The Real Estate Settlement Procedures Act (RESPA) was primarily designed to ensure that consumers in real estate transactions receive timely information about the costs of the settlement process, but it also imposes certain requirements on loan servicers.
Some of RESPA's requirements can be helpful to people facing foreclosure who believe their mortgage servicers have made mistakes in servicing their accounts. Specifically, Section 6 of RESPA sets forth requirements related to qualified written requests, which require mortgage servicers to correct errors or provide information to borrowers who ask for it.
Read on to learn more about RESPA, how to make a qualified written request, and how it can help you, especially if you’re facing a nonjudicial foreclosure.
(If you have fallen behind on your mortgage payments and are facing imminent foreclosure, visit our Foreclosure section for help.)
Making a Qualified Written Request
If you are facing foreclosure and are having a difficult time obtaining information about your account from your loan servicer, you can make a qualified written request. (A mortgage servicer is the company that collects monthly mortgage payments from borrowers on behalf of the owner of the loan. The servicer also tracks account balances, manages the escrow account, handles loss mitigation applications, and pursues foreclosure in the case of defaulted loans.)
A qualified written request is a letter written to the mortgage servicer to:
- resolve errors related to the account and/or
- obtain information regarding the account.
By making a qualified written request, a borrower can force the servicer to provide detailed information about the account.
Qualified Written Requests and Nonjudicial Foreclosures
Qualified written requests can be a particularly useful tool in a nonjudicial foreclosure, where the lender does not have to go through state court to foreclose. (Read more about How Nonjudicial Foreclosure Works.)
Since there is no judge in a nonjudicial foreclosure to order the servicer to produce information about the account for the borrower to review, a qualified written request may be a borrower’s best chance at obtaining information about the account.
(To learn more about this difference between judicial and nonjudicial foreclosures, visit Nolo's Judicial v. Nonjudicial Foreclosure page.)
(To find out if your state primarily uses a judicial or nonjudicial foreclosure process, check our Summary of State Foreclosure Laws.)
How to Make a Qualified Written Request
To make a qualified written request, you must send a letter to the servicer with the following information:
- your name and account information (or information that enables the servicer to be able to identify your account)
- a statement of the reasons why the you believe that the account is in error, or
- a detailed description of the information you are seeking. (12 U.SC. § 2605[e][B])
There is no specified format required for making a qualified written request, but the letter should:
- state that it is a “qualified written request under Section 6 of RESPA”
- be sent to the servicer (not some other party), and
- not be written on your payment coupon or other payment medium supplied by the servicer.
It is recommended that you send the letter via certified mail, return receipt requested, so you will have confirmation that the servicer received the letter.
Servicer Must Correct Errors and Provide Information
After the servicer receives your qualified written request, it must do the following:
- Acknowledge receipt of the request within 20 days (not including Saturdays, Sundays, and legal holidays), unless it takes the action you requested within that time period. (12 U.SC. § 2605[e][A].)
- Within 60 days (not including Saturdays, Sundays, and legal holidays) , provide the information you requested, make the correction you requested, let you know why it believes it cannot provide you with the information, or tell you that there has not been a mistake and your account information is correct. (12 U.SC. § 2605[e].)
The response from your servicer must also include the name and telephone number for the individual, office, or department who can provide you with additional assistance if you have any questions.
Upcoming Changes to the Law
Effective January 10, 2014, these timeframes will be shortened. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, a mortgage servicer must acknowledge receipt of a qualified written request within five days and respond within 30 days. The 30-day period may be extended for an additional 15 days if the servicer notifies the borrower within the 30-day period of the extension and the reasons for delay in responding.
If the servicer fails to comply with the law, a borrower may recover:
- any actual damages suffered by the borrower due to the servicer's noncompliance
- additional damages not to exceed $1,000 if there is a pattern or practice of servicer noncompliance (increased to $2,000 pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act), and
- attorneys’ fees (12 U.S.C. §§ 2605[f], 2605[f]).
The statute of limitations (the time period in which you must sue) for violations is three years (12 U.S.C. § 2614).
No Negative Reporting
RESPA specifically prohibits a lender from making a negative credit report while a qualified written request is pending (12 U.S.C. § 2605 [e]). However, the lender or servicer may initiate or continue a foreclosure even if a qualified written request is outstanding (24 C.F.R. § 3500.21[e][ii]).
Beware of Scammers
There is no “trick” to making a qualified written request. If anyone offers to write the request for you and send it to your servicer for a fee, it is probably a scam since you can easily do it yourself. The Internet is full of sample qualified written request templates. A good one can be found on the U.S. Department of Housing and Urban Development’s website at www.hud.gov. Enter “Qualified Written Request” in the search box to find the sample.
For More Information
You can find the RESPA regulations at 12 U.S.C. § 2601, et seq.
RESPA is administered and enforced by the Consumer Financial Protection Bureau (CFPB). Go to www.consumerfinance.gov for more information.
When to Hire an Attorney
If you are facing foreclosure and you think that the mortgage servicer has made errors in the servicing of your account, a qualified written request is just one way to deal with the matter. Any given foreclosure or legal situation has many potential claims and defenses. It is recommended that you seek the advice of local counsel or a legal aid organization to explore all possible avenues and defenses that may be available in your particular situation.
For more information on challenging a foreclosure in court, see our article Should You Fight Your Foreclosure in Court?