If you’re a California homeowner considering filing bankruptcy to save your home and potentially litigate against your alleged mortgage creditor, there are some steps you can take now to help your bankruptcy litigation attorney later.
First, gather up all your original mortgage loan documents and have them available for your attorney. Keep these loan documents safe and save every notice, account statement,etc. as this information may become important pieces of evidence later on.
Next, you will want to contact your current loan servicer and obtain some very important information about your loan. You’ll do this by making what is called a Qualified Written Request ("QWR") under the Real Estate Settlement Procedures Act ("RESPA").
The QWR must be sent to a special address for the loan servicer and that address is usually the "correspondence" address found on the back side of your monthly mortgage statement. It’s best to send this request via certified mail so you can record and prove they actually received your request.
Below is a sample of the letter you could write under RESPA:
Dear Sir or Madam:
Please treat this letter as a “qualified written request” under the Federal Servicer Act, which is a part of the Real Estate Settlement Procedures Act, 12 U.S.C. 2605(e). This request is made on behalf of my Clients about the proper application of payments from the debtors to interest, principal, escrow advances and expenses (in that order of priority as provided for in the loan instruments); about your use of suspense accounts in connection with your receipt of the debtors’ payments; about your use of legacy late charges; about your use of automatically triggered property inspections and broker price opinion charges and fees based on pre-petition legacy accounting for pre-petition arrears; and about legal fees and expenses that have been attached to this account in the form of corporate advances. Specifically, I am requesting the following information:
1. A complete and original life of loan transaction history prepared by the Servicer from it’s own records using it’s own system and default servicing personnel.
2. A copy of your Key Loan Transaction history, bankruptcy work form, or XLS spreadsheet of all accounts associated with this mortgage loan.
3. The Transaction Codes.
4. The Code definitions in plain English.
5. Please attach a copy of the MERS Milestone Reports.
6. Please identify the full name, address and telephone number of the current holder of the original mortgage note including the name, address and phone number of any Trustee under the Trust or other fiduciary. This request is being made pursuant to Section 1641(f)(2) of the Truth In Lending Act, which requires the servicer to identify the holder of the debt.
7. Copies of all collection notes, collection records, communication files or any other form of recorded data with respect to any communications between you and the debtor.
8. An itemized statement of the full amount needed to reinstate the mortgage as of the date of your response.
9. Copies of all written or recorded communications between you and any non-lawyer third parties regarding this mortgage.
10. All P-309 screen shots of the history all of the accounts (principal, interest, escrow, late charges, legal fees, property inspection fees, broker price opinion fees, statutory expense fees, miscellaneous fees, corporate advance fees, etc.) associated with this loan.
To the extent that the servicer of this mortgage loan has charged the debtor’s mortgage loan account any appraisal fees, broker price opinion fees, property inspection/preservation fees, legal fees, recoverable corporate advances and other fees or costs that were not disclosed to the debtors, the debtors dispute any such fees and costs and specifically request that the account be corrected.
Once you have the response from the loan servicer, make an appointment to meet with your Chapter 13 Bankruptcy Litigation Attorney to review the documents and start your bankruptcy case. Remember that most consumer bankruptcy attorneys will offer a FREE initial consultation to help you decide if filing bankruptcy is right for you. Even if you don’t intend to file bankruptcy, a qualified written request will provide you with important information about your mortgage and the creditor.