1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CORY ROBINSON, individually and on Case No.: 21-cv-00110-AJB-DEB behalf of others similarly situated, 12
Plaintiff, 13 ORDER GRANTING DEFENDANT’S v. MOTION TO DISMISS 14
BANK OF AMERICA, N.A., 15 (Doc. No. 12) Defendant. 16
17 18 Before the Court is Defendant Bank of America, N.A.’s (“Defendant” or “BANA”) 19 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 12-1.) 20 Concurrently with the motion to dismiss, Defendant filed a request for judicial notice of 21 five exhibits. (Doc. No. 12-2.) The motion has been fully briefed. (Doc. Nos. 15 & 16.) 22 Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter suitable for 23 determination on the papers and without oral argument. For the reasons set forth below, 24 the Court GRANTS Defendant’s motion to dismiss and GRANTS IN PART AND 25 DENIES IN PART Defendant’s request to take judicial notice. 26 /// 27 /// 28 /// 1 I. BACKGROUND 2 Defendant Bank of America, N.A., is a national bank headquartered in Charlotte, 3 North Carolina, and is the loan servicer for Plaintiff’s mortgage. (First Amended Complaint 4 (“FAC”), Doc. No. 11, ¶¶ 19, 21.) On July 20, 2020, Plaintiff, through counsel, sent 5 Defendant a Notice of Error and Request for Information pursuant to the Real Estate 6 Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e), and Regulation X, 12 C.F.R. 7 §§ 1024.35, 1024.36. (Id. ¶ 22.) The letter included Plaintiff’s name, his loan account 8 number, a request for information, and a reason for the request. (Id. ¶ 23.) In the letter, 9 Plaintiff disputed the amount of debt owed and asked for several documents associated 10 with his account, including “[a] copy of any and all recordings of [Plaintiff] or any other 11 person concerning [Plaintiff’s] account.” (Id.) In August 2020, Plaintiff’s counsel received 12 Defendant’s response to the request. (Id. ¶ 24.) However, Defendant’s response failed to 13 provide any of the requested information. (Id. ¶ 25.) Rather, Defendant stated: “[w]e’re 14 committed to protecting the confidentiality of our customer’s information and we require 15 written authorization from the customer before we disclose any information . . . . We’re 16 unable to respond to the request and consider this inquiry closed . . . . The customer’s 17 signature(s) must be a ‘live’ signature, not a digital signature.” (Id. ¶ 26.) 18 Plaintiff asserts he was not required to provide written authorization under RESPA 19 or Regulation X for his QWRs or RFIs. (Id. ¶ 27.) Plaintiff’s counsel, acting as Plaintiff’s 20 agent when he requested the information, is expressly permitted to do so under RESPA, 12 21 U.S.C. § 2605(e). (Id.) Still, on October 19, 2020, Plaintiff sent Defendant an Authorization 22 to Furnish & Release Information to Plaintiff’s counsel, as requested by Defendant in its 23 response, and attached a Notice of Error and Request for Information pursuant to 12 U.S.C. 24 § 2605(e) and Regulation X. (Id.) In early November of 2020, Plaintiff’s counsel received 25 Defendant’s response, again failing to provide any of the requested information, stating: 26
27 1 The following facts are taken from Plaintiff’s FAC, which the Court construes as true for the limited 28 purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). 1 “[t]he signature must be a ‘live’ signature, not a digital signature.” (Id. ¶¶ 29–31.) 2 On November 23, 2020, Plaintiff again sent Defendant an Authorization to Furnish 3 & Release Information to Plaintiff’s counsel, as requested by Defendant in its response, 4 and attached a second Notice of Error and Request for Information pursuant to 12 U.S.C. 5 § 2605(e) and Regulation X. (Id. ¶ 32.) Several weeks later, Plaintiff’s counsel received a 6 response from Defendant, again failing to provide any of the requested information and 7 using the same boilerplate language to deny the request, insisting the signature “be a ‘live’ 8 signature, not a digital signature.” (Id. ¶¶ 34–36.) Finally, on January 5, 2021, Plaintiff’s 9 counsel sent a meet and confer letter to Defendant explaining: “we have