# Schmidt v. Wells Fargo Bank, N.A.

> District Court, M.D. Florida · February 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10104554

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

W. SCHMIDT,

Plaintiff,

v. Case No. 8:20-cv-150-T-33AAS

WELLS FARGO BANK, N.A.,

Defendant.
______________________________/

ORDER
This matter comes before the Court upon consideration of
Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss the
Complaint with Prejudice (Doc. # 5), filed on January 22,
2020. Plaintiff W. Schmidt responded on February 5, 2020.
(Doc. # 11). For the reasons that follow, the Motion is
denied.
I. Background
Schmidt initiated this action against Wells Fargo in
state court on October 19, 2019. (Doc. # 1). Wells Fargo
removed the case to this Court on the basis of federal
question jurisdiction on January 21, 2020. (Doc. # 2).
Schmidt alleges that Wells Fargo was both the lender and
servicer for a refinanced mortgage on his home in Tampa,
Florida. (Doc. # 1 at 3-4). The mortgage had a fifteen-year
term, beginning on June 1, 2003, and ending on May 1, 2018.
(Id.).
The mortgage required Schmidt to make monthly payments
into an escrow account to cover “property taxes and
assessments and insurance required by the lender.” (Id. at
4). Schmidt alleges that Wells Fargo “exercised extensive,
unilateral control over the required escrow account for taxes
and insurance and received greater economic benefit than in
a typical transaction since it was not required to pay any

interest to [Schmidt] on the funds paid into escrow and held
by Wells Fargo.” (Id.).
Although Schmidt satisfied all requirements under the
mortgage, he “repeatedly experienced numerous and unexpected
demands from Wells Fargo regarding the [m]ortgage, including
but not limited to the coverages and limits of the property
insurance required to be maintained by [Schmidt] pursuant to
the terms of the [m]ortgage.” (Id. at 4-5).
On October 5, 2017, Schmidt “submitted to Wells Fargo by
Certified Mail . . . a Qualified Written Request (‘QWR’)
pursuant to [the Real Estate Settlement Procedures Act
(‘RESPA’)].” (Id. at 5, 28-37). This QWR requested numerous

categories of documents and information, including an
accounting of Schmidt’s loan from “the inception of [the]
loan to the present.” (Id. at 30-31).
On October 20, 2017, Wells Fargo replied by letter and
attached copies of various documents, including a copy of the
mortgage, a property appraisal from 2003, and a statement
detailing the last three years of account activity. (Doc. #
1 at 5-6, 39-41). The letter stated that Wells Fargo would
not turn over much of the information because it was
“confidential, privileged and/or proprietary.” (Id. at 40).

The letter also stated that, although Schmidt’s other
requests were “too broad” to respond to, Wells Fargo would
“review [Schmidt’s] request again” if he provided “more
specific details about what [he was] seeking.” (Id. at 41).
Schmidt alleges that this reply letter was “a
boilerplate template” that “did not respond directly to the
specific requests contained within [his] QWR.” (Id. at 6). He
complains that “none of the documents or materials provided
included the information specifically requested by
[Schmidt’s] October 5, 2017 QWR, namely, the complete
foundation materials and data needed for a complete
accounting of his mortgage and related required escrow

account from its inception through the date of the response.”
(Id. at 7).
In a letter dated February 15, 2018, “Wells Fargo advised
[Schmidt] that ‘we have processed the funds required to pay
off your loan in full.’” (Id. at 8, 42). Yet, Schmidt also
received an invoice from Wells Fargo, dated January 29, 2018,
showing an amount due by March 1, 2018, of $1,251.91. (Id. at
8, 44). Schmidt received another invoice, dated February 12,
2018, showing an amount due by April 1, 2018, of $1,251.91.
(Id. at 8, 45).
“To protect his credit and his home, [Schmidt] paid both

the March 1, 2018 and April 1, 2018 invoices in full and these
payment checks were each cashed by Wells Fargo.” (Id. at 8).
Schmidt later received an April 16, 2018, letter from Wells
Fargo with a refund check of $1,251.91 because his loan had
already been paid in full. (Id.). Schmidt also received a
February 28, 2018, letter from Wells Fargo including a final
disbursement check of $4,265.52 because the escrow account
had been closed in light of his paying off the mortgage. (Id.
at 8-9). Because “[i]n the absence of RESPA compliance by
Wells Fargo, [Schmidt] did not know whether the enclosed check
was for the proper amount due,” Schmidt “was hesitant to cash
this escrow account check.” (Id. at 9).

