Borrower Did Not Have To Prove Servicer Received The Communication To Prove Violation Of RESPA. Also A Communication Sent To Servicer’s Attorney Suffices As A Qualified Written Request

In McLean v. GMAC Mortgage Corp., Inc. No. 06-22795-CIV. (S.D.Fla., December 16, 2008) the court was asked to decide if two letters sent by the borrowers to the servicer complaining about an increase in the amount of their loan payment were Qualified Written Requests (QWR) under Section 6 of RESPA, 12 U.S.C. § 2605(e). The first letter, which the servicer denied receiving, was sent to the address provided on the reverse of the account statement. The second letter was addressed to the servicer, but in care of its bankruptcy counsel, which the attorney then forwarded to the servicer. The court rejected the servicer’s argument that its failure to properly respond to both letters violated RESPA. As to the first letter, the court held that it was enough that the plaintiff’s provided competent evidence that they mailed it; they did not have to prove the servicer also received it. The court also excused them for sending the letter to an address different than the one the servicer said was the one designated to receive such inquiries. Nothing in the Mortgage Account Statements, the court said, indicated that the designated address listed under General Inquiries was the separate and exclusive office and address for the receipt and handling of qualified written requests. With respect to the second letter, which was sent to its outside bankruptcy counsel, the loan servicer contended it was not required to respond to the letter as a matter of law even if it had received it from counsel. It relied on a holding that a letter sent to the servicer’s attorney was not a QWR. The court distinguished that case authority because there the plaintiff’s counsel said that he could not accept the letter on behalf of the defendant and directed the plaintiff’s counsel to send the letter to the defendant directly. In the second case, there was no evidence that the servicer’s bankruptcy counsel contacted the plaintiffs and advised them to directly speak to the servicer and the service admitted receiving it from its attorney. (Note that a different court held that a request from an attorney was not a QWR and that to prove a violation of Section 6 the borrower had to show the servicer actually received the communication. Gorham-Dimaggio v. Countrywide Home Loans, Inc. 1:08-CV-00019 (N.D.N.Y., December 17, 2008)).