provided a valid, 10 signed authorization form on multiple occasions . . . . Pursuant to 12 CFR § 1024.36(d)(ii) 11 Bank of America is required to produce all information available through reasonable 12 business efforts . . . . Therefore, please produce the requested documentation along with all 13 audio recordings no later than January 15, 2021.” (Id. ¶¶ 37–38.) On or about January 20, 14 2021, Plaintiff’s counsel received a response from Defendant, again failing to provide the 15 requested information and reiterating that “[t]he signature must be a ‘live’ signature, not a 16 digital signature.” (Id. ¶¶ 39–42.) As of the time of filing this lawsuit, Plaintiff has not 17 received any other documents from Defendant. (Id. ¶ 42.) 18 According to Plaintiff, Defendant’s refusal to provide requested information to 19 borrowers or their agents who submit valid QWRs or RFIs is Defendant’s standard business 20 policy. (Id. ¶ 45.) Furthermore, Plaintiff believes Defendant has refused to produce 21 documents and recordings for “possibly hundreds if not thousands of customers that have 22 requested them.” (Id. ¶ 46.) Plaintiff alleges Defendant “systematically denied each of its 23 customer’s requests by, among other things, requiring that they provide additional 24 information not required under RESPA or Regulation X.” (Id. ¶ 47.) Plaintiff further 25 alleges Defendant’s “uniform responses, requiring a ‘live’ signature and failing to provide 26 any of the requested documents and recordings, shows a pattern and practice of 27 noncompliance with RESPA.” (Id. ¶ 49.) 28 On January 20, 2021, Plaintiff filed the instant action in this court. (Doc. No. 1.) In 1 March 2021, Plaintiff filed the FAC, alleging one claim for violations of RESPA, 12 U.S.C. 2 § 2601, et seq. (Id. ¶¶ 66–78.) By the present motion, Defendant moves to dismiss 3 Plaintiff’s FAC for failure to state a claim, pursuant to Federal Rule of Civil Procedure 4 12(b)(6). (Doc. No. 12-1 at 7–8.) 5 II. LEGAL STANDARD 6 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 7 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 8 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 9 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 10 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a 11 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 12 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 13 determination, a court reviews the contents of the complaint, accepting all factual 14 allegations as true and drawing all reasonable inferences in favor of the nonmoving party. 15 See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 16 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need not accept legal 17 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 18 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. 19 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 20 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 21 their veracity and then determine whether they plausibly give rise to an entitlement to 22 relief.” Iqbal, 556 U.S. at 664. “In sum, for a complaint to survive a motion to dismiss, the 23 non-conclusory factual content, and reasonable inferences from that content, must be 24 plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 25 572 F.3d 962, 969 (9th Cir. 2009) (quotations and citation omitted). 26 III. REQUESTS FOR JUDICIAL NOTICE 27 While the scope of review on a motion to dismiss for failure to state a claim is limited 28 to the complaint, a court may consider evidence on which the complaint necessarily relies 1 if “(1) the complaint refers to the document; (2) the document is central to the plaintiff[’s] 2 claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) 3 motion.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (internal 4 quotation marks and citations omitted). Furthermore, Federal Rule of Evidence 201 permits 5 judicial notice of a fact which is “not subject to reasonable dispute because it: (1) is 6 generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and 7 readily determined from sources whose accuracy cannot reasonably be questioned.” Welk 8 v. Beam Suntory Imp. Co., 124 F. Supp. 3d 1039, 1041–42 (S.D. Cal. 2015). 