“In order to attempt to straighten out the amounts timely
paid each month to Wells Fargo for almost 15 years and to
determine the amount due to be refunded form the escrow
account as well as to resolve the problems created by Wells
Fargo’s correspondence claiming that an additional mortgage
payment was due April 1, 2018, [Schmidt] submitted on August
2, 2018, a second letter . . . asking that this correspondence
be treated by Wells Fargo as both a ‘reconsideration of your
handling of my October 5 request as well as a New RESPA
[QWR].’” (Id. at 9, 48). This August 2 QWR stated that “Wells
Fargo had failed to make a meaningful effort to comply with

the provisions of RESPA as [Schmidt] had specifically
previously requested” and “also asked Wells Fargo for the
production of a privilege log.” (Id. at 9-10).
Finally, the August 2 QWR addressed the “two Wells Fargo
refund checks that [Schmidt] had received but was hesitant to
negotiate since he was without the previously requested
information to be able to know if they were in a proper amount
and did not want to waive any of his rights.” (Id. at 10).
Schmidt sought “Wells Fargo’s written permission to negotiate
these checks without prejudice to reserving all of [his] legal
rights” and requested Wells Fargo “specifically address this
request and grant the requested authorization in writing

within twenty (20) days.” (Id. at 10, 52).
Wells Fargo’s response to the August 2 QWR is dated
August 20, 2018, and simply reiterated and enclosed a copy of
Wells Fargo’s previous response to the October 5 QWR. (Id. at
10, 58). According to Schmidt, “Wells Fargo refused to
reconsider their prior objections and non-responsiveness and
totally ignored the subsequent events reported in the August
2, 2018 letter as well as the specific request for permission
for [Schmidt] to be able to negotiate the two refund checks
without prejudice.” (Id. at 11).

Schmidt maintains that “[w]ith respect to both the
escrow account and the loan payment information and balance
owed by [him] to Wells Fargo, an accounting is needed since
said accounts are sufficiently complicated that an ordinary
legal action demanding a fixed sum is clearly impracticable.”
(Id. at 7).
The complaint asserts six counts: equitable accounting
of the escrow account (Count One); equitable accounting of
payment account (Count Two); violations of RESPA (Counts
Three and Four); and negligence (Counts Five and Six). (Doc.
# 1). Wells Fargo now seeks dismissal of all counts with
prejudice. (Doc. # 5). Schmidt has responded (Doc. # 11), and

the Motion is now ripe for review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
Wells Fargo seeks to dismiss all the counts of the
complaint. The Court will address each claim in turn.
A. RESPA
In Counts Three and Four, Schmidt asserts claims under
RESPA, alleging that Wells Fargo failed to respond
appropriately to Schmidt’s two QWRs. (Doc. # 1 at 16-21).
“Specifically, Wells Fargo failed to conduct a reasonable
investigation and to provide the borrower with an explanation

or clarification that included the information requested by
the borrower or an explanation of why the information
requested was unavailable or could not be obtained by the
servicer.” (Id. at 17, 20).
“RESPA prescribes certain actions to be followed by
entities or persons responsible for servicing federally
related mortgage loans, including responding to borrower
inquires.” McLean v. GMAC Mortg. Corp., 398 F. App’x 467, 471
(11th Cir. 2010)(per curiam)(citing 12 U.S.C. § 2605). “To
state a claim for violation of RESPA § 2605(e), plaintiff[]
must allege facts showing that (1) defendant is a loan
servicer, (2) plaintiff[] sent defendant a valid QWR, (3)

