Qualified Written Request

I am desperately trying to save my home from foreclosure and know what options are available.

I am a first time homeowner and I purchased my home in North Little Rock in 2006.I purchased the home for $135,000 at an adjustable rate (I was led to believe it was a fixed rate) and my monthly note was around $1200 a month.

I made my payments on time. Around January, 2008 my original mortgage company (First Franklin) unbeknownst to me sold my mortgage to American Servicing Company (a subsidiary of Wells Financial Mortgage) and my note went up to around $1500.00 a month.

Around May of this year my wife and I both lost our jobs and we fell behind on our mortgage. I tried countless times to contact the mortgage company for assistance and got absolutely nowhere with them.

After months of no response from my mortgage company I received some assistance with counseling from the FHA. The mortgage company stated then that they would reset my loan if I paid a $ 2000 gratuity fee on September 15, 2008 and resume my house note on October 8, 2008 ( at an increased rate). I signed the agreement and when I called to make the payment ( on September 15)the mortgage company told me my account was closed (on September 13) and for me not to make the payment until they corrected the error on their end.

I cannot get a straight answer from this company and I need help. My wife and I both have jobs now and would like to keep our house but no one will refinance us because of the credit damage from this mortgage.

Sincerely,
Richard

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Hello Richard,

I’m not sure what to make of the statement: “the mortgage company told me my account was closed…and for me not to make the payment until they corrected the error on their end”.  I would have either requested to talk to a supervisor or hung up the phone and called again.  Based on what you’ve described, the answer you were given made absolutely no sense.

What you want is a loan modification to modify the loan back to the original rate and capitalize any arrearage.  The First Franklin loan may have had some technical errors in the loan docs that violate the TILA.  The remedy is only $2,000 plus attorney fees on a purchase money mortgage and the statute of limitations is one year in an affirmative action.  The point of finding the violations would be to add a heavy hand to your negotiations.  If for example, the lender filed foreclosure and a TILA violation existed, then the one year limitation period would not apply since the issue would be raised defensively.

Section 6 of the RESPA has a provision for making a formal request from your mortgage servicer.  I would request the following: (1) clarification of the discussion on September 15, 2008, (2) loan docs (i.e. loan application, Good Faith Estimate, Truth in Lending Disclosure, HUD1 closing statement) as well as (3) a payment history and (4) history of disbursements on the loan.  Specifically, the provision of Regulation X of the RESPA that applies is 24 CFR § 3500.21(e)(3)(ii)B) and the servicer should “provide the borrower with a written explanation or clarification that includes”:

Information requested by the borrower, or an explanation of why the information requested is unavailable or cannot be obtained by the servicer, and the name and telephone number of an employee, office, or department of the servicer that can provide assistance to the borrower.

The lender is required to resolve the issues contained in your qualified written request within sixty-days or potentially suffer statutory damages of $1,000, plus actual damages and attorney fees. 

Send the above requests by certified mail return receipt requested to the customer service research or ‘qualified written request’ mailing address for the servicer.  Do not send the request to the address where you send your payments.  Also, make sure to label your letter/s a ‘qualified written request’ and include your name, property address, and account number.

Doing all of the above should definitely get their attention.  It would also be helpful to locate an attorney in your state that has experience with TILA, RESPA, UDAP, and the FDCPA.  In the end you probably won’t need an alphabet soup attorney if you follow the above with CMRRR, you’ll get their attention and they’ll get the point and you’ll get your loan modification.  And if they don’t then, well, you’ve gathered the necessary docs to determine a cause of action.

Thanks for the questions and hope this helps.

Paul

This author is not an attorney and this information should not be considered legal advice.  Please consult an attorney for legal advice.

(source=fdic.gov/regulations/laws/rules/6500-2520.html)