Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Frank
Here's a good one; 

If a 'Qualified Written Request' is sent to the servicer's attorney, does it fail as a QWR due to the fact that the loan documents require that a QWR has to be sent to the Servicer?

Thanks for any input, Frank.
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William A. Roper, Jr.
Frank:

One problem presented by a QWR during a formal foreclosure proceeding it the inherent conflict between the express written wording of RESPA and state bar rules relating to correspondence with entities represented by counsel.

Generally, bar rules in most places require that once an attorney learns that a person is represented by an attorney that an attorney must correspond with that other person's attorney rather than with the client.

This rule has the merit worthy objective of preventing attorneys from gaining advantage by going around the party's lawyer and intimidating the party or getting the party to sign documents or make concessions or admissions without the involvement of their lawyer.

Under this framework, it is easy to see how a QWR sent by an attorney after the initiation of litigation might run afoul of the bar rules if sent directly to the represented servicer's attorney of record.  The borrower, pretty clearly has QWR rights under RESPA and RESPA is silent as to what is to happen when a matter goes to litigation.  I haven't researched or otherwise studied any cases on this matter, so I am pretty much shooting from the hip here.

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If the attorney coaches or assists the borrower in sending a RESPA QWR letter directly to the servicer, then this might also be considered to be a violation of the bar rules.  It would certainly seem to violate the spirit if not the letter of the rules, and attorneys with high ethical standards are probably going to want to steer pretty clear of such things.

By contrast, once litigation is underway, the well represented borrower is probably going to be told to avoid direct communication with the servicer and to go through the attorney.  Bear in mind that every communication with the servicer may later be used against the borrower within the litigation.  So a poorly written QWR may actually do more harm than good if it contains admissions, but fails to obtain useful information.

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It seems to me that the attorney who sends the QWR letter to an attorney representing a servicer is on very solid grounds as to bar rules and on weaker ground as to RESPA.  The same would be true as to a letter sent by the borrower directly to the servicer AFTER becoming represented by an attorney.

This may be one of those unique situations where acting pro se my be a mild advantage, because the bar rules really do not generally apply to non-attorney pro se litigants.

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Generally, written discovery is going to be the far more effective tool for obtaining information once litigation has begun.  The servicers tend to violate teh RESPA laws relating to QWRs with some impunity and there had been very little enforcement in this area.  Using a QWR is great to show a little more bad faith on the part of the servicer and investor, but probably isn't going to greatly advance the defendant's case.

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I would be particularly interested in hearing what Moose has to say about this.  I would also be interested in learning how others, including attorneys, repond when you pose this question at other message boards and Forums.    
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Moose
It will vary from state to state, I believe.

RESPA is a Federal statute but  legal representation is a state concept.

Again, not being legal advice, if you are NOT already a party to a case (as in, a suit that has been filed) the party a RESPA letter must be sent to is the servicer. Sending it to a law firm that is not the attorney in fact for them in an extant matter carries no obligation for them to convey it.

In other words, you can't establish a client relationship between an attorney and a servicer if a suit is not already filed.

Moose






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