Consumer complaint received 2018-06-25
Company: SELECT PORTFOLIO SERVICING, INC.
State: VA
Product: Mortgage
Sub-product: Conventional home mortgage
Issue: Struggling to pay mortgage

Complaint:
This is a follow up to my 1st complaint concerning a QWR and Notice of Error that was not completely answered. I submitted another Notice of Error that has not been acknowledged and the foreclosure is continuing despite the fact I am still in dispute with SPS. This is the Notice of Error and current violations sent to SPS to correct : I am in receipt of SPS letter dated XX/XX/XXXX that attempts to respond to my QWR/NOE letter dated XX/XX/XXXX. I will list each of the errors and why SPS response is deficient. I questioned the 3rd party fees and costs assessed to my account and requested proof of the invoices as well as proof that the work was actually performed. Specifically, 12 C.F.R. 1024.35 ( b ) ( 5 ) requires that the servicer may only charge bona fide fees ; fees that the servicer determined it had a reasonable basis to impose. A servicer may not charge a for service that a service provider did not actually provide. Therefore, in order to prove that all fees and costs assessed to my account are legitimate, I demanded a copy of all invoices evidencing all fees and the work completed for all fees charged. What SPS provided was a listing of the fees, some of the fees were still not itemized. SPS failed to provide the requested invoices therefore SPS response is deficient. I also stated that SPS had failed to respond to my appeal of the denial to my application for loan modification and, as such, was dual tracking me by scheduling a sale of my home while loss mitigation was still pending. SPS appears to attempt to respond to my appeal in its XX/XX/XXXX, letter and, again, SPS fails. SPS claims your request did not provide any detail in regards to any specific error identified in the decision. I shall now restate all of the errors contained in SPS denial and hopefully someone with knowledge of the federal regulations will read this with comprehension as to SPS failure to comply with the Code of Federal Regulations. Pursuant to 12 C.F.R 1024.41 ( d ) if the servicer denies the homeowner a loan modification, the servicer must state the specific reason each modification option was denied. Supplement I to 12 C.F.R. Part 1024, Official Bureau Interpretations, provides the degree of specificity required of the servicer in denying a borrower for a loan modification. For example, if the denial is based on investor requirements, the servicer must identify the owner or assignee of the loan and the requirement that is the basis of the denial. Additionally, if a loan modification is denied because of a net present value calculation, the servicer must provide the borrower with the inputs used in the calculation. In its letter, SPS declined me for a modification claiming that we are unable to offer you this program [ Proprietary Trial Modification ] because in performing our underwriting of a potential modification we could not reduce your principal and interest payment. While SPS did provide a limited NPV report, it did not include the debt to income requirements ( DTI ), the term requirements, allowability to reduce the interest rate or the ability to offer a principal reduction. Without this information I can not effectively assert a proper appeal as I dont know that parameters with which SPS utilized in its determination that it could not reduce my principal and interest payment. Does that mean the investor prohibits a reduction of principal and/or interest rate or that the interest rate and principal amount could not be reduced to achieve the required, yet unnamed, DTI? SPS also failed to name the purported investor of my loan as required by 12 C.F.R. 1024.41 ( g ) ( 1 ). A denial for a loan modification ostensibly based on an investor restriction that does not name the investor or explain the restriction has been held to be insufficient. XXXX v. XXXX XXXX, XXXX. Civ. No XXXX, XXXX XXXX XXXX, at XXXX ( XXXX XXXX. XX/XX/XXXX ). Using the criteria from RESPA, Regulation X, and the CFPB, SPS had to do three things to properly deny my loan application. First, it had to identify the owner or assignee of the loan, which it did not do. Second, it had to identify the specific requirement that I did not meet which SPS also failed to do. Third, it had to provide information and detail supporting its claim that we are unable to offer you this program because in performing our underwriting of a potential modification we could not reduce your principal and interest payment. SPS had  to provide any underwriting guidelines or requirements or restrictions as well as the specifics utilized in calculating eligibility such as interest rate, term and DTI. XXXX v. XXXX XXXX, XXXX, XXXX XXXX, XXXX XXXX XXXX, at XXXX ( XXXX XXXX. XX/XX/XXXX ) ( denying defendants motion to dismiss RESPA Claim because the specific applicable requirement that was not met, the Court concludes that XXXX has adequately alleged that the Denial Letter 's