9 Additionally, courts may consider documents under the “incorporation by reference” 10 doctrine when a plaintiff “refers extensively to the document or the document forms the 11 basis of the plaintiff’s claim.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 12 (9th Cir. 2018) (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)) 13 (internal quotations omitted). Under the “incorporation by reference” doctrine, courts may 14 “take into account documents whose contents are alleged in a complaint and whose 15 authenticity no party questions, but which are not physically attached to the [plaintiff’s] 16 pleading.” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (internal 17 quotations omitted). A court “may treat such a document as part of the complaint, and thus 18 may assume that its contents are true for purposes of a motion to dismiss under Rule 19 12(b)(6).” Ritchie, 342 F.3d at 908. However, the court cannot consider any documents 20 incorporated by reference in a complaint if the authenticity of those documents is contested. 21 See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other 22 grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681–82 (9th 23 Cir. 2006). 24 In support of its motion to dismiss, Defendant requests the Court to take judicial 25 notice of the following documents: (1) Plaintiff’s July 20, 2020, October 19, 2020, and 26 November 23, 2020 letters, and Defendant’s responses; (2) Plaintiff’s “New Loan Payment 27 Form”; (3) BANA’s webpage that displays Defendant’s designated address for “Notices of 28 Error & Requests for Information”; and (4 & 5) two official records confirming the fact 1 that Bank of America Corporation (“BAC”) is a holding company. (Doc. No. 12-2 at 2–4.) 2 Defendant contends all documents are appropriate subjects for consideration under judicial 3 notice or the doctrine of incorporation by reference. Plaintiff objects to Defendant’s 4 requests, urging the Court not to consider Defendant’s exhibits in the motion to dismiss. 5 (Doc. No. 15 at 18–21.) The Court now turns to Plaintiff’s objections. 6 A. Plaintiff’s Letters and Defendant’s Responses 7 First, Plaintiff objects to Exhibit 1 to Defendant’s motion to dismiss, Plaintiff’s 8 letters and Defendant’s responses (the “letters”), arguing extrinsic evidence on a Rule 9 12(b)(6) motion to dismiss is generally excluded. (Doc. No. 15 at 18.) Plaintiff argues the 10 party seeking judicial notice must clearly explain what fact or facts it wants the court to 11 judicially notice, and that here, Defendant fails to specify the fact or facts to be noticed. 12 (Id. at 19.) Plaintiff further argues the letters between the parties are not matters of public 13 record. (Id.) Finally, Plaintiff argues the Court should not consider the letters under the 14 doctrine of incorporation by reference because they are not “written instruments” under 15 Fed. R. Civ. P. 10(c). (Id. at 21.) 16 The Court finds the letters are inappropriate for judicial notice, as they are not 17 generally known within the Court’s jurisdiction, nor can its accuracy readily be determined. 18 However, because the FAC specifically relies upon them and Plaintiff does not question 19 its authenticity, Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012), the Court 20 may incorporate the letters by reference. (See FAC ¶¶ 22–26.) Accordingly, the Court 21 GRANTS Defendant’s request under the doctrine of incorporation by reference. 22 B. Plaintiff’s New Loan Payment Form 23 Next, Plaintiff objects to Exhibit 2, Plaintiff’s “New Loan Payment Form,” on the 24 basis that it is not a written instrument. (Doc. No. 15 at 21.) Defendant asserts that 25 Plaintiff’s “New Loan Payment Form” is incorporated by reference “as the entire 26 Complaint arises from his inquiries regarding payment and the remaining debt on his 27 mortgage loan with BANA.” (Doc. No. 12-2 at 2.) The Court agrees with Plaintiff that 28 Exhibit 2 should not be considered by the Court because these extrinsic documents were 1 not incorporated by reference in the FAC and are not proper subjects for judicial notice. 