Servicer’s Duties To Respond To QWR Are Not Triggered Until The Request Is Sent To The Servicer’s Designated Address Even If The Servicer Uses Another Address To Correspond With Borrower

In Berneike v. Citimortgage, 11-4210 (10th Cir., Feb. 25, 2013), the borrower alleged that she faxed 28 different letters to her loan servicer asserting incorrect billing and overcharges and then sent a second round of 58 different letters complaining of an account shortage and certain fees that appeared on her monthly bills. The servicer acknowledged in writing the borrower’s inquiry and stated its belief that the account was correct and that the shortage was due to an increase in escrow disbursements. The letter also provided the borrower with a telephone number where the borrower could reach a representative of the servicer for further assistance. Several months later the borrower sent 47 further requests for information about overcharges and improper fees which she alleged were never answered. The borrower sued the servicer under RESPA for failing to respond to the many letters she characterized as Qualified Written Requests, (QWR), under RESPA. The servicer successfully moved to dismiss acknowledging it received the letters but they were not sent to its designated QWR address. On appeal the borrower contended that the servicer waived its right to receive QWRs at the designated address by responding to her correspondence. In rejecting this argument, the 10th Circuit observed that liability under Section 2605(e) of RESPA is triggered by the servicer’s receipt of the QWR. RESPA is silent on what constitutes receipt but RESPA’s implementing regulation provides that a servicer may establish a separate and exclusive office and address for the receipt and handling of qualified written requests by notice either included in the Notice of Transfer or separately delivered by first-class mail, postage prepaid. 24 C.F.R. § 3500.21(e)(1). The court held that this regulation did not undermine the goals of RESPA. Because it was undisputed that the borrower’s letters were not sent to the servicer’s designated address, they were not QWR’s. The correspondences amounted to nothing more than general correspondence between a borrower and servicer and the servicer did not waive its right to receive QWRs at its designated address by responding to borrower’s general correspondence.

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