Tips for suing an OC

Discussion in 'Credit Talk' started by LisaMc, May 26, 2002.

  1. LisaMc

    LisaMc Well-Known Member

    I have 4 original creditors, all included in a CH13 Bk 2 years ago, that just can't get it right. The perpetrators are Next Card, MBNA, First USA and Capital One. First USA, remarkably, was super nice and offered to completely delete the tradeline. The entire issue was resolved and reflected on my reports in less than 2 weeks. Numerous disputes have been filed on these guys, bad info verified. Two months ago I started the process of sending modified validation letters to these folks. To date, I have no changes and no reponses on the remaining three, except MBNA who pulled my credit to see "what we are reporting." That is another story entirely.

    I have drawn a line in the sand on this issue. I sent my third and final letter on Thursday. If they don't correct the problems (and let me know that), I will file suite on Friday, May 31st for violations of the FCRA.

    What chance does everyone think I have for deletion of these accounts? I am fully prepared to file. I have tons of documentation. Will they fight back? Will they offer to delete to end it all? Will they allow it to go forward and just not show up?

    What are everyone's thoughts? Has anyone else been through a similar situation? It was my debt, but I am suing for them to report it correctly.
  2. Butch

    Butch Well-Known Member

    Dear Lisa,

    I answered on your other post at:

    I reposted here so you wouldn't miss it.

    Dear Lisa,

    Here is your issue. When you file a Ch13. there is a mechanism called a "stay". Basically it says there will absolutely NOT be any more collection efforts.

    Since pulling your report and varifying information IS considered collection activity MBNA is as of now IN CONTEMPT OF COURT!!!

    A FAR more serious violation of law than a mere FCRA or FDCPA violation because the court has already decided the issue and made their decision.

    MBNA has really screwed up.

    You should examine this issue with your BK atty. He is bound to represent you until your case is discharged.

    Hope this helps,

    P.S This is a great thread

    Butch, CFP

    "Fire is the test of gold, adversity of strong men"
  3. sassyinaz

    sassyinaz Well-Known Member


    This (cut and pasted below) is for FDCRA and BK Code violations, I can't imagine why it wouldn't be the same for FCRA and BK Code violations -- the arguments would be the same.

    I think small claims for FCRA violations may be the easiest for you, assuming you get a judge with some active brain cells. It's a bigger punishment and damages for BK Code violations -- I wonder if you could do both at the BK Court.

    You've warned the perps, LOL, I like that, of legal action including contempt of court and they still won't fix it?


    Attempting to Collect Debt Discharged in Bankruptcy May Violate FDCPA

    Description Court refused to dismiss a suit brought by a debtor whose debts had been discharged in bankruptcy. A bank bought a discharged debt and attempted to collect the debt. That may be a violation of both the Fair Debt Collection Practices Act and the Bankruptcy Code.

    Topic Consumer Protection
    Key Words Fair Debt Collection Practices Act; Bankruptcy; Discharged Debt

    C A S E S U M M A R Y

    Facts Wagner filed Chapter 7 bankruptcy and received a discharge of her debts in 1997. Among the debts discharged was a note secured by a mortgage of real property. After the discharge, the note and mortgage were assigned to Ocwen, which is in the business of buying and collecting defaulted debts. Ocwen attempted to collect the discharged debt from Wagner. She sued, claiming violation of the Fair Debt Collection Practices Act for attempting to collect money from her that she did not owe. Ocwen moved to have the claim dismissed, contending that her only remedy would be under the Bankruptcy Code.

    Decision Motion denied. Since Wagner's debts had been discharged, she was not a debtor to Ocwen, who attempted to collect money from her. Ocwen's claim that only the Bankruptcy Code, but not the Fair Debt Collection Practices Act, could apply is incorrect. Both laws can be violated at the same time. Ocwen could be found in contempt of the Bankruptcy Code and in violation of the FDCPA. "Wagner's FDCPA claim, at its foundation, is no different from that of any other debtor who is dunned by a creditor who in fact is not owed any money; the fact that her debt was discharged in bankruptcy does not logically differentiate her case from that of a debtor whose debt was discharged in some other way."

    Citation Wagner v. Ocwen Federal Bank, FSB, 2000 WL 1382222 (N.D. Ill., 2000)
  4. LisaMc

    LisaMc Well-Known Member

    Sassy, do you think my case loses steam because the debt has not been discharged yet?

    Butch, that is a really good tip. I think I am going to contact my BK attorney on Tuesday. I feel pretty confident (fingers crossed here) that I could document and argue my way through a local small claims suit against them. Arguing violation of the BK stay and related BK code violations may be over my head. As Psychdoc pointed out in in Inquiries lawsuit thread, I am not at this to make money. I am at this to clean up my credit. So, if the BK attorney would take it on a contingency, it is his. Otherwise, I am going to have to wing it.

