Many people have a wrong impression in regard to what a Qualified Written Request (QWR) is and what a QWR is for pursuant to 12 USC § 2605(e).
A warning to distressed homeowners desperate for some kind of relief should be made in regard to information on the internet. There are countless alleged QWRs available on the internet that at first glance look or sound good but when you read the law for yourself you find very quickly that these so-called QWRs are nothing of the sort. With very few exceptions they all go far beyond the limitations provided in law.
What duties are placed upon the mortgage servicer upon the receipt of a borrower’s QWR? Pursuant to 12 USC § 2605(e)(1)(A) the mortgage servicer must acknowledge receipt of the QWR within 5 days (not including weekends or national holidays). 12 USC § 2605(e)(2) provides “Not later than 30 days” after the receipt from a QWR the servicer must respond to the request or inquiry. The 30 day response time may be extended for not more than 15 days pursuant to 12 USC § 2605(e)(4).
Lets break this term “Qualified Written Request” down word by word:
“Qualified” – Pursuant to 12 USC § 2605(e)(1)(A), a borrower’s (“or an agent of the borrower”) QWR must first qualify as a valid QWR in order to impose any duty upon the mortgage servicer to respond to such a request. In order to qualify as a valid QWR the request must be related to the servicing of a federally related mortgage loan as defined by 12 USC § 2602(1) i.e. Freddie Mac, Fannie Mae, Gennie Mae, FHA, VA, or HUD.
“Written” – 12 USC § 2605(e)(1)(B) provides that a QWR must be “a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer”; 12 USC § 2605(e)(1)(B)(i) that “includes, or otherwise enables the servicer to identify, the name and account of the borrower”; 12 USC § 2605 (e)(1)(B)(ii) and “includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.”
“Request” – As provided for by 12 USC § 2605(e)(1)(B) a borrower’s request is limited to a request to make corrections in regard to any accounting errors and “other information sought by the borrower”. But this leaves the question what “corrections”, and what “other information”?
What corrections – “[m]ake appropriate corrections in the account, including the crediting of any late charges or penalties” 12 USC § 2605(e)(1)(B)(i).
What other information – “[a] statement of the reasons for which the servicer believes the account of the borrower is correct” and “the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.” 12 USC § 2605(e)(2)(B)(ii). Or, “[a]n explanation of why the information requested is unavailable or cannot be obtained by the servicer” 12 USC § 2605(e)(2)(C)(i).
That’s it, nothing more. More simply put, if you notice an accounting error in your mortgage loan instrument, or if you were erroneously charged a late fee your QWR is a written request to make the appropriate corrections, and request to be notified that such corrections have been made.
Can it be a request to prove up the original Note? NO. Tell me who owns my Note? NO. How did you get the right to do this to me? Once again, NO. There is no legal duty to provide a borrower with any more information in response to a QWR than what is required to be provided in 12 USC § 2605(e).
Furthermore, if the mortgage servicer fails to acknowledge, or respond to a QWR in a timely manner that failure does not negate any contractual obligation of either party such as a promise to pay. Such a failure to comply is covered in 12 USC § 2605(f) Damages and costs.
If a mortgage servicer does provide more information than he is required to provide by law, they do so as an act of benevolence and not to satisfy a legal obligation. If you do send a QWR is can be a good opportunity to get whatever they will give you.
It is my sincere hope that this clears some of the common misconceptions regarding Qualified Written Requests.