Qualified Written Requests in Foreclosure: The Mortgage Servicer's Duties

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 servicers have made mistakes in servicing their accounts. Specifically, RESPA sets forth requirements related to qualified written requests, which require servicers to correct errors or provide information to borrowers who ask for it.

Read on to learn more about how to make a qualified written request and how it can help you, especially if you’re facing a nonjudicial foreclosure.

Making a Qualified Written Request

If you're 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 qualified written request is a letter written to the 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.

Under amendments to Regulation X, which implements RESPA, that went into effect January 10, 2014, your inquiry will be categorized as: a “request for information” or a “notice of error.” These new categorizations expand on the previous qualified written request requirements. There are different time frames for the servicer to respond to you depending on the type of request you send.

Request for Information

The servicer must acknowledge a request for information within five business days, and respond within 30 business days. The servicer can usually extend the 30-day response period by 15 business days if it tells you about the extension within the 30-day period and explains the delay. But if you want to know the identity, address, or other contact information for the owner of your mortgage loan, the servicer has to give you that information within ten business days. (12 C.F.R. § 1024.36).

Notice of Error

Your servicer must acknowledge a written request that asserts a particular error—like failing to properly apply payments or certain errors pertaining to loss mitigation—within five business days. It must correct the error, provide notice about the correction, and provide contact information for you to follow up (or let you know that no error occurred along with the reasons for this determination):

• not later than seven business days after the servicer receives your notice of error, if you complained that the servicer failed to provide an accurate payoff statement upon your request
• prior to the date of a foreclosure sale or within 30 business days after the servicer receives the notice of error, whichever is earlier, if your notice asserts that the servicer improperly started the foreclosure during the 120-day preforeclosure waiting period required by federal law; started the foreclosure before evaluating your complete loss mitigation application; or moved for a foreclosure judgment or order of sale, or conducted a foreclosure sale in violation of federal law on loss mitigation procedures (basically, you’re asserting that the servicer dual-tracked); or
• not later than 30 business days after the servicer receives the notice of error (for all other asserted errors).

The 30-day time frame can be extended for an additional 15 days if the servicer notifies you within the 30-day period of the extension and gives you the reasons for the delay. The servicer can’t get the extension, however, if the notice of error pertains to a payoff statement request or certain errors pertaining to loss mitigation and foreclosure. (12 C.F.R. § 1024.35).

When the Servicer Doesn't Have to Comply

The servicer doesn't have to comply with your error resolution or information request if the notice of error or request for information is essentially the same as one you previously sent or your request is overbroad, though it must notify you within five business days after making that determination and provide the basis for its determination.

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.

There is no specified format required for making a qualified written request, but the letter should:

• 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. You can find sample letters to send on the Consumer Financial Protection Bureau's website. Follow the “sample letter” links. You may send a request for information and a notice of error in the same letter or separately.

Damages

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 $2,000 if there is a pattern or practice of servicer noncompliance, and
• attorneys’ fees and costs. (12 U.S.C. §§ 2605[f][1], 2605[f][3]).

The statute of limitations—the time period in which you must sue—for violations is three years. (12 U.S.C. § 2614).

Foreclosure

The lender or servicer may generally initiate or continue a foreclosure even if a qualified written request is outstanding—but not if you send a notice of error based on certain loss mitigation errors, like an error based on the 120-day preforeclosure waiting period or dual-tracking restrictions. Then, the issue must be resolved before the foreclosure sale can proceed, so long as the servicer receives the notice of error more than seven days before a foreclosure sale.

Talk to an Attorney

If you're facing foreclosure and you think that the 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 might be available in your particular situation.