Want to Sue the Banksters? Ask WhereIsTheNote

Remember WhereIsTheNote?

In the face of mounting evidence that the banks foreclosing on homes did not comply with legal requirements during securitization of mortgages and therefore don’t have legal standing to foreclose, the SEIU and some community organizations teamed together last month to create an online tool that anyone can use to ask their mortgage servicer where their note is. By helping homeowners proactively check whether their bank has the right paperwork, it gives them more power in the event of a foreclosure.

The site launched just over three weeks ago. 200,000 people have visited the website; around 15,000 have used the tool to ask their bank for their note (I’ll have a more exact number shortly).

What has happened since gets very interesting. In the first few days, some banks responded quickly and in apparent good faith, some admitting there was a problem, and others sending what they claimed was the note, but was either something else entirely, or clearly did not meet the requirements for transfer.

But as banks realized those first requests were not isolated requests, two things happened. Either banks have sent back a response saying the homeowner had no right to see their note. Or, banks have not responded at all.

Here’s where things get interesting. The WhereIsTheNote-generated letters invoke the Real Estate Settlement Procedures Act (RESPA). Section 6 of RESPA dictates how loan servicers must reply to consumer complaints about their loan.

Section 6 provides borrowers with important consumer protections relating to the servicing of their loans. Under Section 6 of RESPA, borrowers who have a problem with the servicing of their loan (including escrow account questions), should contact their loan servicer in writing, outlining the nature of their complaint. The servicer must acknowledge the complaint in writing within 20 business days of receipt of the complaint. Within 60 business days the servicer must resolve the complaint by correcting the account or giving a statement of the reasons for its position. Until the complaint is resolved, borrowers should continue to make the servicer’s required payment.

A borrower may bring a private law suit, or a group of borrowers may bring a class action suit, within three years, against a servicer who fails to comply with Section 6’s provisions. Borrowers may obtain actual damages, as well as additional damages if there is a pattern of noncompliance. [my emphasis]

In other words, RESPA says that if homeowners write their servicer and say, “I have a problem with the way you’re servicing my loan,” the law requires that the bank acknowledge that the homeowner has written that letter within in 20 days. And it requires that it resolve that complaint within 60 days. If banks don’t do so, homeowners can sue.

So, as I said, just over three weeks after people started using this site, banks have been writing back and either telling homeowners that the complaint basically saying “I have doubts about whether you actually have legal standing to collect my mortgage payments” doesn’t qualify as a “problem” under RESPA. Here’s how IndyMac made such a claim in one response letter.

Although your fax references the response as RESPA Qualified Written Response eligible, your request actually does not qualify. The statute and case law require that the correspondence disputes the servicing of the loan and requires the sender to provide the servicer specific facts that would enable the servicer to investigate and respond. For instance, a dispute may involve a misapplication of a payment or a miscalculation of a monthly escrow amount. The statement that you are concerned about what you may have heard on the news does not qualify as a dispute with the servicing of your loan. Consequently, we are not subject to the response requirements set forth in the Real Estate Settlement Procedures Act.

In other cases–such as Citibank in my case–the bank appears to have simply let the 20-day deadline pass without a response.

Now, the genius of the WhereIsTheNote campaign is twofold. First, for the first time, someone is collecting an independent set of data about whether banks have a right to collect payment on the loan or not (there is privately available data, but it’s very expensive). WhereIsTheNote has already recognized, for example, that Bank of America and its subsidiaries have adopted a uniform claim that RESPA doesn’t apply in this case (of course, Bank of America is one of the most suspect banks for note problems). And WhereIsTheNote is collecting information that will show that not just those houses in foreclosure, but performing loans have note problems, proving that this is not an issue of “deadbeat” homeowners, but rather banks that are playing fast and loose with private property rights.

But more interesting is enforcement. As the section I cited above makes clear, borrowers whose banks refuse to respond to a RESPA request can sue for damages.

And as it happens, the Attorneys General in all 50 states are already investigating whether the banks are engaging in foreclosure fraud to cover up securitization problems. Which means there are already lawyers out there ready to take on the banks that do things–like refusing to respond to homeowner RESPA requests. WhereIsTheNote will be referring these RESPA non-responses to the AGs to respond accordingly.

If you haven’t already done so, I encourage you to ask your servicer WhereIsTheNote. Because–on a day when all else seems hopeless–it may well be a means of holding the banks accountable for the shitpile they made of our nation.

  1. Mary says:

    [pssst – are you going to keep the upcoming GOP hearings on twitter, or give the non-twits a chance to play? ;) ]

    • mzchief says:

      Excerpt from “MERS Fraud Impact On CMBS: Up To $280 Billion Per Barclays,” by Tyler Durden, Oct. 27, 2010 (bold my emphasis):

      “In a note released to clients yesterday, Barclays’ Julia Tcherkassova notes that finally MERS foreclosure issues may be spreading to commercial real estate, after “recent lawsuits have raised questions about the legal standing of MERS as a foreclosing entity and an electronic record keeper. [..]”