2 Moreover, the Court need not rely on this exhibit in reaching its conclusion below. 3 Accordingly, the Court DENIES AS MOOT Defendants’ request for judicial notice of 4 Exhibit 2. 5 C. BANA’s Public Webpage 6 Plaintiff further objects to Defendant’s Exhibit 3, BANA’s webpage that displays its 7 designated address for “Notices of Error & Requests for Information,” on the basis that the 8 webpage is not a matter of public record because BANA is not a governmental entity. (Doc. 9 No. 15 at 20.) Plaintiff asserts business websites are improper documents for judicial notice 10 because they are “generally are not the sorts of sources whose accuracy cannot reasonably 11 be questioned . . . .” (Id. (internal quotations omitted).) Defendant seeks to use this 12 document to establish the specified address that a borrower would have to use to submit a 13 QWR. Information on websites, especially a party’s website, is often not considered an 14 appropriate subject of judicial notice. Gerritsen v. Warner Bros. Entm’t, 112 F. Supp. 3d 15 1011, 1030–31 (C.D. Cal. 2015) (citing cases and declining to take judicial notice of the 16 defendant’s website); Spy Optic v. Alibaba, 163 F. Supp. 3d 755, 763 (C.D. Cal. 17 2015) (finding “private corporate websites, particularly when describing their own 18 business, generally are not the sorts of sources whose accuracy cannot reasonably be 19 questioned” (internal citation and quotation marks omitted). Furthermore, the FAC does 20 not implicitly or explicitly reference the webpage that displays BANA’s designated address 21 for “Notices of Error & Requests for Information.” Therefore, the document was not 22 incorporated by reference in the FAC. Accordingly, to the Court DENIES Defendant’s 23 request for judicial notice of Exhibit 3. 24 D. Official Records 25 Lastly, Plaintiff objects to Exhibits 4 and 5, two official records: (1) from the Federal 26 Deposit Insurance Corporation’s website, and (2) from the Federal Reserve’s National 27 Information Center website, respectively. (Doc. No 12-2 at 35–50.) Specifically, Plaintiff 28 asserts the purported fact is irrelevant to Plaintiff’s RESPA claim and because “judicially 1 noticing that purported fact is not a straightforward process, as BANA asks the Court to 2 look at multiple websites to extrapolate information[.]” (Doc. No. 15 at 20.) The Court 3 agrees with Defendant that Exhibits 4 and 5 may be judicially noticed. This information, 4 from two different government websites, “can be accurately and readily determined from 5 sources whose accuracy cannot reasonably be questioned” and therefore “is not subject to 6 reasonable dispute.” Fed. R. Evid. 201(b); see Romero v. Securus Techs., Inc., 216 F. Supp. 7 3d 1078, 1084 n.1 (S.D. Cal. 2016) (holding websites run by governmental agencies are 8 reliable Internet sources, and thus proper for judicial notice). Accordingly, the Court 9 GRANTS Defendant’s request for judicial notice of Exhibits 4 and 5 to the motion to 10 dismiss. 11 IV. DISCUSSION 12 Plaintiff asserts Defendant violated RESPA by failing to respond to Plaintiff’s 13 QWRs sent on July 20, 2020, October 19, 2020, and November 23, 2020. (FAC ¶¶ 22, 27, 14 32.) Particularly, Plaintiff alleges violations of 12 C.F.R. § 1024.36 and 12 U.S.C. 15 § 2605(e) and (k). (Id. at ¶¶ 75–76.) Plaintiff alleges he “was not required to provide written 16 authorization under RESPA or Regulation X for his QWRs or RFIs” because “Plaintiff’s 17 counsel was acting as [his] agent when [he] requested the information,” and Defendant’s 18 “uniform responses, requiring a live signature and failing to provide any of the requested 19 documents and recordings, shows a pattern and practice of non-compliance with RESPA.” 