    LisaMc vs. MBNA - Is this a case of David & Goliath or what?
  5. sassyinaz

    sassyinaz Well-Known Member

    Hiyaaaaaaaaaaaa lisa,

    No you don't lose any steam at all, it just falls under the automatic stay provisions instead of the discharge provisions.

    Actually, I think if it's not yet discharged you'd easily have access to the BK Court.

    Are they attempting to actively collect or they just can't get their reporting together, or both?

  6. sassyinaz

    sassyinaz Well-Known Member

    oh sorry lisa,

    I went back and read again, verifying bad information is continued collection, there's a FTC opinion letter on that, I'll dig it up for you if you don't already have it.

    Darn C13 thieving perps!

    Lisa's line in the sand _____________________________

  7. sassyinaz

    sassyinaz Well-Known Member

  8. premeno

    premeno Well-Known Member

    This is all very educational. Really. Learn something new everyday. I have a Sears account that was included in Bankruptcy almost 10 years ago, they are reporting a past due amount. I didn't know how to deal with them, now I have some leverage. Thanks.
  9. LisaMc

    LisaMc Well-Known Member

    Sassy, LOL. Lying perps. I tell you what. A CH13 gives these guys a license to abuse you for 3 more years! At least on a 7 they go away instantly.

    The link to Moran Law is a great reference. I will be going back there often! Thanks!

    It doesn't matter that they have a bizillion dollars and I have only the $40 it takes to file. I am sure our justice system will prevail! I feel better now everyone. Take a deep breath and move forward!
  10. sassyinaz

    sassyinaz Well-Known Member

    LOL Lisa,

    I'm reallyyyyyyyyyyyyyyy irritated with the lying perps! We should post a list ;-)

    Here's something else I forgot to mail you, I'm really horrible about using my email actually for mail, it's more of a filing cabinet.

    Sorry for the oversight BUT at least I told you straight up, he he he, we should be so lucky with the PERPS!


    Can I pay off my Chapter 13 plan early?
    You can pay ahead a few months on your plan without any problems. Whether you can pay the entire balance of you plan off depends on how many months you are into your plan, and how much of the debt your plan actually pays:

    You can if your plan pays off 100% of all of your bills. If your plan pays all of the creditors 100% of the debt, you can pay off your plan at any time. Most Chapter 13 plans significantly reduce the amount of money you have to pay back to creditors in order to discharge all of your debts.

    You may not be able to if you have completed less than 36 months of your plan. If you have completed less than 36 months of your plan, the Chapter 13 trustees may object to an early payoff. This is because § 1325(b) of the code allows the Trustee and unsecured creditors to require that debtor pay all of their projected disposable income for three years into the plan. The trustees that object to early payoff believe that they should be able to increase the amount paid into the plan if the debtor's disposable income increases during this three year period, and if an early payoff is allowed they will not be able to do this.

    However, a number of cases supported the granting of a discharge where the plan has payments are made earlier than the 36th month:
    Matter of Casper, 154 B.R. 243 (N.D.Ill. 1993) [Debtors discharged their obligation under plan by paying to trustee sufficient funds to cover the 10% owed on unsecured creditors' claims as provided by plan; trustee's subsequent motion to modify plan was denied.]

    In re Smith, 237 B.R. 621 (Bkrtcy.E.D.Tex. 1999) [Debtor was entitled a discharge once she used gift from her family to make lump sum payment of all monies due and owing and expected to be paid under her plan even if received several months before minimum 36-month term of plan.]

    In re Easley, 205 B.R. 334 (Bankr.M.D.Fla. 1996) [Debtor moved to accelerate plan payments, using money loaned by debtor's parents and the Trustee objected. The court held that debtor was not required to increase plan payments with loaned funds.]

    Matter of Koerperich, 5 B.R. 752 (Bkrtcy.D.Neb. 1980) [Debtor who files a zero-payment plan has completed the "payments under the plan" and is eligible for a discharge.]
    You probably can if you have completed 36 months of your plan. If you are in the 36th or later month of your plan, the Chapter 13 trustees will usually accept payment of the balance of the plan payments at any time.


    What is the balance of my Chapter 13 plan?
    In most of cases filed by our office, you can easily calculate the balance you will need to pay to complete your plan. Look on the first page of the order confirming the plan which was mailed to you after your plan was confirmed. Find the amount of your payments in paragraph 1 (Future earnings or income) and the length of the plan in paragraph 2 (Duration). Multiply the amount of each plan payment from paragraph 1 times the number of months which have not been paid from paragraph 2. If your plan has been modified, you will also need to check each modification order to see if the payment amounts or duration have been changed. There is no deduction in interest for an early payoff or any early payoff penalty.

