Tonight’s Show Hosted by Neil Garfield, Esq.
Call in at (347) 850-1260, 6 pm Eastern Thursdays
As a follow-up to our FREE presentation CLE webinar on Prelitigation Strategies and Practices, we offer an open mike Q&A on tonight’s show. Please think about your questions in advance and refrain from long monologues about your case.
As an introduction let me state the obvious premise of this work: If as a consumer you have executed a promissory note and mortgage (or deed of trust) and you think that there is a loan account receivable somewhere that is owned and maintained by some lender or creditor, you are most likely incorrect.
Most homeowners make the mistake of thinking that the QWR and DVL are simply “form letters.” If that were the case, we would provide you with the template and you could send it out yourself. And back in the old days (pre-1995) that would be entirely appropriate for settling any disputes regarding the proper allocation of payments or any other issues.
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The statutory foundation for the creation of the QWR and the DVL was designed to resolve potential disputes between the debtor and the creditor.
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Today, the situation is different. We already know that there is no valid claim against the homeowner and that there is no valid claimant. We also already know that any company that is claimed to be a “servicer” neither has any legal authority to act as such (from anyone) nor does it perform any functions that are normally attributed to a company claiming to be a servicer.
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So while the legislative intent for providing consumer remedies in RESPA and the FDCPA was designed to resolve disputes, the procedures contained within those statutes are now used by homeowners to start a dispute — because, without a history of disputing the claims made to administer, collect or enforce any alleged obligation due from the homeowner, it is much harder to mount an effective defense.
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So the idea behind the sending of a QWR and DVL is to identify specific issues that you already know will not be answered — which gives you the right to file a lawsuit for violation of RESPA and FDCPA. In order to do that effectively, the homeowner needs to distill the case analysis down to the points that are relevant to those statutes. Although this is not exactly the same as preparing a lawsuit, the drafting of the QWR and DVL requires research, investigation, and very careful wording.
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Some homeowners have been able to do it themselves, but most are unable to do so because they lack the experience, knowledge, and resources to present direct questions concerning the existence of the loan account receivable, the status of the account, the ownership, and the authority to administer, collect or enforce any monetary obligations arising from the alleged existence of the account.
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Most of this is confusing to homeowners because they have never been to law school, received any practical training in trial practice nor have most of them ever been involved in any litigation. When most homeowners send the QWR or the DVL and they fail to get a direct answer or proper response that answers the specific questions asked in those letters, they consider the entire effort a failure and a waste of time — when in fact they just had a win. They have established that the parties seeking to make claims about administration, collection, or enforcement of the alleged obligation are unwilling or unable to provide any corroboration of such claims.
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IMPORTANT PRACTICE NOTE: When the QWR or DVL is used as a general discovery device or is used to pontificate about disputed views, it is generally dismissed by both the recipient and any court reviewing it as an unqualified written request under RESPA and not a demand for debt validation under the FDCPA. This is where the homeowners get themselves into trouble. The general attitude is that the “you know what I mean” argument is sufficient. It isn’t.
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Filed under: burden of persuasion, discovery, Discovery -Subpoena, Fabrication of documents, foreclosure defenses, forensic investigation, Pleading, Presumptions, prima facie case, sham transactions | Tagged: CFPB Complaint, debt validation letter, qualified written request, State AG Consumer Complaint request |
Most of us homeowners are laymen when it comes to legal matters. If we could find a precedent case or two and show them to a lawyer we would maybe have a better chance to get competent, willing legal representation. If we homeowners can spot that something is rotten in the foreclosures, we kind of expect a lawyer should be able to spot it too. But they do not seem to be able to. Then there is the fact that any lawyer defending a “deadbeat homeowner” is ostracized by the judges and the Bar – presumably for helping homeowners get a “free house”. But the judges and the Bar think it is OK for lawyers to file cases in court with back-dated paperwork and false testimony given? We homeowners are BELIEVED to legitimately owe the debt and to have known what we were getting into when we signed the loan papers. My husband and I were victims of predatory lending. We were lied to in the loan process too. We had our lives uprooted. That situation I believe contributed to his stress and was instrumental in his heart failure and death. Most of us homeowners have the will to fight back but no money, nor can we find a lawyer. The system is definitely screwed up. I believe the profit and the corruption goes all the way up through people in the highest levels of government, and that is why government and the legal system has not tried to stop it. It is like a serial murderer situation where a prosecutor says it is too big a crime, we can’t hold the murderer accountable. The system is too entrenched, and too many people would be exposed and shamed if we tried to correct it. But that is what should happen.