Showing posts with label Legal resources. Show all posts
Showing posts with label Legal resources. Show all posts

Saturday, April 21, 2012

QWR: Qualified Written Request

Practice Tip for practicing Bankruptcy attorneys:  Qualified Written Request (QWR). 

      One thing we do at Nevin Law Firm is send out a QWR for any bankruptcy client who has a mortgage.  What is a QWR? Glad you asked.  A qualified written request gets its name from RESPA, the Real Estate Settlement Procedures Act.  This act, and Section 6 dealing with a QWR, was put in place to give borrowers of a mortgage a dispute resolution mechanism.  As most of us know, it is really hard to deal with large institutions such as a bank.  Always receive a recording, voicemail, put on hold, or told you called the wrong department.  Well a QWR was Congress's giving borrowers a weapon to combat this type of customer service when a borrower has a legitimate concern regarding his mortgage. Specifically, the QWR is for when a borrower is concerned that an error has occurred in calculating how much money is owed.  RESPA requires that when a QWR is received by a mortgage lender, the lender must send an acknowledgement of receipt within 5 days and answer or correct any alleged miscalucaltions and provide any requested information within 30 days (as modified by the Dodd-Frank Act).  If the bank fails to abide by these deadlines then a borrower is allowed actual damages, statutory damages (not to exceed $1,000), and attorney fees.  The bank, however, is allowed to give the borrower notice that they are extending the time to respond by up to 15 days so long as in the notice the provide reason for the delay. 

       Now, there are specific requirements of what makes a letter a QWR and just a letter.  The letter must state that it is a Qualified Written Request, state that the bank must abide by the requirements of RESPA, be mailed to the actual servicer (not servicer's attorney), and allege errors, omissions, of defects occurred in calculating payments, fees, costs, charges, notice, etc. (These requirements are not an exhaustive list). This is a great tool for attorneys because it does a number of things: (1) if it goes unanswered you get fees; (2) forces the bank to provide you with mortgage documentation so you can look for errors; and (3) allows you to dispute any differences made on a proof of claim filed by the servicer in the bankruptcy case. 

      Major Caveat!! A couple things you need to be careful about.  QWRs are not to be used as a "fishing expedition" and doing so can have the potential to adversely affect a client.  A Deed of Trust may have a provision that in a dispute the borrower is responsible for legal fees.  In such a case, if used as a "fishing expedition" and there is no actual specific error alleged, you may have added a few hundred more dollars to the balance of your clients mortgage.
 
      Before sending out your own QWR and taking action to recover damages and fees if no response is given, be sure to read section 6 of RESPA and research the caselaw as this article only scratches the surface. 

Monday, March 19, 2012

Nashville Probate Committee Hosts Judge Kennedy

       Today, the Nashville Bar Association Probate Committee had the pleasure to have Davidson County's Probate Judge Randy Kennedy speak at our monthly meeting.  Various topics were discussed including new procedures for his courtroom and advice/tips for petitions to probate wills, specifically lost wills. But the bulk of the discussion involved the Judge discussing the proposed amendments to the State of Tennessee's Conservator and Guardianship laws.  Judge Kennedy summarized many of the changes and possible ramifications.  Overall, his main message was for the Tennessee bar members to read through the legislation and submit any comments, concerns, and questions to the legislature.  

       The Tennessee Bar Association is putting together a committee to research the new proposed amendments and submit a report discussing the positions of the probate bar.  A future article will include a more thorough discussion of the amendments and the specific provisions and their potential ramifications.  If interested, the following are links to the proposed amendments:

http://www.capitol.tn.gov/Bills/107/Bill/SB2519.pdf
http://www.capitol.tn.gov/Bills/107/Bill/SB2398.pdf
http://www.capitol.tn.gov/Bills/107/Bill/HB2456.pdf

Saturday, December 24, 2011

Tennessee Legal Resources

       For those Tennesseans who are representing themselves in court the following site is a great legal resource: http://www.lexisnexis.com/hottopics/tncode/.  This is a free site by Lexis Nexis that has up-to-date Tennessee Codes.  You can search the code by Table of Contents or by the actual language of the statute. 

       Another great site for you to use if you find yourself in court is http://www.tncourts.gov/courts/supreme-court/rules/rules-civil-procedure.   This site has all the current Tennessee rules of civil procedure.  Many times, Pro Se litigants (a person representing him/herself in court) lose on technicalities by not abiding by the rules of civil procedure, such as not filing a response by the deadline, or not answering requests for admissions.  When you receive a document from oppsosing party, it will say which rule its motion or discovery request is based on.  Use this website to read the rule so you can determine what you need to do to respond properly.  This website also contains rules of appellate procedure, criminal procedure, and the rules of evidence.  

       Please also notice the link on the left which says "Local Rules of Practice."  The previously mentioned rules apply state wide, however, local rules are just that: local.  Each court has their own rules that you need to know and that can vary from county to county and even judge to judge. 

       Whenever you find yourself in court, I highly recommend hiring an attorney since we are well versed in these rules, but if you are a DIY person or cannot afford an attorney these sites are wonderful resources.