    Our office does not have access to the accounting records to determine what payments have been made. If you want a statement of payments made or of the balance due, you will need to contact your trustee directly.

    BTW, I just called them up, the court that is, and asked for my payoff balance so that I could refinance, they mailed it to me within the week. At that time, I didn't even know I had to ask or that it potentially wasn't an option to pay it early.

  11. LisaMc

    LisaMc Well-Known Member

    Sassy, thanks for the info.

    In retrospect, I think we had a damn good bk attorney. Our entire plan is only 36 months, the minimum. The attorney also adjusted the plan payments downward twice so far. So now we are about half way finished with the 36 months plan. We only owe another $2,100 on the whole thing. I wouuld love to pay it off! Here let me write a check right now! I understand the point completely--we have asserted our financial position to be bare bones. If that is the case, why would you ever have the lump sum needed to pay off a plan. I get it. It just seems crazy to me to continue to put us, the trustee, and every creditor through the agony of it all. I figured out that after attorney fees ($1,600) and trustee fees ($1,200) and trustee expenses ($250) and homeowner assessments for 3 years ($2,250), there would only be about $700 for all of the creditors to split over a 3 year period. As you know, the biggest ones get theirs first. So, 75% of the creditors participating will get zero anyway. Why bother?

    There is one thing that has been the source of so, so so much aggravation in all of this--THE MORTGAGE. I just want to scream! They, Chase, just screws it up daily. They posted all of our payments to a suspense account for over a year because they had the escrow screwed up. Because the mortgage is "included in the bk", you can't use the online service, you can't call customer service, you can't pay online, you can't use electronic payment. The BK rep assigned to our account told me that it takes them 6-8 weeks to post a payment to a mortgage in the bk department! can you believe that? I asked what about all of that interest? He said they don't continue to accrue interest and they don't report it to the CB's. It is just a friggin mess all the time. I have never wanted out of something so badly in my life. If we were out of the 13 plan now, I would refinance just to get away from Chase.
  12. sassyinaz

    sassyinaz Well-Known Member

    Grrrrrrrrrrrrrrrrrrr, ANOTHER lying perp, Chase!

    Screwing up the escrow account is a RESPA violation, they've tons and tons of information at the hud site on that.

    How is Chase reporting your mortgage on your CR's? I guess more importantly how are they going to report it once you are discharged if they can't even get around to posting your payments.

    No interest, HEY, maybe you should document that because surely if they aren't accruing it they wouldn't want to make you pay for it either.

    6-8 weeks!!!!!!!!!!!!!!!!! THUMP, that's the sound of me fainting. I believe it's the Truth in Lending Act that requires payments be posted on the same day received.

    Scream Lisa Scream, arggggggggggggggggggggggggggggg, I guess that's the best I can do in keyboard-ease for a scream ;-)

    I've gotta sleep on this one, lying perps actually seems kinda nice.

  13. LisaMc

    LisaMc Well-Known Member

    Sassy the only thing that has been more frustrating than my journey through credit repair hell has been this mortgage since BK.

    When you call their 800 #, it immediately tells you that you must speak to a "BK consultant." Well they have bankers hours for sure. I have probably left 100 messages over the past year and have never had one call returned.

    The only reason why my escrow is now corrected is because I sent them the reconciled escrow account. Yep, I reconciled the entire account back to the beginning of the loan 4 years ago. Attached to it were printouts of tax rates, appraisal district reports by year, every cancelled check with corresponding bank statement, it was a complete audit. They did nothing with it for 8 months, and I called about the status at least once per week--"we're working on that and hope to have an answer by _____." Then, like a miracle, they reran an escrow analysis on April 1st along with every other mortgage they carry. Low and behold! Jesus, it's a miracle! Our numbers matched! If they were going to wait until April to run it anyway, why harrass me for 8 months trying to collect their overfunded "cushion" in the meantime.

