Quote: Wayne said:
I know this may not fall under servicing fraud but my mortgage was bought by private investor. And it is a nightmare and a half he will not provide me with any info or documentation as to how the funds of the payments I have been sending are being applied to the mortgage. At the time the mortgage was purchased I was behind on the taxes and he paid them to current and now any request or demand I make to receive any accounting of the status my loan is met with a threat to foreclose on the grounds until I can repay the amount about $10,000 that he spent to bring the taxes current I am in default and he can foreclose any time. He is always asking for more money in the payment to payback this but will not give me any idea of how the payback will be structured. In other words just send me $ and trust me! I will let you know when you have sent enough. I have no idea what my loan balance is or what my payments really should be. It is an ARM and is for 4.3 over prime. So I have an idea what my payment should be I pay $200 a week and the last I heard from him is that I needed to increase my payment to $211 because the amount due is $844 a mo, now simple math would tell anyone that at $200 a week I am already paying more than that at $866 a month. Since he has recently been wanting me to refinance I did manage to get a look a payment schedule he sent a mortgage broker and he reflects receiving a straight $800 mo for the last 3 years. I have contacted the state AG and they referred me to the department of banking who have told me they have no say over how he deals with me since he is an individual and is not licensed thru them. I quote “he can do pretty much any thing he wishes in regards’ to the mortgage any state regulations do not apply” I would gladly refinance to get away from this guy but my credit will not me to do that right now. In the mean time I do not trust him and I have been looking for an attorney to consult, that is how I found this site. however all the a attorneys claiming to have mortgage experience I have found so far are really geared towards foreclosure defense. I don’t know if I have a fraud case because I have no info since I cannot get him to give it to me.
I am NOT an attorney and this is NOT legal advice.
Being in actual defeult of ANY mortgage loan is a rather perilous prospect. And you may be at actual risk that the mortgage investor could foreclose on this loan at any time. For this reason, you are necessarily walking a tightrope.
But you also need to take care to protect your legal rights.
I haven't checked RESPA, but I do NOT think that private mortgage investors are exempt from the provisions of RESPA relating to Qualified Written Requests (QWR). Take a look at some of the other posts on this topic.
Separately, it is absolutely essential that you maintain impecable and precise written records about all of your payments. There is some possible advantage and desirability to establish some of the facts as to application of payments through correspondence. But that really bears some risk that you may be furnishing the mortgage investor some additional evidence to use AGAINST YOU in an ultimate foreclosure.
You definitely need to carefull organize your payment information and it would be wise in this situation to discuss the matter with an attorney. An attorney can probably give you some good advice on approaches to the problem. But if this private investor is an individual and owns only a few loans, there exists more tha a little peril that the investor may react emotionally rather than rationally to a valid assertion of your legal rights.
So there is inherently an element of diplomacy and negotiation to the situation.
My impulse is whether through a QWR or through letters mailed either first class or certified to ask simple, straightforward questions in a friendly non-argumentative way, WITHOUT including ANY language which could be construed as an admission of default or arrearages.
One might start with a two relatively simple questions:
Could you please clarify the amount shown within your accounting or bookkeeping records as the outstanding principal balance of my mortgage loan?
Could you please identify the correct monthly amount (if the loan terms call for monthly payments) of principal and interest to make a full and timely payment in respect of the most recent interest rate adjustment? Can you also clarify for me the interest rate you have ascertained is due in respect of that last adjustment.?
Note that even these questions include an element of admission, that you are recognizing that this individual may be the holder or the servicer of your mortgage loan. But it is pretty hard to have any meaningful correspondence without saying something that might be construed as an admission. For that matter, even something as simple as a QRW, often has some elements that could be used against you.
This is one reason why consultation with an attorney is a good idea. Amongst other things, leaving aside the attorney's knowledge and experience, having an attorney write the letter usually absolves YOU of making any admissions.
But a letter from an attorney will probably be viewed as HOSTILE. Even a certified letter may be viewed as hostile.
You might consider beginning with a letter that is sent regular first class mail. But in that instance, you should probably find a very trustworthy and reliable person to WITNESS the mailing, giving that person a COPY and asking that person to make some journal notes in their own handwriting memorializing that the person witnessed you mailing the letter.
If the letter gets a response, great. If not, you can always graduate to a certified letter.
There is some advantage to very politely referring to the prior letter in a new letter. This should be donw in a very friendly way.
It can be matter of fact. It can be dipomatic.
"I previously wrote to you on April 21, 2011, seeking information about the balance and correct payment amount of my loan. Perhaps my previous letter was overlooked or arrived at an inconvenient time. I have included a copy for your reference.
Could you please give me the requested information by reply in writing at your earliest convenience.
I am very eager to remain current on my monthly payments and desire to pay amounts owed in a timely way which is satisfactory to you."
Basically, as you write each letter, you need to be thinking about two things. First, How can I request and elicit the information I want without making any unnecessary admissions.
Second, How will a judge and/or jury react to my letters if these are presented as evidence.
Keep the letters short and simple. Do not send the letters too often. But make sure that you are creating a record which is favorable to YOU.
The tone and the content of the letters will be guided in large part by the responses.
Avoid shrillness or hostility. Show instead patience and understanding. Avoid setting express deadlines. You are trying to avoid angering the mortgage investor.
You want to eventually not only obtain important facts, but also to have a very nice stack of letters that shows that you were polite, businesslike and earnest, that you were seeking to understand your obligations and to satisfy them.
How to proceed may also heavily depend on the economics of your house and the mortgage. If you house is worth LESS than the mortgage, you may need to be asking yourself if you are throwing good money after bad. By contrast, if you have substantial net equity in the property, it is particularly important that you navigate these treacherous shoals through diplomacy and caution. Your equity could be lost through a foreclosure if you are actually in default and connot conform to the terms of teh instruments.
Hopefully, others have some constructive suggestions, too.