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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BOb G
Am I correct in understanding that a QWR only applies to federally related mortgage loan, and not a typical subprime mortgage loan?
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A QWR is valid for all consumer mortgages, prime, alt-a, and sub-prime.  I don't think they apply to privately held mortgages such as if a relative lends money to another family member or friend and the loan is secured by real estate.

If you search this site I believe there are sample QWR letters.  Read up on the criteria for QWR's before you write one to be sure yours conforms.

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QWR sample
http://www.scribd.com/doc/58426899/Qualified-Written-Request-Foreclosure-Defense
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William A. Roper, Jr.



Ann:

This "sample" QWR is NOT helpful.  To the contrary, this is precisely what the borrower OUGHT NOT DO!

A twenty page QWR, by definition is a really, really bad idea!

And one filled with this sort of wingnut gibberish will simply get the borrower off on the wrong track with the lender and the court!

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Texas
Not something I would use.
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My friends  filed the above QWR it at the begining of his case 3 years ago and held off the bank for 8 months before they replied to it. In fact they said they don't have to provide any info at all but it took them 8 months before they get to it.  If anyone know a better one please post it here. It will be helpful for other who needs it.

In my opinion, there is no perfect pleadings unless written by a competent lawyer for a specific case. And even so....

My friend has no money for lawyer so he filed what he can find and he is still in his house since 3 years. He says no one punishes a pro se for not filing  perfect pleadings. The key is to file pleadings on time following the rules to preserve affirmative issues, evidences  and defends his home as long as he can. It is better to do so than roll over and let the bank takes the house. Remember a prose lady fighting for her house since 9 years and still in her house now ? The newspapers said that she files pleadings and motions every six months or so.



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More foreclosure defense info and pleading samples at
http://www.foreclosureprose.com
http://www.scribd.com/winstons2311

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I sent a similar letter to the servicer 3 years ago.  I doctored it up quite a bit before sending it.  I also did not include the last 3 pages which reference a quiet title action.  I could not find any case law that held that was proper.  

I filed a federal lawsuit against the servicer among others.  The servicer tried to get the RESPA claims dismissed against it on 3 separate occasions.  The judge ruled in my favor on each occasion by stating that it was a proper QWR under RESPA. 

btw, I sent 3 QWRs.  After the servicer failed to respond to the first one within the allotted time frame, I sent a second QWR.  When it failed to respond to the second one, I sent a third.  Shortly after I sent the third, the federal judge denied the servicer's first motion to dismiss.  The servicer then sent a response.  However, the response was woefully inadequate.  The servicer only attached a copy of the mortgage and note.  

Having said the above, there is a shorter version of the QWR that can be found at http://www.foreclosureprose.com/storage/forms/SimpleQWR.pdf.  

Additionally, HUD has a template for the QWR on its website - http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/res/reslettr.

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NotAProSe
                                                                                                                               
Scare Mail: Beware of QWRs (August 6, 2009)                                                                                                                                                 E-mail                        
                                                                                                                                http://www.ababj.com/briefing/scare-mail-beware-of-qwr-s.html

“Qualified Written Requests” under RESPA put mortgage servicers in a troublesome place. But there’s law on their side to help distinguish legitimate issues from abuse and harassment

QWR seen from the servicer/bank perspective -- great read especially the section "How to Spot A True QWR"


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NotAProSe
August 6, 2009
Scare Mail: Beware of QWRs (August 6, 2009)

“Qualified Written Requests” under RESPA put mortgage servicers in a troublesome place. But there’s law on their side to help distinguish legitimate issues from abuse and harassment

http://www.ababj.com/briefing/scare-mail-beware-of-qwr-s.html




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I don't know who the blowhard was who authored  that 20-page QWR but I think I know who originally managed to get it on the web.  It is also a great example of why the web is such a dangerous place.

It may be fun to send something like that to a servicer but there is another danger.  If you end up litigating a foreclosure the borrower will be the first to be deposed.  If you sent that 20-page QWR it will be the first document entered.  The first question will be do you recognize this document?  And the second will be is that your signature on page twenty?  That will be followed by about an hour's worth of questions about what you were expecting to receive.  The average borrower will not have a clew. 

From that point on the borrowers creditability comes into question.

