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What is a qualified written request and how can it help me defend a mortgage foreclosure suit?

A Qualified Written Request (“QWR”) is a written request from a borrower to his or her mortgage company or current loan servicer to obtain information about his or her loan. Under the Real Estate Settlement Procedures Act (“RESPA”), a federal consumer protection law, a borrower is permitted to request all kinds of information about the servicing of the borrower’s loan by sending a QWR. Because RESPA is a federal statute, it makes no difference whether a borrower resides in Pennsylvania or another state. A loan servicer must respect the QWR and respond timely.

Among the information a borrower may demand is the following:

  1. Copies of all documents pertaining to the origination of the mortgage including loan application, Right to Cancel, Deed of Trust, note, adjustable rate note, addendum to the note for the interest only payment period, Truth in Lending statements, Good Faith Estimate (GFE), HUD 1, appraisal, and all required disclosures and rate sheets associated with the transaction;
  2. A complete payment and transaction history of the loan, including fees incurred and how payments were applied;
  3. Legal fees added to the principal balance; and
  4. The current amount needed to pay off the loan in full in the form of an itemized, printed payoff report.

These are just some of the items a borrower may ask the loan servicer. If you suspect that payments you are making are not being properly applied, or are not being placed in escrow as they ought to be, or you have concerns about the justification of certain fees, or if you simply require clarification of your mortgage for any reason, a QWR is an excellent method to get your mortgage servicer to provide you with information and relevant documents.

It is important to keep in mind, though, that the request must be made in writing and must be sent to a designated correspondence address. Usually, this address can be found on the back of your monthly mortgage statement. It’s a good idea to send the QWR by certified mail so that you have proof of the receipt of the letter by the loan servicer. It is also essential to remember that while you have the right to request certain information from the loan servicer, you must continue to make your monthly mortgage payments. A QWR does not put your payment schedule on hold.

Once you send it, the loan servicer has twenty (20) days to acknowledge receipt of the QWR in writing. The servicer must then respond to the QWR within sixty (60) days of its’ receipt. Furthermore, a loan servicer is not permitted to engage in negative credit reporting within sixty (60) days of the receipt of a QWR. Due to the passage of the Dodd-Frank Wall Street Consumer Protection Act signed into law on July 21, 2010, these timelines will soon be shortened. However, it is still unclear as of the date of this writing, when the timelines will be changed. Once changed, loan servicers will have only 5 days to acknowledge receipt and 30 days to respond in writing.

The information obtained from a QWR can assist homeowners in making appropriate decisions in the context of a foreclosure action. For instance, if a homeowner disputes the amount due on the mortgage or how far behind he is, but is getting the runaround from the loan servicer when he calls, sending a QWR will obligate the loan servicer to respond within a given time period. If the servicer does not respond, the homeowner may have a private right of action, i.e. the right to file a lawsuit against the loan servicer for damages or use the non-response as a defense in a foreclosure action.

While the above provides guidance in the preparation of a QWR, it is not a substitute for the advice and counsel of an experienced mortgage foreclosure and defense attorney.

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