  2. parsnip says:

    I’m curious whether the letter includes the question of to whom the servicer is forwarding one’s monthly mortgage payments. I’d think that would be crucial to know, so that one can possibly work backwards to find out when or whether a real assignment was made, and if it’s to a MBS trust, whether the trust really exists.

    [I don’t have a mortgage so I couldn’t click through to see the letter.]

  3. rosalind says:

    ew, is the indymac verbatim? i.e. did the original letter say “your request actually does no qualify” instead of “does NOT qualify” and “Consequently, we are no subject to” instead of “…we are NOT subject to”?

    • emptywheel says:

      The questions are good, but I would still recommend people go through the Where’s the note bc it aggregates data and helps w/feedback, not to mention grouping responses together for the AGs.

  4. pdaly says:

    I used the WhereIsTheNote site. Then I saw Peterr’s link to the sample letter on the state of MO AG’s website. I wish I had enclosed all those specific requests. Will send another letter uncluding those requests if I don’t hear from my servicer in 20 days.

    Somewhat on topic:

    I don’t recall if I read here or on Yves Smith’s NakedCapitalism the advice to round up each month’s mortgage payment to the nearest dollar, and then append cents to the payment according to each month (This helps you keep track of when your servicer applies your payments):

    For example, say your monthly mortgage is 1255.40, round up to 1256 and pay

    $1256.01 for January

    $1256.02 for February

    $1256.03 for March, etc

  5. bobschacht says:

    Thanks for this, EW. It’s a good project.

    One worry: Will our mortgage servicer put us on some kind of enemies list as a trouble maker, in order to force a transfer of the property to a more compliant borrower?

    Bob in AZ

  6. thatvisionthing says:

    Reposting my comment from previous thread:

    What’s WhereIsTheNote going to do with this info? I already know MERS and Countrywide are on my deed, or whatever that is at the county recorder, and that Countrywide sold my mortgage immediately. I know that there’s a ruling against MERS in California. Why does every case have to be litigated? Why isn’t that ruling like Rosa Parks’ ruling, why doesn’t it free us all? Just saying, I have no lawyer, and no hope of a lawyer. And for all the fact that law firms scour recorder records for potential customers, the letters I get from them are all about refi and bankruptcy, and not one about challenging MERS.

  7. parsnip says:


    I replied to your comments on yesterday’s Grayson and Freddie posts.


    Those letters you get from lawyers about refi and bankruptcy….are they legitimate, or scam artists trolling for people to cheat? Those unemployed mortgage brokers have been perpetrating many schemes to fool people into paying them to ‘help’ with refis or loan mods. The Home Equity Theft Reporter is an excellent site for compilations of just about everything happening on the mortgage/foreclosure front, with plain English synopses of the linked articles, and sidebars full of resources.

    The profusion of scams is mind-boggling. Unfortunately, it seems that AGs are mostly prosecuting these bottom feeders, making it look like the perps are mere two-bitsters, rather than going after the banksters.

    I don’t even have a mortgage, and yet I got a robocall offering ‘help’ with mine. So who knows what mailing list those lawyers got your name from.

    • thatvisionthing says:

      Well, I’m pretty sure the info they have on me comes from the county recorder’s site. Though maybe I should think again. They know the dollar amount of my mortgage. They try to look like they’re government/official mail. I’m sure they’re in the basket with the other scammers AG Jerry Brown has gone after.

      I wonder if the California AG’s office takes walk-ins?

    • thatvisionthing says:

      Yes I saw your replies and I’ve got a lot of reading to do to understand them. The comments in the Yves one were making some interesting points about the database structure/functions of MERS, like wasn’t MERS keeping assignments straight, how could the same house be foreclosed on by multiple banks, how there was no mechanism to catch faulty assignments? Like even the database didn’t make sense for its supposed purpose.

      btw, are you THE parsnip of Ed Schultz’s message board fame? I used to post there (a few years back when we heard Ed’s radio show on KLSD, sadly departed) and the board regulars gave out parsies named after user parsnip. People prided themselves on the number of parsies they had.

    • thatvisionthing says:

      “accountability” — hmm…

      You give out a lot of personal information on WheresTheNote yet you don’t know much about who’s behind the website and what their purpose is — my impression from the splash page. No info, no link except “Participate.” It’s like sending off resumes blindly, which I hate. I just wish they’d give contact information so you could talk about your concerns with a person. They do show a Washington address at the bottom of the page.