    The only reason why I had a contact person at all was because I called a local Chase SALES office, posed as an interested future customer looking for a Jumbo loan, got into the Director's office, and just unloaded on him. This was definitely not his area, and I didn't care. I had a human. I think the only reason why he helped me at all was because I said "I know it looks doubtful now, but I promise you that I am going to get someone's attention at the top. When I do, I swear I will name you, Joe Blow, specifically for denying assistance in this mess." He gave me the number of the person over "Special Audits." I called her, she bumped the case down to a low level clerk, we started over. I hired an attorney to write a letter to the Director. The Director herself called me at home apologizing profusely for the misunderstanding. What a friggin nightmare!!!!!!!!!! This has gone on for almost 2 years now. If I called the automated system right now it would tell me that I need to make my March payment. YUP, the March payment. This is a problem considering I just made our June payment 10 days ago. I have come to the realization that if they are not going to report our monthly fights/issues to the CB's, if we are going to tie to the penny on principal and interest (as we now are after my attorney wrote the letter--another miracle!), then I am just going to look the other way and get through this 36 months with these incredible morons. Did I mention that the Director of Special Audits didn't understand how the escrow account worked. That really wasn't her area of expertise. What expertise? It is an escrow account--money in money out. Balance should be close to zero when it is all said and done. She does get it now because I explained it to her like a second grader! She was actually happy for the explanation!

    I already know what our next major fight will be. We will be able to drop our MIP in the next few months. They, of course, are not going to show consistent, timely payment history in their records. When you don't post for 6-8 weeks you usually have descrepancies! I am going to send in my request, they are going to deny it, and I am going to sue them until I get satisfaction for all of the crap they have put me through.

    Seriously, I don't know how they have stayed in the Mortgage business. They are the most inept, understaffed, manual processed group of people I have ever had the misfortune to work with. Our loan was sold to them by the builder of our home. We had no choice in the matter.
  14. sassyinaz

    sassyinaz Well-Known Member


    BK consultant, BK CONSULTANT! oh please, that must be some loophole title they gave to a demoted collection agent to make the feds happy.

    Chase purchased your loan or purchased the servicing?

    I love the RESPA law, have you ever looked into that? I love it because they have to respond in 20 days acknowledging your request and then have 60 days to resolve whatever your problem is, and if they don't, then you can complain to the FTC or file suit, whatever rocks your boat. That's the only time I ever get a response to something when I put "qualified written request" on a letter. And, it's just like the credit laws, if you give them a chance to screw something up, you won't be disappointed.

    You know what irks me, we'd gotten behind on our mortgage, that was one of the primary reasons for the C13 in the first place. Every day, every hour, pay or we'll take your house, those are big threats that had me all kinds of stressed; what I wouldn't give to turn back the hands of time with some creditnet wisdom under my belt ;-) -- but my irritation is, how can someone foreclose, even threaten to, when they can't EVEN get a bill right, can't add 1 + 2, can't send a letter without a typo, they can't even send the notices right, I'm not even sure they could get picking their noses right!

    The servicing of our loan was purchased, so I didn't have a choice either. It's a small consulation that servicers fall under the FDCPA, that's why I was asking. Actually, I didn't have a clue about that until they sent a notice of default and intent to accellerate, and at the very bottom in the tiniest print it said, this is an attempt to collect a debt, blah blah blah, that got my brain cogs into gear.

    So for your 100 phone calls left unanswered, I'm thinking to a vacant cubicle that someone forgot to assign the 'bot too, lol, one letter under the RESPA provisions at least gives you some teeth to gnarl at them with; same with your escrow account, LOL, now the cubicle 'bots are probably worried you're going to peek over the top of their box and get them further demoted. How far down can you go from BK Consultant?

    I LOVE how you found a real person to talk to, lol lol, there's been about three times that I've been really mad and wanted an answer to something or the actions were so outrageous I couldn't see straight, I surfed until I found a website with a contact name or contact us button and just about that fast I had resolution. I really hate that the squeaky wheel really does get the grease, but sometimes it's the only way.

    I think the RESPA laws also provide an individual cause of action too, I'll have to double check on that. Anyway, here's a sample letter and site with good information, and, if you click on from the same site, he's a page on your MPI, grrrrrrrrrrrrrrrrr, but what I thought was interesting is the calculator he has included for determining it, especially when your account is screwed up.

    I've pushed and pushed with RESPA letters and validation requests, requests for payment history, and I want to know WHO really owns my loan because servicers have lost in court over that, trying to foreclose on behalf of the owner and the courts determined they had no standing. I figure should I ever be threatened with foreclosure again, at least I've some defenses and a history of paperwork on my side.


    Is there recourse against bad servicing: - Servicing/is_there_recourse_against_bad_servicing.htm

    March 19, 2001

    When a mortgage loan is closed, the origination file is closed and a servicing file is opened. It remains open for the life of the loan. Whether the process goes smoothly or badly depends on both the borrower and the servicing agent.

    The servicing agent is the entity that receives the mortgage payment, keeps the payment records, provides borrowers with account statements, imposes late charges when the payment is late, and pursues delinquent borrowers. In many transactions, servicing agents also pay property taxes and insurance with money placed in escrow by the borrower.

