Finding Out Who Owns the Mortgage
Assuming that the loan was not made through the FHA, the VA, or a state or local housing agency (which usually can be easily determined on the face of the loan origination documents and/or the recorded mortgage or deed of trust), then proceed as follows:
1. Is it owned by Fannie or Freddie? Fannie Mae and Freddie Mac own a very large portion of the mortgage loans in the United States. Both entities provide an easy-to-use loan look-up tool on their respective web sites. Here are the links directly to those tools:
For Fannie Mae, the only data needed are the borrower’s name and the address of the mortgaged property. For Freddie Mac, performing the look-up requires last for digits of the borrower’s Social Security number in addition to name and address. In either case, the look-up will return an answer as to whether or not a mortgage is owned on property at that address.
2. Securitized loans not owned by Fannie or Freddie. If both the Fannie Mae and the Freddie Mac look-up tools return negative results, then it is very likely that the loan is owned by a non-Fannie/Freddie, so-called “private label" securitized trust. While it is sometimes possible to identify the securitized trust though such tools as the S.E.C.’s EDGAR database, this is not the easiest method even for experienced researchers. Fortunately, under Federal law (actually two separate Federal laws) mortgage servicers are required to provide certain information to borrowers upon written request.
Law #1. The Real Estate Settlement Procedures Act (known as “RESPA") section 6(e) [found in Title12 of the United States Code, §2605(e)] requires servicers to respond to “Qualified Written Requests" (QWR’s). A QWR is a request in writing for “information relating to the servicing of" the loan. Key points about QWR’s:
Correct Address. Examine the front and back of the monthly statement to determine the address for sending the QWR. A few servicers provide an address specifically for QWR’s, and if so, it must be used. Otherwise use the address for “inquiries", “correspondence", customer services", or whatever term is used, as opposed to the address to which payments are sent. The payment address is never to be used. Any letters sent there are disposed of unread.
Suggested wording. Some servicers take the position that QWR’s should relate only to “disputes" about the borrower’s account. Therefore, it is a good idea to frame your request with reference to a dispute. Suggested wording:
“Based on information we have received about this loan in monthly statements, we are uncertain as to who is the current ownerof the mortgage Note. Please resolve this uncertainty and dispute by providing us with the following information:
1. Please provide the complete name and address of the entity that currently owns the Note that is secured by this mortgage loan.
2. Please provide a copy of the front and back of all pages of that Note.
3. Please provide copies of all Endorsements of that Note.
4. Please provide a copy of all Allonges to that Note.
5. Please provide a copy of all Assignments of the mortgage or deed of trust securing this Note.
Less is more. Keeping the QWR as short and simple as possible increases its chances of generating a meaningful response. Lengthy or “boiler-plate" QWR’s are often stonewalled with claims that they are over-inclusive or not “relevant" to the “servicing" of the loan. Consider limiting your request to only the above five items, plus perhaps a (here’s some more suggested wording) “native, system-generated, life-of-loan transaction history" and no more than a few other very specific items that are actually in dispute. You can always ask for more information later.
Law #2. The Truth-in-Lending Act (“TILA") section 131(f)(2) [found in Title15 of the United States Code, §1641(f)(2)] provides that “upon written request by the obligor, the servicer shall provide … the name, address, and telephone number of the owner or the master servicer of the obligation".
Because TILA is a separate law from RESPA, does this mean that you need to send two separate letters to the servicer? No. A single letter should suffice, provided you specifically state that you are triggering the borrower’s rights under both laws. Suggested wording for the introductory paragraph:
“This is a Qualified Written Request as defined by the Real Estate Settlement Procedures Act (“RESPA") for information regarding the servicing of this mortgage loan. This is also a request made pursuant to §1641(f)(2) of the Truth in Lending Act (“TILA") for the name, address and telephone number of the owner of the mortgage Note the evidences this debt obligation".
Key differences between these RESPA and TILA provisions:
Scope. TILA §1641(f)(2) applies only to loans secured by the borrower’s Principal Dwelling, while RESPA’s QWR rules apply to practically any loan secured by a one-to-four family residential structure, regardless of who occupies it.
Time limits for response. The servicer must give an initial response to a QWR within 20 business days, and is allowed an additional 40 business days to finis assembling and send the response if needed. (See below as to effect of Dodd-Frank Financial Reform Act). On the other hand TILA, unfortunately, contains no specific time period within which a response to a TILA §1641(f)(2) must be sent (but again, see below as to effect of Dodd-Frank Financial Reform Act).
Penalties for violations. Violations of TILA §1641(f)(2) make the “creditor" liable for statutory damages up to $4,000, plus actual damages and attorney fees. See TILA §130 [15 U.S.C. §1640] and note the use on the word “creditor". Violations of RESPA’s QWR rules make the servicer liable for statutory damages of $1,000 (increasing to $2,000 under the Dodd-Frank Financial Reform Act) in the event the Court finds a “pattern or practice" of non-compliance.
How to Mail:
Use CMRRR. Always mail QWR’s and TILA requests by Certified Mail- Return Receipt Requested. It is difficult to enforce a time deadline without this.
Lawyers Writing for Clients. QWR’s and TILA requests can be sent by lawyers on behalf of clients; however in these cases a written authorization clearly identifying the loan, expressly authorizing the servicer to provide the information to the lawyer, and signed by the borrower(s) must be enclosed and referenced in the body of the lawyer’s letter.
Effect of Dodd-Frank Financial Reform Act, Public Law 111-203, Section 1463
• Reduces QWR response deadlines; requires acknowledgement of receipt of QWR within 5 business days and a substantive response within 30 business days, with a possible 15 day extension if the servicer sends notice of the delay and its reason.
• Adds new 6(k) to RESPA: servicer “shall not fail to respond within 10 business days to a request by the borrower to provide the identity, address, and other relevant information about the owner or assignee of a home mortgage loan".
• Addresses the above-mentioned lack of a specific time deadline in TILA §1641(f)(2) by providing that it shall be a violation of TILA for a servicer to fail to identify of the “owner or assignee" of loan with 10 business days following a written request with respect to a loan secured by the borrowers principal dwelling.
Effective Date: All sections of Dodd-Frank were effective July 22, 2010 unless “otherwise provided" or regulations are necessary in order to implement such section. See Dodd-Frank §1400. Much of Dodd-Frank becomes effective on the “Designated Transfer Date", which has been set at July 21, 2011. Because no regulations appear to be required to implement the particular provisions mentioned above, there is a reasonable argument that these particular provisions became effective July 22, 2010; however most industry lawyers probably disagree with this interpretation.
QWR’s and TILA requests are not substitutes for full-blown discovery in contested matters, and as mentioned above, making these requests too lengthy or legalistic often can be counter-productive. These laws are valuable tools to use at the intake stage and any case involving mortgage issues, to properly identify the real party in interest, to evaluate allegations in forthcoming foreclosure pleadings or bankruptcy Proofs of Claim or motions to lift the stay and to help identify any defenses or claims that may be available to the borrower.