by Patrick Rodgers
Hi. I’m Patrick Rodgers, the Philly homeowner who “foreclosed” on Wells Fargo. I joked that I wanted to be the “Johnny Appleseed of RESPA letters,” but my successful suit against Wells Fargo Home Mortgage was very real. The supportive comments by Consumerist readers really boosted my spirits and kept me focused on the prize in the final stages of negotiating with Wells Fargo. To give back to the community, here’s a nuts and bolts look at exactly how I did it.
The story begins with a specific type of letter I sent Wells Fargo in July 2010 because I had questions about my home insurance premiums being jacked up. The letter is called a “Qualified Written Request” (QWR), and you can read mine at the end of this article. A homeowner can send one of these to their mortgage company and ask for information about their account, point out errors and get the name and number of live person at the company who can talk about their problems. By Federal law – the Real Estate Settlement Procedures ACT (RESPA) to be exact – the company has to acknowledge receiving this letter within 20 business days and take action within 60. If they don’t, you can take them to court and get them fined. So this letter is a powerful tool indeed. It can cut through tangled phone trees and force a seemingly silent and unmovable company to get moving, as long as you are willing to take it all the way. I was, so I wanted to make sure my QWR was perfect.
My best resource throughout was the text of RESPA itself. By studying the actual law and not just relying on summaries offered up by various websites, I had a much better understanding of how best to press my case forward.
I checked out the sample QWR on the HUD (Department of Housing and Urban Development) website, but it was too spare for my needs. However I did learn that if not properly formatted, a QWR could be tossed out and the company wouldn’t have to react. A valid QWR needs to identify itself as being a QWR, and I needed to tell the lender that I expected them to abide by the law in handling my Request. (Apparently lenders need reminding of this.)
By Googling the terms QWR and RESPA, I found a number of consumer sites that had posted more detailed sample QWRs. But some of them went too far, throwing out a pile of questions that seemed more designed to harass the lender than to press a legitimate point. They almost seemed like the writer wanted them to be unanswerable, which didn’t serve my purpose. I actually did want my questions answered. And in the event it actually went to court, I didn’t think a judge would be impressed with a grab-bag of time-wasting inquiries. They were good to jump-off from, though, so after a lot of editing I had a fairly solid draft.
I’ve always believed in the maxim “know thy enemy,” so next I closely read the mortgage industry news sites and message boards to read the tricks and tactics banks used to disqualify a QWR. I adjusted my letter so that it couldn’t be easily set aside. One of the things I wanted to avoid was the “kitchen sink” QWR which the banking industry sites felt would be tossed out of court if it came down to the line. However, there are a few questions that, in this era of clumsy mortgage paper trails, can strike terror into the hearts of banks. Two of them I put in my QWR were:
- Where is the original promissory note or mortgage I signed located? Please describe its physical location and anyone holding this note as a custodian or trustee if applicable.
- Where is the original deed of trust I signed located? Please describe its physical location and anyone holding this note as a custodian or trustee if applicable.
After polishing my QWR to my satisfaction, I sent it by Express Mail to Wells Fargo so I would have proof of delivery, including a signature. Then I waited. No response. I sent a second letter to remind them of the 20 business day deadline. Nothing. Wells Fargo also missed the 60 business day deadline. By that point they’re supposed to have investigated your issue, issued a written response, and shared the name and number of a human at the bank you can talk to about your letter.
I sent yet another letter reminding them of their legally-mandated deadlines. I cautioned that I had no recourse but to litigate. Once again, crickets.
No attorney felt it was worth their time or mine because Wells Fargo wasn’t foreclosing on me, so I decided to represent myself and take them to Small Claims Court. In this venue, often times neither side is represented by counsel so the playing field is a lot more level. I know they say, “He who is his own lawyer has a fool for a client,” but there are exceptions, and Philadelphia Municipal Court is often one of them. Their website was full of guides, as well as all the forms and info I needed for the process. Best of all, it was cheap and easy.
RESPA provides for an additional $1,000 award, on top of actual damages, “in the case of a pattern or practice of noncompliance.” I was certain that my three unanswered letters demonstrated a case for a pattern of noncompliance but I resolved to search for newspaper stories about similar cases. I wasn’t quite ready to make a claim for damage done to my credit report or other actual damages, so I opted to file just for that $1,000. I spent many hours drafting my one-page Statement of Claim, but actually filing my claim for the $1,000 only set me back $78 in fees, and an hour and a half of my time.