20 (Id. at ¶¶ 27, 49.) Plaintiff also alleges Defendant refused to provide “requested audio 21 recordings or transcripts of telephone calls between [other similarly situated borrowers] 22 and BANA” and that Defendant’s failure to provide the requested information is sufficient 23 to demonstrate a “pattern or practice” under RESPA. (Id. at ¶ 78.) In its motion, Defendant 24 argues Plaintiff’s claim is deficient because it did not violate RESPA by requiring written 25 authorization or refusing to accept Plaintiff’s electronic signature. (Doc. No. 12-1 at 12.) 26 Further, Defendant argues that even if Plaintiff had submitted a live signature, none of 27 Plaintiff’s letters constituted a valid QWR under RESPA because Plaintiff failed to send 28 his QWRs to the address specified by BANA and, therefore, Defendant’s RESPA duties 1 were never triggered in the first place. (Id. at 15.) Finally, Defendant claims Plaintiff failed 2 to adequately allege actual or statutory damages as required under RESPA. (Id. at 16.) 3 A. Defendant’s Duty to Respond to Plaintiff’s QWR or RFI 4 Congress enacted RESPA in part to “insure that consumers throughout the Nation 5 are provided with greater and more timely information on the nature and costs of the 6 settlement process and are protected from unnecessarily high settlement charges by certain 7 abusive practices.” 12 U.S.C. § 2601(a). RESPA creates a private right of action for three 8 types of wrongful acts: “(1) payment of a kickback and unearned fees for real estate 9 settlement services, 12 U.S.C. § 2607(a), (b); (2) requiring a buyer to use a title insurer 10 selected by the seller, 12 U.S.C. § 2608(b); and (3) the failure by a loan servicer to give 11 proper notice of a transfer of servicing rights or to respond to a qualified written request 12 for information about a loan, 12 U.S.C. § 2605(f).” Choudhuri v. Wells Fargo Bank, N.A., 13 No. C 11-00518 SBA, 2011 WL 5079480, at *8 (N.D. Cal. Oct. 25, 2011) (citing Patague 14 v. Wells Fargo Bank, N.A., No. C 10-03460 SBA, 2010 WL 4695480, at *3 (N.D. Cal. 15 Nov. 8, 2010)). 16 Any claim arising from BANA’s alleged failure to respond to a QWR would be of 17 the third variety. Accordingly, whether Plaintiff’s complaint states a claim turns on the 18 Court’s ability to assess whether the July 20th, October 19th, or November 23rd 19 communications qualify as valid QWRs. Section 2605 defines a QWR as 20 a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that— 21 (i) includes, or otherwise enables the servicer to identify, the name and 22 account of the borrower; and (ii) includes a statement of the reasons for the belief of the borrower, to the 23 extent applicable, that the account is in error or provides sufficient detail to 24 the servicer regarding other information sought by the borrower.
25 12 U.S.C. § 2605(e)(1)(B). 26 The Ninth Circuit has held that “[a]ny reasonably stated written request for account 27 information can be a qualified written request.” Medrano v. Flagstar Bank, FSB, 704 F.3d 28 1 Cir. 2011)). Though a borrower should provide reasons for their belief that the account is 2 in error, “any request for information made with sufficient detail is enough under RESPA 3 to be a qualified written request and thus trigger the servicer’s obligation to respond.” Id. 4 Section 2605(e) requires loan servicers to respond to borrowers’ qualified written 5 requests no later than thirty days after receiving the QWR. 12 U.S.C. § 2605(e)(2). 6 However, not all borrower inquiries require responses. The Ninth Circuit has held that a 7 qualified written request triggering the Section 2605(e) duty to respond must 8 “(1) reasonably identif[y] the borrower’s name and account, (2) either state[] the 9 borrower’s ‘reasons for the belief . . . that the account is in error’ or ‘provide[] sufficient 10 detail to the servicer regarding other information sought by the borrower,’ and (3) seek[] 11 ‘information relating to the servicing of [the] loan.’” Medrano, 704 F.3d at 666. 12 “Servicing” of the loan pertains to “scheduled periodic payments from a borrower pursuant 13 to the terms of any loan, including amounts for escrow accounts . . . , and making payments 14 of principal and interest and such other payments.” Id. (quoting § 2605(i)(3)). Moreover, 15 the Medrano court explained that servicing “does not include the transactions and 16 circumstances surrounding a loan’s origination—facts that would be relevant to a challenge 17 to the validity of an underlying debt or terms of a loan agreement.” Id. at 666–67. 