    Borrowers can choose from whom they borrow, but they canâ??t choose the servicing agent. The agent may or may not be the lender who originated the loan. Servicing is frequently sold. Borrowers must be notified of transfers, but cannot prevent them.

    My mail box is stuffed with letters from borrowers who complain about bad servicing. The following is a sample.

    "My lender sold the loan and the new lender shortened the grace period and tripled the late feeâ?¦"

    â??My lender hit me with a late charge when my loan was paid on the 16th instead of the 15th, and for 7 months after that I have been hit with a late charge, even though all payments were made on time."

    "My lender did not pay the taxes on time or for the correct amountâ?¦"

    "My lender bought insurance on my house and added the premium to the loan balance, even though I already have insurance that I pay forâ?¦"

    "My lender sends me statements that only show the payments, not the balanceâ?¦I have no idea how they are applying the payment."

    Chuck Cross is a regulator for the state of Washington who has investigated numerous cases of this type. According to Cross, "about 50% of the time the consumer is wrong and has misread or misunderstood the processâ?¦and in about 50% the lender has erred."

    In cases where the servicing agent is at fault, Cross does not know the extent to which the problems reflect deliberate attempts to generate more revenue, or innocent operating accidents. In either case, it is troubling that some of the names that pop up in my mail are among the largest and best known financial institutions in the country.

    Since borrowers canâ??t fire their servicing agents, what can they do to protect themselves? If you have been mistreated, you should file a written complaint with the lender addressed to Customer Service. Do not include it with your mortgage payment, which you should continue to make separately. State:

    Your loan number
    Names on loan documents
    Property and/or mailing address

    This is a "qualified written request" under Section 6 of the Real Estate Settlement Procedures Act (RESPA).

    I am writing because:

    [Describe the problem and the action you believe the lender should take.]

    [Describe any previous attempts to resolve the issue, including conversations with customer service.]

    [If it is relevant to the dispute, request a copy of your payment history.]

    [List a day time telephone number.]

    I understand that under Section 6 of RESPA you are required to acknowledge my request within 20 business days and must try to resolve the issue within 60 business days

    If this doesnâ??t do the trick, you can file a complaint with HUD at According to HUD, "A borrower may bring a private law suit, or a group of borrowers may bring a class action suit, within three years, against a servicer who fails to comply with Section 6's provisions."

    You can also file a complaint with the government agency that regulates the servicing agent. Here are web sites you can use to contact these agencies: For national banks, For Federally chartered savings and loan associations, For state-chartered banks and savings and loans, For mortgage banking firms,

    If you donâ??t know the proper agency, you can send the complaint to the Consumer Protection Division of the state Attorney General. It will forward it to the relevant state or Federal agency.

    Borrowers who are aware that they have a servicing problem might be the tip of an iceberg. All borrowers should periodically check their transaction history to make certain that a) payments are always applied to the balance at the end of the preceding month; b) tax and insurance payments from escrow are correct and there have been no double payments; c) rate adjustments on ARMs are in accordance with the method stipulated in the note; and d) there isnâ??t anything in the history that looks "funny".

    Any borrower who does not receive a complete transaction statement at least annually should periodically submit a "qualified written request" for one using the form described above.

    Copyright Jack Guttentag 2002
  15. sassyinaz

    sassyinaz Well-Known Member

    Darn thing, won't let me post it all in one, it thinks I'm a blabbermouth ;-)

    Here's the one with the MPI calculator, How do I cancel PMI: - PMI/how_do_i_cancel_pmi_(ii).htm
    January 22, 2001

    "I was told that under Federal legislation passed in 1999, private mortgage insurance is cancelled automatically at some point -- borrowers donâ??t have to do anything. Is that right."

    Yes. Under one provision of that law, lenders are required to cancel private mortgage insurance on most home mortgage loans made after July 29, 1999. Cancellation will occur automatically when amortization has reduced the loan balance to 78% of the value of the property at the time the loan was made.

    But under another provision of this law, lenders must terminate insurance at the borrowerâ??s request when the loan balance hits 80% of the original value. Borrowers who take the initiative can thus terminate earlier than those who wait.

    Even under this provision, the wait can be a long one. With normal amortization, it takes 142 months for the loan balance on a 8% 30-year loan equal to 95% of property value, to fall to 80%. A 15-year loan that is otherwise identical will get there in 47 months.

    However, borrowers who add to their regular monthly payment will reach the 80% target more quickly. If they add 1/12 of the payment every month -- for example, a $600 payment is raised to $650 -- the mortgages cited above will hit the 80% target in 91 months and 38 months, respectively.

    Warning: The lender need not accept your request for cancellation if:

    *You have a second mortgage.

    *The property has declined in value.

    *You had a payment late by 30 days or more within the year preceding the cancellation date, or late by 60 days or more in the year before that.

