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This is syndicated content that was originally published on AVVO.com by Attorney Michael J. Wambolt of Sader Law Firm.
Short guide explaining the process for responding to Qualified Written Requests or “QWRs.
1. Responding to QWRs.
Qualified Written Requests (QWRs) can prove costly if not addressed in a timely manner. It is not uncommon for debtors facing foreclosure or a stay relief motion during bankruptcy to issue QWRs demanding copies of loan documents, servicing agreements, and other evidence of secured status in a bid to establish a lender*s lack of standing to enforce a Note and Deed of Trust. Though tedious, QWRs do not grant borrowers license to request any and all information concerning their loan accounts. Moreover, not all requests qualify as QWRs in the first place.
2. QWR Statutes and Case Law.
QWRs are governed by the Real Estate Settlement Procedures Act (RESPA). Courts interpret 12 U.S.C.S. * 2605(e)(2) as requiring QWRs to relate to the servicing of a loan rather than the creation or modification of a loan. See e.g. Hintz v. JPMorgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 12416 (D. Minn., 2011). RESPA defines the term *servicing* as *receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in section 10 [12 USCS * 2609], and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.* 12 U.S.C. * 2605(i)(3). *Servicer* means *the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan.* 12 U.S.C. * 2605(i)(2). Under RESPA, a QWR must be written correspondence that *includes, or otherwise enables the servicer to identify the name and account of the borrower* and *includes 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.* 12 U.S.C. * 2605(e)(1)(B). Pursuant to RESPA*s implementing regulation (*Regulation X*), a servicer may establish a separate and exclusive office and address for the receipt and handling of QWRs. See 24 C.F.R. * 3500.21(e)(1). Where a servicer designates a specific mailing address, its duties to provide QWR responses are not triggered when it receives a request at nondesignated addresses as such requests are deemed *informal avenues to obtain other information. Steele v. Green Tree Serv., LLC, 2012 U.S. Dist. LEXIS 92756, at *3 (N.D. Tex., 2010); Even receipt of a faxed inquiry does not trigger a servicer*s duties to provide responses under RESPA where it has previously designated a mailing address for QWRs. Bally v. Homeside Lending, Inc., 2005 U.S. Dist. LEXIS 20123 (N.D. Ill., 2005).
3. QWR Deadlines.
Provided a QWR is in writing, relates to the servicing of a loan, is issued to a servicer, and is mailed to the servicer*s designated mailing address, the deadline to acknowledge receipt of a QWR is twenty days and the deadline to take action on a request is sixty days (both deadlines exclude legal holidays and weekends) (effective January 10, 2014, these deadlines will be reduced to five and thirty days respectively Pursuant to the Dodd-Frank Act (Pub. L. No. 11-203, 124 Stat. 1376)).
4. Limits to QWR Responses.
Whether a QWR actually merits a response often depends on whether it relates to the servicing of a loan. Lately, a consensus has developed that *RESPA does not require a servicer to respond to any question that a borrower may ask-no matter how broad, vague, or far afield.* De Vary v. Courtrywide Home Loans, Inc., 701 F.Supp.2d 1096, 1106 (D. Minn. 2010). Accordingly, courts have held that a QWR does not merit a response where it relates to the creation or modification of a loan. Id., at 1106; see also Hintz v. JPMorgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 12416, at *23 (D. Minn., 2011). Similarly, a QWR that requests the identity of a note holder or master servicer does not relate to the servicing of a loan. Kelly v. Fairon & Assocs., 842 F. Supp.2d 1157 (D. Minn. 2012). The above limitations make clear that courts narrowly interpret RESPA*s *servicing* definition. Consequently, communications that fail to meet RESPA requirements are nothing more than *general correspondence* between a borrower and servicer. Berneike v. CitiMortgage, Inc., 708 F.3d 1141, at 1149 (10th Cir. 2013).
Additional resources provided by the author
For more information on QWR regulations and guidelines, visit the Consumer Financial Protection Bureau’s website. Once there, you can opt to “Ask CFPB” and type in your question regarding QWRs.
