Monday, March 13, 2017

FYI: 11th Cir Holds RESPA Claim for QWR/RFI Violation Failed Under Spokeo

In an unreported ruling, the Eleventh Circuit Court of Appeals recently affirmed the dismissal of a borrower's federal Real Estate Settlement Procedures Act (RESPA) claim that the mortgage servicer failed to confirm receipt of the plaintiff's request for information because the servicer's signed certified mail receipt qualified as confirmation of receipt under the statute.


Importantly, the Eleventh Circuit also held that plaintiff's RESPA claim for statutory damages failed to allege an injury in fact under Spokeo.


A copy of the opinion is available at: Link to Opinion


A borrower's attorney sent the borrower's mortgage servicer a request for information under RESPA by certified mail.  The mortgage servicer received it and signed the certified mail return receipt on the same day.  The borrower's attorneys received the signed return receipt.  Nine days later, the mortgage servicer sent the borrower a substantive response to his request.


Months later the borrower sued the mortgage servicer claiming that it had violated 12 C.F.R.  §1024.36(c) by failing to correctly or timely acknowledge receipt of his request for information. The borrower asked for less than $100 in actual damages, statutory damages, and attorney's fees and costs.


The trial court granted the mortgage servicer's motion to dismiss with prejudice. On appeal, the Eleventh Circuit affirmed the district court's ruling.


As you may recall, Regulation X provides that a servicer who receives an information request from a borrower must within five days provide the borrower with a written response acknowledging receipt of the information request. See 12 C.F.R. §1024.36(c).


The Eleventh Circuit agreed with the trial court's reasoning that the mortgage servicer's signature on the certified return receipt that was returned the borrower's attorneys fulfilled the requirements of §1024.36(c).


The return receipt was signed by the mortgage servicer's agent, it was signed the same day it was received and thus was timely under the five day requirement, it was returned to the borrower's attorneys such that the borrower received the notice, and it informed the borrower that the mortgage servicer had received the request such that it satisfied the substance of the mortgage servicer's statutory obligations.


The Eleventh Circuit also affirmed the lower court's holding that, under Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1548-49, 1550 (2016), the borrower did not have Article III standing to assert a claim for statutory damages because he had not suffered a concrete injury in fact. 


As you may recall, the Supreme Court held in Spokeo that an injury in fact is required for all federal lawsuits, and the injury in fact must be more than a procedural violation to meet Article III standing requirements.  The Eleventh Circuit affirmed the district court's holding that under the circumstances, at most, the borrower had suffered no more than a "bare procedural violation" and not a real concrete injury as a result of the mortgage servicer's supposed RESPA violation.


Accordingly, the Eleventh Circuit affirmed the trial court's judgment dismissing the borrower's complaint.




Ralph T. Wutscher
Maurice Wutscher LLP
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Chicago, Illinois 60602
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