    If your loan was made before July 29, 1999, you are not covered by this law. If it was sold to Fannie Mae or Freddie Mac, however, you are subject to the cancellation rules of the agencies regardless of when the loan was made. And these rules are more favorable to homeowners because they are based on the current appraised value of the property rather than the value at the time the loan was made.

    Under these rules:

    * You can terminate after two years if the loan balance is no more than 75% of current appraised value, and after 5 years if it is no more than 80%.

    *You must request cancellation, and obtain an appraisal acceptable to the agencies and to the lender.

    *The ratios required for termination are lower if there is a second mortgage, if the property is held for investment rather than occupancy, or if the property is other than single-family.

    *The agencies will not accept termination if your payment has been 30-days late within the prior year, or 60-days late in the year before that.

    Using current value rather than original value can substantially shorten the period to termination. For example, the 30-year 8% loan that takes 142 months to reach 80% of original value, will get there in 96 months with just 1% annual appreciation, and in 53 months with 3% appreciation.

    If your loan was made before July 29, 1999, and if it is not held by Fannie or Freddie, the termination rules that apply are those of your lender. In some states (California, Connecticut, Maryland, Minnesota, Missouri, New York, North Carolina, Oregon, Texas and Virginia), lendersâ?? rules may be affected by state law.

    The best strategy is to assume you are subject to the liberal Fannie/Freddie rules. After 2 years, begin periodically to estimate the current value of your house. Web sites offering tools that can help include,, and Simple explanations of how these sites work can be found in Randy Johnsonâ??s excellent book, "How to Find a Home and Get a Mortgage on the Internet." Then you can use my calculator How Long Before Mortgage Insurance Terminates.

    When it appears that you might meet the agenciesâ?? requirements, contact your lender and ask whether your mortgage is held by one of the agencies. If it is, confirm the ratio of balance to current value that permits termination in your case, and ask about acceptable appraisers.

    If your loan isnâ??t held by one of the agencies, ask the lender for a written statement of its own termination policy. If your loan was made after July 29, 1999, follow the more liberal of the lenderâ??s rules or the Federal law. If your loan was made before July 29, 1999, you are stuck with the lenderâ??s rules.

    But donâ??t accept rules substantially less liberal than those of Fannie/Freddie without protest. Let the lender know that so long as you are forced to pay for insurance that Fannie Mae and Freddie Mac say isn't necessary, the lender need not try to cross-sell you anything else.

    Copyright Jack Guttentag 2002
  16. sassyinaz

    sassyinaz Well-Known Member

    yep, it's now confirmed on the blabbering, lol.

    THIS is a great site, articles are by attorneys that represent mortgage bankers, check out their articles:

    Qualified Written Requests: Deal with Them (Sept. '00)
    by Glen D. Rubin
    McCalla, Raymer, Padrick, Cobb, Nichols & Clark, LLC â?? USFN Member (GA)


    What is a Qualified Written Request (QWR)?
    Section 6 of the Real Estate Settlement Procedures Act (RESPA) describes the requirements for this request:

    must be written correspondence from the borrower or his agent (such as an attorney) that is not contained on a payment coupon or other payment medium supplied by the servicer;

    must contain enough information to allow the servicer to identify the borrowerâ??s name and account; and

    must include a statement of why the borrower believes the account is in error or a sufficiently detailed request for account information.

    RESPA was originally enacted in the 1970s to protect homebuyers from abusive settlement practices and unnecessarily high settlement charges. In 1990, RESPA was amended to encompass loan servicing -- in particular to deal with disclosures owed to borrowers relating to the assignment, sale or transfer of loan servicing.

    The part of RESPA dealing with QWRs [12 U.S.C. §2605(e) or the "Statute"] covers all "federally related mortgage loans," which is broadly defined to include virtually any loan secured by a one- to four-family residence. The Statute applies to servicers who, by definition, include the person responsible for servicing the loan, together with a person who makes or holds the loan if he also services the loan.

    It is important to note that the written communication triggering the Statute need not be very official looking. It does not need to reference the Statute -- or state that it is intended to be a QWR. If a borrower simply mails copies of cancelled checks to a servicer, this has been held not to constitute a QWR. However, if the copies are accompanied by a writing identifying the account and giving an indication that payments have been made and not properly accounted for, this has been found to activate the statutory requirements.

    Why are QWRs now a BIG Concern in Bankruptcy?

    The effects of the Statute in a bankruptcy scenario can be far-reaching. Anyone receiving a response to a Motion for Relief from the Automatic Stay -- either by formal pleading or by letter from a debtorâ??s attorney -- may want to consider whether the Statute has been invoked. Although there are some excellent arguments why the Statute should not apply to motion practice in a specialized federal court, the issue has yet to be directly confronted in the bankruptcy courts.

