Tonight! Q&A on Prelitigation Strategies — QWR, DVL and Complaints to CFPB and State AG 6PM EST 3PM PST

Thursdays LIVE! Click into the Neil Garfield Show

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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