Press "Enter" to skip to content

Posts published in “RESPA”

7th Cir. Holds Attorney’s Fees and Emotional Distress Not ‘Actual Damages’ for RESPA QWR Claim

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) and Wis. Stat. § 224.77 because the borrower could not prove that the servicer’s alleged failure to completely respond to a “qualified written request” (QWR) caused any actual damages, notwithstanding the alleged attorney’s fees incurred in reviewing the servicer’s response and the borrower’s alleged emotional distress. In so ruling, the Seventh Circuit held that “RESPA was not intended to give people who cannot pay their mortgages the means to engage in…

7th Cir. Holds RESPA’s QWR Provisions Require Actual Damages Caused by the Violation

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) because the borrower could not prove that the servicer’s failure to respond to a “Qualified Written Request” (QWR) caused her actual damages, as required by 12 U.S.C. § 2605(f)(1)(A). A copy of the opinion in Linderman v. US Bank National Association is available at:  Link to Opinion. In 2004 a borrower bought a home with the help of a mortgage loan.  The borrower lived in the home with her ex-husband, their…

8th Cir. Rules No RESPA Penalty Without Actual Damages or Similar Acts With Other Borrowers

The U.S. Court of Appeals for the Eighth Circuit held that, under the federal Real Estate Settlement Procedures Act, because the borrower did not prove actual damages he also could not prove he was entitled to ‘additional’ statutory damages, and therefore failed to prove an essential element of his RESPA claim. In so ruling, the Eighth Circuit also held that “[a] borrower cannot manufacture a pattern or practice by sending multiple requests in quick succession involving the same subject matter,” and “that two instances of noncompliance are not enough.” Accordingly, the ruling of the trial court granting summary judgment in…

SD Fla. Rejects Borrower’s Effort to Exclude Evidence of Reasonableness of Lender-Placed Insurance Premiums

The U.S. District Court for the Southern District of Florida recently denied a borrower’s motion to exclude testimony of an insurer’s expert regarding the reasonableness of lender-placed insurance premiums levied upon the borrower’s mortgage loan. In so doing, the Court rejected the borrower’s argument that the expert testimony failed to address claims that the insurer colluded with its mortgage servicer to inflate insurance premiums, concluding that the borrower’s objection goes to the weight, rather than the admissibility of the testimony, and that testimony concerning the insurer’s compliance with applicable rules, regulations and industry standards would assist the trier in fact.…

10th Cir. Holds Borrower’s FDCPA, Other Claims Not Barred by Rooker-Feldman After Non-Judicial Foreclosure

The U.S. Court of Appeals for the Tenth Circuit recently held that the Rooker-Feldman doctrine did not bar the trial court from considering the plaintiff’s claims because she was not challenging or seeking to set aside an underlying non-judicial mortgage foreclosure proceeding under Colorado law. Accordingly, the Tenth Circuit remanded to the trial court to determine what effect, if any, the non-judicial proceeding had under the doctrines of issue and claim preclusion. A copy of the opinion in Mayotte v. U.S. Bank National Association is available at:  Link to Opinion. The borrower signed a note secured by a deed of trust.  The…

11th Cir. Holds Servicer Did Not Violate RESPA by Omitting Loan Owner’s Phone Number, Damages Allegations Insufficient

In an unpublished ruling, the U.S. Court of Appeals for the Eleventh Circuit recently held that a mortgage servicer did not violate the federal Real Estate Settlement Procedures Act or its implementing regulation (at 12 C.F.R. § 1024.36(d)(2)(i)(A)) by failing to provide the loan owner’s phone number in response to a borrower’s request for information (“RFI”). In so ruling, the Court also held that: (1) The borrower’s allegation of having expended “certified postage costs of less than $100 for mailing” was not sufficient to meet the requirement of “actual damages” under RESPA at 12 U.S.C. § 2605; and (2) The…

11th Cir. Confirms Servicer May Designate Address for QWRs

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a summary judgment ruling in favor of a mortgage servicer, holding that the servicer had no duty to respond to a Qualified Written Request (“QWR”) under the federal Real Estate Settlement Procedures Act (RESPA) because the borrower failed to send the QWR to the servicer’s designated address for QWR receipt. A copy of the opinion in Bivens v. Bank of America, NA is available at:  Link to Opinion. A mortgage servicer sent a letter to a borrower advising that the lender transferred the servicing of the borrower’s mortgage loan to…

MD Fla. Dismisses Borrower’s RESPA Servicing Claims for Lack of Actual Damages, Cites Spokeo

The U.S. District Court for the Middle District of Florida recently granted a mortgage servicer’s motion to dismiss a borrower’s claim that the servicer violated the federal Real Estate Settlement Procedures Act (RESPA) by allegedly failing to respond in a timely or adequate manner to a written Request for Information (“RFI”). In so ruling, the Court held that the servicer’s conduct did not cause the claimed actual damages incurred in preparing and sending the letters to the servicer, as required by RESPA at 12 U.S.C. § 2605(f). The Court also referenced the Supreme Court of the United States’s ruling in…

8th Cir. Upholds Exclusion of ‘Similar Borrower’ Testimony in 8-to-1 Punitive Damages Award Case

The U.S. Court of Appeals for the Eighth Circuit recently affirmed a punitive damages award in an approximately 8-to-1 ratio to compensatory damages to a borrower who sued her mortgage loan servicer for alleged common law invasion of privacy and for allegedly violating the Fair Credit Reporting Act (FCRA), the Fair Debt Collection Practices Act (FDCPA) and the Real Estate Settlement Procedures Act (RESPA). In so ruling, the Court also held that the trial court properly excluded the testimony of a non-party consumer who was supposedly treated similarly by the servicer to rebut the servicer’s assertions of good faith conduct,…

11th Cir. Holds RESPA Claim for Request for Information 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 the plaintiff’s RESPA claim for statutory damages failed to allege an injury in fact under Spokeo. A copy of the opinion in Meeks v. Ocwen Loan Servicing LLC is available at: Link to Opinion. A borrower’s attorney sent the…

MD Fla. Holds Non-Foreclosure Collection on Time-Barred Debt Does Not Provide Basis for FDCPA or FCCPA Claim

The U.S. District Court for the Middle District of Florida recently granted in part a mortgage loan servicer’s motion to dismiss a consumer borrower’s claims under the federal Fair Debt Collection Practices Act (FDCPA), the Florida Consumer Collection Practices Act (FCCPA), the Real Estate Settlement Procedures Act (RESPA), the federal Fair Credit Reporting Act (FCRA), and the federal Declaratory Judgment Act (DJA), holding: (a) the borrower’s complaint stated claims under the FDCPA and FCCPA because the allegations raised a plausible inference that the servicer knew the borrower was represented by counsel; (b) the borrower’s allegations that the statute of limitations…

7th Cir. Rejects Alleged RESPA ‘Pattern and Practice’ Due to No Evidence of ‘Coordination’

The U.S. Court of Appeals for the Seventh Circuit recently held that a mortgage servicer’s response to a borrower’s written request for information complied with requirements of the federal Real Estate Settlement Procedures Act (RESPA) and, to the extent any information was missing, the borrower suffered no actual damages as a result. In so ruling, the Seventh Circuit rejected the borrowers’ pattern or practice argument under RESPA, based on two district court cases in 2012 and 2014 holding the servicer liable for RESPA violations, because “[t]wo examples of similar behavior — in different states, separated by a handful of years,…