18 Furthermore, RESPA provides that a “loan servicer” must respond to a borrower’s “[QWR] 19 . . . for information relating to the servicing of [his] loan.” 12 U.S.C. § 2605(e)(1)(A). 20 Although the Ninth Circuit has not ruled on the issue, the Second and Tenth Circuits 21 have each held that a servicer’s obligation to respond to a QWR is not triggered unless the 22 QWR is sent to the address the servicer has designated for receipt and handling of QWRs. 23 See Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1149 (10th Cir. 2013) (“Failure to send 24 the QWR to the designated address . . . does not trigger the servicer’s duties under 25 RESPA.”); Roth v. CitiMortgage Inc., 756 F.3d 178, 182 (2d Cir. 2014) (“[A] letter sent to 26 a different address is not a QWR, even if an employee at that address (who may not have 27 training in RESPA compliance) in fact responds to that letter.”); see also Lowey v. CMG 28 Mortg., Inc. 385 F. Supp. 3d 1083, 1086 (S.D. Cal. 2019) (same). 1 Ignoring an exclusive QWR address carries harsh consequences. Wease v. Ocwen 2 Loan Serv., L.L.C., 915 F.3d 987, 995–96 (5th Cir. 2019). Courts have consistently 3 concluded a loan servicer need not answer a misaddressed QWR—and that responding to 4 such a letter does not trigger RESPA duties—if the servicer set an exclusive address. See, 5 e.g., id. at 996 (“[B]ecause [the borrower] neglected to send his letters to [the servicer]’s 6 exclusive QWR address,” the servicer did not have a duty to respond); Bivens v. Bank of 7 Am., N.A., 868 F.3d 915, 921 (11th Cir. 2017) (same). 8 Turning to the Plaintiff’s letters in this case, it is clear they constitute challenges to 9 the amount of debt owed and request information about how payments were applied. The 10 first letter states the Plaintiff’s name, his loan account number, a request for information, 11 and a reason for the request. (FAC ¶ 23.) Plaintiff’s next three letters, which include an 12 Authorization to Furnish & Release Information to Plaintiff’s counsel and a Request for 13 Information, also constitute requests for release of information related to Plaintiff’s loan 14 account. (Doc. No. 12-2 at 12, 13, 20.) Although some of the categories of Plaintiff’s 15 requests to Defendant relate to loan origination, rather than servicing, Plaintiff also 16 requested specific information about how payments were applied (audit history, payoff 17 statement), and charges to the account (itemized statement of advances and charges, 18 assessed fees and costs). Thus, these fall squarely within the category of “information 19 relating to loan servicing” and provided sufficient detail as to what information Plaintiff 20 was seeking. (Id. at 6–8.) However, Plaintiff addressed his letters to BAC, Defendant’s 21 parent and bank holding company, rather than to the address specified by Defendant for 22 handling QWRs. (Id. at 6, 12, 20.) 23 Accordingly, this claim fails for two reasons. First, Plaintiff did not send his QWRs 24 and RFIs to the address specified by his loan servicer. Second, Plaintiff sent his requests to 25 BAC (BANA’s parent and bank holding company). Because BANA specified a designated 26 address for receipt and handling of QWRs, and Plaintiff did not send his letters to the 27 specified address, Defendant was not required by RESPA to respond to Plaintiff’s QWRs. 28 /// 1 B. The E-SIGN Act 2 Plaintiff alleges Defendant further violated RESPA by failing to accept electronic 3 signatures for his QWRs or RFIs because written authorization is not required under 4 RESPA or Regulation X. (FAC ¶ 27.) While the E-SIGN Act mandates that no signature 5 be denied legal effect simply because it is in electronic form, the Act does not require any 6 person to agree to use or accept electronic records or electronic signatures. 