    Until recently RESPA rarely, if ever, crossed paths with bankruptcy law. However, there has been a recent proliferation of litigation in the mortgage banking industry. At first the plaintiffsâ?? bar focused on aspects of RESPA relating to origination and settlement. Ultimately, their scrutiny led them to the default servicing area and into bankruptcy matters. Ever-increasing servicing transfers have turned attention to the Statute. Plaintiffsâ?? counsel recognize the Statute as a means to collect damages and awards of attorneysâ?? fees against unsuspecting servicers.

    More importantly, however, is its use as a powerful discovery tool enabling plaintiffsâ?? counsel to gain easy access to servicersâ?? records and business practices for other potential class action claims. Many of the plaintiffsâ?? attorneys do not regularly practice before the bankruptcy courts. Nevertheless, they have entered the bankruptcy arena by associating or partnering with prominent debtorsâ?? counsel around the country â?? and even targeting specific servicers.

    What is a Servicerâ??s Duty when it receives a QWR?

    Once a request is received a servicer must:

    Provide a written acknowledgement of receipt to the sender within 20 business days; and

    Within 60 business days of receipt, either: (a) investigate and make appropriate corrections to the account and transmit written notification of the corrections made to the borrower; (b) investigate and provide the debtor with a written explanation of why the servicer thinks its position and accounting are correct; or (c) investigate and provide the debtor with a written explanation that includes all the information requested by the borrower or an explanation of why that information is not available.

    It is important to note that only business days count. The Statute excludes weekends and "legal public holidays" from the computation of the 20- and 60-day deadlines. In lieu of acknowledging receipt, the 20-day letter may indicate that the borrowerâ??s requested actions have been taken. Therefore, no further actions will be required of the servicer. If an inquiry or investigation by the servicer is required, however, the 20-day acknowledgement letter, while not conceding that the correspondence is a QWR, must explicitly acknowledge its receipt. The 60-day communication should contain the name and telephone number of an individual employee, office or department of the servicer that can provide assistance to the borrower.

    During the 60-business day period following receipt of a QWR, the servicer may not report on any disputed sums to a consumer-reporting agency. The creditor may make credit reports on amounts not subject to dispute. Under the Fair Credit Reporting Act, the QWR will also trigger a duty to report corrections made to the account. The servicer may still pursue collection efforts during the 60-day period, but this would not be advised if the only source of default is the disputed amounts.

    What Potential Damages does a Servicer Face?

    Successful individual plaintiffs can recover actual damages. Actual damages include travel expenses, compensation for missed work due to QWR preparation, costs of preparing, copying and mailing correspondence, reparations for denial of credit based on failure to correct the account after receiving the request and -- in some cases â?? for mental anguish.

    Additional damages may be awarded if there is a "pattern or practice of noncompliance" with the Statute. These damages may not exceed $1,000 and are generally limited to one award per case. However, certain courts have suggested that the defendant can be held liable ($1,000 award) for each and every inquiry on a particular loan that is not timely answered. Further, a borrower need not have any actual damages to collect these additional damages under the Statute. Costs and reasonable attorneysâ?? fees are recoverable as well.

    Finally, the Statute provides for class actions to be brought with actual damages awarded to each class member. In the case of a "pattern or practice of noncompliance," supplementary damages of not greater than $1,000 can be granted to each member of the class. The overall award is capped at the lesser of $500,000 or one percent of the servicerâ??s net worth. Again, reasonable attorneysâ?? fees and costs may be awarded.

    Strategies for Dealing with QWRs

    Establish a separate, exclusive office or address for receipt and handling of QWRs. A servicer must give notice of the specified address to the borrower either at origination, in the Notice of Transfer of Servicing, or by separate notice for loans in your portfolio. After the notice is given, only requests sent to this address will trigger the Statuteâ??s requirements.

    With the help of your attorneys, establish well-defined policies and procedures to assure that requests are timely, effectively, and uniformly answered. Consideration should be given to naming and training one individual to receive the requests and serve as a contact for borrowers.

    Take advantage of the Statuteâ??s safe-harbor provision. You may audit your loan portfolio and correct any known mistakes without penalty. Specifically, if within 60 days of discovery of an error (and before commencement of an action or before receipt of written notice of the error from the borrower), the servicer notifies the borrower of the error and makes necessary corrections, the servicer shall not be liable for any failure to comply with the Statute.

    Use the opportunity to have your attorneys dispute the validity of the QWRs if they are received during any court proceeding -- especially a bankruptcy case. The challenge should be based upon the premise that bankruptcy rules and procedures preempt and overrule RESPA. The Bankruptcy Code and Federal Rules of Bankruptcy Procedure contain other mechanisms allowing borrowers to request the information or to resolve account disputes.

