9/21/2017 BorrowerDidNotHaveToProveServicerReceivedTheCommunicationToProveViolationOfRESPA.

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Borrower Did Not Have To Prove Servicer Received

The Communication To Prove Violation Of RESPA.
Also A Communication Sent To Servicers Attorney
Su ces As A Qualied Written Request

UPDATE FILED AS CURRENT CASE ALERT JAN 6, 2009

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
ualied Written Reuests (WR) under Section 6 of RESPA, 12 U.S.C. 2605(e).
e rst letter, which the servicer denied receiving, was sent to the address provided
on the reverse of the account statement. e second letter was addressed to the
servicer, but in care of its bankruptcy counsel, which the attorney then forwarded to
the servicer. e court rejected the servicers argument that its failure to properly
respond to both letters violated RESPA. As to the rst letter, the court held that it
was enough that the plaintis provided competent evidence that they mailed it; they
did not have to prove the servicer also received it. e court also excused them for
sending the letter to an address dierent than the one the servicer said was the one
designated to receive such inuiries. Nothing in the Mortgage Account Statements,
the court said, indicated that the designated address listed under General Inuiries
was the separate and exclusive oce and address for the receipt and handling of
ualied written reuests. With respect to the second letter, which was sent to its
outside bankruptcy counsel, the loan servicer contended it was not reuired 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 servicers attorney was not a WR. e
court distinguished that case authority because there the plaintis counsel said that
he could not accept the letter on behalf of the defendant and directed the plaintis
counsel to send the letter to the defendant directly. In the second case, there was no
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9/21/2017 BorrowerDidNotHaveToProveServicerReceivedTheCommunicationToProveViolationOfRESPA.AlsoACommunicationSentToServicersAttor

evidence that the servicers bankruptcy counsel contacted the plaintis and advised
them to directly speak to the servicer and the service admitted receiving it from its
attorney. (Note that a dierent court held that a reuest from an attorney was not a
WR and that to prove a violation of Section 6 the borrower had to show the
servicer actually received the communication. Gorham-Dima0io v. Countrywide Home
Loans, Inc. 1:08-CV-00019 (N.D.N.Y., December 17, 2008)).

WRITTEN BY
SOLOMON MAMAN

Solomon has over a decade of experience representing nancial institutions, real estate
investors and privately owned business entities. Solomon concentrates his practice in the
areas of banking, consumer nancial services, real estate, business law and related litigation
and appellate practice.

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