A QWR is a qualified written request under the rules of RESPA.
A DVL is a debt validation letter under the rules of the FDCPA.
Centers of either one must conform to the existing rules — not what they would like the rules to be.
The purpose of a QWR or a DVL is to resolve questions or disputes. It is not a substitute for discovery that occurs during litigation in court. Several people send me their own drafts of a QWR or DVL, complaining that they never got a response to most of their questions. The answer is that most of the questions do not relate to the rules and regulations governing sending and responding to a QWR or DVL.
In most cases, I think that the wording does not comply with the rules governing a QWR or DVL. You should simply ask whether they authorized and executed the document in question. You can then ask why they authorized and executed the document — i.e., whether there was a transaction in which the underlying obligation was purchased and sold. Then you ask the date, place, and parties to that transaction and whether there are any other documents that would show that ICE was in the chain of transactions starting with the origination.
The other issue is that people often ask for “proof.” This is an open-ended term with many meanings. For example, asking for proof of payment usually results in the production of the note, the mortgage or the assignment of mortgage. It is an open question as to whether or not there is an obligation to actually show a canceled check or other evidence of the transfer of money — unless you ask for it exactly that way. In all probability, you will never get a chance to enforce that until you are in litigation.
And you will most likely end up in litigation in one of two ways. First, you can wait until the foreclosure starts, or second, as I have been promoting lately, you can initiate a lawsuit for violation of the FDCPA and related consumer protection acts.
As with all legal undertakings, I continue to caution that it is far more challenging to pursue a legal strategy without a lawyer than it is to pursue one with a lawyer. But I recognize that most lawyers still don’t want to take these cases. If you want to change that, then you must approach the lawyer with a starting strategy based upon facts rather than just accusations.
If the lawyer is given the impression that you are only seeking to delay and “inevitable” foreclosure, it is unlikely that he or she will accept the engagement. Most homeowners what a lawyer who will accept the engagement with the same urgency and importance as one would approach the defense of a criminal case. But many people, having been burned by the system, refused to apply their resources to pay the attorney to win. Part of this is based on the common belief that Foreclosure is inevitable, which is what the banks want us to believe, rather than wrongful, which I have repeatedly proven in court.
There is nothing wrong with pursuing and protecting your rights merely in the hopes of gaining a settlement, modification, or other agreement that results in retention of title to a homestead.
But if there is one takeaway from the work that I am doing it is this: there is no doubt in the minds of the attorneys who represent the financial community that their claims for administration, collection, and enforcement of payments from homeowners is not supported by law. In addition, there is no doubt in their minds is that by prolonging the litigation and making it as expensive as possible for the homeowner, they will continue to win cases that have no legal support. In short, they know that most homeowners will “Drop out.”
My point is that if you really want to accomplish a favorable or satisfactory result, you need to properly litigate your case to a conclusion with the assistance of a competent trial attorney.
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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Yes you DO need a lawyer.
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If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Filed under: foreclosure |
How are subservicers treated for FDCPA and QWR? And, no offense, but if in foreclosure, most will not have extra resources lying around to pay high attorney fees. More attorneys should take on contingency – but that is an impossibility. The government should be protective of these people, but they are not.