    © Copyright 2000 USFN
  17. sassyinaz

    sassyinaz Well-Known Member

    Found this in my lying perps pile, lisa, thought of you.


    A formal request for a payment history is one of the most useful requests you can make. They fall into the category of "Qualified Written Request" which is a term set forth in the RESPA regulations (Real Estate Settlement Procedures Act).

    A "Qualified Written Request" offers to you specific legal rights and protections. When you send one it stops them from taking any further action so long as you are not in a formal foreclosure proceedings.

    Several things happen, in your favor, once you send the request via certified mail â?? return receipt requested.

    First, they have to sign for it so you will receive proof you sent it from the Post Office (the green slip)

    Next, they are required by law to respond, in writing, within 20 days, acknowledging their receipt of the letter. This is typically a generic form letter.

    Then they have 60 days to resolve the dispute.

    During this 60-day period they CANNOT take any further actions in specific areas.

    Also during this time you need to continue making your payments, even if you know they may or will be returned. If they call you it must be with questions concerning your request. Many times they will send you a huge document and attempt to pass it off as a payment history.

    However, you are entitled to a payment history, which is clear, simple and easy for an average borrower to understand. Recently borrowers have been receiving a response asking for additional documentation in order for them to fulfill your request.

    It is our opinion that a fee for a Payment History can only be charged if your mortgage note provides for such a fee.


    "Qualified Written Request"


    RE: (your loan number)

    xxx liars drive
    Liarsville, TX 66666

    Attn: Customer Service Department

    Dear Madam or Sir:

    Kindly send me a complete and clear payment history of my loan, as referenced above. The payment history should consist of each of the following:

    (1) the date on which you received each of my payments.

    (2) The exact amount of each payment you received.

    (3) The month each payment was applied to,

    (4) a clear breakdown of how each payment was applied, and

    (5) a clear explanation of any and all other fees, if any, that have been applied to my account.

    Thank you.

    Lisa BendThemOver
  18. LisaMc

    LisaMc Well-Known Member

    Interesting thoughts here.....

    Just so you understand, We have done nothing wrong in this situation. THe mortgage has never been late, has never had a bounced check, nothing. The only reason why it was included in the CH13 was because we had to by law. They are basically "put on notice." That's it. This total screw up happened at the hands of Chase when the loan was sold to them (with every other loan on my street).

    After reading all of this, my wheels are definitely turning. You have absolutely no idea how much aggravation this situation has been. It is constant and you have to deal with the biggest idiots in the whole creditor food chain.
  19. sassyinaz

    sassyinaz Well-Known Member

    I was sure you hadn't done anything wrong, Lisa, I understand about having to include them in the C13 and that's sure no reason for them to take hostage all your payments, payment history, and escrow. I just wanted you to know that because it's a Mortgage, you could add the RESPA qualified written request to your arsenal of ways to get a response and correct reporting. It REALLY shouldn't be so hard to get a company to do good business, they'd be smart to put you on their consultant payroll, I just hate the uneven playing field.

    My own lying perps just sent me a letter that was BLANK except for the header and one sentence, time is of the essence, and a signature block. I've never been late either and have all the cancelled checks to prove it. I hate to start sending payments certified mail, but I may just have to start.

  20. LisaMc

    LisaMc Well-Known Member

    I just refuse to start the certified mail route with these people. That is an added expense that is just not called for in this situation (in my humble opinion). I always consider myself covered when I send payments electronically--it is a wire transfer for God's sake. You have a tracking number, you know exactly when they receive it and when it clears your account. It is all well documented. Chase refuses to accept wire transfers or electronic funds transfers. They require a PAPER check. Great. They are the only people that I pay with a paper check, USPS. So, I have zero record of when they receive it.

    Sassy, thanks for all of the info. I have saved this thread and I am sure I will use your advice!

    When I did my full 4 year audit of this mess last year, I found 4 separate incidents where the funds were deducted from my account (this is before they stopped accepting electronic payment) and did not clear the bank's clearing account for 120 days after. So, I paid them electronically on January 1. The payment was debited from my account on January 2. They actually acted on the payment and deposited it into their own account on April 30. Put all BK issues aside--what kind of way is this to run a business? On that payment alone, they screwed themselves out of $4,200 in interest! That same scenario happened 3 more times in a 15 month period.

    I think I am coming to a lull in my credit exorcism--I think I am going to take on Chase full force. I have already done all the backup work, why not? Maybe I could get about 50 grand knocked off our mortgage? The thought makes me laugh!

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