explanation for denying his HAMP loan modification may lack the specificity required by 12 C.F.R. 1024.41 ( d ). ) In reviewing the documents that SPS included in its XX/XX/XXXX, letter I note that SPS has also violated 12 CFR 1024.38 ( v )  which requires that documents submitted in a foreclosure process reflect accurate information and comply with applicable law. SPS provided a copy of the Note that contains no endorsements which means under the UCC only the originator, XXXX XXXX XXXX XXXX XXXX XXXX, has the authority to enforce the Note via a foreclosure action. SPS also included an Assignment dated XX/XX/XXXX, which is clearly fraudulent as it purports to assign my mortgage loan to the trust well over 7 years after the cut off date as prescribed in the pooling and servicing agreement ( PSA ). Additionally, the PSA requires that the seller transfer/sell the loan to the sponsor who in turn sells/transfers the loan to Depositor who in turn sells/transfers the loan to the Trust. The originator does not transfer/sell the loan directly to the Trust pursuant to the PSA. The subject loan was required to be transferred to the subject pool no later than the cut-off date in order to maintain its status as a qualified mortgage as a REMIC1. See REMIC Regulations, Code Section 860 G ( a ) ( 3 ) and 851 ( b ) ( 3 ) ( A ) ( i ). These errors on SPS part must be addressed and reconciled immediately, specifically, pursuant to Regulation X, 12 C.F.R. 1024.35 ( d ) and ( e ), SPS has 5 days within which to acknowledge receipt of this request and must respond no later than 7 days. Until these errors are properly addressed and corrected by SPS, there can be no sale scheduled on our property ; the currently scheduled sale for XX/XX/XXXX, must be canceled if the errors are not corrected. See Reg. X, 12 C.F.R. 1024.35 ( e ) ( 3 ) ( i ) ( B ) and 1024.35 ( f ) ( 2 ) ; Official Bureau Interpretation, Supplement 1 to Part 1024, 35 ( e ) ( 3 ) ( i ) ( B ) -1.  Therefore, we are requesting that you cancel the sale so that our appeal and previously issued Notice of Error have been addressed. Be advised that RESPA and Regulation X provide a private right of action if a servicer fails to comply with the statute or regulation. 12 U.S.C. 2605 ( f ) ; 12 C.F.R. 1024.41 ( a ). I am a borrower entitled to the protections codified at 12 U.S.C.A. 2605 and 12 C.F.R. 1024.41. The mortgage loan subject to this action is a federally related mortgage as defined in 12 C.F.R.1024.2 and involves a consumer transaction at the time the loan was taken out by the Plaintiff. SPS is a mortgage servicer subject to the mandatory requirements of 12 U.S.C.A. 2605 and 12 C.F.R. 1024.41. SPS violated the RESPA and Regulation X in the following ways : Denied my application without identifying the owner or assignee of the loan and providing the specific reason for such a denial and additional detail to support such statements within 30 days of receipt of the application. 12 C.F.R. 1024.41 ( c ) ( 1 ) & ( d ) ; see 12 C.F.R. Pt. 1024, Supp. I, 41 ( d ), cmt. 1 ; see Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act ( Regulation X ), 78 FR 10696-01 ; Did not properly review the appeal within 30 days and did not provide particular reasons for the denial in writing. 12 C.F.R. 1024.41 ( h ) ; Engaged in " dual-tracking '' by scheduling my home for sale. 12 C.F.R. 1024.41 ( g ). SPS regularly collects or attempts to collect consumer debts due or asserted to be due to another. Specifically, it is regularly assigned the collection rights of consumer debts, including my consumer debt and therefore is a Debt Collector within the meaning of 15 U.S.C. 1692a ( 6 ). By scheduling the foreclosure sale of my home when that sale can not be held in violation of ( i ) 12 U.S.C.A. 2605 and 12 C.F.R. 1024.41 SPS and XXXX XXXX XXXX have materially violated 15 U.S.C. 1692e. SPS and XXXX XXXX XXXX actions described herein also constitute materially unfair or deceptive practices in violation of 15 U.S.C. 1692f. This conclusion is based upon the fact that no reasonable person would believe it would be fair to proceed and advertise foreclosure sales before them may even lawfully occur under state or federal law. As a result of both SPS and XXXX XXXX XXXX improper debt collection practices, which directly and indirectly violate my rights under 12 U.S.C.A. 2605 and 12 C.F.R. 1024.41, I have suffered actual economic and non-economic damages, and suffered severe emotional distress. The FDCPA provides for statutory damages in addition to actual damages. If SPS and XXXX XXXX XXXX fail to cancel the upcoming sale date of my home, I am prepared to move forward to file a complaint in federal court against both SPS and XXXX XXXX XXXX to exercise all of my rights provided under the law. In conclusion, I trust SPS will comply to the CFPB and RESPA and FDCPA requirements as Ive requested herein and cancel the XX/XX/XXXX sale of my home.

Company public response: Company believes it acted appropriately as authorized by contract or law
Company response to consumer: Closed with explanation