      The HuffPo article linked to in the diary names Stephen Lerner, who is not one of the named people (Leaders) featured on the SEIU website. He had an earlier webform (Seven Questions) that had the address as well as phone number and link to a contact form, at the bottom of the page. So now with WheresMyNote he’s giving out less info on who he is and how to reach him:

      © Service Employees International Union, CTW, CLC

      1800 Massachusetts Avenue NW, Washington, DC | Tel: 202-730-7000 | Toll-Free 800-424-8592

      Privacy Policy | Contact Us

      I’m with @11 — afraid to shake the bear (“Participate”) I have no protection from

      • mzchief says:

        From “Service Employees International Union, CTW, CLC” (written at the bottom of page):

        A mortgage note is the document you signed when you purchased your home loan. [..] only the original mortgage note with your signature is proof that you owe the debt.

        So, depending upon:

        * how the bank responds to your request to show you the aforementioned piece of paper that is the proof that you are bound to a debt you are paying on,

        * your particular life circumstance,

        * your evaluation of your possible courses of action (with your evaluation of the attendant consequences of each),

        and if you find you have to go to court to enforce your legal rights, then, yes, you will have to learn everything you need to know about retaining and managing a counsel, the process and typical duration of “going to court” and the ramifications of doing so. Only you can do that. You can’t expect SEIU, or the SEIU website, to be anything but an information resource for your evaluation of your situation and an informational “assist” in you preparing yourself to take the course of action that– in your best judgment– will benefit you.

        • thatvisionthing says:

          Underwater people can’t afford lawyers, that’s a feature not a bug of the mortgage fraud in the first place. And SEIU is pretty fineprint/invisible about who they are and what they’re doing and what the plan is that’s supposed to come together. Let’s you and him fight. Thanks, that helps me a lot.

          Frustration speaking. If SEIU was collecting data for a class action suit, that would seem more useful, and I’d have more reason to participate. That doesn’t seem to be the case.

  8. eCAHNomics says:

    Suing is not all it’s cracked up to be. It’s not really for the small people.

    I’ve avoided suing (though used the threat effectively) and I have been sued. Let me assure you that as an individual you NEVER want to be on any side of a lawsuit, esp one where the other side has bottomless pockets.

    Suing is NO relief for the mortgage mess.

    • eCAHNomics says:

      In fact, suing the banksters prolly plays right into their hands. The system is so rigged in their favor, they can outlast you & establish a precedent they can used against others.

  9. Adam503 says:

    OT — “4:15 p.m.: Former Gov. John Kitzhaber will win the {Oregon] governor’s race, The Oregonian projects, giving the Democrat a history-making third term.

    Although Republican Chris Dudley continues to hold a slim lead, mathematical calculations based on statewide voting trends show Kitzhaber is likely to overtake him and win by about 10,000 votes out of 1.4 million cast. The newspaper’s projections show Kitzhaber winning by 49 percent to 48 percent, which is outside the margin for automatic recount.

    The latest results from Multnomah County, where Kitzhaber has gotten 70 percent of the vote, show Dudley’s lead has narrowed to about half of a percent and will be reversed once the remaining 75,000 ballots from Multnomah and Democrat-heavy Lane County are tallied.

    Neither campaign was available immediately to comment.

    — The Oregonian…”


    • mzchief says:

      OT– I think Dud-ley was a very poor choice but I wasn’t overwhelmed by Kitzhaber. He just looked like the best choice across all the candidates despite his failing the progressive courage test to support cannabis decriminalization. Kinda pathetic when the Democratic Party declares but their candidate dodges. I’ve been a dadgum Independent for almost ever, I ended going with as many credible Progressive Party or Green Party candidates after I went through all the data. I am hoping after Kitzhaber squeaks into office in Oregon that Oregonians get on the stick, put him under the microscope and hold his feet to the fire. One of things disgusting me is the privatization and corruption that’s gone on with respect to the Oregon social services. I think it needs to be put back under government care, cleaned up and revitalized. I found out that the institutional care for mentally disabled adults has folks in it that should be in the criminal justice system. The rate of rapes of those supposedly being cared for in adult assisted living is extraordinarily high. The CEOs are paying themselves huge salaries, cutting staff to the bone, distributing staffing among lesser qualified aggressively outsourced temps so they avoid providing a steady job and/ormbenefits and, of course, they look the other way regarding the care conditions. The same techniques are being applied to nursing. These are just some of the dynamics of the American “Death Care” system and it is beyond shameless.

  10. kafka says:

    If the banksters are seriously threatened with suits they’ll just go running to their whores in Congress and get immunity (think telcomm).

    • eCAHNomics says:

      That too.

