper sword wielded against a fire breathing dragon.

 

If a "lender" has provided incorrect balance, fee and/or charge information to the BK court I would hope my BK attorney would be looking at whether challenging any of those errors could bring about a denial of their motion for relief of stay.

 

We all need to take responsibility for our own actions IMHO. I find I am regularly required to assist multi-billion dollar entities in taking responsibility for their own actions. It is a lot of hard work.

  • Like 1

Share this post


Link to post
Share on other sites

Filing bankruptcy is normally the “last Band-Aid” you can apply to stop debtors from coming after you. 

 

Through Chapter 13's the debt is paid over a 60 month period though a trustee. 

 

Typically a motion for "Relief of Stay" is granted only if you defaulted on your trustee payments.  

 

If you have been making your trustee payments on time you should be OK..

 

As for loan servicing errors - don't waste your time. 

 

I do not know your situation - talk with many people (before, discovery, set-up, currently in, and after) bankruptcy’s. 

 

Realize you don't want to hear this - not trying to sell you anything, just telling you the truth. 

 

An analogy of your current situation is looking for a bigger Band-Aid to cover up the last   You dug yourself deep into a hole, you’re looking for anything to prevent yourself from falling deeper. Right now you have tunnel vision which is normal after flying bankruptcy.  You are trying to focus on the wrong things that will not help you. 

 

My point is to suggest focusing on where you problem(s) is (are), by asking how did this happen?  That is where you should start changing. 

 

Strong question – where will you be in 10 years, 5 fives, next year?  Learn to set goals; little steps first, then larger steps later.  Do this now, because tomorrow it will be twice as hard to start turning things around.

 

Good Luck

 

Point you a wasting time looking at the wrong problem.

 

Fair enough, but I am looking at a wide variety of different solutions and do not for one second believe a bankruptcy is a permanent solution for dealing with a secured loan, i.e. mortgage. I filed Chapter 7 bankruptcy first and foremost to get rid of cc debt and some other debts, but I appreciated the fact that the automatic stay gave me a breather to have the time to work with a HUD counselor, apply for a loan mod, consult with real estate attorneys, etc. etc, without the mortgage lender hounding me with all their collection efforts. I'm not that far behind with my payments and I think I have a fighting chance. If I am going to lose the house, I may as well put up a good fight. I just refuse to think any other way. If I end up losing the house, I want to look back and be proud of the fight I put in. Right now, as things are, 95% people don't even answer their credit card lawsuits, and few attempt to defend against foreclosure. If more people fought against banks and foreclosure mills, it would dramatically increase costs for such companies to pursue collections and foreclosure actions. The whole model is really based on people not fighting, as they are handsome profits to be made by default judgments and non-contested foreclosures. And of course, QWR requests would be just one of the many tools to potentially use. I wouldn't be foolish enough to base my whole defense solely on the action based on QWR. I'd definitely consult with the real estate attorney to see what (or if any) actions are available to me.

Share this post


Link to post
Share on other sites

...

If more people fought against banks and foreclosure mills, it would dramatically increase costs for such companies to pursue collections and foreclosure actions. The whole model is really based on people not fighting, as they are handsome profits to be made by default judgments and non-contested foreclosures. And of course, QWR requests would be just one of the many tools to potentially use. I wouldn't be foolish enough to base my whole defense solely on the action based on QWR. I'd definitely consult with the real estate attorney to see what (or if any) actions are available to me.

For unsecured and allegedly secured collections dramatically increased costs would change the ROI and tune up the bad behavior. I don't see this happening. Therefore we have to battle against the bad behavior momentum (BBM) mostly on an individual basis.

 

I view my time and resources in fighting a foreclosure better spent on things other than a QWR. It is almost a distraction compared to the important things that need to be done in a foreclosure fight. Thus my suggestion to get those valid violations in the hands of a competent attorney to drive up opposing's costs while freeing up my own time for focusing on the real battle.

 

One concern I would have in a BK is if my attorney listed my alleged debt on a promissory note related to real property as "secured" without any evidence in my possession that would prove such security. I feel that would weaken my leverage in fighting foreclosure even if I was pursuing a favorable loan mod. I would have permitted my attorney to cause me to admit to a security that often doesn't exist.

 

Anyone can file just about anything in the public record as long as it follows the format that the county recorder is looking for. The content of such filings don't have to be accurate, honest or provable and in the last decade+ they have not been for the most part. Robo-signing is fraud. The courts seem to regularly somehow view Robo-signing as something not too offensive perhaps like a scribner error. Anyone familiar with the lies and fantasy provided the court by a DC attorney in a CC collection is likely to find similar deceptions going on in the so-called "secured" DC collection cases.

 

An example that comes to mind is the argument that the borrower has no standing as a party to a trust for a securitized mortgage. I read page 4 of 4: https://www.usbank.com/pdf/community/Role-of-Trustee-Sept2013.pdf to state otherwise. Well that and common sense.

 

Of course most mortgage require the borrower to defend the title which would be automatic standing in my world.

 

After a borrower pays 100k on a 200k note and ends up in a dispute before the court some judges have the audacity to ask the borrower if they are trying to get a free home. How is 100k free? Insanity! The note has more likely been paid off than not and the balance is almost certainly over-stated and incorrect. The opposing party is clearly the party seeking a free house not the borrower. The court's presumptions are wrong in CC collection cases and don't appear to be any more accurate in foreclosure disputes.

  • Like 1

Share this post


Link to post
Share on other sites

I would send the QWR AFTER you talk with your bk attorney about it. The QWR would make them have to come up with documentation which if they do might compromise your attorneys planning. The request has certain deadlines that can be useful but the QWR has been ineffective to stop foreclosure in the past. it may be a small puric victory however if it compromises your bk in any way.

Share this post


Link to post
Share on other sites
...

Once the bankruptcy is over, is it even theoretically possible to use that declaration to launch a RESPA/QWR inquiry into how loan servicer made the oversights/errors that can be seen in the declaration?

...

 

I would send the QWR AFTER you talk with your bk attorney about it. The QWR would make them have to come up with documentation which if they do might compromise your attorneys planning. The request has certain deadlines that can be useful but the QWR has been ineffective to stop foreclosure in the past. it may be a small puric victory however if it compromises your bk in any way.

I understand the OP to be waiting until the BK is over before pursuing any RESPA/QWR issues.

 

If I could find an attorney, practicing in my jurisdiction, that had a streak of winning loan mods or NDA settlements with homeowners that are still in their homes I would want to speak with that bar member. I would consider my paying an attorney, without a record of success for similarly situated homeowners, as merely paying for their continuing education. Not something I would willingly do.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this