defendant failed to adequately respond within the 20/60 day
statutory period, and (4) plaintiff[] [is] entitled to actual
or statutory damages.” DeBoskey v. SunTrust Mortg., Inc., No.
8:14-cv-1778-MSS-TGW, 2017 WL 4083557, at *11 (M.D. Fla.
Sept. 14, 2017)(quoting Smith v. Bank of Am. Home Loans, 968
F. Supp. 2d 1159, 1170 (M.D. Fla. 2013)).
RESPA defines a “qualified written request” as:
a written correspondence, other than notice on a
payment coupon or other payment medium supplied by
the servicer, that—
(i) includes, or otherwise enables the servicer to
identify, the name and account of the borrower; and
(ii) includes a statement of the reasons for the
belief of the borrower, to the extent applicable,
that the account is in error or provides sufficient
detail to the servicer regarding other information
sought by the borrower.
12 U.S.C. § 2605(e)(1)(B).
Wells Fargo argues that Schmidt’s two letters, from
October 2017 and August 2018, are not QWRs as defined by
RESPA. (Doc. # 5 at 6-8). Wells Fargo emphasizes that neither
letter alleges an error with his mortgage payment or escrow
accounts. (Id.). Instead, the two letters request various
types of information and documents.
This argument fails because “Section 2605(e)(1)(B)(ii)
is written in the disjunctive.” Gnipp v. Bank of Am. N.A.,
No. 2:15-cv-99-FtM-29CM, 2016 WL 4810541, at *5 (M.D. Fla.
Sept. 14, 2016). “In other words, a communication can satisfy
RESPA by ‘includ[ing] a statement of the reasons . . . that
the account is in error,’ or by ‘provid[ing] sufficient detail
to the servicer regarding other information sought by the
borrower.’” Id. (quoting 12 U.S.C. § 2605(e)(1)(B)); see also
Goldman v. Aurora Loan Servs., LLC, No. 109-CV-3337-RWS, 2010
WL 3842308, at *5 (N.D. Ga. Sept. 24, 2010)(“Defendants allege
that Plaintiff’s letter was not a QWR because it did not set
forth any reasons for why the account was in error, but
Defendants fail to recognize that the definition of a QWR is

disjunctive and also ‘includes a statement . . . [that]
provides sufficient detail to the servicer regarding other
information sought by the borrower.’” (quoting 12 U.S.C. §
2605(e)(1)(B)(ii))).
Here, Schmidt’s letters unquestionably request
information from Wells Fargo. Thus, despite lacking a clear
allegation of error, Schmidt’s letters may still qualify as
QWRs under RESPA. And Wells Fargo has not argued that
Schmidt’s numerous requests for various types of information
and documents fail to “provide sufficient detail to the
servicer regarding other information sought by the borrower.”
12 U.S.C. § 2605(e)(1)(B)(ii). Nor is the Court persuaded by

Wells Fargo’s assertion — unsupported by any case law — that
“even if [Schmidt’s] correspondence were a proper QWR . . .
he would only be entitled to three (3) years of his loan
payment history since violations of RESPA . . . have a 3 year
statute of limitations.” (Doc. # 5 at 8).
Accordingly, Schmidt has sufficiently alleged that his
letters were QWRs to which Wells Fargo inadequately
responded. The Motion is denied as to the RESPA claims.
B. Negligence
In Counts Five and Six, Schmidt asserts claims for
negligence based on Wells Fargo’s alleged violations of

RESPA. (Doc. # 1 at 22-25).
The parties agree that Schmidt’s negligence claim rises
or falls with his RESPA claims. (Doc. # 5 at 10; Doc. # 11 at
10); see also Ranger v. Wells Fargo Bank N.A., 757 F. App'x
896, 904 (11th Cir. 2018)(“The parties agree that Plaintiffs’
negligence per se claim rises and falls alongside Plaintiffs’
RESPA claim. It is impossible to see how they could disagree
since Plaintiffs’ sole negligence theory is that Wells Fargo
violated RESPA by conducting an unreasonable
investigation.”).
Because the Motion has been denied as to the RESPA
claims, the Motion is also denied as to the negligence claims.