      One of my fave stories about me is that one year I got a call from a USAToday reporter who occasionally called for sound bites on econ data. This time he called around the turn of the year for my New Year’s resolution. I thought for an instant & said: I resolve not to do any more thankless tasks. And if I don’t break my resolution by Jan 2, I’ll surely do it by Jan 4.

      Suing banksters is not only a thankless task, it is a completely losing game for real people who have to pay real bills.

  11. Knut says:

    I’m not so worried about foreclosure as I am that in 20 years when my niece and and her husband have paid off the mortgage on their McMansion, some other lender will claim they have the as yet unredeemed mortgage.

  12. wavpeac says:

    Well it’s been 3 years since my lawyer requested documentation of my payments. We have evidence of several respa violations. I wish I felt more optimistic. There have been at least 3 attempted class action lawsuits against GMAC (once Homecomings) have failed. All of them, I sent my documentation to. I even had the suspicion at one point that it might be possible that they set up lawyers to pose as if they were filing the class action suits…and then lost the cases on purposes. (like they did with the foreclosure specialists). I know, I sound paranoid…but I have been fighting this stuff for 7 years. The case against Homecomings out of MN looked so strong but when Homecomings went under…so too did the lawsuit.

    Lawyers work damn hard in these cases and it’s alot to ask for free! I will ask for my note…it will add to the evidence of them ignoring my requests. I have evidence of probably 4 different violations of RESPA AND TILA laws.

    It can’t hurt…of all the things I have had to do…this is the least time consuming!

    Thanks for keeping up with EW your continued coverage of this is appreciated.

    • thatvisionthing says:

      What I don’t get is why do you have to privately sue in a civil suit to make the law work? Why isn’t your district attorney or attorney general charging the fraudsters criminally? When you get enough people in a class action, it seems like it’s obvious there’s a chargeable case and a public interest to be served.

      • wavpeac says:

        I live in Nebraska…heavily dominated by republicans. Our A.G is republican, as is the Governor. And they have fought some predatory lenders…but they fought some of the smallest and worst, cheesy companies. Then bragged about the job they were doing, while ignoring GMAC/homecomings financial. They knew of Homecomings reputation and behaviors but told me outright that they could do nothing about the fees, nothing about my payment history. They did fine them for not working with me during my foreclosure…but it didn’t change a thing for me. They said it was only happening to me, no class action needed since I was one of only victims. Now this was back in 2004. But it’s the same A.G and company in charge now.

        • thatvisionthing says:

          A lot of news under the bridge since then. Maybe you should ask again?

          I guess I’m not ready to equate all Nebraska Republicans with fraud coddlers. But what do I know.

  13. parsnip says:

    thatvisionthing @ 18 & 19

    Speaking of official-looking mailings, read PA AG: Outfit Used Notices Hand-Delivered By Faux ‘Sheriff Deputies’, Fake ‘Courtroom’ & Mock ‘Hearings’ To Squeeze Debtors Out Of Cash, Car Titles, in which a debt collector rented a building and remodeled it to look like a courthouse, sent goons, dressed in faux sheriff costumes out to haul in their victims, and coerced/scared them into turning over their car titles, bank account numbers, etc.


    No, I’m not THE parsnip. I never frequented Ed’s board. I chose the name for no particular reason. I’m sure the other parsnip had to have been far more clever than I am.


    You had posted a comment you found at ZeroHedge about Catherine Austin Fitts. Did you ever follow up on what she wrote about mortgage fraud and HUD in the 1980’s? It sounds like that was the seed for what’s happening now. If you’re interested, read this.

    • thatvisionthing says:

      Whoa, a lot to read. I’m not good at that. But I heard Fitts on the radio the other night (futzy reception, long drive home, middle of the night, Coast to Coast). You have to be a member to be able to go back and hear the podcast. I didn’t hear the beginning, but there was something about the big it of it all is that America has been offshoring all its money for a long time, like it was a policy decision made a decade or so ago. I take that as a fragment of a clue, and I don’t know what it means. She seems to be outing massive/fraudulent influence of the CIA in our economy, and if that’s true, I’m wondering why she hasn’t been suicided yet. A lot of crap running through HUD.

      If you were the other Parsnip, well… they hound you and chase you and give awards in your name if they think they catch you, all for reasons I never understood, but it gave them great cheer.

  14. textynn says:

    People better sue and make groups. The Dems and the WH are not there for you, nor will they ever be, and of course, the Repubs made it all possible. Americans, we no longer live in a democracy and we have no leaders that look out for us, rather they look for ways to profit from us and extort all that we have.

  15. lawgrace says:

    The ULTIMATE COST that should not be paid for faulty foreclosure! (the elephants that hide in plain sight killed this little boy, destroyed this family, and remains unaccountable!!)
    *Miami Herald news story

    **Foreclosure frauds, Foxes, hidden Elephants in Plain Sight, Havoc