Despite being served with papers by the court, when the trial date finally came, Wells Fargo didn’t show. The judge awarded me a default judgment for the full $1,000, plus costs (my original $78 filing fee). The bank had 30 days either to pay me or to appeal. They did neither, so my next step, clearly explained by a friendly handout from the Municipal Court, was to go to the Philadelphia Sheriff’s office and order a Levy. This meant nothing inside the building could leave the premises, and it set the stage for a Sheriff’s Sale, a public auction where the debtor’s property is sold to take care of the judgment.
Ten days after I paid the $84 fee, a Deputy Sheriff went to the Wells Fargo branch and inventoried all of their possessions – office furniture, computers, fax machines – and placed it under Sheriff’s Levy. I hadn’t gotten anything from Wells Fargo yet, so I paid the $50.00 fee and filled out the paperwork for a Sheriff’s Sale.
A very short time later, I received a check from Wells Fargo for the original $1078.00 judgment. Unfortunately, they failed to pay the $84.00 or $50.00 fees from the Sheriff’s Office, which I was entitled to recover from them. There was also interest due on the judgment since they had not paid it on time. I produced evidence of all of these costs at the courthouse and filed a “Bill of Costs” (filing fee: one dollar) so that these fees would be part of the official court record.
Less than two weeks later, I received payment for the $84.00 Sheriff’s Levy fee as well as the interest due. Sadly, the $50 for the Sheriff’s Sale remained unpaid. As such, the sale kept moving forward, and as part of that process, the Sheriff’s Department printed up posters for me to photocopy and hang around town to advertise the sale.
In 16 years of promoting concerts I’ve hung my fair share of posters, but I knew that the best publicity for the sale would be to “hang” the posters in front of the local press. I scanned one, wrote a press release, and emailed it to all the major media outlets in Philadelphia. Besides my music press contacts, I also reached out to consumer affairs and business journalists, as well as reporters who had written articles critical of Wells Fargo.
As you probably already know, my story blew up. I was interviewed on CNN and FOX and countless local channels, USA Today and others picked up my story, and it went viral online. Wells Fargo finally did call me and we settled out of court. I can’t discuss it, but let’s just say with all the publicity and leverage on my side of the table, we reached terms that I found quite acceptable.
Looking back, the case could have gone many different ways. Had the bank showed up in court, I might have had to prove my assertion that their conduct constituted “a pattern or practice of noncompliance.” I might have lost the case. Even after winning the case, they might have appealed. Even if they didn’t appeal, they might have just paid the $1,078 promptly and called it a day. But by learning my rights, and continually pushing forward and pressing my advantage within the law, I got satisfaction.
I’m not a lawyer. I have no legal training. Nothing I wrote should be taken as legal advice, (and you shouldn’t send a letter like this unless you feel you really have a case). But that’s the beauty of the story, isn’t it? If I did it, chances are, you can too.
- Patrick Rodgers
Edited by Ben Popken
APPENDIX: MY ORIGINAL QWR
(personal information redacted)
Â Patrick Rodgers
123 Any Street
Philadelphia, PA 19555
Wells Fargo Home Mortgage
Somewhere out there
Loan # 1234567890
Borrower Name: Patrick Rodgers
Property Address: 123 Any Street, Philadelphia PA 19555
RE: RESPA Qualified Written Request, Complaint, and Dispute of Debt and Validation of Debt Letter
Dear Ms. Smith,
I am writing to you to request specific itemized information about the accounting and servicing of my mortgage in order to assist me in understanding various charges, credits, debits, transactions, actions, payments, analyses and records related to the servicing of my loan from its inception to the present date.
I am disputing the validity of the current debt you claim that I owe.Â To date, your company has failed to answer any of my written correspondence concerning the servicing of my mortgage, including (but not necessarily limited to) letters dated June 23 2010, April 11 2010, September 11 2009 and July 24 2009.
Based in part on your repeated failure to respond to my correspondence concerning the servicing of my mortgage, I have reason to believe that your calculations are in error.
To independently validate this debt, I need to conduct a complete exam, audit, review and accounting of my mortgage loan from its inception until the present date.Â Upon receipt of this letter, please refrain from reporting any negative credit information to any credit reporting agencies until you have fully responded to this request.