See Id. (“Plaintiffs have stated a claim under RESPA.
Therefore, their negligence per se claim must survive the
motion to dismiss as well.”).
C. Equitable Accounting
In Count One, Schmidt seeks an equitable accounting of
his escrow account. (Doc. # 1 at 14). He maintains that he
and Wells Fargo “shared a fiduciary relationship with respect
to the escrow account” and that the “mortgage loan transaction
between the parties was involved and complicated by its
nature.” (Id.). He insists that “[a] remedy at law is

inadequate.” (Id.).
In Count Two, Schmidt seeks an equitable accounting of
the payment account for his mortgage. (Id. at 15-16). Schmidt
and Wells Fargo allegedly “shared a contractual relationship
with respect to the crediting of payments . . . pursuant to
the note and mortgage” and “the payments and adjustments made
by Wells Fargo, often on an annual or even more frequent
basis, involved extensive estimates, calculations and
complicated transactions.” (Id. at 15). He insists that “[a]
remedy at law is inadequate.” (Id.). Schmidt highlights that
“there [was] an additional overpayment of [] $1,251.91,”
which Wells Fargo has not refunded Schmidt, and, thus, “a

complete accounting of the payments made and interest charged
on the Wells Fargo loan over its 15-year term [is needed] to
determine the refund due and owing to” Schmidt. (Id.).
As an initial matter, the Court notes that equitable
accounting is generally considered a remedy rather than a
stand-alone cause of action. See Zaki Kulaibee Establishment
v. McFliker, 771 F.3d 1301, 1310 n.21 (11th Cir. 2014)(“Zaki
purports to appeal the dismissal of its accounting ‘claim.’
We note that an accounting is best understood as a remedy for
a cause of action, not as a cause of action in its own

right.”); see also Becker v. Davis, 491 F.3d 1292, 1305 (11th
Cir. 2007), abrogated on other grounds by Arthur Andersen LLP
v. Carlisle, 556 U.S. 624 (2009)(“[A]n accounting is a remedy
attached to a separate independent cause of action.”).
Nevertheless, some Florida courts have allowed stand-alone
causes of action for equitable accounting to proceed, so this
Court will not dismiss Schmidt’s equitable accounting claims
on that ground. See, e.g., Cassedy v. Alland Invs. Corp., 128
So. 3d 976, 978 (Fla. 1st DCA 2014)(“[A]n action for an
accounting is a separate and distinct cause of action that
may be available where a fiduciary duty exists.”).
“To obtain an accounting under Florida law, . . . a party

must show either (1) a sufficiently complicated transaction
and an inadequate remedy at law or (2) the existence of a
fiduciary relationship.” Zaki Kulaibee Establishment, 771
F.3d at 1311. “As to complexity, transactions are deemed
‘sufficiently complicated to warrant an equitable accounting
when a jury would not be reasonably able, based on the time
and effort required, to assess the evidence and reach an
accurate value of the amount owed.’” Cox Television
Jacksonville, LLC v. Fla. Cable, Inc., No. 5:16-cv-6-Oc-
32PRL, 2016 WL 11578269, at *6 (M.D. Fla. July 13,
2016)(quoting Blitz Telecom Consulting, LLC v. Peerless

Network, Inc., No. 6:14-cv-307-Orl-40GJK, 2015 WL 9269413, at
*9 (M.D. Fla. Dec. 21, 2015)), report and recommendation
adopted, No. 5:16-cv-6-Oc-32PRL, 2016 WL 11578270 (M.D. Fla.
Aug. 17, 2016). “[T]he determination of whether a series of
transactions is sufficiently complex to warrant equitable
accounting is fact specific.” Traditions Senior Mgmt., Inc.
v. United Health Adm’rs, Inc., No. 8:12-cv-2321-T-30MAP, 2013
WL 3285419, at *5 (M.D. Fla. June 27, 2013).
According to Wells Fargo, Schmidt “has failed to allege
any facts which demonstrate that he has no adequate remedy at
law and that only an equitable accounting will provide him
with relief.” (Doc. # 5 at 13). Wells Fargo also argues that