15 U.S.C. 7 §§ 7001(a)(1), (b)(2). The E-SIGN Act defines “electronic signature” as an electronic 8 sound, symbol, or process attached to or logically associated with a contract or other record 9 and executed or adopted by a person with the intent to sign the record. Id. § 7006(5). The 10 Act provides it does not “limit, alter, or otherwise affect any requirement imposed by a 11 statute, regulation, or rule of law . . . other than a requirement that contracts or other records 12 be written, signed, or in nonelectric form . . . .” Id. § 7001(b). 13 Defendant cites to 15 U.S.C. § 6801–02 to argue that “mortgage servicers maintain 14 their customer’s sensitive financial information and have statutory obligations to keep that 15 information confidential under state and federal law, including the Gramm–Leach–Bliley 16 Act.” (Doc. No. 12-1 at 13.) Defendant states “valid written authorizations to release that 17 information are of course an important component in safeguarding that information.” (Id.) 18 However, 15 U.S.C. § 6801 “does not apply to the disclosure of nonpublic personal 19 information ‘to comply with Federal, State, or local laws . . . ,’ such as RESPA.” Mashiri 20 v. Ocwen Loan Serv., LLC, No. 3:12-cv-02838-L-MDD, 2013 U.S. Dist. LEXIS 154534, 21 at *1, *19 (S.D. Cal. Oct. 28, 2013) (internal citation omitted). Thus, the Court finds 22 Defendant’s argument unavailing. However, because Plaintiff failed to send his letters to 23 Defendant’s specified designated address, as discussed above, Plaintiff’s claim necessarily 24 fails. 25 C. Damages 26 Defendant next argues Plaintiff “does not adequately allege that he suffered damages 27 as a result of Defendant’s refusal to provide the requested information, as required under 28 RESPA.” (Doc. No. 12-1 at 16.) In his FAC, Plaintiff requests “actual damages that 1 include, but are not limited to, postage expenses and attorney’s fees” to satisfy the damages 2 allegation for his RESPA claim. (FAC ¶ 8.) 3 Damages are a necessary element of a RESPA claim. See Esoimeme v. Wells Fargo 4 Bank, No. CIV S-10-2259 JAM EFB PS, 2011 WL 3875881, at *14 (E.D. Cal. Sept. 1, 5 2011) (dismissing claim where the plaintiff failed to “allege any pecuniary loss from 6 defendant’s alleged failure to respond to the QWR”); Soriano v. Countrywide Home Loans, 7 Inc., No. 09-CV-02415-LHK, 2011 WL 1362077, at *6 (N.D. Cal. Apr. 11, 2011) 8 (reasoning that “even if a RESPA violation exists, Plaintiff must show that the losses 9 alleged are causally related to the RESPA violation itself to state a valid claim under 10 RESPA”). While courts interpret this requirement liberally, “a number of courts have read 11 the statute as requiring a showing of pecuniary damages in order to state a claim.” Allen v. 12 United Fin. Mortg. Corp., 660 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009) (citing cases). A 13 plaintiff’s failure to allege a pecuniary loss attributable to a servicer’s failure to respond to 14 QWRs has therefore been found to be fatal to the claim. See Ghuman v. Wells Fargo Bank, 15 N.A., 989 F. Supp. 2d 994, 1007 (E.D. Cal. 2013). 16 First, Plaintiff contends he suffered actual damages because Defendant’s alleged 17 failure to respond to the QWRs has forced him to incur postage expenses and attorneys’ 18 fees in his pursuit of a response to the alleged QWRs. (FAC ¶¶ 49, 54.) However, this 19 argument fails as a matter of law. Courts have not typically considered attorneys’ fees to 20 be “actual damages” in this context. See Lal v. Am. Home Serv., Inc., 680 F. Supp. 2d 1218, 21 1223 (E.D. Cal. 2010) (finding the costs of filing suit were not actual damages for purposes 22 of RESPA because “the loss alleged must be related to the RESPA violation itself”); Luciw 23 v. Bank of Am., N.A., No. 5:10-CV-02779-JF/HRL, 2010 WL 3958715, at *3 (N.D. Cal. 24 Oct. 7, 2010) (citing cases). Furthermore, Plaintiff’s claim that he incurred postage 25 expenses as a result of Defendant’s failure to respond to his QWRs is insufficient to 26 establish actual damages under RESPA. See Givant v. Vitek Real Estate Ind. Group, Inc., 27 No. 2:11-cv-03158-MCE-JFM, 2012 WL 5838934, at *4–5 (E.D. Cal. Nov. 15, 2012) 28 (finding conclusory allegations that the defendant’s failure to respond to a QWR resulted 1 in postage expenses is insufficient to establish actual damages under RESPA); Soriano, 2 2011 WL 2175603, at *4 (“Plaintiff cannot claim the costs associated with the follow-up 3 letters as actual damages resulting from the alleged RESPA violation.”) Consistent with 4 this understanding, RESPA separately includes attorneys’ fees as a recoverable cost. See 5 12 U.S.C. § 2605(f)(3). As such, in the RESPA context, a request for postage expenses and 6 attorneys’ fees for the lawsuit raising the RESPA claim does not suffice to state damages. 