DO NOT SEND THAT THING!



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William A. Roper, Jr.

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NotAProSe said:

August 6, 2009
Scare Mail: Beware of QWRs (August 6, 2009)
“Qualified Written Requests” under RESPA put mortgage servicers in a troublesome place. But there’s law on their side to help distinguish legitimate issues from abuse and harassment

http://www.ababj.com/briefing/scare-mail-beware-of-qwr-s.html 


This is a really TERRIFIC post!!  Though the article is clearly written from the Servicer's perspective, this is precisely the sort of insight into opposition thinking and tactics that borrowers need to be considering and understanding.
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William A. Roper, Jr.
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Alina said:
I sent a similar letter to the servicer 3 years ago. I doctored it up quite a bit before sending it. I also did not include the last 3 pages which reference a quiet title action. I could not find any case law that held that was proper.

I filed a federal lawsuit against the servicer among others. The servicer tried to get the RESPA claims dismissed against it on 3 separate occasions. The judge ruled in my favor on each occasion by stating that it was a proper QWR under RESPA.

btw, I sent 3 QWRs. After the servicer failed to respond to the first one within the allotted time frame, I sent a second QWR. When it failed to respond to the second one, I sent a third. Shortly after I sent the third, the federal judge denied the servicer's first motion to dismiss. The servicer then sent a response. However, the response was woefully inadequate. The servicer only attached a copy of the mortgage and note. 

 

Alina:
 
I have every confidence that your edits much improved the QWR!
 
But even excluding the 3 pages on quiet title, this is WAY TOO LONG.  The key thing is to hit the critical elements to make the QWR valid under the statute and then to make some rather specific requests while taking great care NOT to actually give the servicer any evidence that they can use against you!
 
That is, you need to be thinking three moves ahead!
 
The first move is the servicers' response, the utility and purpose of the questions presented and WHAT YOU ARE REALLY HOPING TO FIND OUT.
 
The second move is how the QWR will be perceived by the court when the court is considering specific RESPA counterclaims in a foreclosure action, particularly in respect of a motion to dismiss.
 
The third move is the possible evidentiary value to the servicer of the QWR letter and the possible evidentiary value to the borrower of the response.
 
*
 
One should begin with an end in mind.  And one should proceed with caution!
 
*
 
If there is a LOT of information you desire to seek, use several separate QWRs.  Failure to repsond to each would then seem to be a separate RESPA violation.  And each is more likely to be perceived as reasonable and not unduly burdensome or onerous.
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Angelo

What are the penalties for violating a QWR? Not responding in the 60 day allotment of time?

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FnDoomed
Statutory violations used to be $1K increased to $2K by the dodd-frank act and if you can prove actual damages you can get those too.  Emotional damages are actual damages.

The value of RESPA violations isn't so much as a counter claim because what good is a $2,000 set-off against a mortgage?

In my opinion the value of a RESPA violation is that it gives you a federal cause of action that may allow you to remove your local foreclosure to a federal forum and buy some more time.

For me personally, In response to a QWR I wrote, BANK sent me a copy of a Note that was not indorsed by LENDER.   In my BK BANK submitted a copy of a Note that was indorsed by LENDER via allonge.   The allonge also happens to mis-identify the Note.

The value here is that it creates another level of proof problems for BANK that is almost certain to help me survive to an evidentiary hearing.

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William A. Roper, Jr.
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FnDoomed said:
In my opinion the value of a RESPA violation is that it gives you a federal cause of action that may allow you to remove your local foreclosure to a federal forum and buy some more time.


FnDoomed:

You do NOT need a RESPA violation to be entitled to a Federal removal.  Defendant/borrowers CAN usually seek removal of a foreclosure to Federal Court on a simple diversity of citizenship basis.

While the Federal Courts are often more professional and disciplined than state courts, there are also disadvantages to a Federal Court removal.  The most significant of these is that in so doing, the defendant essentially denies themselves the standing defense.

As I noted in a previous post, the burden of showing standing in Federal litigation is not actually on the plaintiff.  Rather, it is on the party seeking to invoke the court's jurisdiction.  So when you remove the state court case to U.S. District Court, YOU as defendant must show the court that it has standing.  It is NOT the plaintiff which has the burden to do so.