Schmidt “still has failed to incorporate any factual
allegations which provide any plausible basis to believe that
Wells Fargo did not properly account for all of his payments
and correctly returned his escrow monies.” (Id. at 11).
Similarly, Wells Fargo contends that Count Two at most
“demonstrates . . . that Wells Fargo may owe [Schmidt] a
refund for $1,251.91.” (Id. at 13). Thus, in Wells Fargo’s
opinion, Schmidt “does not need an accounting,” and “[i]f
[he] truly believes that Wells Fargo has held onto an
additional payment to which it is not entitled, [he] has legal
remedies he may assert.” (Id.).

The Court disagrees with Wells Fargo. Schmidt has
sufficiently pled a claim for equitable accounting of the
escrow account in Count I. He has alleged that Wells Fargo
and Schmidt had a fiduciary relationship regarding the escrow
account (Doc. # 1 at 14) — an allegation that Wells Fargo has
not challenged in its Motion. “Recently, the Eleventh Circuit
clarified the circumstances where a plaintiff is entitled to
an accounting under Florida law, stating that when a fiduciary
relationship exists between the parties, ‘an accounting is
appropriate in every case.’” Samana Inc. v. Lucena, 156 F.
Supp. 3d 1373, 1374 (S.D. Fla. 2016)(quoting Zaki Kulaibee
Establishment, 771 F.3d at 1310-11). Thus, because Schmidt

has alleged a fiduciary relationship regarding the escrow
account, Schmidt has properly stated a claim for equitable
accounting of the escrow account. See Id. (“[T]he Court finds
that because Plaintiff has alleged that the Parties had a
fiduciary relationship, the Plaintiff may properly state a
claim for equitable accounting.”).
Regarding Count II, the allegation that Wells Fargo has
failed to refund an additional $1,251.91 from Schmidt’s
payment account plausibly supports that an accounting of the
payment account is necessary. Indeed, Schmidt has pled that
no adequate remedy at law is available and that the 15-year

mortgage was a sufficiently complicated transaction. (Doc. #
1 at 15-16). Given that the determination of whether a
transaction is sufficiently complex is fact-specific, such
determination is better left for the summary judgment stage.
See Cox Television Jacksonville, LLC, 2016 WL 11578269, at *7
(denying motion to dismiss accounting claim and explaining
that “[w]hether the transaction is sufficiently complex —
such that a jury would not be able to reasonably assess the
evidence — will need to be decided at a later stage of the
litigation”).
And, at this point, it is unclear whether a legal remedy
would allow for sufficient discovery of how much is owed to

Schmidt, so the Court cannot say that a remedy at law is as
full and adequate a remedy as an accounting. See Id. (denying
motion to dismiss accounting claims because “at this point it
is unclear whether the records obtained through discovery
will be sufficient for the Plaintiffs to prove their damages;
it is plausible that as a practical matter they may not”);
Trenton Int’l, Ltd. v. Trenton Int’l, Inc., No. 2:05-cv-581
FtM-29SPC, 2006 WL 3201869, at *4 (M.D. Fla. Nov. 6,
2006)(“[T]here can be grounds for an equitable accounting
where the contract demands between litigants involve
extensive or complicated accounts and it is not clear that

the remedy at law is as full, adequate and expeditious as it
is in equity.” (citation omitted)). The Court finds that Count
Two states a claim for an equitable accounting of the mortgage
payment account.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss the
Complaint with Prejudice (Doc. # 5) is DENIED.
(2) Wells Fargo’s answer to the complaint is due 14 days
from the date of this Order.
DONE and ORDERED in Chambers in Tampa, Florida, this
14th day of February, 2020.
fan fr. Munahy (noiyh
VIR! IA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104554. Public record. Not legal advice.