7 Next, Plaintiff alleges Defendant engaged in a “pattern or practice of 8 noncompliance” with RESPA. Plaintiffs may also recover statutory damages under RESPA 9 if they plead some pattern or practice of noncompliance with the statute. Id. 10 § 2605(f)(1)(B). Specifically, RESPA requires the servicer of a federally related mortgage 11 loan to provide a timely written response to inquiries from borrowers regarding the 12 servicing of their loans. Id. § 2605(e)(1)(A), (e)(2); Medrano, 704 F.3d at 665. If the 13 servicer fails to respond properly to such a request, the statute provides the borrower shall 14 be entitled to “any actual damages to the borrower as a result of the failure; and any 15 additional damages, as the court may allow, in the case of a pattern or practice of 16 noncompliance with the requirements of this section, in an amount not to exceed $2,000.” 17 12 U.S.C. § 2605(f). In the case of a class action, the servicer shall be liable to the borrower 18 for any “actual damages to [each of the borrowers in the class] as a result of the failure; 19 and any additional damages, as the court may allow, in the case of a pattern or practice of 20 noncompliance with the requirements of” the statute. Id. 21 Defendant argues Plaintiff fails to plead “a pattern or practice of noncompliance 22 with the requirements of [12 U.S.C. § 2605(f)] . . . for himself or other members of the 23 purported class.” (Doc. No. 12-1 at 18.) Defendant argues Plaintiff “provides no facts to 24 support that any putative class member even sent in a legitimate QWR, let alone that any 25 were denied, or denied on the same basis as Plaintiff’s requests.” (Id. at 19.) Rather, 26 Plaintiff “claims that any customer who sent a QWR (valid or invalid) and had it denied 27 for any reason (valid or invalid) is entitled to damages.” (Id.) The Court finds Defendant’s 28 argument persuasive. The FAC states Defendant has engaged in a pattern or practice of 1 || violating RESPA but provides no factual support for this claim. Plaintiff states he “‘is 2 ||informed and believes that other similarly situated borrowers have requested audio 3 ||recordings or transcripts of telephone calls between themselves and BANA only to be 4 || likewise denied access to that information by BANA.” (FAC 4 78.) This is insufficient to 5 || plead damages. See Lal, 680 F. Supp. 2d at 1223 (dismissing conclusory pattern or practice 6 ||claim because it was “a legal conclusion couched as a factual allegation’). A plaintiff 7 ||cannot rely simply on stock legal conclusions, but must allege facts that are sufficient to 8 || “raise a right to relief above the speculative level.” See id.; Twombly, 550 U.S. at 555. 9 Finding no facts in the FAC supporting that Plaintiff incurred damages flowing from 10 ||Defendant’s alleged failure to respond to Plaintiff's QWRs, the Court GRANTS 11 || Defendant’s motion to dismiss with leave to amend. 12 CONCLUSION 13 In sum, because the Court finds Plaintiff's claims deficient in several aspects, as 14 || mentioned above, the Court GRANTS Defendant’s motion to dismiss Plaintiff's FAC for 15 || failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), with leave to 16 |}amend. Should Plaintiff choose to do so, where leave is granted, he must file an amended 17 ||complaint curing the deficiencies noted herein by April 4, 2022. 18 19 IT IS SO ORDERED. 20 Dated: March 21, 2022 Dg Necoeag 2 Hon. Anthony J.@Battaglia United States District Judge 23 24 25 26 27 28