The Real Estate Settlement Procedures Act and a Qualified Written Request Letter

The Real Estate Settlement Procedures Act (RESPA) and a Qualified Written Request Letter (QWR) pursuant to RESPA are the topic of this blog post.  The relevant statutes for RESPA are found in Title 12, Chapter 27, Sections 2601 through 2617 of the United States Code.

RESPA authorizes the use of a Qualified Written Request in which a homeowner may dispute information contained in an account, request information from the servicer or lender, and have their issues answered by the company in a reasonable amount of time. Many times, servicers or lenders may not enjoy disclosing certain information to the homeowners as they may have significant problems answering the questions.

Some servicers or lenders do not keep adequate records, make material mistakes, and also engage in a practice of fraudulent servicing such as excessive or “junk” mortgage fees. In the right situations the use of a QWR can be very helpful in shedding light on these activities that can jeopardize the foreclosure case and may allow the homeowners to obtain a loan modification or other concessions from the servicer or lender.

Section 2614 of RESPA states that for a violation of Section 2605 relating to a failure to respond or to correct erroneous information outlined in a QWR, the statute of limitations is 3 years from the date of the occurrence of the violation.

The servicer or lender must acknowledge the receipt of the QWR in writing within five (5) business days from receipt unless the actions requested in the QWR are taken within that time period.

 
Although not specifically required by law, the QWR should be in the form of a letter sent by Certified Mail, Return Receipt Requested and should include the name and account number of the borrower, and should include a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.

Within thirty (30) business days from receipt of the QWR, the servicer or lender must make any appropriate corrections in the account of the borrower, including crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower as well as other specified information.

The thirty (30) business day period to respond may be extended for not more than 15 business  days if, before the end of the 30-day period, the servicer notifies the borrower of the extension and the reasons for the delay in responding.

If the servicer or lender fails to comply with any provision of RESPA they can be liable to the borrower for any actual damages to the borrower as a result of the failure, and any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000. They may also be liable for the costs of any successful action, together with any attorneys fees incurred in connection with such action as the court determines to be reasonable under the circumstances of that particular case.

Attorneys or parties who wish to view or download a FREE sample Qualified Written Request letter created by the author can visit the link shown below:

View a FREE sample Qualified Written Request Letter

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author's weekly California and Federal legal newsletter by visiting the following link: Subscribe to my FREE newsletter

 

To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit View over 200 sample legal documents for sale

 

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

California Civil Code section 2943 beneficiary statement request

A California Civil Code section 2943 beneficiary statement request to a lender is the topic of this blog post.   Section 2943 of the Civil Code states in pertinent part that the request may be sent any time before, or within two months after, the recording of a notice of default under a mortgage or deed of trust. The request MUST be sent before any notice of sale has been recorded. 

The request may be sent to the address listed on the latest billing statement.  Although not actually required under the law, sending the notice by Certified Mail, Return Receipt requested with another copy to the Trustee is a good idea.

Homeowners in California who are presently in default, or may be close to defaulting on the loan securing their home should seriously consider requesting a beneficiary statement request to their lender to request that all of the information listed in, and documents described in, this blog post be provided to them.  Certain lenders keep sloppy records and the homeowner may find discrepancies or errors in the documents or information received from the lender that may support a defense to any foreclosure.

Section 2943 of the Civil Code states in pertinent part that the lender must provide certain information within 21 calendar days from the date of receipt of the request for a beneficiary statement including the amount of the unpaid balance of the obligation secured by the mortgage or deed of trust, the interest rate, together with the total amounts, if any, of all overdue installments of either principal or interest, or both,  a true, correct, and complete copy of the note or other evidence of indebtedness with any modification thereto as well as other specified information.

A copy of the deed of trust or mortgage may also be requested at the same time as the beneficiary statement.

If a lender willfully fails to prepare and deliver the beneficiary statement they are liable to the person requesting the statement for all damages which they may sustain by reason of the refusal or the sum of $300.00 if no actual damages are sustained.

Attorneys or parties in California who would like to view a sample request for a beneficiary statement created by the author can visit the link shown below.

View a FREE sample beneficiary statement request

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

If you enjoy this blog post, tell others about it. They can subscribe to the author's weekly California and Federal legal newsletter by visiting the following link: Subscribe to my FREE newsletter!

To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit View over 300 sample legal documents for sale

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

California foreclosure defense strategy using the MERS defense

California foreclosure defense strategy using the defense that Mortgage Electronic Registration Systems, Inc. (MERS) does not have standing to commence a foreclosure in California is the topic of this blog post. As a foreclosure defense strategy in California the so called “MERS defense” is not very effective as will be shown by this blog post.

Some loan documents will state right in the document that the borrower consents to MERS having authority to initiate foreclosure.  Anyone considering using the MERS defense in California needs to read this blog post and then read their Deed of Trust.

In at least one case decided by a California Court of Appeal, the plaintiff actually attached a copy of the Deed of Trust to the complaint in which they argued that MERS had no standing to initiate the foreclosure.  The big problem was that the Deed of Trust mentioned MERS by name! Keep reading to find out what happened.

The trial Court sustained a demurrer to the complaint and all causes of action therein without leave to amend, a California Court of Appeal affirmed that order in Gomes v. Countrywide (2011) 192 Cal. App. 4th 1149, 1157 where the Court stated that, “As an independent ground for affirming the order sustaining the demurrer, we conclude that even if there was a legal basis for an action to determine whether MERS has authority to initiate a foreclosure proceeding, the deed of trust -- which Gomes has attached to his complaint -- establishes as a factual matter that his claims lack merit. As stated in the deed of trust, Gomes agreed by executing that document that MERS has the authority to initiate a foreclosure. Specifically, Gomes agreed that "MERS (as nominee for Lender and Lender's successors and assigns) has . . . the right to foreclose and sell the Property." (Emphasis added.)

It is true that in other parts of the country, and in some bankruptcy courts, borrowers have had some success with the argument that since MERS is a "nominee" and "nominee" is not defined in the loan documents, that it does not have standing to initiate foreclosure.

That argument has not been particularly successful in California, mainly because of these reasons:

1.         Non-judicial foreclosures only require that the trustee on the deed of trust conduct the foreclosure.

2.         The deed of trust is recorded and so are any substitutions and assignments. In other states   MERS had tried to circumvent the recording statutes by not recording these transfers with the County recorder.

 
3.         The borrower  also known as the Trustor has signed the Deed of Trust and voluntarily consented to a 3rd party conducting the Trustee's sale, regardless of who the beneficiary is.

Despite several recent Court decisions rejecting the MERS defense many people are still under the mistaken impression that the defense is valid. The fact is that the MERS defense has been rejected by the California Courts.  

Note that the author has NO sympathy for major lenders or loan servicers who like most large corporations want to privatize their profits, but socialize their losses.

 
Attorneys or parties in California who would like to view a portion of a 22 page sample complaint to stop a trustee foreclosure sale that includes a verified complaint, ex-parte application for temporary restraining order with points and authorities, sample declarations, and a proposed order sold by the author can see below.

http://www.scribd.com/doc/146074976/Sample-California-Complaint-to-Stop-Foreclosure-Sale-by-Trustee

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 225 sample legal documents for California and Federal litigation.

If you enjoy this blog post, tell others about it. They can subscribe to the author's weekly California and Federal legal newsletter by visiting the following link: Subscribe to my FREE weekly legal newsletter

To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit View over 200 sample legal documents for California and Federal litigation

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.