Ditto v. JPMorgan Chase Bank, N.A.

234 F. Supp. 3d 1217, 2017 WL 213969, 2017 U.S. Dist. LEXIS 8463
CourtDistrict Court, S.D. Florida
DecidedJanuary 17, 2017
DocketCASE NO. 16-81017-CIV-ZLOCH
StatusPublished
Cited by2 cases

This text of 234 F. Supp. 3d 1217 (Ditto v. JPMorgan Chase Bank, N.A.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ditto v. JPMorgan Chase Bank, N.A., 234 F. Supp. 3d 1217, 2017 WL 213969, 2017 U.S. Dist. LEXIS 8463 (S.D. Fla. 2017).

Opinion

ORDER

WILLIAM J. ZLOCH, United States District Judge ’

THIS MATTER is before the Court upon Defendant JPMorgan Chase Bank, N.A.’s Motion To Dismiss Plaintiffs Com[1218]*1218plaint (DE 13). The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.

The single, dispositive question of law before the Court concerns a mortgage ser-vicer’s obligations under the Real Estate Settlement Procedures Act (“RESPA”) and its implementing regulations. According to the Complaint (DE 1-1), Defendant is a mortgage servicer that services the loan obligation secured by a mortgage on Plaintiffs property. On April 1, 2016, Plaintiff mailed Defendant a written request for information (“RFI”) regarding Plaintiffs mortgage. Plaintiff asserts two claims pursuant to RESPA premised upon Defendant’s response to Plaintiffs RFI. Count I alleges that Defendant failed adequately to respond to the RFI, resulting in actual damage to Plaintiff, and Count II alleges that Defendant maintains a pattern or practice of violating RE SPA. Defendant now moves to dismiss both Counts for failure to state a claim, arguing that it had no legal obligation to respond to Plaintiffs RFI.

Under Fed. R. Civ. P. 8(a), a pleading “must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The Supreme Court has explained that Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Therefore, in order to defeat a motion to dismiss, a complaint must allege facts which render its legal claims facially plausible. Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Facial plausibility is achieved when the district court can reasonably infer from the facts that the defendant is liable for the alleged wrongdoing. Iqbal, 129 S.Ct. at 1949.

The provision of RESPA pertinent to this case governs “servicing of mortgage loan and administration of escrow accounts.” 12 U.S.C. § 2605(k)(l)(E). Section 2605 further provides that “A servicer of a federally regulated mortgage shall not ... fail to comply with any other obligation found by the Bureau of Consumer Financial Protection, by regulation, to be appropriate to carry out the consumer protection purposes of this chapter.” 12 U.S.C. 2605(k)(1)(E). One such obligation, Regulation X, requires that a “servicer must comply with the requirements of paragraph (d)(1)” no later “than 30 days (excluding legal public holidays, Saturdays, and Sundays) after the servicer receives the information request.” 12 C.F.R. § 1024.36(d)(2)(i)(B). In turn, paragraph (d)(1) requires servicers to respond to an RFI by:

(i) Providing the borrower with the requested information and contact information, including a telephone number, for further assistance in writing; or
(ii) Conducting a reasonable search for the requested information and providing the borrower with a written notification that states that the servicer has determined that the requested information is not available to the servicer, provides the basis for the servicer’s determination, and provides contact information, including a telephone number, for further assistance.

12 C.F.R. § 1024.36(d)(1). Persons aggrieved by a violation of § 2605 of RESPA may recover “(A) any actual damages to the borrower as a result of the failure; and (B) any additional [statutory] damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an [1219]*1219amount not to exceed $1,000.00.” 12 U.S.C. § 2605(f)(1).

To state a claim under RESPA for insufficient response to an RFI, a party must sufficiently allege: “(1) Defendant is a loan servicer; (2) Defendant received a QWR [qualified written request) from Plaintiff; (3) the QWR relates to servicing of [a] mortgage loan; (4) Defendant failed to respond adequately; and (5) Plaintiff is entitled to actual or statutory damages.” Porciello v. Bank of Am., N.A., No. 14-1511-CIV, 2015 WL 899942, at *3 (M.D. Fla. Mar. 3, 2015) (emphasis added); see also Wesner v. Ocwen Loan Serv., LLC, No. 16-81476-CIV (S.D. Fla. Nov. 14, 2016); Hudgins v. Seterus, Inc. 16-80338-CIV, 192 F.Supp.3d 1343, 2016 WL 3636859 (S.D. Fla. Jun. 28, 2016); Miranda v. Ocwen Loan Serv., LLC, 148 F.Supp.3d 1349, 1354 (S.D. Fla. 2015). Section 1024.36 states that a “qualified written request [QWR] that requests information relating to the servicing of the mortgage loan is a request for information [RFI] for purposes of this section. ...” 12 C.F.R. § 1024.36(a). The Parties’ dispute turns on whether Plaintiffs RFI relates to the servicing of a mortgage loan.

Plaintiffs RFI sought fifteen categories of information.1 As has become clear from his Response In Opposition To The Motion To Dismiss (DE 16), Plaintiffs claims take issue only with Defendant’s response to four categories identified in Plaintiffs RFI:

1.All correspondence from your Company, any subsidiaries or prior servicers for this Loan following any loss mitigation applications/submissions related to this Loan which were sent to the borrower from January 10, 2014 to present.
2. All correspondence from your Company, any subsidiaries or prior servicers for this Loan related to borrowers’ rights to appeal denials of loan modification which were sent to the borrower from January 10, 2014 to present.
3. Please provide a letter log or communications log that would show the dates you responded’to correspondences regarding the loss mitigation application/submission.
4. What was the date the loss mitigation application/submission was deemed complete?

DE 1-1, at 12. The Parties agree that these requests are for information pertaining to loan modification. For purposes of the instant Motion (DE 13), Defendant concedes that it did not provide information responsive to these requests, but contends that requests for information relating to loan modification do not relate to the servicing of a mortgage loan, and hence that no response was required by law.

RESPA defines “servicing” to mean:

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Bluebook (online)
234 F. Supp. 3d 1217, 2017 WL 213969, 2017 U.S. Dist. LEXIS 8463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ditto-v-jpmorgan-chase-bank-na-flsd-2017.