In order to conduct this examination and audit, I need to have full and immediate disclosure including copies of all pertinent information regarding my loan.Â The documents requested and answers to questions are needed to ensure the following:
- That each servicer and sub-servicer of my mortgage has serviced my mortgage in accordance with the terms of my mortgage, promissory note and/or deed of trust;
- That each servicer and sub-servicer of my mortgage has serviced my mortgage in compliance with local, state and federal statutes, laws and regulations;
- That my loan has properly been credited, debited, adjusted, amortized and charged correctly;
- That interest and principal have been properly calculated and applied to my loan;
- That my principal balance has been properly calculated and accounted for;
- That no charges, fees or expenses that I am not contractually bound to pay have been charged or assessed to or collected on my account;
In order to validate my debt and audit my account, I need copies of pertinent documents to be provided and answers in writing to various servicing questions to be sent to me at the above-noted address.
For each record kept on computer or in any other electronic file or format, please provide a paper copy of all information in each field or record in each computer system, program or database used by you that contains any information on my account.
As such, please send to me, at the address above, copies of the documents requested below as soon as possible.Â Please provide me copies of:
- All deeds in lieu, modifications to my mortgage, promissory note or deed of trust from the inception of my loan to the present date.
- All contracts or agreements bearing my signature, specifically including but not limited to the original mortgage agreement.
- The front and back of each and every canceled check, money order, draft, debit or credit notice issued to any servicer of my account for payment of any monthly payment, other payment, escrow charge, fee or expense on my account.
- All escrow analyses conducted on my account from the inception of my loan until the date of this letter;
- The front and back of each and every canceled check, draft or debit notice issued for payment of closing costs, fees and expenses listed on my disclosure statement including, but not limited to, appraisal fees, inspection fees, title searches, title insurance fees, hazard insurance premiums, commissions, etc.
- Front and back copies of all payment receipts, checks, money orders, drafts, automatic debits and written evidence of payments made by me or by others on my account.
- All copies of property inspection reports, appraisals, BPOs and reports done on my property.
- All invoices for each charge such as including, but not limited to, appraisal fees, inspection fees, title searches, title insurance fees, hazard insurance premiums, commissions, or any other expense which has been charged to my mortgage account from the inception of my loan to the present date.
- All loan servicing records, payment payoffs, payoff calculations, ARM audits, interest rate adjustments, payment records, transaction histories, loan histories, accounting records, ledgers, and documents that relate to the accounting of my loan from the inception of my loan until present date.
- All loan servicing transaction records, ledgers, registers and similar items detailing how my loan has been serviced from the from the inception of my loan until present date.
Further, in order to conduct the audit and review of my account, and to determine all proper amounts due, I need the following answers to questions concerning the servicing and accounting of my mortgage account from its inception to the present date.Â Accordingly, please provide me, in writing, detailed answers to the questions listed below.
DEBITS & CREDITS
1)Â Â In a spreadsheet form or in letter form in a columnar format, please detail for me each and every credit on my account and the date such credit was posted to my account as well as the date any credit was received.
2)Â Â In a spreadsheet form or in letter form in a columnar format, please detail for me each and every debit on my account and the date such credit was posted to my account as well as the date any debit was received.
3)Â Â For each debit or credit listed, please provide me with the definition for each corresponding transaction code you utilize.
1)Â Â Where is the original promissory note or mortgage I signed located?Â Please describe its physical location and anyone holding this note as a custodian or trustee if applicable.
2)Â Â Where is the original deed of trust I signed located?Â Please describe its physical location and anyone holding this note as a custodian or trustee if applicable.
1)Â Â Have you reported the collection of late fees or late charges on my account as interest in any statement to me or to the IRS?
1)Â Â Do you deny the receipt of my correspondence bearing the following dates, or the existence of such correspondence in your files: June 23 2010, April 11 2010, September 11 2009 and July 24 2009?
Please provide me with the documents I have requested and a detailed answer, in writing, to each of my questions within the required lawful time frame.Â Upon receipt of the documents and answers, an exam and audit may be conducted that may lead to a further document request and answers to questions under an additional QWR letter.
I understand that under Section 6 of RESPA you are required to acknowledge this request within 20 business days and must demonstrate a good faith effort to resolve the issue within 60 business days. As such, I anticipate and appreciate your thorough and timely response so that this matter may be swiftly and fully resolved.
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