There is another disadvantage which can be much more subtle, though this is of uneven effect.  Federal District Courts tend to be in major cities.  While these tend to be fairly convenient to the bulk of the population, for the average borrower, the Federal Courthouse will almost always be more distant than the county courthouse.

The mortgage servicer is in another state and servicer employees will almost never appear in court until a trial on the merits, when they will fly in to testify.  The foreclosure mills are also usually located in major population centers.  If you reside in a place which is distant from the U.S. Courthouse, geography can really work against you and possibly in the plaintiff's favor.

For example, compare to logistics when you live three hours from the U.S. Courthouse, but the county courthouse is ten minutes away.  With a Federal removal, every time there is a hearing you may need to travel six hours to and from the courthouse.  The foreclosure mill attorneys may need only to walk to the courthouse.

By contrast, when the hearings and trial is at your county courthouse, your adversaries might need to travel six hours round trip to each hearing.  Of course, this is resolved by the foreclosure mill employing a "local counsel" to make court appearances for them.  But this has the necessary consequence that the local counsel and the foreclosure mill are not conveniently located and must necessarily collaberate from a distance.  The local counsel very often is not kept fully in the loop about the evidence that the mill is arranging to have fabricated.

When it comes to trial, if you are having the trial in a major city, this is more convenient to the out of state witnesses, who can fly into a major airport, and less conveneint to YOU.  In fact, for a morning trial, the witness would almost always have to fly in the night before the trial in any case.  If your trial is at the Hicksville County Courthouse, the witness might need to fly in the previous day, rent a car and drive to Hicksville.  OR the witness can get up at 5 AM to drive to the trial in Hicksville from the nearest major city.  That is, when the courthouse is inconveneintly located, you have added 6 hours to the witness' travel time.

This might also factor into witness preparation.  If the trial is in a distant major city, the witness can get up at 7 AM and spend an hour with the foreclosure mill attorneys preparing for trial.  YOU will be the one who needs to get up at 5 AM to get to the courthouse.

For my money, I would tend to preserve the standing argument and to sleep in, letting my adversaries arrive bleary eyed!

In any case, a RESPA violation is usually NOT necessary to get into Federal Court, EXCEPT where the plaintiff is a resident of your state.
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FnDoomed
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You do NOT need a RESPA violation to be entitled to a Federal removal.  Defendant/borrowers CAN usually seek removal of a foreclosure to Federal Court on a simple diversity of citizenship basis.


I'm pondering this statement before I run my mouth ...  I have been told time and again not to mention certain things in my BK hearings, because of the judge's proclivity to bounce people out to state court if the instant cause is a state matter.

While I understand the immediate meaning of diversity of citizenship the nuances will require some study which likely won't reach the top of my research list anytime soon.

Thanks

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Hello, well, I read the threads carefully. I still don't see if you send the QWR to the lender or include it in the Answer that you file with the court and a copy going to the lender's attorney. If you don't receive an answer to the QWR do you send a no reply response to the court, or what. I guess I am not sensing the order of the servicing. Please respond when you can as I have to draw up a definitive answer by next week...thanks for helping, Derrick

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FnDoomed
Derrick - a QWR isn't appropriate for you.  They would have a month to acknowledge your letter and then a couple more to answer it.  You will be long gone by then...

Talk to a lawyer, quickly...

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Moose
Derrick wrote:
Hello, well, I read the threads carefully. I still don't see if you send the QWR to the lender or include it in the Answer that you file with the court and a copy going to the lender's attorney.

If you're already in court, sending a QWR letter is a moot point - you're under the local court rules for discovery.
Derrick wrote:
If you don't receive an answer to the QWR do you send a no reply response to the court, or what. I guess I am not sensing the order of the servicing. Please respond when you can as I have to draw up a definitive answer by next week...thanks for helping, Derrick

The QWR letter seeks answers to specific questions and is only used before a lawsuit is filed.

The lack of responses (20 days to acknowledge, 60 days to answer) are each violations of the act and might be indicative of the servicer's failure to adhere to the terms of RESPA, but what weight that might have if the issue proceeds to a lawsuit is dependent on the nature of the dispute and whether or not the letter conforms.

You have to remember that RESPA was designed to provide a remedy to handle simple errors, not as a defense to foreclosure or as a substitute for discovery in litigation. It's usefulness is really over time, establishing in writing the nature of the facts in dispute - a paper trail.

If it ever gets to trial (or more often, court-ordered ADR/medication), servicer counsel will often use a simple 'bona fide error' response to allegations of RESPA violations, promising the court that they have policies and procedures in place to assure compliance but that sometimes mistakes happen and that any such error was certainly not intentional, let alone malicious.

We've recently seen a spate of alleged-QWR letters with dozens of questions seeking vastly over-reaching and "burdensome" responses. Most of those seem to have at least some roots in the various mortgage-elimination schemes but instead of saying "failure to respond is acquiescence" they seem to look as if they're adhering to RESPA - but they don't qualify.

Responses to those kinds of things usually include blanket denials and allegations that the servicer is not required to answer non-qualifying letters.

This isn't legal advice, but if you're already in litigation, be EXTREMELY CAREFUL about communicating with the servicer's counsel. If you're represented by an attorney, DO NOT, under any circumstances, communicate with the other party without approval from counsel first.

Moose


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Anon
can you send a QWR for a second lien? And do they need to respond in the same manner?
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Moose
Anon wrote:
can you send a QWR for a second lien? And do they need to respond in the same manner?


This is not legal advice but if the second lien is from a mortgage loan, yes. the servicer is required to follow the same rules.

Moose

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Derrick Richards
Ok, well this thread is a bit old, but there was wisdom being acquired since it was first begun, esp. in my case. I have sat down with foreclosure assisters and my brother-in-law, who is an attorney in Pa. Here is what was discovered about a QWR and why it is necessary to send one and why it is a valid avenue to proceed down.

In my case, the amount in the summons and the ability to tack on all sorts of legal fees and forced insurances, makes it viable to conduct such an inquiry. I mean, if you go to buy a car and they say, well, we can get you a better deal on the financing, then they quote you a price per month for the payment, and you don't question the amount, even though you know it seems high and above what it should be, then you are just being foolish and imprudent.

On one page of the summons, it quoted an amount due that they were requesting themselves along with this ability to pile on additional expenses. See, once they do that, you can question the whole finances of the complaint. Just like when they included my sister's children in the summons, then they were liable to serve them with the proper RPAPL 1304's (which they did not do) and even two of them never received the summons.

While we were going over the logic and reasoning behind the complaint, even some of the persons assisting me, couldn't believe that some of these defenses were so simple to ascertain and that some of the wording by the attorney for the lender was allowed. I know that a QWR should be sent out before a foreclosure is commenced, but after making one out and making it very specific to my chance to respond, it is deemed admissable if the court decides that it is viable in respect to the defendant being aware of what, when, why and who  is owed. Another quick example, this loan is not even mine but one taken out by my deceased mother. This fact alone makes forming a formidable defense easier and the mission to make motions more possible. Well, keep up the forum findings, appreciate all the words and works, Derrick Richards 
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I'm hoping to get some help/advice.
I recently went through a foreclosure.
Yesterday I received a packet on my doorstep vis UPS from a law firm in PA.
They were responding to a "QWR" that they received from "me" back in June. 
1st problem: I didn't send a "QWR". I had never heard of the term until now.
2nd problem: The law firm's rep called me back and provided me a copy of the written request, where someone was posing to be me....
3rd problem: The information in this packet was HUGE! It has all my old loan docs, my SSN# all over my initial credit application, etc...the list goes on.

Anyone have any clue as to why someone would be submitting this "QWR" on my behalf?  I still drive by my old house when taking my daughter to school and I see an investment group has bought it.  Would they do this?

Thanks for any help.
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I thought I had everything, but this one takes the cake.  The first thing I would do is call the police and let them know that you may be a victim of identity fraud.  If the QWR did not come from you then there is a problem.  Then follow the advice given by this site:

https://www.privacyrights.org/fs/fs17a.htm

Do not give anyone the documents you received without first making a copy.  If anyone should visit you regarding this matter make them show ID.  If the documents arrived by being placed there by an individual and not by USPS or UPS, then I would not handle them until the police arrive.

Hope this helps and keep us posted. 

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